Alfred Henry Lionel Leach, C.J.
1. The appellant filed a suit in the Court of the District Munsif of Coimbatore for a declaration that he was the absolute owner of certain jewels. At the time of the suit the jewels were in possession of the Court of the Sub-Divisional First Class Magistrate of Coimbatore. No consequential relief was asked for, and the question which we are called upon to decide is whether the suit could be maintained in view of the proviso to Section 42 of the Specific Relief Act, which says that no Court shall make a declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. In 1932 the appellant was desirous of selling the jewels and he was approached by one SubbaRao who represented that he knew of a prospective purchaser. On the representation that the desired to show the jewels to the prospective purchaser the appellant handed them over to him. This was on the 3rd July, 1932. Having obtained possession of the jewels Subba Rao pledged them for a total sum of Rs. 1,000 with the respondent company, which carries on a banking business in Coimbatore. When the appellant came to hear of this, he complained to the police and as the result Subba Rao was charged with criminal breach of trust under Section 409 of the Indian Penal Code. On the 26th of October, 1932, Subba Rao was convicted and sentenced to two years' rigorous imprisonment by the Sub-Divisional Magistrate, who directed that the jewels should be returned to the respondent company on security being furnished. The appellant appealed to the Additional Sessions Judge of Coimbatore against the order of the Sub-Divisional Magistrate. The appeal was allowed and the Additional Sessions Judge directed that the jewels should be delivered to the appellant unconditionally. In accordance with this order the appellant obtained possession of the jewels from the Sub-Divisional Magistrate on the 21st December, 1932. In the meantime the respondent company had filed an application to this Court for the revision of the order of the Additional Sessions Judge. The application was heard on the 10th August, 1933 and was successful. This Court directed that the jewels should be delivered to the respondent company. The appellant did not obey the order and the respondent company was compelled to apply to the Sub-Divisional Magistrate to enforce it. The Sub-Divisional Magistrate accordingly issued a summons to the appellant calling upon him to produce and surrender the jewels. This the appellant did on the 11th June, 1934, but on the same day filed the suit out of which this Letters Patent Appeal arises, and obtained an interim order from the District Munsif directing the Sub-Divisional Magistrate to deposit the jewels in the District Munsif's Court pending the decision of the suit. The Sub-Divisional Magistrate complied with this order and the jewels have since remained in the District Munsif's Court.
2. In the written statement the respondent company pleaded that it was a pledgee of the jewels in good faith and was entitled to the benefit of the pledge by reason of the provisions of Sections 178 and 178-A of the Contract Act. The respondent company also pleaded that the suit was bad because the appellant had omitted to include in his plaint a prayer for possession of the jewels. The District Munsif found that the respondent company had accepted the pledge of the jewels in good faith and that it was protected by Sections 178 and 178-A of the Contract Act, but dismissed the suit on the ground that the appellant was not entitled to maintain it without a prayer for consequential relief. The appellant appealed to the Subordinate Judge of Coimbatore who considered that the respondent company had not acted in good faith and therefore was not entitled to the benefit of the pledge, but he agreed with the District Munsif that the suit was not maintainable in view of the proviso to Section 42 of the Specific Relief Act. The result was that he affirmed the decree dismissing the suit. The appellant then filed an appeal to this Court. This was heard by Horwill, J., who also held that the suit was not maintainable without a prayer for consequential relief.
3. The learned Judge discussed the decisions of this Court in Vedanayaga Mudaliar v. Vedammal : (1904)14MLJ297 , Malaiyya Pillai v. Perumal Pillai : (1911)21MLJ1022 and Natesa Aiyar v. Mangalathammal (1933) 38 L.W. 194 and came to the conclusion that the law was correctly stated in the case last mentioned. We do not share this opinion, but before examining the cases cited there is an earlier decision of this Court, which calls for mention, namely, the decision of Turner, C.J. and Muttuswami Aiyar, J., in Ramanuja v. Devanayaka I.L.R. (1885) 8 Mad. 361. In that case Turner, C.J., observed:
Possession, whether it is of property or of an office may be regarded either as a physical fact, or in contemplation of the legal right to it, and it is in the former sense it should be understood in coming to a finding under Section 42 of the Specific Relief Act as to whether the plaintiff is, or is not, able to seek further relief. It may be observed that the term relief pre-supposes the actual withholding of the fruit of the right of which a declaration is sought, and not its mere denial. A declaratory decree is all that a plaintiff requires when he has no need of the assistance of the Court to replace him in possession.
4. In our opinion the law is here correctly stated.
5. In Vedanayaga Mudaliar v. Vedammal : (1904)14MLJ297 , the facts were these. A minor was entitled to a certain property which was in the possession of his mother. The plaintiff filed an application under the Guardian and Wards Act for an order appointing him guardian of the property of the minor. Pending the hearing of this application he was appointed the receiver of the property and in this capacity he took possession of it from the mother. The validity of the order appointing the plaintiff receiver was challenged in an appeal to this Court, which held that the order had been wrongly passed and directed that the mother should be replaced in possession of the property. The minor was murdered and the receiver filed a suit for a declaration that he was entitled to the property of the minor as the nearest reversioner. The mother pleaded that the suit could not be maintained without a prayer for possession, but the Court held that the suit was maintainable. At the time the suit was filed the possession of the property was neither with the plaintiff nor with the mother, but was in custodia legis. As the possession was the possession of Court all that was necessary was a declaration of title. That seems to us to be exactly the position here.
