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Parbati Debi Bagla Vs. Lachminarayan Biswas and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata High Court
Decided On
Case NumberSuit No. 844 of 1955
Judge
Reported inAIR1957Cal551
ActsSale of Goods Act, 1930 - Section 30(1); ;Evidence Act, 1872 - Section 115; ;Transfer of Property Act, 1882 - Section 41; ;Motor Vehicles Act
AppellantParbati Debi Bagla
RespondentLachminarayan Biswas and anr.
Appellant AdvocateD.C. Sethia and ;B.L. Vyas, Advs.
Respondent AdvocateM.N. Banerjee, Adv. for Defendant No. 2
Cases ReferredCentral National Bank v. United Industrial Bank
Excerpt:
- mallick, j.1. this suit is for a declaration that the plaintiff is the owner of the hindusthan motor car no. wbd 194 and for wrongful detention and conversion.2. the plaintiff's case is that on december 1, 1953, the defendant biswas sold the car to the plain-tiff for rs. 4,000/-. the said sum of rs. 4,000/- was paid to the defendant biswas in cash. the payment is evidenced by a receipt granted by biswas to the plaintiff. the entries in the account book of the plaintiff have been tendered to corroborate the fact of payment of the said sum of rs. 4,000/-. further, oral evidence has been tendered by the plaintiff's husband satyanarain bagla and other witnesses to prove the payment. i have no reason to reject all this documentary and oral evidence in support of the sale of the car by the.....
Judgment:

Mallick, J.

1. This suit is for a declaration that the plaintiff is the owner of the Hindusthan motor car No. WBD 194 and for wrongful detention and conversion.

2. The plaintiff's case is that on December 1, 1953, the defendant Biswas sold the car to the plain-tiff for Rs. 4,000/-. The said sum of Rs. 4,000/- was paid to the defendant Biswas in cash. The payment is evidenced by a receipt granted by Biswas to the plaintiff. The entries in the account book of the plaintiff have been tendered to corroborate the fact of payment of the said sum of Rs. 4,000/-. Further, oral evidence has been tendered by the plaintiff's husband Satyanarain Bagla and other witnesses to prove the payment. I have no reason to reject all this documentary and oral evidence in support of the sale of the car by the defendant Biswas to the plaintiff for the sum of Rs. 4,000/-, which was paid at the date of the sale. As is usual and required by the Motor Vehicles Act and/or the rules made thereunder, the defendant Biswas as seller made over two letters to the plaintiff, one to the registering authority, Motor Vehicles Department for registration of the car in the name of the plaintiff and another to Andhra Insurance Co. giving intimation of the sale, with a request that the insurance may be transferred in the name of the purchaser. Both these letters bear the same date, December 1, 1953. The defendant Biswas was well-known to the Baglas from before. After the sale Biswas wanted to use the car and was allowed to continue in possession of the car on a hiring agreement bearing the same date. Biswas, as the hirer, was to pay rent at the rate of Rs. 300/-per month, payable on or before the expiry of each month. The period of hire was three months, but time could be extended. Recital in the agreement is important for the purpose of this case and reads as follows:

'Whereas the hirer has this day sold and delivered the vehicle hereinafter mentioned to the owner and has taken it on hire from the owner on terms hereinafter mentioned and whereas in view of the fact that as hirer the vehicle would be till the duration of this hiring used solely by the hirer who alone would be liable for all risks and offences arising therefrom it has been left registered in the name of the hirer who has delivered to the owner sale letters in owner's favour and has and hereby further agree and undertake to have and or allow the vehicle to be registered in the name of the owner on demand and to produce same to the proper Registering Authority For such transfer of ownership on demand.'

