Calcutta High Court
Biddomoye Dabee Dabee vs Sittaram on 24 July, 1878
Equivalent citations: (1879)ILR 4CAL497A
JUDGMENT Richard Garth, C.J.
1. We are of opinion that, under the circumstances stated, the plaintiff is entitled to judgment in both cases.
2. During the plaintiff's absence from home the jemadar Sheoruttun was left in charge of her house and property as her servant. He was never possessed of the articles in question in any other character. He had only the bare custody of them, and had no authority to deal with them in any way whatever. We do not consider that such custody is "possession" within the meaning of the Contract Act, Section 178.
3. But even if the jemadar could be considered as having taken the articles into his own possession, we think the case is clearly within the scope of the second proviso to hat section. The moment that they were removed by him from he box in which they were placed, for the purpose of being pawned to the lawful owner.
4. In the case of Greenwood v. Holquette (10 B.L.R., 42) where a piano had been hired from the plaintiff with an option of purchase and the hirer sold the piano to the defendant before he had exercised that option it was held by Sir R. Couch, C.J., and Phear J., that the defendant was liable in trover to the plaintiff, although it was found that he acted in perfect good faith. The Court thought that the possession, which was acquired by the hirer of the piano was not such a possession as was contemplated by Section 108 of the Contract Act.
5. That case will he found a much stronger one than the present, because there the hirer of the piano was undoubtedly entitled to the possession of it for the time in his own right; whereas here, the possession of Sheoruttun was in fact the possession of the plaintiff. The plaintiff in the first suit will be entitled to judgment for Rs. 490, and in the second suit for Rs. 150.