JUDGMENT

S.S. Dhavan, J. - This is a second appeal by the Union of India (Department of Railways) from the concurrent decisions of the courts below decreeing the plaintiff-respondents 'suit for compensation for damages to goods caused in transit. The facts very briefly are these.

2. The plaintiff-respondent M/s Nathi Mal Mahabir Prasad is a joint Hindu family firm doing business at Etawah. On 26-7-53 a consignment of 200 bags of sugar was entrusted to the Railway at Ghughli station for delivery to the plaintiff firm at Etawah. The goods arrived at Etawah on 17th August 1953 in a damaged condition. On that very date the Station Master Etawah sent the following wireless message to the Chief Commercial Superintendent, Varanasi; "200 BAGS SUGAR CORRECT BUT ALL BAGS BADLY WET BY RAIN WATER. THREE BAGS SHORT. . . ." The Station Master did not issue the usual certificate of damages and shortage to the plaintiff firm till 27-9-1953. On that date he issued the prescribed certificate on a printed form that the extent of damage was Rs. 5/8/- per bag. On that very day the firm took delivery of the goods and removed them from the Railway Station. It then filed a claim for compensation under Sec. 77 of the Railways Act both for shortage of three bags and for damage to all the bags. On 19-5-54 the Chief Commercial Superintendent wrote to the firm that its claim for damages had been rejected because the Railway Claims Inspector had reported after enquiry that there was no loss on account of damage. But he conceded that there was loss due to shortage and remitted a sum of Rs. 26/11/- "on account of shortage" in full and final settlement of the plaintiffs claim. Thereupon the plaintiff firm filed this suit or the recovery of Rs. 1,100/- as compensation for loss suffered by it due to the damage to the goods in transit. It alleged that this damage was caused by the gross negligence of the Railway.

3. The Railway resisted the suit and raised a number of pleas some of which were of a purely technical nature. It denied all liability and pleaded that the damage to the goods was not caused by any negligence of the Railway. It pleaded in the alternative that the plaintiff firm was not entitled to any compensation as it had accepted a sum of Rs. 26/11/- in full and final settlement in its entire claim. It also pleaded that the suit itself was incompetent as it could not have been filed in the name of the firm which was not a legal person. It also contended that as the consignment had been handled by two different Railways, the Northern and the North Eastern, the latter was not liable as the loss had occurred while the goods were in the custody of the Northern Railway. Finally it contended that the damages were not at the rate of Rs. 5/8/- per bag but Re. 1/- per bag. The trial court held that the goods had been damaged as a result of the negligence of the Railway; that the loss suffered by the plaintiff firm was at the rate of Rs. 5/8/- per bag; that the plaintiff firm had accepted the sum of Rs. 26/11/- in full and final settlement of its claim on account of shortage but not on account of its claim for damage to the sugar bags; that the suit was not incompetent; and that the plaintiff was entitled to a decree for Rs. 1,100/- with costs. These findings were confirmed by the appellate court and the Union of India has come to this court in second appeal.

4. Learned counsel for the Railway urged the following arguments in support of this appeal. First he contended that the finding of the courts below that this suit was competent is erroneous. He pointed out that the plaintiff is admittedly a joint Hindu family firm, and argued that a suit by such a firm could only be filed in the name of the Karta. Learned counsel frankly conceded that he was raising a technical plea but insisted that it was fatal to the competency of the suit. There are two short answers to this argument. First, these pleas were not taken in the grounds of appeal before this court. A belat