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KEY TAKEAWAYS

  • A caretaker could be any individual who has the responsibility to protect and take care of some property on a contractual basis.
  • When property in its physical form comes under your legal ownership, it becomes your possession.
  • The Supreme Court of India, in the judgment of B. Gangadhar v. BR. Rajalingam, explains the meaning of possession and ownership.

INTRODUCTION

Property owners, who have mansions and properties which they cannot go and check upon everyday, give that property to caretakers who are provided with upkeep and maintenance for private and public properties. As made clear by the Hon’ble Apex Court,a caretaker/servant cannot obtain an interest in a property irrespective of its long possession.

But first, who is a caretaker? A caretaker is an individual who can be a related or non related person, who has the responsibility for the protection, care, or custody of a dependent adult as a result of assuming the responsibility voluntarily, by contract, through employment, or by order of the court. No one acquires the title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades, such person would not acquire any right or interest in the said property.

WHAT IS POSSESSION?

Possession is the physical hold of property. The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time, either as a friend, relative, caretaker or as a servant.

The protection of the court can only be granted or extended to the person who has a valid, subsisting rent agreement, lease agreement or a license agreement in his favor. Lease is a contract between a tenant and a landlord that gives the tenant the right to live in a property for a fixed period of time, which is for typically covering a 6 or 12 month rental period. The other valid documents or permission required for occupying a property temporarily is a rental agreement,which provides tenancy for a shorter period of time, which again is usually 30 days.

Possession means the physical control of an object or thing. Although in law, it is difficult to define the concept of possession because there is no precise definition of possession. It is a factual and legal concept. But it can be said to be the physical custody, control or occupation of any object with a specific intention of ownership.

In Section 110 of the Indian Evidence Act, 1872, the principle was also incorporated, which stated that the burden of proof on property was extremely important when it comes to whether a person owns the property which is proven to be in his possession, the onus of proving that you are not the owner is on those who claim not to be in possession of it.

As Salmond also says, possession is the objective realization of property; it is in fact what legal property is. It is the de facto exercise of credit whereas property is the de jure recognition of that credit. Explaining the relationship between possession and ownership, the Supreme Court of India, in the case of B. Gangadhar v. BR. Rajalingam stated that possession is the outward form in which claims normally manifest.

Even a person who improperly owns property, like a thief, has a good right of possession over it against the world at large, except the true owner. This means that a person cannot interfere with the possession of another person by invoking a defense of justertii, that is, the title of a third person. In addition, it is an illegal act to expropriate or expel a person from their land and forcibly return to it, even if the possession of that person is found to be illegal. So, simply, we can say that the law protects possession.

HOW DO WE DEFINE ADVERSE POSSESSION?

Adverse possession is when the actual owner of a property loses her/his ownership rights because of inaction on his/her part to remove the trespasser within a statutory period from the property. A person entering someone's land or property without permission is trespassing. The Supreme Court has stated that this kind of possession will not work on people who were servants or have been taking care of a physical property. Adverse possession is the possession of property or an object, without legal title, for a certain period of time, sufficient to become its rightful owner. The owner is required to demonstrate the intention to keep it absolutely for himself. It is not enough to claim ownership or pay off the liability without actually owning it. For example, continuous use of private land or a driveway or agricultural field of unused land amounts to adverse possession.

THE DISTINCTION BETWEEN DE FACTO POSSESSION AND DE JURE POSSESSION

De facto possession is real or physical possession and the possession of a right then becomes recognized and protected by law. It is not always necessary that the two coexist most of the time. For example, if a servant holds a bicycle in the name of his master, he has actual possession of it, but in the eyes of the law, ownership belongs to the master. Roman law also recognizes the distinction between de facto possession and legal possession as possession naturalis and possession civililis.

“A man has no possession of that, of the existence of which he is unaware” is a simple principle as explained by Justice Cave in R v. Ashwell.

MODES OF ACQUIRING POSSESSION

There are three modes of acquiring possession:

(a) Taking is the acquisition of possession without the prior consent of the owner and may be legal or illegal.

For example, as Keeton says, when an innkeeper takes property from his guest who has not paid his bill, possession is acquired by lawful appropriation. But when a thief steals something, he acquires possession illegally.There is no need for the acquisition of property assuming that the thing must already be in the possession of another person. For example, res nullis, that is, something that does not belong to anyone, such as a wild animal or a bird, etc. and to acquire possession of a res nullis is also to take.

(b) Delivery; which is nothing but the acquisition of possession with the consent of the previous owner and is of two types: effective and constructive.

Actual delivery is the physical or actual transfer of a thing from one person's hands to another. It is usually found of two kinds, one in which the owner always has the immediate ownership as when A lends his book to B, and the other is that in which there is no direct or effective transfer of possession of the thing like where the owner does not even retain the immediate ownership as when A sells the book to B.It is of three kinds:

Traditio Brevi Manu: It is the renunciation of possession to those who already have immediate possession of the thing.For example, a person sells a book to the tenant who already possesses the book immediately. So, in other words, it is only the animus that is transferred because the transferee already owns the corpus.

Constitutum Possessorium: As opposed to the Traditio Brevi Manu, constitutum possessorium means that mediated possession is transferred and immediate possession remains with the assignee. For example, if A buys a bicycle from someone who also does the job of renting a bicycle and A allows him to keep the bike and continue to use it for rental, here, although immediate possession is always with the other person, A has acquired ownership by constructive surrender.

Certification: In this type of delivery, there is a mediated transfer of ownership while immediate possession is in the hands of a third party. For example, A has goods in B's warehouse and they are sold from A to C, so in this case A has constructively delivered the goods to C as soon as B agrees to keep them for C and no longer for A .

(c) Legal transaction

Possession can be acquired by law also as in the case of damage and inheritance.

CONCLUSION

It can be safely concluded that possession is the most fundamental relationship between a man and a thing, but one of the most difficult concepts in the field of law. It is a very broad concept made up of various types and modes of acquisition which also deal with the acquisition of res nullis. This is a prima facie case of ownership and is protected by law through various remedies such as the doctrine of jus tertii.

Legal remedies are also available, such as Sections 5 and 6 of the Specific Relief Act, 1963, Section 145 of the Code of Criminal Procedure, 1973, Sections 47 and 48 of the Sale of Goods Act, and Sections 167 and 168 of the Indian Contract Act, 187


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