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Sm. Patta Kumari Bibi Vs. Nirmal Kumar Sinha - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1948Cal97
AppellantSm. Patta Kumari Bibi
RespondentNirmal Kumar Sinha
Cases ReferredAiyappa Reddi v. Kuppuswarni Reddi
Excerpt:
- .....daughters. shortly after his death his two sons died. in pursuance of an authority given by him, patta kumari bibi adopted nirmal kumar singh nowlakha, the respondent before us, in april 1918. the latter attained majority in 1919. in 1924 disputes and differences arose between him and his adoptive mother. those disputes and differences were referred to the arbitration of two gentlemen, dhannu lal sucbanti and askaran bhutaria. the arbitrators gave their award on 13-11-1924. paragraph 9, which is the only material paragraph of the award for this appeal, dealt with the rights of the parties in respect of ornaments, jewelleries, gold mohurs, silver ware and utensils. no list, however, of the ornaments etc., dealt with in that paragraph was appended to the award or even made by the.....
Judgment:

R.C. Mitter, J.

1. Rai Dhanpat Singh Nowlakha of Azimgunj died intestate in the year 1914 leaving him surviving his widow, Patta Kumari Bibi, the appellant before us two natural born sons and six daughters. Shortly after his death his two sons died. In pursuance of an authority given by him, Patta Kumari Bibi adopted Nirmal Kumar Singh Nowlakha, the respondent before us, in April 1918. The latter attained majority in 1919. In 1924 disputes and differences arose between him and his adoptive mother. Those disputes and differences were referred to the arbitration of two gentlemen, Dhannu Lal Sucbanti and Askaran Bhutaria. The arbitrators gave their award on 13-11-1924. Paragraph 9, which is the only material paragraph of the award for this appeal, dealt with the rights of the parties in respect of ornaments, jewelleries, gold mohurs, silver ware and utensils. No list, however, of the ornaments etc., dealt with in that paragraph was appended to the award or even made by the arbitrators. According to its terms those articles were left with Patta Kumari Bibi, A decree on the award was passed on 211-1924. In 1926 Patta Kumari's youngest daughter was married and she left the Azimgunj house and mostly lived in Calcutta and elsewhere. From 1929 to 6-8-1936 she paid only occasional visits to Azimgunj. On 7-8-1936 she went to her Azimgunj house. On 17-8-1936 a report was sent to the local Police Station that valuable jewelleries had been burgled from the strong room in the Azimgunj house during her absence and that she discovered the theft on 10-8-1936. The police reported the case to be a false one. On 13-2-1937 Nirmal Kumar, the adopted son, instituted a suit, being No. 10 of 1937 of the Court of the Subordinate Judge at Berhampore against her in respect of ornaments, jewelleries etc. described in Schedule Ka annexed to that plaint. He annexed another schedule, namely schedule Kha, which consisted of certain items of Schedule Ka, in respect of which the lady had set up the case of theft. The plaint proceeded on the allegation that according to the award the defendant had only a life interest in them and that he, the plaintiff, was the remainderman. The prayers made were for discovery by the defendant of the ornaments etc. mentioned in para. 9 of the award, and, if she failed to do so, for a declaration that the as mentioned in Schedule Ka were the ornaments etc., dealt with in that paragraph of the award and for keeping them in the custody of the Court or of a Receiver to be appointed by the Court. The story of theft was recited in the plaint and characterised as a false one. Other reliefs claimed need not be recited. Many defences were put forward, one of them being that the ornaments had been lost by theft. The learned Subordinate Judge decreed the suit in part on 31-5-1938. He found that the ornaments etc., described in Schedule Kha of that plaint, except certain items mentioned in his judgment, were those that had been dealt with in para. 9 of the award. He further found that the plea of theft set up by her was a false one and that she was Still in possession of them and directed a Receiver to be appointed to take charge of them for safe custody and preservation. The defendant took an appeal to this Court, being appeal from Original Decree No. 229 of 1938. The judgment of this Court, which is reported in Potto Kumari Bibi v. Nirmal Kumar Singh ('42) 46 C.W.N. 333 was delivered on 2711-1941. This Court held-(1) that Patta Kumari bad only a life interest in the ornaments etc, in respect of which the learned Subordinate Judge had passed his decree and that Nirmal Kumar Singh Nawlakhaya had a vested remainder therein; (2) that her plea of theft was a false one and that she was still in possession of them; (3) that a life tenant owed a duty to the remainderman to see that the subject is preserved, reasonable wear and tear being excepted; (4) that if there is a breach of that duty or if it established that there is a reasonable apprehension on the part of the remainderman that that duty will not be performed by the life tenant he is not entitled to immediate possession but the Court must make suitable orders for the preservation of the property during the life of the life tenant. In the circumstances of the case, the order made by the learned Subordinate Judge for the appointment of a Receiver was discharged. Some articles were left in Patta Kumari's possession and the learned Subordinate Judge was directed to appoint a Commissioner and to call upon her to produce the remaining articles before him, who on production was to make a list, to put them in a strong box and to deposit the box in the safe custody of a Bank to be selected by the learned Subordinate Judge. The date of the cause of action in that suit was stated to be 19-8-1936 when the plaintiff came to know of the false story of theft.

