Why physical control does not create true ownership? Amaresh Patel BASICS OF LAW Thu, Feb 04, 2021, at ,05:17 PM The corpus (the physical control) alone cannot constitute the possession. Animus is also necessary. It means that there must be an intent, a mental consciousness on the part of the possessor to exclude any interference by others. Some principle about animus are as follows:1. The person having the animus is not necessarily the owner and sometimes he (possessor) too is aware of it. But if he has the animus, he is considered to be in possession. For example, a tenant or a mortgagee are not owners and they know it, but as they have got the required ‘animus’ therefore, they have the possession of the tenancy land and the mortgaged property.2. The animus is not necessary based on possessor’s own interest or right as in the case of a bailee. He has the possession of the object bailed although the animus to exclude others is not on his own behalf.3. It is not necessary that the animus should be specific: it may be a general animus. It means that the possessor need not have the continuous and present knowledge (animus) of every specific or particular object forming part of a group or store. If the person has the required animus towards the group or the store, it extends to the specific or particular part also, for example, if a person has got a library he might have forgotten the existence of many books, but still they are in his possession.4. It is not necessary, that the animus should be based on a legal claim to the object. The object, might have been unlawfully but if such taker has the required animus he has got the possession of the object. For example, a thief has possession of the stolen property as real as owner himself has.5. The animus must be exclusive claim to the object. The possessor must have in intent to exclude others from the use of the thing. If a person has got a right of way over the land of another person, the former is not in possession of the land because he has not the required animus to exclude others. But it does not mean that the exclusion should be absolute. A person can possess land although others have certain rights over it.Landmark Case:Bridges vs. Hawkeswoth: In this case it was decided by the Court that the bundle of notes found on the floor of a shop passed into the possession of the finder rather than shopkeeper. The decision has been supported by Pollock and Salmond. Pollock holds that since the shop-keeper (defendant) has no corpus in the bundle of notes, he has no de facto control over it. Salmond has taken the view that the shopkeeper has no aimus for possession. The decision has, however, been criticized by Prof. Goodhart and Ganville Williams. In their opinion this case was wrongly deided because the defendant shopkeeper had a general animus and sufficient control requisite for legal possession as the notes were physically found in the stop itself.R. vs. Reley: In this case, where the accused was driving his herd of sheep, some of the prosecutor’s sheep joined the herd and were driven away by the accused along with his own. This mistake came to his notice after he had sold the entire flock of sheep. The accused was held to have taken possession of the sheep which belonged to the prosecutor and which he unknowingly drove with his own flock to the market.R. vs. Harding: In this case, the accused was convicted of stealing a rain-coat from a maid-servant who, as against the master, had mere custody of the raincoat and could herself have been convicted of larceny had she dishonestly made off with it. In the eyes of law she had possession as against the thief but not as against her employer.R. vs. Chissers: A person went in a shop and took some cloth to see. Then he ran away with the cloth. He was convicted for larceny as the court held that he had not obtained the possession of the cloth merely by taking and it was still in possession of the shopkeeper.Salmond observed that possession is sometimes possible without knowledge of the subject matter and sometimes knowledge is a necessary requirement for possession. He explains this by a hypothetical illustration. If ‘A’ momentarily hand his wallet to ‘B’, from whom it is stolen by ‘C’, who then looses it on ‘D’s property, where it is found by ‘E’, the question who has the right to possess or who has legal possession will depend on who brings actions against whom.As against all subsequent parties ‘E’s title would prevail because finder acquires a good title. In an action between ‘D’ and ‘E’, however, it would seem that ‘D’ would have a better title if he could prove the article was found on property from which he had a general intention to exclude others.As against ‘C’, neither D nor E would be said by law to have possession since C had right against all except the true owner. In an action by C against D and E, the latter would not be allowed to plead just tertii, that is they cannot argue that the wallet belongs to someone other than C and therefore C should not succeed against D and E. To allow this, would be to allow anyone who could prove a defect in possession’s title to dispossess him of his goods. The plea of jus tertii, is allowed only to the true owner and/or his agent.Obviously, as against A or B, C would have no defence. B would recover the wallet because he had actual possession of it. A could recover it from C, because though it was in B’s hand, he (i.e, A) had an immediate right to possess. Therefore, A or B, whosoever brings action against C, would be deemed to have legal possession of the wallet as against C. It would be therefore, seen that in common law, possession is a relative matter. The law is not normally concerned with the question which of the parties before the court has a best right to possess; it is concerned with the question as in which of the parties has the better right to possess.