Recovering Possession of Movable Property
Chapter Seventy-One
Syllabus topic 4.2.1, "Possessory Remedies"
Pages 346 to 350 of 462
In one line
Section 7 lets the person entitled to a movable thing sue for it; section 8 goes further and lets him compel the very article to be handed over, in four defined cases.
In the words a student can write in an exam: section 7 of the Specific Relief Act 1963 provides that "A person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure, 1908", with Explanations allowing a trustee to sue and treating a special or temporary right to present possession as sufficient. Section 8 provides that a person having possession or control of a particular article of movable property of which he is not the owner may be compelled specifically to deliver it to the person entitled to its immediate possession in four cases: where the thing is held as agent or trustee; where compensation in money would not afford adequate relief; where it would be extremely difficult to ascertain the actual damage; and where possession has been wrongfully transferred from the plaintiff.
Why two sections, and what each adds
Section 7 is about who may sue. It confirms that the ordinary machinery of the Code is available to recover a specific movable thing, and its two Explanations extend the class of plaintiffs.
Section 8 is about what the court may order. In an ordinary suit for a movable, a defendant may satisfy the decree by paying its value: goods have a market, and money buys a replacement. Section 8 identifies the cases where money is not good enough and the defendant may be compelled to deliver the thing itself.
The distinction to hold is therefore between the right to sue and the right to the specific article, and it is the answer to most problems on this topic.
The provisions
Section 7:
"A person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure, 1908.
Explanation 1. A trustee may sue under this section for the possession of movable property to the beneficial interest in which the person for whom he is trustee is entitled.
Explanation 2. A special or temporary right to the present possession of movable property is sufficient to support a suit under this section."
Section 8:
"Any person having the possession or control of a particular article of movable property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession, in any of the following cases:
(a) when the thing claimed is held by the defendant as the agent or trustee of the plaintiff;
(b) when compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed;
(c) when it would be extremely difficult to ascertain the actual damage caused by its loss;
(d) when the possession of the thing claimed has been wrongfully transferred from the plaintiff.
Explanation. Unless and until the contrary is proved, the court shall, in respect of any article of movable property claimed under clause (b) or clause (c) of this section, presume
(a) that compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed, or, as the case may be;
(b) that it would be extremely difficult to ascertain the actual damage caused by its loss."
Recovering Possession of Movable Property
Section 7 broken down
The plaintiff must be "entitled to the possession" of specific movable property. The thing must be identifiable; a claim for a quantity of unascertained goods is a claim in contract, not a claim for a specific thing.
Explanation 1: a trustee may sue. Although the beneficial interest is the beneficiary's, the trustee holding the property may sue for possession. Read with section 2(c) and 2(d), "trustee" includes every person holding property in trust, and "trust" includes an obligation in the nature of a trust.
Explanation 2: a special or temporary right is enough. The plaintiff need not be the owner. A bailee, a pledgee, a finder, or a hirer with a present right to possess may sue, and he may sue even the owner if the owner has no present right to possession. This is the Explanation that examiners use.
Section 8 broken down
The threshold
The defendant must have possession or control of a particular article of movable property of which he is not the owner, and the plaintiff must be entitled to its immediate possession.
"Of which he is not the owner" is a real limit. Section 8 does not lie against an owner. Where the defendant owns the thing and the plaintiff's claim is contractual, the plaintiff's route is specific performance under Chapter II, not section 8.
The four cases
(a) Held as agent or trustee of the plaintiff. The relationship itself makes delivery the right order, because the defendant holds for the plaintiff and has no interest of his own.
(b) Compensation in money would not afford adequate relief. The classic case of a unique chattel: an heirloom, an idol, a rare manuscript, an original painting, a family portrait.
(c) It would be extremely difficult to ascertain the actual damage. Overlaps with (b) but is not the same. Here money might in principle compensate, and the difficulty is in quantifying it.
(d) Possession has been wrongfully transferred from the plaintiff. The article has been moved out of his hands by a wrong.
Recovering Possession of Movable Property
The Explanation: a presumption in the plaintiff's favour
For claims under (b) or (c) the court shall presume, unless and until the contrary is proved, that money would not afford adequate relief, or that it would be extremely difficult to ascertain the damage.
This is a significant procedural advantage. The plaintiff who brings himself within (b) or (c) does not have to begin by proving inadequacy or difficulty: the burden is on the defendant to displace the presumption.
The two sections compared
| Section 7 | Section 8 | |
|---|---|---|
| What it governs | the right to sue for a specific movable | the right to the article itself |
| Against whom | anyone wrongfully withholding | a person not the owner who has possession or control |
| Plaintiff's standing | entitled to possession; a trustee may sue; a special or temporary right suffices | entitled to immediate possession |
| Relief | possession, in the manner provided by the Code | specific delivery of the particular article |
| Requirement | none beyond entitlement | one of the four cases in (a) to (d) |
| Presumption | none | for (b) and (c), in the plaintiff's favour |
A worked example
Tanvi lends a nineteenth century tanpura, an heirloom, to Uday for a concert. He refuses to return it.
