S KRISHNASWAMI AIYANGAR 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 B schedule, when he vacated it, on the 14 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.

(2.) Mr. Bhashyam Aiyangar, for the appellant, contends that the proper article 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 defendants statement is a mere denial of the plaintiffs allegations.

(3.) 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 respondent, 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.