BRIJMOHAN SINGH Vs. BHAGWAT SINGH

JUDGEMENT

(1.) THE suit out of which this second appeal arises was instituted the plaintiff Heeralal (who died during the pendency of this litigation and is w represented by the appellants, his heirs) for Rs. 500/- on account of compensa-on for failure to return a 500 bore gun alleged to have been lent by the plaintiff to defendant's father Shri Sumersingh the then Maharaja of Thikana Indergarh. THE plaintiff's case, in short was that some time in 1941-42 he handed over a 500 bore gun belonging to him to Shri Sumer Singh for 'shikar'. In the course of hunt a man was accidentally killed with the result that a criminal case was registered against Shri Sumersingh as well as his companions, who had accompanied him for the sport, and the plaintiff's gun was also confiscated by the Government of Madhya Pradesh in whose territory the accident had taken place. THE gun was ultimately returned by the Government some time in 1950 by which time Shri Sumer Singh had expired. His estate Thikana Indergarh was brought under the management of the Court of wards as his son Shri Bhagwat Singh, the defendant was then a minor. It is stated that the Commissioner, Jagir, ordered return of the gun to the plaintiff on the Collector's report dated 28-8 1950. However, this order was not communicated to the plaintiff. THE plaintiff goes on to state that on having come to know of the order of return of the gun to him, he submitted an application to the guardian of the defendant on 59-1957 for handing over the gun to him. THE guardian made enquiries from the subordinate Officers and the Kamdar Thikana made a report on 23-1-1958 that the plaintiff's gun had been received in the Thikana, and the same may be returned to him. On submission of this report the guardian directed the same day that the gun may be returned to the plaintiff. It is alleged that the plaintiff was called to pick up his gun from the store of arms of the defendant, but the same was not found there. It is further alleged by the plaintiff that thereafter on 14. 4. 1959 the guardian of the defendant filed the papers and thereby impliedly refused to return the gun to the plaintiff or in the alternative to pay compensation for the same. On these facts the plaintiff prayed that a decree for return of the gun may be passed in his favour or in the alternative the defendant may be directed to pay Rs. 500/- to the plaintiff by way of compensation for the same.

(2.) SINCE the defendant was a minor his guardian filed written statement and denied the plaintiff's suit altogether.

(3.) ON the other hand in Chaturgan vs. Shahzady (7) relied upon by the learned counsel for the respondent, it was held that the word "deposit" does not cover the transaction in the nature of a loan, and it was observed that when 'a' lent some ornaments to 'b' to be used by the latter in a religious procession, the transaction was a loan and not a deposit. A different interpretation on the word 'deposit' seems to have been put in this case from the one put by the learned Chief Justice of the Madras High Court in Kishtappa vs. Lakshmi Ammal (l ). However, I do not think it necessary to enter into this controversy as I shall presently show that the suit is within limitation under Art. 49. True it is that Art. 49 was not applied in the Oudh case because the property was not detained by the defendant at all as the same had been stolen from his possession before he had an opportunity of returning it. In these circumstances the cause of action was held to have arisen to the plaintiff when to his knowledge the defendant reported to the police the theft of the articles. In the facts and circumstances of the case, therefore, the learned Judges applied the residuary Article 15 and held that the plaintiff should have filed the suit within reasonable time. It was observed that it was clearly unreasonable for a person who had borrowed ornaments for use in a ceremony to detain then after the ceremony had been completed and the owner had demanded their return.