GOSWAMI, C. J.:- This second ap­peal is directed against the judgment and decree of the learned Subordinate Judge, Tezpur, reversing those earlier of the learned Munsiff.

2. The material facts which are necessary for the purpose of deciding this second appeal are as follows: Messrs Sarita Oil Mills booked a consignment of one tank linseed oil at Indpre station of Western Railway under Railway Receipt No. 77904 dated 30/31-3-52 (Ext. 1) for carriage and delivery to self at Tezpur. The railway receipt was first endorsed to Messrs Bhojumal Sons who again endorsed the same in favour of Messrs Hiranand Rajaram. Messrs Hiranand Rajaram endorsed it in favour of the Bank of Bikaner who again endorsed it in favour of the State Bank of India and the State Bank of India endorsed it in favour of the plaintiff, Messrs Shree Shyam Stores. Messrs Hiranand Raja­ram issued a demand draft (Hundi, Ext. 2) on the plaintiff for the sum of Rs. 26,077.25 being the value of the R. R. No. 77904 through the State Bank of Bika­ner to be paid on demand to the order of the State Bank of Bikaner and the plaintiff released the R. R. by paying the said amount plus other bank charges from the State Bank of India, Tezpur, in whose favour the State Bank of Bika­ner endorsed the R. R. The plaintiff took delivery of the consignment which arrived in damaged condition at Tezpur sometime in May 1962 and he received 803 Kgs. linseed oil short as per certifi­cate of shortage dated 9-6-62 (Ext. 4). It appears that the consignment from the original tank wagon, which was found damaged at Katihar due to mechanical defects, was transhipped into another tank wagon in which it arrived at the destination station.

3. The plaintiff claims in the suit a sum of Rs. 1700/- as compensation for short delivery of the oil. The trial court decreed the suit, but the learned Sub­ordinate Judge dismissed it on three grounds: firstly, that the plaintiff being a firm has not proved the Certificate of Registration - a point which has not been pressed here by the respondent as indeed a Certificate of Registration was filed in the trial court-; secondly, and this is the main ground, that the plain­tiff has no right to sue as he has not established that the consignor has en­dorsed the R. R. for valuable considera­tion to him or to any of the endorsees from whom he has claimed; thirdly, the plaintiff has not proved the short deli­very. The third ground may not be of importance if the plaintiff fails on the second ground. We will, therefore, take this first.

4. The question that arises for consideration is whether the plaintiff, who is not admittedly the endorsee of the consignor, is entitled to bring his action against the defendant. There is conflict of decisions of the various High Courts on this point. The learned coun­sel for the appellant laid great stress on a decision of the Nagpur High Court in AIR 1957 Nag 31, Mulji Deoji v. Union of India, where Hidayatullah, C. J., as he then was, with whom Tambe, J. agreed, differing from Rao J., held in the following terms:

"It is, in my opinion, not correct to say that the endorsement is always merely a right to obtain delivery. In cases of sale of goods with delivery to the buyer through a carrier the railway receipt is not a mere record of the terms on which goods are being carried but represents the goods themselves. The fact that the endorsement has to be written on the document of title to goods clearly shows that all the rights in the goods to­gether with all the benefits arising from any contract in respect of those goods are transferred to the endorsee. There is nothing further to it than the maxim "assignatus utitur jure auctoris" (an assignee is clothed with the right of his principal). In my judgment, the en­dorsement carries with it not only the title to the goods but also any right or interest in the carriage of those goods, together with the remedies available in respect of those goods against the car­rier."

Tambe, J. agreeing with the abo

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