C. M. NAYAR. J. ( 1 ) THE plaintiff moved this Court in December 1977 for permission to file the suit as an indigent person underthe provisions of Order 33 Rules 1 and 2 of the Code of Civil Procedure. The Court granted permission by order dated 22/03/1982. The plaintiff, as a consequence, filed a suit for recovery ofgold ornaments weighing 480 Tolas i. e. 5596. 80 grammes depositedin safe deposit box under receipt No. 17/47 dated 3/06/1947 withthe defendant. Bank or in the alternative for the price thereof amounting to Rs. 3,72,400. The plaint was subsequently amended and theplaintiff claimed recovery of the gold ornaments/jewellery or pricethereof as on the date of the judgment/decree in the suit. ( 2 ) THE brief facts of the case are that late Rai Sahib Mool Chand,father of the plaintiff and defendants 3 to 5 and husband of Smt. Washeshran Devi, who was arrayed as defendant No. 2 but was deleted by the Court s order as she had expired during the pendency ofthe suit was an eminent civil lawyer of the city of Peshawar (nowforming part of Pakistan) in 1947. The said Rai Sahib Mool Chandhad a very lucrative practice as an Advocate and was a regular income-tax payer. He was considered to be one of the wealthiest person inthe city of Peshawar and after migrating from Peshawar in 1947 toindia with his family at the time of partition died on 30/04/1953in Delhi leaving behind the legal representatives/heirs entitled to hisestate as referred to above. Rai Sahib Mool Chand entrusted forsafe custody a sealed box containing 500 Tolas of Gold ornaments/jewellery belonging to him with the then The Punjab National Bankltd. , Peshawar Cantt. Branch, Peshawar of which defendant No. 1is the successor according to the Banking Companies (Acquisition andtraisfer of Undertaking) Act, 1969. The gold ornaments/jewelleryallegedly weighed 500 Tolas and were placed in the box by the latefather of the plaintiff Rai Sahib Mool Chand and his mother Smt. Washeshran Devi with a list of the said articles of jewellery thereinand the same was locked by the deceased himself after which the boxwas wrapped with a white cloth and duly stitched by defendant no. since deceased, and sealed with "lac" (sealing wax) by the deceasedafter which a monogram "m. C. R. S. " i. e. "mool Chand Rai Sahebwas embossed on the seals of the said box in the presence of defendantno. 2. Before handing over the said box to the then The Punjabnational Bank Ltd. . Peshawar Cantt Branch, Peshawar, the deceasedwrote his name on the said box. The box was given/entrusted to thebank under receipt No. 17/47 dated 3/06/1947 and the aforesaidbank accepted it for safe custody as a part of its business activitiesfor fee paid by the deceased to the said Bank for safe custody. Thedetails of the jewellery as handed over to the Bank are referred to inparagraph 3 of the plaint which may be reproduced as follows : (i) S. No. Description of articles Quantity Weight in Tolas1. Gokhroos 2 252. churian 8 403. Bangle 8 54. Other Bangles 12 75. Phul-Churian 2 56. Lacche 2 67. Pocchian 2 68, Janjeer 1 169. Necklace 1 910. Other type Necklace 1 1011. Chain I 312. Small Necklace 2 313. Lammi 1 614. Chhote Kare 2 315. Children s Necklaces 6 716. Kanon-ke-Magar 2 517. Chain of wrist watch 1 218. Buttons 4 319. Studds 2 120. Finger rings 2 221. Bittion-ke-Har 1 3022. Pound-ke-Har 1 2023. Separate Pounds - 1024. Sets of ear rings 3total 250tolas (ii) In addition to above mentioned articles, 250 Tolas of Goldornaments/jewellery were also lying in the Box containing some brokenitems and some concrete items of gold ornaments/jewellery, Sone-ka-pasa, weighing 25 Tolas, bangles weighing 30 tolas, Kare 13 Tolasand Bangles of 14 Tolas with 20 Bitties. . . . . . . . . . 200 Tolas (iii) Other miscellaneous items of Gold ornaments 50 Tolastotal 500 Tolas (3) -- ( 3 ) IN paragraph 4 it is stated that after depositing the sealed boxcontaining the aforesaid jewellery/gold ornaments father of the plaintiff came to Simla Hills in July, 1947 on a visit and stayed there for amonth. In the meantime the communal disturbances took placeand consequently said Rai Sahib Mool Chand could not return topeshawar to collect his paraphernalia/belongings lying in the paratialbungalow situated at No. 5 Kitchner Lane, Peshawar Cantt includingthe safe deposit box deposited with the then The Punjab Nationalbank Ltd. , Peshawar Cantt Branch, Peshawar. In the meantime the communal disturbances took placeand consequently said Rai Sahib Mool Chand could not return topeshawar to collect his paraphernalia/belongings lying in the paratialbungalow situated at No. 5 Kitchner Lane, Peshawar Cantt includingthe safe deposit box deposited with the then The Punjab Nationalbank Ltd. , Peshawar Cantt Branch, Peshawar. ( 4 ) AFTER partition of the country in August, 1947 the above saidbox along with safe deposit boxes of several other depositors wereremoved to Rawalpindi Branch of the above Bank as per letter dated 30/07/1950 received by the Plaintiff s father. From Rawalpindithe box along with other safe-deposit boxes of other depositors wereremoved to the Lahore Branch of this Bank as per letter dated 4/08/1950. Thereafter, the said box remained throughout in the physical custody of the Bank at Lahore till the same was brought to Indiaalong with other boxes of other persons in the end of November, 1961under the Indo-Pakistan Movable Property Agreement of 27/06/1950 between the Government of India and Government of Pakistanby the Ministry of Rehabilitation, Government of India, New Delhi. There had been active correspondence by the father of the plaintiffwith the Head office of the aforesaid Bank at Delhi regarding thedelivery of his box to him. Similarly, the father of the plaintiff hadbeen in correspondence with the High Commissioner of India inpakistan, the Custodian of Evacuee Property at Lahore and Branchoffices of the said Bank at Rawalpindi and Lahore. Rai Sahib Moolchand, however, expired at Delhi on 30/04/1953 and thereafterthe plaintiff and his mother Smt. Washeshran Devi remained in correspondence with the Head office of the Bank regarding the deliveryof the box and also with the High Commission of India and Pakistan, Karachi. The plaintiff received a letter No. DMP/3469 dated24/ 26/12/1959 from the Head officc of the Bank-that thesafe deposit of plaintiff s father was lying with the Bank duly sealedand that charges on that articles will be determined as soon as sucharticles are allowed to be released. The contents of the letter as referred to in paragraph 5 of the plaint may be reproduced as follows : "dear Sir,reg : Safe Custody Box of late R. S. Pt. Mool Chand,advocate, of Peshawar. The contents of the letter as referred to in paragraph 5 of the plaint may be reproduced as follows : "dear Sir,reg : Safe Custody Box of late R. S. Pt. Mool Chand,advocate, of Peshawar. With reference to your letter dated 15-12-1959 we have toadvise you that so far as the release of the safe custodyarticles lying in Pakistan is concerned there is no changein the position already advised to you in our previousletter No. 921 dt. 1-4-59. We may, however, e. dd that sucharticles are now lying in Pakistan with the Bank dulysealed by the representatives of the Government of India,custodian of Evacuee Property, Lahore and our Lahoreoffice. The charges on such articles will be determinedas soon as these are allowed to be released. Pleasenote and oblige. Yours faithfully,sd/- B. K. Sharma,manager"similarly, the plaintiff received another letter No. PTL/pnb/2/58/1029dated 27/01/1959 from the Property Field Officer of the Highcommission of India in Karachi intimating that the safe deposit ofrai Sahib Mool Chand had been jointly sealed by the representativeof that Mission, the custodian of Evacuee Property and the Bankconcerned and intimation will be sent as and when the boxes will beallowed to be removed to India. ( 5 ) AFTER the partition of the country the Government of Indiahad called upon the safe deposit owners to submit their original deposit receipts and the list of their contents and the mother of the plaintiff, Smt. Washeshran Devi accordingly had submitted the list of contents in the said box as stated in paragraph 3 of the plaint which hasbeen reproduced above in the year 1955-56. Carbon copy of thelist in Hindi which was sent at that time was placed on record. Similarly English translation was also prepared. Carbon copy of thelist in Hindi which was sent at that time was placed on record. Similarly English translation was also prepared. ( 6 ) THE facts leading to the subsequent arrival of the depositbox of the plaintiff along with other boxes to India as well is the letterdated 22/05/1962 written by Shri Dharam Vira, the then Secretaryto the Government of India, Ministry of Rehabilitation to the Generalmanager of defendant Bank bringing to his notice the missing jewel-lery from the safe deposits and lockers are detailed in paragraphs 7and 8 of the amended plaint which may be reproduced as follows ; THAT the safe deposit box was brought to India by theministry of Rehabilitation, Government of India underthe Indo Pakistan Moveable Property Agreement ofjune, 1950 alongwith safe deposits of several other depositors pertaining to the then The Punjab Nationalbank Ltd. , and other Banks and since the plaintiff remained in active correspendence with the Ministry ofrehabilitation, New Delhi, the Ministry vide Letterno. 5 (225)/lsd/61 dated 3-2-1962 informed the plaintiffthat the safe deposit box of Shri R. S. Mool Cnand deposited with the then The Punjab National Bank Ltd. ,-Peshawar Cantt. Branch, Peshawar, had been receivedin India and the delivery of the said box can be obtainedafter the Ministry is satisfied as regards the Legal heirsof late R. S. Mool Chand and that a sum of Rs. 25 isrequired to be deposited in Government Treasury asbank s charges for deposit, transport and departmentalcharges on the said box and the same was duly depositedand other legal formalities required by the Ministry ofrehabilitation was also complied with to their satisfaction. As a result thereof, the Ministry of Rehabilitation, New Delhi, informed the mother of the plaintiffthat she would come to the Reserve Bank of India inmay, 1962 for taking the delivery of the said box. Theplaintiff accompanied her mother to the Reserve Bankof lndia. Parliament Street, New Delhi on the fixed dateand when the said box was produced, it was found tohave a different wrapper having the seals of the thenthe Punjab National Bank Ltd. , Lahore and the originally wrapper and the seals of plaintiff s father werenot visible and found on the said box except the Bank sown wrapper and seals. Parliament Street, New Delhi on the fixed dateand when the said box was produced, it was found tohave a different wrapper having the seals of the thenthe Punjab National Bank Ltd. , Lahore and the originally wrapper and the seals of plaintiff s father werenot visible and found on the said box except the Bank sown wrapper and seals. The plaintiff s mother on liftingthe box also noticed that the box was otherwise light inweight, she therefore, refused to accept the delivery ofthe said box on the grounds that the box was not foundin the condition in which it was deposited with the saidbank at Peshawar Cantt and that the box had a newcloth wrapper hearing the seals of the The Punjabnational Bank, Lahore, and also that the box was lightin weight. THAT after refusing delivery of the said box, the plaintiff s mother sent a strong lepresentation to thethen secretary to the Government of India, Ministry of Rehabilitation, New Delhi on the 30/05/1962 complaining about the changed condition of thebox offered for delivery and requested for necessaryaction in the matter. The Ministry of Rehabilitationaddressed a letter to the then General Manager of thethen Punjab National Bank Ltd. , Parliament Street,new Delhi vide letter No. 5 (225) LSD/61 dt. 5th June,62 with a copy endorsed to the plaintiff s motherasking the said Bank that the heirs of deceased depositorlate R. S. Mool Chand had refused to accept the delivery of the Box deposited by late R. S. Mool Chandon the ground that the safe deposit box was notfound in the condition in which the same box was deposited with the Bank and that the Bank shouldreply to the party direct under intimation to thatministry as to what action they propose to take on thecomplaint. Surprisingly the Head Office of thesaid Bank chose to keep silent and no reply was sentto the plaintiff s mother s representation dated 30thmay. 1962. It is very necessary to mention that oneletter was also written by Shri Dharam Vira the thensecretary to the Government of India, Ministry ofrehabilitation to the General Manager of the Punjabnational Bank Ltd. on 22/05/1962 which is reproduced below:-Do"no. 3 (2)/lsd/62new Delhi, 22/05/1962. My dear- -. . 1962. It is very necessary to mention that oneletter was also written by Shri Dharam Vira the thensecretary to the Government of India, Ministry ofrehabilitation to the General Manager of the Punjabnational Bank Ltd. on 22/05/1962 which is reproduced below:-Do"no. 3 (2)/lsd/62new Delhi, 22/05/1962. My dear- -. . AS you know, under the moveable property Agreementbetween the Government of India and Pakistan, contents of lockers and safe deposits of displaced personsheld with banks in the two countries have been transferred from one country to the other at Governmentlevel. Accordingly, 47 safe deposits belonging to displaced persons held with your brandies in Pakistanwere handed over to the representatives of Governmentof India, through the Custodian of Evacuee property Pakistan, by the Lahore Branch of your Bankon the 30/11/1961. 2. it was observed that all the safe deposits handed over byyour bank had new packings and bore the seals of yourbank. 3. We have since delivered 12 safe deposits transferred byyour Bank to the Claimants. Unfortunately, in tencases the depositors have complained that the wholeor substantial part of the jewellery from their safe deposits were found missing. In some cases, as reportedto this Ministry, it was found that all the original sealsof the depositors had been broken and the newly wrapped packages contained nothing except the originalpacking cloth and/or a few old things. In certain cases the depositors have written to your bank about their missing jewellery and in reply they have beeninformed that due to passage of time, dampness, whiteants etc. the original wrappers as wall as the sealsaffixed thereto had been worn out and, therefore, thebank, as a measure of prudence, put new wrappersand seals over the safe deposits and further that thebank is not responsible for the contents of the safedeposits. 4. Since the percentage of complaints is very high (10 outof 12), the matter needs serious consideration. Ordinarily, the bank should not have removed or coveredthe orginal wrappers without securing the approval ofthe depositor and if the circumstances necessitated suchaction, they should have done so in presence of the representatives of Government of India and Pakistan. The omission has given the depositors a reasonable cause of grievance and some sort of enquiry is called forin regard to the missing articles. 5. We shall be grateful if you will kindly let us have yourviews in the matter at an early date. YOURS Sincerely,sd/- (Dharam Vire 22-5-62)356shri R. L. Tuli. The omission has given the depositors a reasonable cause of grievance and some sort of enquiry is called forin regard to the missing articles. 5. We shall be grateful if you will kindly let us have yourviews in the matter at an early date. YOURS Sincerely,sd/- (Dharam Vire 22-5-62)356shri R. L. Tuli. General Manager. The Punjab National Bank Ltd. , H. O. Parliament Street New Delhi. The Bank did not reply to the above letter and keptsilent, It is submitted that one Shri Vidya Prakashsethi had also deposited a box in the said Bank at Rawalpindi for safe custody and since the seals of the saidbox of Shri Sethi were also found to be broken and tempered and contents removed, said Shri Sethi filed asuit against the said Bank which was decreed in RFA (O. S.)No. 4/70 entitled : Shri Vidya Prakash Sethi Vs. Punjab National Bank, by the Division Bench consisting of Hon ble Mr. Justice P. S. Safeer and Hon blemr. Justice V. S. Deshpande on 28. 11. 1975, of the Highcourt of Delhi. Thus the points in issue between theplaintiff and the defendant No. 1 are the same which hadbeen adjudicated by their Lordships of High Courtof Delhi who delivered the judgement on 28. 11. 1975. A certified copy of the said judgment is place on recordof this case. The plaintiff also insisted that in view ofthe changed condition of the Box,an open deliverybe given. Since the Defendant No. 2. mother of the plaintiff refused to accept the delivery on the ground thatthe box was not found in the same condition in which it was deposited by her late husband, therefore,the Ministry of Rehabilitation was left with no alternative but to handover the said box to the Head Officeof the said Bank at Parliament Street, New Delhiand informed that the said Bank be approached regarding the box. The plaintiff also insisted that in viewof the changed condition of the box, an opendelivery be given but the said Bank refused to give opendelivery and replied that the box is merely lying withthem for delivery to the rightful claimants. The saidbank further insisted to bring a letters of Administration qua the said box from a Competent Court of Lawnotwithstanding the Ministry of Rehabilitation wassatisfied regarding the veracity of the legal heirs of later. S. Mool Chand. The saidbank further insisted to bring a letters of Administration qua the said box from a Competent Court of Lawnotwithstanding the Ministry of Rehabilitation wassatisfied regarding the veracity of the legal heirs of later. S. Mool Chand. The Manager of Pakistan Banrchof said Bank wrote to the plaintiff vide letter No. DMP/cus/2 dt. 2nd January, 1969 to obtain letters of Administration but did not agree to give open delivery ofthe said box. In probate case No. 72/70. before thelearned Distt. Judge, Delhi the plaintiff s mother wasthe petitioner, the said box was ordered to be producedin the Court of the District Judge, Delhi which wasbrought by Shri B. K. Sharma, Accountant. Pakistanbranches, of the said Bank in the Court. The said boxwas ordered to be opened in presence of the parties,her counsel and a jeweller of Chandni Chowk, Delhi. The cloth wrapper put by the Lahore Branch showingthe seals of the Lahore Branch was removed, the saidbox was found unlocked and unsealed with a worn outcloth over it. The certified copy of the proceeding?in the above case is enclosed with this petition". ( 7 ) IN view of the above averments the plaintiff has contendedthat the box was found tempered with and its contents wereremoved and jewellery of 480 Tolas was found missing from thebox. The defendant Bank refused to give open delivery of thebox and only on the direction of the District Judge, Delhi onjanuary 13, 1971 in probate case No. 72/70 the box was openedin the Court where it was discovered to contain few broken/small articles weighing only 251 grams i. e. approximately 20tolas. This obviously, as alleged, was an act of omission andcommission on the part of the Bank, its employees, representatives who were liable and responsible for the theft. The articles which were found are detailed hereunder :value as on13. 1. 711. One pair of gokhloss (4 pieces)2. 143 Beads (58 Big and 85 small) Rs. 4267/-3. One Taweez and one ear ring ;total 251 Grammes ( 8 ) THE acceptance of the box by the Bank in Peshawar isnot denied and, therefore, it is argued that the Bank undertookthe responsiblity to keep it with due care as a trustee and to bevigilant about the box and its wrappings and seals and toreturn the same in the very. condition with wrappings andseals intact. condition with wrappings andseals intact. The Bank was liable to retain the box in the condition it was entrusted and is, therefore, guilty of breach of trust. tampering with the trust property; neglect and misappropriating of the gold ornaments/jewellery and defendant No. 1 beingthe successor of the said Bank in Peshawar is liable to returnthe jewellery articles/gold ornaments weighing 480 Totals orits present price for the loss suffered by the plaintiff. ( 9 ) THE plaintiff has submitted that the cause of action for thepurpose of present suit arose firstly on January 13, 1971 whenthe said box was found tampered in the Courof Districtjudge, Delhi and it contained only 251 grammes instead of5596. 80 grammes and on Decenber 4, 1974 when the plaintiffwas granted the Letters of Administration of the estateof late R. S. Mool Chand by the Court of the Districtjudge and further it arose on November 19, 1977 whena legal notice was served on defendant No. 1 demandingtherein either to return missing Gold ornaments/jewellery orthe value thereof. The suit, it is contended, is within timeas the plaintiff s right to sue only accrued to him ondecember 4, 1974 when the Letters of administration were granted to him. In the above background, the plaintiff has filedthis suit for decree for return of specific gold ornaments/jewellery weighing 480 Tolas i. e. 5596. 80 Grammes as per the listattached with the plaint and described in para 3 of the plaint orprice at the market value of the Gold ornaments/jewellery prevalent on the date of the judgment/decree. ( 10 ) DEFENDANT No. 1 filed the written statement wherein thethe averments made in para I of the preliminary objections andpara 10 on merits relating to the contention that the suit isbarred by limitation read as follows: "1. On the facts disclosed in the plaint, ex-facie, thesuit is barred by time and may be ordered to bedismissed on this short ground alone. 10. No. cause of action arose in favour of the Plaintiff. Thesuit is missconceived. The suit is barred by time. It is wrong and denied that the right to sue accrued on4-12-1974 when the Letters of Administration weregranted. It is also denied that the box was lying intrust with the defendant No. 1 The suit merits dismissal on this short ground alone," SIMILARLY, on merits the pleas of the plaintiff are controverted inparagraphs 2,3,5, and 9 which read as follows: "2. It is also denied that the box was lying intrust with the defendant No. 1 The suit merits dismissal on this short ground alone," SIMILARLY, on merits the pleas of the plaintiff are controverted inparagraphs 2,3,5, and 9 which read as follows: "2. It is not denied that there was a Safe Vault Deposit forwhich receipt No. 17/47 was issued by the then Punjabnational Bank Limited at Peshawar. It is denied thatthe said Box, as alleged, was sealed in the manner averred or at all. It is also denied that the deceased wrotehis name on the said box, as alleged. Except for theaverments made herein, the rest of the para is denied. 3. In reply to para No. 3, it is submitted that the Punjabnational Bank Limited Peshawar accepted thesaid Deposit subject to the conditions of the receiptand the rules applicable to such deposits. Exceptfor the averments made herein, the rest of thepara is denied. The averments made in this para areabsolutely wrong and denied. At the time of the deposit, the defendant No. 1 was never made aware orapprised of the contents of the said box nor under theprocedure the Bank was supposed to know about thesame, therefore, the defendand No. 1 owns no responsibility for the contents thereof. 5. The averments of para No. 5 are denied. The boxes ofsafe Vault were taken delivery of by representative ofthe Government of India at Lahore from the Government of Pakistan and were thereafter brought and keptin India by the Government of India and its possessionwas retained by them. The defendant No. 1 hadno part or role to play in taking delivery of such deposits from the authorities in Pakistan. The movementof the boxes from Peshawar to Lahore, if any, wasalso carried on by the Government of Pakistan andunder their supervision and control. The custody ofthem at Lahore was also with the Government ofpakistan till the same was delivered to Governmentof India, to be brought to India. Except for theaverments made herein the rest of the para is denied. 9. The averments of para No. 9 are wrong and denied. Nobox was tampered or its contents removed by defendant No. 1. It is also denied that the jewellery of 480tolas was found removed form the said Box. Except for theaverments made herein the rest of the para is denied. 9. The averments of para No. 9 are wrong and denied. Nobox was tampered or its contents removed by defendant No. 1. It is also denied that the jewellery of 480tolas was found removed form the said Box. However, it is correct that on the reopening of the Box incourt Gold articles weighing 251 Grammes were takenout, for which the necessary inventory was preparedand the same is lying deposited in the custody of Treasury-Delhi. It is denied that the wrappers and sealsas alleged, or at all, were ever broken by the defendantno. 