Baijnath Prasad Singh and Another vs The Firm of Nand Ram Das and Another

Das, J.—On 11th September 1919, the plaintiffs sold a steam launch which belonged to them to Nripendra Nath Mazumdar for Rs. 13,250. Rs. 2,000 was paid in cash and Nripendra Nath agreed to pay the balance in three instalments, that is to say, Rs. 3,000 on 1st October 1919, Rs. 4,000 on 2nd November 1919, and Rs. 4,250 on 3rd December 1919. From the very beginning there was default on the part of Nripendra Nath and it appears that Rs. 5,550 has in all been paid by him towards the instalments. On 22nd June 1920, Nripendra Nath sold the steam launch to the firm of Nand Ram Das Mathura Das and the suit out of which the appeal arises was instituted by the plaintiffs as against Nripendra and the firm of Nand Ram Das Mathura Das to recover the sum of Rs. 6,589-8-0, from them or from either of them, or in the alternative for an order that the steam launch be made over to the plaintiffs.

The learned Subordinate Judge has given the plaintiffs a decree as against Nripendra, but has dismissed the suit as against the firm of Nand Ram Das Mathura Das. The plaintiffs being aggrieved by the decision of the learned Subordinate Judge have appealed to this Court. It was contended on behalf of the appellants that by virtue of this special contract between the parties, the property in the steam launch remained in the plaintiffs, and that accordingly the plaintiffs are entitled to proceed as against the steam launch since they have not received the price of the steam launch from Nripendra.

The learned Subordinate Judge thought that the property in the steam launch passed to Nripendra and that Nripendra was entitled to sell the steam launch to the firm of Nand Ram Das Mathura Das. I am unable to agree with the decision of the learned Subordinate Judge on this point. It is sufficient to refer to the letter which embodies the contract between the plaintiffs and Nripendra. That letter written by Nripendra to the plaintiffs runs as follows:

To Baijnath Prasad Singh, Zamindar, Sonepur.

Dear Sir,

The steamer "Midnapur" belonging to you, I undertake to purchase for the sum of Rs. 13,250 (thirteen thousand two hundred and fifty): this is the price settled, and I take delivery of the said steamer on 11th September 1919. Out of the said consideration money I pay Rs. 2,000 (two thousand) at once and the balance I agree to pay by following instalments: Rs. 3,000 (three thousand) to be paid in October 1910. Rs. 4,000 (four thousand) in November 1919 and Rs. 4,250 (four thousand two hundred and fifty) in December 1919. In case I fail to carry out the terms above referred to, you will be entitled to recover the whole amount with interest to be calculated at nine per cant. per annum. That I agree to hold myself responsible to you for the sole custody of the said steamer. Until the entire consideration money is paid I shall be responsible for any loss or damage done to the said steamer. That unless and until the whole amount of the price settled for the purchase of the steamer is paid, the ownership of the said steamer will rest in you and you will be entitled to get back the steamer itself or the money from me as desired by you,

I am entirely responsible for taking the steamer safely to Calcutta, and expenses in so doing is entirely mine.

Now it is quite true that the payment of the purchase money is not the criterion for deciding the question whether title in the property passes, and I entirely agree that if we did not find a clear intention expressed in the letter to the effect that the property in the steamer would not pass to Nripendra until the payment of the full consideration money, I would be inclined to agree with the learned Subordinate Judge that the property in the steamer had as a matter of fact passed to Nripendra. But it is well settled that if the parties express in terms their intention as to when property is to pass, the Court will construe the contract according to such intention, and in this case, there is no doubt at all as to what the parties intended. They agreed that the ownership of the steamer would remain in the plaintiffs until the payment of the full consideration money by Mripendra to the plaintiffs. I hold therefore that the property in the steamer remained in the plaintiffs.

But my conclusion on this point does not decide the case. Nripendra has, a matter of fact, sold the steam launch to the firm at Nand Ram Das Nathura Das, and the question is, whether the plaintiffs are entitled to a decree as against Nand Ram Das Mathura Das. There is some evidence that Gokul Das of the firm of Nand Ram Das Mathura Das was told that the steam launch was the property of the plaintiffs, but I am not disposed to place any reliance on that evidence. The facts are that, after the sale of the steam launch to Nripendra, Nripendra was allowed to carry the setam launch to Calcutta. There is conclusive evidence in the record that the plaintiffs engaged a man in Calcutta to look after their interest and that man duly informed the plaintiffs that Nripendra was about to dispose of the setam launch to Gokul Das of the firm of Nand Ram Das Mathura Das. Haji Ahmad Ali, who was engaged by the plaintiffs to look after their interests in Calcutta in the matter of the steam launch, admits that he wrote a letter to Baijnath Babu informing him that one Gokul Das had come to to purchase the steamer. Apart from that, there is a letter from Nripendra himself to the plaintiffs in which he definitely asserts that he was trying to dispose of the steam launch.

I have no doubt whatever, upon the evidence, that the plaintiffs acquiesced in the position which was taken up by Nripendra, namely, that he would sell the steam launch and pay the plaintiffs the balance of the money due to them out of the sale proceeds. That this was the definite position taken up by Nirpendra is perfectly clear from the latter dated 4th December 1919 and this was acquiesced in by the plaintiffs.

Now upon the facts the case clearly comes within the well-known statement of Ashhurst, J., in Lickbarrow v. Mason (1787) 2 TR 63.

That where one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it.

This principle is founded on the rule of estoppel and, as was pointed out by the House of Lords in Commonwealth Trust Limited v. Akotey (1925) AC 72.

to permit goods to go in to the possession of another, with all the insignia of possession thereof and of apparent title, and to leave it open to go behind that possession so given and accompanied and upset a purchase of the goods made for full value and in good faith, would bring confusion into mercantile transactions, and would be inconsistent with law and with the principles so frequently affirmed, following Lickbarrow v. Mason (1787) 2 TR 63.

It was contended by Mr. Naresh Chandra Sinha that the purchase by the firm of Nand Ram Das Mathura Das was not in good faith, and reliance is placed upon the fact that certificate of survey exhibited in the steam launch showed that the owners of the steam launch were the plaintiffs and not Nripendra. It is quite true that a certificate of survey has to be affixed and kept affixed, so long as it remains in force, on the steam vessel in use in some conspicuous part of the steam vessel where it can easily be read by all persons on board the same.

But the evidence is conclusive that the steam launch was not in use: see the evidence of Idu Mian examined on behal for the plaintiffs. He says; "Defendant 1 did not ply this steamer for fares," and he adds in cross-examination, "the steamer never plied in Calcutta so long as I was there." That being the position, there is no reason to take the view that the certificate of survey must have been affixed on some conspicuous part of the steam vessel. Apart from that the certificate of survey is not a document of title. A certificate of survey is not for the protection of intending purchasers but for the protection of the passengers and crew, and I do not think that it can be fairly argued that because there was a certificate of survey in the steam launch showing that plaintiffs were the owners of the launch, there was an obligation on Gokul Das to require the production of that certificate and to act upon that certificate.

In my opinion, the firm of Nand Ram Das Mathura Das were bona fide purchasers for value and the plaintiffs cannot proceed as against them.

The appeal fails and must be dismissed with costs.

Adami, J.

I agree.