The liability of an insurance company under a fire insurance policy that insures goods for which the assured is responsible is limited to the extent of the assured's legal liability to the true owner of the goods, but it does not exclude the assured's own lien or interest in the property insured.

TENDOLKAR, J. :- This is a claim against an insurance company for loss arising out of fire. The suit was originally filed by one Kazi Ali who died ponding the suit and his heirs and legal representatives have been brought on record subsequently as plaintiffS.Kazi Ali was carrying on business as a carting and transporting agent. It was his case that one Ebrahim Coka another person by name Sopher, and a firm called Abdul Satar and Co. engaged him to transport certain bales of cloth and yarn from Bombay to Shrivardhan in Janjira State. Owing to certain circumstances, into the details of which it is unnecessary to go 181 bales out of these bales, which were originally intended for export from Janjira, could not be exported, and they had to be brought back and stored at a place called Khandpale where Kazi Ali used to reside. These goods arrived at Khandpale in the month of May 1944. It is the plaintiffs case that Kazi Ali built a godown in or about, the month of November 1945 and stored these 181 bales in the said godown. On 29-11-1945, Kazi Ali took out a policy of fire insurance from the defendants in respect of the said 181 bales for a sum of Rs.4,90,000 and of the building of the godown for Rs.10,000 aggregating to a sum of five lacs of rupees for a period of one year commencing from 26-11-1945. The said goods continued to be in the said godown until 27-2-1946, when in the early hours of the morning they were totally destroyed by fire. The plaintiffs have claimed in this suit a sum of Rs.4,36,500 which they say was the value of the goods that were burnt and part of the building that was destroyed as set out in particulars Ex.A to the plaint.

2. The defendants by their written statement deny that the godown was in existence on 26-11-1945 that is, the date from which the risk under the policy commenced; they further deny that 181 bales of cloth or yarn were in the said godown if it existed on that day; they also plead that Kazi Ali failed to observe condition No.11 of the policy with regard to producing and procuring such particulars with respect to the claim as may be reasonably required by the insurance company and urge that the supplying of such particulars was a condition precedent to any claim under the policy; they also urge that they rejected the said claim and in terms of condition No.13 of the policy all benefits under the policy are forfeited unless an action or suit is commenced within three months after rejection.

3. Quite apart from these contentions raised by the written statement, Mr. Beynon, who appeared for the defendants, raised a somewhat interesting question of law. His submission was that by the terms of the policy, to which I will presently refer, the company only insured the legal liability of the assured to third parties in respect of the goods; and as Kazi Ali was a bailee and it is not his case that the fire was due to his negligence, he was not liable to the true owners of these goods and, therefore, the defendants were not liable under the policy at All Now, before I consider whether it is open to the defendants to raise such a contention without pleading it, it is necessary to ascertain the true scope of the policy. The policy insures (a) the building of the godown for Rs.10,000 in respect of which no question of interpretation of the terms of the policy arises; and (b) also insures for a sum of Rs.4,90,000 the goods lying in the godown which are described in these terms:

"Piecegoods of every description and/or yarn and/or textile fabrics in pressed bales and/or in cases, the property of the insured or held by him in trust or on commission for which he is responsible contained in building insured by item (a) above,"

Now, the words "the property of the insured" in such policies cover not only goods belonging to the insured but also goods in respect of which he has a lien or a charge for services rendered or for expenses incurred. Macgillivray on Insurance Law (Edn.3), at page 328, states the posit