1 nor is there any record to show that the said boxwas sealed and wrapped in the manner alleged. Exceptfor the averments made herein, the rest of the parais denied. There is no liability of the Bank to theplaintiff or any other person tor the contents of the Box. It is denied that the defendant No. 1 has commitedany act of breach of trust or tampered with the boxor neglected or misappropriated the alleged gold ornaments/jewellery. The defendant Bank is not liable,in any manner, whatever for the reasons stated orotherwise in the plaint. It is denied that 480 Tolas wereever entrusted to the defendant No. 1". ( 11 ) REPLICATION was filed by the plaintiff wherein the contents of the plaint were reiterated. On the pleadings of theparties the following issues were framed on 23rd July,1984:1. Whether the suit is within time? OPP2. Whether the box covered under safe deposit receipt No. 17/47was entrusted to the defendant No. 1 duly sealed in the manner alleged by the plaintiff? OPP3. What were the contents of the box at the time of its entrustment to defendant No. 1 and the details thereof? OPP4. Whether the custody of the said box throughout remainedwith defendant No. 1?5. Whether the box was found tampered with and unlockedat the time when it was produced and opened in the court of learneddistrict Judge, Delhi and if any jewellery was found short andmissing, if so, how much?6. Whether the defendant is guilty of neglect, breach of trust,misappropriation and tampering with the box, if so to what effect?7. Whether the defendant No. 1 refused to give open deliveryto the plaintiff s mother, if so to what effect?8. Whether the Defendant-Bank insisted that the plaintiffshould obtain letters of Administration, if so to what effect?9. Whether the defendant is guilty of neglect, breach of trust,misappropriation and tampering with the box, if so to what effect?7. Whether the defendant No. 1 refused to give open deliveryto the plaintiff s mother, if so to what effect?8. Whether the Defendant-Bank insisted that the plaintiffshould obtain letters of Administration, if so to what effect?9. To what amount the plaintiff is entitled to on account ofloss of gold ornaments?10. To what amount the plaintiff is entitled to on account ofinterest. ? OPP11. Relief. ( 12 ) THE plaint was permitted to be amended by Orderdated January 31,1992 and the following additional issues were framed on February 15, 1993:1a. Whether the plaintiff is entitled to the market valueof the gold ornaments on the date of judgment and decree? OPP1b. Whether the provisions of order 7 Rules 2 and 7 Civil Procedure Code. are not complied with in the present case? OPP ( 13 ) ISSUE NO. 1 The learned counsel for the plaintiff has argued that thesuit is well within time whereas Mr. S. K. Khanna, learned counselfor the defendants has vehemently contended that the suit ishopelessly barred by limitation. There is no controversy that thelimitation for the present suit is governed by Article 70 of thelimitation Act, 1963 which reads as follows: "70. To recover movable Three years The date of refusal afterproperty deposited or demand. pawned from a depositaryor pawnee. "the learned counsel for the plaintiff states that the plaintiffcould only file the suit after obtaining letters of administration inrespect of the estate of his late father which were granted on December 4, 1974. It is argued that the defendant Bank insisted onthe plaintiff obtaining the letters of administration from a competent court of law to consider his claim and, therefore, there wasno option left with the plaintiff but to file the suit after obtainingof the letters of administration. Reference is made to thecommunication dated January 2, 1969 of defendant Bank to theplaintiff which is Exhibited as Public Witness 4/25. The same reads as follows: (ESTABLISHED 1895) (Regd Office PARLIAMENT STREET, NEW DELHI)PAKISTAN DEPARTMENT POST BOX N0. 274head OFFICE ;new DELHI PARLIAMENTSTREETREFERENCE DMP/custody/2new Delhi-1 January 2, 1969shri J. C. Trikha,i l/123,double Storey,tilak Nagar,,new Delhi-18dear Sir,re : Safe deposit relating to Later. The same reads as follows: (ESTABLISHED 1895) (Regd Office PARLIAMENT STREET, NEW DELHI)PAKISTAN DEPARTMENT POST BOX N0. 274head OFFICE ;new DELHI PARLIAMENTSTREETREFERENCE DMP/custody/2new Delhi-1 January 2, 1969shri J. C. Trikha,i l/123,double Storey,tilak Nagar,,new Delhi-18dear Sir,re : Safe deposit relating to Later. S. Mool Chand Advocate, Peshawarwith reference to your letter No. JCT/pnb/vi/68 dated19-12-1968; in view of your objections to the indemnity clause in the indemnity bond it has been decided to requestyou to obtain a "letter of Administration" from a competent Court of Law so that the matter may be looked intofurther on the basis thereof. The question of supplying a copy of the indemnity bond,therefore, does not arise. Sd/-MANAGER"reference is also made to Section 16 of the Limitation Act whichreads as follows:"16. Effect of death on or before the accrual of the right tosue- (1) Where a person who would, if he were living,have a right to institute a suit or make an applicationdies before the right accrues, or where a rightto institute a suit or make an applicationaccrues only on the death of a person, theperiod of limitation shall he computed from the timewhen there is a legal representative of the deceased capable of instituting such suit or making such application, (2) where a preson against whom, if he were living, a rightto institute a suit or make an application would haveaccrued dies before the right accrues, or where aright to institute a suit or make an application againstany person accrues on the death of such person, theperiod of limitation shall be computed from the timewhen there is a legal representative of the deceased against whom the plaintiff may institute such suit or makesuch application. (3) Nothing in sub-section (1) or sub-section (2) applies tosuits to enforce rights of pre-emption or to suits forthe possession of immovable property or of a hereditaryoffice". Letters of Administration were granted on December4, 1974. The present suit (IPA 5 of 1978) was filed in this Courton December 2, 1977 under the provisions of Order 33 Rule I readwith Section 151 Civil Procedure Code which is within a period of three years of theexpiry of limitation and therefore, the suit is well within time. ( 14 ) ON the other hand, the learned counsel for the defendantbank has argued that the suit is hopelessly barred by time. ( 14 ) ON the other hand, the learned counsel for the defendantbank has argued that the suit is hopelessly barred by time. Thebox was opened before the District Judge in Probate proceedingson January 13,1971 and the suit having been filed on December 2,1977 is barred by time though the letters of Administration mayhave been granted on December 4,1974. ( 15 ) REFERENCE is made to the judgments reported as Jogendrachunder Dutt and another V. Apurna Dassi and others 1909 (Vol. III)Indian Cases 859 (l); (Soona Mayana Kena Roona) Meyappa Chettyv. Soona Navena Supramanian Chetty AIR 1916 Privy Council202 (2) (Tikait) Mahabir Prosad Narayan Deo vs. Bhupal Ram andothers AIR 1929 Pat 694 (3); Mt. Kulwanta Bewa and others V. Karam Chand Soni and others AIR 1938 Cal 714 (4) Bhudebchandra Roy and others V. Bhikshakar Pattanaik and others AIR1942 Patna 120 (5); Venkateswara Sarma, Styled Gananasivacharia Swamigal Matadhipathi and Guru of Perur Mel Mutt v. S. N. Venkatesa Ayyar and others AIR 1941 Mad 449 (6); P. S. Nagaranjan v. Robert Hotz AIR 1954 Pandh 278 (7); Lahore Enamelling and Stamping Co. Ltd v. A. K. Bhalla and others AIR 1958punjab 341 (8); Mrs. Julieta w/o Ciriaco Bernardo Coutinns v. Lilacoutinho and others AIR 1961 Bom 275 (9); Ram Chandganesh Dass v. Sardara Singh and another AIR 1962 Punjab382 (10); Dr. Mrs. Joginder Kaur Malik and another v. Malik Anupsingh AIR 1966 Pandh 385 (11); M/s Behari Lal Ram Charan v. Karam Chand Sahni and others AIR 1968 Pandh 108 (12); Specialland Acquisition Officer (1) Bombay and Bombay Suburban District v. Natverlal Jamnadas Muni AIR 1968 Bom 31 (13); Shrividya Prakash Sethi v. Punjab National Bank, New Delhi ILR (1976)IDelhi 605; (14); Col. Adarsh Rattan and others v. State Bank ofindia Jalandhar 1987 (1) The Punjab Law Reporter 193; (15);uco Bank v. Hem Chandra Sarkar AIR 1990 Supreme Court1329 (16) and P. K. Kutty Anuja Raja and anr. v. State of Keralaand another AIR 1996 Supreme Court 2212 (17 ). . Adarsh Rattan and others v. State Bank ofindia Jalandhar 1987 (1) The Punjab Law Reporter 193; (15);uco Bank v. Hem Chandra Sarkar AIR 1990 Supreme Court1329 (16) and P. K. Kutty Anuja Raja and anr. v. State of Keralaand another AIR 1996 Supreme Court 2212 (17 ). . ( 16 ) ON the basis of the cases referred to above, the learnedcounsel for the defendant Bank has contended as follows: (A) The suit is barred by time and the plea of the plaintiff thathe could not come to the Court earlier as letters of Administrationwere only granted on December 4, 1974 is fallacious as the law iswell settled that it is not compulsive to apply for letters of administration and the plaintiff could have approached the Court withinthe period of limitation, as provided in law. The limitation hadstarted to run as early as on August 8, 1966 when the box was allegedly received by the defendant Bank from Government of India. (B) The provisions of Section 9 of the limitation Act clearlylay down that there is continuous running of time that where oncetime has begun to run no subsequent disability or inability to institute a suit or make an application will stop it. ( 17 ) SECTION 9 of the Act has been referred to by learned counselfor the defendant Bank to reiterate the proposition that where timehas begun to run no subsequent disability or inability to institutea suit or make an application will stop it. This provision reads asfollows:"9. Continuous running of time-where once time has begun to run, no subsequent disabilityor inability to institute a suit or make an applicationstop it;provided that, where letters of administration to theestate of a creditor have been granted to his debtor, therunning of the period of limitation for a suit to recoverthe debt shall be suspended while the administrationcontinues,"365 ( 18 ) THERE is no doubt that the law is well settled that it is notnecessary to obtain letters of administration in terms of the provisions of Sections 211 and 212 of the Succession Act, 1925 and caseswhich are of relevance and as cited above may now be referred. ( 19 ) IN Jogendra Chunder Dutt and another v. Apurna Dassiand others (supra) it was held that a Hindu widow sufficiently represents the estate of her deceased husband when there is noother person short of obtaining letters of administration to his estatewho can be said to represent his estate. ( 20 ) IN Mt. Kulwanta Bewa and others v. Karam Chand Soniand others (supra) it was held that the whole scheme of Sections 216,220 and 273 and other provisions of the Act is only to provide forrepresentation of the deceased s estate for purposes of administration,and is not intended to cut down the rights of the beneficiaries. Hence merely because an estate is in the hands of an administrator,the beneficiaries are not thereby rendered incompetent to deal withtheir interest in the estate. ( 21 ) IN Bhudeb Chandra Roy and others v. Bhikshakarpattanaik and others (supra) it has been held by Patna High Courtas follows (page 127): "of course under Section 213 of the same Act, noright as executor can be established in any Court ofjustice, unless a Court of competent jurisdiction hasgranted probate of the will under which the right isclaimed. This only means that no Court shall recognise the right of an executor unless he has obtainedprobate of the will under which he claims. But theeffect of Section 211 is that the estate of the deceasedtestator vests in the executor by virtue of the will andfrom the date of his death. " ( 22 ) IN Mrs. Julieta w/o Ciriaco Bernardo Coutinns v. Lilacoutinho and others (supra) it was reiterated that the rights of theminors can be established although no representation has beenobtained to the estate of the deceased. ( 23 ) NO probate is necessary in order to set up a claim regardingproperty either movable or immovable on the basis of a Will executedin Punjab and not relating to property situated in the territoriesmentioned in Section 57a. The Court held so on interpretationof provisions of Section 213 and 57 of the Succession Act 1925. This was held in Ram Chand Ganesh Das v. Sardara Singh andanother (supra ). ( 24 ) THE same High Court in Dr. Mrs. Joginder Kaur Malikand another v. Malik Anup Singh (supra) has held that in the absenceof probate or letters of administration the suit simpliciter by legateeis not barred. Paragraph 2 of the judgment reads as follows: "2. Mr. ( 24 ) THE same High Court in Dr. Mrs. Joginder Kaur Malikand another v. Malik Anup Singh (supra) has held that in the absenceof probate or letters of administration the suit simpliciter by legateeis not barred. Paragraph 2 of the judgment reads as follows: "2. Mr. G. S. Vohra, learned counsel for the petitioners haschallenged the correctness of the said judgment dated24-7-1965. First, he says that the suit is barred by reason of the provisions of the Indian Succession Act,1925, and the only remedy available to the plaintiffwas to obtain letters of administration or probate to thealleged will. He has mainly relied on Ss. 213, 214,227, 263, 264 and 273. According to him, the schemeof the whole Act shows that the only remedy for aperson placed in the position of :he plaintif could beto obtain a probate and the filing of the suit is excluded. Placing particular emphasis on Ss. 213 and 214,mr. Vohra says that no right as executor or legateecan be established in any Court, unless a Court ofcompetent jurisdiction has granted probate of the will,which Court, according to Mr. Vohra, is the Court ofthe District Judge. It is further said that by virtue of S. 214 no decreecan be passed against a debtor of a deceased person forpayment of his debt to a person claiming on successionto be entitled to the effects of the deceased person orto any part thereof except on production of probate orletters of administration evidencing the grant to himof administration to the estate of the deceased. Reliance has been placed on Ganshamdoss Narayandossv. Gulab Bi Bai, AIR 1927 Mad 1054 (FB) and Kesarsingh V. Smt. Tej Kaur, (1961) 63 Pun LR 473: (AIR1961 Punj. 509 ). In Ganshamdoss s case, it was heldthat even a defendant cannot use an unprobated willas a defence. That decision was based on S. I 87 of the Indiansuccession Act of 1865, which corresponds to S. 213 ofthe present Act. That judgment can have no applicability to the present case inasmuch as Sub-s. (2) ofs. 213 excludes the applicability of S. 213 (1) in the case ofwills made by Muhammadans and wills made by anyhindu, Buddhist, Sikh or Jain where such wills as areof the classes specified in Cls. (a) and (b) of S. 57. Reference to Cls. (a) and (b) of S. 57 would show thats. 213 excludes the applicability of S. 213 (1) in the case ofwills made by Muhammadans and wills made by anyhindu, Buddhist, Sikh or Jain where such wills as areof the classes specified in Cls. (a) and (b) of S. 57. Reference to Cls. (a) and (b) of S. 57 would show thats. 213 will only apply (a) to wills made within the territories which on the first day of September 1870, weresubject to Lieutenant Governor of Bengal or within thelocal limits of the ordinary original civil jurisdictionof the High Courts of Judicature of Madras and Bombay,and (b) to all such wills and codicils made out side thoseterritories and limits as relate to immovable propertysituate within those territories or limits. Section 213of the said Act being not applicable to the present will,it is no bar to a plaintiff to establish his right asexecutor or legatee by a regular suit. ( 25 ) IN the judgment reported as Col. Adarsh Rattan and othersv. State Bank of India Jalandhar (supra) the learned Judge took theview that it was not compulsive to apply for letters of administrationand suit claiming a declaration that heirs were owners of the box lying with the Bank and entitled to the sealed box with consequentialrelief of allowing them to operate the said safe deposit was notbarred. M. M. Punchhi, J. as his Lordship then held as follows inparagraphs 11 and 13: "11. To apply the principles to the case inhand, thebox in question vested in the heirs under the Hindusuccession Act the moment the deceased died intestate and they there and then derived title thereto. That title could be abrogated or substitutedby a representative title if letters of administrationwere successfully sought for the purpose, itis otherwise plain from the language, of sections 211 and 212 of the Act that it is not compulsive for heirs to apply for letters of administration in the case of a Hindu and qua other persons of other religious denominations as mentionedin either of sub-section (2) under both the provisions, dying intestate. The argument built onsub-sections (2) of section 211 that unless therewas a joint Hindu family and the heirs had succeeded by means of survivorship, section 211 hadnot applicability appears to me without any force. The priniciplc of survivorship proceeds on thebasis that on death, the existence of the deceasedgels subsumed but the existence of the coparcenerycontinues to exist. The argument built onsub-sections (2) of section 211 that unless therewas a joint Hindu family and the heirs had succeeded by means of survivorship, section 211 hadnot applicability appears to me without any force. The priniciplc of survivorship proceeds on thebasis that on death, the existence of the deceasedgels subsumed but the existence of the coparcenerycontinues to exist. A coparcener cannot be saidto have any well-defined share in a coparcenery atany moment. So, his death would not have the effectof passing of any estate to his other coparceners. It is in that sense that sub-sections (2) of section211 of the Act has been studded in the chapter,to remove any doubts in that regard. But whenthe estate passes on the death of an intestate,then section 212 throws open an enabling avenueto have the letters of administration from the Courtof competent jurisdiction and to have the estate]administered under the guidance an protectionof the Court. By no means can it be said thalthe estate of an intestate Hindu cannot be allowedto vest or be claimed by his heirs unlessletters of administration have been obtained. Thusi am of the considered view that it was not essential for the plaintiffs to have letters of administration before operating the box lying safewith the bank. This view of mine does not takeinto account. Section 8 of the Hindu Successionact, for that is irrelevant here for the presentpurposes. 13. It is the heir or heirs of the deceased Hindudying intestate and failing his creditor/s who mayapply for the grant of letters of administration. Itis not incumbent, for instance, on the creditor toalways apply for letters of adminsitrations in orderto recover his debt. Similarly, it is not incumbenton the heir or heirs to apply for letters of administration as a compulsive necessity. The provision is merely enabling. It cannot be said withany effectiveness that the law of succession is put towinds merely because letters of administration canbe obtained under the provisions of the Act. Theprovisions of sections 264, 270, 273, 278 and 283 pressed into service by the learned counsel for thebank to highlight the role of the District Judge (a higher Court than the Court of the Sub Judge)can mean no substitution as a desirable necessity to the choice of having letters of administration. Theprovisions of sections 264, 270, 273, 278 and 283 pressed into service by the learned counsel for thebank to highlight the role of the District Judge (a higher Court than the Court of the Sub Judge)can mean no substitution as a desirable necessity to the choice of having letters of administration. The additional pleas of the learned counsel that the letters of administration bring aboutmore orderliness are efficacious for the purpose of creditors, ensure realisation of estate duty and make the State earn some revenue are irrelevant considerations when one is confronted with the choice available to the heirs. Equally fallacious is the argument that in face of the provisions of the Indian Succession Act whereunder letters of administration are obtainable, section 34 of the Specific Relief Act and section 9 of the Civil Procedure Code would debar the maintenance of a suit. It appears to me that there is no such impediment on the rights of the plaintiffs to claims the estate of the deceased wherever it was lying. " ( 26 ) THE Full Bench of Patna High Court in (Tikait)Mahabir Prosad Narayan Deo vs. Bhupal Ram and others (Supra)reiterates the proposition that it is not necessary to invoke atheory of suspension of limitation in case in which suspensionis not expressly provided for either in the Limitation Act orin some Special Act. The following paragraph from page 700reads as follows : "i do not think that it is necessary or that it would be good law to invoke a theory of suspension of limitation in any case in which suspension is not expressly provided for either in the Limitation Act or in some special Act. I would be reluctant to whittle away the definite provisions of Section 9 of the Limitation Act. Suspension of limitation was not made the ground of decision in Basu Kuer v. Dhum Singh (8) in Soorno Moyee Dasi v. Shoshee Mokee Burmonia (3 ). or in Muthu Korakkai Chetty v. Madar Ammal (10), though in the last mentioned case one of the learned Judges thought that limitation was suspended. I have referred to Lakhan Chunder Sen v. Madhusudan Sen (11) and am of opinion that for the purpose of deciding that case the R principle of suspension of limitation need not have been invoked. or in Muthu Korakkai Chetty v. Madar Ammal (10), though in the last mentioned case one of the learned Judges thought that limitation was suspended. I have referred to Lakhan Chunder Sen v. Madhusudan Sen (11) and am of opinion that for the purpose of deciding that case the R principle of suspension of limitation need not have been invoked. Nor indeed is it necessary to invoke it in the present appeals because limitation must in any case have been given a fresh start under Section 19 of the Limitation Act from the ackwledgement of the debt on 21st September 1906 during the period of management and thereafter limitation in my opinion didnot begin to run till the estate was released, soi condider that no such question of suspension atall arises. " IN Venkateswara Sarma, Styled Gnanasivacharia Swamigalmatadhipathi and Guru of Perur Mel Mutt (supra) the Fullbench of Madras High Court held that equitable considerationsare out of place while construing the Limitation Act. Thefollowing passage from page 460 which is some relevance maybe referred to : "the argument for ignoring Article 134-B is that it isa general principle of the law of limitation that limitationcan only be deemed to run from the date when the cause ofaction accrues, and a cause of action cannot exist unlessthere is a person capable of suing. Granted that this is soit does not mean that the Legislature cannot make an arbitrary starting point, irrespective of whether there is a person capable of suing or not. It is to be observed thatthere is a vast difference between the wording of Article 134-Band Article 120. Under Article 120 the period of limitation commences when the right to sue accrues, which is plainly not the case so far as Article 134-B is concerned, wherethe starting point is definitely from the date on which themanager of the endowment ceases to hold office. Asvenkataramana Rao J. has been at pains to point out in hisreferring order the Legislature has made an arbitrary starting point, and I agree with him. In may opinion, thereis here no room for the applicaton of any principle, which,if applied, would mean the overruling of the plain wordsof the statute. What is so often lost sight of is that the plain words of a statute must be given effect to, unless by doingso it is obvious that it would lead to an absurdity. In may opinion, thereis here no room for the applicaton of any principle, which,if applied, would mean the overruling of the plain wordsof the statute. What is so often lost sight of is that the plain words of a statute must be given effect to, unless by doingso it is obvious that it would lead to an absurdity. Thatis not the position here. Moreover, the Privy Councilhas itself pointed out that equitable considerations are outof place when construing the Limitation Act and thestrict grammatical meaning of the words is the only safeguide; 60 Cal 1. And that case was concerned with theinterpretation of Article 182. Limitation Act. " ( 27 ) IN Lahore Enamelling and Stamping Co. Ltd. v, A. K. Bhallaand others (supra) it was held that when once the period of limitation under the provisions specifically recognising exclusion or deduction. There is no principle of law outside the Limitation Act under whichlimitation can be suspended and exemptions, which are not providedby the statute cannot be assumed either on grounds of hardship orof reasonableness. ( 28 ) THE facts of the present case may now be co-related tothe law as referred to in the above mentioned judgments. Certaincorrespondence which has been exchanged between the parties whichis of relevance may now be referred. On December 24. 