For reasons given in the recitals, the car was not in fact registered in the name of the purchaser and neither of the letters were sent to the registering authority or the insurance company. Further, the registration book was also left in possession of the seller Biswas. The reason for leaving the registration book with the seller is not stated in the agreement or in any document, but the reason is given in Court by Satyanarain Bagla, who gave evidence in this case, According to him, the reason was that Biswas wanted it because he intended to go outside Calcutta, when it may be necessary for him to pro-duce the registration book. I do not accept it. If the reason for leaving the registration book with Biswas is what is stated now, I would have expected it in the recital of the agreement. This recital refers to the letters left with the purchaser and further records an undertaking to have the car registered in his name and produce the same for that purpose. If Mr. Satyanarain Bagla thought it necessary to record all these facts and undertaking, I do not see any reason for not recording the fact of the registration book being kept with the seller Biswas and thereasons therefor. It seems to me that the real reason for leaving the registration book with the defendant Biswas was that the plaintiff would continue to be responsible to the Motor Vehicles Department as the owner of the car and also responsible to third parties, should there be an accident and would also realise from the insurance company the money, should the car suffer any accident and for that purpose it was thought that the, retention of the registration book by the defendant Biswas was necessary. It is to be noted that in breach of the rules under the Motor Vehicles Act, no intimation was given to the Motor Vehicles Department either of the fact o transfer or of the fact of hire. Mr. M. N. Banerjee, learned counsel for the defendant Jain, commented that this deliberate failure to intimate the Motor Vehicles Department amounted to a fraud on the statute.

3. Mr. Banerjee spent considerable amount of time and energy in cross-examination and in his address to the Court to prove that the transaction evidenced by the receipt, letters and hiring agreement is a colourable transaction and that in fact there was no sale by Biswas to Bagla and no hiring, after sale, to Biswas. To accept Mr. Banerjee's contention, I have to hold that the books of account produced fay the plaintiff are not the correct books, the receipt for Rs. 4,000/- given by Biswas is a false receipt and the hiring agreement has been procured subsequently from Biswas. I shall have to hold further that Satyanarain Bagla, the plaintiff's husband, can go to the length of manufacturing account books,. letters and receipts, which cannot be done except in close collaboration with Biswas, who is admittedly a rogue. On the evidence, I am not prepared to certify that Satyanarain Bagla is a man of that character. He is certainly not a cheat. He is a perfectly respectable gentleman, a man of commerce and of law, and even though I am unable to accept portions of his evidence, I would not consider him other than a perfectly good citizen with not more than usual human failings. He is certainly not a criminal.

4. As stated before, Biswas was left with the possession of the car and the registration book, so that he was in a position to represent to any buyer that he was the owner of the car and competent to give good title to the purchaser and the purchaser after normal enquiries in the Motor Vehicles Department would not be in a position to find out the that Biswas had no title to sell the car. Biswas, in fact, sold the car to the defendant Dharamchand Jain on January 2, 1954 for Rs. 2,500/- paid in cash. The sale is evidenced by a receipt granted by Biswas to Jain. Jain obtained from Biswas two letters, one to the registering authority and one to the Insurance Company and lodged the registration book along with application for registration and the letter given by Biswas to the registering authority on the same day for registration of the car in his name. Though, however, the application for registration was made on January 2, 1954, the actual transfer was effected on June 14, 1954. It appears that the insurance expired and a new insurance was effected by Jain for one year from April 13, 1954 to April 12, 1955. According to Jain, the registration book was lying in the Motor Vehicles Department from January 2, 1954. The reason for delay of registration of the transfer, according to Jain, was due to the delay in -furnishing the insur-ance cover. Be that as it may, the evidence is overwhelming that the sale in favour of Jain took placeon January 2, 1954 and that he applied for registration on the same date, though the registration oftransfer was delayed by about four months. Toprove the fact of payment of Rs. 2,500/- in cash,Jain did not prove his books of account. He statedthat he did not keep any regular books of account.Mr, Sethia rightly urged that this evidence of Jaincannot be accepted and it must be held that Jainis deliberately withholding his books of account.Mr. Sethia, therefore, urged me to draw an adverseinference against Jain and to hold that the paymentof Rs. 2,500/- to Biswas and consequently the salehave not been proved. The receipt of Rs. 2,500/-by Biswas has been proved; registration of the carin the Motor Vehicles Department also has beenproved; and the fact of Jain being in possession ofthe car has been established in evidence. In theface of this evidence, it is not possible for me tohold that there was no sale. There is no sufficientor any evidence that the documents in support ofsale, viz., receipt, letters by Biswas to the MotorVehicles Department and to the Insurance Company, are colourable documents. I hold that thesale by Biswas in favour of Jain of the car onJanuary 2, 1954 has been proved by dependableevidence.

