The Judgment of the Court was as follows:—
In this suit the Plaintiff prays for an order that the Defendant Prodymno Kumar Mullick may he directed to make over to him a certain ornament, being a nath, or nose ring, or in lien thereof may be directed to pay a sum of Rs. 25,000 being the value, according to the Plaintiff, of the said ornament.
The following genealogical table will explain the relationship of the parties herein:—
The Plaintiff is the executor of the last. Will and testament of his mother Srimati Saraswati Dassi who died on the 16th April 1916. She made her Will on the 9th May 1913. Besides the Plaintiff, as will be seen on reference to the genealogical table set out above, Saraswati Dassi had two other sons, Anatli Nath, who died on the 28th June 1900 leaving him surviving the Defendant as his only son (the latter having been born on the 20th November 1893), and Monmotho Nath who is still alive and who has given evidence in this case.
Saraswati Dassi's husband, Jadulal Mullick, died on 5th February 1894. The Plaintiff alleges that on the death of Jadulal, there was a partition of the properties left by him amongst his three sons and that some time in the year 1899 when the partition had been effected, but before the sons had separated from each other and had commenced to live separately, Saraswati Dassi deposited with her eldest son Anath a nath or nose ring consisting of two pearls, one pearl pendant, and a ruby, with a diamond suspender which belonged to her absolutely as her stridhan property. The date of the deposit according to Plaintiff is fixed in this manner. The Plaintiff states that during the pujas of 1899 he went to Kashmir and his elder brother Anath went to Almorah. After the pujas were over, they returned to Calcutta and on one occasion when they were seated in the old family dwelling-house of Jadulal Mullick, Anath, the eldest son, who had been complaining that his mother was giving away all her ornaments to her daughters and was not keeping any ornaments for the wives of her sons brought up the subject again, and upon that Saraswati said to Anath “As you have always been bringing up this subject, here is this nath which you had better hold in deposit for me.” Saraswati at that interview handed over the nath in question to Anath. It is alleged by the Plaintiff that upon the death of Anath in June 1900 his widow Srimati Kumudkumari Dassi took possession of the said nose ring on behalf of her infant son, the Defendant. It may be noted, in passing, that the Plaintiff had left the family dwelling-house in May 1899 and was staying in a house in Beadon Street and did not return to the family dwelling-house till the 28th June 1900, that being the date of the death of Anath. The Plaintiff alleges further that the Defendant who attained his majority in 1914 has since then been and is still in possession of the said nose ring and that although he has demanded from the Defendant the return of the said nose ring the Defendant has failed and neglected to comply with the Plaintiff's request. The Plaintiff obtained grant of the probate of the Will of his mother on 1st May 1919 but before that date he had addressed a formal letter of demand to the Defendant for the return of the nose ring in question, which demand was followed on 23rd April 1919 by the institution of the present suit.
The Defendant in his written statement denies the allegation that his grandmother Saraswati deposited with his father the nose ring in question. He states on information that on the occasion of his annaprasan ceremony, which took place sometime in May 1894, Saraswati made a gift of a nose ring of the value of Rs. 5,000 or thereabouts to his mother and that thereupon the nose ring became the absolute property of his mother. He further states that after the death of his father, disputes and differences arose between his mother and his grand-mother and in consequence thereof his grand-mother wrongfully demanded of his mother the return of the said nose ring, which demand was refused by his mother on the ground that the nose ring had become her absolute property by reason of the gift mentioned above. The Defendant also states that the Plaintiff's present action is barred by the statute of limitation.
On these pleadings the following issues were settled between the parties:
(1) Was there a deposit of the nath as alleged in para. 3 of the plaint?
(2) Was there a demand for the return of the said nath, and if so, was there a refusal to return it?
(3) Is the suit barred by limitation?
(4) What is the value of the said nose ring?
(5) Does the plaint disclose a cause of action against the Defendant?
