THARPAL POKHARLAL Vs. GOVINDRAM KALUJI

JUDGEMENT

(1.) THIS is an appeal by the plaintiff whose suit for money payable by the defendants has been dismissed on, what is in effect though not in form, a preliminary issue, as to whether he has established his title to the business in the name of which he was filing the suit. There were other issued, one of which regarding the liability of the defendants as a joint family was later on accepted; the other issues have either been expressly left open, or decided against the plaintiff simply because the preliminary issue has been so decided. The question for consideration is whether the defendant having dealt with the plaintiff as the real owner of the business, and has obtained money and goods from him as such, can, when sued, question ownership and call upon him to prove it. The plaintiff -appellant was in charge of a business in money and goods styled as 'Sukhlalji Lachhmandasji'. The defendant Govindram, who is the father of the three other defendants, all members of a joint family, had certain dealings with the said business in cash and in grains. On the 22nd March, 1948, he passed an instrument to the plaintiff, which he calls an agreement, in respect of earlier dealings agreeing to pay a sum of money and to deliver certain quantity of grain. This agreement is signed by four other persons as witnesses. The plaintiff's case is that after this, Govindram entered into some more transactions which were brought into his books and had also made payments under Govind ram's signature from time to time. As a result of this, a total of Rs. 5,350 was payable.

(2.) THE defendants contested it inter alia on the ground that whatever was payable, Govindram alone was liable to pay, the transactions being ones of his own account and not of the joint family. Again, he urged that the instrument passed on 22nd March, 1948, was really not an acknowledgment by Govindram, but an award by some Panchas who, however, wrongly described themselves as witnesses to an agreement. An award should be filed and may be the rule of the Court, but cannot be made the basis of a suit. It was alleged that the subsequent transactions had not taken place. The issue which the learned Civil Judge treated as a preliminary one, was, whether the plaintiff Tharpal, who used to be in charge of the shop, was the owner or only the servant of the owner, who was really Amolakbai, widow of Pokharlal Nanvana. On the facts, the plaintiff alleged that he was a distant relation who was brought into this family many years ago, and subsequently adopted as Pokharlalji's son. Amolakbai herself had executed a deed of adoption which was registered in the manner usual in that area in the office of a local Jagirdar who had the powers of an honorary Sub -registrar. The plaintiff also examined witnesses on this. The legal position, according to him, is that, in the present litigation, his ownership cannot be challenged by the defendants who dealt with him on that basis. It is common ground that he was working at the shop in an open and systematic manner, and was at all events the ostensible owner. In the Ikararnama of the 22nd March 1948 on which the earlier part of the claim is based, Govindram states:

(3.) THE learned Civil Judge felt that the evidence was insufficient to establish that the plaintiff had really been adopted and that, according to law the non -examination of Amolakbai was, according to him, almost fatal to the plaintiff's case in this regard. With all respect, we feel that his approach was incorrect. The real question was not in regard to the plaintiff's right in rem as the owner of the business or the basis of a valid adoption, but whether having begun to deal with him as the owner of the business, the defendants can now question this. The statement of Govindram -defendant, who admittedly represented the entire joint family, that Tharpal is the 'Malik' of this business is at all events an admission of very considerable evidentiary value; on account of the formality of the recital, and the reputation of the plaintiff as owner of the business, and his continuous conduct in that capacity. It is not the defendants case that they made a subsequent discovery of any mistake or misrepresentation Even this is sufficient for the purposes; but in principle, the defendants are estopped from questioning the title of the plaintiff as the owner of this business. It is not merely that Govindram calls him the 'Malik' as a casual description, but his nexus with the business of Sukhlalji Lachhmandaaji, is on that basis and his borrowings from Tharpal are in that capacity. The parties have not been able to place any ruling directly applicable to the instant case, obviously because one does not usually come across a borrower from a person, whom he himself describes as the proprietor of a business, later on asserting that somebody else owns it. But the principles are clear enough that, whether in a Court or outside, a party cannot at the same time approbate and get some advantage, and then try to retain it by reprobating. The position as between the creditor and debtor is broadly analogous to that between a bailor and a bailee, both of them being different species of the genus as that between landlord and tenant. A bailee, as a general rule, is estopped from denying the title of the bailor from whom he received the goods, and be is equally estopped from denying the title of one to whom he has attorned as his bailee, undertaking to hold the goods for him. It is certainly conceivable that a person, who is the real proprietor of the shop, recovers the money from the debtor after proving in a Court that his title is superior to that of the person, whom the debtor has recognized as the owner But that is not the position here. Till such eventuality, the debtor is estopped from challenging the title of the creditor from whom he has obtained money and goods by recognizing him as the owner.