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Thacker Dungershi Parshottam and ors. Vs. Thacker Damji Virjl - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtGujarat High Court
Decided On
Judge
Reported in(1976)17GLR246
AppellantThacker Dungershi Parshottam and ors.
RespondentThacker Damji Virjl
Cases ReferredIn Shivlal Gangashankar v. Bhavanishankar Dulavram
Excerpt:
- - the plaintiffs made efforts in that direction but they failed to recover them thereafter, the plaintiffs filed the present suit against the defendant praying for a decree against him to return to them 76 gold mohors or to pay them a sum of rs. 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 mohors or their value is concerned, it is clearly a suit for money deposited under an agreement that it shall be payable on demand......trust of anjar in kutch district. they alleged that shamji dungarshi, the settlor, had given 299 gold mohors and certain ornaments to the defendant on bhadarva vad 3 of kutchi samvat 1997 corresponding to 19th september 1940. shamji, the settlor, had made a note in respect thereof in his account-book and the defendant had acknowledged the receipt thererof. shamji executed a will on 8th january 1941 and appointed three trustees under that will. subsequently he himself cancelled during his lifetime the appointment of one of them. another trustee died and the third trustee resigned. shamjis widow sakarbai and his daughter laxmibai filed civil suit no. 47 of 1954 in which they impleaded the third trustee anandji khimji as a defendant along with the patels of the community. in that suit.....
Judgment:

S.H. Sheth, J.

1. The plaintiffs are the trustees of Shamji Dungarshi trust of Anjar in Kutch District. They alleged that Shamji Dungarshi, the settlor, had given 299 gold mohors and certain ornaments to the defendant on Bhadarva Vad 3 of Kutchi Samvat 1997 corresponding to 19th September 1940. Shamji, the settlor, had made a note in respect thereof in his account-book and the defendant had acknowledged the receipt thererof. Shamji executed a will on 8th January 1941 and appointed three trustees under that will. Subsequently he himself cancelled during his lifetime the appointment of one of them. Another trustee died and the third trustee resigned. Shamjis widow Sakarbai and his daughter Laxmibai filed Civil Suit No. 47 of 1954 in which they impleaded the third trustee Anandji Khimji as a defendant along with the patels of the community. In that suit they prayed for a declaration that the will made by shamji had not been made by him in a sound disposing state of mind and they also prayed for possession of the property of Shamji. In that suit on 25th April 1958 a consent decree was passed under which the court appointed seven trustees.

2. During the pendency of that suit on 23rd December 1957 the court issued notice to the defendant to return 299 gold mohors which had been deposited with him by shamji, the settlor. He did not comply with the notice. Therefore, the court appointed a Commissioner to take possession of the gold mohors from the defendant. The defendant handed over on 21st march 1958 223-gold mohors and 153 tolas of gold ornaments to the Commissioner. He, however, did not return 76 gold mohoRs. The court therefore, ordered the trustees to recover them from the defendant. The plaintiffs made efforts in that direction but they failed to recover them thereafter, the plaintiffs filed the present suit against the defendant praying for a decree against him to return to them 76 gold mohors or to pay them a sum of Rs. 10108/- as price of those gold mohors.

3. The defendant filed his written statement at ex. 18 and resisted the suit. He denied to have acknowledged the receipt of the gold mohors. He also challenged the plaintiffs competence to file the suit. On merits he contended that he had returned the gold mohors to shamji in 1942 and that they had been in possession of one Bachuben, daughter of Dhanji Dharshi of Anjar. He also pleaded that the suit was barred by time under Article 70 of the Limitation Act, 1963.

4. The learned Trial Judge, upon these pleadings raised necessary issues issue No. 5 related to limitation. He tried that issue as a preliminary issue and held that the suit was barred by time under Article 22 of the limitation Act and dismissed it.

5. It is that decree which is challenged by the plaintiffs in this appeal.

6. The learned Trial Judge has found that the suit was governed by Article 22 of the limitation Act, 1963. In that view of the matter he dismissed the suit on the ground that it was barred by time under Article 22 it is that finding which has led to the dismissal of the suit and which Mr K.N. Mankad has challenged before us. It is common ground between the parties that Section 10 of the limitation Act, 1963 does not govern the present suit because this is not a suit against a trustee or his legal representatives or assigns for the purpose of following in his or their hands trust property or the proceeds thereof, or for an account of trust property or proceeds. Article 22 which the learned Trial Judge applied to the instant case provides as follows:

For money deposited under an agreement | three years | when the demand isthat it shall be payable on demand, | | made.Including money of a customer in the | |hands of his bankers so payable

Exfacie this article applies to a claim for moneys which were deposited under an agreement that they would be payable to the plaintiff on demand. Such a money claim includes the money of a customer in the hands of his bankers so payable. In the instant case, the plaintiffs inter alia prayed for the following relief.

