Venkata Ramaiya, J.
1. This is a regrettable case in which the dispute is between husband and wife, about the amount of maintenance and certain articles dammed by her. The parties are Hindus belonging to respectable families of the same community. They were married in 1938 at Salem where the plaintiff's father waspractising as a Vakil. The plaintiff joined the defendant in 1940 after the consummation ceremony at Bangalore by which time her father had died and continued to be with him till the end Of May 1944, except during intervals of absence on account of her confinement in her mother's place and occasional visits. Barring differences of the usual type between an individualistic daughter-in-law and an imperious mother-in-law in a Hindu home, the family consisting of plaintiff, her husband, a child and mother-in-law normally and the father-in-law too, off and on, seems to have got on well enough, on the whole, without any apparent discomfort or discord.
The incident which broke up or led to the breaking up of the plaintiff's association with the defendant (at least for the time being) was, her leaving away the house alone at an early hour in the morning of 31-5-1944 to her sister's house in Bangalore and then proceeding with her to Salem, contrary to the defendant's injunctions on the previous night, and failure to return home, though sent for. The subsequent conduct of the plaintiff in staying away for months and that of her relations in accusing the defendant & his parents of subjecting her to ill-treatment, intensified the indignation against her to such an extent as to make her own belated entreaties and piteous appeals and the earnest solicitations of her mother, other relations and well-wishers -- all to be of no avail. Besides being relentless to the plaintiff, the defendant married another girl in June 1956 and this seems to have precipitated and widened the breach between the two.
2. The estrangement led at first to an application for a writ of Habeas Corpus being filed by the plaintiff in the High Court at Madras against the defendant and his father for custody of the child -- the only offspring of the marriage, on the ground that it was about to be removed to Rangoon. On the assurance that there was no such possibility the application was dismissed on 5-8-1916. In January 1947, a notice was issued and another in the following month through a Vakil at Salem to the defendant demanding maintenance to the plaintiff and delivery of her Jewels and articles. The notices were returned unserved and shortly after, the suit from which this appeal arises was filed for recovery of the same. The claim for maintenance was disputed in the beginning but later conceded, the determination of the amount being left to the Court, without offer of any particular sum. The plaintiff claimed Rs. 100/- per month from the date of the defendant's second marriage and has obtained a decree for payment at Rs. 75/- per month. Of the moveables claimed, only a few which were admitted to be plaintiff's are returned, the right to the rest being repudiated. The claim to some of the articles in dispute has been upheld and with respect to others disallowed or rejected. The defendant has, in the appeal preferred by him, objected to the award of any maintenance for the period prior to suit, to the award of Rs. 40/- in excess of Rs. 35/- he now agrees to pay for future maintenance and, to the direction for payment of any amount whatever to the plaintiff as value of articles. The plaintiff, on the other hand, seeks enhancement of the sum now awarded for maintenance to Rs. 100/- and payment of the value of the disallowed items in the cross-objections filed by her.
3. The suit was filed in a Court at Bangalore as the defendant; was living and employed then and for some time before, within its jurisdiction and as the movables claimed by the plaintiff were said to be with him. As regards maintenance, the claim was based in the plaint, on defendant's alleged cruelty and re-marriage. At the trial no evidence about cruelty was adduced or allowed, as the defendant's re-marriage alone was considered to be sufficient under the provisions of the Mysore Hindu Law Women's Rights Act (No. 10 of 1933) to entitle the plaintiff to maintenance. In view of the statement at the end of the written statement that 'the parties to the suit are not domiciled Mysoreans, they are governed, by the existing British Indian Laws' and the statement of the defendant at page 133 of the printed record and of his father at page 98 'that defendant could not get a job here as he was a British subject domiciled in Burma', the applicability of the Act to the case raised a doubt, as it has been held in -- '51 Mys HCR 301 (A)-, that the Act cannot apply to a person unless he is a subject of Mysore. Though the plea is not given up or found to be untrue, the learned Judge has relied upon the Act and made a decree in plaintiff's favour treating the defendant's agreeableness to the maintenance being fixed as enough for the purpose. The applicability of the Act does not depend on the inclination or option of a party to be bound or not bound by it; nor can it be applied because the parties want or wish it to be applied. As stated in -- 'Venkataraman A. C. Janaki', AIR 1939 Mad 595 (B).
