Civil Appeal No 478 of 1957
Appeal from the judgment and decree dated August 17 1954 of the Punjab High Court Circuit Bench at Delhi in Regular First Appeal No 76 of 1952 arising out of the judgment and decree dated December 15 1951 of the Court of Sub Judge 1st Class Delhi in Suit No 169 of 1949409 of 1950
77 Ganapathy Iyer and D Gupta for the appellant
Gurbachan Singh and Harbans Singh for the respondent
October 28
The Judgment of the Court was delivered by SUBBA RAO J
This appeal on a certificate granted by the High Court of Judicature for Punjab at Chandigarh is directed against its judgment confirming that of the Subordinate Judge First class Delhi in a suit filed by the respondent against the appellant for the recovery of compensation in respect of non delivery of goods entrusted by the former to the latter for transit to New Delhi
On August 15 1947 India was constituted into two Dominions India and Pakistan and soon thereafter civil disturbances broke out in both the Dominions The respondent and others who were in government employment at Quetta found themselves caught in the disturbances and took refuge with their household effects in a government camp
The respondent collected the goods of himself and of sixteen other officers and on September 4 1947 booked them at Quetta Railway Station to New Delhi by a passenger train as per parcel way bill No 317909
Under the said bill the respondent was both the consignor and consignee
The N W Railway hereinafter called the Receiving Railway ends at the Pakistan frontier and the E P Railway hereinafter called the Forwarding Railway begins from the point where the other line ends and the first railway station at the frontier inside the Indian territory is Khem Karan
The wagon containing the goods of the respondent and others which was duly seated and labelled indicating its destination as New Delhi reached Khem Karan from Kasur Pakistan before November 1 1947 and the said wagon was intact and the entries in the  inward summary tallied with the entries on the labels
Thereafter it traveled on its onward march to Amritsar and reached that place on November 1 1947
There also the wagon was found to be intact and the label showed that it was bound to New Delhi from Quetta
On November 2 1947 it reached Ludhiana and remained 78 there between November 2 1947 and January 14 1948 and the  vehicle summary  showed that the wagon bad a label showing that it was going from Lahore to some unknown destination
It is said that the said wagon arrived in the unloading shed at New Delhi on February 13 1948 and it was unloaded on February 20 1948 but no immediate information of the said fact was given to the respondent
Indeed when the respondent made an anxious enquiry by his letter dated February 23 1948 the Chief Administrative Officer informed him that necessary action would be taken and he would be addressed again on the subject
After further correspondence on June 7 1949 the Chief Administrative Officer wrote to the respondent to make arrangements to take delivery of packages lying at New Delhi Station but when the respondent went there to take delivery of the goods he was told that the goods were not traceable
On July 24 1948 the respondent was asked to contact one Mr Krishan Lal Assistant Claims Inspector and take delivery of the goods
Only a few articles fifteen in number and weighing about 61 maunds were offered to him subject to the condition of payment of Rs 1067 8 0 on account of freight and the respondent refused to take delivery of them
After further correspondence the respondent made a claim against the Forwarding Railway in a sum of Rs 162123 with interest as compensation for the non delivery of the goods entrusted to the said Railway and as the demand was not complied with he filed a suit against the Dominion of India in the Court of the Senior Subordinate Judge Delhi for recovery of the said amount
The defendant raised various pleas both technical and substantive to non suit the plaintiff
The learned Subordinate Judge raised as many as 15 issues on the pleadings and held that the suit was within time that the notice issued complied with the provisions of the relevant statutes that the respondent had locus stand to file the suit and that the respondent had made out his claim only to the extent of Rs 80000 in the result the suit was decreed for a sum of Rs 80000 with proportionate costs
79 The appellant carried the matter on appeal to the High Court of Punjab which practically accepted all the findings arrived at by the learned Subordinate Judge and dismissed the appeal
In this Court the appellant questions the correctness of the said decree
Learned Counsel for the appellant raised before us the following points 1 there was no privity of contract between the respondent and the Forwarding Railway and if he had any claim it was only against the Receiving Railway 2 the suit was barred by limitation both under article 30 and Art 31 of the Indian Limitation Act and it was not saved by any acknowledgement or acknowledgements of the claim made within section 19 of the Limitation Act and 3 the notice given by the respondent under section 77 of the Indian Railways Act 1890 did not comply with the provisions of the said section inasmuch as the claim for compensation made thereunder was not preferred within six months from the date of the delivery of the goods for carriage by the Railway
The third point may be taken up first and disposed of shortly
