1. Two questions have been raised on this petition. First, whether the burden of proof is on the consignee or the consignor under the Risk Note, Form H; second, whether the incidence of the burden of proof is affected by Section 76 of the Indian Railways Act.
2. We deal first with Section 76. We have not been shown any case in which there is a special contract or Risk Note in question and in which Section 76 has been applied. Reference has been made to Nanku Ram v. Indian Midland Railway Company 22 A. 361 : A.W.N. (1900) 111 : 9 Ind. Dec. 1274 and Sesham Pather V.L.S. Moss 17 M. 445 : 6 Ind. Dec. 308. But it is not clear that in either of these cases there was any Risk Note or was anything on which it could be said that a question of the effect of a special contract apart from the ordinary law was raised.
3. Turning to the incidence of the burden of proof, we find that in such a case as the present authority seems to be clearly against the petitioners. Ghehbhat Punsi v. East Indian Railway Company 63 Ind. Cas. 241 : 45 B. 1201 : 23 Bom. L.R. 225, relied on by and referred to in the lower Court's judgment is open to question, because it is founded very largely on the decision in Curran v. Midland Great Western Railway Company of Ireland (1896) 2 Ir R. 183 : 2 Ir. L.R. 739, and that decision has been regarded with suspicion in the recent case, Smith Ltd., v. Great Western Railway (1922) 1 A.C. 178 : 91 L.J.K. B. 423 : 27 Com. Cas. 247 : 38 T.L.R. 359. More particularly the former can, in our opinion, be distinguished in any event from the present case on the ground on which Lord Buckmaster was disposed to distinguish it from the case before the House of Lords with reference to the nature of the property in question. The bags of rice lost by the plaintiffs before us more closely resemble the boots referred to in the English case than the pigs referred to in the Irish. The form of contract in question in the case before the House of Lords was, if anything, however, worded more adversely to the Railway Company than the Form now under discussion, and yet the conclusion was clear that the burden of proof was entirely on the plaintiff. A similar conclusion had been reached in India in East Indian Railway Company v. NathmalBehari Lal 39 Ind. Cas. 130 : 39 A. 418 : 15 A.L.J. 321. East Indian Railway Company v. Nilkanta Roy 22 Ind. Cas 679 : 41 C. 576 : 19 C.W.N. 95 : 19 Cri.L.J. 142 which no doubt has been dissented from by this High Court in Madras and Southern M ah at at la Railway Company v. Mattai Subba Rao : (1920)38MLJ360 , but only on another point not now under consideration. In accordance with those authorities we decide for the defendants and dismiss the revision petition with costs.