1. This second appeal arises out of a suit brought by the plaintiffs against the East Indian Railway Company for the loss of a certain parcel consigned to the Company from conveyance from Bombay to Bankipore, the value of which is stated to be Rs. 416-5-7 1/2 pies. After a prolonged correspondence a bout the claim, the plaintiffs submitted to the defendants a detailed statement of the goods contained in the parcels, and it appears from that statement that fancy silk handkerchiefs of the value of Rs. 138-2 as had been lost with the parcels. The defendants thereupon denied their liability, relying on Section 75 of the Railways Act, IX of 1890, and Schedule II thereto annexed. The Munsif and the Subordinate Judge in concurrence held that the defendants were not liable for the silk, inasmuch it had not been declared or insured. But they held that the plaintiffs can recover the value of the other goods contained in the parcel, which did not appear to have come within Schedule If of the Act.
2. The second appeal came before Mr. Justice Teunon sitting alone and he was of opinion, and rightly in our view, that, the whole case of the plaintiffs must fail if scheduled goods of the value of over Rs. 100 were in the parcel, and for this reason, that Section 75 of the present Act, differing in that respect from the former Act, says that the Railway Administration shall not be responsible for the loss, destruction or deterioration of the parcel, and not of the articles mentioned in the II Schedule. It is, therefore, clear that if this parcel contained silk in a manufactured or unmanufactured state and whether brought up or not brought up with other materials of the value of Rs. 100, the Railway Company are not responsible for anything contained in the parcel; and that was the sole ground upon which the Railway Company came before Mr. Justice Teunon in appeal. Mr. Justice Teunon, as we have seen, decided that point in favour of the Railway Company, and there we should have thought would have been an end of the matter, inasmuch as the plaintiffs did not file any cross-objection and did not say anything about the question of silk. But Mr. Justice Teunon appears to have thought that the Company could not recover anything unless there really was silk to the value of over Rs. 100 in the parcel and ho, therefore, remanded the case to the lower Court for a fresh finding as to the particular items of silk handkerchiefs and their respective values, directing that the Subordinate Judge in the first Court of appeal should come to a finding on the following issue, namely, what is the aggregate value of the handkerchiefs in which on the evidence adduced, it may be found that the value of silk exceeds the value of the other materials?
3. The learned Subordinate: bulge on remand expressed himself wholly unable on the evidence to decide this issue. But he said that he was satisfied with the statement in the plaint that the silk handkerchiefs were worth Rs. 91 and the other handkerchiefs which were not silk were worth Rs. 42 and odd, and this was a sufficient basis for making a new decree.
4. It is there that the principal question in this appeal arises. It is obvious even if the remand which was made was a competent remand, with which we shall deal presently, the Subordinate Judge could not make a new case for the plaintiffs. The finding of fact of the first two Courts before remand was at any rate conclusive that the plaintiffs had admitted to the Railway Company that they had consigned Rs. 138 worth of silk goods for them carry, and the only question that was remanded was, what was the proportion of silk in each kind of handkerchief so as to show whether the. aggregate amounted to Rs. 100 or not? We are of opinion, relying on the decision in Hiatunnessa Bibi v. Kailaash Chandra Saha 17 Ind. Cas. 224 : 16 C.L.J. 259 that the remand itself was incompetent and that we dealing with it as a, Divisional Bench are bound to treat the case as earning before us on appeal from the Subordinate Judge who heard the first appeal. It is unnecessary to go into the considerations which induced the late Chief Justice and Mr. Justice Mitra to hold in a similar case that the remand was incompetent. It is clear as a matter of principle that after there has been a decision of fact in the two Courts of original and first appellate jurisdiction, the High Court cannot entertain a second appeal upon any question as to the soundness of findings of fact by the lower Appellate Court. If there is evidence to be considered the decision of the second Court, however unsatisfactory it might he when examined, must stand final. These are the words of their Lordships of the Judicial Committee in the well-known case of Ramratan Sukal v. Nandu 19 C. 249 : 19 I.A. 1.
5. It was argued that Mr. Justice Teunon remanded the case on finding that the onus had been wrongly placed and that that was a point of law. Hut we find that he does not specifically final that there was any misplacing of the onus, he says the Courts below while placing upon the plaintiffs the whole burden of proof have proceeded, it appears solely upon the description fancy silk contained in the statement of claim, and he concludes by saying, even if the Courts below were right in throwing the whole burden on the plaintiff's in view of the expression of opinion to he found in the cases which we shall presently deal with, the finding at which they had arrived is not sufficient; and why is it not sufficient? because the possibility of equality in value has been overlooked and also the details of the value of each silk handkerchief have not been gone into. Now these points surely come within the dictum of their Lordships of the Judicial Committee as to the soundness of the findings of fact rather than as to the findings of fact themselves.