'in every case where the question arises what is the law by which a person is governed, regard should be 'had to tlie law of tho class or family to which he belonged............in effect, thepersonal law by which a person is governed can only be renounced or changed in one of the modes recognized by law. One such is a change of religion, the other is by migration from one province to another so far as India is concerned or by going and settling oneself in another country. Excepting by those modes it is not open to a person to renounce by a mere declaration the personal law to which he is subject.'
It would be too much to assume that the parties in this case whose parents are natives and owners of properties in Madras, who were married at Salem and lived in Rangoon for some time, migrated to Bangalore or settled down here merely because of their stay during the period of the defendant's employment. That would mean that a person by shifting from one place to another can change the persons law to which he is subject and it may be Mitakshara system at one time and Dayabagha. Mayukha. or Mithila at other times.' These considerations do not affect the claim, as, fortunately for the plaintiff Sri Venkatanmga Iyengar the learned counsel for the appellant, has fairly pointed out that Act 19 of 1946 (Hindu Married Women's Bight to Separate Residence and Maintenance Act! which would be otherwise applicable to the case contains similar provisions as in the Mysore Act for maintenance being claimed on the husband's re-marriage and that the result would be the same if either Act is applied.
4-5. The right to maintenance being clear and admitted, what has to be considered is the quantum takinsr into account the status, means and resources of the parties. (His Lordship, after considering the facts and holding that the estimate of defendant's monthly income at Rs. 500/- in the plaint and the judgment did not seem too high, stated:)
6. The plaintiff as the senior wife, being accustomed to a fairly high standard of comfort, before and after she joined the defendant, is entitled to get what is necessary for an independent and decent living at least approximate tothat of the second wife. The amount of maintenance has to include not merely the expenses of sustenance but also the cost of clothes, vessels and rent for her residence. The defendant says that for clothes of his second wife Rs. 100/- to Rs. 150/- per year are required, Rs. 25/- for vessels necessary to a person living alone and Rs. 175/- for monthly boarding expenses of 2 or 3 who live with him. He is said to have employed a servant to help his second wife.
7. The expenses necessary for protecting the 2nd wife and children by her, cannot in the circumstances of this case be legitimately urged as a ground to lessen the amount payable to the plaintiff, as re-marriage was resorted to in spite of the plaintiff's apologies for her past faults, remonstrances of her mother and in utter disregard of its consequences to the plaintiff and her daughter. The defendant knew or must be deemed to have known that re-marriage would entail a liability 011 him for plaintiff's maintenance if she did not choose to live with him and by shutting her out left her no choice. Even before the re-marriage, the father in a letter of 12-3-1946 while negotiating a fresh match, wrote that 'she (plaintiff) will never again be allowed to step into our (defendant's) house' although he admits in his evidence that her character, behaviour and conduct are quite good. Defendant too does not impute any defect of character to the plaintiff. If re-marriage with its possibilities of enlarging the family, irrespective of its propriety, is to limit the amount of maintenance due to the first wife, it will have to be reduced lower and lower as the husband chooses to take wife after wife, which is tantamount to penalising the wife for the husband's acts and allowing him to take advantage of the wrong done to her. As observed in -- 'Sobhanadramma v. Varaha Lakshmi Narasimhaswami', ` (C), in a case similar to this at page 404
'The position of a young Brahmin wife reduced by no fault of hers (which in this case may be qualified by the word 'serious') to the condition of a widow in her husband's life-time needs no elaboration and it must not be made profitable for husbands deserting their wives and marrying again so to say, in revenge in order to spite their former wives to do so.'
