NAGANADA DAVAY Vs. BAPPU CHETTIAR

JUDGEMENT

(1.) I think that the protection given to pledgees by Section 178 of the Contract Act is similar to that given to buyers under Exception 1 to Section 108 of the same Act and that the possession intended is the same in both Secs.. In interpreting the section the English cases are of no assistance. The meaning of the section must be determined by a consideration of the statute and of the words of the section itself. The word possession in the section is clearly not intended to cover all cases in which the goods, etc., are in the physical control of the pledgor because the " possession" in the first part of the section is distinguished from the " custody" of them in the last paragraph of the same section. It has, therefore, been held that goods in the custody of a servant, though they are in his physical possession, cannot be pledged under the section. BiddomayeeDabee Dabee v.Sitaram and Biddomayee Datee Datee V/s. Soobul Das Mullick I.L.R. 4 Cal. 497 and Shanhar Murlidhar V/s. Mohanlal Jaduram I.L.R. 11 B. 704 and the same has been held to apply to jewels in the custody of a wife. Seagar v. Hukma Kessa I.L.R. 24 B. 458 Moreover the possession intended is not the possession of a person who has a limited interest, because that case is specially provided for in Section 179.

(2.) The word "possession" is also used in Section 108, exception and though the words in that section are not identical with the words in Section 178, they are very similar and I think that the possession intended is the same. Section 108 contains the words notwithstanding any instructions of the owner to the contrary , which are not in Section 178 and it has been held continuously ever since 1873 when Greenwood V/s. Holquette 12 B.L.R. 42 was decided that the existence of these words in the section indicate that the possession meant in that section is a possession which is unqualified and not to be restricted otherwise than by the owner giving instructions to the person who has it. The section was, therefore, held not to apply to a person in possession of a piano under a hire purchase agreement, but that the possession intended must be similar to that of a factor or agent. The possession must be such a possession as an owner has, not a qualified possession such as the hirer of goods has, or where the possession is for a specific purpose.

(3.) As the word possession in both Secs.is intended to be restricted and as the wording of both the Secs.is so similar, I think the word as used in Section 178 of the Contract Act is intended to have the same meaning as in Section 108, though the words notwithstanding any instructions of the owner to the contrary are not repeated in the former section. In these circumstances the pledgee of a jewel hired is not, in my opinion, protected.