R.C. Mitter, J.
1. Defendant 2 is a Deputy Magistrate. He was under orders of transfer from Dinajpur to Barisal. At the time he left for Barisal he left his wife's ornaments with his brother, defendant 1, for safe custody. His brother was then living in joint-mess with him. On 28th Chaitra 1335 B.S. corresponding 11th April 1929, defendant 1 took a loan of Rs. 600 from the plaintiff and delivered to the latter the said ornaments as security. The loan was taken by the defendant for his own needs. Subsequently defendant 2 instituted criminal proceedings against his brother, defendant 1. In the course of the said proceedings the ornaments were taken away from the plaintiff by the police and deposited with the Sadar Sub-divisional Magistrate of Jalpaiguri.
2. The plaintiff has instituted this suit to recover his dues from defendant 1. He has also prayed for recovery of his dues by sale of the said ornaments. He made defendant 2 a pro forma defendant, in order that the decree may be passed in his presence. Defendant 2 only appeared and contested the suit. He contended that there was no valid pledge and resisted the plaintiff's prayer for sale of the ornaments. Both the Courts below have upheld the contention of defendant 2 and have only given a personal decree against defendant 1. The plaintiff preferred this appeal and contends that he has the rights of a pledgee. The case depends upon the construction of Section 178, Contract Act, as it stood before the amendment of 1930. The findings of the Courts below are that the plaintiff acted bona fide and the proviso to that section does not apply. The only question therefore is whether defendant 1 had possession' within the meaning of that section. There is marked distinction in law between possession, and detention or bare custody. One element is no doubt common in both these legal concepts, namely physical control over the thing. To constitute possession there must be an additional element, namely the animus or intention. Whether the animus must be what is called animus domini (Savigny) or something less, namely an intention to exclude other, not necessarily the owner also, is a matter of controversy (Holmes on Common Law Lecture VI). But it is quite clear that a servant has no possession in the eye of the law. That may be due to the imprints left by the abolished system of slavery. The cases where a servant delivered goods of his master as security for a loan taken by him therefore stand on a different footing from the cases where goods have been pledged by a person who had obtained them under a hire purchase system. The latter has in my judgment possession. A gratuitous bailee has also possession. If such person deliver goods to their creditors by way of security, left to myself I cannot see why there would not be a valid pledge, provided the other elements of Section 178 are present. I agree with much of what Lort-Williams, J., has said in his judgment delivered in Rahim Bux v. Central Bank of India, 1929 Cal 497 and I would have had no hesitation in acting upon the principles formulated therein, had the matter been res integra.
3. But the matter, in my judgment, is settled by a long series of decisions beginning with the judgment of Couch, C.J. and Phear, J., in Greenwood v. Holquette (1874) 12 Beng LR 42. That case was no doubt a case of sale, and depended upon the construction of Section 108, Contract Act, but the principles laid down there have been applied to cases of pledge: Roopchand Jankidas v. National Bank of India, 1919 Cal 540, Leon Sanbolle v. K.V. Seyne and Bros., 1919 Cal 677, Profulla Kumar v. Nabo Kishore Rai, 1920 Cal 421, Saegar v. Hukma Kessa (1910) 24 Bom 458 and Naganada Davay v. Bappu Chettiar (1904) 27 Mad 424. These cases lay down the principles that when the alleged pledger has only 'qualified' possession, that is, he is put in possession of the goods by the owner and is asked to retain possession for a specified and limited purpose, delivery given by him of the goods to his creditor by way of security does not constitute a valid pledge; the word 'possession' used in Section 178 according to these decision means 'unqualified possession,' In Profulla Kumar v. Nabo Kishore Rai, 1920 Cal 421 the pledge was upheld by a Division Bench on the aforesaid principles also. The case of Official Assignee, Madras v. Mercantile Bank of India, 1934 PC 246, cited before me, does not deal with this question. There the question was whether Section 178 which includes within it an agent, also applied to the case of an owner intending to pledge his goods, not by actual delivery of the goods but by endorsing and delivering railway receipts. A short summing up of the effect of decisions of the High Courts of India on the point before me is only made by Lord Wright at p. 427 of the report. Following the course of decisions by which I am bound I uphold the decree made by the Subordinate Judge and dismiss this appeal with costs. The prayer for leave to appeal under 8. 15, Letters Patent, is refused.