Lord Atkin. -

This is an appeal from the High Court of Bombay in which the appeal Court reversed a decision of Crump, on the original side. It involves a pure question of fact. There are two suits which were tried together. In the first, begun on 26th January 1922, one Kessarbai, the widow of Karsandas Ludha, claimed to recover possession of four cases of saffron, the property of the firm of Khatau, Ludha and Co., of which she was a partner, from the defendant Jethabhai. The plaintiff's co-partner Odhavji is joined as a defendant. In the second suit commenced on 1st February 1922, Jethabhai seeks against the two partners in the firm a declaration that the four cases of saffron are charged in his favour with the payment of Rs. 20,000, an advance made by him to them, and seeks payment of the said sum and the enforcement of his charge. The question is whether the advance was ever made and the charge given Kessarbai, the plaintiff in the first suit, is an old Hindu widow of a former partner in the firm of Khatau, Ludha and Co., who carried on business in Bombay as importers of saffron. At the material time she was a partner together with one Odhavji, who derived his interest from the will of Khatau Karsanda's brother. Jethabhai, the defendant, carried on business as a mukhtar, or clearing agent, and had acted in that capacity for the plaintiffs for some years. For some months before the events in question Odhavji had been residing out of Bombay. He used to send instructions to Keshavlal, a clerk of the plaintiff, and as he alone had power to draw on the firm's banking account, he drew and met the necessary cheques. Kessarbai, the resident partner, is illiterate, and can only sign her name in Gujarati. She, however, took an active interest in the business, assisted by the advice of her brother Topanbai, who had a business of his own. Under the directions of the two partners Keshavlal appears to have taken an active part in the management of the business. In November 1921, the firm, in their own name but on joint account with two other persons, bought from a firm in Valencia 400 lbs. of saffron. The goods were shipped in the SS " Mirzapore," and arrived at Bombay on 4th January. On that day Odhavji appears to have presented himself in Bombay, and under a claim to profits of the business drew out sums of Rs. 20,000 and Rs. 10,000 from two of the banking accounts, and removed the firm's cash book. This proceeding not unnaturally disturbed his partner Kessarbai, who consulted the firm's solicitor, Mr. Jamietram, of the firm of Matubhai, Jamietram and Co., and was advised that the acts done were within the powers of a partner, and further consideration of the steps to be taken was postponed for a day or two. Before this discovery on the same day Kessarbai had dealt with the cases of saffron. She had money in the till and on call, and she took up the bill of lading paying the price of about Rs. 20,000. The transaction showed a profit at current prices. She then through Keshavlal endorsed the bill of lading to Jethabhai and instructed him to clear the goods. The duty would amount to about Rs. 2,200. A conflict between the parties begins with the events of the next day, 5th January, and as the defendant sets up the affirmative case of a written pledge, it will be convenient to sat out his case first.

He says that on the morning of the 5th January, Keshavlal came to see him, told him that Odhavji had taken away the cash book and Rs.30,000, and that Kessarbai wished to see him. He went over to Kessarbai, who told him of Odhavji's misdoings, wept, and asked him to go with her brother Topanbai and Kashavlal to her solicitors. She was sure her own solicitors would not give satisfactory advice, and, if so, would he take them to his own solicitors ? He consented and returned to his office. Ten minutes later Keshavlal came to the office, said that Kessarbai could not tell him personally, but she wished to borrow Rs. 20,000. Jethbhai said he would a