BRIJ MOHAN LALL, J.

( 1 ) THIS is an appeal by plaintiffs against a decree of the learned Civil Judge of Aligarh dismissing their suit against the Government of United Provinces (now Uttar Pradesh.) The plaintiffs are a son and a daughter of one Mohammad Farahim Khan. In 1923 they were minors and their grandfather, Haji Mohammad Yusuf Khan, was appointed their guardian under the provisions of the Guardians and Wards Act by the District Judge of Aligarh. One Anwarullah, who claimed to be their maternal uncle, moved an application before the learned District Judge of Aligarh on 2-7-1927. In this application he pointed out that the minors were possessed of jewellery and that the guardian was indebted. He expressed an anxiety for the protection of the minors property and made several prayers to the learned Judge including a request that the guardian might be called upon to produce the jewellery before the Court and that the same might, for the sake of safety, be deposited in bank or at any place which the Court might deem proper. On 5-7-1927 the learned district Judge issued notice of this application returnable on 18-7-1927. Later on the guardian appeared before the learned District Judge and made a statement to the effect that "the ornaments might be deposited in bank and that he had no objection. " We are not in a position to find out from the record the date on which this statement was made. Presumably it was on 18-7-1927. On 27-7-1927, the jewellery was produced before the learned District judge. It was got weighed and a list was prepared. We find from the order sheet of that date that the said jewellery was "entrusted to Nazir after enquiry and inspection. "

( 2 ) THE duty of the Nazir, as laid down in para 2 of Rule 9 of Chap. XII of the General Rules (Civil) of 1926, Vol. I (which were in force at that time), was to place the jewellery in a substantial box and this box was to be sent every evening to the treasury or to the Imperial Bank for safe custody and was to be brought back every morning from there. The Nazir, however, placed these items of jewellery in one of the two safes which were kept in his office. Time rolled on for several years till the fateful night between the 26th and 27th of March, 1930 arrived. In the evening of 26-3-1930, the Nazir, for reasons which do not appear from the record, failed to send the cash box to the treasury. This fact was perhaps noticed by others and a theft took place at night. Both the safes and the cash box were broken open In the Nazirs office and the contents were removed. They have not been traced so far.

( 3 ) THE appellants father, who had after the death of his father been appointed the minors guardian, made a petition to the learned District Judge for the return of the jewellery. This application was rejected by the learned District Judge because the jewellery was no longer in his possession. The learned Judge, in his order dated 13-9-1941, said: ,"if he has any grounds he may file a regular suit. Nothing can be done for the-present. "

( 4 ) AFTER the minors attained majority they instituted the suit which has given rise to this appeal for the return of the ornaments and, in the alternative, for the recovery of a sum of Rs. 25,000/together with pendente lite and future interest in lieu of the said ornaments. They charged the district Judge and the Nazir with negligence in keeping the items of jewellery.

( 5 ) THE defendant contested the suit and denied the allegation of negligence. Further, it was contended that the Government was not liable for the tortious acts of its servants. Lastly, it was pleaded that the jewellery was worth Rs. 4,666/10 only.

( 6 ) THE learned Civil Judge held that both the District Judge and the Nazir were guilty of negligence. Further, he held that the jewellery was worth Rs. 4,666/10. But he was of the opinion. that the defendant was not liable by virtue of the provisions of Section 38 of Bengal regulation XI of 1822. On these findings he dismissed t

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