Before I deal with the evidence in this case it may be stated at this stage that the Defendant has produced before me two nose rings (Exbts. 2 and 3), Exbt. 2 being alleged by him to be the nose ring which had been given by his grandmother to his mother on the occasion referred to above, and Exbt. 3 being a nose ring which his mother had apart from Exbt. 2. The Plaintiff after inspection of the nose ring (Exbt. 2) maintained that the nose ring which was deposited by his mother with Anath was not the same as Exbt. 2 produced by the Defendant. The Plaintiff lays no claim to the nose ring (Exbt. 3).
In his evidence, the Plaintiff stated that his mother, who had valuable ornaments of her own, made from time to time gifts of some of those ornaments to her daughters and also to the wives of himself and his two brothers. Saraswati Dassi had a nose ring which she considered to be the most valuable of her ornaments. As mentioned above, the eldest son Anath was apprehensive that this nose ring might be given away by Saraswati to her youngest daughter or to some one not belonging to Anath's branch of the family and he used to request Saraswati from time to time not to give away the nose ring in question to any body without his knowledge. The Plaintiff relates an incident which took place after the pujas of 1899 when, at an interview at which besides Saraswati, the persons present were the Plaintiff and Anath, Anath having renewed one of his usual requests about the nose ring, Saraswati felt annoyed and brought out the nose ring and handed it to Anath to be kept by him as deposit on account of Saraswati. The Plaintiff states that after the death of Anath which took place on 28th June 1900 he removed from his Beadon Street residence to the old family dwelling-house in Pathuriaghata Street. Sometime thereafter Saraswati enquired of Anath's widow about the nose ring whereupon the latter stated that she had the nose ring in her possession. After that, she brought it out and showed it to Saraswati. The Plaintiff stated that this incident took place in his presence in the Pathuriaghata house. The Plaintiff further alleged that Saraswati made demands from time to time for the return of the nose ring, but Anath's widow put her off on the pretext that inasmuch as her son, the Defendant, was still an infant she could not part with the nose ring till her son attained majority. The conversations between Saraswati and Anath's widow just referred to, according to the Plaintiff, took place in the latter's presence. The Plaintiff stayed in the old family dwelling-house from 28th June 1900 to 4th February 1911 when he removed to his present residence in Cornwallis Street. The Plaintiff stated that during this interval he saw the nose ring in the custody of the Defendant. One incident is referred to by the Plaintiff in some detail. He states that on one occasion during the rainy reason it became necessary to clean the pearls pendant to the nose ring. The nose ring in question had been locked up in a safe which it was difficult to open. The Defendant's services were requisitioned and he succeeded in opening the safe and the Plaintiff found that the nose ring with the pearls, the ruby, and the diamond suspender, was kept intact within the iron safe which had been opened by the Defendant. The Plaintiff speaks to the fact that his mother felt considerably annoyed owing to the refusal on the part of the Defendant's mother and on the part of the Defendant to return the nose ring in question and that in consequence of this irritation and annoyance she removed shortly after the 4th February 1911 to the Plaintiff's new residence in Cornwallis Street. She remained there continuously from that time till her death except that on festive occasions, etc., she used to visit her grand-child and her son Monmotho in the old Pathuriaghata house. The Plaintiff states that on one occasion a friend of the family, Rai Chandi Charan Chatterjee Bahadur, who had been invited to a ceremony at the Pathuriaghata house, came to the Plaintiff's residence and interviewed his mother. The occasion for the inter view was that this gentleman had made enquiries during his visit to the Patknriaghat a house about the cause of the absence of Srimati Saraswati therefrom and had been informed that inasmuch as her ornaments were being detained by the Defendant she was annoyed with the Defendant and for that reason would not come to the Pathuriaghata house. At the interview between Rai Chandi Charan Chatterjee and the Plaintiff's mother, it is stated that she complained about the detention of the nose ring, the subject-matter of the present suit, and thereupon Rai Chandi Charan Chatterjee offered to mediate and bring about a settlement of the matters in dispute between Saraswati Dassi, and the Defendant, and his mother. This, according to the Plaintiff, took place sometime in 1912. In 1915 the Plaintiff states that there was some talk of settlement between the Defendant and his mother on the one hand and Saraswati on the other, but apparently nothing came out of the negotiations. As I have said, Saraswati made her Will on 9th May 1913, and in cl. 1 of the Will she stated as follows:—
“Whatever jewelleries and cash money given by my husband Mahasoy I had, or whatever money has since accumulated, a large portion thereout has been expended and I have from time to time given to my sons and daughters valuable jewelleries, etc. Moreover there are jewelleries of Rs. 7,600 in cash as per Schedule given below in deposit with my youngest son and I have kept in deposit with my eldest son one pearl nose ring with pendant of the value of about Rs. 25,000. Now my youngest son and the heirs of my eldest son are not willing to return to me the said jewelleries or the money and have been treating me badly in various ways.”
