SITA RAM Vs. RADHA BAI

JUDGEMENT

(1.) Lachmi Narain father of Sita Ram appellant in this appeal - was the brother of Radhahai - respondent herein. On April 15, 1942. Radhabai - who will hereinafter be called 'the plaintiff' entrusted gold pearl and diamond jewellery of the value of Rs. 32,379-6-0 to Lachhmi Narain for safe custody. After the death of Lachhmi Narain in July 1943, the appellant was called upon by the plaintiff to return that jewellery. The appellant replied that Lachhmi Narain had during his life time returned the jewellery to the plaintiff. The plaintiff then instituted an action against Sita Ram, his son Ghanshyam and other members of the family, in the Court of the First Civil Judge, Kanpur, for a decree ordering delivery of the jewellery or for payment of its value. The Trial Court dismissed the action upholding the case of the appellant that the jewellery was returned to the plaintiff by Lachhmi Narain on April 23, 1942. In appeal, the High Court of Allahabad reversed the decree passed by the Trial Court and passed a decree directing that the jewellery be restored to the plaintiff within one month from the date of the decree, and in the event of failure to comply with that direction the appellant and his son Ghanshyam do pay Rs. 32,379-6-0 together with costs out of the estate of Lachhmi Narain in their hands. Against that decree, this appeal is preferred with certificate granted by the High Court. Ghanshyam who was at all material times a minor died unmarried during the pendency of the appeal before the High Court and his name has been struck off.

(2.) The plaintiff's case that on April 5, 1942 she entrusted to Lachhmi Narain her jewellery described in the plaint was not denied by the appellant. The appellant however submitted that the jewellery was returned to the plaintiff by Lachhmi Narain on April 23, 1942. The burden of proving that case lay upon the appellant. In support of that case the appellant relied upon a receipt Ext.A-4 which it was claimed the plaintiff had given acknowledging receipt of the jewellery. The Trial Court held that the receipt was "not genuine" and with that view the High Court agreed. The receipt was not relied upon by the appellant before this Court. But the appellant relied upon the following circumstances which he claimed established his plea

(3.) The plaintiff stated that she proceeded to Kanpur on receiving a telegram from Lachhmi Narain that the padlock of her house at Rail Bazar, Kanpur, was broken, and that she returned to Jhansi by the evening train leaving Kanpur for Jhansi. She stated that the jewellery was not returned to her by Lachhmi Narain. It is true that the testimony of Dr. Mohan Lal who stated that the he had medically treated the plaintiff on the 22nd and 23rd of April 1942 at Jhansi was found by the Trial Court to be unreliable, and the record of his Dispensary untrustworthy. But from the presence of the plaintiff at Kanpur on April 23, 1942, no inference may be raised that she received the jewellery from Lachhmi Narain on that day.