It was also observed in that case that unless the defendant discharges the burden of proving waiver, abandonment or of such conduct of the plaintiff as to lead to estoppel He cannot escape liability for arrears of maintenance. Considering the defendant's means from all sources, we think that the amount awarded by the lower Court cannot be said to be excessive. The arrears of maintenance relate to a short period of 10 months from the date of re-marriage when the right accrued, and there is no Justification to disallow or reduce it, since there is no allegation of waiver or defendant being put to difficulty or disadvantage on account of the short delay in filing the suit which was preceded by two notices. -- 'Datta-traya Maruti v. Laxman Jattappa : AIR1942Bom260 , cited for the appellant, only states that in regard to granting arrears the Court has a discretion to reduce the amount and limit the period for which it has to be allowed. We do not think that there is need for either in this case.
8. It Has been brought to our notice that subsequent to the decree of the lower Court the salary and prospects of the defendant have Matereally improved, as a result of his being appointed at Kharagpur near Calcutta on a salary ofRs. 500/- Per month which within a few years will rise to Rs. 850/-. Though ordinarily the circumstances at the time of the suit govern the decision in the case, there is no hindrance to this being taken now into account, since the decision as regards the amount payable, is liable to be altered by change of circumstances of the parties. On the whole we feel that it would be just to direct payment at Rs. 100/- per month for the maintenance of the plaintiff leaving the direction for payment of the arrears at Rs. 75/- per month undisturbed.
9. The main contest in the case relates to the moveables in regard to which the allegations in the plaint are, that those were given to the plaintiff by her parents, that those are with the defendant and he has refused to deliver them to the plaintiff notwithstanding demands. The pleas put forward are varied: Denial of the existence of some, want of knowledge about the plaintiff having ever possessed some others, claim to a few as defendant's own, with story of loss of some in Rangoon while returning to India, a theory of exchange concerning one or two and generally that the defendant was not in possession or custody of any of the articles and that he was not entrusted with the same. Only the questions of ownership, possession, exchange and value of the articles were raised in issue so far as the moveables are concerned and a volume of evidence was let in about these. At the stage of arguments the question of 'entrustment' seems to have been urged; but the learned Judge has expressed in the judgment that it does not arise between parties who are husband and wife and no enmeshment need be proved when the husband could have access to the property kept by the wife.
10. On behalf of the appellant it was strenuously argued by Sri V. V. Srinivasa lyengar at the commencement and Sri. S. K. Venkataranga lyengar in the course of the hearing that this view of the learned Judge is wrong, that the only material word in the plaint to impute liability to the defendant was 'remained' and this was insufficient to make out a case of bailment, detinue, trover or replevin, which are recognised forms of action. It was argued that the allegations in the plaint ex facie do not disclose a cause of action and that as such, the claim had to be rejected in limine. Want of proof of demand and refusal prior to the suit was mentioned as another reason for the claim being untenable. -- 'Kalia-perumal Pillai v. Visalakshmi Achi : AIR1938Mad32 , was cited to show that in the absence of entrustment and delivery of the articles to the defendant the claim has to fail. -- 'Clayton v. Le Roy', (1911) 2 KB 1031 (P), was relied upon for the contention about the necessity of demand and refusal.
11. As the objections are said to be such as would go to the rest of the case affecting its maintainability, irrespective of the merits, it is necessary to examine these before discussing the evidence. In spite of such alleged importance, that these should not have been pressed seriously, or at all. at the very outset or at least included in the issues is surprising. The proceedings indicate that the claim as presented was deemed to be a fit one to be enquired into and for the defendant to meet it. The criticism now advanced though in this view technical and belated, may be considered.