Before the learned Subordinate Judge it was conceded by the learned Counsel for the defendant that the notice exhibit P 32 fully satisfied the requirements of section 77 of the Indian Railways Act and on that concession it was held that a valid notice under section 77 of the said Act bad been given by the respondent
In the High Court no attempt was made to question the factum of this concession nor was it questioned by the appellant in its application for special leave
As the question was a mixed one of fact and law we would not be justified to allow the appellant at this very late stage to reopen the closed matter
We therefore reject this contention
The learned Counsel for the appellant elaborates his first point thus  The Receiving Railway the argument proceeds entered into an agreement with the respondent to carry the goods for consideration to their destination ie New Delhi and in carrying out the terms of the contract it might have employed the agency of the Forwarding Railway but the consignor was not in any way concerned with it and if loss was 80 caused to him by the default or neligence of the Receiving Railway he could only look to it for compensation and he had no cause of action against the Forwarding Railway
This argument is not a new one but one raised before and the Courts offered different solutions based on the peculiar facts of each case
The decided cases were based upon one or other of the following principles i the Receiving Railway is the agent of the Forwarding Railway ii both the Railways constitute a partnership and each acts as the agent of the other iii the Receiving Railway is the agent of the consignor in entrusting the goods to the Forwarding Railway an instructive and exhaustive discussion on the said three principles in their application to varying situations is found in Kulu Ram Maigraj vs The Madras Railway Company 1 G I P Railway Co vs Radhakisan Khushaldas 2  and Bristol And Exeter Railway vs Collins 3 iv the Receiving Railway which is the bailee of the goods is authorized by the consignor to appoint the Forwarding Railway as a sub bailee and after such appointment direct relationship of bailment is constituted between the consignor and the sub bailee and v in the case of through booked traffic the consignor of the goods is given an option under section 80 of the Indian Railways
Act to recover compensation either from the Railway Administration to which the goods are delivered or from the Railway Administration in whose jurisdiction the loss injury
destruction or deterioration occurs
Some of the aforesaid principles cannot obviously be applied to the present case
The statutory liability under section 80 of the Indian Railways Act cannot be invoked as that section applies only to a case of through booked traffic involving two or more Railway Administration in India whereas in the present case the Receiving Railway is situated in Pakistan and the Forwarding Railway in the Indian territory
India and Pakistan are two independent sovereign powers and by the doctrine of lex loci contractus section 80 cannot 1 ILR 2 ILR 3 VII H LC 194
81 apply beyond the territories of India nor can the respondent rely upon the first two principles
There is no allegation much less proof that there was any treaty arrangement between these two states governing the rights inter se in the matter of through booked traffic
This process of elimination leads us to the consideration of the applicability of principles iii and iv to the facts of the present case
The problem presented can only be solved by invoking the correct principle of law to mould the relief on the basis of the facts found
We shall first consider the scope of the fourth principle and its applicability to the facts of this case
Section 72 of the Indian Railways Act says that the responsibility of a railway administration for the loss destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall subject to the other provisions of the Act be that of a bailee under sections 151 152 and 161 of the 
Section 148 of the defines  bailment  thus  A bailment  is the delivery of goods by one person to another for some purpose upon a contract that they shall when the purpose is accomplished be returned or otherwise disposed of according to the directions of the person delivering them GW Patson in the book Bailment in the Common Law says at p 42 thus  If a bailee of a res sub bails it by authority then according to the intention of the parties the third person may become the immediate bailee of the owner or he may become a sub bailee of the original bailee
At p 44 the learned author illustrates the principle by giving as an example a carrier of goods entrusting them to another carrier for part of the journey
One of the illustrations given by Byles J in Bristol
And Exeter Railway vs Collins 1 is rather instructive and it 1 VII HLC 194212 11 82 visualises a situation which may be approximated to
the present one and it is as follows The carrier receiving the goods may therefore for the convenience of the public or his customers adopt a third species of contract
He may say We do not choose to undertake responsibilities for negligence and accidents beyond our limits of carriage where we have no means of preventing such negligence or accident and we will not therefore undertake the carriage of your goods from A to B but we will be carriers as far as our line extends or our vehicles go and we will be carriers no further but to protect you against the inconveniences and trouble to which you might be exposed if we only undertook to carry to the end of our line of carriage we will undertake to forward the goods by the next carriers and on so doing our liability shall cease and our character of carriers shall be at an end and for the purpose of so forwarding and of saving the trouble of two payments we will take the whole fare or you may pay as one charge at the end but if we receive it we will receive it only as your agents for the purpose of ultimately paying the next carriers