1959 thedefendant Bank wrote to the plaintiff as follows:the PUNJAB NATIONAL BANK LTD. (Established 1895)HEAD OFFICEPakistan Department. Post Box No. 274parliament Street,ref:dmp/3469 New Delhi-1 24th Dec. 1959shree Jagdish Chandra Trikha. 17/25, Tilak Nagar,new Delhi-18dear Sir. Ref: Safe Custody Box of later. S. Pt. Mool Chand Advocate,of Peshawar. With reference to your letter dated 1512-59 we haveto advise you that so far as the release of the Safe Custody Articles lying in Pakistan is concerned there isno change in the position already advised to you in ourprevious letter No. 921 dated 1-4-59. We may, however, add that such articles are now lying in Pakistanwith the Bank duly sealed by the representativesof Government of India. Custodian Evacuee Property,lahore and our Lahore office. The charges on sucharticles will be determined as soon as these are allowedto be released. Please note and oblige. Yours faithfullysd/-Manager""dear Madam,i am ill receipt of your letter of January, 5, 1967. Custodian Evacuee Property,lahore and our Lahore office. The charges on sucharticles will be determined as soon as these are allowedto be released. Please note and oblige. Yours faithfullysd/-Manager""dear Madam,i am ill receipt of your letter of January, 5, 1967. I understand that the Safe Deposit Boxes belonging to the displaced persons deposited by themwith the various branches of the Punjab Nationalbank Ltd. in West Pakistan, including the Safedeposit Box of your husband, late Shri R. S. Moolchand were brought over to India by a representative of the Department of Rehabilitation onnovember 30, 1961. Those Safe Deposit Boxeshad new packing and bore the seals of the Lahorebranch of the Punjab National Bank Ltd. andwere brought over from Lahore to Delhi in thesame condition in which these were received. ( 29 ) SOME of these boxes were delivered to the claimants in India and the remaining were handedover to the Punjab National Bank Ltd. New Delhifor delivery by the Bank direct to the claimants. The Bank was also advised to give open delivery of sealed packages to the rightful owners butthey expressed their inability to do so. In the circumstances, you will appreciate that the Government has no responsibility for any losses that mayhave occurred at any stage of handling. Thegovernment representative handed over the boxesto the Bank in Delhi in the same condition inwhich they were received by them with the sealsof the Lahore Branch of the Bank in tact. Therefore, it is for you to put up your claim forlosses, if any, to the Bank authorities in terms ofagreement, if any, between you and the Bank forkeeping your Safe Deposits with the Bank. " ( 30 ) THE defedant Bank on August 8, 1966 rejectedthe request of the plaintiff to give open delivery of thebox. This communication is Exhibit Public Witness 4/24 and reads asfollows :"shri Jagdish Chandra Trikha,s/o late R. S. Mool Chand Advocate11/123, Double Storey,tilak Nagar,new Delhi-18. Dear Sir. Re : Safe deposit relating to R. S. Mool Chandadvocate, Peshawar. With reference to your letter dated 22-7-1966, the boxin question as it was received by us from Governmentof India, is lying with us merely for its delivery tothe rightful oweners and we regret our inability toaccede to your request for giving its open delivery. Dear Sir. Re : Safe deposit relating to R. S. Mool Chandadvocate, Peshawar. With reference to your letter dated 22-7-1966, the boxin question as it was received by us from Governmentof India, is lying with us merely for its delivery tothe rightful oweners and we regret our inability toaccede to your request for giving its open delivery. Yours faithfullysd/-Manager" ( 31 ) ON January 2, 1969, the following correspondencewhich is marked as Exhibit Public Witness 4/25 was sent to the plaintiff:"shri J. C. Trikha,11/123, Double Storey,tilak Nagar,new Delhi-18dear Sir. Re : Safe deposit relating to late R. S. Mool Chandadvocate, Peshawar. With reference to your letter No. JCT/pnb/vi/68 dated19-12-1968 in view of your objections to the indemnity clause in the indemnity bond it hasbeen decided to request you to obtain a"letter of Administration" from a competentcourt of Law so that the matter may be lookedinto further on the basis thereof. The question of supplying a copy of the indemnity bond. therefore. does not arises. Sd/- Manager" ( 32 ) THE widow of the testator and mother of theplaintiff Smt. Washeshran Devi on receipt of communicationdated January 2, 1969 approached the Court of District Judgefor grant of probate/letters of administration under Sections276/278 of the Indian Succession Act and the case was numbered as Case No. 72/70 in which the box containing thegold ornaments and the jewellery was directed to be openedby the Court when the following order was passed on January13, 1971 : "the cloth wrapper having been removed the box was found wrapped with a paper tied with Sutli string, which was directed to be removed. The paper wrapper having been removed. the box was found unlocked and unsealed with a worn out cloth over it. This cloth having been taken away, the box was found containing ornaments as detailed in the inventory prepared in duplicate by Shri Sat Pal Jain of Messers Popular Jewellers, Chandni Chowk, Delhi, called by the petitioner at her expense, and attached with the record, besides some old cotton etc. The inventory having been prepared in the presence of the petitioner Washeshran Devi, her counsel Shri R. L. Kohli, Shri B. K, Sharma, Accountant, Punjab National Bank and myself, was signed by them. It was attached with the record of this case. The inventory having been prepared in the presence of the petitioner Washeshran Devi, her counsel Shri R. L. Kohli, Shri B. K, Sharma, Accountant, Punjab National Bank and myself, was signed by them. It was attached with the record of this case. The ornaments and duplicate of the inventory duly signed by the aforesaid persons were placed in a small tin box provided by the petitioner. The tin box thus duly sealed with the seal of this Court was ordered to be put in the State Treasury, Tis Hazari, Delhi. On a request made by the petitioner's counsel the doth and paper wrappers and the tin box were put in a cloth, which having been duly sealed was entrusted to the Ahlmad for preserving the same,all the persons signing the inventory remained presentthroughout during the period of opening the box broughtby Shri B. K. Sharma and sealing the contents recoveredtherefrom. The case shall now come up before me on 2. 2. 1971 forfurther proceedings. 13-1-1971sd/- Mohan Lal Jaindistrict Judge, Delhi"it is understood that this application was dismissed for non prosecution and subsequently as the widow Washeshran Devihad passed away the plaintiff moved the learned Districtjugde for grant of probate or letters of administration (Probate No. 85/73) and an order in respect thereof was passed ondecember 4, 1974 which reads as follows :"grant of Letters of Administration under section 290of the Indian Succession Act, XXXIX of 1925. Probate Case No. 85 of 1973in THE COURT OF THE DISTRICT JUDGE AT DELHI;1. F. S. Gill, Judge of the District of Delhi, hereby makeknown that on the 3rd day of June, in the year 1974, lettersof administration with the WILL annexed of the property and credits to the extent of Rs. 4267/- (Rupees fourthousand two hundred sixty seven only) as per scheduleattached of late R. S. Pt. Mool Chand, late of Delhi, deceasedwere granted to Shri Jagdish Chandra Trikha son ofr. S. Pt. Mool Chand, Advocate, resident of 11/123, Doublestorey, Tilak Nagar. 4267/- (Rupees fourthousand two hundred sixty seven only) as per scheduleattached of late R. S. Pt. Mool Chand, late of Delhi, deceasedwere granted to Shri Jagdish Chandra Trikha son ofr. S. Pt. Mool Chand, Advocate, resident of 11/123, Doublestorey, Tilak Nagar. New Delhi, he having undertakerto administer the same and to make a full and true inventory of the said property and credits and exhibit the samein this Court within six months from the date of this grantor within such further time as the Court may from timeto time appoint and also to render to this Court a true accounts of the said property and credits within one year fromthe same date or within such further time as the Court mayfrom time to time appoint. Given under my and the seal of the Court this 4th dayof December, in the yaer 1974. Sd/- F. S. Gill,district Judge:delhi"the plaintiff sent a legal notice to the defendant Bank which isdate November 19, 1977 (Exhibit Public Witness 4/8) bringing to the notice ofthe Bank all facts and asked for the following relief:"that now you being the Successors of the then Punjabnational Bank Limited was bound to return the said boxcontaining the aforesaid gold ornaments but since the said bankdid not do so and its contents of 480 Tolas were removed and thebox was tampered with and thereafter since you are the successoof the afresaid bank you are bound to return the box containing theaforesaid ornaments in the same condition in which it was depositedby Shri R. S. Mool Chand, Advocate for safe-custody to my aforresaid clients' but since the ornaments have been removed therefromin the circumstances, indicated above, you are bound to return andrestore the said ornaments to my client's above named or the valuethereof as duly mentioned in para I above. I, therefore, call uponyou to either return/restore the ornaments detailed in para I above, (list attached or to pay the value thereof at the present marketvalue to my a. "oresaid clients' within 7 days hence of the receiptof this notice by you, failing which I have got clear instructions toinstitute a suit against you for the said purpose at your risk asto costs and consequences. "the defendant Bank allegedly replied to the notice on January 2,1978. "the defendant Bank allegedly replied to the notice on January 2,1978. The plea of the plaintiff that there was no actual refusal on the part of the defendant Bank and limitation as providedunder Article 70, therefore, had not started to run is factually correct. The only time when the defendant refused to accept the demand ofthe plaintiff was on the basis to the reply to notice dated January,2 1978. There had been no categorical refusal by the defendantbank of the demand as raised by the plaintiff. The documents whichhave been referred to above are the letter dated August 8,1966 Exhibit Public Witness 4/24 refusing open delivery, letter dated January 2,1969 Exhibit Public Witness 4/25 asking the plaintiff to obtain letters ofadministration from a competent Court of Law, Exhibit Public Witness /34is the letter dated July 22, 1966 by which the plaintiff requested foropen delivery of the box and Exhibit Public Witness 4/43 is letter dated September 15. 1966 refusing open delivery of the box. These communications may be referred to as below:'the Manager (Pakistan Branches)The Punjab National Bank Ltd. ,parliament Street. New Delhi-1subject : DELIVERY OF SAFE CUSTODY BOX OF LATER. S. MOOL CHAND, ADVOCATEDear Sir,with reference to your correspondence on the subjectnoted above. 2. Please inform us whether you agree to give us anopen delivery of the safe-custody box, in question in thepresence of some responsible persons on executingthe Indemnity Bond sent by you. Please treat this as most urgent and reply early. Faithfully Yours. Sd/- (Jagdish Chandra Trikha)So late R. S. Mool Chand,advocate,11/123. Double Storey,tilak Nagar,22-7-1966 New Delhi-18. ""the PUNJAB NATIONAL BANK LTD. (ESTABLISHED 1895)Regd. Officepakistan DEPARTMENT'post BOX NO. 274paliament STREET,ref : DMP/safe CUSTODY/6721 New Delhi-1 September 15. 1966shri Jagdish Chandra Trikhai I/i 23. Double Storey. Tilak Nagar, New Delhi-18dear Sir. Re : Safe deposit relating to R. S. Mool Chand, Advocatewith reference to your undated letter No. JC/pnb/ai/66we refer you to our letter No. 610 dated 8-8-1966and once again advice you that the box in question is held by us merely for its delivery to therightful owners in the condition it was receivedby us from the Government of India. We, under the circumstances regret our inability toaccede to your request. Yours faithfully. Sd/- Manager. " ( 33 ) SIMILARLY, by communication dated January 2. We, under the circumstances regret our inability toaccede to your request. Yours faithfully. Sd/- Manager. " ( 33 ) SIMILARLY, by communication dated January 2. 1969 (Exhibit Public Witness 4''25) the contents of which have already beenstated above directed the plaintiff to obtain letters of administration from the competent court. These documents will establish that the defendant Bank at no stage acceded to therequest to grant open delivery of the box to the plaintiffand on the contrary directed the plaintiff to obtain letters ofadministration before taking any further action in the matter. Letters of administration were granted on December 4. 1974the present suit was filed in forma pauper is on Decemberand 2, 1977 which would prove that the suit was institutedwithin a period of three year from the dale of refusal bythe defendant Bank. On its own showing the defendant Bankinsisted that the plaintiff should obtain letters of administrationand only then they would deal with the case of handing overthe box. Therefore, it cannot be contended at thes stagethat the suit is barred by limitation as it was not necessaryfor the plaintiff to obtain letters of administration and he oughtto have filed the suit immediately on the intimation of thearrival of the box with the defendant Bank. This argumentcannot be sustained on the ground that the defendant did notentertain the plaintiff without grant of letters of administrationnor agreed to ,he open delivery of the box as would beindicated from reading of the correspondence as referred toabove. The limitation in this view of the matter cannot beheld to have started 'running as has been argued by learnedcounsel for the defendent. The privy council in the Judgement as reported in (Soona Nayana Kena Roona) Meyappa379chetty (Supra)deals with the necessity of obtaining the lettersof administration.-The following paragraph from page 205may be reproduced as under :"there was a good deal of discussion before their Lordships' hoard as to what would have been the resulthad the English statutes of limitation been applicable. This discussion, though perhaps not strictlyrelevant was useful as illustrating the principlewhich ought to guide the Court and throwinglight on the meaning of the ordinances ofthe Straits Settlements. For the purpose of theenglish statutes of limitation, time runs from theaccruer of the cause of action, but a cause ofaction does not accrue unless there be someone who can institute the action. For the purpose of theenglish statutes of limitation, time runs from theaccruer of the cause of action, but a cause ofaction does not accrue unless there be someone who can institute the action. In the case of acause of action arising in favour of the estate ofa deceased person at or after his death, time willat once begin to run, if there bo an executor, eventhough probates has not been obtained, Knox v. Gye; but if there be no executor, time will runonly from the actual grant of letters of administration; Murray v. East India Company. It is, intheir Lordships' opinion, probable that section 17sub Section (1) of the ordinance in question was intended to apply to this rule. A good deal wasalso said as to what would be the effect if the executorwho might have instituted proceedings subsequentlyrenouned probate. " ( 34 ) SIMILARLY, the Division Bench of the Punjab Highcourt in P. S. Nagaranjan v. Robert Hotz ALR 1954 Punjab278 held as follows:"8. With regard to the period before Pook's death theargument was that although the suit fell withinarticle 106, Limitation Act, limitation was saved by. he operation of section 17 of the Act. Section 17. . is in the. following terms :"where a person who would if he were living, havea right to institute a suit or make an application,dies before the right accrues, the period of limitation shall be computed from the time when thereis a legal representative of the deceased capable ofinstituting or making such suit or application. "therefore it is clear that the right to institue thesuit must accrue after the death of the person concerned and not because of his death. In my viewthe death must not in any way affect the right tosue and must not give rise to the cause of action. If that were so the deceased person cannot be said tohave the right to institue the suit because it isonly his death which entitles his legal representativeto bring the suit. In the present case it cannotbe said that Pook's right to sue for accounts accrued afterthis death in this sense. He could sue at any timefor disssolution of partnership and for rendition ofaccounts. According to the Plaintiff it is Pook'sdeath which dissolved the partnership and thereforegave him ( the plaintiff) a right to demand accountsfrom the other partner. In the present case it cannotbe said that Pook's right to sue for accounts accrued afterthis death in this sense. He could sue at any timefor disssolution of partnership and for rendition ofaccounts. According to the Plaintiff it is Pook'sdeath which dissolved the partnership and thereforegave him ( the plaintiff) a right to demand accountsfrom the other partner. In other words it is Poor'sdeath which has resulted in the right to sue accruing. The case therefore does not fall withinthe terms of section 17. The matter was considered by a Full Bench of themadras High Court in 'venkareshwara Sarma V. Venkatesa Ayyar AIR 1941 Mad 449 (G ). This wasa suit by a manager to recover a property alienated by his predecessor-in-office who died withoutnominating his successor. The suit was underarticle 134-B. The plaintiff claimed the benefit ofsection 17, Limitation Act. Abdur Rahman. J. ,observed at page 466 :"cases of this nature are very different from thosewhich are covered by Section 17, Limitation Act. The language of this is section makes it clearthat the right to institute a suit or makean application must be independent of the deathof the person and must have been such as shouldhave accrued during his lifetime if he had livedbut did not do so on account of his death. This sectiondoes not seem to contemplated cases where theright of action is connected with or arises in conquence of the death". In the present case Pook's death is set up as theeven which imposed an obligation upon the defedant to render accounts. In this view of thematter the argument that the administrator is notin the same position as an executor under thewill scarcely arises. The learned counsel argued andin my view rightly that an Administrator can claimexemption under Section 17. Limitation Act. althoughan executor cannot because an executor is a creature of the will and is in existence at the timeof the testator's death. An administrator on theother hand is appointed by an order of the Courtand his title vests in him on the day he is soappointed and therefore an administrator canvalidly say that there was no legal representative of the deceased capable of instituting a suituntil the date of his appointment on 18-9-1949.-'meyyappa Chetty V. Subramanian Chetty'. AIR1916 PC 202 (H ). An administrator on theother hand is appointed by an order of the Courtand his title vests in him on the day he is soappointed and therefore an administrator canvalidly say that there was no legal representative of the deceased capable of instituting a suituntil the date of his appointment on 18-9-1949.-'meyyappa Chetty V. Subramanian Chetty'. AIR1916 PC 202 (H ). But as I have observed abovethe plaintiff cannot claim the benefit of section 17because a case of this type is not covered bysection 17. " ( 35 ) IN similar facts the Division Bench of this Courtin Shri Vidya Prakash Sethi V. Punjab National Bank. Newdelhi ILR (1976) I Delhi 605 also did not accept that thesuit was time barred. Paragraph 14 of this Judgement readsas follows :"14. We may here and new dispose of the contentionthat the suit was barred by time. The open delivery was given on the 1st of April. 1963 It wasonly on that date the plaintiff applellant came toknow that most of the jewellery contained in thebox was missing. He could have filed the suit forthe reliefs claimed within three years. The learnedtrial Judge was right in holding that the suit wasfiled within time and the contention raised before. us that it should have been held time barred ismeritless. " ( 36 ) THE Supreme Court in UCO Bank V. Hemchandra Sarkar, AIR 1990 Supreme Court 1329 took the viewthat Bankers do not. in practice, set up statute of limitationsagainst their customer or their legal representatives. ' ( 37 ) NEXT the provisions of Sections 9 and 16 of theact may be examined. This provisions of section 9 establishes"where once lime has begun to run. no subsequent disabilityor inability to institute a suit, or make an application stop it. The section also contains, the proviso which states that whereletters of administration to the estate of a creditor have beengranted to his debtor, the running. of the period of limitationfor a suit to recover debt shall be suspended while the administration continues Section 16 deals with the situtation withregard to the factum of death on or before accrual to theright to sue. Sub-section (2) which is of relevence reads asfollows:" (2) Where a person against whom. if he were living,a right to institute a suit or make an applicationwould have accured dies before the right accrues. Sub-section (2) which is of relevence reads asfollows:" (2) Where a person against whom. if he were living,a right to institute a suit or make an applicationwould have accured dies before the right accrues. or where a right to institite a suit or make anaplication against any person accrues on the deathof such person, the period of limitation shall becomputed from the time when there is a legal representative of the deceassed against whom theplaintiff may institute such suit or make such application,"in the present case, the gold jewellery/ornaments wereentrusted to the defendant Bank by the father of the plaintiffr. S. Mool Chand who dies on April. 30, 1953 prior to thedate the right to institute suit accured. the period of limitation has to be computed from the time there is a legal representative of the deceased on the basis of the above provision. ( 37 ) NEXT the provisions of Sections 9 and 16 of theact may be examined. This provisions of section 9 establishes"where once lime has begun to run. no subsequent disabilityor inability to institute a suit, or make an application stop it. The section also contains, the proviso which states that whereletters of administration to the estate of a creditor have beengranted to his debtor, the running. of the period of limitationfor a suit to recover debt shall be suspended while the administration continues Section 16 deals with the situtation withregard to the factum of death on or before accrual to theright to sue. Sub-section (2) which is of relevence reads asfollows:" (2) Where a person against whom. if he were living,a right to institute a suit or make an applicationwould have accured dies before the right accrues. or where a right to institite a suit or make anaplication against any person accrues on the deathof such person, the period of limitation shall becomputed from the time when there is a legal representative of the deceassed against whom theplaintiff may institute such suit or make such application,"in the present case, the gold jewellery/ornaments wereentrusted to the defendant Bank by the father of the plaintiffr. S. Mool Chand who dies on April. 30, 1953 prior to thedate the right to institute suit accured. the period of limitation has to be computed from the time there is a legal representative of the deceased on the basis of the above provision. S. Mool Chand who dies on April. 30, 1953 prior to thedate the right to institute suit accured. the period of limitation has to be computed from the time there is a legal representative of the deceased on the basis of the above provision. ( 38 ) THE law on the subject is, therefore, well settledthat " In case of a cause of action 'arisen in favour of theestate of a deceased person on or after his death, time willat once begun to run if there be an executor, even thoughprobate has not been obtained: but if there be no executor,the time will run only from the actual grant of letters ofadministration. " (Soona Mayana Kena Roona) Meyappa Chettyv. Soona Navena Supramaniam Chetty. AIR 1916 Privy Council202. Therefore on the basis of the law as cited above andtaking into consideration the facts of the presant case it cannotbe said that the limitation had started to run as the defedant on his own had insisted on obtaining the letters ofadministration by the plaintiff and there was no categoricalrefusal to deliver the jewellery except in reply dated January,2, 1978 to notice issued by the palintiff. It is. accordingly,held that the suit. is not barred by limitation and the issueis decided in favour of the palintiff. ISSUE No. 2 (Whether the box covered under safe deposit receiptno. 