12. As already mentioned, there are allegations in para. 10 of the plaint to the effect that the goods belonged to the plaintiff having beengiven to her by her parents, that these 'remained' with tile defendant and that he has refused to deliver them after demand. The meaning of the word 'remained' given in the dictionary is 'be left behind -- continue to exist etc.'. Adopting either of these, what is alleged is that the plaintiff's articles were and are with the defendant. If articles belonging to one person are with another, the latter is prima facie bound to hand them over to the owner when asked to do so. The Court has to look more to the substance than the form of the action and whatever be the name given to it the rule that there is a remedy for a wrong must apply. Relief cannot be denied to the plaintiff even though the wrong complained of does not strictly fall under any of the four categories stated by learned counsel as 'it is perhaps impossible to frame a definition which shall cover every conceivable case.' (See --p.426 Clerk and Lind sells Law of Torts 10th Edition.) In 'Punnalal v. Kasturichand Ramaji', AIR. 1946 Mad 14.7 (G), Chandrasekhara Iyer J. observed.
'There is however nothing like an exhaustive classification of forts beyond which Courts should not proceed. New invasion of rights devised by the brain of man might give rise to new classes of torts.'
The present case affords an illustration of this as there are few instances at any rate none is brought to our notice, where a wife's claim to saries, soap box, bangles etc. is resisted by the husband on a plea of lack of 'entrustment'.
13. -- 'AIR 1938 Mad 32 (E)', referred to is distinguishable as the facts in that case were that certain jewels were given by a woman to goldsmiths working in defendant's house for making ornaments and the half prepared ornaments were being taken at the end of each day by the woman, put in a box, looked and kept by her in a room of the defendant's house. It was held that, there was no bailment as the key was retained by the owner of the Jewels and the keeping of the box in the defendant's house was not sufficient to constitute delivery under Section 149. Contract Act, so as to render the defendant liable for the loss of the box on account of theft. There is no admission or finding that the key was with the plaintiff in this case. Nor is it suggested that there was any theft or interference by any third person. Further, the decision in that case seems to have turned on the application of the provisions of the Contract Act and the question of liability on the ground of tort is not dealt with.
As pointed out by Pollock and Mulla in the Commentary of Section 148
'Bailment is necessarily dealt with by the Contract Act only so far as it is a kind of contract. It is not to be assumed that without an enforceable contract there cannot in any case be a bailment,'
In -- 'Reg v. Mc Donald'. (1885) 15 QBD 323 at p. 326 (H), Lord Coleridge C. J. expressed.
'It is perfectly true that in almost all cases, a contract either express or implied by law --accompanies a bailment but it seems to me that there may be a complete bailment without the contract.'
At page 163, Pollock and Wright in their book 'Possession in the Common Law' state:
'Upon the whole it is conceived that in general any person is to be considered as a bailee who, otherwise than as a servant either receives possession of a thing from another or consents to receive or hold possession of a thing for another upon an undertaking with the other person either to keep and return ordeliver to him the specific thing or to (convey and) apply the specific thing according to the directions antecedent or future of the other person.'
If as stated by Lord Coleridge, bailment is 'Delivery on trust or condition', defendant has to be' regarded as bailee as delivery is to be inferred from the articles 'remaining' with the defendant and 'trust' implied' from the very relationship of the parties as husband and wife. The obligation to return the articles is a condition necessarily arising from this and default in doing so, will afford cause of action for the suit.
14. As regards form of action, different names are given according to the modes in which a person is deprived of his property. If it is wrongfully taken away, it is called trespass, if it is wrongfully detained it is 'detinue'; if it is wrongfully converted, it is 'trover'. In any case, the essence of the matter is that the parson entitled to the chattel is deprived of the use and possession of it by the acts or interference of another without jurisdiction. Shri Lakshminaranappa, learned counsel for the respondent, said that this is a case of 'trespass' but I do not think so as the goods were left with the defendant with consent of plaintiff and the wrong, if at all, can only consist in withholding the articles so as to justify an action in detinue or trover (see possession in Common Law by Pollock and Wright at page 132). In Halsbury's Laws of England, Volume 33 page 86 it is stated
'Detinue is the form of action which lies when one person wrongfully detains the goods of another. The gist of the action is unlawful failure to deliver when demanded. Trover lies when one person is guilty of the conversion of the goods of another by wrongfully appropriating them to his own use or to the use of another or wrongfully depriving the owner of the use or possession of them permanently.'
