RECOVERING POSSESSION OF PROPERTY
Possession of Immovable Property
7 Recovery of specific immovable property cite [+]
(1) Subject to subsection (2), a person entitled to the possession of specific immovable property may recover it in the manner prescribed by the law relating to civil procedure.
(2) Where a specific immovable property has been let under a tenancy, and that tenancy is determined or has come to an end, but the occupier continues to remain in occupation of the property or part thereof, the person entitled to the possession of the property shall not enforce his right to recover it against the occupier otherwise than by proceedings in the court.
(3) In subsection (2) "occupier" means any person lawfully in occupation of the property or part thereof at the termination of the tenancy.
8 Suit by person dispossessed of immovable property cite [+]
(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in the suit.
(2) Nothing in this section shall bar any person from suing to establish his title to any such property and to recover possession thereof.
(3) No suit under this section shall be brought against any Government in Malaysia.
(4) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
Possession of Movable Property
9 Recovery of specific movable property cite [+]
A person entitled to the possession of specific movable property may recover the same in the manner prescribed by the law relating to civil procedure.
Explanation 1-A trustee may sue under this section for the possession of 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 property is sufficient to support a suit under this section.
(a) A pledges certain jewels to B to secure a loan. B disposes of them before he is entitled to do so. A, without having paid or tendered the amount of the loan, sues B for possession of the jewels. The suit should be dismissed, as A is not entitled to their possession, whatever right he may have to secure their safe custody.
(b) A receives a letter addressed to him by B. B gets back the letter without A's consent. A has such a property therein as entitled him to recover it from B.
(c) A deposits books and papers for safe custody with B. B loses them and C finds them, but refuses to deliver them to B when demanded. B may recover them from C, subject to C's right if any, under section 121 of the Contracts Act 1950.
(d) A, a warehouse-keeper, is charged with the delivery of certain goods to Z, which B takes out of A's possession. A may sue B for the goods.
10 Liability of person in possession not as owner, to deliver to person entitled to immediate possession cite [+]
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 claimant;
A, proceeding 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 had no right to pledge the furniture, advertises it for sale. C may be compelled to deliver the furniture to A, for he holds it as A's trustee.
(b) when compensation in money would not afford the claimant adequate relief for the loss of the thing claimed;
Z has got possession of an idol belonging to A's family, and of which A is the proper custodian. Z may be compelled to deliver the idol to A.
(c) when it would be extremely difficult to ascertain the actual damage caused by its loss; and
A is entitled to a picture by a dead painter and a pair of rare China vases. B has possession of them. The articles are of to special a character to bear an ascertainable market-value. B may be compelled to deliver them to A.
(d) when the possession of the thing claimed has been wrongfully transferred from the claimant.
SPECIFIC PERFORMANCE OF CONTRACTS
Contracts which may be Specifically Enforced
11 Cases in which specific performance enforceable cite [+]
(1) Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced-
(a) when the act agreed to be done is in the performance, wholly or partly, of a trust;
A holds certain stock in trust for B. A wrongfully disposes of the stock. The law creates an obligation on A to restore the same quantity of stock to B, and B may enforce specific performance of this obligation.
(b) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done;
A agrees to buy, and B agrees to sell, a picture by a dead painter and two rare China vases. A may compel B specifically to perform this contract, for there is no standard for ascertaining the actual damage which would be caused by its non-performance.
(c) when the act agreed to be done is such that pecuniary compensation for its non-performance would not afford adequate relief; or
(a) A contracts with B to sell him a house for RM1,000. B is entitled to a decree directing A to convey the house to him, he paying the purchase-money.
(b) In consideration of being released from certain obligations imposed on it by its Act of incorporation, a railway company contracts with Z to make an archway through their railway to connect lands of Z served by the railway, to construct a road between certain specified points, to pay a certain annual sum towards the maintenance of this road, and also to construct a siding and a wharf as specified in the contract. Z is entitled to have this contract specifically enforced, for his interest in its performance cannot be adequately compensated for by money; and the court may appoint a proper person to superintend the construction of the archway, road, siding, and wharf.
(c) A contracts to sell, and B contracts to buy, a certain number of railway-shares of a particular description. A refuses to complete the sale. B may compel A specifically to perform this agreement, for the shares are limited in number and not always to be had in the market, and their possession carries with it the status of a shareholder, which cannot otherwise be procured.
(d) A contracts with B to paint a picture for B, who agrees to pay therefor RM1,000. The picture is painted. B is entitled to have it delivered to him on payment or tender of the RM1,000.
(d) when it is probable that pecuniary compensation cannot be got for the non-performance of the act agreed to be done.
A transfers without endorsement, but for valuable consideration, a promissory note to B. A becomes insolvent, and C is appointed his assignee. B may compel C to endorse the note, for C has succeeded to A's liabilities and a decree for pecuniary compensation for not endorsing the note would be fruitless.
(2) Unless and until the contrary is proved, the court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer movable property can be thus relieved.
12 Contracts of which the subject has partially ceased to exist cite [+]
Notwithstanding anything contained in section 57 of the Contracts Act 1950, a contract is not wholly impossible of performance because a portion of its subject matter, existing, at its date, has ceased to exist at the time of the performance.
(a) A contracts to sell a house to B for RM10,000. The day after the contract is made, the house is destroyed by a cyclone. B may be compelled to perform his part of the contract by paying the purchase-money.
(b) In consideration of a sum of money payable by B, A contracts to grant an annuity to B's life. The day after the contract has been made, B is thrown from his horse and killed. B's representative may be compelled to pay the purchase-money.
13 Specific performance of part of contract where part unperformed is small cite [+]
Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value, and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.
In a contract for the sale and purchase of a house and lands for RM20,000, it is agreed that part of the furniture should be taken at a valuation. The court may direct specific performance of the contract notwithstanding the parties are unable to agree as to the valuation of the furniture, and may either have the furniture valued in the suit and include it in the decree for specific performance, or may confine its decree to the house.
14 Specific performance of part of contract where part unperformed is large cite [+]
Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant.
15 Specific performance of independent part of contract cite [+]
When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part.
16 Bar in other cases of specific performance of part of contract cite [+]
The court shall not direct the specific performance of a part of a contract except in cases coming under one or other of the three last preceding sections.