1747 was entrusted to the defendant No. 1 dulyscaled in the manner alleged by the plaintiff? OPP) ( 39 ) THE receipt of the box by the defendant Bank is not denied. Theplaintiff has reiterated that the box was properly sealed with wrapper and sealing wax. This witness gave the details in his testimonyin the following manner:"r. S. Mool Chand was my father. He is dead. He was anadvocate in Peshawar N. W. now in Pakistan, untilthe partition of the Pakistan in 1947. He left Peshawaron 3rd July, 1947 for Simla Hills during summer vacations with OUT entire family which included myself, mylather and my younger brothers. In the meanwhilecountry was partitioned and as such he could not go backlo Peshawar. Before coming to Simla a box containing jewellery was deposited by him with thepunjab National Bank on 3rd June. 1947. My mother had accompanied him to the bank. My motherlater told me that they had prepared a list of jewelleryin the box before it was deposited. In the meanwhilecountry was partitioned and as such he could not go backlo Peshawar. Before coming to Simla a box containing jewellery was deposited by him with thepunjab National Bank on 3rd June. 1947. My mother had accompanied him to the bank. My motherlater told me that they had prepared a list of jewelleryin the box before it was deposited. A copy of thethe said list was placed inside the box and was wrappedby a white cloth cover with seals on it. Theseals were M. C. R. S. on all sides of the box. My motherhad told me all this. There was no lock put on the boxand inbuilt look was there. The receipt was issued foracceptance thereof in safe deposit of the bank. "in cross-examination this witness reiterated that his father wasa leading lawyer of Peshawar. He further stated as follows:"i was told by my parents that they had put a wrapper anda seal on the box and also that there was 500 Tolas ofgold ornaments in the box. Otherwise I have no personal knowledge. The seal which was put by my fatheron the wrapper was left behind in Pakistan. The receiptof. the deposit given by the Bank was also left behind inpakistan. What I am saying is what I heard from myparents. "the statement of the mother of the plaintiff was also recordedwherein she stated as follows:"the name of husband was Rai Saheb Mool Chand. Hewas an Advocate at Peshawar. He was a famousand leading Advocate of Peshawar. He had hugproperty in Peshawar including 6, 7 shops. He usedto get rent from the shops. He possessed a carand tongas. With Rai Sahib I went to Punjab Nationalbank Peshawar and kept a box containiag jewellery,which I covered and stitched with cloth. The boxwas sealed by putting sealing wax of my late husbandhaving his name. The same was sealed by and put bymy husband. The weight of the jewellery in the boxwas 500 Tolas. The jewellery was mixed, both oldand new. The box was kept in the year in whichpakistan was made i. e. the year of the partition of thecountry. This was the month of June. "she further stated in the following manner:"i went to the Reserve Bank with my son Mr. J. C. Trikha. After distributing the boxes of other banks, they showedlo us the boxes of Punjab National Bank. This was the month of June. "she further stated in the following manner:"i went to the Reserve Bank with my son Mr. J. C. Trikha. After distributing the boxes of other banks, they showedlo us the boxes of Punjab National Bank. I saw that thewrapper that I had put on the box was not there and neither was there the seal. It was wrapped by a white cloth as different from ours. Thebox when lifted was empty as compared in weightto that which we had kept. I did not accept the box. for the said reason". ( 40 ) THIS witness also staled that when the box was sealed shehad accompanied her husband to the Bank. There was listin the box of the ornaments contained therein and one list was keptby her. She herself checked the ornaments before preparing the list. The box once sealed was not reopened. There was no suggestionwhich was put to her to the effect that the box was not sealed in themanner as indicated above. The endorsement is also not disputedby the defendant Bank and receipt No. 1747 was issued by the Bankin Peshawar in token of having received the box. The procedurefor safe custody of articles in the Bank are clearly elaborated in theinstructions as issued by the defendant Bank. Paragraphs 1. 7 and8 may be referred to as follows:"1. All articles accepted in safe custody on behalf ofconstituents should be of the nature of sealed packets,stout cloth envelopes and boxes. The seal to be usedwill be of the depositor or of any other person whom hetrusts and not that of the Bank. Papers should besecurely sealed with the depositor's seal. Boxesshould be securely locked by the depositor and theirnames painted thereon. No key of the box will be heldby the Bank. Each article should bear the bank's registered safe custodyno. , the name of the depositor and his address. The relative receipt issued to the constituent should alsobear the same number and particulars. Note 1.-According to the legal opinion it is not bindingthat customer should have his own seal affixed on thesafe custody article. It is the customer's own interest thatthe seal should be his own or that or some body whomhe can trust. The Bank has to re-deliver the safe custody box with its seals in tact. Note 1.-According to the legal opinion it is not bindingthat customer should have his own seal affixed on thesafe custody article. It is the customer's own interest thatthe seal should be his own or that or some body whomhe can trust. The Bank has to re-deliver the safe custody box with its seals in tact. Note 2.- The seal may be of the choice of the depositor,but in no case seal of the bank or its employee ought tobe accepted. 7. As the Bank can have no cognisance of the contents ofsealed packets or locked boxes left with it for safe custody, all receipts must be given on Bank's standardform No. 126 (Serial No. 2) on the back of which aregiven certain conditions. Condition No. 1 thereofcovers this point and reads "sealed boxes, for the contents of which the bank will not be responsible, willonly be accepted for deposit. Seal to be used shouldbe of the depositor, and not that of the Bank". Condition No. 3 covers bank's non-liability for any lossor destruction to such articles or any part thereof, bydacoity, fire, or other accident to Vis Major over whichthe Bank has no Control. It also gives option to thebank for cancelling the contract of the deposit by givinga fortnight's previous notice in writing to the depositorto this effect. Serial No. of the safe custody receipt should be the same asof the account in the Safe Custody Register. 5. The articles in safe custody will be kept in the Strong Roomunder joint custody of the Manager or an officer dulyauthorised by the Head Office and the cashier. " ( 41 ) THE testimony of Washeshran Devi clearly inspires confidenceand it cannot be said even on the basis of the instructions issued bythe defendant Bank that the box entrusted to the Bank was not dulysealed in the manner as alleged by the plaintiff. The Bank wouldnot have accepted the box if it was not sealed. This issue is,therefore, decided in favour of the plaintiff. ISSUE NO. 3 (What were the contents of the box at the time of itsentrustment to Defendant No. 1 and the details thereof OPP) ( 42 ) THE details of the gold ornaments/jewellery has been submittedin paragraph 3 of the plaint which has already been reproduced inthe earlier part of the judgment. ISSUE NO. 3 (What were the contents of the box at the time of itsentrustment to Defendant No. 1 and the details thereof OPP) ( 42 ) THE details of the gold ornaments/jewellery has been submittedin paragraph 3 of the plaint which has already been reproduced inthe earlier part of the judgment. ( 43 ) THE reading of the above will indicate that the plaintiff is claiming that gold ornaments/jewellery which were kept in the box thatweighed 500 Tolas. The defendant Bank filed reply to this paragraph in the following manner:"3. In reply to para No. 3, it is submitted that the Punjabnational Bank Limited Peshawar accepted she saiddeposit subject to the conditions of the receipt and therules applicable to such deposits. Except for the averments made herein, the rest of the para is denied. Theaverments made in this para are absolutely wrong anddenied. At the time of the deposit, the defendant No. 1was never made aware or apprised of the contents ofthe said box, not under the procedure, the Bank wassupposed to know about the same, therefore, thedefendant No. 1 owns no responsibility for the contentsthereof. "the main wilness to state particulars of the contents of thebox is the mother of the plaintiff Smt. Washeshran Devi and horstatement was recorded on Commission. The following paragraphsfrom her testimony read as under: "the name of husband was Rai Saheb Mool Chand. Hewas an Advocate at Peshawar. He was a famousand leading Advocate of Peshawar. He hadhuge property in Peshawar including 6, 7 shops. Heused to get rent from the shops. He possessed a cafand tongas. With Rai Sahib I went to Punjab Nationalbank Peshawar and kept a box containing jewellery. which I covered and stitched with cloth. The box wassealed by putting sealing wax of my late husband havinghis name. The same was sealed by and put byiny husband. The weight of the jewellery in the boxwas 500 Tolas. The jewellery was mixed, both old andnew. The box was kept in the year in which Pakistan was made i. e. the year of the partition of the country. This was the month of June. . . . . . . . . . " 'the Government asked us to prepare a list which was submitted by me. The jewellery was mixed, both old andnew. The box was kept in the year in which Pakistan was made i. e. the year of the partition of the country. This was the month of June. . . . . . . . . . " 'the Government asked us to prepare a list which was submitted by me. AT this stage a copy of the list is shown to the witness and shestates that the original of this list was submitted to thegovernment. She further states that this was preparedunder her instructions. This is marked as "a" andinitialled by me. THE receipt of the Bank was left in my cupboard at Peshawar,for I had thought that we would go back. I do notknow in whose name the receipt was. However, thesame had been given to me. . . . . . . . . . " "when the box was sealed, I accompanied my husband tothe Bank. There was a list in the box of the itemscontained therein and one list was kept by me. . . . . . " "my husband told the Bank, that the box contained jewellery and it should be kept in safe custody. The bankissued receipt to this effect. I myself did not tell thebank of the contents of the box. I checked the ornaments and made the list accordingly priorto the sealing of the box. "the above said witness was cross-examined. She only reiterated that she has checked the ornaments and made list accordingly prior to the sealing of the box which in fact had not been disputed. The deceased Rai Saheb Mool Chand deposited the box ofgold ornaments and jewellery with the defendent Bank at Peshawar. It is contended that a person of his status would not go to the Bankfor placing the gold and jewellery in safe-custody box containingonly 20 Tolas which was recovered when the box was opened beforethe District Judge, Delhi. The following documents have been citedby learned counsel for the plaintiff to reiterate that the box containedthe jewellery as alleged in the plaint. Exhibit Public Witness 4/2 is a letterdated November 28, 1955 addressed to the Ministry of Rehabilitation,government of India, New Delhi. The contents read as under;"tothe Ministry of Rehabilitation'government of lndia,new Delhi. Sir,that my husband Shri Mool Chand. Rai Sahib, Advocate,peshawar, who died about three years ago had deposited Gold ornaments etc. Exhibit Public Witness 4/2 is a letterdated November 28, 1955 addressed to the Ministry of Rehabilitation,government of India, New Delhi. The contents read as under;"tothe Ministry of Rehabilitation'government of lndia,new Delhi. Sir,that my husband Shri Mool Chand. Rai Sahib, Advocate,peshawar, who died about three years ago had deposited Gold ornaments etc. in locker in Punjab Nationalbank, Peshawar on 3. 6. 1947 vide serial No. 17/47. Due to partition he could not bring the above saidarticles. Now I am his wife and legal heir to theproperty left by him. It is, therefore, requested that I may kindly be helped ingetting my gold ornaments etc. Placed in the locker ofpunjab National Bank Peshawar, according to agreements made between two Governments i. e. Indianand Pakistan. Thanking you in anticipation. Yours faithfully,sd/-Washeshran Deviwd/o Shri Mool Chand, R. S. Advocate (deceased)C/o Dr. Raja Ram's Hospital,28. 11. 55 West Patel Nagar. New Delhi. Exhibit Public Witness I/3 the reply dated December 31, 1955 to this communication was received by the Government which may also be reproduced as follows:"fromshri Kanwar Bahadur,under Secretary to thegovernment of Indiatosmt. Vasheshra Devi, Wd/oshri Mool Chand R. S. Advocatec/o Dr. Raja Ram's Hospital,west Patel Nagar. New Delhi. Subject: Indo-Pakistan Agreement on Movable provable proferty of Evacuees June 1950-Articles on depositwith Banks. Lockers and Safe Deposits. Sir. With reference to your letter No. nil dated 28. 11. 55on the above subject I am directed to enclose herewitha copy of the Press Note issued by this Ministry onthe above subject which gives detailed information regarding restoration of lockers and safe deposits of evacuees left in the custody of Banks in Pakistan. All lockers and safe deposits, lying in the custody ofbanks,in respect of which there are no third party claimsare to be released by 31st May, 1956. You are, therefore, requested to await general release of lockers andsate deposits which will be announced in the Press forthe information of all concerned. 3. No particular forms have been prescribed for thispurpose. Yours faithfully,sd/- D. N. Asijafor Under Secretary to the Govt. of India. "the mother of the plaintiff wrote a letter dated January 20, 1956to the Government of India which is marked as Exhibit Public Witness 4/3. This makes the following reading:"the Under Secretary to the Govt. of India,ministry of Rehabilitation,new Delhi. Indo-Pakistan argeement on Movable Property of Evacueesjune 1950-Articles on deposit with Banks Lockers andsafe Deposits. of India. "the mother of the plaintiff wrote a letter dated January 20, 1956to the Government of India which is marked as Exhibit Public Witness 4/3. This makes the following reading:"the Under Secretary to the Govt. of India,ministry of Rehabilitation,new Delhi. Indo-Pakistan argeement on Movable Property of Evacueesjune 1950-Articles on deposit with Banks Lockers andsafe Deposits. Sir,kindly refer to your letter No. 3 (2) (5)/56- (l), dated 31st December. 1955 which you have replied in response of my application'letter dated 28. 11. 1955 on the above subject. I am enclosing herewith a list of Gold ornaments which mylate husband, Shri R. S. Mool Chand, Advocate of Peshawar hadkept inside the Safe-deposit Box No. 17/47, on 3. 6. 1947 with thepunjab National Bank Ltd. , Peshawar Cantt. I, Name and addresss of the pesone The Punjab National Bank Ltd. with whom the aritcle was Peshawar Cantt. pawned or deposited:2. The bank with which the The Punjab National Bank Ltd. articles is deposited: Peshawar Cantt. 3. Detailed description of the article List of Gold Ornaments is enclcsed for example Gold. , cash etc. weighing 500 Tolas. to enable its identification:4. Weight of the article (approximate Rs. 50,000/- Value approx. now. weight to be indicated if Wt. not remember. exact weight is not known ). 5. Value of the article: Rs. 50,000/-approx. 6. Reasons for which article was For Safety Purpose. pawned or deposited:7. Date and terms of conditions Not pawned but deposited withof deposit of pawning: the bank for safety purpose. 8. Money owned by the prersonto the presons with whom thearticles were deposited/pawned,along with uptodate interest, if Not applicable. any and total amount owed uptodate. 9. Documentary or other proof Attested true copy of the indemintyin support of the claim, bond. Sd/-January 20, 1956 Washeshran Deviwd/of Late R. S. Mool Chandadvocate, 17/25, Tilak Nagarnew Delhi. Copy to: The Custodian of Evacuees Property,new Delhi. The Deputy High Commissioner of India in Pakistan,the Mall, Lahore. "admittedly, this letter was received by the Government of Indiaon January 31. 1956 as indicated from the acknowledgment receiptexhibit Public Witness 4/4. Similarly, Exhibit Public Witness 4/46 will indicate that copyof the communication dated January 20, 1956 was also sent to thepersonal Attache to the Deputy High Commissioner of India inpakistan. The AD card in respect of the same is filed as Exhibitpw4/46a. The legal notice dated November 19. 1977 (Exhibitp\v4/8) was served on the defendant Bank. Similarly, Exhibit Public Witness 4/46 will indicate that copyof the communication dated January 20, 1956 was also sent to thepersonal Attache to the Deputy High Commissioner of India inpakistan. The AD card in respect of the same is filed as Exhibitpw4/46a. The legal notice dated November 19. 1977 (Exhibitp\v4/8) was served on the defendant Bank. ( 44 ) ON the above basis, it is contended that the mother of theplaintiff sent copy of the detailed list containing full particulars ofgold ornaments and jewellery as placed in the box at the time it washanded over to the Peshawar Branch, of the defendant Bank. Acopy of the list which was alleged to be placed in the box would obviously have been removed when the box was tampered with andpilfered. ( 45 ) THE plaintiff also wrote to the Government of Indiaministry of Supply and Rehabilitation for supplying the list which hadearlier been submitted as referred to above. The following communication dated February 8, 1978 was sent by the Department:"subject: Supply of copy of the list of jewellery articles supplied to the Ministry of Rehabilitation, Newdelhi in 1955-56. Sir,with reference to your letter dated 19-1-1978 on thesubject cited above I am directed to say that the list ofjewellery articles is no available in his Departmentand as such, it is regretted that a copy thereof cannotbe supplied. Yours faithfully,sd/- (D. C. Verma)for Joint Director. " ( 46 ) FURTHER communication was sent by the plaintiff onaugust 4, 1978 (Exhibit Public Witness 4/56) asking the Government to trace thelist and supply to the plaintiff which request was declined by thecommunication dated August 10, 1978. The plaintiff subsequentlysent a list along with the legal notice which was contended to be thecorrect list. The plaintiff examined one D. D. Ahuja as Public Witness 1 to showthat file No. 3 (2) (5)/56 (l) had been destroyed. Therefore the,government could not supply the list which had earlier been submitted in the years 1955-56. ( 47 ) THE evidence of the plaintiff establishes that gold ornamentsand jewellery worth about 500 Tolas were placed in the box which wassealed and then handed over to the Peshawar Branch of the defendant Bank. The detailed particulars of the items had also been submitted by Smt. Washeshran Devi mother of the plaintiff. ( 47 ) THE evidence of the plaintiff establishes that gold ornamentsand jewellery worth about 500 Tolas were placed in the box which wassealed and then handed over to the Peshawar Branch of the defendant Bank. The detailed particulars of the items had also been submitted by Smt. Washeshran Devi mother of the plaintiff. Thedefendant Bank has not led any evidence to rebut this testimony norproduced any documents to prove that the box did not contain theitems of gold and jewellery as reiterated by Smt. Washeshran Devi. ( 48 ) THE judgment as reported in The Bilaspur Centralcooperative Bank Ltd. V. The State of Madhya Pradesh AIR 1959madhya Pradesh 77 (18) may be referred. The facts indicated thata Bank used to keep at the end of each day its cash in sealed conditionin the police station house. One morning the box was found missingand on investigation was found in a field with its hasp broken andcontents removed. In a suit by the bank against Government forrecovery of Rs-46,946-7-0 the Government did not admit that the boxcontained that amount and pleaded that the contents were not verified by the police. The bank tendered in evidence its cash book,and the detailed book of accounts showing the amounts on handfrom day to day. The evidence of the pa intiff Bank was held sufficient to establish that this.- -. mount was put into the box before it washanded over to the police. Paragraph 14 of the judgment maybe reproduced as under :"14. It was contended, however, that the Inspector-General of Police had clearly indicated that the policeofficers would not be responsible for the contents ofthe box. But the Inspector-General of Police in thesame memorandum said that the box shouldbe securely locked and sealed, which meant that thepolice officers accepted the responsibility for a sealedbox but did not concern themselves with its contentsor their verification. However, in the present case the box was bodily removedand when found the lock was intact but the hasp wasbroken. The responsibility of the police officers is notdischarged by handing over the broken box, with itscontents rifled, to the Bank. The box was interferedwith and was not delivered in the state in which it wasreceived and that being so the responsibility for thecontents cannot be avoided by that kind of writing. The responsibility of the police officers is notdischarged by handing over the broken box, with itscontents rifled, to the Bank. The box was interferedwith and was not delivered in the state in which it wasreceived and that being so the responsibility for thecontents cannot be avoided by that kind of writing. We accordingly hold that by accepting the bailment ofthe box the police officers must be deemed to be responsible for the security of the box as a whole. Thereare cases to show that such a condition is not meant toexonerate the bailee from the responsibility in respectof the contents. The responsibility of the bailee,which the law requires remains, and that is to takesuch a care of the goods bailed to him as a man ofordinary prudence would under similar circumstancestake of his own goods of the same bulk, quality andvalue as the goods bailed. After all, it was well understood that the box containedcash. It was being received for several months previous to this and it must have been known that thecontents of the box were mentioned in a slip pasted onthe lid. In these circumstances, the presence of thatproviso in the letter of consent 6 issued by the Inspector-General of Police when receiving the box for safecustody loses all its force and meaning. " ( 49 ) RERERENCE is also made to the judgment of the Nationalconsumer Disputes Redressal Commission, New Delhi in Punjabnational Bank, Bombay V. K. B. Shetty First Appeal No. 7 of1991" decided on August 6, 1991 which also related to the case of thecontents having been removed from the locker. The facts and theevidence as recorded are referred to in the folllowing paragraphs : "the next ground of attack is that an opportunity tocross examine the Respondent Complainant regardingthe value of the ornaments lost was not given to theappellant by the State Commission. He has alsostressed that there is no evidence of the value ofthe ornaments lost by the Respondent Complainant andthat the State Commission was not justified in relyingon untested evidence regarding the value of the ornaments lost and that the State Commission denied theappellant Bank opportunity to cross examine thecomplainant. The Appellant has, therefore, emphasized that the Bank officials were not guilty of any negligence inasmuch as the locker was opened by the lessee. The Appellant has, therefore, emphasized that the Bank officials were not guilty of any negligence inasmuch as the locker was opened by the lessee. the locker holder, the locker was locked exclusively by the locker holder with the key in herpossession though it can be opened only with the helpof the Master key in the possession of the Bankers; thatthe Respondent Complainant had not produced anyevidence regarding the gold ornaments actually kept inthe locker before or after 21st April, 1988, the date onwhich the locker was last operated, that the valuationof the ornaments claimed to have been lost by the Respondent Complainant by valuers appointed by thegovernment of India on the 10th March, 1988 is noproof of the ornaments kept in the locker and that theywere the same ornaments which were lodged in the locker. In short, the Appellant Bank has suggested that it wasa case of conspiracy hatched with an intent to defraudthe Bank. We find that the State Commission has examined thesepoints at length taking into account the reservations ofthe Appellant Bank whether any ornaments were actually