Recovery of possession of Movable property

 

Recovery of possession of Movable property

Section 7 and 8 of the Specific Relief Act, 1963 contains provisions for recovery of possession of some specific movable property. Section 7 of Act with the head ‘recovery of Specific movable property’ provides that, “a person entitled to the possession of the specific movable property may recover it in the manner provided by the Code of Criminal Procedure, 1908 (5 of 1908).

Explanation 1: A trustee may sue under this section for possession of the movable property to the beneficial interest he is entitled.

Explanation 2: A temporary or special right to the present possession is sufficient to support a suit under this section.”

The main ingredients of section 7 are as follows.

  • First, the plaintiff must be entitled to the possession of the movable property. A person may be entitled to the possession of a thing either by ownership or by virtue of a temporary or a special right as provided under explanation 2 of section 7. A special or temporary right to an individual may arise by either act of the owner of goods i.e. bailment, pawn etc. or not by the act of the owner of goods i.e. a person may be the finder of goods and finder of goods enjoys special right to possession except against true owner.

Only those persons can maintain a suit under section 7, who has the present possession of the movable property. A person who does not have present possession of the movable property cannot maintain a suit under this section.

Illustration: ‘A’ pledges some jewels to ‘B’ to secure for the loan he had taken. ‘B’ disposes those jewels to ‘C’ before he is entitled to do so. ‘A’ without having paid the amount of loan sues ‘C’ for possession of jewels. The suit shall be dismissed as he is not entitled to immediate possession of jewels.

  • Further, the property in question must be specific movable property means that property should be ascertained or ascertainable. Specific property means the very property not any property equivalent to it. The disputed specific movable property must be capable of being delivered and seized. Where the goods have been ceased to be recoverable or are not in control of the defendant, the plaintiff is not entitled to a decree for recovery.

Article 91(b) of the Limitation Act, 1963 provides a period of three years for the filing of suit computable from the date when the property is wrongfully taken or when the possession becomes unlawful.

Section 8 of the Specific Relief Act, constitutes the provision related to Liability of a person in possession not as owner, to deliver to a person entitled to immediate possession. It reads as;

“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 the immediate possession of, 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 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 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 adequate relief for the loss;

(b) that it would be extremely difficult to ascertain the actual damage caused by its loss.”

The following ingredients must coexist in order to bring section 8 into operation:

  • The defendant has full control or possession of the article claimed.
  • Such an article is movable property.
  • The person claiming the possession must be entitled to immediate possession;
  • The defendant is not the owner of the article.
  • The thing claimed is held by the defendant as an agent or when compensation in money would not afford adequate relief for the loss or when it is extremely difficult to ascertain the actual damage of the thing claimed.

Under clause (a) the burden is on the plaintiff to prove the fiduciary relationship, and under clause (d) also it is the burden on part of the plaintiff to prove wrongful transfer.

Illustrations: In case, where the idol of the family temple is in custody of a retired priest as he is bound to return it to the family because the actual damage is unascertainable.

Difference between Section 7 and 8

Under section 8 no suit can be brought against the owner, while under section 7 a person enjoying special or temporary right to present possession can bring suit even against the owner and under section 7 a decree is for the return of movable property or for the money value in alternative while under section 8 decree is only for return of specific article.

Case Law

Wood v Rowcliffe(3): In this case, a person leaving abroad leaves his furniture under the care of his friend. The friend is the trustee of the articles and is bound to return them in the same condition when demanded.  

Conclusion

The remedies provided by the Specific Relief Act become essential because the Indian Contract Act, 1872 provide relief only in the form of compensation in case of breach of contract. In the case where the damage is not ascertainable and where compensation in the form of relief is not adequate to the loss, the plaintiff had no remedy for specific performance.

Through the provisions of section 5 and 6, a person entitled to the possession of immovable property or having a special right to the possession may recover it through the due process of law. Similarly, section 7 and 8 empowers the person to recover possession of the movable property.

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