1. In this case the facts, which I find to be proved, are, that the defendant Gopalkisto Paulit came to the plaintiff's place of business in Calcutta, and there got from him the jewellery, which is the subject of this suit, taking it away and giving for it a receipt in which the prices of the articles were mentioned, and it was stated that they were taken on ten days inspection. He said, he was taking the jewels on inspection, and would purchase if he did not return within the ten days. But I do not consider it proved that he ever said he would send them up to Moorshedabad or to Baboo Poolinbehari Sen.
2. I believe that the plaintiff allowed him to take away the jewellery, because he said he wished to take it with a view to purchase on ten days' inspection, and would buy if he did not return within that time, because he deposited two thousand rupees, and because Koylash Chunder Sircar, a cashier in the employment of Moharaja Jotindro Mohun Tagore, said, that he was a respectable man, and good for twelve thousand rupees. Gopalkisto Paulit, having thus obtained the jewellery, immediately took the articles to the defendant Kally Kissen Roy at his house, which is just outside the limits of the town of Calcutta, and there and then pledged them for 6,000 rupees.
3. The present suit is brought to recover the jewellery or its value either from Gopalkisto Paulit or from Kally Kissen Roy. Gopalkisto not being now forthcoming, the suit is in truth chiefly brought in order to establish the liability of the defendant Kally Kissen Roy, with whom all the articles were pledged, with the exception of one ring, which in the receipt is stated to be worth Rs. 250.
4. The plaintiff's suit is based upon the 178th section of the Contract Act, which declares that the person in possession of goods may make a valid pledge of them, provided the pawnee acts in good faith, and under circumstances which are not such as to raise a reasonable presumption that the pawnor is acting improperly; but adds a proviso, the effect of which is, that no such pledge is valid if the goods have been obtained from their lawful owner by means of an offence or fraud.
5. The plaintiff's case is, that the pledge of these articles to the defendant Kally Kissen Roy was not a valid pledge, even if he acted in good faith, because Gopalkisto Paulit had obtained them from the plaintiff' by means of an offence or fraud.
6. The defendant Kally Kissen Roy's principal defence is, that the transaction in which alone he is concerned having taken place at his house, which is beyond the limits of the ordinary jurisdiction of this Court, the suit will not lie, this Court not having jurisdiction in the matter so far as ha is concerned.
7. I was at first much inclined to think that the defence was good. But, on further consideration, I think that this Court has jurisdiction. The plaintiff's cause of action is really this, that although the defendant Gopalkisto Paulit was in possession of these articles at the time he pledged them with the defendant Kally Kissen Roy, still Gopalkisto Paulit had obtained them from their lawful owner by means of an offence of fraud; and therefore the plaintiff, as such lawful owner, is entitled to recover them or their value from the pawnee. There is no doubt the plaintiff could not prove his case against Kally Kissen Roy without showing the circumstances under which Gopalkisto Paulit got possession of the goods; and. as all these circumstances occurred within the town of Calcutta, I think that a part of the plaintiff's cause of action did arise in Calcutta. The offence or fraud by means of which Gopalkisto obtained possession took place in Calcutta, and that offence or fraud is certainly part of the plaintiff's cause of action.
8. On the issue as to whether the goods were obtained from the plaintiff by fraud, I think (my opinion on this point also being somewhat contrary to my first impression), that the plaintiff made out a prima facie case when he proved that he was induced to give the articles to Gopalkisto Paulit by his representation that he took them merely on inspection for ten days with a view to purchasing,--and proved that a few hours afterwards these articles were pledged by Gopalkisto for 6,000 rupees. There is certainly some evidence of an offence, to wit, the offence of cheating,--and at any rate there is evidence of what would fall under the more general term ' fraud,' which is used in Section 178.
9. The case thus proved by the plaintiff is much strengthened by the evidence of the defendant Kally Kissen Roy. For he says distinctly that Gopalkisto Paulit represented to him that the jewels were his own, which was absolutely false. The acts of Gopalkisto Paulit might possibly have been capable of explanation. But these matters occurred twelve months ago, and no explanation of them has been offered up to this time. That being so it is impossible to come to any other conclusion than that Gopalkisto, the pawnor of these jewels, had obtained them from their lawful owner by means of an offence or fraud.
10. The plaintiff is entitled to a decree as against the defendant Kally Kissen Roy, as well as against the other defendant, for the jewels or for their value, to wit Rs. 8,000. But then the plaintiff:' admits 2,000 rupees were deposited by Gopalkisto Paulit as security : and that money must be taken pro tanto in satisfaction of the Rs. 8,000. The jewels pledged with the defendant Kally Kissen Roy, and which are produced in Court and valued at Rs. 8,000, do not include the ring which is in the receipt signed by Gopal as valued at Rs. 250.
11. Therefore, the plaintiff is entitled to deduct those Rs. 250 from the Rs. 2,000 in deposit, unless the ring is returned to him. The decree against Kally Kissen Roy will be for the jewels produced in Court or Rs. 6,250. As regards Gopalkisto the decree will be for all the jewels i.e., all those produced in Court, plus the missing ring) or Rs. 6,250.
11. In any event the plaintiff is entitled to costs on scale 2.