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Kalyan Mal and ors. Vs. Kishen Chand - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in55Ind.Cas.45
AppellantKalyan Mal and ors.
RespondentKishen Chand
Excerpt:
contract-bailment or deposit - implied promise to return goods on demand--possession of bailee or depositee, when unlawful--suit by owner, nature of--limitation act (ix of 1908), schedule i, articles 49, 60, 145--suit to recover property bailed or deported--contract or tort--limitation. - - the failure to return then is a breach of contract. we do not agree with the courts below that the case has anything to do with deposit with a banker, but so far as the claim for the gold mohurs or their value is concerned, it is clearly a suit for money deposited under an agreement that it shall be payable on demand. so far as that portion of the suit is concerned the defence failed. 2. with regard to the prictures and manuscripts we think that the contract was clearly one of deposit and that the..........in our opinion, on the facts which have been found, the case is remarkably clear and simple. the courts of ajmere have taken the right view though they have not expressed very happily the precise articles under the limitation act which they think destroy the defence set up. the facts show that there were originally two contracts of bailment under section 43 of the indian contract act; 400 gold mohurs having been entrusted to musammat chun kuar, to some extent, through her husband, and certain pictures and manuscripts to sobhag mal, for specific purposes, those contrasts of bailment or deposit conferred upon the person to whom the goods were entrusted, variously called the bailee or the depositee, lawful possession, to entitle the owner to sue and re-possess himself by suit of the.....
Judgment:

1. This is a reference under Section 18 of the Ajmere Courts Regulation I of 1877. In our opinion, on the facts which have been found, the case is remarkably clear and simple. The Courts of Ajmere have taken the right view though they have not expressed very happily the precise articles under the Limitation Act which they think destroy the defence set up. The facts show that there were originally two contracts of bailment under Section 43 of the Indian Contract Act; 400 gold mohurs having been entrusted to Musammat Chun Kuar, to some extent, through her husband, and certain pictures and manuscripts to Sobhag Mal, for specific purposes, Those contrasts of bailment or deposit conferred upon the person to whom the goods were entrusted, variously called the bailee or the depositee, lawful possession, to entitle the owner to sue and re-possess himself by suit of the goods, or to recover damage for their loss; if they are not restored to him he must make a demand. He may, of course, sue in contract. It is an implied term of every such contract that the goods shall be returned on demand. The failure to return then is a breach of contract. On the other hand he may sue in tort, and from the moment he makes a demand for the return of the goods, if that demand is not complied with, the possession of the person, the depositee or bailee, becomes unlawful, and the owner may sue in what is called detinue. To constitute a cause of action for detinue he must make a formal demand for the goods. Once these principles are understood the application of the appropriate article of the Statute of Limitation becomes simple. We do not think that Section 10 of the Limitation Act has anything to do with it. So far as the gold mohurs are concerned, we think Article 60 applies. The plaintiff elected to treat them as money. Specific coins entrusted to a bailee for a given purpose to be returned in specie may constitute moveable property. They are also money. We do not agree with the Courts below that the case has anything to do with deposit with a banker, but so far as the claim for the gold mohurs or their value is concerned, it is clearly a suit for money deposited under an agreement that it shall be payable on demand. The Statute begins to run when the demand is made. The demand in this case was made within three years of the commencement of the suit. So far as that portion of the suit is concerned the defence failed.

2. With regard to the prictures and manuscripts we think that the contract was clearly one of deposit and that the suit is covered by Article 145 being one against the depository to recover the moveable property deposited. The period for that suit provided by the Limitation Act is 30 years. This suit is, therefore, within time so far as the pictures and manuscripts are concerned. Inasmuch as a demand for the return of the goods has been found to have been made and they are not forthcoming, the suit may be treated equally in the alternative, as one in tort, and Article 49 would apply to such a suit, being a suit for the return of specific property wrongfully detained. The period for that suit begins to run when the detainer's possession becomes unlawful. Being lawful in its origin it does not become unlawful until a demand is made and rejected.

3. The answers to the questions in reference must, therefore, be as follows:

(1) With regard to the 400 gold mohurs Article 60 applies.

(2) The answer to question No. 2 is: It is not a deposit with a banker, but Article 49 or Article 145 are equally applicable.

(3) The answer to question No. 3, namely: Is the order of the Hon'ble the Chief Commissioner appointing the applicants to be the legal representatives of Musammat Chun Kuar, not binding in the further proceedings in the case? and are the applicants not her legal representatives Under Section 2 (11) of the Civil Procedure Code and the Hindu Law?

The answer is No.

(4) The answer to question No. 4 is Yes.

4. One matter has been brought to our attention which is not referred to us and which, therefore, the Courts at Ajmere can, if they please, disregard entirely. The legal result of the suit obviously would be applying the principles of common law, if Musammat Chun Kuer were sui juris and she and her husband were separate, and parties to separate contracts, bound by their own rights and obligations in respect of their respective estates, that the suit in regard to the 400 gold mohurs should be decreed against the heirs of Musammat Chun Kuer in respect of her estate in their hands, and the suit as regards the manuscripts and the pictures should be decreed against the heir of Sobhag Mul in respect of the estate in his hands. But it is needless to point out to the Courts at Ajmere that if the family is in fact a joint Hindu family and the Musammat had no separate estate of her own, the question does not arise.

5. Our attention has been drawn to the form of the decree which seems consistent only with the family having been either found as a fact or treated as a common ground between the parties, as being a joint family in which case, the decree, no doubt, is right. If, on the other hand, this is not the case, the Courts at Ajmere, if they choose to pay any attention to these observations, have complete powers under Section 153 of the Civil Procedure Code to amend the decree in accordance with the rights of the parties.

6. The costs of this reference must abide the result of the suit. We fix the fees in this Court at the sum of Rs. 550 for the respondents and at Rs. 400 for the appellants.


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