Tag Archives: possession

Corpus Possession & Permissible Possession

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.

 

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Subletting or Sub-tenancy

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.

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SARFAESI Act – Appeal under Section 17 of the Act

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.

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Ouster – Essential Elements

‘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.

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Ownership – Meaning of

“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.

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Possession, Occupation and Control – Distinction Between

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.

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Term Possession – With reference to Criminal Law

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.

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