KALYAN MAL Vs. KISHAN CHAND

JUDGEMENT

(1.) This is a reference under Section 18 of the Ajmer Courts Regulation I of 1877. In our opinion, on the facts which have been found, the case is remarkably clear and simple. The courts of Ajmer have taken the right view though they have not expressed very happily the precise articles under the Limitation Act which, they think, destroy the defence set up. The facts show that there were originally two contracts of bailment under Section 43 of the Indian Contract Act, 400 gold mohurs having been entrusted to Musammat Chun Kunwar, to some extent, through her husband, and certain pictures and manuscripts to Sobhag Mal, for specific purposes. Those contracts of bailment or deposit conferred upon the person to whom the goods were entrusted, variously called the bailee or the depositary, lawful possession. To entitle the owner to sue and repossess himself by suit of the goods, or to recover damages for their loss, if they are not restored to him, ho must make a demand. He may of course sue in contract. It is an implied term of every such contract that the goods shall be returned on demand. The failure to return them is a breach of contract. On the other hand, he may sue in tort, and from the moment he makes a demand for the return of the goods, if that demand is not complied with, the possession of the person, the depositee or bailee, becomes unlawful and the owner may sue in what is called detinue. To constitute a cause of action for detinue he must make a formal demand for the goods. Once these principles are understood the application of the appropriate article of the Statute of Limitation becomes simple. We do not think that Section 10 of the Limitation Act has anything to do with it. So far as the gold mohurs are concerned, we think Article 60 applies. The plaintiff elected to treat them as money. Specific coins entrusted to a bailee for a given purpose to be returned in specie may constitute movable property. They are also money We do not agree with the courts below that the case has anything to do with deposit with a banker, but so far as the claim for the gold mohurs or their value is concerned, it is clearly a suit for money deposited under an agreement that it shall be payable on demand. The statute begins to run when the demand is made The demand in this case was made within three years of the commencement of the suit. So far as that portion of the suit is concerned the defence failed.

(2.) With regard to the pictures and manuscripts we think that the contract was clearly one of deposit and that the suit is covered by Article 145 being one against the depository to recover the movable property deposited. The period for that suit provided by the Limitation Act is 30 years. This suit is therefore within time so far as the pictures and manuscripts are concerned Inasmuch as a demand for the return of the goods has been found to have been made and they are not forthcoming, the suit may be treated equally in the alternative, as one in tort, and Article 49 would apply to such a suit, being a suit for the return of specific property wrongfully detained. The period for that suit begins to run when the detainer s possession becomes unlawful Being lawful in its origin it does not become unlawful until a demand is made and rejected.

(3.) The answers to the questions in reference must, therefore, be as follows: (1) With regard to the 400 gold mohurs, Article 60 applies. (2) The answer to question No. 2 is: It is not a deposit with a banker, but either Article 49 or Article 145 is equally applicable. (3) The answer to question No. 3,--namely, is the order of the Hon ble the Chief Commissioner appointing the applicants to be the legal representatives of Musammat Chun Kunwar, not binding in the further proceedings in the case, and are the applicants not her legal representatives under Section 2(ii) of the Code of Civil Procedure, and the Hindu law?--is no. (4) The answer to question No. 4 is yes.