C.M. Lodha, J.
1. The suit out of which this second appeal arises was instituted by the plaintiff Heeralal (who died during the pendency of this litigation and is now represented by the appellants, his heirs) ior Rs. 500/- on account of compensation for failure to return a 500 bore sun alleged to have been lent by the plaintiff to the defendant's father Shri Surner-singh the then Maharaia of Thikana Indergarh. The plaintiff's case, in short was that sometime in 1941-42 he handed over a 500 bore gun belonging to him to Shri Sumer Singh for 'Shikar'. In the course of hunt a man was accidentaly killed with the result that a criminal case was registered against Shri Sumersingh as well as his companions, who had accompanied him for the sport, and the plaintiff's gun was also confiscated by the Government of Madhya Pradesh in whose territory the accident had taken place. The gun was ultimately returned by the Government sometime in 1950 by which time Shri Sumer Singh had expired. His estate Thikana Indergarh was brought under the management of the Court of Wards as his son Shri Bhagwat Singh, the defendant was then a minor. It is stated that the Commissioner, Jagir, ordered return of the gun to the plaintiff on the Collector's report dated 28-8-1950. However, this order was not communicated to the plaintiff. The plaintiff goes on to state that on having come to know of the order of return of the gun to him, he submitted an application to the guardian of the defendant on 5-9-1957 for handing over the sun to him. The guardian made enquiries from the Subordinate Officers and the Kamdar Thikana made a report on 28-1-1958 that the plaintiff's gun had been received in the Thikana, and the same may be returned to him. On submission of this report the guardian directed the same day that thegun, may be returned to the plaintiff. It is alleged that the plaintiff was called to pick up his gun from the store of arms of the defendant, but the same was not found there. It is further alleged bv the plaintiff that thereafter on 14-4-1959 the guardian of the defendant filed the papers and thereby impliedly refused to return the gun to the plaintiff or in the alternative to pay compensation for the same. On these facts the plaintiff prayed that a decree for return of the gun may be passed in his favour or in the alternative the defendant may be directed to pay Rupees 500/- to the plaintiff by way of compensation for the same.
2. Since the defendant was a minor his guardian filed written statement and denied the plaintiff's suit altogether.
3. After recording the evidence produced by the parties, the learned Munsiff, Kota decreed the plaintiff's suit as prayed, by his judgment dated 11-11-1960. Aggrieved by the judgment and decree of the trial Court the defendant filed appeal which was allowed by the District Judge, Kota, who bv his Iudgment dated 19-2-1964 set aside the judgment and decree of the trial Court and dismissed the plaintiff's suit. Consequently, this appeal has been preferred by the heirs of the plaintiff Heeralal.
4. It is contended on behalf of the appellants that the learned District Judge committed an error of law in dismissing the plaintiff's suit as barred by limitation. It is submitted in the first place that Article 145 bf the Limitation Act. 1908 (which was in force at the time of the presentation of the suit) would apply to the present case, and since that Article prescribes a period of 30 years from the date of the deposit, the suit was clearly within limitation. In the alternative it is urged that even if Article 49 of the Act of 1908 is applied the suit has been brought within three years from the date the defendant's possession over the gun in question became unlawful.
5. Before I proceed to examine the contention raised on behalf of the appellants, it may be useful to state that all other points arising in the case which had been decided in favour of the plaintiff by the trial Court were not challenged before the learned District Judge, Kota who has dealt with the Question of limitation only. Thus the only question arising for decision in this appeal is whether the learned District Judge was right in dismissing the suit as barred by time
6. For a correct appraisal of the -point urged before me it would be proper to reproduce Articles 49 and 145 of the Limitation Act, 19.08 :
'49. For otherspecific moveable property, or for compensation for wrongfully taking or injuringor wrongfully detaining the same.
When the property is wrongfully taken or injured, when the de tainer'spossession becomes un- lawful.
. . . . . . . . .. . . . .
'145. Againsta depositary or pawnee to recover moveable proper- ty deposited or pawned:
The date of the deposit op pawn.'
7. The argument of the learned counsel for the appellant is that it was a case of deposit (Amanat) and, therefore. Article 145 would apply. In support of his contention he has relied upon Kishtappa v. Lakshmi Ammal, AIR 1923 Mad 578 Gurbaksh Singh v. Kharaiti Ram. AIR 1930 Lah 913, Md. Habibul Haq v. Tikam Chand, AIR 1938 PC 110; Bibhu Bhusan v. Anandi Nath, AIR 1934 Cal 87; Ahilymba Chatram v. Subramania. AIR 1954 Mad 101 and Bastimal v. Lehriram ILR (1954) 4 Raj 1019.
8. On the other hand, learned counsel for the respondent has urged that the limitation for return of the sun started in 1950 when, according to the plaintiff himself, the gun had been received in Thikana Indergarh. In support of his contention he has also relied upon Chaturgun V. Shahzadi, AIR 1930 Oudh 395.
