PHILIPPOSE Vs. CHERU

JUDGEMENT

(1.) THE 1st respondent filed a suit for the return of a 12 h. P. Hornsby oil engineer in the alternative for its price. THE appellant resisted the suit claiming that the engine was his, that he already sold it as mere scrap for Rs. 400/- and that the suit was barred by limitation. THE lower court dismissed these contentions and granted a decree for Rs. 1200/-; and the appeal is directed against that decree.

(2.) THE first question for consideration is whether the engine belonged to the appellant. THE engine originally belonged to the appellant and Iyporu, who pledged it to the plaintiff's father under Ext. B in 1105 for Rs. 1000/ -. In 1114 defendant and Iyporu assigned the engine under Ex. C for Rs. 1000/- to the plaintiff. On the same day defendant executed the lease deed, Ex. A, and took the engine back. According to the defendant, this assignment was a mere paper transaction to satisfy the plaintiff to advance money for the purchase of another 16 H. P. engine, which was also purchased in the name of the plaintiff. THE defendant pleaded further that on the same day another lease was executed by Iyporu for the 16 H. P. engine. Subsequently, for the arrears of rent of the 16 H. P. engine a suit was filed against Iyporu and the engine was sold by private sale and thereby the plaintiff's entire claim was satisfied and the 12 H. P. engine was allowed to be retained by the defendant. THE 16 H. P. engine was purchased by Pw. 3; and he does not support the case of the defendant that the 12 H. P. engine was also released on that date. THE person alleged to have mediated is not before court; the lease, Ex. A, was not returned to the defendant; nor Was anything taken from the plaintiff to show that the matter was settled and the plaintiff agreed to return the lease deed. In these circumstances, the case that the engine belonged to the defendant has only to be rejected.

(3.) AS a rule it can be stated that if a person comes into possession of a movable lawfully agreeing to return it on a particular date or on the happening of an event or on the satisfaction of certain conditions, by the mere failure to return it his possession does not ipso facto become unlawful. A demand and a refusal to return are necessary and the possession will become unlawful only on such refusal. The decision of the Allahabad High court in Laddo Begam v. Jamal-ud-din (ILR. XLII All. 45) may be referred to on this point. Some movables were handed over to the defendant to be returned after the expiry of the period of iddat and they were not returned. The allahabad High Court held that unless a demand was made and the defendant refused to comply with it, limitation did not commence. Reference was made in that case to the decision of the Madras High Court in Gopalaswami Ayyar v. Subramania Sastri (ILR. XXXV Mad. 636 ). Movable property was entrusted to be returned on the fulfillment of certain conditions and it was not so returned. The Madras High Court held that the possession of the defendant after the due date would be deemed to be possession on behalf of the plaintiff until the defendant refused delivery and mere silence on demand would also not constitute such refusal. The same principle was reiterated in the later decision of the madras High Court, M. Kuppuswami Mudaliar v. S. Pannalal Sowcar (AIR. 1942 Mad. 303), by Somayya, J.