5. From the evidence before me I am satisfied that Jain knew Biswas from before. Jain's evidence that he just came to know Biswas a few days before the date of sale when he met Biswas in his hardware shop is not acceptable to me. Biswas was not a mere acquaintance, but he was something more. Jain was so intimate with Biswas that on his own admission Jain gave the user of the car to Biswas occasionally. Nobody gives away his car to a mere acquaintance for user. I hold that Biswas and Jain were well known to each other. It is clear that Jain purchased the car at a cheap price. Only a month back the car was sold to Bagla for Rs. 4000/- and in the course of. one month the car would not normally so deteriorate as to bring down the value to Rs. 2500/-. Jain's evidence is that the car was brought before him in a damaged condition and he spent Rs. 1500/- on repair. He was unable to produce any receipt to prove payment for repairs nor did he produce his account books. In the absence of any corroborative evidence, it is difficult for me to accept the evidence of Jain that he spent Rs. 1500- for repair. On the other hand, according to the evidence of Satyanarain Bagla, Biswas was a rash driver and it may be that there was some accident to the car on account of rash driving. If so, no explanation has been given as to why the cost of repair was not realised from the insurance company. Evidence on the point is silent. Even if Jain spe.nt some amount of money on repair, I do not think it was anywhere near Rs. 1500/-. Jain apparently was telling this untruth to cover the fact that the car was purchased by him at a relatively low price. Jain purchased the. car to make a profit out of it, He had his own car and did not need another car for his own use. This fact, namely, the low price paid, however, is not enough for me to hold that the purchase by Jain was not bona fide or that Jain knew or had suspicion that there was any defect in Biswas's title to sell the car. I do not think a shrewd man like Jain would pay Rs. 2500/- forthe car if he had any suspicion. The fact is that he succeeded in beating down prices and that was all No importance need be attached to a statement in the receipt granted by Biswas that the car was the absolute property of Biswas and nobody else has any charge, claim or lien against the car. I hold that Jain had no suspicion and he had no notice of Bagla's title in the car. Even though I am satisfied. that Jain is not at all a truthful man, so far as the transaction in suit is concerned, he is a bona fide transferee for value without any notice of Bagla's title. The fact that the price was comparatively cheap or that the transaction for sale was concluded in the course of one day, namely, January 2, 1954, does not make him anytheless bona fide transferee for Value without notice. That Jain was an innocent purchaser is proved by the fact that on April. 25, 1954 he inserted an advertisement in the Statesman offering the car for sale. The car number, the price and the name of the seller is inserted in. the advertisement. I am wholly unable to accept Mr. Sethia's contention that this advertisement was inserted to create evidence. On the contrary, I hold that insertion of this advertisement in the Statesman proves beyond doubt that Jain was an innocent purchaser and he believed that he had title to sell the car. The fact that the registration book was not with Jain at the time but lying with the Motor Vehicles Department does not prove that there was no intention to sell the car on the part of Jain. The purchaser would be taken to the Motor Vehicles Department when the registration book would be produced for inspection.

6. Events began to move rapidly immediately thereafter. According to the evidence given by Satyanarain Bagla in Court, he on reading the advertisement went and saw Jain in the guise of a prospective purchaser but did not see the car there He also sent one of his men to make an enquiry in the Motor Vehicles Department. On 26th of April 1954 he came to know from such enquiry in the Motor Vehicles Department that the car has been registered in the name of Jain on January 2, 1954. On the same day Satyanarain Bagla purporting to act as solicitor of the plaintiff addressed two letters, one to Jain and another to Biswas. In his letter to Jain he asserts that the car was in possession of Biswas till at least March 6, 1954. The story that Bagla himself went in the guise of a purchaser is however absent. He does not demand that the car be made over to his client but is content with making a query. The query was in the following terms :

'Will you please let me know by return your claim, if any, to the vehicle together with the full details and proof of such claim and also under what circumstances and for what consideration the vehicle was registered in your name left with Mr. Biswas and why it has been advertised by you?'