kept in the locker on 21-4-1988, which are saidlo have been stolen and the proper value thereof. Thatcommission has taken cognizance of the affidavit filedby Mrs. V. B. Shetty and believed the same. They havefurher accepted her statement about the items of ornaments she had kept in the locker. They have also accepted the value of those ornaments and have, thereforeobserved that the claim of the complainant regardingthe ornaments lost into the locker and their valuationcannot be disputed. It is also noted that no request wasmade by the Bank to the State Commission to crossexamine Mrs. Shetty and ibis Commission cannot allowthis plea to be raised at this stage. " ( 50 ) IN the present case, when the box was ultimately opened ithad obviously been interfered with and was not delivered to themother of the plaintiff in the State in which it was received and, therfore, the responsibility of the Bank in respect of the contents couldnot be avoided by relying on the fact that the Bank was not awareof the contents of the box. The mother of the plaintiff hasbeen examined and she has clearly deposed about the contents of thebox which allegedly contained gold jewellery/ornaments weighingabout 500 Tolas. The defendant Bank did not examine anywitness nor anything was elicited from the cross-examinationthis witness. The mother of the plaintiff hasbeen examined and she has clearly deposed about the contents of thebox which allegedly contained gold jewellery/ornaments weighingabout 500 Tolas. The defendant Bank did not examine anywitness nor anything was elicited from the cross-examinationthis witness. The box which contained the gold ornaments/jewellerywas produced in the court of District Jugdge in the probateproceedings. THE same was also produced in this Court. The size of the boxis 1-1/2'x1'x8" when it was opened before the probate Court butit only contained jewellery weighing about 20 Tolas. The size ofthe box would show that it could not have been deposited with thebank containing only 20 Tolas and the contention of the plaintiffthat it contained about 500 Tolas sounds more plausible. . ( 51 ) FROM the evidence produced it is clearly established that (a) the box which was entrusted to the defendant Bank in its Brandsat Peshawar was tampered with and pilfered and most of the contents were removed. The original seals which were put on the Boxat the time when it was entrusted were found missing; (b) the listof the jewellery was furnished to the Government of India as earlyas on January 20, 1956. There was no satisfactory response fromthe Government and it is only stated that the list was not available in the Department and the file was destroyed; (c) the plaintiffproduced his mother Smt. Washeshran Devi who was present atthe time when the Box was handed over to the defendant Bank. This witness has reiterated the contents of the box and no contraryevidence is available on record to hold otherwise; (d) when Smt. Washeshran Devi found that the Box hardly contained anythingshe refused to take the delivery as the defendant turneddown the request for open delivery. It was only when the opendelivery was given in the Probate Court that the plaintiff came toknow that most of the jewellery was missing. ( 52 ) TAKING an overall view of the facts and circumstances ofthe present case and on the basis of evidence as referred above, it isestablished that the box contained the gold jewellery/ornaments ascontended by the plaintiff in the present suit. This issue is decidedaccordingly. ISSUE NO. 4whether the custody of the said box throughout remained withdefendant No. 1 ? ( 52 ) TAKING an overall view of the facts and circumstances ofthe present case and on the basis of evidence as referred above, it isestablished that the box contained the gold jewellery/ornaments ascontended by the plaintiff in the present suit. This issue is decidedaccordingly. ISSUE NO. 4whether the custody of the said box throughout remained withdefendant No. 1 ? ( 53 ) THE learned counsel for the defendant Bank has arguedthat the custody of the Box did not at all times remain with the defendant after the partition of the country and at times it was underthe control of the Custodian of Evacuee Property. The learnedcounsel for the plaintiff has referred to various documents to indicate that the custody of the Box throughout remained with thedefendant Bank. The following documents may be cited in thisregard: (i) Letter dated February 14, 1952 (Exhibit Public Witness 4/37) from PNBto the father of the plaintiff informing him that as soon as facilities regarding moving the safe custody of articles of Hindus lyingat their Lahore office are provided to them, they will remove thesafe custody of articles to India ; (ii) Similar letter dated 13th May, 1954 (Exhibit Public Witness 4/38) ofpunjab National Bank to mother of the plaintiff; (iii) Letter dated October 23, 1958 (Exhibit Public Witness 4/39) frompunjab National Bank to the same effect; (iv) Letter dated December 26, 1959 (Exhibit Public Witness 4/1) frompunjab National Bank to plaintiff stating that there was no changein advice and articles lying in Pakistan with the Bank dulysealed; (v) Letter dated January 24, 1962 (Exhibit Public Witness 4/41) frompunjab National Bank to plaintiff that the Government has decidedto deliver the articles direct to the rightful owners. The plaintiff wasadvised to correspond with the Accounts Officer, Ministry of Rehabilitation: (vi) Letter dated August 22, 1962 (Exhibit Public Witness 4/49) from Accounts Officer, Ministry of Rehabilitation requesting themother of the plaintiff to approach Punjab National Bank for getting the Box. The plaintiff wasadvised to correspond with the Accounts Officer, Ministry of Rehabilitation: (vi) Letter dated August 22, 1962 (Exhibit Public Witness 4/49) from Accounts Officer, Ministry of Rehabilitation requesting themother of the plaintiff to approach Punjab National Bank for getting the Box. (This letter was written by Ministry in view of thefact that most of the Boxes were not found in the original conditionand had been tampered with; (vii) Letter dated February 12, 1963 (Exhibit Public Witness 4/52) fromministry to plaintiff that Ministry has already informed the Bankand Ministry cannot do anything; (viii) Letter dated May 2, 1963 (Exhibit Public Witness 4/13) from Punjabnational Bank to the mother of the plaintiff requesting her toinform that probate has been obtained; (ix) Letter dated July 22, 1966 (Exhibit Public Witness 4/34) from the plaintiff to Punjab National Bank regarding Open Delivery; (x) Letter dated August 8, 1966 (Exhibit Public Witness 4/24) from Punjab National Bank to plaintiff, Open Delivery refused; (xi) Letter dated September 15, 1966 (Exhibit Public Witness 4/43) to theplaintiff that the request of the plaintiff is rejected; (xii) Letter dated January 2, 1969 (Exhibit Public Witness 4/25 from Punjab National Bank directing him to-obtain-Letter of Administration; (xiii) Proceedings in the court of District Judge (Exhibit Public Witness 3/3showing that Shri B. K. Sharma of Punjab National Bank producedbox in Court with wrapper of the Punjab National Bank, Lahore. ( 54 ) EXHIBIT Public Witness I/2 is the copy of the Notification by which thebanks mentioned in the schedule of that Notification were exempted from the purview of Pakistan (Administration of Evacuee Property) Act, 1957. The name of Punjab National Bank is indicatedat serial No. 50. The contents of some of the documents as referredto above may be indicated. Letter Exhibit Public Witness 4/37 reads asunder:"r:s. Pandit Mool Chand,block No. . l7, Quarter No. 28, Tilak Nagar. New Delhi Dear Sir,reg ; Your safe custody boxwith reference to your letter dated 29. 1. 52 we have toinform you that. the-question of implementation ofevacuces Movable Property Agreement of June, 1950is still under high level talks of both the Governmentsconcerned. As soon as necessary facilities are affordedto us we will arrange to remove to India the safecustody articles of Hindus now lying at our Lahoreoffice. Yours faithfully,sd/-District Manager,pakistan Branches"letter dated May 13, 1954 Exhibit Public Witness 4/38 reads as under:"smt. Washeshra Devi,widow of Late R. S. Pandit Mool Chandof. . As soon as necessary facilities are affordedto us we will arrange to remove to India the safecustody articles of Hindus now lying at our Lahoreoffice. Yours faithfully,sd/-District Manager,pakistan Branches"letter dated May 13, 1954 Exhibit Public Witness 4/38 reads as under:"smt. Washeshra Devi,widow of Late R. S. Pandit Mool Chandof. . Peshawar, Block No. 17,quarter No. 25, Tilak Nagar,new Delhi 18madam,reg; Safe Custody box deposited bylate R. S. Mool Chandwith reference to your letter dated nil we have to advise you that the safe custody articles of the Hindus arestill lying at our Branch Office, Lahore. So for necessary facilities have not been afforded to us to remevethese to India. This is for your information please. Yours faithfully,sd/- District Managerpakistan Branches. " ( 55 ) THE letter dated 24/26. 12. 1959 addressed to the plaintiff,shree Jagdish Chandra Trikha Ext. Public Witness 4/1 reads as under:"shree Jagdish Chandra Trikha,17/25, Tilak Nagar,new Delhi-18. Dear Sir,reg: Safe Custody Box of late R. S. Pt. Mool Chandadvocate, of Peshawar. With reference to your letter dated 15-12-59 we haveto advise you that so far as the release of the Safe Custody Articles lying in Pakistaan is concerned there isno change in the position already advised to you inour I previous letter No. 921 dated 1. 4. 59. We may,however, add that such articles are now lying inpakistan with the Bank duly sealed by the representativesof Government of India, Custodian Evacuee Property,lahore and our Lahore office. The charges on such articles will be determined as soon as these are allowedto be released. Please note and oblige. Yours faithfullysd/-Manager"the Letter dated August 22, 1962 addressed to Smt. Washeshrandevi Exhibit Public Witness 4/49 reads as under:"no. 5 (225)LSD/61government of Indiaministry of Works Housing and Supply (Department of Rehabilitation)New Delhi, the 22nd August, 1962from,shri R. P. Nijhawan,accounts Officertoshrimati Washeshran Devi,11/123, Double Storey,tilak Nagar New Delhi-18. Subject: Restoration of safe deposits transferred frompakistan. Madam,i am directed to refer to your letter dated the 10thaugust, 1962, on the subject mentioned above and torequest you to please approach the Punjab National400bank Ltd. , Head Office, Parliament Street, New Delhiin the matter. Yours faithfully,sd/ R. P. Nijhawanaccounts Officer. , ( 56 ) EXHIBIT Public Witness 4/13 the letter dated May 2, 1963 may also bereproduced as below ;"the PUNJAB NATIONAL BANK LTD. (ESTABLISHED 1895)REGD. OFFICE"pakistan DEPARTMENT"post BOX N0. 274parliament STREETREF.-DMP/safe CUSTODY/689new DELHI-1 May 2, 1963vaisakha 12, 1885 (Saka)Shrimati Washeshran Devi,11/123, Double Storey,tilak Nagar,new Delhimadam,. Yours faithfully,sd/ R. P. Nijhawanaccounts Officer. , ( 56 ) EXHIBIT Public Witness 4/13 the letter dated May 2, 1963 may also bereproduced as below ;"the PUNJAB NATIONAL BANK LTD. (ESTABLISHED 1895)REGD. OFFICE"pakistan DEPARTMENT"post BOX N0. 274parliament STREETREF.-DMP/safe CUSTODY/689new DELHI-1 May 2, 1963vaisakha 12, 1885 (Saka)Shrimati Washeshran Devi,11/123, Double Storey,tilak Nagar,new Delhimadam,. Reg: Safe Deposit of late R. S. Mool Chand,advocate. Please refer to your letter dated 8. 4. 1963. Wefind from the form No. 92-A sent by you under thesaid letter that neither you have mentioned in it whetheror not Probate of the will, said to have been left by Later. S. Mool Chand, has been obtained by you nor thenames of the widow of the predeceased son and thegrand daughter of late R. S. Mool Chand have beendeclared in it. We, therefore, request you to please let us know ifyou have obtained probate of the will in question andif so an attested copy thereof maybe sent to us. We may also be intimated the present age of eachof your sons named in the said form No. 92-A. Yours faithfully,sd/-Manager" ( 57 ) THE plea of custody of Box was also raised in another casewhich raised similar questions. In Shri Vidya Prakash Sethi v. Punjab National Bank, New Delhi (Supra) a the Division Bench ofthis Court examined the plea raised by the Bank in that suit and aftermaking reference to the relevant provisions of law came to the conclusion. Reference may be made to Paragraphs 15,16,17,18 and 19of the judgment which may be reproduced as follows:"15. The question which really falls for decision isas to whether the concerned box given for safe deposit remained in the custody of the respondent bankor not and as to whether there is enough of proof onthe record for granting relief to the plaintiff. It wasfound by the trial Judge as is clear from the observations made on page 102 of the paper book that the contents of the box had been pilfered. Under tissue No. 7the learned single Judge concluded that the box didnot contain the jewellery mentioned in the plaint. Whatremains to be determined is as to whether the box remained in the legal and physical custody of the respondent so P. S to continue is responsibility to deliver it inthe same condition in which it had been offered as asafe deposit. Whatremains to be determined is as to whether the box remained in the legal and physical custody of the respondent so P. S to continue is responsibility to deliver it inthe same condition in which it had been offered as asafe deposit. It is contended on behalf of the respondent that Administration of Evacuee Propertyordinance had been issued in terms whereof the conncerned box came to be owned by , the Custodian ofevacuee Property, Pakistan. It is submitted by theappellant that similar ordinances were issued and the lawpromulgated in Pakistan as well as in India was identical. The appellant prepared a paper book pertaining to theevacuee and Rehabilitation Laws in Pakistan and Indiaand gave copies thereof to us as well as to the counselappeearing for the respondent-bank. No provisionscontrary to the provisions relied on by the appellant havebeen cited before us on behalf of the respondent to theappeal. 16. Section 6 in the relevant ordinance was tothe following effect:-"s. 6 Vesting of evacuee property in Custodian. " (1)All evacuee property shall vest in the Custodian andshall be deemed always to have vested in the Custodianwith effect from the first day of March, 1947". "402the mere vesting of the property accordingto us did not mean the losing of its physical control by the bank. The relevant Sub-Sections (1) and (2) in Section 7 make the position clear :-"s. 7. (1) Every person who is, or has a. . any timeafter the twenty eighth day of February, 1947, been inpossession, supervision or management of any evacueeproperty shall be deemed to hold or to have held, as thecase may be, on behalf of the Custodian. (2) Every person who is in possession, supervision ormanagement of any evacuee property or property whichhe knows or has reason to believe is evacuee propertyshall, as soon as may be but not later than such date asmay be notified by the Central Government in the Official Gazette intimate to the Custodian in writing hiswillingness to surrender such property to the Custodian orto any person authorised by the Custodian in this behalf and shall surrender the same if called upon by thethe Custodian or any person authorised as aforesaid. "17. "17. Interpreting the aforequoted provisions we holdthat on a plan reading thereof the suprevision and management of the evacuee property which vested in thecustodian was to be such that the property was to beheld on behalf of the Custodian and the actual physicalpossession was not interfered with. The person havingthe physical possession was to supervise or managethe evacuee property as a person acting on behaltof the Custodian. That did not mean that such a person was necessarily to lose its physical control. Onlythe supervision or management was to bedeemed as being on behalf of the Custodianand the person holding the physical possession wasto be deemed to be holding it on behalf of the Custodian. It meant that although supervising or managing theproperty while having its physical prossession the concerned person remained answerable to the Custodianand was to be deemed to be acting on his behalf. Subsection (2), is of great significance. According to thepostulation in that provision the person in possessionof the property carrying out its supervision or management was to state in writing his willingness to surrender the property to the Custodian. He was also403under a legal liability to surrender it only if called uponto do that. 18. The respondent bank has failed to prove that thecustodian of Evacuee Property in Pakistan at anytime issued any demand calling upon the respondentto surrender the property. No document has beenplaced on the record by the respondent containing anydemand by the Custodian Evacuee property. Pakistanrequiring that the box containing the appellant'sjewellery be surrendered. We will later on deal with thetransfer of the box from Pakistan to India. 19. With the law as continued to stand it remains unproved that the Custodian of Evacuee Property,pakistan, ever obtained a pyhsical surrender ofthe property and thus became possessed of it. Evenwhen there was a formal transfer of the deposits inlockers from the Banks in Pakistan to Government ofindia, it was only under the supervision of the saidcustodian and not by the Custodian taking from thecustody of the respondent and givingintof the Govermnent of India. 20. As we have observed earlier, the letter, dated the22nd of May, 1962, has been admitted in evidence because of its significance and when we will deal with thetransfer of the box, it will come in for consideration. We may, however, notice that the Governments ofindia and Pakistan passed the Transfer of Evacuee Deposits Acts of 1954. 20. As we have observed earlier, the letter, dated the22nd of May, 1962, has been admitted in evidence because of its significance and when we will deal with thetransfer of the box, it will come in for consideration. We may, however, notice that the Governments ofindia and Pakistan passed the Transfer of Evacuee Deposits Acts of 1954. The Government of India p. :ssed Actxv of 1954, dated the 26th of March, 1954, he Government of Pakistan passed Act VI of 1954, dated the 8thof April, 1954. Both the enactments provided for thetransfer of the evacuee deposits. The enactments were theresult of an agreement between India and Pakistan. The transfer of deposits was covered by thestatute. We have to examine as to in whosepossession the safe deposit box belonging. toto the appellant remained till it was transferred to thegovernment of India. In this behalf we may first referto Exhibit P. 35 a letter, dated the 7th of May. 1957. Theletter was addressed by the Manager of the respondentbank to the present appellant and was in reply to the404letter sent by him under the date 23rd 'of April, 1957. The petitioner was informed through the letter:-"we have to inform you that your safe custody articleshave been included in the list of safe custody articlessupplied by our Lahore office to the Deputy Rehabilitation Commissioner, Rents and Repairs, Lahore. "how could have the Lahore Branch of the bank suppliedthe list including the item pertaining to the box with whichthis litigation is concerned if it was not actually in thecustody of the bank? This is a document which cameinto being much earlier than the open delivery given tothe appellant on the 1st of April, 1963. There isother conclusive evidence concernecd with this aspect. Exhibit P. 64 on page 175 of the paper book is a replysent to the notice given to the respondent by theappellant through his counsel Shri R. L. Kohli. Ifanything, the reply proves to the hilt that after thebox was given for safe deposit to the bank in 1944, itall along remained with the respondent till it was givenfor a while to the Government of India under thescheme of transfer agreed to by the Governments ofindia and Pakistan. It is necessary to quote from thereplies sent by the respondent:-"the seals and the covering of the safe custody box depositedby your client with the bank became worn out with thepassage of time. It is necessary to quote from thereplies sent by the respondent:-"the seals and the covering of the safe custody box depositedby your client with the bank became worn out with thepassage of time. The bank as prudent measure putonly a wrapper to protect the seals and the coveringwhatever was left of the same by the passage of time. " ( 58 ) THE findings are further recorded in this judgment in paragraphs21 and 22 which make the following reading:21. The legal plea raised in the course of the litigation is alsopropounded in the reply to which we are making reference. The words used in the communication were:-"the said safe custody box became evacuee property underthe Evacuee legislation in Pakistan and came to be vestedin the Custodian of evacuee property and it remainedthereafter with the bank at the disposal of the Custodian. " (Emphasis added ). 405the plea that the vesting of the box in the Custodian of Evacueproperty, Pakistan, interfered with the responsibility andobligations of the bank loses all merit in the face of theforegoing admission. The reason is that the admissionclearly states that inspite of vesting in the Custodian ofevacuee Property the said safe custody box remainedafter such vesting with the bank although at the disposalof the Custodian. Such an admission made on the 16thof July, 1965, persuades us to the view that the respondentbank had admittedly the physical possession of the safecustody box belonging to the appellant before us. Itwas for that reason that the bank was acting with duecare as a bailee. 22. We may now refer to another document which is a letterdated the 17th of April, 1957, Exhibit P. 68 in thecourse whereof it was stated:-"we have to inform you that the safe custody articles of ourpakistan Branches are lying with our Lahore office andour Lahore office supplied lists of the safe custody articles lying with them to the Deputy Rehabilitation Commissioner. Rent and Repairs, Lahore. ""the aforesaid admission along with Exhibit P. 64 from whichwe have quoted leads to an irresistible conclusion thatall along the custody of the box with which this litigationis concerned along with other safe custody articles remained with respondent. Vesting in the Custodian ofevacuee Property, Pakistan, fastened an additionalliability on the bank to keep the box intact and not todeal with it in any way which may prejudice the vesting. Vesting in the Custodian ofevacuee Property, Pakistan, fastened an additionalliability on the bank to keep the box intact and not todeal with it in any way which may prejudice the vesting. The vesting however, never diverted the respondent ofthe physical custody of the box. We cannot accept thesubmission on behalf of the respondent that at any time before it was given to the Government of India underthe supervision of Custodian of Evacuee Property, Pakistan, the respondent lost its physical custody. " ( 59 ) THE facts in the present case are similar to the facts which arosein the case of Vidya Prakash Sethi. The learned counsel for thedefendant Bank has not been able to point out any distinguishingfeatures to come to contrary conclusions to the ones which have beenrendered in the above said judgment. The numerous communicationswhich have been addressed to the father, mother and to the plaintiffhimself as referred to above will also lead to irresistible conclusionthat the custody of the Box always remained with the defendant Bankand this issue is decided in favour of the plaintiff. ISSUE NO. 5whether the box was found tampered with and unlocked atthe time when it was produced and opened in the courtof learned District Judge, Delhi and if any jewellerywas found short and missing, if so. how much? ( 60 ) THE statement of the mother of the plaintiff was recordedwherein she has stated that the wrapper of the box wasdifferent to the one which had been put on the box atpeshawar when the box was handed over to the defendant Bank for safe custody. The gold jewellery/ornaments were found missing and the original sealswith the monogram of 'm. C. R. S. ' which was put onthe box were not there when it was opened before theprobate Court. The court record of. he Probatecourt (Exhibit Public Witness 3/3) would indicate that theoriginal packing had been removed and was found missing. The proceedings as recorded on January 13,1971 have been referred in the earlier part of the judgment to prove the same. In view of the above, it is,therefore,, established that the Box did not have the original packing and was found tampered with and unlocked at the time when it was produced in the Courtof District Judge and the items of jewellery werediscovered short and missing. This has already beendiscussed while disposing of issue No. 3 with regard tothe missing items. In view of the above, it is,therefore,, established that the Box did not have the original packing and was found tampered with and unlocked at the time when it was produced in the Courtof District Judge and the items of jewellery werediscovered short and missing. This has already beendiscussed while disposing of issue No. 3 with regard tothe missing items. This issue is decided accordingly. ISSUE NO. 6whether the defendant is guilty of neglect, breach of trust,misappropriation and tampering with the box, if so towhat effect? . ( 61 ) THE learned counsel has first made reference to the provisionsof Sections 148 and 151 of the Contract Act which define bailment,bailor and bailee and then has contended that the Bank has discharged its duty and care which was required to be taken by thebailee in the discharge of its contractual obligations. Thses twoprovisions of law may be reproduced hereunder:"148. A bailment" is the delivery of goods by one personto another for some purpose, upon a contract thatthey shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the "bailor". The personto whom they are delivered is called the "bailee". 