2. It is admitted that after the decree of the learned Subordinate Judge passed in Suit No. 10 of 1937, and while Appeal No. 229 of 1938 filed by Patta Kumari against that decree was pending in this Court, Nirmal Kumar took steps for causing the jewelleries etc. in respect of which the Subordinate Judge had passed the decree to be produced by her before the Receiver. Patta Kumari, however, filed an application in this Court in the said appeal supported by an affidavit stating that it would be impossible for her to produce them before the Receiver as they were not in her possession but had been stolen. While the said appeal was pending in this Court but after the aforesaid application had been filed in this Court by Patta Kumari Nirmal Kumar filed on 28-6-1939 the suit in which this appeal arises. He prayed for compensation amounting to Rs. 15,00,00. In the plaint he recited the award in respect of the jewelleries etc the story of theft set up by Patta Kumari gave a summary of the plaint of Suit No. 10 of 1937 and reliefs claimed by him in that suit and the terms of the decree passed by the Subordinate Judge. He also stated that the appeal preferred by Patta Kumari against that decree and cross-objections filed by him were pending in this Court. In para. 8 he stated that Patta Kumari, the defendant, for the purpose of causing loss to him had after the institution of Suit No. 10 of 1937 kept concealed and removed most of the jewelleries. Paragraph 9 of the plaint runs as follows:

That under the above mentioned circumstances and according to law and equity the defendant had been liable to the plaintiff for conversion, waste and breach of trust and the plaintiff is entitled to get from the defendant adequate compensation for the same.

Two dates have been mentioned to be the dates when the cause of action arose, namely, 15th April 1937, being the date on which the defendant filed her written statement in Suit No. 10 of 1937, and 16th November 1938, being the date when she filed her application in this Court in connection with Appeal No. 229 of 1938 wherein she had stated that it was impossible for her to produce the jewelleries etc. before the Receiver as directed by the decree of the Subordinate Judge on the ground they were not in her possession having been taken away by a thief. The learned Subordinate Judge decreed the suit for Rs. 73,239-2-0 with costs. Patta Kumari has preferred this appeal. Her advocate has raised before us the following contentions and no others, namely, (I). That the suit as framed does not lie, (II). That at any rate it is not maintainable in view of the provisions of Order 2, Rule 2 Civil P.C. and (III) That in any event it is barred by time. The amount of the compensation decreed has not been questioued before us.

3. (I) In Suit No. 10 of 1937, it was decided that the defendant had a life interest in the properties in suit now and the plaintiff had a vested remainder therein. Those findings are res judicata. The duty which the defendant as life tenant owed and owes to the plaintiff, the remainderman does not make her a trustee for the plaintiff. There is therefore no breach of trust by her in secreting the chattels. The defendant cannot be charged for waste as that term is understood, for the subject-matter is not immovable property. It is therefore the case of a life tenant who with the intention of defeating the rights of the remainderman in moveable property has done away with the property. It is a case of permanent injury by the defendant to the plaintiff's vested reversionary rights. This has also been established by the evidence, for, even after the decree of this Court passed in Suit No. 10 of 1937 she refused to produce the things before the Commissioner when she was directed by the Court below to do so in pursuance of the decree passed, on the plea which was found to be false, namely, that the things had been taken away by theft. It is quite clear that the defendant has either effectively concealed the articles or has made them over to somebody or sold them to some one, and those persons cannot be traced by the plaintiff. In any of those cases the result to the plaintiff is the same, for he would not be able to find the articles by reason of a wrongful act of the defendant, when he would be entitled to have possession. The learned advocate appearing for her, however, takes his stand on the statements made in para. 9 of the plaint. He contends that breach of trust and waste being out of the way, the plaintiff has to rely on his case of conversion, and he cannot succeed on that case as he is not entitled to immediate possession.

