1. Definition of Possession
According to Bentham: To define possession is to recall the image which present itself to the mind when it is necessary to decide between two parties, which is in possession of a thing and which is not. But if this image is different with different me; if many do not form any image; or if they form a different one on different occasions, how shall a definition be found to fix an image so uncertain and variable. Defining the concept of possession in law is like defining the geometric conception of roundness. Absolute roundness cannot be define and is nowhere to be found.
Ownership denotes “the relation between a person and any right that is vested in him”. (Salmond)
3. Difference between possession and ownership
According to Austin, ownership in its wider sense is a right “indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration”. The right of alienation of property is a necessary incident to the right of ownership, but there are many restrictions with regard to the alienation of property today.
According to Pollock: “Ownership may be described as the entirety of the powers of use and disposal allowed by law. The owner of a thing is not necessarily the person who at a given time has the whole power of use and disposal: very often, there is no such person. We must look for the person having the residue of all such power when we have accounted for every detached and limited portion of it, and be will be the owner even if the immediate power or control and user is elsewhere.”
According to Salmond, possession “is in fact what ownership is in right. Possession is the de facto exercise of a claim; ownership is the dejure recognition of one. A thing is owned by me when my claim to it is maintained by the will of the state as expressed in the law; it is possessed by me when my claim to it is maintained by my own self-assertive will. Ownership is the guarantee of the law, possession is the guarantee of the facts.”
c. Possession, is the de facto counterpart of ownership
“Possession, is the de facto counterpart of ownership. It is the external form in which rightful claims normally manifest themselves. The separation of these two things is an exceptional incident, due to accident, wrong or the special nature of the claims in question.
d. Possession without ownership is the body of fact
Possession without ownership is the body of fact, uninformed by the spirit of right which usually accompanies it. Ownership without possession is right, unaccompanied by that environment of fact in which it normally realizes itself.
e. Possession endeavours to justify itself as ownership
Ownership strives to realize itself in possession and possession endeavours to justify itself as ownership.
f. Mode of acquisition
Possession and ownership differ in their mode of acquisition. The transfer of possession is comparatively easier and less technical, but the transfer of ownership in most cases involves a technical process of convincing.
The distinction between possession and ownership on the basis of fact and right is not tenable. Fact and right are not quite separate and independent ideas. One cannot exist without the other.