Repletion is described as a summary process which a man out of whose possession goods have been taken may obtain their return until the right to the 'goods can be determined by a Court of Law. (Clerk & Lindsell, Law of Torts, p. 436). This may be left out of account as it is admitted that the case does not fall under it so that it is either one for detinue or trover. It is stated by Clerk and Lindsell at page 435 'Detinue considered as a tort does not substantially differ from conversion' and at page 415
'Any one who without authority takes possession of another man's goods with the intention of asserting some right or dominion over them is prima facie guilty of a conversion.'
15. It was argued that if the suit is treated as one for relief on the ground of conversion the action is premature, as there was no demand and refusal prior to it, in other words, that there can be no conversion without demand and refusal. Besides the passage in Halsbury, -- '(1911) 2 KB 1031 (P)', was relied upon to support this. The plaint at any rate cannot be said to be defective on this ground as there is an allegation of demand and non-delivery. The objection can be of force therefore if tills allegation is not proved and if in law the want of it is a bar to the action. That a notice Exhibit C addressed to the defendant making the demand on behalf of the plaintiff was despatched admits of no doubt. It was returned undelivered though the name of the addressee, the City and office in which he was working were all correct, on account of alleged1 absence of defendant. When questioned a* tohow the requirement of demand is to be satisfied if the addressee doss not receive the letter or shuts his ears to demands, Sri Venkataranga Avenger said that the demand should be repeated. This would be an idle formality, other reasons to hold it so are in the first place there is no statutory provision that a notice should be served as in suits for ejectment, against Government Railways etc., on the defendant before he can be sued for recovery of moveables and secondly demand and refusal do not in themselves constitute conversion. They arc evidence of conversion at previous period as stated in Addison on Tort at page 587. Conversion is 'commonly' proved by demand and refusal, as Under bill puts it in his book on Torts but may be proved otherwise. If it is clear that there was conversion before any demand was or could be made and the demand is futile as for example when the articles appear to be sweet or edible stuff consumed by the defendant or goods destroyed to the knowledge of the plaintiff the demand will be a needless formality.
Necessity or justification for a demand would arise if there is a possibility of its being useful to obtain delivery to signify the plaintiff's wishes, to satisfy the defendant about plaintiff's title and facilitate the fulfilment of the obligation. There is abundant proof, in this case, to show conversion long before the suit and the pleas set up and the evidence let in by the defendant bear it out. -- 'Lovell v. Martin', (1813) 4 Taunt 799 (I), was a case of conversion in which it was held that the plaintiff may recover in trover without a previous demand of the bill. In the very case -- '(1911) 2 KB 1031 (F)', referred to by the Appellant's counsel, there are observations sufficient to support this view though it was ultimately held that plaintiff has no cause of action in detinue or in trover on the particular facts of that case. At page 1045 of the report Scrutton J. deals with the question in the following words:
'There remains the technical point taken by Mr. Atkin that as the demand and refusal were after the issue of the writ the action failed. This point has no merits at all. If......thedefendant had said 'I hear of your claim for the first time; I cannot deliver up goods entrusted to me by another without investigation; give me a reasonable time to investigate; I have now had it and I am ready to give you the watch, I could have understood the point. But after investigation he now says 'I refused and I was right; it is not your watch'. The only result, therefore, of determining this point in the defendant's favour would be another writ and more costs. But though the point is technical and has no merits, it must be decided according to law; and according to law I am glad to be able to decide it against the defendant.'
