TMI Blog1965 (3) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... t the six items which are the subject matter of this litigation. It is alleged that shortly after the sale on September 17, 1960 the defendant Maharaja purported to have hypothecated a number of artistic goods lying in the same Durbar Hall to the defendant Madhodas Mundra. The plaintiff's case is that the movables sold to the plaintiff were not hypothecated to the defendant Madhodas Mundra. Be that as it may, the plaintiff's further case is that a suit was brought by Madhodas Mundra being suit No. 309 of 1961 against the defendant Maharaja on the said hypothecation, that the suit was decreed by consent on November 28, 1961 and that pursuant to and in terms of the said decree the hypothecated goods were sold by Mr. A. K. Panja, the Receiver appointed in the said proceeding to the defendant Chowringhee Sales Bureau (Private) Ltd. It is pleaded that the goods sold as aforesaid included the six items of artistic goods previously sold by the defendant Maharaja to the plaintiff. It is alleged that all the defendants acted in fraud and collusion and the suit, decree and orders in that suit are all tainted with Fraud and collusion. It is further alleged that the defendant Mundra an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his written statement alleged that when he was given possession of the goods there was nothing to indicate that the goods were sold to the plaintiff. He sold the goods pursuant to the decree of the Court. He denied all allegations of fraud made against him in the plaint. 5. At the trial on behalf of the plaintiff Hrishikesh Ghosh, the Secretary of the plaintiff, gave evidence. Slier Singh Kushwa, Manager of the defendant Mimdra, gave evidence on his behalf. Ram Shuran Kashyap, the Manager of the defendant company, gave evidence on behalf of the defendant company. Receiver Panja also gave evidence. Various documents including the receipts given to the plaintiff by the defendant Maharaja, the promissory note, the letter of hypothecation as also an affidavit affirmed by the defendant Maharaja and given to the defendant Mundra have also been exhibited. The minutes of the Receiver as well as some correspondence and other Court papers have also been tendered in evidence. X X X X 6-11. The facts established before me on which he case has to be decided are as follows; The plaintiff purchased the goods from the defendant Maharaja as par particulars stated in the two receipts e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in physical custody and possession of the defendant Maharaja till possession was taken by the Receiver and ultimately made over by the Receiver to the purchaser. Whether the possession of the Receiver is the possession of Mundra or Maharaja or whether the Receiver in the matter of sale acted as the agent of Maharaja or Mundra is a question of law which may have to be considered later. 12. These are the facts found by me. On this what follows in law? Who is entitled to such goods as were sold to the plaintiff Talukdar previously but subsequently included in the list of hypothecation and sold ultimately by the Receiver in terms of the consent decree was the hypothecation good and did the defendant Company acquire title by purchase in preference to the plaintiff? It is contended that the defendant Company did acquire good title for two reasons firstly because of Section 30(1) of the Sale of Goods Act and secondly, because the Company purchased them in a Court sale. 13. It is elementary that no title can be transferred unless the transferor had title therein. A transfer by a person without title cannot give any title to the transferee. This rule if rigidly adhered to in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the seller is compelled to give possession by a decree or order of the Court. Mr. Goutam Chakraborty and Mr. Samiren Sen learned Counsel appearing for the defendant Mundra and the defendant Company on the other hand contended that the section should be given a wide interpretation to protect the interest of an innocent transferee. In their submission the words 'other disposition should be given a wide meaning to cover 'hypothecation' as well. Even if the word 'other disposition' is to be construed ejusdem generis, it would only exclude gift i.e., transfer without consideration. Generis indicated by the word Sale or pledge is a transfer for consideration. Secondly it is contended that the section would apply even though delivery or transfer by the seller in possession is not voluntary in the sense that it is given by the seller in possession not directly but by the Receiver pursuant to a decree ox order of the Court. The 'Receiver' in cases like the present is deemed in law to act as the agent of the seller in possession. The section, does not rule out agency at all, so that delivery given by the Receiver means delivery given by me seller in possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being so, in the present case there has been no delivery to the defendants since the sale at all, and no transfer of any documents of title; nor could there have been, for there were no such documents. The sentence quoted above has been construed as supporting the above proposition. 1895 2 Ch 415 is an authority for the proposition that in order to be protected there must be some act whereby the subsequent disponee obtained possession from the seller in possession which he did not have before. In the cited case there was no act of transfer and hence it was held that the section would not apply. 