The defendant should be summoned before the Hon'ble court and our suit be decreed. The defendant be ordered to return to us 76 gold mohors or in the alternative, if they cannot be recovered, the defendant should be ordered to pay to us Rs. 10108/- for their price.

The plaintiffs claim to recover 76 gold mohors is not, in our opinion, a claim for recovery of monies as contemplated by Article 22 of the limitation Act 1963. The alternative prayer which the plaintiffs have made cannot cast its reflection upon the plaintiffs principal prayer and cannot impute to it the character of a money claim. The prayer which the plaintiffs have made is essentially for the recovery of 76 gold mohors in species. A gold mohor is, in our opinion, not money as contemplated by Article 22.

7. Mr. Y.S. Mankad has invited our attention to the decision of the Allahabad High Court in Kalyan Mal and Ors. v. Kishan Chand A.I.R. 1919 Allahabad 102. In that case a division bench of the Allahabad High Court was examining a claim for the return of gold mohors or their value in the context of Article 60 of the Indian Limitation Act, 1908. Article 60 of the Indian Limitation Act, 1908 corresponds to Article 22 of the limitation Act, 1963. In that decision this is what the learned judges have observed:

So far as the gold mohors are concerned, we think Article 60 applies. The plaintiff elected to treat them as money. Specific coins entrusted to 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 mohors 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.

It is clear from the aforesaid observations made by the learned judges that they treated gold mohors in species as money. We are unable to agree with that view of theirs. Money, in our opinion, means legal tender. Coins and currency notes which are legal tender are money. What is called a legal tender can answer the description of money. Gold mohors were never and are not legal tender in this country. We are, therefore, of the opinion that Article 22 cannot be applied to a case where the plaintiffs have prayed for return of gold mohors in species. The learned trial judge was, therefore, in error in holding that Article 22 governed the suit. He, therefore, fell in further error in dismissing the suit on the ground of bar of limitation under Article 22.

8. Three more articles have been pressed into service before us. We turn to Article 91 of the limitation Act, 1963 which provides as under:

For compensation,- (a) for wrongfully taking or detaining Three years When the person hav-any specific movable property, lost, ing the right to theor acquired by theft, or dishonest possession of the pro-misappropriation or conversion; perry first learns inwhose possession it is.(b) for wrongfully taking or injuring Three years When the propertyor wrongfully detaining any other is wrongfully takenspecific movable property. or injured, or whenthe detainers pos-session becomes un-lawful.

Clause (b) of Article 91 appears to us to be a residuary clause which should apply to a case contemplated by it if no other article applies. So far as Clause (a) is concerned, it is specific and applies to a case under a set of circumstances specified therein. The words for compensation with which Article 91 opens and which govern both the clauses of that article leave no doubt in our mind that Article 91 applies to a case where damages simpliciter are claimed in lieu of specific movable property which was given to the defendant and which was lost or which was acquired by the defendant by theft or by dishonest misappropriation on conversion. Since the opening words for compensation exclude the application of that article to a suit in which the plaintiffs claim the return of gold mohors in species, it is not necessary to examine any other aspects which may arise therefrom.

9. The next article which has been pressed into service is article 68 of the limitation Act, 1963 which provides as under:

For specific movable property lost, Three years when the person havingor acquired by theft, or dishonest the right to the posses-misappropriation or conversations of the property firstlearns in whosepossession it is.