The Plaintiff denies that the Defendant's annaprasan ceremony took place in May 1894 as alleged in the written statement and he maintains that the real annaprasan ceremony of the Defendant took place in 1898 and was celebrated in Tarakessur when the Defendant was about five years old. As regards the value of the nose ring the Plaintiff states that in the life-time of his father Jadulal, i.e, in 1893 the nose ring had been valued by the late Rai Bahadur Badridas Mukim at Rs. 25,000. It was again valued in 1907 when it was in the custody of Anath's widow. The occasion of the last valuation, according to the Plaintiff, is this: “My elder brother's widow asked me to value some of her ornaments, that is to say, Prodymno's ornaments, because the market was going up, and she was thinking what the valuation might be. The valuers were Arjnn Thakur, a jeweller, who used to call at the Pathuriaghata house, and one Johuri Pande, and the valuation was at forty five to fifty thousand rupees.” Rai Badridas and Arjun Thakur are said to be dead, and the whereabouts of Johuri Pande are now unknown.
In cross-examination the Plaintiff admitted that neither he nor his mother had any documentary evidence showing that he nose ring in question had been deposited with Anath as alleged by the Plaintiff. He admitted also that between the time when the Defendant attained majority and the date when Saraswati died, the latter had not made any demands of the Defendant for the return of the nose ring in question. His attention was drawn to certain entries in the account books of the family, and although he was unwilling to admit at first that the books which had been produced by Monmotho Nath Mullick on subpoena were the account books of the family, he admitted in the end that the account books showed that certain moneys had been spent in May 1894 on account of the annaprasan ceremony of the Defendant. He maintained, however, notwithstanding the entries to which his attention had been drawn, that the real annaprasan ceremony took place in 1898 as stated by him in examination-in-chief. He detailed the circumstances under which he saw the nose ring in the custody of the Defendant in 1911 and in support of his contention that the annaprasan ceremony of the Defendant could not have taken place in May 1894 as alleged by the Defendant he called his priest Rishikesh Haldar as a witness in this case.
Rishikesh stated that the Defendant's grand-father Jadulal having died in February 1894, the period of mourning called “Kal Asauch” had not expired in May 1894 and therefore the annaprasan ceremony of the Defendant in May 1894 was an impossibility. Rishikesh stated that his father Shibchandra Haldar was the family priest of the late Jadulal Mullick and his family. The eldest son of Shibchandra was Upendra Nath who gave evidence on the side of the Defendant. Rishikesh's point was that after the death of his father and as a matter of fact during the life-time of his father it was he and not Upendra who used to assist in the performance of religious ceremonies in the house of Jadulal and his family. Rishikesh stated that he went to Tarakessur with a family party in 1898 and assisted in the performance of the annaprasan of the Defendant at Tarakessur.
The next witness was Rai Chandi Charan Chatterjee Bahadur. He stated, as has already been indicated, that on one occasion in 1912 he had an interview with the Plaintiff's mother at the house of the Plaintiff. I need not repeat here the occasion for that interview but it is sufficient to state that according to Rai Chandi Charan Chatterjee he tried to persuade Saraswati Dassi to go back to the family dwelling-house. Saraswati would not go back unless and until her ornaments had been returned to her and these ornaments included the nose ring mentioned above. The witness stated that upon hearing what Saraswati had stated about the nose ring, he reported the substance of the conversation to the Defendant when the latter stated to him that he (the Defendant) did not know anything about the matter personally; all he knew was that he had heard that his father (Anath) left the nath in a box and his mother did not know to whom it belonged. This concludes the evidence on behalf of the Plaintiff.