 We may add to the illustration the further fact that the Forwarding Railway is in India a foreign country in relation to the country in which the Receiving Railway is situate
Relying upon the said passages an argument is advanced to the effect that the consignor ie the respondent authorised his bailee namely the Receiving Railway to entrust the goods to the Forwarding Railway during their transit through India to their destination and the facts disclosed in the case sustain in the said plea
There is no document executed between the respondent and the Receiving Railway hereunder the Receiving Railway was expressly authorized to create the Forwarding Railway the immediate bailee of the owner of the goods
exhibit P 50 the railway receipt dated September 4 1947 does not expressly confer any such power
But the facts found in the case irresistibly lead to that conclusion
There 83 was no treaty between the two countries in the matter of through booked traffic at any rate none has been placed before us
What we find is only that the Receiving Railway received the goods of the respondent and delivered the wagon containing the said goods to the care of the Forwarding Railway and the latter took over charge of the wagon carried it to New Delhi and offered to deliver the goods not lost to the respondent on payment of the railway freight
In the absence of any contract between the two Governments or the Railways the legal basis on which the conduct of the respondent and the Railways can be sustained is that of the respondent delivered the goods to the Receiving Railway with an authority to create the Forwarding Railway as his immediate bailee from the point the wagon was put on its rails
The same result could be achieved by approaching the case from a different perspective
Section 194 of the says   Where an agent holding an express or implied authority to name another person to act for the principal in the business of the agency has named another person accordingly such person is not a sub agent but an agent of the principal for such part of the business of the agency as is entrusted to him
 The principle embodied in this section is clearly stated by Thesiger L J in De Buasche vs Alt 1 at p 310 thus   But the exigencies of business do from time to time render necessary the carrying out of the instructions of a principal by a person other than the agent originally instructed for the purpose and where that is the case the reason of the thing requires that the rule should be relaxed so as on the one hand to enable the agent to appoint what has been termed  a sub agent  or  substitute   and on the other hand to constitute in the interests and for the protection of the principal a direct privity of contract between him and such substitute
 The aforesaid facts clearly indicate that the respondent appointed the Receiving Railway as his agent to 1  310
84 carrv his goods on the railway to a place in India with whom Pakistan had no treaty arrangement in the matter of through booked traffic
In that situation the authority in the agent must necessarily be implied to appoint the Forwarding Railway to act for the consignor during that part of the journey of the goods by the Indian Railway and if so by force of the said section the Forwarding Railway would be an agent of the consignor
If no such agency can be implied in our view a tacit agreement between the Receiving Railway and the Forwarding Railway to carry the respondent s goods to their destination may be implied from the facts found and the conduct of all the parties concerned
If the Receiving Railway was not an agent of the Forwarding Railway and if there was no arrangement between the two Governments the position in law would be that the foreign railway administration having regard to the exigencies of the situation obtaining during those critical days brought the wagon containing the goods of the respondent and left it with the Forwarding Railway and the latter consciously took over the responsibility of the bailee carried the wagon to New Delhi and offered to deliver the goods to the respondent
The respondent also accepted that relationship and sought to make the Forwarding Railway responsible for the loss as his bailee
On these facts and also on the basis of the course of conduct of the parties we have no difficulty in implying a contract of bailment between the respondent and the Forwarding Railway
We may also state that section 71 of the permits the recognition of a contract of bailment implied by law under circumstances which are of lesser significance than those present in this case
The said section reads A person who finds goods belonging to another and takes them into his custody is subject to the same responsiblity as a bailee
 If a finder of goods therefore accepts the responsibility of the goods he is placed vis a vis the owner of the goods in the same position as a bailee
If it be held 85 that the Railway Administration in Pakistan for reasons of policy or otherwise left the wagon containing the goods within the borders of India and that the Forwarding Railway Administration took them into their custody it cannot be denied that their responsibility in regard to the said goods would be that of a bailee