6. The learned Munsif found as a fact that from the lost supplied by the plaintiffs to the defendants it appears that the lost box contained silk handkerchiefs worth more sum Rs. 100. That prima facie clearly relieved the defendants from any burden. To avoid their liability to make a declaration and to insure the goods the plaintiff's stated that the handkerchiefs were net real silk but were known as such in the market, though they sold for no more than 5 or 6 pice each, while real silk handkerchiefs sold at Rs. 12 or 13 a dozen. They did not ask the Court to go into the question of whether there were so many at 15 annas and so many at higher price, so that the aggregate of the real silk woulel not amount to Rs. 100. They took the general statement that fancy silk meant sham silk. They then produced a witness with samples of handkerchiefs which they alleged were similar of the lost handkerchiefs, and upon this evidence and relying on the case of Lakhmidas Hirachand v. Great Indian Peninsula Railway Co. 4 B.H.C.R. 129 and on the case of Saminadha Mudali v. South Indian Railway Co. 6 M. 420 they sought to argue that such handkerchiefs could not be considered as silk within the moaning of the Aft. The learned. Munsif then said, in deciding whether a particular article when brought up with other articles is to be regarded ns silk or nod within the meaning of the Railways Act, the proper test to apply according to those decision s was to ascertain whether the value of Like silk was more than half of the whole article, he then gives his finding, the evidence placed before me is not sufficient to show that the price of the silk contained in the handkerchiefs, if any, was less than half that of the whole article.' It is argued that if we deal with this finding on the strictest mathematical I principles, it is not the finding that he set himself to find namely, that there was more than hall of the value in silk in the handkerchiefs. But having regard to what he sots out to be the necessary finding, it is obvious that he intends to find that there is a sufficient preponderance of silk in the handkerchiefs to any them within the rulings he cites; and he fortifies his finding by saying that they go by the nanus of silk in the market and are sold as such; and this brings us to the consideration of the Kngbsh case on which both the cases in India relied. H is the case of Brunt v. Midland Railway Co. 33 L.J. Ex. 187 : 2 H. & C. 889 : 10 Jur. (N.S.) 181 : 9 L.T. 690 12 W.R. 380 where Baron Pollock clear]; says, that the question whether silk in manufactured or unmanufactured state is to he treated as silk within the meaning of the English Act, the words in which are precisely similar to those in Schedule II of the Indian Act, is a question of fact which very properly might himself left to a Jury. When it is left to a Judge, the Judge must decide where the line should be drawn, that is to say, some test must be taken by the Court as to whether the case came within the definition or not. The line shifted according to the circumstances; but the question which a Judge of fact has to answer is not where to draw the line, but whether the particular article before him is within the line; and he found as a fact that in this particular case that was before him the silk did come within the Hue. In the judgment by another Judge, Baron Pigott who also treats it as a simple question of fact it is stated that in that case the ingredients of silk amounted to more in proportion and value to any other article. As a matter of fact, it was question of 2 pence in 2 shillings so that if, was very near the dividing line of half and half.
7. We do not, and indeed we cannot, bind all Courts to follow the exact test which was adopted by the Madras Court in one case and by the Bombay Court in another. Each case must depend upon its own circumstances. Where a Court has adopted a fair test and where upon that test it has found that the article is silk within the meaning of the section, that is in our opinion a clear finding of fact and the Court cannot go behind if; in second appeal. The Subordinate Judge, though he has said less, has put the matter even more strongly, he says the plaintiffs have failed to prove that the handkerchiefs were not silk handkerchiefs or rather that they contained less silk than cotton. This is sufficient to firing the easy within the schedule, and we are, therefore, of opinion that in second appeal we cannot: go behind that finding.
8. Then comes the question whether the decree made in favour of the plaintiffs with regard to the other articles can stand. We have already indicated that we agree with the view taken by Mr. Justice Teunon that it cannot, and we are fortified in that opinion by the clear decision in the case of Pundlik Udaji Jadhav v. S.M. Railway Co. 3 Ind. Cas. 964 : 11 Bom. L.R 827 : 33 B. 703.
9. The result is that the appeal is decreed and the plaintiffs' suit is dismissed with costs in all Courts.