4. We have already held that the defendant was not a trustee for the plaintiff and word 'waste' used in para. 9 of the plaint is a misnomer. The technical conception in England of conversion is that it is a wrong to possession. Trover would accordingly lie in England against a defendant when the latter either by wrongly taking or wrongly detaining or destroying or by wrongly disposing of a chattel has deprived the plaintiff of its use. A conversion according to that conception is the act of wilfully interfering with any chattel, without lawful justification, whereby any person entitled thereto is deprived of the possession of it. So an action in trover would not lie at the suit of a, person unless he is in actual possession or entitled at the time of the conversion to the immediate possession of the chattel. This proposition is well-established by a long line of decisions in England given before the Judicature Acts. But it is quite a different thing to say that a person having a reversionary interest cannot sue, when by reason of trespass or other illegal act of the defendant he has been deprived permanently of the benefit of his reversionary interest. That he can sue and get a decree has been decided in England as long back as 1862 in (1862) 11 C.B. (N.S.) 850: Mears v. L.S.W. Rly. Co. (1862) 11 C.B. (N.S.) 850 and that decision has since then been treated as good authority (Salmond on Torts, Edn. 9, p. 357). The words used in para. 9 of the plaint, especially the words 'waste and conversion', may have been ill-chosen, but para. 9 of the plaint states what, according to the plaintiff's opinion, are the legal effects of the wrongful acts attributed to the defendant. The suit cannot be thrown out on those statements but we ourselves must consider what would be the legal effect of those acts. We do not, moreover, see any reason why the act complained of by the plaintiff cannot be termed 'conversion' in this country. At page 371 Sir Frederick Pollock observes thus:

But an owner not entitled to immediate possession might have a special action on the case, not being trover for any permanent injury to his interest, though the wrongful act might also be trespass, conversion, or breach of contract as against the immediate possessor. As under the Judicature Acts the difference of form between trover and a special action which is not trover does not exist, there seems to be no good reason why the idea and the name of conversion should not be extended to cover these last mentioned cases (Pollock on Torts, Edn. 13, pages 371 and 372).

5. The material facts have been pleaded in the plaint, and if those facts are established, and we hold they have been established, they would entitle the plaintiff to get compensation. After all 'the law of England as to trover and conversion, is in many senses, a very technical law, and it is largely put aside now in modern times' (per Viscount Dunedin in William Leitoh and Co. v. Leydon (1931) 1931 A.C. 90 at pp. 102-193). We accordingly overrule the first contention urged by the appellant's advocate.

6. (II) We are not also impressed by his argument in support of the second contention. In order that Order 2, Rule 2, Civil P.C., may bar this suit, the cause of action of this suit and of suit No. 10 of 1937 must be the same. Apart from the explanation to that rule, which is not material to the case before us, it is the identity of the cause of action that matters. We do not see how the cause of action on the facts pleaded in the case before us is identical with that in Suit No. 10 of 1937. That was a quia tirnet action. In that suit the plaintiff had pleaded that he had reasonable apprehension that the defendant has been harbouring the intention of causing injury to his reversionary rights in certain articles of jewellery etc., and asked the Court to prevent the defendant from carrying into effect her wrongful intentions. In this case the cause of action pleaded is that after the institution of that suit the defendant has in fact destroyed his reversionary rights to those articles of jewellery etc., by her wrongful acts. The causes of action in the two suits are different. This contention of the appellant is also overruled.

7. The third contention raises a more substantial question of law. The defendant is not a trustee for the plaintiff. There is no trust, much less a trust for a specific purpose. Section 10, Limitation Act is accordingly not applicable.

8. Article 36 of Schedule 1, Limitation Act, which provides for two years' limitation, would be applicable unless any other article is applicable, namely either Article 48 Or Article 49. The further question is that even if the residuary article dealing with torts, namely, Article 36, is applicable what in this case would be the starting point of limitation.