The letter is proved to have been sent per peon book. The entry in the peon book has been tendered and the peon gave evidence in support. I hold that the letter was actually sent and received by Jain. There was no reply to this letter. It may be that no reply was called for and I am not prepared to draw any inference against Jain for not replying to the letter. On May 3, 1954 Biswas wrote a letter to Satyanarain Bagla. This is the letter of a guilty man asking for mercy and sympathy. On 12th May 1954, the plaintiff caused a complaint to be lodgedin the Court of S. D. O., Howrah, under Sections 406 and 403 of the Indian Penal Code against Biswas and the car was seized on June 12, 1954. On June 14, 1954 Jain applied for release of the car contending that he is a bona fide purchaser for value withoutnotice. Thereupon the car was released and possession made over to Jain on his undertaking to pro-duce the car in Court whenever required. Long after, on March 28, 1955 the present suit is filed against two defendants -- Biswas and Jain. Biswas has not entered appearance and filed any written statement. It appears that after the institution of the criminal proceedings Biswas has absconded. The suit is contested by Jain, the purchaser. His defence is that he is a bona fide transferee for value without notice of plaintiff's title, if any. Plaintiff's title as the owner is also disputed.

7. In support of the plaintiff's case, plaintiff's husband Satyanarain Bagla has tendered evidence. He acted in the transaction and represented the plaintiff, his wife, all along. One Pillai, a part-time employee of Bagla Motors, of which Satyanarain Bagla is a partner, and a part-time employee under the plaintiff also gave evidence. Ramdhan Sana, a bill collector of the plaintiff, also gave evidence. These witnesses prove the sale of the car by Biswas to the plaintiff and the hiring agreement. It is proved that on account of hire a small sum of Rs. 200/- has been paid. The last two witnesses also deposed that even after the alleged sale of the car to Jain on January 2, 1954, they have seen Biswas using the car. I accept the evidence tendered on behalf of the plaintiff to the effect that there was sale of the car by Biswas to plaintiff, that the price of Rs. 4000/- was paid in cash to Biswas, that Biswasexecuted the Hiring agreement and that Biswas was seen occasionally using the car after the date of sale. Jain admits that occasionally he gave Biswas theuser, of the car. Bechu Tewari proves the deliveryof the letter dated 26th of April 1954 to Jain. Thedefendant Jain tenders his own evidence and some papers from the Motor Vehicles Department. I accept the evidence of Jain to the effect that he purchased the car and paid Rs. 2500/- to Biswas in cash on account of price. The receipt granted by Biswas proves this payment. I am satisfied that before purchase Jain made the necessary enquiry in the Motor Vehicles Department and the Insurance Company and was satisfied that Biswas was theowner of the car and as such had power to give title to Jain. As such I hold that Jain is an innocent purchaser without any notice that Bagla aloneas the owner had title to sell and that Biswas had no title to sell. Much of his evidence, however, as indicated before, is not acceptable to me but thatdoes not affect my finding about his being an inno-cent purchaser of the car for consideration and without notice of the defect in Biswas' title.

8. I intimated to the parties at a very early stage of the proceedings before me that facts are more or less clear that both Bagla and Jain are innocent victims of fraud on the part of Laxminarayan Biswas and no useful purpose would be served byelaborate cross-examination to prove that sale to either party were colourable or that either party was a party to the fraud. But in spite of repeated expression of my views, both the parties persisted in elaborate and useless cross-examination and I regret to observe that considerable time of the Court hasbeen needlessly wasted. Having regard to the value of this litigation, prudence demanded certain amount of restraint on the part of the parties.