- Can she sue under section 7? Yes. She is entitled to the possession of specific movable property, and she may recover it in the manner provided by the Code.
- Can she compel delivery of the instrument itself under section 8? Yes. Uday has possession and is not the owner; she is entitled to immediate possession; and the case falls within (a), he holding it for her, and within (b), an heirloom of that kind not being replaceable with money. The Explanation presumes inadequacy in her favour, so Uday must prove the contrary.
- He offers to pay its market value. Under section 8 the court may compel specific delivery, and the presumption under (b) means she need not begin by proving that money will not do.
- Change the facts: Tanvi had pledged the tanpura to a lender, and it is the lender who sues Uday. Explanation 2 to section 7 applies: a special or temporary right to present possession is sufficient, so the pledgee may sue although he is not the owner.
- Change them again: Uday bought the tanpura from Tanvi and has paid, and she refuses to hand it over. Section 8 does not help him, because it operates against a person who is not the owner, and on these facts ownership has passed. His remedy lies in specific performance of the contract of sale under Chapter II.
- A trustee holds shares for a beneficiary and a third party withholds the certificates. Explanation 1 to section 7: the trustee may sue for possession although the beneficial interest is the beneficiary's.
Recovering Possession of Movable Property
What it does NOT mean
"Only an owner may sue for a movable." Explanation 2 to section 7 makes a special or temporary right to present possession sufficient, so a bailee, pledgee or finder may sue.
"Section 8 lies against anybody withholding goods." It lies against a person who is not the owner of the article.
"A plaintiff under section 8 must prove that damages are inadequate." For claims under (b) or (c) the court shall presume it, and the burden is on the defendant to prove the contrary.
"Sections 7 and 8 cover unascertained goods." They speak of specific movable property and a particular article. A claim for a quantity of generic goods is a contractual claim.
"Section 8 is the same as specific performance." Section 8 enforces a right to possession against a non owner. Specific performance under Chapter II enforces a contract, including a contract to sell a movable.
Quick revision
- s.7: a person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure 1908.
- Explanation 1: a trustee may sue for property to the beneficial interest in which his beneficiary is entitled. Explanation 2: a special or temporary right to present possession is sufficient.
- s.8: a person having possession or control of a particular article of movable property of which he is NOT the owner may be compelled specifically to deliver it to the person entitled to its immediate possession, in four cases.
- The four: (a) held as agent or trustee; (b) money would not afford adequate relief; (c) it would be extremely difficult to ascertain the actual damage; (d) possession wrongfully transferred from the plaintiff.
- Explanation to s.8: for (b) and (c) the court shall presume inadequacy, or difficulty of ascertainment, unless the contrary is proved. The burden lies on the defendant.
- s.7 is about standing to sue; s.8 is about getting the article itself.
Test yourself
1. What do the two Explanations to section 7 add? Explanation 1 allows a trustee to sue for possession of movable property to the beneficial interest in which the person for whom he is trustee is entitled. Explanation 2 provides that a special or temporary right to the present possession of movable property is sufficient to support a suit, so a bailee, pledgee, hirer or finder may sue without being the owner.
2. State the four cases in section 8. Where the thing claimed is held by the defendant as the agent or trustee of the plaintiff; where compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed; where it would be extremely difficult to ascertain the actual damage caused by its loss; and where the possession of the thing claimed has been wrongfully transferred from the plaintiff.
Recovering Possession of Movable Property
3. What presumption does section 8 raise, and in whose favour? For a claim under clause (b) or clause (c) the court shall presume, unless and until the contrary is proved, that compensation in money would not afford the plaintiff adequate relief, or, as the case may be, that it would be extremely difficult to ascertain the actual damage caused. The presumption operates in the plaintiff's favour and puts the burden of displacing it on the defendant.
4. Can section 8 be used against the owner of the article? No. The section applies to a person having possession or control of an article of movable property of which he is not the owner. Where the defendant is the owner and the plaintiff's claim rests on a contract, the appropriate remedy is specific performance under Chapter II rather than section 8.
5. Distinguish sections 7 and 8. Section 7 governs the right to sue for a specific movable and identifies who may bring the suit, allowing a trustee to sue and treating a special or temporary right to present possession as enough. Section 8 governs the relief, allowing the court to compel delivery of the particular article itself against a person who is not its owner, but only in the four cases it lists, with a presumption in the plaintiff's favour under clauses (b) and (c).
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.