JUDGMENT 1. The Plaintiff in this case is the executor of the Will of one Kula Kamini Dassi, who died in July 1898. It is pleaded that before her death she deposited Government Promissory Notes for Rs. 3,500 with the Defendant, and that after her death similar notes for Rs. 1,500, belonging to her estate, came into the hands of the Defendant, who has been repeatedly requested to return them but in vain. This suit in the form that it ultimately took was one for the recovery of those notes or, in the alternative, for their value. The Subordinate Judge has decreed the claim for the notes of Rs. 3,500, but has held that the claim with respect to the notes of Rs. 1,500 is barred by limitation. The Plaintiff appeals with respect to this portion of the suit. 2. It is first argued in appeal that the evidence shows that the notes for Rs. 1,500 were deposited with the Defendant by Kula Kamini Dassi before her death. It is sought to explain the allegation in the plaint that the notes came into the Defendant's hands after the death of the testatrix, by the assertion that the Plaintiff was a Subordinate Judge, who had to live at distant places, in the exercise of his duties, and was not in a position when he filed the plaint, to know the real facts. This excuse, however, is not convincing. The supposition that the notes were deposited before the death of Kula Kamini is based on a statement of the Plaintiff's daughter as, to the circumstances under which the notes came into the Defendant's hands. The Plaintiff's daughter is married to the Defendant's Bon, but has been living for the last five years in her father's house and it is evident from the correspondence that has been produced that she usually lived with her father. In these circumstance's it seems to us unreasonable to suppose that when he filed the plaint the Plaintiff should not have ascertained what took place in the presence of his daughter at the time of Kula Kamini's death six years before. 3. Nor does the statement on which the Appellant relies go very far. It is to the effect that 15 days before her death Kula Kamini made over the notes to the witness's husband who at the same time made them over to the Defendant. 3. Nor does the statement on which the Appellant relies go very far. It is to the effect that 15 days before her death Kula Kamini made over the notes to the witness's husband who at the same time made them over to the Defendant. This statement may justify the inference that Kula Kamini probably was a party to the handing over of the notes to the Defendant, but a mere inference of probability will not avail against the positive statement in the plaint. Moreover it appears from Ex. 3, a letter written by the Defendant to the Plaintiff in December 1898, that the notes were not a deposit by Kula Kamini. In that letter he says: " There are Government promissory notes for Rs. 1,500 only. I shall take with me the numbers when I go. And during her life-time I took from her Government promissory notes of the nominal value of Rs. 3,500." At that time the parties were on good terms and the Defendant had evidently not conceived the idea of misappropriating the money. If the notes for Rs. 1,500 had been a deposit, like the notes for Rs. 3,500 he would doubtless have said so. We are satisfied that these notes came to the Defendant's hand after the death of the testatrix, as is stated in the plaint, and were not deposited by her. Accordingly the Appellant's first contention fails. 4. Secondly, it Is argued that the case falls under Art. 49 of the second schedule to the Limitation Act, 1877, being a suit for the recovery of specific moveable property, wrongfully detained. We think that this contention should prevail. It appears that two years after Kula Kamini's death, the Defendant pledged these notes to a third person. The learned Subordinate Judge has held that this article applies, but that as the possession of the Defendant was unlawful from the time of Kula Kamini's death the suit is barred, by time. It is argued that the time will run from the date when the Defendant refused to deliver the notes on the Plaintiff's demand, and that even the fact that the Defendant has unlawfully pledged the notes does not affect the Plaintiff's right to three years' time from the date on which delivery was refused. It is argued that the time will run from the date when the Defendant refused to deliver the notes on the Plaintiff's demand, and that even the fact that the Defendant has unlawfully pledged the notes does not affect the Plaintiff's right to three years' time from the date on which delivery was refused. We think this view is correct and is in accordance with the decision in Wilkinson v. Verity L. R. 6 C.P. 206 (1871). In that case goods were left in the possession of the Defendant and he sold them. And it was held that the Plaintiff was entitled to sue, at election, either for a wrongful parting with the property, or to wait until there was a breach of the Defendant's duty as bailee of the goods by refusal to deliver them up on request. This is exactly what has happened in this case except that here the goods were not sold, but only pledged and could have been redeemed and restored to the Plaintiff's possession at any time a circumstance which makes the present case stronger than the case referred to. The notes were left in the Defendant's possession by the Plaintiff's permission and his original possession was not unlawful. The evidence allows that he held possession of these notes In trust for the Plaintiff. His possession became unlawful when he detained them, that is to say, when he refused to deliver them up on request. And the fact that the Defendant has parted with the goods and cannot perhaps strictly be said to be detaining them himself is no answer to the suit, under the decision quoted above, in which the Court approved of the principle that " a man entrusted with property for safe custody cannot better his position by wrongfully parting with possession of it, but must be answerable as if he retained the possession," according to the maxim " qui dolo desierit possidere pro possidente damnatur." 5. Exs. 7 and 10 show that the Defendant denied liability on the 7th November. 1902 and the correspondence generally shows that up to that date there was no definite refusal by the Defendant to return the notes. This date is well within three years of the institution of the suit. Exs. 7 and 10 show that the Defendant denied liability on the 7th November. 1902 and the correspondence generally shows that up to that date there was no definite refusal by the Defendant to return the notes. This date is well within three years of the institution of the suit. We think therefore that the finding of the learned Subordinate Judge that this portion of the claim is barred by limitation cannot be sustained, and as he has found that the Defendant would certainly be liable if the claim were not barred by limitation, it follows that the Plaintiff is entitled to a decree for the whole sum of Rs. 5,000 with Interest at the rate allowed by the Subordinate Judge and costs of both Courts. In this Court where the Respondent has not appeared we assess the costs at 150.