9. The decision of this suit depends on this question, viz., whether the purchase of a car by defendant Jain is protected by Section 30(1) of the Sale of Goods Act or whether the plaintiff is otherwise is estopped from alleging that Biswas had no title to sell. If Jain's purchase is not protected by Section 30(1) of the Sale of Goods Act and/or if the plaintift is not estopped from claimnig that Biswas had no title to sell, then the plaintiff's title as owner of the car must be declared and there must be a decree for wrongful detention and conversion.

10. First let me consider whether Jain's purchase is protected by Section 30(1) of Sale of Goods Act. Had there not been a hiring agreement in this case simultaneously executed at the time of sale, there would have been no question that Section 30(1) would have protected Jain's title. But it is argued by Mr. Sethia that the existence of this agreement makes all the difference. Possession of the car after the agreement is attributable to the agreement and as such the possession becomes that of a hirer or bailee and not that of a seller who has been allowed to continue in possession of the car after sale. In order that Section 30(1) may apply, possession by the seller must be qua seller. But if the jural relationship between the parties has altered and the possession is no longer that of a seller but of a bailee, operation of Section 30(1) is excluded. It has been held in the case of 'Staff's Motor Guarantee Ltd. v. British Wagon Co., reported in (1934) 2 KB 305 (A), that the sub-section docs not apply to cases where the sale having been completed the goods were let out to the seller. It is argued by Mr. Sethia with reason that there need not be actual physical delivery of the car sold to the buyer and redelivery to the seller under a hiring agreement but it is sufficient if it is established that after the sale the seller was holding under a separate hiring agreement. (See Benjamin on Sale, 8th Edition p. 41). In the instant case, a hiring agreement has been proved and it has been proved further that Biswas paid a sum of Rs. 200/- on account of hire. Biswas's possession then after December 1, 1953, must be held to be under the hiring agreement and not qua seller. Failure to give notice of this hire to the Motor Vehicles Department, in my judgment, does not affect the position. It would therefore appear that on the facts and circumstances of this case, Section 30(1) of the Sale of Goods Act would not apply and Jain's title as purchaser cannot be held to be protected by the said section. I would however record my opinion that had there been no hiring agreement and the possession of Biswas. at the material date been not under the hiring agreement, the title of Jain would have been protected by Section 30(1) of the Sale of Goods Act.

11. The existence of the hiring agreement prevents the operation of Section 30(1) of the Sale of Goods Act. But on the facts proved in this case does an estoppel arise against the plaintiff from setting up her title as the owner of the car as against Jain whom I have already held to be an innocent purchaser of the car for value without notice of the plaintiffs title? The fact as established in evidence before me is that Biswas the admitted owner of the car in 1953 was well known to Satyanarain Bagla, the plaintiff's husband. The car was purchased by theplaintiff on December 1, 1953 and immediatelythereafter a hiring agreement was executed whereby Biswas would be entitled to use the car as a hirer. No registration of the transfer was effected as required by the Motor Vehicles Act nor was any intimation given to the Motor Vehicles Department of this hiring agreement as required by the Motor Vehicles Act and/or rules. No transfer of insurance was obtained by the purchaser and the existing insurance in favour of Biswas was allowed to continue. By reason of the non-registration of the transfer Biswas continued to appear in the registration book to be the owner of the car. Further, the registration book along with the insurance certificate was made over to Biswas by Satyanarain Bagla. According to Satyanarain Bagla, this was done to enable Biswas to represent himself as the owner to recover the insurance money in case of accident. The second reason given is that anybody who may suffer from any rash or negligent driving of the car during the period of hiring may look to Biswas for compensation and not to the plaintiff. Satyanarain's further evidence is that knowing Luxminarayan to be a rash driver he apprehended that there might be accident and in order that his wife might not be involved in it, Biswas was expressly allowed to remain as the owner and the transfer of the car to the plaintiff was not registered. In substance, Satyanarain intended Biswas to remain as the registered owner of the car so that Biswas may represent himself to be the owner of the car to the Insurance Company, to the Motor Vehicles Department, to the third parties who may suffer any accident on account of rash and negligent driving. The registration book and the insurance certificate made over to Biswas must be held to have been done for the above purposes. On these facts I am asked to hold that the plaintiff is estopped from contending that Biswas was not the owner of the car as against Jain, a bona fide subsequent transferee of the car from Biswas.

