1. The plaintiff was the owner of certain jewels, which he entrusted to one Subba Rao for sale, who committed breach of trust and pledged them with the defendant Bank, Subba Rao was convicted and the property was ordered by the Sub-Divisional Magistrate who convicted him to be returned to the plaintiff. The High Court in revision held that as the jewels had been taken from the defendant Bank they should be returned in the Bank and ordered the jewels to be given to the Bank. Before the order was passed, the plaintiff had obtained possession of the jewels; and for 10 months after the order of the High Court was passed possession of the jewels was with the plaintiff. On 11th June 1934 the plaintiff handed over the jewels to the Sub-Divisional Magistrate and on the same day filed the present suit in the District Munsif's Court for a declaration Jihad he was entitled to the possession of the jewels. At the same time he filed a petition that the Court should order the Sub-Divisional Magistrate to retain the jewels or, batter still, to send them to the District Munsif'a Court. Eventually this was done. The District Munsif dismissed the plaintiff's suit on the merits. In appeal to the Subordinate Judge's Court, the plaintiff succeeded on the merits; but the dismissal of the suit was confirmed on the technical ground that the plaintiff should have asked for possession and not merely for a declaration. Hence this second appeal by the plaintiff to this Court.
2. The contention of the learned advocate for the appellant is that since at the time when the suit was filed the jewels were actually in the custody of the Sub-Divisional Magistrate, it must be considered that the jewels were in custodia legis and not held specifically by the Sub-Divisional Magistrate on behalf of the defendant, and that therefore all that was necessary for the plaintiff to do was to obtain a decoration that the jewels belonged to him. The learned advocate for the appellant relies chiefly on Malayappa Piliai v. Perumal Pillai (1913)36 Mad 62. That was a case in which the Magistrate Under Section 146, Criminal P.C. attached some property because he was unable to decide to which of two disputants it belonged. It would appear from the original records that the attachment was on 5th December 1903. On 27th March 1905 the High Court passed an order setting aside the attachment and ordering the property in question to be returned to the defendants. The Magistrate did not however raise the attachment until 5th February 1906. Before that was done on 1st November 1905 the plaintiff filed a suit for a declaration of his right to the property. It was held in that case that a declaration wag sufficient, because although the High Court had ordered the property to be restored to the defendant, the Magistrate had not in fact done so. A somewhat similar case arose in Vedanayaga Mudaliar v. Vedammal (1904) 27 Mad 591 in where in certain, guardian proceedings, the plaintiff was appointed a receiver of the minor's property. The High Court set aside that order and ordered the property to be returned to the defendant. Before the property was actually returned, the plaintiff filed a suit for a declaration that he was entitled to the possession of the property. For reasoning similar to that given in Malayappa Piliai v. Perumal Pillai (1913)36 Mad 62 it was held that a declaration was sufficient. A case that is much relied on by the respondent as bearing a greater resemblance to the present case is Natesa Iyer v. Mangalathammal : AIR1933Mad503 where a certain sum of money was obtained in execution. While the money was still in the custody of the Court, the daughter-in-law of the decree-holder brought a suit for a declaration that she was entitled to the money. It was held in that case by Pakenham Walsh J. that a suit for a declaration was not sufficient, for the High Court was holding the-property for the decree-holder; so that the daughter-in-law, who was a stranger to the execution proceedings, had to ask for possession of the property, because she was not in possession. Nor was the Court in custody of the property except as the agent of the decree holder. In that case Vedanayaga Mudaliar v. Vedammal (1904) 27 Mad 591 was referred to and distinguished as being a case in which the Court was holding the property for such person as might eventually be found entitled to it and not specifically on behalf of a certain person, as the executing Court does with respect to property realized in execution. Although Natesa Iyer v. Mangalathammal : AIR1933Mad503 was decided by a single Judge, the matter was reconsidered In a Letters Patent appeal; and the Judges who heard that appeal expressed their entire approval of what had been said by Pakenham Walsh J. Malayappa Piliai v. Perumal Pillai (1913)36 Mad 62 was not expressly referred to; but as far as I can see, Malayappa Piliai v. Perumal Pillai (1913)36 Mad 62 is no stronger a case for the appellant than Vedanayaga Mudaliar v. Vedammal (1904) 27 Mad 591. Although the Magistrate had received an order from the High Court that the property was to be returned to the defendant it, had not in fact been returned when the suit was filed. The Court had taken the property in order that it might hold it until the Civil Court had decided the rights of the parties; and it continued to hold that property for the same purpose until It actually handed it back to the defendant.
3. It cannot be said that from the date of the order of the High Court the property was no longer in custodia legis and was held by the Court only as an agent of the defendant. It has been argued that when the appellant handed over the jewels to the Sub-Divisional Magistrate the Sub-Divisional Magistrate either held them as a Court to be handed over to the person who was rightfully entitled to them or held them as an agent of the plaintiff-appellant. He clearly did not hold the jewels as an agent of whomsoever might be found by the Civil Court to have a right to them. I in the very first instance he purported to hold the jewels for the plaintiff and, after the receipt of the order of the High Court for the defendant. Moreover the present case differs from one in which the Court had all along held possession of the jewels; for, the appellant actually handed over the jewels to the Sub-Divisional Magistrate, and the purpose for which he handed Shem over was that they might be returned to the defendant The Sub-Divisional Magistrate could not have taken the jewels from the appellant and retained them as the agent of the appellant until such time as he actually handed them over physically to defendant. The Sub-Divisional Magistrate has ordered the appellant to give up the jewels; and if he had not done go, the Court would doubtless have taken action against the appellant. When therefore the Court took the jewels from the appellant it certainly did not take them as the agent of the plaintiff, to keep them in its custody on his behalf; but took them from the possession of the appellant and held them as the agent of the defendant until such time as it could hand them over to the defendant. I therefore hold that at the time when the suit was filed, the jewels were not in the possession of the appellant and that the lower Court was therefore right in holding that a suit for a declaration was not sufficient.
4. A petition has been filed in this second appeal asking this Court to grant permission to the plaintiff to amend his plaint. In consider whether this prayer should be granted or not, it has to be borne in mind that even in the written statement itself an objection was raised as to the maintainability of the suit on the ground that the plaintiff had not asked for possession. The plaintiff, during the course of the trial, did not ask to be allowed to amend this plaint; nor did he ask to be allowed to do so during the appeal. Even in this Court he has asked to be allowed to amend the plaint only in case this Court holds against him on the main point raised, i.e., on the question of the possession of the jewels at the time the suit was laid. The plaintiff was therefore fully aware from the date of the filing of the written statement that the defendant was contending that the suit was not maintainable on the ground that he had not asked for possession. He was not only aware that a legal objection had been taken; but he was prepared to go on with the suit and the appeal and to take the risk of this point being decided against him. He cannot therefore reasonably ask at this stage to be allowed to amend his plaint; and it would be unfair to the defendant to be forced to submit to a retrial because of the plaintiff's obstinacy. His petition, C.M.P. No. 5105 of 1936, is therefore dismissed. The appeal is accordingly dismissed with costs. A memorandum of cross-objection has been filed with regard to the finding in appeal on the merits. This point does not arise in view of the fact that in any case the suit has to be dismissed because there is no prayer for possession. There has been no argument on this memorandum of cross-objections and so it is dismissed without costs. Leave to appeal is granted.