DURGABAI Vs. SARASVATIBAI

JUDGEMENT

(1.) This suit relates to a diamond, which is of some size and weight. The plaintiff Durgabai is the wife of Nandlal Haribux, a Marwari residing in Bombay. It is alleged that this diamond belonged to her, being presented to her by her father- in-law, or mother-in-law at the time of her marriage in 1905, and that accordingly it was her stridhan property. The plaint alleges that some time in August or September 1922 she handed a ring, in which this diamond was set, with some other ornaments to her husband, who in turn entrusted them to one Durgadutt Shrilal Gondka, a broker in jewellery and precious stones. There is some difference between the terms stated in paragraph 3 of the plaint as those on which this delivery to Durgadutt was made, and the evidence which plaintiff and her husband have given in Court. According to paragraph 3 of the plaint, these ornaments were given by the plaintiff to her husband with a view to selling the same on account and on behalf of the plaintiff, and her husband delivered the ornaments to Durgadutt on jangad terms, that is to say that the broker was to show the ornaments to intending purchasers in the market and secure offers for their purchase, and that in the event of his securing such offers he was to bring the same to the plaintiff's husband, who after asking the plaintiff was either to accept the offers or reject them. In the event of the broker not succeeding in getting such offers, he was bound to return the said ornaments to the plaintiff's husband. The case as put at the trial is, however, that the ornaments were entrusted to Durgadutt merely with a view to ascertaining their value, without any direct intention to sell them, although the plaintiff and her husband had in view the possibility of selling, if the result of Durgadutt's enquiry was to make such a sale profitable. Durgadutt, according to the plaintiff's case, brought back the ring some days later and suggested that the diamond would fetch a better value in the market, if it was taken out of the ring. Accordingly it was taken out and both the ring and the diamond were handed back to Durgadatt. The latter, however, did not either return the ornaments or inform Nandlal of their value and it is not now disputed that on October 2, 1922, he pledged this diamond, with some other diamonds, to defendant No. 2, the firm of Messrs, Ganpatrai Rukmanand, for a sum of Rs. 10,000. According to the plaint and some evidence that has been given, Durgadutt had obtained other jewellery or precious stones from other people in Bombay, and complaints were filed about his conduct, with the result that he was arrested by the police on November 28, 1922, according to the statement in Exhibit 9. On November 30, 1922, the plaintiff's husband Nandlal made a complaint to the police against Durgadutt under Section 406, Indian Penal Code, that Durgadutt had committed criminal breach of trust in respect of those ornaments, including the diamond and the ring. Durgadutt was prosecuted, but he is stated to have got off in the Sessions Court. The learned Presidency Magistrate passed an order that this diamond should be kept in the custody of the police until February 14, 1924, and unless a suit was filed by any claimant in the meantime to establish ownership over it, the diamond was to be returned to the person from whose possession it was obtained. The present suit was accordingly brought by the plaintiff on February 13, 1924.

(2.) The defendants joined are No. 1, the widow of Durgadutt who had died; defendant No. 2, the firm claiming the diamond as pledgee; and defendant No. 3, the Official Assignee. The named was joined, because on February 23, the plaintiff's husband was adjudicated as an insolvent. The plaintiff claims that the pledge to defendant No. 2 is not valid and asks for a declaration that the diamond belonged to the plaintiff and that the pledge in question was not valid; also for an order for its delivery to the plaintiff. Subsequently orders were obtained, under which the Official Assignee was appointed as receiver in respect of this diamond pending the decision of the suit. Defendant No. 1 has put in no appearance. Defendant No. 2's defence is that the pledge is valid and that the suit against them should be dismissed with costs. Defendant No. 8 filed a written statement in July 1924, disputing the allegation that the diamond was really the plaintiff's and claiming that it belonged to the estate of her husband and therefore vested in him as the Official Assignee, Since then, however, the adjudication of the plaintiff's husband has been annulled on July 21, 1925, owing to a composition made by Nandlal with his creditors, and accordingly the Official Assignee has not appeared at the trial.

(3.) The issues raised are:- (1) Whether the suit diamond belonged to the plaintiff as alleged in the plaint? (2) Whether the suit diamond was delivered to the broker Durgadutt by the plaintiff's husband? (3) Whether its delivery to Durgadutt was on terms specified in para 3 of the plaint? (4) Whether it was obtained by the said Durgadutt by means of an offence or fraud? (5) (a) Whether it was pledged by Durgadutt to defendant No. 2, and (b) whether such pledge was valid? (6) General.