PHILIPPOSE Vs. CHERU
LAWS(KER)-1963-10-22
HIGH COURT OF KERALA
Decided on October 28,1963

PHILIPPOSE Appellant
VERSUS
CHERU Respondents


Referred Judgements :-

THE MADRAS HIGH COURT,M. KUPPUSWAMI MUDALIAR V. S. PANNALAL SOWCAR [REFERRED TO]


JUDGEMENT

- (1.)THE 1st respondent filed a suit for the return of a 12 h. P. Hornsby oil engineer in the alternative for its price. THE appellant resisted the suit claiming that the engine was his, that he already sold it as mere scrap for Rs. 400/- and that the suit was barred by limitation. THE lower court dismissed these contentions and granted a decree for Rs. 1200/-; and the appeal is directed against that decree.
(2.)THE first question for consideration is whether the engine belonged to the appellant. THE engine originally belonged to the appellant and Iyporu, who pledged it to the plaintiff's father under Ext. B in 1105 for Rs. 1000/ -. In 1114 defendant and Iyporu assigned the engine under Ex. C for Rs. 1000/- to the plaintiff. On the same day defendant executed the lease deed, Ex. A, and took the engine back. According to the defendant, this assignment was a mere paper transaction to satisfy the plaintiff to advance money for the purchase of another 16 H. P. engine, which was also purchased in the name of the plaintiff. THE defendant pleaded further that on the same day another lease was executed by Iyporu for the 16 H. P. engine. Subsequently, for the arrears of rent of the 16 H. P. engine a suit was filed against Iyporu and the engine was sold by private sale and thereby the plaintiff's entire claim was satisfied and the 12 H. P. engine was allowed to be retained by the defendant. THE 16 H. P. engine was purchased by Pw. 3; and he does not support the case of the defendant that the 12 H. P. engine was also released on that date. THE person alleged to have mediated is not before court; the lease, Ex. A, was not returned to the defendant; nor Was anything taken from the plaintiff to show that the matter was settled and the plaintiff agreed to return the lease deed. In these circumstances, the case that the engine belonged to the defendant has only to be rejected.
The next question is whether the suit claim is barred by limitation. The learned Subordinate Judge observes that either Art. 48 or art. 49 of the Limitation Act applies. I do not think that Art. 48 applies to the present case. Art. 48 prescribes the period of limitation for a suit for specific movable property lost, or acquired by theft or dishonest misappropriation or conversion; or for compensation for wrongly taking or detaining the same. In this case it cannot be said that the engine was lost by plaintiff, or acquired by defendant by theft or by dishonest misappropriation or by conversion. On the other hand, the provision applicable is Art. 49, which applies to a suit for other specific movable property or for compensation for wrongfully taking or injuring or wrongfully detaining the same. Here, specific movable property, namely the engine, was handed over to the defendant by the plaintiff and thus the former came into lawful possession of it. Now the plaintiff is claiming return of the engine or compensation for Wrongfully detaining the same. Therefore, it is Art. 49 that applies and the period prescribed thereunder is three years from the date when the detainer's possession of the property becomes unlawful. The question for consideration then is as to when the possession of the defendant became unlawful.

The appellant contends that in the pleadings and in the evidence of the plaintiff his case is that the engine was due to be returned on 5th Dhanu 1125; and the suit filed more than three years thereafter is barred by limitation. The plaintiff, on the other hand, contends that he came to know about the conversion or the sale of the engine only when he received the notice of the appellant dated 4th November 1950 and the suit, having been filed within three years of that date, is within time. He has a further case that the engine is still with the defendant and the alleged sale to Sankaran Nair is false.

(3.)AS a rule it can be stated that if a person comes into possession of a movable lawfully agreeing to return it on a particular date or on the happening of an event or on the satisfaction of certain conditions, by the mere failure to return it his possession does not ipso facto become unlawful. A demand and a refusal to return are necessary and the possession will become unlawful only on such refusal. The decision of the Allahabad High court in Laddo Begam v. Jamal-ud-din (ILR. XLII All. 45) may be referred to on this point. Some movables were handed over to the defendant to be returned after the expiry of the period of iddat and they were not returned. The allahabad High Court held that unless a demand was made and the defendant refused to comply with it, limitation did not commence. Reference was made in that case to the decision of the Madras High Court in Gopalaswami Ayyar v. Subramania Sastri (ILR. XXXV Mad. 636 ). Movable property was entrusted to be returned on the fulfillment of certain conditions and it was not so returned. The Madras High Court held that the possession of the defendant after the due date would be deemed to be possession on behalf of the plaintiff until the defendant refused delivery and mere silence on demand would also not constitute such refusal. The same principle was reiterated in the later decision of the madras High Court, M. Kuppuswami Mudaliar v. S. Pannalal Sowcar (AIR. 1942 Mad. 303), by Somayya, J.
The learned advocate of the appellant points out that in the last of the cases cited there is no indication that the defendant agreed to return the movable on particular day and therefore that decision will not apply to the present case. He contends further that the moment the cause of action for the return of the movable arises, limitation also commences. In other words, applying to the case before me, the argument is that the defendant agreed to return the engine on 5th Dhanu 1125 and the cause of action for claiming the engine back also arose on that day, with the result that limitation also commenced to run from that date. The first part of the contention is met by the decision of the Allahabad High Court already referred to and the decision of the Madras High Court in Gopalaswami Ayyar's case. The latter part is also met by the reasoning in the same decision of the Madras high Court that the possession of defendant subsequent to the due date was only possession on behalf of the plaintiff and was not unlawful. More light will be thrown on this question if reference is made to another decision of the Madras high Court, namely, Subbaka v. Maruppakkala (ILR. XV Mad. 157 ). In that case the suit was for the return of title deeds, which were with the defendant after the mortgage was redeemed. Their Lordships held that detention of the title deeds after the redemption was not unlawful, though the plaintiff had a legal right to demand delivery, and detention after a lawful demand. alone was illegal detention. Even though the plaintiff had a cause of action or right to demand the return of the engine on 5th Dhanu 1125, the possession of the defendant subsequent to that date did not ipso facto become unlawful. The cause of action was for demanding the return of the engine and until the demand was made and the return refused, the detention did not become unlawful. Thus, limitation in this case could have started only on 4th November 1950; and the suit filed within three years of that date is not barred by limitation.

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