In appeal, Vaughan-Willams L. J. agreed with this conclusion. Pletcher-Moulton L. J. expressed at page 1051 thus:
'If there be any evidence of a conversion before writ, it is possible that there may be acts and admission afterwards which it would be proper to take into consideration when determining whether there had been in fact a conversion.'
and Farewell L. J. states at page 1052:
'.... .There may be cases in which subsequent letters may throw light on the antecedent intention but that is not so here.'
Attention was drawn to provisions in the Limitation Act under which time begins to run fromthe date of demand for recovery of goods and to -- 'Gopalasami lyer v. Subramania Sastri', 35 Mad 636 (J). These are not of use or relevancy as the point raised is not one of limitation but of the existence and enforceability of the right. The technical objections to the suit therefore fail.
16. It has to be next seen whether the findings of the learned Judge 'by which the defendant's pleas were negatived are incorrect as contended for the appellant and whether claim for all the items in dispute should have been allowed as urged for the respondent. The moveables claimed are-specified in four schedules appended to the plaint of which schedule I is a list of 10 ornaments of gold and precious stones, schedule 2 of 39 silver articles, schedule 3, of 12 series and schedule four of 4 miscellaneous things. The almirah No. 4 of the fourth schedule, four series which are Nos. 1, 4, 8 and 11 of the 3rd schedule and Nos. 12, 24, 25 and 26 of the second schedule were admitted by the defendant to be plaintiffs and Nos. 6, 22, 36 and 39 of the second schedule were given up in lower Court and Nos. 37 and 38 subsequently, by the plaintiff. In the course of the suit these series and the admitted articles of the second schedule besides item 1 of the 4th schedule were received by the plaintiff. There is a sari and a silver article disclaimed by both the plaintiff and the defendant. Some of the articles not in contest have been wrongly included in the decree among those to be delivered to the plaintiff. Learned counsel represent that the liability in regard to items 1, 2 and 10 of foe first schedule and for all the items of the second schedule except Nos. 6. 12, 22, 24, 25, 36 to 39 both inclusive is questioned by the defendant in the appeal and in the cross-objections filed by the plaintiff items 3 to 9 of the first schedule, 7 series of the third schedule and Nos. 2 and 3 of the 4th schedule (veena and violin) are claimed by her.
17-18. The claim to the series and two musical instruments may be first disposed of as there is not much about these to be considered. (His Lordship after holding on the evidence that the number of series of the value claimed and' the musical instruments remained with the husband when the wife left former's house, continued).
Stay of the daughter at present with the father cannot be a ground to refuse delivery of the instruments to the plaintiff who is the owner, particularly in view of the fact that there is no plea on behalf of or for the benefit of the daughter. The value given by the plaintiff cannot be said to be high and in the absence of evidence to the contrary, should be accepted. The principle governing valuation of these and other articles, which the defendant has to deliver in the case, is, as stated in Addison's Law of Torts at page 602:
''The value of the thing detained should be assessed at the highest price It bore in the market at any time during the period of its detention and where the value is doubtful and the defendant might have returned it if he thought fit every fair presumption and inference should be made in favour of the owner of the property seeking its restitution and against the wrongdoer who has detained it from him.'
The plaintiff is, therefore, entitled to the amount claimed as the value of the two articles.
19-22. (His Lordship then examined the evidence relating to the items in first schedule and held that all those items belonged to the plaintiff and there was no reason to disallow the claim'to any of the items. Then after examining the evidence relating to the second schedule and the value of those items and holding that the decree of the lower Court did not require interference his Lordship proceeded:)
23. in the result, the appeal is dismissed.. The Cross-objections are allowed. In modification of the decree of the lower Court, there will be a decree in favour of the plaintiff for payment of Rs. 750/- towards maintenance, Rs. 100/- per month for future maintenance and for delivery of all the articles in the four schedules.. The defendant will pay the plaintiff her costs and bear his own throughout.
24. Appeal dismissed; Cross-objections allowed.