It is true there is an essential distinction between a contract established from the conduct of the parties and a quasi contract implied by law the former though not one expressed in words is implied from the conduct and particular facts and the latter is only implied by law a statutory fiction recognized by law
The fiction cannot be enlarged by analogy or otherwise
As we have held that the Receiving Railway was authorized by the respondent to engage the Forwarding Railway as his agent or as his bailee this section need not be invoked
But we would have had no difficulty to rely upon it if the Forwarding Railway was equated to a finder of goods within the meaning of the section
If so the next question that arises is what is the extent of the liability of the appellant in respect of the goods of the respondent entrusted to it for transit to New Delhi
We have held that in the circumstances of the present case the application of the provisions of section 80 of the Indian Railways Act is excluded
If so the liability of the Forwarding Railway is governed by section 72 of the said Act
Under that section the responsibility of a railway administration for the loss destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall subject to the other provisions of the Act be that of a bailee under sections 151 152 and 161 of the 
Under section 151 of the  the bailee is bound to take such care of the goods bailed to him as a man of ordinary prudence would under similar circumstances take of his own goods of the same bulk quality and value of the goods bailed and under section 152 thereof in the absence of any special contract he is not responsible for the loss destruction or deterioration of the thing bailed if he has taken such amount 86 of care of it as described in section 151
In other words the liability under these sections is one for negligence only in the absence of a special contract
Generally goods are consigned under a risk note under which the Railway Company is absolved of all liability or its liability is modified
No such risk note is forth coming in the present case
The question therefore reduces itself to an enquiry whether on the facts the Forwarding Railway observed the standard of diligence required of an average prudent men
The facts found by the High Court as well as by the Subordinate Judge leave no room to doubt that the Forwarding Railway was guilty of negligence in handling the goods entrusted to its care
The wagon reached Khem Karan intact
D W 4 deposed that he received from the guard of the train that brought the wagon to the station the inward summary and that on checking the train with the aid of that summary he found that the wagon was intact according to the summary
He also found the seals and labels of the wagon intact and that the inward summary  tallied with the entries on the labels
It may therefore be taken that when the Forwarding Railway took over charge of the goods they were intact
The evidence of P W 1Thakar Das establishes that even at Amritsar the wagon was intact
But thereafter in its onward march towards New Delhi it does not appear on the evidence that the necessary care was bestowed by the railway authorities in respect of the said wagon
The said wagon remained in the yard of Ludhiana Station between November 2 1947 and January 14 1948 and also it appears from the evidence that when it reached that place the label showed that its destination was unknown
What happened during these months is shrouded in mystery
It is said that the said wagon arrived at New Delhi on February 13 1948 and that the Goods Clerk Ram Chander unloaded the goods in the presence of the head watchman Ramji Lal and head constable Niranjan Singh when it was discovered that only 15 packages were in the wagon and the rest were lost
The Goods Clerk Ram Chander DW 4 the head watchman Ramji Lal D W 7 87 the Assistant Train Clerk Krishan Lal D W 8 and the head constable Niranjan Singh D W 16 speak to the said facts but curiously no contemporaneous relevant record disclosing the said facts was filed in the present case
We cannot act upon the oral evidence of these interested witnesses in the absence of such record
No information was given to the respondent about the arrival at New Delhi of the said wagon
Only on June 7 1948 ie nearly four months after the alleged arrival of the wagon the respondent received a letter from the Chief Administrative Officer asking him to effect delivery of the packages lying in New Delhi Station but to his surprise when the respondent went to take delivery no goods were to be found there
Only on August 18 1948 the appellant offered to the respondent a negligible part of the goods in a damaged condition subject to the payment of the railway freight and the respondent refuse to take delivery of the same
From the said facts it is not possible to hold that the railway administration bestowed such care on the goods as is expected of an average prudent man
We therefore hold that the Forwarding Railway was guilty of negligence
Then remains the question of limitation
The relevant articles are articles 30 and 31 of the Indian Limitation Act
They read Description of suit period of Time from limitation
wich period begins to run 30 Against carrier for compensation for losing or injuring One year When the loss or injury goods
occurs
Against a carrier for compensation for non delivery of or One year When the goods ought delay in delivering to be delivered
goods
Article 30 applies to a suit by a person claiming com pensation against the railway for its losing or injuring his goods and article 31 for compensation for nondelivery or delay in delivering the goods