The Defendant in his evidence stated that he attained his majority in 1914 and thereupon the estate of his father, both moveable and immoveable, was made over to him by his mother who had been appointed his guardian by this Court. His father's moveable estates as made over to him did not include the nose ring which the Defendant produced in Court, being Exbt. 2. He had seen the nose ring in the custody of his mother and at the time when he was required to file his written statement in this case he made enquiries of his mother. The result of the enquiry is stated by the Defendant in his written statement. He stated that he had unfortunately been deprived of the evidence of his mother as she suddenly died on 19th March 1921. He had no personal knowledge of the circumstances under which the nath came in the possession of his mother but since he was 15 or 16 years old, he came to know that there was a dispute about this nose ring between his mother and his grand-mother. The grand-mother was claiming the nath as her own and his mother was contending that the grandmother was not entitled to a return of the nath because the grand-mother had made a present of the nath to his mother. The Defendant was cross-examined at some length by Sir Ashutosh Chaudhuri as to why the evidence of his mother had not been taken on commission although the suit had been in the prospective list for a considerable period before the 19th March 1921. The Defendant gave what to my mind was a sufficient explanation as to why the evidence of his mother had not been taken on commission.
The Defendant called as his next witness Upendra Nath Haldar, the elder brother of Rishikesh Haldar. Upendra stated that his father Shibchandra used to officiate as priest in the house of Jadulal Mullick. On occasions when Shibchandra was absent and after Shibchandra's death Upendra used to officiate as priest. He said that Defendant's annaprasan ceremony took place at No. 7, Prosonno Kumar Tagore street, which, I understand, is the same house which is known as the Pathuriaghata house. The Defendant was then six months old and at the time of the annaprasan ceremony a nath was given by the Defendant's grand-mother to the Defendant's mother. This incident, according to Upendra, took place in his presence and in the presence of the Plaintiff and of Monmotho Nath Mullick. He further stated that at the time when the partition proceedings were going on, the Defendant's grand-mother had asked him to speak to Babu Gopimohun Mullick the father-in-law of Anath, in order that the father might speak in his turn to Anath's widow and induce her to return the nose ring in question. Upendra Spoke to Gopimohun Mullick at a sitting held by the Commissioner of partition and in the presence of the Commissioner. Gopimohun thereupon, it is alleged, went-away to make enquiry about the nose ring of his daughter, i.e, Anath's widow. He returned and stated to Upendra that his daughter (Anath's widow) claimed the nose ring in question as a gift by the grandmother (Saraswati) to her and would not on any account part with it. This message was subsequently communicated by Upendra to Saraswati. In cross-examination, he stated that it was customary on the occasion of an annaprasan ceremony that presents should be given to the mother of the child whose annaprasan was being celebrated.
On the day the Defendant was examined before me, the maternal grand-father of the Defendant Babu Gopimohun Mullick was in attendance in the Court house. Just as he was about to be called into the witness box, he met with an unfortunate accident in the corridor of the Court house and died. The further hearing of the case had to be adjourned on account of this incident and after an interval of several days, the hearing was resumed when the Defendant called as his last witness his uncle Monmotha Nath Mullick.
The latter stated that the nose ring, the subject-matter of the present litigation had not been given to the Defendant's mother in his presence. It will be remembered that Upendra had stated definitely in his evidence that the nose ring had been presented to the Defendant's mother in the presence of the Plaintiff, Monmotho and himself. Monmotho stated that during the life-time of Anath he had not heard anything about the deposit of a nath by Saraswati with Anath; but subsequently he came to know that his mother Saraswati claimed the return of the nath on the ground that she had deposited the same with Anath. The witness corroborated what had already been stated by Upendra about Gopimohun Mullick being asked to plead with his daughter (Anath's widow) for the return of the nath to Saraswati.
