ABDUL SHAKUR ALI MOHMAD Vs. MOTIRAM PREMJI BHATE

JUDGEMENT

(1.) THIS is an application for the revision of the judgment and decree of Mr. G.S. Jadhao, Judge, Small Cause Court, Murtizapur, in Small Cause Suit No. 18 of 1946, decided on 29th October 1946.

(2.) ACCORDING to the plaintiff (non-applicant 1) defendants 1 to 5 (applicant and non-applicants 2 to 5) are the legal representatives of one Ali Mohammad who entered on 9th September 1942 into a contract for the delivery of 31 khandis of cottonseed at the rate of Rs. 12-10-0 per khandi, with Vishnu Kumar, defendant 6 (non-applicant 6). The delivery was to take place on 21st January 1943 and Ex. P-1 is the souda chithi. On 20th January 1943, Vishnu Kumar sold the rights under the above contract to the plaintiff Motiram (non-applicant 1) and authorised him to take delivery of the seed from Ali Mohammad. An endorsement to this effect was made by Vishnu Kumar on the agreement executed by Ali Mohammad.

(3.) ON behalf of non-applicant 1, it is contended in reply that the document is a document of title to goods within Section 2(4), Sale of Goods Act, and hence the provisions of the Transfer of Property Act and the Stamp Act do not apply. There is no doubt that Articles 62 and 65 contain exemptions in this behalf in so far as the Stamp Act is concerned, and similarly the provisions of chap. VIII, T.P. Act, are excluded in respect of a 'mercantile document of title to goods' by virtue of Section 137, T.P. Act. This phrase is explained in the latter section thus: The expression, 'mercantile document of title to goods' includes a bill of lading, dock-warrant, ware house keeper's certificate, railway-receipt, warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by endorsement or, by delivery, the possessor of the document to transfer or receive goods thereby represented. If the endorsement is a delivery order or a document of title to goods then clearly the argument of the learned Counsel for the applicant must fail. What is a document of title to goods is sometimes a matter difficult to decide. The true test has been laid down in Ramdas Vithaldas v. Amerchand and Co. A.I.R. (3) 1916 P.C. 7 by their Lordships of the Privy Council. It was there held that it must be shown that the document is such as is used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or delivery, the possessor of the document to transfer or receive the goods thereby represented. This view was reaffirmed in Official Assignee, Madras v. Mercantile Bank of India A.I.R. (21) 1934 P.C. 246. A document of title to goods ordinarily represents the goods and is capable of being transferred. But before a document can be held to be a document of title to goods it must satisfy that test. It is not proved in the present case that the souda chithis of which Ex. P-1 is an example, are used in the manner indicated as the indicia of documents of title to goods. It has thus not been proved that the mere endorsement of this document was sufficient to transfer the rights in the goods because the document cannot be said to represent the goods. The document Ex. P-1 is not a delivery order. See Agarwala's Indian Sale of Goods Act (Edn. 1946) P. 28. The application must, therefore, succeed.