The husband is in the position of a trustee regarding the entrusted ornaments and utensils, and under S.10 of the Indian Limitation Act, there shall not be any limitation for such a suit by the wife against the husband.

Appeal is by the plaintiff who is the wife of the defendant. The suit was for return of the plaint a schedule ornaments and B schedule utensils or in the alternative to recover the value thereof from the defendant. The plaintiff was the wife of the defendant and they have been divorced. According to the plaintiff while they were residing together, on 25-2-1979 when she received information that her brother was seriously ill in the hospital at Coimbatore, she had to go there and before going to see her brother she had entrusted the ornaments to the custody of her husband on that day. Consequent to the illness brother died and after her return the relationship between the parties became strained and later they were divorced. The plaintiff filed the suit for return of the ornaments and other utensils or in the alternative for the price.

2. Defendant raised various contentions and contended that she had not entrusted any ornaments or utensils with him and that her brother or the wife had no capacity to purchase the articles. Accordingly he prayed for dismissal of the suit.

3. The trial court overruled all the contentions of the defendant and granted the plaintiff a decree for recovery of Rs.12, 890/- with interest at the rate of 12% per annum from the date of realisation. Against the above decree defendant filed an appeal before the Lower Appellate Court. The Lower Appellate Court also agreed with the trial court that the entrustment of ornaments and utensils pleaded by the plaintiff is true and confirmed that part of the finding of the trial court. But the Lower Appellate Court held that the suit is barred by limitation as it is not filed within three years from the date of the alleged entrustment viz. 25-2-1979. Accordingly the suit was dismissed by the Lower Appellate Court and the appeal by the plaintiff is against the above decree.

4. Counsel for the appellant contended that the plea of limitation was never raised in the written statement by the defendant and the Appellate Court should not have entertained that plea at all. But, in view of S.3 of the Limitation Act it is clear that a court can consider the question as to whether a suit is barred by limitation or not although limitation has not been set up as a defense. In view of the above provision the Lower Appellate Court was perfectly justified in considering whether the suit was barred by limitation or not.

5. Counsel for the appellant contended that in the facts and circumstances of this case there cannot be any limitation at all in filing the suit is filed by the wife for return of the ornaments and utensils entrusted by her to the husband. According to the counsel the husband is in the position of a trustee in so far as the 'streedhana properties' are concerned and that he is bound to return them as and when demanded by the wife. After hearing counsel for both sides I am satisfied that there is much force in the contention raised by the counsel for the appellant. It is normal for the husband and wife to reside together after the marriage and the wife normally is not expected to keep her ornaments and other valuable articles under a separate locker and key. Normally any wife may entrust her valuable things to the husband for safe custody and by that it does not mean that the husband is the owner thereof and that he has having a hostile title thereto so as to defeat the wife by claiming that it is barred by limitation. The husband in the circumstances is certainly in the position of a trustee who is bound to account to the wife all her properties at any time when she demands. The above position has been accepted by the Lordships of the Supreme Court also in Pratibha Rani v. Surajkumar and another (AIR 1985 SC 628), which was followed by this Court in Maniyamma v. Abdul Rasaak (1989 (1) KLT 636). Though both the cases arise out of a prosecution for criminal breach of trust the principles therein stated are applicable even in respect of a suit pending before the C