The learned Counsel for the appellant argued that article 30 would apply to the suit claim whereas the 88 learned Counsel for the respondent contended that article 31 would be more appropriate to the suit claim
We shall assume that article 30 governed the suit claim and proceed to consider the question on that basis
The question now is when does the period of limitation under article 30 start to run against the claimant  The third column against article 30 mentions that the said claim should be made within one year from the date when the loss or injury occurs
The burden is upon the defendant who seeks to non suit the plaintiff on the ground of limitation to establish that the loss occurred beyond one year from the date of the suit
The proposition is self evident and no citation is called for
Has the defendant therefore on whom the burden rests to prove that the loss occurred beyond the prescribed period established that fact in this case  The suit was filed on August 4 1949
In the plaint the plaintiff has stated that loss to the goods has taken place on the defendant railway and therefore delivery has not been effected
Though in the written statement there was a vague denial of this fact the evidence already noticed by us established beyond any reasonable doubt that the goods were lost by the Forwarding Railway when they were in its custody
But there is no clear evidence adduced by the defendant to prove when the goods were lost
It is argued that the goods must have been lost by the said Railway at the latest on February 20 1948 when the goods are alleged to have been unloaded from the wagon at the New Delhi Station but we have already discussed the relevant evidence on that question and we have held that the defendant did not place before the Court any contemporaneous record to prove when the goods were taken out of the wagon
Indeed the learned Subordinate Judge in a considered judgment held that it had not been established by the Forwarding Railway that the goods were lost beyond the period of limitation
The correctness of this finding was not canvassed in the High Court and for the reasons already mentioned on this material produced there was every justification for the findings
If so it follows that the 89 suit was well within time
In this view it is not necessary to express our opinion on the question whether there was a subsequent acknowledgment of the appellant s liability within the meaning of art 19 of the Indian Limitation Act
In the result the appeal fails and is dismissed with costs
Appeal dismissed


Summary:
The cardinal maxim to be observed by courts in constru ing a will is to endeavour to ascertain the infentions of the testator
This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised
The courts are however entitled and bound to bear in mind other matters than merely the words used
They must consider the surrounding circumstances the position of the testator his family relationship the probability that he would use words in a particular sense and many other things which are often summed up in the somewhat picturesque figure the court is entitled to put itself into the testator s armchair 
But all this is solely as an aid to arriving at a right construetion of the will and to ascertain the meaning of the language when used by that particular testator in that document
As soon as the construction is settled the duty of the court is to carry out the intsentions as expressed
The court is in no case justified in adding to testamentary dispositions
In all cases it must loyally carry out the will as properly construed and this duty is 950 universal and is true alike of wills of every nationality and every religion or rank of life
A presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances but it can be invoked only when there is undoubted ambignity in ascertainment of the intentions of the testator
It cannot be that merely with a view to avoiding intestacy you are to do otherwise than construe plain words according to their plain meaning
A Hindu died leaving a widow a widowed daughter and a married daughter G after he had made a will giving authori ty to his widow to adopt a son of G should she beget one or in the alternative a son of one of his nephews
4 of the will provided that if his widow adopted G s son all his properties except the village of K and the house at I and other properties disposed of by the will shall pass to the adopted son and para
5 provided as follows  The whole of the village of K and the house a I my daughter N shall enjoy with life interest and after her the said property shall pass to my daughter G and her children on payment by the latter of Rs 5000 to A the daughter of N Later on amongst the provisions which he wished to make if a son of a nephew was adopted there was a provision which ran as follows Para 13
The village of K shall be enjoyed by N as stated in para
 A nephew s son was adopted and he instituted a suit against G after N s death for recovery of the village K contending that under para
13 of the will there was no disposition of the village after the life interest of N and on her death the village vested in him as the testator s heir Held on a construction of the will as a whole that the teststor did not intend that in the contingency of the adoption of nephew s son the village K should pass on N s death to the adopted son on the other hand the provisions of para 5 of the will were intended to apply even in the case of such a contingency and the village passed to G on N s death under para
5 of the will
Judgment of the High Court of Madras reversed
Venkatanarasimha vs Parthasarathy 41 IA 51 and Re Edward Jones vs Jones  referred to