12. The case of estoppel thus made may be described as an estoppel by negligence or by conduct or by representation or by holding out of ostensible authority. It is based on the rule formulated by Ashhurst J. in Lickborrow v. Mason, (1787) 2 TR 63 at page 70 (B), to the effect that

'whenever two innocent persons must suffer by acts of a third, he who has enabled such third person to occasion, the loss must suffer.' Following the above principle, the Judicial Committee in the case of Commonwealth Trust v. Akotey, reported in 1926 AC 72 (C), made the following observation at p. 76 :-- 'To permit goods to go into 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 goods made for full value and in good faith, would bring confusion into mercantile transactions and would be inconsistent with law and principle so frequently affirmed following Lickborrow v. Mason (B).

13. It has been held however by the Judicial Committee in the case of Mercantile Bank of India Ltd. v. Central Bank of India Ltd., reported in , that 'it is impossible to accept without qualification as a true statement of law the principles there broadly laiddown in Lickborrow v. Mason, (B).' Mere negligence of the true owner which 'enabled' the rogue to cheat a third party would not be enough to create an estoppel against the owner in setting up his title to the goods. There can be no estoppel, for example, against the owner of a furniture as against a purchaser from a thief who stole the furniture when the owner left the door open carelessly and negligently. So also there can be no estoppel against the owner if his dishonest servant entrusted with the custody of the goods, sells the goods to a innocent purchaser. In both the cases it may be said that the true owner 'enabled' the thief by his negligence and carelessness to sell the goods to an innocent third party. Lord Sumner puts the principle of estoppel as depending upon a duty. See R.E. Jones Ltd. v. Waring & Gillow Ltd., 1926 AC 670 (E); Farquarson Bros. & Co. v. King & Co., reported in 1902 AC 325 (F). The rule was stated by Lord Blackburn in the case of Swan v. North British Australian Co., reported in (1863) 2 H & C175 (G), in the following terms :

'That the neglect must be in the transaction itself and be the proximate cause of leading the party into that mistake, and also, as I think, it must be the neglect of some duty that is owing to the person led into that belief, or what comes to the same thing, to the general public of whom the person is one, and not merely neglect of what would be prudent in respect to the party himself, or even of some duty owing to third persons, with whom those seeking to set up the estoppel are not privy.'

This statement of law was quoted with approval by the Judicial Committee in the Mercantile Bank's case (D), above referred to. It follows that in order to create estoppel mere negligence on the part of the true owner is not enough. Negligence must be of so serious a character as to amount to a breach of duty owing by the owner to the party defrauded or to the general public of which the party defrauded is one. It has to be considered then that in the facts and circumstances of this case, whether the plaintiff owed any duty to the defendant Jain or to the general public of which defendant Jain was one or whether the act, neglect or default of the plaintiff may be considered to be holding out Biswas to be the owner of the car in suit so as to estop the plaintiff from denying Biswas's ownership of the car.

14. Had the car been merely made over to Biswas under a hiring agreement or otherwise without the registration book, there could be no estoppel, because making over possession of a chattel does not amount to any representation that the person to whom possession is given is the owner of the chattel having right to deal with it. But making over possession of the car to Biswas along with the registration book wherein Biswas is recorded as the registered owner, in my judgment, does amount to representation that Biswas continues to be the owner of the car and as such had full right to deal with it. In fact, the reason why no transfer of registration was effected in the instant case is to allow Biswas to represent himself to be the owner to the Insurance Company, to the Motor Vehicles Department and to any party suffering as a result of any accident. The Motor Vehicles Act and the Rules made thereunder does, in my judgment, impose a duty on the owner to have himself registered as theowner in the Registration Book, which though not a document of title is considered to be the best evidence of title. The plaintiff has committed a breach of duty in not having the sale registered in the registration book and then making over the registration book to the same registered owner from whom she purchased the car. Nor did she give notice of the hiring agreement to the Motor Vehicles Department as required by the Motor Vehicles Act and the Rules made thereunder. These acts of neglect and default arc extremely serious and there is a breach of duty on the part of the plaintiff towards the world at large of whom Jain is a member. By the conduct of the plaintiff, she definitely held out Biswas to be the owner of the car and in my judgment she is estopped now from denying that Biswas was the owner of the car at the date of sale to Jain.