9. In AIR 1923 Mad 578 the plaintiff had handed over her jewellery to the defendant on terms that the latter might pledge them for a short time for his ownbenefit and should then redeem them and return them to the plaintiff. Subsequently, there was an agreement between the parties that the jewels may be enjoyed by the plaintiff during her lifetime without power of alienation and upon her death they should be divided between the defendant and other parties to the agreement. At the time the agreement was executed there was an express promise by the defendant that he would within ten days obtain the jewels and deal with them in accordance with the agreement. In these circumstances. Schwabe C. J., held that the jewellery was held by the defendant from the time of execution of the agreement by way of an express trust. In the alternative it was also held that the word 'deposit' in Article 145 must not be given a restricted meaning in the sense of 'depositum' in Roman Law, and after referring to the judgment of Holt C. J. in Coggs v. Bernard, ((1703) 92 ER 107). the learned judge held that legislature meant to use the word 'depositary' in Article 145 to saythat, where one man's property was handed over by him to another, he became a depositary of it, unless, of course, there was something in the terms of the handing over which would prevent his being treated as a person with whom it was deposited at all. It was further observed that Article 49 was not intended to cover such a case as it dealt with suits for other specific moveable property than the property lost or acquired by theft or dishonest misappropriation or conversion or for compensation for wrongfully taking or wrongfully detaining the same. In the concluding portion of his judgment the Chief Justice who wrote the leading judgment observed that 'if this case was not covered by Section 10, it would be covered by Article 145, and if it is not covered by Article 145, it is not provided for at all and would, therefore, be covered by Article 120, and the suit is in time'. The other Judge Wallace, J., however, agreed with the Chief Justice on the point that Section 10 of the Indian Limitation Act applied, and observed that this finding was sufficient to dispose of the case. Consequently, he did not deal with the scope of Article 145 at all.
10. The other case of Madras High Court relied upon by the learned counsel for the appellant: AIR 1954 Mad 101 is a Single Bench decision which has followed the view taken in AIR 1923 Mad 578 it was held therein that a suit to recover a sum of money deposited as security for proper performance of the duties of an office and from which the employer was entitled to deduct all sums not accounted for by the employee, comes under Article 120, Limitation Act.
11. In AIR 1930 Lah 913, where jewellery had been deposited by a person with his friend at the time of the friend's marriage to be used by him for the purposes of wedding on condition that it would be returned whenever asked to do so, it was held that the transaction was deposit and not a loan. It is important to note that at the time of handing over the jewellery it was expressly agreed between the parties that it would be an 'Amanat' (deposit).
12. In AIR 1938 PC 110. where Government promissory notes were left by a debtor with his creditor as a security for a sum borrowed by him or for safe custody and the suit was brought for recovery of the notes or for credit in the account between the parties, it was held that in either case Article 145 would apply, and not Article 49.
13. In AIR 1934 Cal 87, the learned Judges of the Calcutta High Court followed the view taken in Madras case, AIR 1923 Mad 578. On the other hand in AIR 1930 Oudh 395, relied upon by the learned counsel for the respondent, it was held that the word 'deposit' doesnot cover the transaction in the nature of a loan, and it was observed that when 'A' lent some ornaments to 'B' to be used by the latter in a religious procession, the transaction was a loan and not a deposit. A different interpretation on the word 'deposit' seems to have been put in this case from the one put by the learned Chief Justice of the Madras High Court in AIR 1923 Mad 578. However, I do not think it necessary to enter into this controversy as I shall presently show that the suit is within (limitation under Article 49. True it is that Article 49 was not applied in the Oudh case because the property was not detained by the defendant at all as the same had been stolen from his possession before he had an opportunity of returning it. In these circumstances the cause of action was held to have arisen to the plaintiff when to his knowledge the defendant reported to the police the theft of the articles. In the facts and circumstances of the case, therefore, the learned Judges applied the residuary Article 115 and held that the plaintiff should have filed the suit within reasonable time. It was observed that it was clearly unreasonable for a person who had borrowed ornaments for use in a ceremony to detain them after the ceremony had been completed and the owner had demanded their return.
The facts of the case on hand are. however distinguishable. P. W. 1 Heeralal (plaintiff) has stated that the gun remained in the custody of the Madhya Pradesh Government upto 1950 and he was apprised of the order for return of the same only in 1957 and soon after he made an application dated 5-9-1957 and having failed to obtain his gun he filed the present suit on 18-3-1959. The possession of the defendant over the gun upto 1957 was therefore lawful and his possession became unlawful only on 14-4-1958 when the defendant's guardian ordered that since the gun had not been traced out, the papers may be filed. This act on the part of the guardian of the defendant clearly amounted to the refusal to return the gun and that gave the starting point of limitation to the plaintiff to seek his remedy through the Court, as from that point of time, the detainer's possession became unlawful. In this view of the matter, the present suit must be held to be within limitation under Article 49.
14. The result is that I allow this appeal, set aside the judgment and decree by the learned District Judge. Kota dated 19-2-1964 and restore those of the Munsiff, Kota dated 11-11-1960. In the circumstances of the case, I leave the parties to bear their own costs of this Court as well as of the Court of the District Judge. Kota.
15. Learned counsel for the respondent prays for leave to appeal to Division Bench. However, I do not consider it a fit case for grant of leave. The prayer is disallowed.