151. In all cases of bailment the bailee is bound to take asmuch care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, qualityand value as the goods bailed," ( 62 ) HE has put emphasis on the provisions of Section 151 of the Indian Contract Act to reiterate that the defendant Bank as a bailee has taken as much care of the goods as 3 man of ordinary prudencewould under simitar circumstances take of his own goods and, therefore, the defendant connot be held liable under the provisions oflaw. Reference is made to the cases as reported in Dwarka Nathrai Mohan Chaudhuri and another V. Rivers Steam Navigationco. Ltd. AIR 1917 Privy Council 173; Lakhaji Dollaji andco. V. Boorugu Mahadeo Rajanna and another AIR , 939 Bombay101; Shiv Nath Ram Ram Dhari and others V. The Union ofindia AIR 1965 Supreme Court 1666 and M/s. Gopal Singh Hirasingh, Merchants V. Punjab National Bank and another AIR 1976delhi 115. Ltd. AIR 1917 Privy Council 173; Lakhaji Dollaji andco. V. Boorugu Mahadeo Rajanna and another AIR , 939 Bombay101; Shiv Nath Ram Ram Dhari and others V. The Union ofindia AIR 1965 Supreme Court 1666 and M/s. Gopal Singh Hirasingh, Merchants V. Punjab National Bank and another AIR 1976delhi 115. ( 63 ) IN Dwarka Nath Rai Mohan Chaudhuri and another (supra) the learned Judges considered the true import of the type of carerequired by the bailee in the matters of peril and extremely difficultposition which has to be established on evidence on reocrd. Thisdoes not also discharge the plaintiff from proving the want ofdue diligence, or (expressing it otherwise) the negligence of the servants of the defendant company. The following paragraph frompage 175 reads as follows:"it may be for the Company to lay the materials before thecourt; but it remains for the plaintiffs to satisfythe Court that the true inference from these materialsis that the servants of the defendant Company havenot shown due care, skill and nerve. Before applying themselves to a close examination of thefacts and such disputed points in the evidence asrequire more minute consideration, their Lordshipsdesire to observe that good sense and the policy of thelaw impose some limit upon the amount of care,skill and nerve which are required of a person in a position of duty, who has to encounter a sudden emergency. There have been many expressions of judicialopinion upon this subject, particularly in cases dealingwith ships and navigation, where emergencies oftenarise with great suddenness. For this purpose theirlordships would select the case of "the Bywellcastle. (l)In that case, which was one of collusion, the emergency wasbrought about by the previous wrongful manoeuvreof the vessel whose owners were complaining. Butthis makes no difference; the question was, what isto be required of a man who finds himself in a suddenemergency, however that emergency has been broughtabout ? In the Court of Appeal each of the Lordsjustices expressed himself in different language butto the same effect. In a moment of extreme peril anddifficulty you are not to expect perfect presence of mind,accurate judgment and promptitude. If a man is suddenly put in extremely difficult position and a wrongorder is given by him, it ought not in the circumstancesto be attributed to him as a thing done with suchwant of nerve and skill as to amount to negliganeo. If a man is suddenly put in extremely difficult position and a wrongorder is given by him, it ought not in the circumstancesto be attributed to him as a thing done with suchwant of nerve and skill as to amount to negliganeo. If in a sudden emergency a man does something whichhe might, as he knew the circusmtances, reasonablythink proper, he is not to be held guilty of negligence,because upon review of the facts, it can be seen that thecourse he had adopted was not in fact the best. " ( 64 ) IN Lakhaji Dollaji and Co. (supra) the facts indicated that theclient instructed his commission agents to purchase silver bars andto keep them with themselves and the same on purchase were keptby them unlocked among other bars against the wall of pedhi whichwas unattended and three of them were lost, the agents were heldguilty of negligence in the manner in which they kept the bars. Thefollowing paragraph 2 from pages 101-102 may be referred to asunder:"the contract between the parlies is evidenced by three telegrams sent by the plaintiffs to the defendants. Thefirst telegram read: "by five silver vilaite ready chowkas. Keep there. " The other two telegrams were insimilar terms except as to the number of bars. In myopinion the effect of the telegrams was that the plaintiffs offered to the defendants the business of buyingbars as commission agents and keeping them pendinginstructions as to delivery. No doubt the defendantscould not have been compelled to keep the bars formore than a reasonable time, but the instructions werethat the bars were to be bought and kept by the defendants. Now the defendants in acknowledging thesetelegrams reported that the bars had been purchasedand "kept there at your risk. " The learned Judgetreated the contract between the partics as a contractin which the burs were retained by the defendants atthe risk of the plaintiffs, but he held that the words"at your risk'' were not enough to absolve the defendants from the act of negligence which resulted in theplaintiffs' loss. If I agreed with the learned Judge asto the nature of the contract between the parties. I shouldnot be prepared to accept his view as to its legal effect. But, in my opinion, the contract between the partieswas not a contract to keep the bars at the risk of theplaintiffs. If I agreed with the learned Judge asto the nature of the contract between the parties. I shouldnot be prepared to accept his view as to its legal effect. But, in my opinion, the contract between the partieswas not a contract to keep the bars at the risk of theplaintiffs. The offers contained in the telegrams wereaccepted by the defendants when they executed them. andin my view the contract required the defendents to keepthe bars as bailees for a reasonable time, and they werenot entitled to add. new term to the contract by providing that they were not to be under the ordinaryliability which attaches to bailees. " ( 65 ) IN Shiv Nath Ram Ram Dhari (supra) the Supreme Courtwas dealing with the question which arose in the appeals from thejudgment of the High Court of Punjab as to whether the Union ofindia was liable to the consignees of different commodities or goodswhich were consigned to them by rail from various places in thecountry on account of their non-delivery. The period of endorsement to the Railways was the period of communal disturbances inaugust and September, 1947 after partition of India and Pakistan. It was held that the Court could take judicial notice of such events. Paragraphs 11. 12 and 13 of this judgment may he reproduced asfollows:" (11) It was urged by learned counsel appearing for thedifferent appellants that the diary maintained by thestation staff at Assoli is unreliable and that if that diaryis rejected there is no evidence to show that the wagonshad been looted. We will keep the daiary out of ourconsideration. There is, however, in the first placethe evidence of the Station Master and the Assistant. Station Master to the effect that the wagons had beenbroken open. This evidence was no doubt, rejectedby the trial Court but was accepted by the High-Court and in our opinion the High Court was justifiedin accepting this evidence particularly because thereis corroboration to their evidence. (12) Then there is the evidence of D. W. 1 Pannalal. I Headtrains Clerk. Agra. He has stated that the wagonswhich were later found to have been broken open atasaoti were received on different dates at Agra and thatevery one of those wagons was then duly reivettedand sealed. (12) Then there is the evidence of D. W. 1 Pannalal. I Headtrains Clerk. Agra. He has stated that the wagonswhich were later found to have been broken open atasaoti were received on different dates at Agra and thatevery one of those wagons was then duly reivettedand sealed. He has also deposed that when these wagons were despatched on August 28 by N. 35 Downthey were "intact and in the same condition inwhich they were, when they were received. " Thereis nothing vague in his evidence, which sets out the numbers of each of those wagons. In addition to thisthere is the evidence of B. P. Pande. D. W. 6, Assistant District Commercial Inspector, G. I. P. Railway whowas posted at Agra at the relevant time. He says thathe had made a list of the property looted and also ofthe property not looted from the wagons which hadbeen borken into. He inspected these wagons between September 27 and 29th and he has stated thatsome of those wagons had been completely lootedwhile some were looted partly and many others wereintact. He had brought with him a list made by him butthe trial Court refused to permit its production in evidence on the ground that it had not been relied on earlier. In our opinion the trial Court went wholly wrongin refusing to admit this document. In any case thereis the evidence of this person and we see no reason fornot accepting it. We are satisfied that the High Courtwas perfectly right in holding that the consignmentswere lost as a result of looting. (13) In so far as C. A. No. 505 of 1962 (Jeet Singh vs. Unionof India) is concerned. Mr. Agarwala has brought toour notice that neither in the evidence of the Stationmaster nor in that of any other witness has it been established that the wagon in which the consignment ofthe appellant therein was being carried has been shownto have been broken open. That is indeed so. Butmr. Patwardhan, appearing for the respondent says thatsince the incident itself, that is of the looting of the wagons. had been established and since the evidence clearlyshows that the wagons had been broken open the merenon-mention of the number of the Particular wagon inwhich the appellant's consignment was being carriedhas not been specifically deposed to by any one wouldmake little difference. Patwardhan, appearing for the respondent says thatsince the incident itself, that is of the looting of the wagons. had been established and since the evidence clearlyshows that the wagons had been broken open the merenon-mention of the number of the Particular wagon inwhich the appellant's consignment was being carriedhas not been specifically deposed to by any one wouldmake little difference. He also points out that thereis evidence to show that amongst the articles looted. were consignments of turmeric and the consignmentof the appellant was of turmeric and, therefore, this isan additional reason for holding that the loss of theappellant's consignment was because it had been looted. In our opinion, there is no substance in his argument. It cannot be assumed that because the other consignments were lost as a result of looting even this one whichwas not delivered could be said to have been lost throughthe same circumstance, that is, by reason of its beinglooted. Again, there is nothing to show that the otherwagons did not contain turmeric. " ( 66 ) THE dissenting view was taken by Wanchoo, W. who didnot accept the above findings and came to the followingconclusion (pages 1678-1679):"on a careful consideration of the entire evidence for therailway administration I am satisfied that this is not acase where the train was looted by a large lawless mobbent upon looting goods train on account of the communalsituation preceding the division of India in 1947. Icannot take judicial notice of there being such large mobsgoing about the country side bent on looting goods trains. All that a Court can take judicial notice of is that therewere communal distrubances in those days which isa very different thing from general lawlessness resultingin looting of goods train indiscriminately in that part ofthe country. The very fact that evans had no information of any looting till 13th September seems to suggestthat all these happened because of the station staff eitherlooking on supinely or perhaps actually being involvedin the thefts. That may also explain why at least theassistant Station Master ran away on 12th to give colouto the story of lawlessness and looting. The very fact that evans had no information of any looting till 13th September seems to suggestthat all these happened because of the station staff eitherlooking on supinely or perhaps actually being involvedin the thefts. That may also explain why at least theassistant Station Master ran away on 12th to give colouto the story of lawlessness and looting. But the attemptto show that this was done at the instance of the higherauthorities has failed: and there is no reason to supposethat the theft of goods which took place from this traincould not be avoided if the rule as to watch and wardhad been followed and if there was no persistent negligence assuming that the incidents between 4th and 9thseptember as recorded in the station diary were correct. I, therefore, hold on the evidence produced by the railwayadministration that the loss took place on account of thenegligence of the railway administration or its servantsand thus the Union of India would be liable to makegood the loss even on risk-note form 8 B in the circumstances of these cases. " ( 67 ) IN M/s Gopal Singh Hira Singh, Merchants (supra) H. L. Anand, J. also dealt with the case arising out of similar facts as aconsequence of the partition of the country. Paragraph 23 of thisjudgment makes the following reading ;"considerable oral evidence has been led depicting generallythe situation that obtained in what was then dominionof Pakistan including the district of Multan in thewake of partition of India and the holocaust that followed, the seiting up of the two dominions, insecurity of thelife and properly of the non-muslim population underthe compulsion of adverse circumstances. It is, however,unnecessary to refer to the evidence because the factumof the partition of India, the extra-ordinary breakdown oflaw and order machinery following that, the consequentinsecurity of the life and property of the non-Muslimsin the then dominion of Pakistan and the compulsivemigration of the mass of these persons to tl,e territoriesnow forming part of India and the fate that overtooktheir properties have now come to be part of historywhich does not need to be proved in any Court of law inany of these two countries and the Court would takejudicial notice of the situations that developed. It iswell settled that on the setting up of the two dominionsas a result of the partition of India, there was a totalbreak-down of law and order in the territory then forming part of Pakistan dominion with the result that therewas mass killing of the Hindu population and lootingand destruction of their movable and immovable property. In the extraordinary situation that developedthere was a compulsive mass migration of the Hindupopulation leaving behind the warmth of their hearthand home as well as their movable and immovableproperty and a vast majority of these unfortunate millions on both sides of the border migrated to the safetyof the other dominion with their meagre worldly possessions and mostly perhaps merely their will power. Inthat sort of a situation, it was not possible for any Hinduin the said territory to either protect his life or make anyarrangement for the protection of his property and whatapplied to the individual Hindus also applied to the various institutions ineluding the Banking institutions whichwere by and large manned by Hindu staff. The bankwas no exception to this with the result that even thoughsome sort of nucleus of Pakistan branches was set up bymost of the banking institutions, which migrated toindia and arrangements were made eventually to salvagesome of the properties possessed by the Banking institutions left soon after the partition, the entire staff fortooktheir duty, deserted their posts under threat to their lifeand property and left the property of the banks and otherinstitutions uncared for. It is also well known thatimmediately after the partition and in the holocaustthat followed for months together, these properties weremercilessly looted or were subjected to arson, fire andother modes of destruction. It is until after some sanitywas restored that the authorities on both sides took custody and control of what was left of the movable andimmovable properties followed by the schemes on bothsides for the take-over of the properties for payment ofcompensation and for allotment of the same to the displaced persons. The obligation of the bank, therefore,to take care of the pledged goods must be seen in thecontext of the extra-ordinary situation that developed. It is not possible to test this obligation on the touchstoneof the duties of a bank in normal circumstances. The obligation of the bank, therefore,to take care of the pledged goods must be seen in thecontext of the extra-ordinary situation that developed. It is not possible to test this obligation on the touchstoneof the duties of a bank in normal circumstances. Itis not disputed that the plaintiff, as indeed millions likethe plaintiff, had to leave the comfort of their hearthand home and left their moveable and immovable properties uncared for, to ensure protection of their lifeand preservation of whatever little they could salvagewhile leaving what was then their homeland. A testas to what a prudent person would have done in relationto his own property in the extraordinary situation thatdeveloped is provided by the conduct of the plaintiffand its partner as indeed similarly situated other unfortunate Hindus who had to migrate to the territoriesnow forming part of India. If that is what they didwith respect to their own properties as indeed the bankand other institutions did with their own properties, it isdifficult to imagine that the bank could have done anybetter with regard to the property that was pledged withit. The contention on behalf of the plaintiff that thecase of an individual was distinguishable from that ofa banking institution does not carry the plaintiff's caseany further. It is true that the banking institutionswould have better resources and perhaps then benefitof institutional functioning or a more effective representation with the authorities on the other side of the borderbut their fate was not different during the initial periodof the carnage. The further contention of the plaintiffthat the plaintiff had suggested the posting of specialstaff including a high powered Englishman to the bankand that in its failure to take any such steps, the bankfailed to discharge its legal obligation it not subtainablebecuase it was not possible for a banking institution tomake an exception in the case of an individual. Thebanking institution, as indeed other institutions, had togo by such arrangements as could possibly be made lorall their constituents who were similarly situated. Theposting of a high powered Englishman could not be saidto be a part of an ordinary care which a prudent manin the circumstances would have taken. It is quite doubtful if merely the nationality of the person posted for theafety of the goods would have made any qualitative orquantitative difference in the unfortunate result. Theposting of a high powered Englishman could not be saidto be a part of an ordinary care which a prudent manin the circumstances would have taken. It is quite doubtful if merely the nationality of the person posted for theafety of the goods would have made any qualitative orquantitative difference in the unfortunate result. Itis well known that majer looting and destruction ofthe property had taken place during the first few weeksof the carnage and the fact that some goods were takenover by the Custodian of Evacuee Property for whichthe bank had given to the plaintiff a credit referred toabove, clearely shows that the takeover process tooksometime to be initiated. The evidence led by bothsides with regard to the situation that developed and thepossible steps that could have been taken to protect theproperty does not lead to any conclusion other than theone that I have arrived at on the basis of what hadhappened according to the common knowledge andwould in the ordinary course of events have happenedin the situaiton that developed in the wake of the partition of India. In the result, I am unable to return afinding that the bank failed to take such care of the goodsas a person of ordinary prudence would have taken ofhis own in the circumstances in which the bank was placedin the extraordinary situation that developed. Thevarious cases cited on behalf of the plaintiff dealtwith the ordinary situations in which it was possible toweigh in a fine scale. the measures taken by a bailee andnone of these cases would have, therefore, any relevanceto the extraordinary situation in which the partics wereplaced. In the result, the bank could not be said to beliable to account for the pledged goods or to nay theprice thereof to the plaintiff because it had dischargedits obligation as a bailee and could not have taken anyother steps to protect the property. " ( 68 ) THE learned counsel for the defendant Bank has next referredlo the settled position with regard to bailee's duty of care as incorporated in Chapter 16 "safe CUSTODY" in Paget's Law of Banking,tenth Edition, page 268 as it is contended that the usual care whichis required by bailee was taken care of in the facts of the present case. it also deals with the accepted position in English law on the basis ofthe judgments as cited there in. it also deals with the accepted position in English law on the basis ofthe judgments as cited there in. The following paragraphs from thisbook (pages 268-270) may be referred to :" (a) Bailee's duty of care (i) Existence and scope of the dutya banker who accepts articles for safe custody is probablya bailee for reward rather than a gratuitous bailee. Thisview was expressed in Port Swettenham Authority VT W Wu and Co (M) Sdn Bhd by Lord Salmon, deliveringthe advice of the Privy Council :in any event, a bank which offers its customers, in the ordinary course of business, the service of looking after goodsdeposited with it. can hardly be described as a gratuitious bailee. The bank must realise that were it to refusea customer such a service it would probably lose thecustomer who would have no difficulty in finding another bank which would be happy to render the servicewhich is normally offered by banks to their customers. 'in practice, the distinction between a gratuitous bailee anda bailee for reward appears to make little difference tothe existence and scope of the bank's duty of care, inthat : (1) on a gratuitous bailment (as on a bailmentfor reward) the bailee may be liable for want of ordinarycare; (2) where bailed goods are lost from the custodyof the bailee, then whether he was a gratuitous baileeor a bailee for reward, the onous is on him to prove thatthe loss was not due to his failure to exercise the carerequired by law; (3) the standard of care required inproviding a service for safe custody is unlikely to differmuch, if at all, as between a gratuitous bailee and a baileefor reward, especially in the light of Lord Salmon's observation set out above. The matter was put into properperspective in Houghland v. R R Low (Luxury Coaches)Ltd. by Ormerod LJ who thought that :. . to try to put a bailment, for instance, into a watertightcompartment-such as a gratuitous bailment on the onehand, and bailment for reward on the other-is to overlookthe fact that there might well be an infinite variety ofcases which might come into one or the other category. The question we have to consider in a case of this kind,if it is necessary to consider negligence, is whether in thecircumstaces of this particular case a sufficient standardof care has been observed by the defendants or theirservants. The question we have to consider in a case of this kind,if it is necessary to consider negligence, is whether in thecircumstaces of this particular case a sufficient standardof care has been observed by the defendants or theirservants. 