may be lawful, it may be unlawful. It may be legal or illegal. The acquisition
of legal possession would obviously be lawful and would of necessity involve
the occurrence of some event recognized by law whereby the subject matter falls
under the control of the possessor. But a problem arises where the duration for
which possession is recognized is limited by the grantor or the law.
Continuance of possession beyond the period specified by the grantor or recognized
by law is not treated as a lawful possession. For example, a tenant acquires
legal as well as lawful possession of the tenanted premises from the landlord
with the express consent of the landlord but limited to the duration of the lease.
On expiry of the leaser, if the landlord does not consent to the lease being
continued, the possession of such tenant would not be a lawful possession. The
nature of possession being not lawful would entitle the landlord to regain
From a common sense point of view,
lawful possession must be the state of being a possessor in the eyes of law.
The possession must be warranted or authorized by law; having the qualifications
prescribed by law and not contrary to nor forbidden by law. Sawwad Ali v. Rajesh Kumar, 2019 (135) ALR 927.
Corpus Possession means that there exists such physical contact of the thing by the possessor as to give rise to the reasonable assumption that other person will not interfere with it. Existence of corpus broadly depends on (1) upon the nature of the thing itself, and the probability that others will refrain from interfering with the enjoyment of it; (2) possession of real property, i.e., when a man sets foot over the threshold of a house, or crosses the boundary line of his estate, provided that there exist no factors negativing his control, for example the continuance in occupation of one who denies his right; and (3) acquisition of physical control over the objects it encloses. Corpus, therefore, depends more upon the general expectations that others will not interfere with an individual control over a thing, then upon the physical capacity of an individual to exclude others.
The animus possidendi is the conscious intention of an individual to exclude others from the control of an object.
There is also a concept of “constructive possession” which is depicted by a symbolic act. It has been narrated with an illustration that delivery of keys of a building may give right to constructive possession of all the contents to the transferee of the key.
A person other than the owner, if continued to have possession of immoveable property for a period as prescribed in a Statute providing limitation, openly, without any interruption and interference from the owner, though he has knowledge of such possession, would crystallize in ownership after the expiry of the prescribed period of limitation, if the real owner has not taken any action for reentry and he shall be denuded of his title to the property in law. “Permissible Possession” shall not mature a title since it cannot be treated to be an “adverse possession”. Such possession for however length of time be continued, shall not either be converted into adverse possession or a title. It is only the hostile possession which is one of the condition for adverse possession. Bhikhari v. D.D.C., 2018 (141) RD 130.
Sub-tenancy or subletting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sublet had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises are let out or sublet or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sublet.” Flora Elias Nahoum v. Irdish Ali Laskar, (2018) 2 SCC 485.
The “appeal” under Section 17 is available to the borrower against any measure taken under Section 13(4). Taking possession of the secured asset is only one of the measures that can be taken by the secured creditors. Depending upon the nature of the secured asset and the terms and conditions of the security agreement, measures other than taking the possession of the secured asset are possible under Section 13(4). Alienating the asset either by lease or sale, etc., and appointing a person to manage the secured asset are some of those possible measures. On the other hand, Section 14 authorises the Magistrate only to take possession of the property and forward the asset alongwith the connected documents to the borrower. Therefore, the borrower is always entitled to prefer an “appeal” under Section 17 after the possession of the secured asset is handed over to the secured creditor. Section 13(4)(a) declares that the secured creditor may take possession of the secured assets. It does not specify whether such a possession is to be obtained directly by the secured creditor or by resorting to the procedure under Section 14. By whatever manner the secured creditor obtains possession either through the process contemplated under Section 14 or without resorting to such a process, obtaining of the possession of a secured asset is always a measure against which a remedy under Section 17 is available. Dheerendra Kumar v. Authorised Officer, 2018 (129) ALR 32.
‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are: (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Nagabhushanammal v. C. Chandikeswaralingam, 2016 (3) AWC 2721.
“Ownership” denotes the relation between a person and an object forming the subject matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons” (Salmon on Jurisprudence, 12th Ed.). There are various rights or incidents of ownership all of which need not necessarily be present in every case. They may include a right to possess, use and enjoy the thing owned, and a right to consume, destroy or alienate it. Such a right may be indeterminate in duration and residuary in character. A person has a right to possess the thing which he owns, even when he is not in possession, but only retains a reversionary interest, i.e., a right to repossess the thing on the termination of a certain period or on the happening of a certain event. Suneel Galgotia v. State of U.P., 2016 (92) ACC 40.
The distinction between “possession” and “occupation” was considered in Seth Narainbhai Iccharam Kurmi v. Narbada Prasad Sheosahai Pande, AIR 1941 Nag 357 and the court held:
“Bare Occupation and possession are two different things. The concept of possession, at any rate as it is understood in legal terminology, is a complex one which need not include occupation. It comprises rather the right to possess, and the right and ability to exclude others from possession and control coupled with a mental element, namely, the animus possidendi, that is to say, knowledge of these rights and the desire and intention of exercising them if need be. The adverse possession of which the law speaks does not necessarily denote actual physical ouster from occupation but an ouster from all those rights which constitute possession in law. It is true that physical occupation is ordinarily the best and the most conclusive proof of possession in this sense but the two are not the same. It is also true that there must always be physical ouster from these rights but that does not necessarily import physical ouster from occupation especially when this is of just a small room or two in a house and when this occupation is shared with others. The nature of the ouster and the quantum necessarily varies in each case. State of U.P. v. Daiya Charitable Society, 2015 (112) ALR 138.
