1. The question involved in this application is whether the learned Judge of the Court of Small Causes of Surat was right in dismissing a suit filed by the present applicant as being barred by limitation. It was a suit brought for damages for the unlawful detention of certain share-certificates. These five shares of a certain Spinning and Weaving Company were bought by the plaintiff from one Chhotalal on the 16th of April 1906. Chhotalal, who had previously purchased these shares from the defendant, directed the defendant to transfer them to the plaintiff. A receipt for the shares was given by the defendant to the plaintiff and the plaintiff signed the receipt, and gave it back to the defendant in order that the defendant should get the share-certificates from the Company and make them over to the plaintiff.
2. The defendant got the share-certificates from the Company in May 1906, but thereafter instead of making them over to the plaintiff he retained them in his own custody.
3. On the 8th of August 1906, the plaintiff gave a notice to the defendant demanding the delivery of these certificates. This was still refused on some plea of right and subsequently on a criminal prosecution being instituted the defendant made over the share-certificates to the plaintiff.
4. By that time, however, the shares had fallen in the market and this suit was brought for compensation for the loss suffered by the plaintiff in consequence of the fall in value.
5. The question really is whether time runs in this case from the date of the purchase in April or from the date when the defendant obtained the share-certificates in May, in either of which cases admittedly the suit is barred, or whether time runs only from the demand and refusal in August 1906, in which case the suit is admittedly in time.
6. The learned Judge below has held that the suit was barred under Article 48 of the Second Schedule of the Limitation Act, but, in my opinion, that view is mistaken, for Article 48 deals only with specific moveable property which falls under one of two classes, namely, (1) such property as has been lost, and (2) such property as has been acquired, (a) by theft, (b) by dishonest mis-appropriation, or (c) by conversion. No other kind of moveable property is affected, it seems to me, by this Article.
7. Here it is, I think, plain on the statement of facts as they are. set out by the learned Judge himself that this property was not acquired by conversion. It was indeed acquired by the defendant for due consideration in the ordinary course of dealing. Mr. Manubhai has endeavoured to support the application of Article 48 by pressing for a strict adherence to the language of ' certain passages of the plaint. But, in my opinion, if due allowance is made for a certain exaggeration of pleadings and if the plaint, including paragraph 4 is read as a whole there is nothing in it which should compel the Court to any different view of the facts from that view which arises at first sight from a consideration of the dealings which took place. The defendant armed with the usual receipt from the plaintiff presents that receipt to the Company's Office and in exchange receives the share-certificates. All that is done in the ordinary course of business and there is nothing in the acquirement of these shares which can be termed conversion. If Article 48 does not apply then there can be no doubt, I think, that Article 49 does apply; and in that event the limitation is a period of three years from the date when the detainer's possession became unlawful. In other words the question before us is whether the defendant's detention of these share-certificates between May and August 1906 was unlawful within the meaning of the Article. I am of opinion that it was not and that it did not become unlawful until a demand and refusal had occurred in August 1906. In support of that view I may refer to the case of Subbakka v. Maruppakkala ILR (1891) Mad. 157, where after the redemption of a mortgage the title deeds of the mortgaged property were left with the mortgagee who refused to return them on a demand made by the mortgagor. It was held that Article 49 governed the case and that time began to run from the date of the mortgagee's refusal. There, it seems to me the mortgagee had as little right to retain the title-deeds after redemption as the defendant here had to retain the share-certificates after his purchase. But the learned Judges say of the mortgagee's retention that 'the mere retention of the deeds in the defendant's possession after payment of the decree amount was not unlawful, though the plaintiffs had a legal right to demand delivery, but his retention of them after a lawful demand for delivery was made, was an illegal detention.' These words as I understand them are pertinent to the present facts. Further authority for this view may, I think, be found in the case of Wilkinson v. Verity (1871) L.R. 6 C.P. 206, which was recently followed in this Court and was followed also in Gopal Chandra Boze v. Surendra Nath Dutt (1908) 12 C.W.N. 1001. These decisions seem to me to show that although the plaintiff was entitled, had he chosen to do so, to demand the delivery of the share-certificates, at any time after their purchase by the defendants, vet there was nothing unlawful within the meaning of Article 49 in the defendant's detention of them prior to the plaintiff's demand for them.
8. Upon these grounds I am of opinion that the learned Judge below was wrong in dismissing this suit upon the point of limitation.
9. I set aside his decree and remand the case to be retried on its merits.
10. Costs in the cause.