The last article which has been pressed into service is Article 70 which provides as follows:

To recover movable property depos- Three years The date of refusal afterited or pawned from a depositary demand.or pawnee

10. Before we examine the implications which flow from these two articles we may refer to a few decisions which throw light on the subject before us. In Dhian Singh Sobha Singh and Anr. v. Union of India : [1958]1SCR781 the Supreme Court has considered the question of wrongful conversion of movable property by the defendant. Since Article 68 deals with conversion reference to this decision is quite opposite. It has been observed by the Supreme Court in that decision that conversion is an Act of wilful interference without lawful justification with any chattel in a manner inconsistent with the right of another. By such wilful interference other person is deprived of the use and possession of it. If a carrier or other bailee wrongfully and mistakenly delivers the chattel to the wrong person of refuses to deliver it to the right person, he can be sued for conversion. Every person who without lawful justification deprives a person of his goods by delivering them to some one else so as to change the possession is guilty of conversion. The Action of detinue is based upon a wrongful detention of the plaintiffs chattel by the defendant who refuses to deliver it to the plaintiff upon demand and in which the plaintiff claims redress not in the shape of damages for the wrong done but for the return of the chattel or its value. These observations make it quite clear that a claim for damages for the wrong done to the plaintiff by the defendant is different from a claim for the return of the chattel or its value. Proceeding further the Supreme Court has observed that an Action for wrongful conversion and an Action for wrongful detention are otherwise known as Action in trover and Action in detinue. Judgment for the petitioner in trover is for recovery of damages for conversion judgment for the petitioner in detinue is for delivery of the chattel or payment of its value and damages for detention.

11. Applying the principle laid down by the Supreme Court in the aforesaid decision it is quite clear that the claim which the plaintiffs have made represents an Action in detinue.

12. In Mohammad Habibul Haq and Ors. v. Seth Trikam Chand it has been held by the privy council that a suit filed by the plaintiff for recovery of Government promissory notes from the defendant with whom he left them and on whose security he borrowed a sum from him is a suit which is governed by Article 145 of the Indian limitation Act, 1908 corresponding to Article 70 of the limitation Act 1963. This decision makes it quite clear that where the plaintiff sues the defendant for recovery of something in species it is Article 70 of the limitation Act, 1963 (corresponding to Article 145 of the Indian Limitation Act, 1908) which governs the suit and not Article 69 or 91(b) of the limitation Act, 1963 (corresponding to Article 49 of the Indian Limitation Act, 1908).

13. In S. Krhhnaswami Aiyangar and Anr. v. V.S. Gopalchariar and Anr. : AIR1925Mad185 , the question which arose was whether a suit for recovery of jewels deposited by the plaintiff with the defendant was governed by Article 145 or by Article 48 of the Indian limitation Act 1908. It was indeed a suit for recovery of movable property in species. It has been held by the learned single judge in that decision that such a suit was governed by Article 145 to which Article 70 of the Limitation Act, 1963 corresponds now.

14. In Shivlal Gangashankar v. Bhavanishankar Dulavram 4 Bombay Law Reporter 72 the question which arose was whether a suit by the plaintiff for recovery of ornaments from the defendant was governed by Article 145 or by Articles 48 and 49 of the Indian limitation Act, 1877. A division bench of the High Court of Bombay held that such a suit was governed by Article 145 of the Indian limitation Act, 1877 to which Article 70 of the limitation Act, 1963 corresponds. It has also been laid down in that decision that where a case appears to be covered by a general article and by a particular article, it is the particular article which should be applied to the case as a matter of construction.

15. The prayers which the plaintiffs have made in the plaint and which we have reproduced above must indeed be looked at in light of the averments made by the plaintiffs in that behalf and also in light of what the defendant has stated in his written statement. In paragraph 6 of the plaint it has been expressly stated by the plaintiffs that the gold mohors in question forming a part of the bigger lot of 299 gold mohors and some gold ornaments had been deposited by shamji, the settlor, with the defendant. Having made that averment indeed the plaintiffs have proceeded to state in paragraph 7 of the plaint that the defendant had developed an evil intention and had not been returning to them the gold mohors in question under one excuse or another. In paragraph 10 they have further stated that on 30th January 1968 the Charity Commissioner had called upon the defendant to return the gold mohors in question and that the defendant in reply to that notice had denied that they had been with him. In the written statement, ex. 18, the defendant does not appear to have denied shamjis title to the gold mohors in question but has pleaded that during the life-time of shamji, the settlor, he had returned them to him and that shamji had thereafter deposited them with Dhanji Dharshi and that after the death of Dhanji Dharshi they had been in possession of his daughter Bachuben. Taking into account the averments made in the plaint and in the written statement it is quite clear that not only the defendant denies that there has been any conversion by him of the gold mohors in question but that he pleads that he had returned them to shamji, the settlor. Such an averment necessarily implies the admission of the fact that at the appropriate time when according to the plaintiffs shamji had deposited them with the defendant, the defendant had received them fran shamji. Taking these averments made by the defendant into account and taking into account the further fact that the Action which the plaintiffs have instituted is an Action in detinue inasmuch as they claim the delivery of the gold mohors in question to them by the defendant or in the alternative for their value, the suit, in our opinion, was governed by Article 70 of the limitation Act, 1963. Article 68 which has been pressed into service will in our opinion apply to an Action in trover. In light of the averments made by the plaintiffs and the prayers which they have made the plaintiffs suit is not an Action in trover.