The term “possession” consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control. One of the definitions of “possession” given in Black’s Law Dictionary is as follows:
“Possession.—Having control over a thing with the intent to have and to exercise such control. Oswald v. Weigel, 219 Kan616. The detention and control, or the manual or ideal custody, of anything which may be the subject of property, for one’s use and enjoyment, either as owner or as the proprietor of a qualified right in it and either held personally or by another who exercises it in one’s place and name. Act or state of possessing. That conditions of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons.
The law, in general, recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. The law recognizes also that possession may be sole or joint. Of one person alsone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.”
In the said Dictionary, the term “possess” in the context of narcotic drug laws means:
“Term “possess” under narcotic drug laws, means actual control, care and management of the drug. Collini v. State, 487 SW 2d 132. Defendant ‘possesses’ controlled substance when defendant knows of substance’s presence, substance is immediately accessible, and defendant exercises ‘dominion or control’ over substance. State v. Hornaday, 105 Wash 2d 120.
Possession as necessary for conviction of offence of possession of controlled substances with intent to distribute may be constructive as well as actual, United States v. Craig, 522 F 2d 29. The defendants must have had dominion and control over the contraband with knowledge of its presence and character. United States v. Morando-Alvarez, 520 F 882.
Possession as an element of offence of stolen goods, is not limited to actual manual control upon or about the person, but extends to things under one’s power and dominion. McConnel v. State, 48 Ala App 523.
Possession as used in indictment charging possession of stolen mail may mean actual possession or constructive possession. United States v. Ellison, 469 F 2d 413.
To constitute ‘possession’ of a concealable weapon under statute prescribing possession of a concealable weapon by a felon, it is sufficient that defendants have constructive possession and immediate access to the weapon. State v. Kelley, 12 Or App 496.
In Stroud’s Dictionary, the term “possession” has been defined as follows:
“ A person does not lose ‘possession’ of an article which is mislaid or thought erroneously to have been destroyed or disposed of, if, in fact, it remains in his care and control. (R v. Buswell, (1972) 1 WLR 64 : (1972) 1 All ER 75). Mohan Lal v.State of Rajasthan, (2015) 6 SCC 222.
The definition of “Lease” under the Indian Stamp Act, 1899 is a bit wider than what is provided under Transfer of Property Act, 1882. In the sum and substance, it can be said that a license is a right or permission granted by a competent authority or the owner of premises to carry on business or to do an act which, without such license/permission would be illegal. In other words, it is a formal or official permit or permission to carry on some business or to do some act which, without the license, would be unlawful and the word ‘License’ and ‘Permit’ are often used synonymously. The word “Lease” is frequently used to designate the contract by which relationship of landlord and tenant is created. A “Lease” is a species of contract for possession and profits of land and tenements, either for life or for a short period of time or during the pleasure of parties or a contract for the possession and profit of the land for a determinate period with the recompense of rent. A lease may be regarded as a conveyance or grant of an estate or interest in the real property, for limited period with conditions attached. A “License” is distinguishable from a “Lease” in more than one ways. “License” generally provides to the Licensee, less rights in real estate than a “Lease”. If a contract gives exclusive possession of premises against all the world, including the owner, it is a “Lease”, but if it merely confers a privilege to occupy the premises under the owner, it is a “License”. Accordingly, a license in a property is the permission or authority to engage in a particular act or series of acts upon the land of another without possessing an interest therein, and is thus subject to management and control retained by owner. A lease generally conveys an interest in the land, requires a writing to comply with the Statute of frauds and transfers possession, while the license merely excuses acts done by one, on the land in possession of another, that without license, would be trespass and conveys no interest in land. M/s Godwin Construction Pvt. Ltd. V. State of U.P., 2014 (124) RD 298.
Lease and Mortgage are species of the same genus viz., the ‘transfer of property’. Both of them bring about transfer of property, but with a substantial change as to the nature of disposition. The principal objective of a mortgage is to provide security for repayment of amount, whereas the one under lease is that the owner of an item of immovable property permits another to use it on payment of rent. Except in the case of usufructuary mortgage and mortgage through conditional sale, the possession of the property continues to be with the mortgagor.
In the case of lease, the transferee invariably gets the possession of the property. Apart from the broad difference, there are certain minute important aspects, that differentiate the mortgage from lease. Once a transaction of mortgage is brought about, the mortgagor gets the right to redeem and the mortgagee gets the corresponding tight to foreclose the mortgage. The nature of decree to be passed in a suit for foreclosure of mortgage differs substantially from the one to be passed in a suit for recovery of possession of property from a lessee. A preliminary decree is to be passed and it is followed by final decree. Chapter IV of the Transfer of Property Act, 1882 confers rights and places obligations on the mortgagors, on the one hand, and mortgagees, on the other hand, which are typical and germatone to such transactions. Prescription of any fixed term is alien to mortgages.
Lease, on the other hand, involves, just the permission being accorded by an owner of property, to another, to use it. The consideration therefor is the rent fixed with the consent of the parties. In a given case, the lease may be nominal or phenomenal. Further law does not prohibit the rent being paid in the form of adjustment from the amount due from the lessor to the lessee. What becomes important is the objective underlying the transaction, namely use of the property belonging to the lessor by the lessee, on payment of rent and for a stipulated term. Chapter V of the Act enlists the rights, which a lessor has against the lessee and vice versa. Termination of lease on the one hand, and foreclosure/redemption of mortgage, on the other hand, have nothing in common. When such is the radical difference between the two transactions, it is not at all possible to take the one for the other. Gita Cotton Trading Company v. CCRA, Hyderabad and another, 2013(121) RD 661 (AP).