'the banker's knowledge or ignorance of the nature of thegoods entrusted to him would seem not to affect hisliability. A banker is under no obligation to accept a parcel for safecustody and where he is asked to do so, could ask toknow its contents and value in order to gauge the natureand extent of any possible liability; but it is submittedthat he need not inquire. (ii) Liability for dishonest acts of bank staffthe crux of the Court of Appeal decision in Morris v. C WMartin and Sons Ltd. in which a servant directed to cleana mink coat made away with it, was that the employeecommitted the fraud in the course of doing the class ofacts which the company had instructed him to do, thusapplying Lloyd v. Grace, Smith and Co. and distinguishingruben and Ladenburg v. Great Fingall Consolidatedltd. 'if the master is under a duty to use due care. . he cannotget rid of his responsibility by delegating his duty toanother; and in the case of a bailee for reward the burdenis on him to show that the loss or damage occurred without any neglect or default or misconduct of himself orof any of the servants to whom he delegated his duty. 'on the basis of Lloyd v. Grace, Smith and Co. responsibilityfor the wrongful ac Rts of bank staff would seem to dependupon whether the act can be said to be within the scopeof the servant's authority. In that case it was said bylord Shaw of Dunfermline that :'the fraud was committed in the course of, and within thescope of, the duties which the defendants had entrustedsandles as their managing clerk. . . . they must in thesecircumstances be answerable for their agent's misconduct. The decision was applied by the Privy Council in United Africaco. Ltd. v. Saka Owoade :'. . the fair inference from the facts proved is that the goodswere committed expressly to the respondent's servantsand that they converted the goods whilst they were on thejourney which the respondent had undertaken to carryout and the conversion, therefore, was in their Ldships' view in the course of the employment of the respondent's servants. Ltd. v. Saka Owoade :'. . the fair inference from the facts proved is that the goodswere committed expressly to the respondent's servantsand that they converted the goods whilst they were on thejourney which the respondent had undertaken to carryout and the conversion, therefore, was in their Ldships' view in the course of the employment of the respondent's servants. There is in their Lordships' opinionno differnce in the liability of a master for wrongs whether for fraud or any other wrong committed by a servantin the course of his employment. 'the authorities were reviewed by the Court of Appeal inmorris v. Martin and Sons Ltd. in which Lord Denningm R said that ;'from all these instances we may deduce the general proposition that when a principal has in his charge the goods orbelongings of another in such circumstances that he isunder a duty to take all reasonable precautions to protect them from theft or depredation, then, if he entruststhat duty to a servant or agent, he is answerable for themanner in which that servant or agent carries out hisduty. If the servant or agent is careless so that theyare stolen by a stranger, the master is liable. So alsoif the servant or agent himself steals them or makes awaywith them. 'salmon LJ, at78 said that :'a bailee for reward is not answerable for a theft by any ofhis servants but only for a theft by such of them as aredeputed by him to discharge some part of his duty oftaking reasonable care. A theft by any servant who isnot employed to do anything in relation to the goodsbailed is entriely outside the scope of his employment andcannot make the master liable. 'the matter obviously depends in some degree upon the extentof the authority which the servant may be expected tohave and, of course, on any knowledge in this respectof which the plaintiff may be possessed. 'the matter obviously depends in some degree upon the extentof the authority which the servant may be expected tohave and, of course, on any knowledge in this respectof which the plaintiff may be possessed. The extent ofthe apparent or implied authority will depend in partupon the status of the staff officer concerned; as wassaid by the Privy Council in Bank of New South Walesowston ;'the duties of a bank manager would usually be to conductbanking business on behalf of his employers, and whenhe is found so acting, what is done by him in the way ofordinary banking transactions may be presumed, untilthe contrary is shown, to be within the scope of his authority; and his employers would be liable for his mistakesand under some circumstances, for his frauds, in themanagement of such business. 'similar citations may also be referred from various works on Law ofbanking. Firstly, the following paragraph (from pages 81-82) fromlaw of Banking by Lord Chorley may be referred to :"bailmentsdeposit for safe custody is a branch of the law of bailments. A bailment is the delivery of movable property by oneperson (the bailor to another (the bailee) on condition419that it shall, in due course, be rcdelivered to the bailoror to his order. An ordinary commercial bailment iscontractual, but voluntary bailments (i. e. where thereis no consideration) are technically not contractual. For practical purposes, the most important question whicharises in connection with bailments relates to the standardof care which the bailee must observe in relation to theproperty while in his custody. If goods are lost or damaged or destroyed while in a bailee's charge, is he responsible to his bailor? The answer is that an ordinaryor common bailee for safe custody is not responsible forsuch loss unless this was caused by some negligence onhis part, or unlest he deliver to a third party withouthis customer's authorisation, or possibly as a result ofthe fraudulent conduct of his servant. The second of these possibilities can be dismissed quickly. A person who wrongly disposes of another's goods ordocuments of title so as to deprive him of possession isguilty of conversion and liable to pay the value to theowner as compensation. It is immaterial that the wrongful conversion was made bona fide and without negligence. A banker who is asked to redeliver valuables. A person who wrongly disposes of another's goods ordocuments of title so as to deprive him of possession isguilty of conversion and liable to pay the value to theowner as compensation. It is immaterial that the wrongful conversion was made bona fide and without negligence. A banker who is asked to redeliver valuables. deposited with him for safe custody, to any person otherthan the depositor himself must satisfy himself fully asto that person's credentials before handing the goods ordocuments to him. If necessary, the banker may reassure himself by reference to the customer personally. It has been suggested that such action which might involve a refusal for the time being to make delivery to aperson who is actually entitled to receive the propertywould amount technicaily to conversion. It has beensaid, however, that "a refusal to deliver up goods to theowner on the ground that the holder must have time toascertain whether he is the owner, is no conversion. " ( 69 ) J. Milnes Holden in his Law and Practice of Banking (thirdedition) also deals with the liability of bailee. The following paragraphs (from page 316) read as under :"10. 84 Turning then to the subject of bankers as bailees, onemay say that the care which a banker is obliged to take issuch care as an ordinarily efficient and prudent bankerwould take in similar circumstances. The followingillustrcations maybe given. If a bank locks up its customers' valuables in the strongroom and if thieves succeedin breaking into that strongroom and stealing the customer's valuables, the bank will not be liable. If, however, the bank's officials carelessly leave a customer'sdeed box outside the strongroom and it is stolen, thiswill be a clear case of negligence and the bank will beliable accordingly. Again, if a bank discovers that aloss has taken place and thereupon fails to take promptsteps to recover the property by informing the owner orthe police, this too will amount to negligence. Disclaimer of liability10. 85 Some banks are content to accept articles for safe custody subject to the obligations imposed upon them atcommon law. In the case of other banks, their safecustody service is the subject of a special contract inwhich it is stipulated that the bank will not, in any circumstances whatsover, be liable for loss or damage toarticles accepted for safe custody. 85 Some banks are content to accept articles for safe custody subject to the obligations imposed upon them atcommon law. In the case of other banks, their safecustody service is the subject of a special contract inwhich it is stipulated that the bank will not, in any circumstances whatsover, be liable for loss or damage toarticles accepted for safe custody. However, in view ofthe provisions of the Unfair Contract Terms Act, 1977,it may be that banks are no longer able to rely uponsuch disclaimers of responsibility. It seems that such adisclaimer would be effective only if the bank could showthat the exclusion of liability was reasonable. " ( 70 ) T. G. Reddy in "the Law relating to Banking" the care asrequired by the bailee has been discussed as follows (pages 81-82) :" (IV) Bailmenta bailment arises where personal property is delivered by onepatry (the bailor) to another party (the bailee) on a condition express or implied that the property shall be returned to the bailor or disposed of in accordance withhis directions as soon as the purpose for which the bailment arose has been fulfilled. Bailment can exist independently of contract, though there is often a contractto set out the terms and conditions. Examples of bailment are hire-purchase, pledge, carriage of goods, delivery of goods for repair, etc. and the point at which banksbecome involved-safe custody. Warehousemen, ofcourse, are bailees, but they are more concerned withthe preservation of merchandise, than the safety of valuables, which is the banks' special concern. lt is generally considered (though opinions to the contraryhave been expressed) that bailment is not implied in theordinary banker and customer relationship, i. e. there isno obligation on a bank to accept property from a customer for safe custody. Such facilities might be expresslyagreed when the account is opened, but this would beexceptional, and normally safe custody items are acceptedat the banks' discretion, so that they would be declinedif they were too bulky, or undesirable for some otherreason. Another unresolved difficulty is whether banks are gratuitous bailees, or bailees for hire or reward, because, apartfrom the special case of safe deposit facilities for whichbanks charge a periodical rental and which are availableto the general public, banks do not make a special chargefor safe custody services. Another unresolved difficulty is whether banks are gratuitous bailees, or bailees for hire or reward, because, apartfrom the special case of safe deposit facilities for whichbanks charge a periodical rental and which are availableto the general public, banks do not make a special chargefor safe custody services. It is argued that in so far asthis may be borne in mind when assessing the commission to be debited to a customer's account, the bank maybe deemed to be a paid bailee. On the other hand, somecustomers who utilise the safe custody service may notbe charged any commission because of a substantialaverage credit balance on their account or the value oftheir connections. However, the difference has littlepractical effect, since banks take the same care of theitems in their strong rooms whatever sort of bailee theymay actually be. Legally, a gratuitous bailee is boundto take the same care of the property as a reasonablyprudent man with the same facilities at his commandwould take in respect of similar goods of his own; whereas a paid bailee is expected to have the best possiblesafeguards and to exercise the same degree of care andskill as may reasonably be expected in the ordinary andproper course of a similar businees to that for which heis paid. To counter modern criminal's scientific progress in safe breaking, banks are constantly improvingtheir strongrooms at great expense and so their standardof care of customers' property entrusted to them forsafe custody does not fall below that expected of a paidbailee. In Moynihan v. National Bank Ltd. (1969)Lady Moynihan sued for the loss of her jewels whichwere kept in a deed box at the bank and were stolen ina weekend raid on the bank's strongroom. The bankdenied negligence: however, during the hearing the casewas settled for an undisclosed sum. Thus, the bank will not be liable if property held in safe custody is destroyed by fire or otherwise, lost or stolen unless there is negligence on the part of the bank, and thedegree of negligence required to establish liability willdepend on the relevant circumstances of the case, including what type of bailee the bank is held to be. Customersshould therefore be advised to insure the items they deposit; in fact, they will be quoted a lower premium bythe insurers then would be the case if the items were kepton their own premises. Customersshould therefore be advised to insure the items they deposit; in fact, they will be quoted a lower premium bythe insurers then would be the case if the items were kepton their own premises. If the bank seeks to excludeor limit its liability as bailee in any way then by theunfair Contract Terms Act, 1977 (discussed in Chapter 1)the term or notice to that effect must satisfy the test ofresonableness. " ( 71 ) THE law in relation to the duty of bailee and negligence hasbeen cited above. The facts of the case may now be examined. Thebox was entrusted to the defendant Bank at Peshawar. The samewas accepted by the Bank as a bailee and it was expected that the usualcare which is demanded in such matters would be taken. The partition of the country took place and there was no doubt that in viewof the uncertainity and there was arson and looting as a consequenceof which thousands of people lost their lives as well as their goods. Here in the present case, the entrustment by the plaintiff's father whowas an eminent lawyer at Peshawar is not denied. The jewellerybox was locked, wrapped and sealed when it was handed over to thedefendant's Branch at Peshawar. The contents of the box have beenheld as duly proved in the findings as recorded in respect of issue Nos. 3 and 5. Similarly, it has been held on the basis of the evidence andfindings as recorded in respect of issue No. 4 that the custody of thebox throughout remained with defendant No. 1, whether it was atpeshawar Or Lahore or it was in Delhi. The proceedings in the courtof District Judge at Delhi (Exhibit Public Witness I/3) in probate case No. 72 ,of 70 clearly showed the condition of the box at the time it was opened. and also about the contents which were recovered after the opening. On. facts, it has been established that the defendant Bank did not deliverthe box in the same condition it was entrusted to the Bank in Peshawarby. the father and mother of the plaintiff. It is also proved on recordthat the. Lahore Branch of the Bank put their own wrapper on thebox and the box was not locked. The evidence of the mother of theplaintiff clearly establishes the contents of the Box as well as the itemsof jewellery/ornaments placed in the same. the father and mother of the plaintiff. It is also proved on recordthat the. Lahore Branch of the Bank put their own wrapper on thebox and the box was not locked. The evidence of the mother of theplaintiff clearly establishes the contents of the Box as well as the itemsof jewellery/ornaments placed in the same. ( 72 ) THE defendant Bank has not led any evidence to the contrary. The facts in the case of Shiv Nath Ram Ram Dhari (supra) wouldindicate that the Court did not grant relief in one case which washeld to be a case of looting due to unforeseen circumstances but confirmed the decree of the High Court in respect of other cases whareno looting was proved. The Court held that it cannot be assumedthat because other consignments were lost as a result of looting eventhis one which was not delivered could be said to have been lost throughthe same circumstances, that is, by reason of its being looted. Inthe present case no such pleas of looting and arson have been raisedby the defendant Bank nor any evidence has been led that the jewellery/ornaments were tampered with or looted or missing from thebox as a result of unforeseen circumstances as presently highlightedby the defendant Bank. Similarly, the learned Judge in M/s. Gopalsingh Hira Singh, Merchants (supra) was only dealing with the goodswhich were pledged with the Bank consisting of Kappas, cotton seeds,cotton seed cakes and cotton, seed oil etc. The finding was recordedin the following manner ;"a test as to what a prudent person would have done in relation of his own property in the extraordinary situationthat developed in Pakistan after the partition of India isprovided by the conduct of the plaintiff and its partneras indeed similarly situated other unfortunate Hinduswho had to migrate to the territories now formingpart of India. Since the employees of the pledgee bankwere mostly Hindus the staff forsook the duty and theproperty pledged with the bank was also left behind uncared for. Hence the Bank could not be said to be liableto account for the pledged goods or to pay the pricethereof to the plaintiff because it had discharged its obligation as a bailee and could not have taken any othersteps to protect the property. " ( 73 ) THE facts are quite different in the present case where the entrustment of the Box has been admitted. " ( 73 ) THE facts are quite different in the present case where the entrustment of the Box has been admitted. The custody remained with thedefendant Bank. The box has been produced in Court and only theitems of ornaments/jewellery are found missing. The defendantbank has, therefore, failed to discharge its duty as required in law. In National Bank of Lahore Ltd, Delhi V. Sohan Lal Saigal and othersair 1962 Pandh 534 (24) the Division Bench held that a principal isliable for the fraud of his agent acting within the scope of his authority. The law on the subject as elaborately stated in paragraphs 6 and 7 ofthis judgment may be referred to as below:" (6) The next case on which reliance was placed by the learnedcounsel for the appellant Bank is Bombay Burmah Tradingcorporation Ltd. vs. Mirza Mohamed Ally, ILR 4 Cal116. Their Lordships of the Privy Council, after referring withapproval to the exposition of Willes, J. in Barwick v. English Joint Stock Bank, (1867) 2 Ex 259 and in Mackayv. Commercial Bank of New Brunswick. (1874) 5 PC 394,express their inability to apply the principles laid downin those cases on the ground that at the material time norelationship of employer and employee existed betweenthe defendants and one Darwood. In (1867) 2 Ex 259, the plaintiff had been supplying on theguarantee of the defendants (the English Joint Stockbank), oats to one J. D. who was their customer forcarrying out a Government contract. He refused to continue to make the supplies unless he got a better guarantee. Thereupon the defendants' Manager give hima written guarantee to the effect that the customer's cheque on the bank in plaintiff's favour in payment for theoats supplied would be paid on receipt of the Governmentmoney in priority to any other payment "except to hisbank" J. D. was then indebted to the bank to the amountof 12,000 pounds, but this fact was not known to theplaintiff nor was it communicated to him by the Manager. The plaintiff supplied the oats of the value of 1227pounds, the Government money, amounting to 2676pounds, was received by J. D. , and paid into the bank' butj. D. 's cheque for the price of oats drawn on the bank infavour of the plaintiff was dishonoured by the defendants, who claimed to retain the whole sum of 2676pounds in payment of J. D. 's debt to them. D. 's cheque for the price of oats drawn on the bank infavour of the plaintiff was dishonoured by the defendants, who claimed to retain the whole sum of 2676pounds in payment of J. D. 's debt to them. The plaintifffiled an action for false representation and for moneyhad and received. As the court did not wish to anticipate the verdict of the jury, it was observed that if fraudin the Manager was found, the question would arise whether the bank being the employer of the Manager wouldbe answerable for it, wills, J. enunciated the rule in thefollowing words:"the general rule is, that the master is answerable for everysuch wrong of the servant or agent as is committed in thecourse of the service and for the master's benefit, thoughno express command or privity of the master be proved. "dealing with the argument that the act had not been authorised by the master, it was observed-"it is true, he has not authorised the particular act, but he hasput the agent in his place to do that class of acts, and hemust be answerable for the manner in which the agenthas conducted himself in doing the business which it wasthe act of his master to place him in. "interpreting and explaining the above rule, the House of Lordsin Lloyd V. Grace, Smith and Co. , 1912 AC 716, laiddown that"a principal is liable for the froud of his agent acting withinthe scope of his authority, whether the fraud is. committed for the benefit of the principal or for the benefitof the agent". What had happened there was that a widow, who owned certain property, consulted a firm of solicitors and sawtheir managing clerk, who conducted the conveyancingbusiness of the firm without supervision. Acting as therepresentative of the firm he induced her to give him instructions to sell her property and to call in certain mortgage money) and for that purpose to give him her deedsand also to sign two documents, which were neitherread over nor explained to her. These documents werein fact a conveyance to him of the property and atransfer to him of the mortgage. He then dishonestlydisposed of the property for his own benefit. The firmwas held liable for the fraud committed by its representative in the course of his employment. The following passage from the judgment of Earl Loreburnis highly instructive. These documents werein fact a conveyance to him of the property and atransfer to him of the mortgage. He then dishonestlydisposed of the property for his own benefit. The firmwas held liable for the fraud committed by its representative in the course of his employment. The following passage from the judgment of Earl Loreburnis highly instructive. "it is clear to my mind, upon these simple facts, that the juryought to have been directed, it if they believed them, tofind for the plaintiff. The managing clerk was authorised to receive deeds and carry through sales and conveyances, and to give notices on the defendant's behalf. He was instructed by the plaintiff, as the representativeof the defendant's firm and she so treated him throughout to realise her property. He took advantage of theopportunity so afforded him as the defendant's representative to get her to sign away all that she possessed andput the proceeds into his own pocket. In my opinionthere is an end of the case. It was a breach of the defendant's agent of a contract made by him as defendant'sagent to apply diligence and honesty in carrying througha business within his delegated powers and entrustedto him in that capacity. It was also a tortuous act committed by the clerk in conducting business which hehad a right to conduct honestly, and was instructed toconduct, on behalf of his principal. Referring to the decision of the Exchequer Chamber delivered by Willes, J. , Earl of Halsbury observed that so farfrom giving any authority for the proposition in favourof which it was quoted, the court went out of its way todisclaim their being any doubt about the rule that theprincipal was answerable for the act of his agent in thecourse of his master's business, and the words added,"and for his benefit", obviously meant that it was something in the master's business. In 1955 AC-130, theappellant-company of General Merchants had expresslycommitted to servants of the respondent, a transportcontractor, at his lequest, goods. for carriage by road,and the servants stole the goods and the evidence established that conversion took place in the course of theiremployment, the respondent was held liable to the appellants for the value of the goods. In 1955 AC-130, theappellant-company of General Merchants had expresslycommitted to servants of the respondent, a transportcontractor, at his lequest, goods. for carriage by road,and the servants stole the goods and the evidence established that conversion took place in the course of theiremployment, the respondent was held liable to the appellants for the value of the goods. The principle established for the liability of the master for the servant'sfraud perpetrated in the course of the master's businesswhether the fraud was committed for the master's benefitor not in Lloyd's