6. In Malayiya Pillai v. Perumal Pillai : (1911)21MLJ1022 , it was held that before the proviso to Section 42 of the Specific Relief Act applied it must be shown that the defendant was in possession, and that as against him the plaintiff could obtain an order for delivery of possession. In that case proceedings were taken under Sections 145 and 146 of the Code of Criminal Procedure and a receiver was appointed to hold possession of the property in dispute. The order was subsequently cancelled by this Court and the receiver was directed to deliver possession to the defendant. At the time the suit was filed the property was still in the possession of the receiver. It was held that in such circumstances there was no necessity to claim consequential relief. This decision is in complete accord with the decision in Vedanayaga Mudaliar v. Vedammal : (1904)14MLJ297 . These appeals were heard by Division Benches and are binding on us. But there is also a decision of the Privy Council to the same effect: Sunder Singh-Mallah Singh Sanatan Dharam High School Trust, Indaura v. The Managing Committee, Sunder Singh-Mallah Singh Rajput High School, Indaura (1938) 1 M.L.J. 359 : L.R. 65 IndAp 106 : I.L.R. 1938 Lah. 63 . The suit there had reference to a school. At the time the suit was filed the school was in the possession of the founder, who was merely holding it until certain disputes had been decided by the Court. He was willing to hand the property over to those declared to be entitled to it. The plaintiffs merely asked for a declaratory decree. The Subordinate Judge considered that it was necessary to ask for possession his reason being that the plaintiffs were neither in possession nor in control of the management of the school. As a decree for possession was not sought he dismissed the suit. On appeal the High Court held that the Subordinate Judge was wrong. The defendants were not in possession or in a position to deliver possession of the properties and there was no further relief available to the plaintiffs against the defendants. The Judicial Committee agreed with the High Court.
7. I will now state the facts in Natesa Aiyar v. Mangalathammal (1933) 38 L.W. 194. There the plaintiff was the widow of one Viswanatha Aiyar, who was also survived by his father and a brother. A mortgage had been executed in favour of the plaintiff's husband and on his death his father brought a suit on the mortgage and obtained a decree, as a result of which certain moneys were brought into Court towards the satisfaction of the decree. The father instituted a suit as manager of the joint family and claimed that the mortgage formed part of the joint estate. The father died without withdrawing the moneys from Court and the surviving son then applied for payment out to him of the moneys as the legal representative of his father. The plaintiff objected to this and claimed that the mortgage was the separate property of her husband. She then filed a suit to obtain a declaration of her right to the monies. Pakenham Walsh, J., held that a prayer for consequential relief was essential. He considered that the case was distinguishable from Vedanayaga Mudaliar v. Vedammal : (1904)14MLJ297 and Malaiyya Pillai v. Perumal Pillai : (1911)21MLJ1022 . It is true that the decision in Natesa Aiyar v. Mangalathammal (1933) 38 L.W. 194 was accepted as being correct in a Letters Patent Appeal which followed, but no reasons were given in the judgment. We do not agree that Natesa Aiyar v. Mangalathammal (1933) 38 L.W. 194 was distinguishable. The question which arose there was really the same question which arose in Vedanayaga Mudaliar v. Vedammal : (1904)14MLJ297 and in Malaiyya Pillai v. Perumal Pillai : (1911)21MLJ1022 and if they were rightly decided, Natesa Aiyar v. Mangalathammal (1933) 38 L.W. 194 was wrongly decided. Inasmuch as the judgment of Pakenham Walsh, J., was approved of on appeal we have been asked to refer the present appeal to a Full Bench. It is not necessary to do so as the judgment of the Privy Council in Sunder Singh-Mallah Singh Sanatan Dharam High School Trust, Indaura v. The Managing Committee, Sunder Singh-Mallah Singh Rajput High School, Indaura (1938) 1 M.L.J. 359 : L.R. 65 IndAp 106 : I.L.R. 1938 Lah. 63 shows that Vedanayaga Mudaliar v. Vedammal : (1904)14MLJ297 and Malaiyya Pillai v. Perumal Pillai : (1911)21MLJ1022 . were rightly decided.
8. The fact that when the present suit was filed the jewels were in the possession of the Sub-Divisional Magistrate, who as the result of the decision of this Court in the revision application was bound to hand them to the respondent company unless otherwise directed, makes no difference. All the Court has to consider is who has possession. The jewels have not been in the possession of the respondent company since 21st December, 1932. At the time of the institution of the suit the jewels were in custodia legis and have remained in custodia legis. The Court must deliver them to the person who shows a title. Therefore it was not necessary for the appellant to ask for anything more than a mere declaration. The appeal will be allowed and a decree passed in terms of the prayer with costs throughout.