In this state of the evidence, it has been contended by Mr. H.D Bose, who appeared for the Defendant, that the Plaintiff's claim is barred by the law of limitation. His contention, shortly stated, was that on the Plaintiff's allegation there was a deposit by Saraswati of the nose ring with Anath; that Anath having died on the 28th June 1900 demands were made by Saraswati for the return of the nose ring; that on Anath's widow having refused to return the nose ring, the possession of the nose ring in the hands of the Anath's widow became wrongful; that the Defendant having attained his majority in 1914 obtained possession of the nose ring, and refused to return the nose ring and therefore continued to be in Wrongful possession of the nose ring and that in the circumstances, Article 145 of the Limitation Act had no application, and that the proper article to be applied to the facts of this case was Art. 49 of the Limitation Act. He referred me to the cases: Administra-General of Bengal v. Kristo Kamini , Ganginani Kondiah v. Gothipati Padda , Narmadabai v. Bharani Shankar , Gobind Prosad v. Patna Municipality , Ram Krishna v. Panaya , Gopalswamy v. Subramaniar , Balkrishnaou v. Narayanaswami and Gangabai Nabin Chander and argued that as in none of these cases, sec. 162 of the Indian Contract Act was taken into consideration, the matter was res integra and that I should hold that Art. 145 of the Limitation Act could not possibly apply to this case. I do not propose to discuss in detail the cases referred to above, for, to my mind, the Defendant's contention is unsustainable having regard to the express language of Art. 145. It is a special article provided for application in cases where the depositor seeks to recover from the depository moveable property deposited and time runs from the date of the deposit. Art. 49 is, on the other hand, a general article for the recovery of specific moveable property or for compensation for wrongfully taking or injuring or wrongfully detaining the same and time runs from the date when the property is wrongfully taken or injured or when the detainer's possession becomes unlawful. For the reasons given by Sir Arnold White, C.J, in the case Ganginani Kondiah v. Gothipati Padda , I am of opinion that the fact of the possession by the depository after demand being wrongful does not make Art. 49 applicable. All actions for the recovery of a deposit of moveable property are, by the express words of Art. 145, comprised within it and no exception is made as regards deposits where demand and refusal make the continuance of possession unlawful. (In passing, it may be observed that there is a reference to Art. 162 of the Contract Act in the case in Ganginani Kondiah v. Gothipati Padda at p. 60). The considerations arising from what obtains in England by reference to the case Bank of New South Wales v. 0'Connor are entirely out of place where you have a special article such as Art. 145. If is said however that as soon as Anath died, the relation of depositor and depository ceased and the person who obtained possession of the subject-matter of the deposit after Anath's death did not become the depository thereof and that therefore the Defendant is not a depository within the meaning of Art. 145 of the Limitation Act. There is a clear answer to this. As pointed out by Lord Macnaghten, the Indian Contract Act is not an exhaustive Code. Therefore it cannot be said that what is stated therein with reference to the question of bailments is exhaustive. Bailments, it is well known, are of two kinds, voluntary and involuntary. Assuming the Plaintiff's story to be true, so long as Anath was alive, the relationship was that of a voluntary bailor and a voluntary bailee. When Anath died and the subject-matter of deposit passed into the hands of his widow, the latter became an involuntary bailee. As long as the article was not returned to the true owner and it remained in possession of Anath's widow she remained an involuntary bailee thereof. The Indian Contract Act contains no definition of deposit; but there can he no doubt that if is one of the species of bailments dealt with in Chap. IX of the Act. For the purpose of the Limitation Act, I think involuntary bailees can be described as depositories. In this view also, Art. 145 would come into play. On these grounds, I am of opinion that the suit is not barred by the law of limitation.
It is common ground that this nose ring was stridhan property of Srimati Saraswati Dassi. The executor of Saraswati Dassi would therefore, primá facie, be entitled to the possession of the nose ring unless he is unable to make out the case of deposit with which he has come to Court or unless his title as executor is defeated by a paramount title in the Defendant.