15. Mr. Sethia cited the case of Central New-burry Car Anation Ltd. v. Unity Finance Ltd., reported in (1956) 3 All ER 905 (H). In this case also the contest was between the original owner of a motor car and an innocent purchaser and the question arose as to which of them would suffer by a fraud of a third party. In this case the plaintiffs were motor dealers and true owners of a car. Plaintiffs delivered the car and the registration book to one Cullis who proved to be a swindler on a hire purchase agreement. Cullis representing himself to the man whose name appeared in the registration book as the last registered owner sold the car to the first defendant (another dealer) who in turn sold it to the second defendant. The plaintiff claimed title in the car against the defendant No. 1 being the purchaser from the swindler Cullis and the defendant No. 2 the subsequent transferee. The Court of Appeal consisting of Denning, Hadson and Morris, L. JJ., held by a majority, Denning, L. J., dissenting, that

'by delivering the car and the registration book to Cullis, the plaintiff had not given him the means of appearing to be the owner or having apparent authority to sell the car, since the registration book was not a 'document of title to the car and since the delivery of the car without the log book would not amount to giving Cullis apparent authority to sell it; and therefore the plaintiffs who were the true owners of the car, were not estopped from denying the title of the third parties to sell the car to the first defendant and were entitled to recover damages for conversion.'

It appears that in the Registration book in the foot of the page where the names of the registered owners are noted, the following words appear : 'Important. The person in whose name a vehicle is registered may or may not be the legal owner of the car.' Because of those words Hadson L. J. was apt to think that the registration book contains no representation that the registered owner was the actual owner of the car and entitled to deal with the car as his own. At page 915 Hadson L. J. makes the following observations :

''In my judgment the case falls to be determined, not on a consideration of negligence but on what is the nature of representation made by the delivery of the registration book. The book itself is not a document of title; its terms negative ownership and it contains no representation by the plaintiffs or anyone else that the thief was entitled to deal with thecar as his own.'

Morris L. J. is also apt to think that the registrationbook contains no representation that the registered owner is the actual owner of the car. He refers to the definition of 'owner' under the Road Vehicles (Registration and Licensing) Regulation 1956 (S. I. 1955 No. 1664) which runs as follows : ' 'Owner' means by whom the vehicle is kept and used' and in his judgment 'ownership'' is to be construed accordingly. On a consideration of the Act and the Rules, Morris L. J. records a finding that the person who is registered with the Council as the ''owner' of a car is not necessarily the legal owner. He also relies on the note in the Registration Book referred to by Hadson L. J. and noticed before. On this finding the learned Lord Justice came to the conclusion that the handing over of the Registration Book does not amount to any presentation that the registered owner was the legal owner of the car and as such entitled to deal with it. Denning L, J. recorded a dissentient judgment. In his opinion, everyone knows that registration (log) book is a good evidence of title and he cites with approval the decision in the case of Peason v. Rose, (1950) 2 All ER 1027 (I). The learned Lord Justice then continues :

'The plaintiffs must have been aware of the importance of the log book. They must have known that that when they handed both the car and the log book over to Cullis they were arming him with the complete dominion over it. *** They clearly intended to reserve no dominion , over the car themselves. How then does the matter stand? An innocent purchaser, who buys both the car and the log book acts on the assumption that the seller is the owner of them. This is a very reasonable assumption to make. *** Unbeknown to the purchaser, the seller is a rogue. It would be unfair and unjust to allow the original owner to go behind that assumption when he himself intended to part with the property in the car, or at any rate behaved as if he intended to part with it, and has armed the rogue with both the car and the log book and thus enabled him to dispose of them.'

