Section 8

8. Liability of person in possession, not as owner, to deliver to persons entitled to immediate possession- 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.

  • When a person is in possession or control of certain movable property but he is not the owner thereof, he may be compelled to specifically deliver the same to a person, who is entitled to the immediate possession of such property, in the circumstances mentioned in Sec. 8.

Essentials of Section 8

(i) The defendant must be in possession or control of a particular article.

(ii) Article must be of movable property

(iii) Defendant must not be the owner of that article

(iv) the plaintiff must be entitled to immediate possession of that article.

If all these conditions are fulfilled then the plaintiff may file a suit for recovery of possession.

Example:- A while going abroad leaves his jewellery or furniture with his neighbour, B to take care. Here B is trustee and is bound to return when A comes back. If B fails to return jewellery or furniture then A can file a suit to recover the possession.

However, the court may compel the defendant to deliver the article to the plaintiff in following cases;

 

(i) When the thing claimed is held by the defendant as the agent or trustee of the claimant- Where the defendant is holding a specific movable property belonging to the plaintiff as an agent or trustee then the court may direct him to deliver that movable property to the plaintiff. That means there is fiduciary relationship between the plaintiff and defendant and due to this relationship the defendant is holding some moveable property to the plaintiff. Subsequently, the defendant fails to return that property. Here the plaintiff will succeed if he files a suit to recover possession. However, he has to prove that there was fiduciary relationship between the parties.

Example- A, proceedings to Europe, leaves his furniture in charge of B as his agent during his absence. B without A’s authority, pledges the furniture to C, and C, knowing that B has no right to pledge the furniture, advertise it for sale. C may be compelled to deliver the furniture to A, as B holds it as A’s trustee.

 

(ii) When compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed- Where the defendant is holding specific movable property of plaintiff and the plaintiff proves that money compensation would not afford the plaintiff adequate relief for the loss of the thing claimed then the court may direct the defendant to deliver that property to the plaintiff.

Example- B has got possession of an idol belonging to A’s family , and of which A is the proper custodian. B may be compelled to deliver the idol to A.

  • Further, unless contrary is proved it is always presumed by the court that compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed, or, as the case may be. In above example the court shall presume that money compensation would not afford adequate relief to A for the loss of family idol. Hence, it is to be proved by B that idol is ordinary article and money compensation can provide adequate relief to A.

(iii) When it would be extremely difficult to ascertain the actual damage caused by its loss- Where the defendant is holding specific movable property of plaintiff and the plaintiff proves that it would be extremely difficult to ascertain the actual damage caused by its loss then the court may direct the defendant to deliver that property to the plaintiff.

Example- A is entitled to a picture painted by a dead painter and a pair of rare China vases. B has possession of them. The articles are of too special a character to bear an ascertainable market value. B may be compelled to deliver them to A.

  • Further, unless contrary is proved it is always presumed by the court that it is extremely difficult to ascertain the actual damage caused by its loss to plaintiff. In above example court shall presume that it is extremely difficult to ascertain the actual damage caused to A by the loss of a picture by a dead painter and a pair of rare China vases is ordinary articles and it is not difficult to ascertain the actual damage caused by its loss.

 

(iv) When the possession of the thing claimed has been wrongfully transferred from the plaintiff- It is important to mention that where the possession of the thing claimed has been wrongfully transferred from the plaintiff to defendant even then he can file a suit under this Section to recover possession. However, the plaintiff must prove in the court that the item claimed was wrongfully transferred from the plaintiff.

Example 1- B obtained computer of A by fraud then A can file a suit under this Section. B can be compelled by the Court to deliver it to A.

Example 2- Diamond ring of A has been pledged by his agent without his permission to B. If suit is filed by A then B can be compelled by the Court to deliver it to A.

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