Now before I examine the truth or otherwise of the Plaintiff's story of deposit I desire to advert for a second to the case set up by the Defendant. Now the Defendant's story about this nose ring having been given by the Defendant's grandmother to his mother rests on the evidence of Upendra alone. The Defendant has no personal knowledge about the matter as indeed under the circumstances he could not be expected to have any. His uncle, Monmotho Nath Mullick, has stated in definite and unambiguous language, that he was not present at the time when, it is alleged, the nose ring was given by Srimati Saraswati Dassi to Anath Nath's widow. Therefore, as I have said, the evidence so far as the question of gift is concerned, rests on Upendra's testimony. Having given to the matter my fullest consideration, I am unable to act on Upendra's evidence, because I do not consider the same to be satisfactory. The Plaintiff, however, is not entitled to judgment even if the Defendant fails to make out the case of gift alleged in his written statement. Now Mr. Bose has criticised the evidence of the Plaintiff at great length and he has pointed out that it is certainly very remarkable that the Plaintiff should have been present on the three material occasions when the matter of the nose ring in question was discussed. As regards the first occasion, Mr. Bose points out, that the Plaintiff had left the family dwelling-house on the 16th May 1899 and did not return to the family dwelling-house till the 28th June 1900. It is therefore very remarkable, argues Mr. Bose, that the Plaintiff should have been present at the Pathuriaghata dwelling-house after the pujas of 1899 when there was a discussion about the nose ring between Anath Nath and Srimati Saraswati Dassi and when Srimati Saraswati Dassi made over the nose ring to Anath to be kept by him as a deposit. In the second place, Mr. Bose points out that it is also remarkable that when after the death of Anath Nath Mullick the Plaintiff had returned to the family dwelling-house he should have been present at an interview between Saraswati Dassi and Anath Nath's widow when the question of the nose ring was under discussion. In the third place, Mr. Bose points out that it is remarkable that the Plaintiff should have been present when the iron safe in which the nose ring in question had been kept was opened by the Defendant. Now, having seen the Plaintiff in the box, I am unable to say that he is an untruthful witness. I ought to add that in my opinion the circumstances of the three occasions referred to above are not such as to lead to the necessary conclusion that the Plaintiff has deposed falsely. On the question of deposit, there is the Plaintiff's evidence which I have reviewed at length. The second point is this, it is clear that at any rate, after the death of Anath Mullick, Srimati Saraswati Dassi made consistent demands for the return of the nose ring. This is borne out by the evidence of Monmotho Nath Mullick. Thirdly, there is the statement in the Will of Srimati Saraswati Dassi. That statement cannot be used as evidence on behalf of the Plaintiff for the purpose of showing that the facts therein mentioned are true but it can be looked at for the purpose of finding out whether it is consistent with the assertions made from time to time by Srimati Saraswati Dassi in her life-time. I am not unmindful of the fact that the evidence of valuation as deposed to by the Plaintiff is such that it is impossible to place any reliance thereon. But the conclusion which I draw from the evidence taken as a whole is this that so long as Saraswati Dassi was alive, she had always made demands, for the return of the nose ring. As against that, there is the fact that whenever demands were made, Anath Nath's widow always asserted that the nath in question had been, given to her as a, gift and had not been deposited with Anath Natli Mullick. Contrasting the evidence on behalf of the Plaintiff with that on behalf of the Defendant I have come to the conclusion the on the question of deposit I have no other alternative but to accept as substantially true the Plaintiff's account. The Plaintiff, it is true, did not admit that Exbt. 2 was the nose ring which had been deposited by Srimati Saraswati Dassi with Anath Nath Mullick but Mr. Mitter who appeared for the Plaintiff conceded that, in the absence of reliable evidence as to the valuation of the nose ring, I must accept the Defendant's word as true that Exbt. 2 was the ring which belonged to Saraswati Dassi and which was in the custody of his mother. I accept the Defendant's evidence and I find that Exbt. 2 was the nose ring which was with, the Defendant's mother. There will, therefore, be judgment in favour of the Plaintiff for the return of the nose ring (Exbt. 2) to him. With regard to the costs of this suit, I have given the matter my best consideration. The Defendant, I think, has very frankly stated the circumstances which came to his knowledge in connection with the nose ring. He is in no way to blame for what has happened; there has been great delay in this matter and I think the Defendant ought not to be saddled in any way with the costs of this suit. Each party will pay his own costs. Exbt. 3 will be returned to the Defendant.
Mr. S.K Ghosh, Solicitor of Messrs B.N Basu & Co.) for the Plaintiff.
Mr. H.N Dutt, Solicitor for the. Defendant.
J.N.R
Suit decreed.