case, 1912-AC , 716 (supra), wasfollowed: (1905) I KB 237, on which the Lahore Bench had reliedin Oma Parshad's case, AIR 1937 Lah. 572, was distinguished by the House of Lords on the ground that thecriminal act of the servant had not occurred in the courseof his employment. The contract in that case was not acontract of carriage of goods but the carriage of broughamfor the parpose of driving the traveller in the course ofms business. When the traveller was absent, the servantin pursuance of an arrangement made with confederates,drove the brougham to a place where a great portionof the samples in it was stolen by them. These pronouncements of the House of Lords relating to cases in whichthe facts were quite apposite are fully applicable to thefacts of the present case for the purpose of decidingwhether the fraudulent and criminal acts of Baldev Chandwere committed within the course of him employment. In Sherjan Khan V. Alimudedi, ILR43 Cal. 511 : (AIR1916 Cal. 428), Mukherjee, J. in an illuminating judgmentdiscussed the entire case law on the point and afterreferring to Gopal Chandra v. Secretary of State, ILR36 Cal. 647, and certain other cases, made the followingobservations at page 519 :these cases recognised the doctrine that acts of fraudby the agent, committed in the course and scope of hisemployment, form no exception to the rule where by theprincipal is held liable for the torts of his agent, eventhough he did not in fact authorise the commission of thefraudulent act. There are, no doubt, dicta in seme ofthese cases, based apparently upon a misapprehension ofthe rule enunciated by Willes, J. in (1867) 2 Ex. 259, andparticularly of the expression "for the inaster's benefit". The true meaning and scope of the rule, however, hasnow been settled beyond controversy by the decision ofthe House of Lords in 1912 AC 716. There are, no doubt, dicta in seme ofthese cases, based apparently upon a misapprehension ofthe rule enunciated by Willes, J. in (1867) 2 Ex. 259, andparticularly of the expression "for the inaster's benefit". The true meaning and scope of the rule, however, hasnow been settled beyond controversy by the decision ofthe House of Lords in 1912 AC 716. "the learned counsel for the appellant wanted to rely onthe earlier Calcutta decision, but in view of the criticismof Mookerjee, J. in the subsequent decision, it is notpossible to accept the law laid in the earlier case ascorrect. In Dina Bandhu V. Abdul Latif Molla, 68 Ind case 4391 : (AIR 1923 Cal 157), defendants 2 to 4, who were boatmen. as agents of defendant No. 1, the owner of the boat,entered into a contract with the plaintiff to carry hisgoods from one place to another. The goods havingbeen misappropriated on the way by defendants 2 to 4the plaintiff instituted a suit for recovery of the price. Defendant No. 1, the owner, was held liable for the lossin accordance with the rule that a principal is liable forthe fraud of his agent acting within the scope of hisauthority, whether the fraud is committed for the benefitof the principal or for the benefit of theagent. This again is a judgment of the Calcuttahigh Court and we have not been shown anyindian decisions which may have taken a contrary viewwith the exception of ILR 36 Cal 647 and to a certainextent AIR 1937 Lah. 572. (7) The learned counsel for the responsdents has invitedour attention to certain American decisions, whichdirectly dealt with the liability of the Bank in the matterof any loss incurred by safe deposit box holders on accountof the fraudulent and criminal acts of the Bank'semployees. In Sporsem V. First National Bank of Poulsbo, 233pacific Reporter 641, the plaintiff" had brought an actionfor the losses sustained by reason of the burglarizing ofthe safe deposit boxes which had been leased from thedefendant-Bank. The customer had to pay an annualrental and sign. a little contract which was printed on theback of a card. It was held that the Bank was in theposition of a bailee and was bound to exercise the samedegree of care that was required from a bailee. In Blair Vs. The customer had to pay an annualrental and sign. a little contract which was printed on theback of a card. It was held that the Bank was in theposition of a bailee and was bound to exercise the samedegree of care that was required from a bailee. In Blair Vs. Riley, 175 NER 210, the plaintiffs had deposited their available securities in what is called safetydeposit boxes which were held by them under contractof rental with the Bank. These securities had disappeared. The access to the boxes was made possible by entrustingthe boxes and contents on occasions to Browning, whowas the cashier of the Bank, through whom the partieshad dealt with the Bank or by entrusting to him the keyswhich were required to be used in conjunction with themaster key held by the Bank to open the boxes. It wasa practice of the cashier to assist the customers of thebank in their business transactions. It was held that thecircumstances under which the cashier so acted weresuch as to justify the conclusion that be was acting forand on behalf of the Bank. The Court of Appeals ofohio treated the relation of box-holder and the Bank asthat of special bailment. The defence of the Bank thatit could rest on the broad principle of landlord and tenantwas rejected. was repelled. The bank had asserted that it had useddue care in the selection of the cashier and its officershad not been put on notice as to his misconduct and,therefore, they should not be held responsible for hisbreach of trust with the patrons of the Bank. This was negatived by reference to Citizens' Savings Bankv. Blakesley, 42 Ohio St. 645, in which the rule had beenstated thus:"where a transaction with an incorporated bankingassociation properly pertains to the business of scuh anassociation, neither the abuse or disregard of his authorityby its managing officer or agent, nor his fraud or badfaith will be permitted to be shown in defence of suchbank in an action against it by an innocent party, growingout of such transaction. "the learned counsel for the appellant has sought toassail the theory of a bailment being created in suchcircumstances on the ground that the definition of bailment given in the Indian Contract Act would not justifythe view that a relationship of bailor and bailee comesinto existence between persons who take on rent a lockerin a safe deposit vault and the bank. "the learned counsel for the appellant has sought toassail the theory of a bailment being created in suchcircumstances on the ground that the definition of bailment given in the Indian Contract Act would not justifythe view that a relationship of bailor and bailee comesinto existence between persons who take on rent a lockerin a safe deposit vault and the bank. Section 148 defines"bailment" as "the delivery of goods by one person toanother for some purpose, upon a contract that they shall,when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the personsdelivering them". As has been pointed out in Pollock and Mulla's Indiancontract Act (8th Edition), it was the late Mr. Justicestory's work on Bailment and Agency, which hadacquired a classical reputation, which had been largelyused in the chapter of bailment in the Indian Contractact and in other chapters. The learned counsel for the appellant has not been ableto show that the American Law is in any way differentfrom the Indian Law, the basic conception of bailmentderived from the Raman Civil Law being the same Inboth systems. It may be that the person who hires alocker retains some control over it by having one keywith himself but if the locker can be operated withoutany key, as was possible in the lockers which were rentedout to the plaintiffs, then at once any impediment in theway of control and possession of the Bank to whom thelocker belonged and in whose strong room it was to befound, would be removed and it could well be said thatthe bank was strictly in the position of a bailee. Thisis an additional ground for making the Bank liable butits liability has been properly and correctly determinedby the trial court on the other rule, namely, the liabilityof the master for the fraudulent and criminal acts of theservant committed in the course of his employment. " ( 74 ) THIS Court in the case of Vidya Prakash Sethi (supra) raisingsimilar question considered the plea of negligence and duty of a bailee. It was held that the Bank remained liable for the price of items ofjewellery found missing and calamity of partition did not absolve thebank from its responsibility as a bailee. " ( 74 ) THIS Court in the case of Vidya Prakash Sethi (supra) raisingsimilar question considered the plea of negligence and duty of a bailee. It was held that the Bank remained liable for the price of items ofjewellery found missing and calamity of partition did not absolve thebank from its responsibility as a bailee. Paragraph 28 of the judgmentmay be referred to as below:"apart from section 154 the bank having held the physicalcustody of the box and having interfered with the originalwrappings and seals put by the appellant without havinggiven him opportunity of inspecting the box and itscondition, acted in circumstances which raise suspicionthat someone interfered with the contents of the boxduring the bailment and for that reason the originalwrappers and the seals were so damaged that the samehad to be discarded or placed under a new wrapper bythe bank authorities which wrapper had to be clampedunder new seals of the bank. No case has been madeout for exonerating the bank from its responsibility. We cannot uphold the findings by the learned Singlejudge recorded under issue No. 8 and we are of the viewthat the bank remains liable for the price of the itemsof jewellery which were found missing on the 1st of April,1963. We cannot hold that by operation of law the bankwas over divested of the physical custody of the box. As discussed in detail, the physical custody of the concerned box always remained with the. respondent bank. We are also in disagreement with the view that thecalamity of the partition absolved the respondent bankfrom its responsibility as a bailee. In reply to the letterdated the 22nd of May, 1962, the bank never repelledserious allegations that the contents of the safe depositshad been interfered with and fresh wrappers and sealshad been put on the safe deposits behind the back of thedepositors. We, therefore, accept the appeal and decreethe plaintiff's suit. The suit was filed on the 28th ofmarch, 1966, and the finding by the trail Judge was thatin case of his success the plaintiff was to be entitled to theprice of the jewellery as stated in the plaint. The decrecis being made for a sum of Rs. 32,397 and the appellantwill be entilted to receive ruterest at the rate of 6 per centper annum as from the 28th of March, 1966, till the dateof realisation. The decrecis being made for a sum of Rs. 32,397 and the appellantwill be entilted to receive ruterest at the rate of 6 per centper annum as from the 28th of March, 1966, till the dateof realisation. He has gone through great hardship andhis claim has been resisted without justification. We,therefore, allow him the costs of the suit as well as of theappeal. A decree will be drawn Up in accordance withthese observations. The appeal being allowed is herebydisposed of. " ( 75 ) SH. Dharam Vira, the then Secretary to the Government ofindia, Ministry of Rehabilitation also complained to the Generalmanager of the defendant Bank on May 22, 1962 to the effect that thelockers and safe deposits of displaced parsons field withbanks in the two countries which had been transferred from one country to the other at Government level had been tampered with. 47safe deposits belonging to displaced persons held with branches inpakistan were handed over to the representatives of the Governmentof India through the custodian of Evacuee Property Pakistan by thelahore Branch on November 30, 1961 and it was observed that allthe safe deposits handed over by the Bank had new packings and borethe seals of the Bank. It was also noticed that in 10 cases out of the12 safe deposits transferred to the claimants, the depositors complained that whole or substantial part of the jewellery from their safe deposits were found missing. The copy of the letter has been referredto in the earlier part of this judgment. ( 76 ) IN view of the facts and law as stated above, it is establishedthat the defendant Bank failed to diseharge its duties as a bailee anddid not fake care of the goods of the parents of the plaintiff as wewould under similar circumstances, take of his own goods of the samebulk, quality and value as the goods bailed. The goods were not alleged to be lost nor proved to be lost as a result of dacoity, looting andfire or other accident over which the Bank had no control. Thebox was in the custody of the defendant Bank and it was producedbefore the court of District Judge in the probate proceedings whereit was found that the original wrappers and the seals were missing andthe same were replaced by the wrapper of the Bank's branch at Lahore. Thebox was in the custody of the defendant Bank and it was producedbefore the court of District Judge in the probate proceedings whereit was found that the original wrappers and the seals were missing andthe same were replaced by the wrapper of the Bank's branch at Lahore. ( 77 ) THIS issue if,, accordingly, decided in favour of the plaintiffand aginst the defendant Bank. Whether the defendant No. 1 refused to give open deliveryto the plaintiff's mother, if so, to what effect? ( 78 ) THE defendant Bank has not denied that it refused to giveopen delivery to the plaintiff or plaintiff's mother. In any case,the documents as referred to in Exhibits Public Witness 4/24, Public Witness 4/35 and Public Witness 4/43would indicate that the Bank did not accept to give open delivery. Exhibit Public Witness 4/24 is a letter addressed by the Bank to the plaintiff datedaugust 8, 1966 which reads as follows :"shri Jagdish Chandra Trikha,s/o Late R. S. Mool Chand Advocate,11/123, Double Storey,tilak Nagar,new Delhi-18dear Sir,ref; Safe deposit relating to Late R. S. Mool Chandadvocate, Peshawarwith reference to your letter dated 22. 7-1966,the box in question as it was received by us fromgovernment of India, is lying with us merely for itdelivery to the rightful owners and we regret our inability to accede to your request for giving its open delivery. Yours faithfully,sd/-Manager"similarly, the Bank addressed another letter dated September 15,1966 to plaintiff (Exhibit Public Witness 4/43) regretting its inability to accedeto the request for open delivery. The issue is also decided in favourof the plaintiff and against defendant No. 1. ISSUE NO. 8"whether the Defendant-Bank insisted that the plaintiff, shouldobtain letters of Administration. , if so to whateffect?" ( 79 ) THIS issue has been earlier discussed while dealing with issueno. 1 and in view of the findings as recorded in respect of that issueit is held that the defendant Bank insisted and asked the plaintiff toget letters of administration from a court of competent jurisdictionand this is corroborated also from the testimony of the plaintiff. Reference may be made to the documents Exhibits Public Witness 4/13, Public Witness 4/14,pw4/15 and Public Witness 4/25. No further detailed discussion is requiredand this issue is also decided in favour of the plaintiff and againstdefendant No. 1. ISSUE N0. 9to what amount the plaintiff is entitled to on account of lossof gold ornaments? Reference may be made to the documents Exhibits Public Witness 4/13, Public Witness 4/14,pw4/15 and Public Witness 4/25. No further detailed discussion is requiredand this issue is also decided in favour of the plaintiff and againstdefendant No. 1. ISSUE N0. 9to what amount the plaintiff is entitled to on account of lossof gold ornaments? ( 80 ) INITIALLY the plaintiff filed a suit for recovery of gold ornamentsweighing 480 Tolas equivalent to 5596. 80 grammes or price thereofamounting to Rs. 3,72,400. The prayer in this regard may be referred to as under:"in the circumstances, it is respectfully prayed that a decreefor the return of specific gold ornaments/jewelleryweighing 480 Tolas = 5596. 80 Grammes as per List attachedin Hindi more particularly described in para 3 of the plaint or its price at the present market value as on 19-11-77,the date of notice amounting to Rs. 3,72,400 may bepassed in favour of the plaintiff and against the defendant No. 1, with future interest @12% per annum fromthe date of filing till realisation and costs of the suit bealso awarded in favour of the plaintiff and against thedefendant No. 1. Any other order or relief which this Hon'ble Courtmay deem just and proper in the interest of justice bealso awarded. "subsequently the plaint was amended when the following relief wasclaimed:"in the circumstances, it is respectfully prayed that a Decreefor the return of specific Gold ornaments/jewelleryweighing 480 Tolas = 5596. 80 Grammes as per list attachedmore particularly described in para 3 of the plaint or priceat the market value of the Gold ornaments/jewelleryprevalent on the date of the judgment/decree which maybe passed by this Hon'ble Court in favour of the palintiffand against the defendant No. 1 with furure interest@12% per annum from the date of filing the suit till realisation and costs of the suit lie also awarded in favourof the plaintiff and against the defendant No. 1. Any other order or relief which this Hon'ble Court may beenjust and proper in the interest of justice be also awarded. " . ( 81 ) ADDITIONAL issues were framed on February 15. 1993 whichread as follows:1a. Whether the plaintiff is entitled to the market value of the goldornaments on the date of judgment and decree?1b. Any other order or relief which this Hon'ble Court may beenjust and proper in the interest of justice be also awarded. " . ( 81 ) ADDITIONAL issues were framed on February 15. 1993 whichread as follows:1a. Whether the plaintiff is entitled to the market value of the goldornaments on the date of judgment and decree?1b. Whether the provisions of Order 7 Rules 2 and 7 Civil Procedure Code arenot complied with in the present case?opd ( 82 ) THE learned counsel for the defendant Bank has contendedthat the delay was caused by the plaintiff and he took no steps to mitigate the damages. Therefore, he was not entitled to the value ofthe goods as on the date of passing of the decree. It is also argued thatthe value has not been proved by the plaintiff by cogent evidenceon record. The plaint does not indicate the precise amount. The relief, as a consequence, has not been specifically statedand, therefore, the plaintiff has not proved this issue. ( 83 ) THE contention raised by learned counsel for the defendantbank is that the plaintiff has not claimed any definite amount and,therefore, the relief is barred by the provisions of order 7 Rules 2 and7 of the Code of Civil Procedure. The said provisions may bereproduced as under:"7 (2) In money suits:-Where the plaintiff seeks the recoveryof money, the plaint shall state the precise amountclaimed:but where the plaintiff sues for mesne profits, or for an amountwhich will be found due to him on taking unsettledaccounts between him and the defendant, or for movablesin the possession of the defendant, or for debts of whichthe value he cannot, after the exercise of reasonablediligence, estimate, the plaint shall state approximatelythe amount or value sued for,3. Where the subject-matter of the suit is immovable property.-Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the propertysufficient to identify it, and, in case such properly can beidentified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundariesor numbers. " ( 84 ) NO relief accordingly, it is argued, can be granted as the plaintiffhas neither specified the precise amount claimed nor specifically statedthe relief which can be entertained. " ( 84 ) NO relief accordingly, it is argued, can be granted as the plaintiffhas neither specified the precise amount claimed nor specifically statedthe relief which can be entertained. ( 85 ) THE admitted fact is that the defendant Bank is in no positionto return the entire gold ornaments/jewellery which were held in trustby the Bank in Peshawar as the same have allegedly been pilfered andlost. The relief of return of the jewellery cannot, therefore, be grantedto the plaintiff in the facts and circumstances of the present case. Towhat relief then the plaintiff is entitled? Is he entitled to the value ofthe goods as at the date of the decree or as at the date of filing of thesuit? The plaintiff had in the first instance claimed the recovery ofthe gold ornaments or price thereof amounting to Rs. 3,72,400 atthe time of filing of the suit. Similar prayer is referred to in paragraph11 of the amended plaint which reads as under:"11. That at the time of filing the suit the value of the suit forpurposes of Court fee and jurisdiction for return/recoveryof 480 Tolas of gold ornaments/jewellery or the price thereof at the then market rate was Rs. 3,72,400. Thevalue of the said gold ornaments/jewellery shall be determined on the market rate as on the date of passingof the decree by this Hon'ble Court. The plaintiff is notpossessed of means sufficient to enable him to pay thecourt fee provided by law for the suit and, therefore, respectfully and humbly prays for permission to sue asan Indigent Person. The immovable and movable property possessed by the plaintiff is specified in Schedule'a' and 'b' of the Application under order 33 Civil Procedure Code. Theplaintiff undertakes to pay the court fee on the decretalamount which may be assessed/determined by this Hon'blecourt on the basis of the market value of saidgold ornaments jewellery prevalent on the date of passingthe decree, as per prayer clause of this plaint. "the reading of the above will establish that the plaintiff in fact hasreiterated the prayer made in the unamended plaint. The amendmentwhich he sought was only with regard to the market value of thegold ornaments on the date of the judgment and decree. This indeed cannot be granted to the plaintiff and he has not seriouslycontested this issue nor substantiated the same on any cogent reasoning. The amendmentwhich he sought was only with regard to the market value of thegold ornaments on the date of the judgment and decree. This indeed cannot be granted to the plaintiff and he has not seriouslycontested this issue nor substantiated the same on any cogent reasoning. ( 86 ) IN the case of Shri Vidya Prakash Sethi (supra) the Divisionbench granted the relief to the plaintiff therein on the basis of thedate when open delivery was given to the plaintiff i. e. onapril 1, 1963. The finding of the learned Single Judge wasaffirmed in this regard. In the present case. though the open deliveryof the Box was given on January 13, 1971, the defendant Bank continued to insist for grant of Letters of Administration before the matter could be further considered. Letters of Administration were grantedon December 4, 1974 and the present suit was filed on December1, 1977 within the period as perscribed under law. ( 87 ) THE plaintiff has been deprived of the goods to which he wasentitled in law and the same cannot be returned as having been lost. The price in lieu thereof has to be granted in view of the findings asgiven in respect of the issues as referred to in the judgment. In thefacts and circumstances of ths present case, it will be just, fair and equitable in case the relief for the payment of the price of the marketvalue of the goods at the time of institution of the suit i. e. Rs. 3,72,400is granted to the plaintiff which will reasonably compensatehim for the loss suffered. The price of the goods has been provedby the plaintiff as at the date of filing of the suit and no contraryevidence has been led by the defendant Bank to prove otherwise. ( 88 ) IN view of the above the Additional issue No. 1a is decidedagainst the plaintiff and in favour of the defendant. Additional issueno. 1b is decided in favour of the plaintiff and against defendant No. 1. ISSUE NO. 10to what amount the plaintiff is entitled to on account of interest? ( 89 ) IN view of the fact that the goods as well as their value havebeen withheld from the plaintiff till date, he shall also be entitled tosimple interest at the rate of 12 per cent per annum from the date offiling of the suit till the date of realisation. ( 89 ) IN view of the fact that the goods as well as their value havebeen withheld from the plaintiff till date, he shall also be entitled tosimple interest at the rate of 12 per cent per annum from the date offiling of the suit till the date of realisation. ( 90 ) FOR the aforesaid findings, I pass a decree in favour of the plaintiff and against defendant No. 1 for a sum of Rs. 3,72,400 withcosts. The plaintiff shall also be entitled to pendente lite and future. interest at the rate of 12 per cent per annum from the date of institutionof the suit till the date of realisation. The plaintiff shall pay the court-fees on the decretal amount in accordance with law.