16. The reason why the learned counsel for the plaintiff sought to rely on the above proposition is, that the subject matter in the instant case being goods and not documents of title of goods , Mundra the hypothecatee cannot claim protection because there has been no delivery of the goods. The contention of the defence is that the word 'transfer' in the section not merely refers to 'documents of title' but to 'goods' as well. To get the protection of the section it is not imperative that the seller in possession must make a delivery of the goods to the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot include hypothecation. Mr. Banerjee is right in his submission that the words other disposition must be construed ejusdem generis that is of the same generis as sale or pledge i.e., transfer of property or right to property for consideration. In any event 'transfer' contemplated by the section must include some property right in the movables, and hypothecatee gets no such property right in the movables. Even if the word transfer is construed to be referable to goods and not the documents of title in goods, Section 30(1) is not applicable to hypothecation of goods by the seller in possession, for reasons stated above. 17. In the above view it is not necessary to decide in the facts of this case whether it is imperative that the subsequent disposition by the seller in possession must involve actual transfer of possession of goods or documents of title of goods. 1895 2 Ch 415 seems to lay down that without such transfer of possession the section would not apply. I respectfully agree with the view. The section seeks to project possessory title and gives the person in possession ownership even though he obtained possession from person without any title. The seller in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Goods Act. It is contended however that in the instant case, the decree is by consent and pursuant to the consent decree the Receiver sold the goods and the company defendant purchased the goods, Mr. Gautam Chakraborty cited a number of decisions of this Court and passages from Woodroffe's Receiver in support of his argument that though the Receiver is an officer of the Court yet in some cases he may be deemed to act as agent to the owner to convey title to the purchaser. The leading case on the subject is the case of Wilkinson v. Gangadhar Sirkar reported in 6 Beng. L. R. 468. The decision Poreshnath Mookerjee v. Omerto Nath Mitter, reported in ILR 1890 Cal 614 was also cited by Mr. Chakraborty. Several passages from Woodroffe's Receiver were also read. Mr. Banerjee in his turn cited some other authorities of this Court in support of his contention that when pursuant to an order of the Court a Receiver is directed to seize goods he acts not as agent of the parties but as officer of the Court. He has referred me to the decision of R. C. Mitter J. in the case reported in AIR 1942 Cal 982 and of Buckland J. in the case reported in Ramnarayan Satyapal v. Carey AIR1931Cal4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffected by the seller pursuant tu a decree or order of the Court is a sale by the judgment-debtor pursuant to and as directed by the decree or order of the Court. Such sale whether by the seller himself or by Receiver pursuant to a decree or order of the Court cannot be considered to be a sale by the seller in possession even if the Receiver, is deemed to act as the agent of the party to effect such sale because of change of jural relationship. In my view Section 30(1) of the Sale of Goods Act will not apply to the instant case firstly because the sale and delivery of the goods to the defendant by the Receiver pursuant to the consent order is not voluntary and secondly because the jural relationship is changed and the sale by the receiver is not a sale by seller in possession but by judgment debtor, even if the Receiver is deemed in law to act as the agent of the seller in possession. Title of the defendant company in the instant case cannot be protected by Section 30(1) of Sale of Goods Act. 19. It was faintly argued by the learned counsel for the defendants that the purchaser acquired good title because the sale is by the Court and confirmed by the Court. It is however element ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Statue of Phallas could not be identified and he did not take possession of it. The remaining 4 items he could not identity. The position therefore is that only one item of the goods in suit viz., item No. (VI) viz., oil painting of Dance and shower of gold, sold to the plaintiff by the Maharaja was subsequently sold by the Receiver to the defendant company. For reasons stated above the defendant company acquired no title in the said picture and the plaintiff's title therein as a prior purchaser from the Maharaja must be declared and affirmed. Except the said picture the defendant company is not liable to make over possession of any one of the other 5 items of artistic goods in suit. x x x x 23. In the result, there will be a decree as follows: It is declared that the plaintiff is the absolute owner of the articles mentioned in paragraph 5 of the plaint. There will be a decree for possession as against the defendant company of only one item, namely, item No. (vi) in paragraph 5 of the plaint or its value assessed at ₹ 5,000. As against the defendant Maharaja, there will be a decree for possession of the remaining items or their value, as indicated above (Omi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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