16. Now, Article 70 prescribes a period of three years for filing such a suit and it commences from the date of refusal, after demand. Article 70 of the Limitation Act, 1963 has replaced Article 145 of the Indian limitation Act, 1908. Whereas Article 145 prescribed for filing such a suit a period of 30 years from the date of deposit or pawn, Article 70 prescribes a period of three years from the date of refusal after demand. From a comparative analysis of Article 145 of the old Act and Article 70 of the new Act it is quite clear that he period of limitation has been reduced by parliament from 30 years to 3 years and the commencing point for the purpose of period of limitation has also been modified. If the old limitation Act was in force and had not been replaced by the new limitation Act, the present suit could have been filed within 30 years from the date of deposit of the gold mohors in question by shamji with the defendant. They were deposited by shamji with the defendant on 19th September 1940. The plaintiffs, therefore, could have filed the present suit, if the old Act had been in force, any time before 19th September 1970. The effect of the repeal of the old Act has been provided by the parlianent by Section 30. Clause (a) Section 30 provides as follows:

Notwithstanding anything contained in this Act,-

(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian limitation Act, 1908 may be instituted within a period of seven years next after the commencement of this Act or within the period prescribed for such suit by the Indian limitation Act, 1908, whichever period expires earlier.

17. Since Article 70 of the new limitation Act prescribes a shorter period than one prescribed by the old Limitation Act, Clause (a) of Section 30 becomes applicable to this case. We may add that by the Limitation (Amendment) Act, 1969 the parliament has substituted with retrospective effect the period of seven years in Clause (a) of Section 30 for a period of 5 years which it originally prescribed. Since the amendment has been made with retrospective effect we must give effect to it in this suit even though it was instituted prior to the enactment of the limitation (amendment) Act, 1969. Now, if the suit could be filed within seven years from the date on which the Limitation Act, 1963 came into force, the period of limitation on that basis would expire on 1st January 1971. From a comparative analysis of the provisions of the Indian Limitation Act, 1908 and the limitation Act, 1963 it is quite clear that the plaintiffs could have filed the present suit at anytime before 19th September 1970 which was earlier than 1st January 1971. Therefore, by virtue of the provisions contained in Article 145 of the Indian limitation Act, 1908 read with Clause (a) of Section 30 and Article 70 of the limitation Act, 1963, it is quite clear that the time which was available to the plaintiffs to file the present suit would expire only on 19th September 1970. The plaintiffs filed the present suit on 17th September 1968. It was, therefore, within time. Proviso to Clause (a) of Section 30 has no application to the facts of the instant case because the period of seven years prescribed by Clause (a) of Section 30, would not expire earlier than the period of limitation prescribed by Article 145 of the Indian Limitation Act, 1908.

18. It is true that the demand on the defendant in respect of the gold mohors in question was for the first time made on 21st march 1958 when the court issued notice to him in Civil Suit No. 47 of 1954. He indeed handed over a large part of the total assets which Shamji had deposited with him but refused to return 76 gold mohors in question. Since Shamji deposited with the defendant the gold mohors in question forming a part of the larger assets before the limitation Act, 1963, came into force, the case would not be governed only by Article 70 but it would be governed by Article 70 read with Section 30. It, therefore, cannot be held that within three years from 21st March 1958 the claim made by the plaintiffs was time-barred. In view of the reasons which we have stated, we are of the opinion that the suit was filed by the plaintiffs within time and the learned Trial Judge was in error in recording a contrary finding and in dismissing the suit. He tried the issue as to limitation as a preliminary issue and dismissed the suit without deciding the controversy between the parties on merits. Since we set aside the finding which has led to the dismissal of the suit, we allow the appeal, set aside the decree passed by the learned trial judge and remand the suit to him for decision on other issues and on merits. It is needless to say that he shall permit the parties to lead such evidence as they think fit on the other issues which lie has raised. After having permitted the parties to lead such evidence as they think fit, he shall decide the suit on merits finally and according to law. The defendant shall pay to the plaintiffs the costs of this appeal.


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