S KRISHNASWAMY IYENGARA Vs. VSGOPALACHARIAR

JUDGEMENT

(1.) THE question involved in this appeal is, one of limitation. THE plaintiff sues for the recovery of, certain jewels described in schedule A to the plaint and certain articles described in schedule B. His case is that he deposited with the defendant's son for safe custody the jewels mentioned in schedule A and that he left in the house which he occupied along with the defendant's son the articles mentioned in the schedule when he vacated it on the 14th December 1918. THE, defendants deny the deposit as well as the allegation that the B schedule properties were left in the house occupied by the defendant's son. THE defendant's son seems to have died on the 6 December 1918 and his wife, the 1 plaintiff's sister, died on the 18 December. THE learned City Civil Judge has dismissed the suit on the ground that Art. 48 of the Limitation Act applied, and the suit having been brought more than 3 years from the date of the alleged deposit was barred by limitation. 18. Mr. Bhashyam Iyengar for the appellant contends that the proper Art. applicable to a case of this kind is Art. 145 under which he has 30 years to bring a suit. THE learned Judge has taken the view that the suit is not based upon a contract but upon tort inasmuch as the plaintiff stated that the defendants were in wrongful possession of the jewels. In a case like this where no evidence has been adduced, it is the averments in the plaint that have to be looked to and not any case that may be set up, in evidence on the side of the defendants. THE defendant's statement is a mere denial of the plaintiffs allegations. That being so, the plaintiffs allegation that they deposited the jewels mentioned in schedule A with the defendant's son, should be taken as the sole basis for considering what period of limitation is applicable to the case. Mr. Desikachari who appears for the respondents contends that the son being dead the suit against the depository does not lie, and his clients being alleged to be in possession of such property should be held to be persons who have converted the property to their own use and, therefore, either Art. 48 or Art. 49 is applicable, in which case the suit is barred. But I fail to appreciate the argument on behalf of the respondents, for in the case of bailee or depository or pawnee, it cannot be said that the contract of bailment or deposit or pawn comes to an end on the death of the bailee, depository or pawnee; and the legal representative of the estate of the deceased is bound by any contract to which the deceased was a party, That being so, I think the proper Art. of the Limitation Act applicable to a case like the one set out in the plaint, viz., the deposit is Art. 145. 19. So far as the jewels mentioned in schedule A are concerned, Art. 145 is the proper Art. to be applied. 20. As regards the articles mentioned in schedule B to the plaint, the contention on behalf of the respondents is that Art. 19 should be held to be applicable. Art. 49 is in these terms: "For other specific moveable property, or for compensation for wrongfully taking or injuring or wrongfully detaining the same." When the plaintiff vacated the house which he occupied with the defendant's son, he left according to his own statement certain articles. THEre is no allegation in the written statement that these were converted to the use of defendants. If such an allegation was made, and if conversion was more than 3 years old, no doubt the plaintiff's suit would be barred. THEn we have to see whether Art. 48 would be applicable to the claim in., respect of the B schedule properties. Art. 48 applied to a suit for the recovery of the specific moveable property lost, or acquired by theft, or dishonest misappropriation or conversion or compensation for wrongfully taking or detaining the same. As I have already said, the defendants did not plead that these properties were converted to their use more than 3 years before the date of suit. THEir being in possession cannot be held to be wrongful so long as they did not convert them to their own use inconsistent with the plaintiff's ownership. THEir denial that they ever came into possession of such property precludes the contention that they converted them to their use. Mr. Desikachari relies upon Arunachalam Pillai V/s. Alagianambia Filial 3 M.L.T. 324. That case has no application to the facts of the present case as there was no deposit in that case. Taking all the averments in the plaint into consideration as well as the statements in the written statement, I think the learned Judge erred in holding that either Art. 48 or Art. 49 applied to the claim for B schedule properties. As I have already stated Art. 145 applied to the claim in respect of A schedule jewels and as regards B schedule articles, the claim is made within three years, and time began to run only from the date, when there was refusal to deliver or denial that the defendants were in possession of such property I therefore set aside the decree of the City Civil Judge and direct him to restore the suit to his file and dispose of it according to law. Costs of this appeal will abide the result. 21. THE appellants will be entitled to refund of the Court-fee paid in this Court.