Denning L. J. repelled the argument that the original owner owed no duty to the innocent purchaser. He held relying on the observation of Lord Wright in the Mercantile Bank's case (D), that the original owner owed a duty to any person to whom the stranger may try to dispose of them. In the result he held that in the circumstances of the case an estoppel does arise against the original owner.

16. Mr. Sethia submitted that the reason which led Denning L. J. to hold that an estoppel arises in the facts and circumstances of the case is that the possession of the car and the log book was made' over to Cullis by the true owner with the intention to sell the car and it is because of this that the learned Lord Justice held that an estoppel arises in the facts and circumstances of the case. In the instant case, however, the car and the log book was made over to Biswas not with the intention of selling the car and hence the instant case is distinguishable. It is no doubt true that the instant case is distinguishable from the case cited. The most important point of distinction is that the case cited is a case under Section 21 of the English Sale of Goods Act, whereas the case of estoppel in the instant case isapart from and independent of the Sale of Goods Act. In considering estoppel from the point of view of the Sale of Goods Act, Denning L. J., took pains to point out the distinction between obtaining goods by false pretence and larceny by trick. Law on the point is different in India. The Supreme Court in the case of Central National Bank v. United Industrial Bank, reported in : [1954]1SCR391 , held that the English doctrine of larceny by trick is not applicable in India. In that view of the matter, I think, the English case cited would not be of real assistance in deciding the instant case which is not under the Sale of Goods Act but independently of it. The comment made by Mr. Sethia on the Judgment of Denning, L. J., is justified to some extent. Nevertheless it must be admitted that the broader question of estoppel by conduct was considered by each one of the Lord Justices in that case. While Hadson and Morris, L. JJ., were apt to consider that the log book does not contain anything to show that the registered owner is the legal owner of the car entitled to deal with it and as such the making over of the log book does not amount to any representation that the registered owner has the power to deal with the car as its owner, Denning, L. J., held that the log book is a good evidence of title and the making over of the log book along with the car gives the transferee complete dominion over the car so that it amounts to a representation that the holder of the log. book and the car has the authority to deal with the car as his own. Denning, L. J., further held that the original owner owed a duty to any person to whom the car might be subsequently sold. To this extent the observation of Denning, L, J., support the defendant's case of estoppel and runs counter to the argument addressed by Mr. Sethia. Nor, in my judgment, the view of the majority, namely, those of Hadson and Morris, L. JJ,, are of any assistance to Mr. Sethia. Their Lordships based their entire decision on estoppel on the construction of the English Law and more particularly on the note typed in the log book set out before that the registered owner may or may not be the legal owner of the car. They held that the log book in its terms negatives ownership and it contains no representation by the plaintiffs or any one else that the thief was entitled to deal with the car as his own. The registration book in the instant case contains no such express notice as is contained in the registration book in England that the registered owner may or may not be the owner of the car. I imagine that under our Motor Vehicles Act, the 'registered owner1 is the legal owner as is clearly indicated by the definition in the Act. In that view of the distinction between the registration book in the English case cited and the instant case, the observation of the majority decision cannot be availed of by Mr. Sethia. It is to be noted that both the Lord Justices, Hadson and Morris, were referring to Cullis as a 'thief having regard to the doctrine of 'larceny by trick' applicable in England and a thief cannot give any title to a transfer from him. This peculiarity of the English Law must be kept in view while applying English decisions in India. In my judgment, the English case cited by Mr. Sethia is of like assistance to him. For reasons given above, the plaintiff is estopped from setting up his own title to the car and against defendant Jain. In the result the suit fails against defendant Jain and is dismissed as against him. The suit last-ed a good number of days and, as I have said, if conducted with proper discretion should not have lasted for more than two days. The defendant Dharam-chand Jain will be entitled to the general costs of the suit and two days' hearing fees. As against the defendant Biswas there will be a decree for Rs. 4,000 as damages for conversion with interest at the rate of six per cent, from January 2, 1954, to this date interest on judgment debt at the rate of six per cent., and costs on the undefended scale.


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