9. We do not think that the case comes within Article 48, Limitation Act. It was pointed out by Das J. in Lodna Colliery Ltd. v. Bepin Behari Bose 7 A.I.R. 1920 Pat. 383 at page 133, and his observations were approved by the Judicial Committee in Lewis Pugh Evans pugh V. Ashutosh Sen 16 A.I.R. 1929 P.C. 69 that Article 48 deals only with specific moveable property which falls under one of two classes, namely, (1) such property as has been lost or (2) as has been acquired by (a) theft, (b) dishonest misappropriation or (c) conversion. Lord Warrington of Clyffe further held in Essoo Bhayaji v. The Steamship Savitri ('87) 11 Bom. 133 that the word 'conversion' in col. 1 of that Article has the same meaning as it has in the Law of Torts. In our opinion, cols. 1 and 3 must be read together, and if that is' done it is clear beyond doubt that Article 48 contemplates suits by plaintiffs who have the right to possession, that is to say, where they are entitled to immediate possession. Article 49, which also deals with specific moveables, does not, however, contain the word 'conversion,' and there is nothing to indicate ex facie that that article is intended to apply only to such suits as are covered by col. 1, where the plaintiff has the right to immediate possession. There are, however, some decisions which have the effect of limiting that article to cases of compensation for wrongful acts of the defendant in respect of moveables other than those acts enumerated in Article 48, when the plaintiff has the right to possession. This result has been arrived at by giving to the word 'specific' in the phrase 'specific moveable property' a meaning other than its plain dictionary meaning. The first and the leading decision is that of the Bombay High Court in Essoo Bhayaji v. The Steamship Savitri ('87) 11 Bom. 133. In that case the plaintiff sued for damages for the loss of his barge which was sunk by the S.S. Savitri colliding with it. Farran J. held that Article 49 could not apply where the plaintiff was in possession at the time of the wrongful act of the defendant. He observed that the word 'specific' applied to property in one's own possession was meaningless and the phrase 'specific moveable property' was 'only apt when the thing to which you are entitled is in the possession of a third party.' He noticed the dictionary meaning, which is 'tending to specify or make particular, definite, limited, precise,' but held that the word ''specific' as used in Article 49 has not that meaning. It meant property of which 'the owner was entitled to demand a return in specie.' So far as Essoo Bhayaji v. The Steamship Savitri ('87) 11 Bom. 133 is concerned, the actual point decided is that Article 49 applies only when at the time of the wrongful act the moveable properly was in the possession of a third person, a person other than the owner. But Farran J.'s definition of the phrase 'specific moveable property' used in Article 49 has been utilised in some of the later decisions for the purpose of limiting that article, as well as Article 48, to cases where the plaintiff had the right to possession. 'Where he had no such right those articles were held inapplicable: Kriparam v. Kunwar Bahadur : AIR1932All256 . In Surat Lall v. Umar Haji ('95) 22 Cal. 877 one of three Judges and in Swarna Moyee Dasi v. Probodh Chandra : AIR1933Cal253 a Division Bench of this Court adopted the definition given by Farran J. in Essco Bhayaji v. The Steamship Savitri ('87) 11 Bom. 133 but in neither case was it necessary, nor was it utilised for the same purpose as was done by the Allahabad High Court in Kriparam v. Kunwar Bahadur : AIR1932All256 . It is not necessary to rely on the word 'specific' used in Article 48 and to give it a special meaning in order to hold that that article contemplates suits by a plaintiff who has the right to possession of the article lost or acquired by conversion etc., for the word 'conversion' in the light of the observations made by the Judicial Committee in Essoo Bhayaji v. The Steamship Savitri ('87) 11 Bom. 133 and more so col. 3 of that article makes the position clear. There is accordingly no decision of this Court to which our attention has been drawn and which is binding on us which holds that Article 49 can be invoked to suits of the description mentioned in col. 1 of that Article but only when the plaintiff is entitled to immediate possession. We prefer to give to the word 'specific' occurring in that Article its ordinary dictionary meaning and to follow the decision in Aiyappa Reddi v. Kuppuswarni Reddi ('05) 28 Mad. 208 where Article 49 was applied to a case where the plaintiff had no right to immediate possession at the time when the cause of action pleaded by him had arisen and on which he succeeded. We hold that the case before us is a case where the defendant has wrongfully detained the moveable properties, for, in spite of a decree of Court she has refused to produce and hand them over to the Receiver when asked to do so. That refusal, which was on a false pretext, was on 16-11-1938, and so well within three years of this suit. The detention though in form was against the Receiver was in sub-stance against the plaintiff, for the concealment was intended to be for all times to come. Even if Article 49 is not applicable the case would fall within the residuary article, namely Article 36, bat the malfeasance of the defendant would be when she refused to produce them before the receiver. That date is within two years of the suit. We hold that the suit is not barred by time. The result is that this appeal is dismissed with costs.

Sharps, J.

10. I agree.


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