Alvares v Karimbux (C.A. No. 2/35.) [1935] EACA 146 (1 January 1935)

## APPELLATE CIVIL.

## Before SIR JOSEPH SHERIDAN, C. J.

ANNA MARIA ALVARES, Appellant (Original Plaintiff)

IBRAHIM KARIMBUX, Respondent (Original Defendant).

C. A. No. $2/35$ .

Pledge—deposit—duty of pledgee—onus of proof of negligence.

Plaintiff alleged the deposit to secure a debt of a gold chain with locket and crucifix (both of gold) attached. Nine years later she alleged that portion of the chain together with the appendages were missing and pleaded negligence on the part of the pledgee with a view to recovering damages for the injured chattel. The magistrate dismissed the case and plaintiff now appealed against that dismissal.

$Held$ (1-3-35).—That sufficient care had been taken by the pledgee.

Gautama for appellant.—Relied on sections 151 and 152 of the Indian Contract Act. The chain was deposited entire with locket and cross. Distinguished Sanderson v. Collins (1904 1 K. B. $628$ ).

Daly for respondent.—The pledgee in the absence of negligence is not liable for any damage to the pledge if in fact such occurred while in his possession; Armfield v. Mercer (2 T. L. R.) 764); Coggs v. Bernard (92 E. R. 107 at 112).

Gautama replied.

JUDGMENT.—In this appeal I am of the same opinion as the learned magistrate, that there was no negligence on the part of the respondent while the article of jewellery was in his posession. It was given as a pledge for a debt and put in a drawer in a safe. Years later it was discovered in a drawer in a safe. As to whether it was the safe in which it was first placed is not clear depending on whether the evidence of Pandit is correct on this point. But assuming it was found in the other safe which the respondent possessed, I do not think it affects the case. That it was found in a drawer in a safe is to my mind evidence that it was the same safe in which it had been placed, for what would the purpose be in moving it from a drawer in one safe to a drawer in another safe. The facts of the case show that sufficient care, from the point of view of the pledgee discharging his legal obligation was taken. In this case I think there may very well have been a failure of recollection on the part of the witnesses as to the state in which the chain was handed over.

It seems to me to be unlikely that either the locket or the crucifix would have been handed over if they could have been detached. Religious and sentimental reasons would have suggested their retention by the pledgor and on the evidence both could have been detached without breaking the chain: the chain has not the appearance of having been broken. And applying another test on this point it occurs to me what thief, and nothing but theft can be suggested, would think of removing nine inches of chain plus a crucifix and a locket when he could much more easily take the lot. The appeal is dismissed with costs, the decision being the reasonable one to come to on the facts.