Das, J.

(1) This second appeal is by the plaintiffs, proprietors o a firm of the name of Messrs. Gopal Ram Ram Das of Arrah. The short facts, out of which this appeal has arisen, are the following. Two consignments of mustard oil were booked at a railway station, named Jamuna Bridge, on the railway known as the East Indian Railway Administration now represented by the present respondent. The consignments were booked on 16th November 1943, and two railway receipts were given numbered 751151 and 751152. These railway receipts show that the consignor was the Deputy Regional Food Controller, Agra and the consignee was ft firm of the name of Banshidhar Premsukh Das. The consignee firm endorsed the railway receipts in favour of the Imperial Bank of India. The latter in turn, endorsed an order on the receipts directing delivery of the goods to the plaintiffs firm. The case of the appellants was that the goods arrived at Arrah, another station within the E. I. R. Administration, in a highly damaged condition, and when delivery was taken it was found that 13 maunds 5 seers and 3 chattaks of oil out of one consignment, and 12 maunds and 35 seers of oil in the other consignment were short. It was further found that 76 tins were partly damaged and 23 tins completely damaged. The appellants firm alleged that the short delivery of the two consignments and the damage to the tins were due to the negligence and want of proper and due care on the part of the Railway Administration, and further-more, to the misconduct on the part of the servants of the Railway Administration daring the time the two consignments were in their custody. It was alleged that there was loose shunting of the wagons in which the two consignmenta were placed, and the shortage of oil and the damage were due to such loose shunting. On those allegations, the appellants firm claimed the price of 23 and odd maunds of mustard oil, the price of the damaged tina, profit at 10 per cent. and certain incidental expenses-laying their total claim at Rs. 1266-2-

6. The defence of the respondent, so far as it is relevant at the present stage, was that the consignments were booked at a reduced rate of freight under a special agreement embodied in Risk Notes in Form B, under which the consignor agreed to hold the Railway Administration free from all responsibility for loss or damage from any cause whatever except upon proof of misconduct on the part of the Railway Administration, or their servants. The respondent pleaded that the onus of proving misconduct was on the appellants firm, and the shortage and damage were due not to loose shunting or want of proper care on the part of the Railway Administration or their servants, but to improper packing of the mustard oil in the tins.

(2) It appears that the respondent did originally file some documents including the alleged Risk Notes in Form B. While the documents were in the custody of the Court of the third Munsif, they were damaged by rats. The original risk notes could not, therefore, be proved in the case. The respondent proved two documents (Exs. B and B1) which have been stated to be office copies of the risk notes in question. I may state here that the two railway receipts, to which I have already made a reference, were marked as Exs. A and A1 in the record. In these two receipts there is a reference to a Risk Note in Form B. On the top of the receipts the letter B is written against the column "Risk Note Form," and there is a further note on the top of the receipts to the effect "At Owners Risk."

(3) The learned Munsif who dealt with the suit in the first instance, held that the consignments were despatched under Risk Notes in Form B. This finding, the learned Munsif arrived at, mainly on the aforesaid entries in the two receipts, as also on the alleged office copies (EXS. B and B1). He found, however, that the appellants firm had proved misconduct against the Railway Administration or their servants inasmuch as the shortage or damage could be caused in only one of two ways (a) either the pilferage during transit by the employees of the Railway Administration, or (b) on account of loose shunting or bump shunting of the wagons on the way from Jamuna Bridge to Arrnh. On that finding, the learned Munsif passed a decree in favour of the appellants for a sum of Rs. 1149-2-6, disallowing the claim for profits and incidental expenses. The learned Subordinate Judge, who heard the appeal, accepted the finding of the learned Munsif that the consignments in question were covered by Risk Notes in Form B, but disagreed on the question of misconduct. He held that the shortage or damage was probably caused because of insufficient or defective packing, and was not due to any misconduct. On that finding the learned Subordinate Judge allowed the appeal and dismissed the suit. Hence, this second appeal by the appellants firm.

(4) The point which has been urged before us on behalf of the appellants, is that the Courts below had misdirected themselves on a question of law with regard to the liability of the Railway Administration. It is pointed out that under Section 72, Railways Act, the responsibility of a railway administration for the loss, destruction or deterioration of goods delivered to the administration to be carried by railway shall, subject to the other provisions of the Act, be that of a bailee under Sections 161, 152 and 161, Contract Act. Sub-section (2) of the said section, however, provides that an agreement purporting to limit that responsibility shall, in so far as it purports to effect such limitation, be void, unless it is in writing signed by or on behalf of the person sending or delivering to the railway administration the goods, and is otherwise in a form approved by the Central Government. It is contended by learned counsel for the appellants that it was for the Railway Administration to prove such an agreement as is referred to in Sub-section (2), and the Railway Administration had failed to do so; therefore, the responsibility of the Railway Administration in this case was that of a bailee under the Indian Contract Act. It seems clear to me on the evidence in the record, as it stands, that the Railway Administration have failed to prove the execution of Risk Notes in Form B by or on behalf of the person sending or delivering the goods to the Railway Administration so as to entitle them to say that a special agreement limiting their responsibility exists in this case. I have already stated that certain original documents, filed by the Railway Administration were damaged by rats. Therefore, it was open to the Railway Administration to give secondary evidence of the special agreement alleged to be embodied in Risk Notes in Form B. The Railway Administration produced two documents marked Exs. B and B1, stated to be office copies of the Risk Notes. The witness, who proved these two documents, stated that the copies were written by one Radha Krishna and were compared with the original Risk Notes. He did not, however, say that they were correct copies. In cross-examination he made the admission that no copy is ever prepared of the Risk Notes, thus completely nullifying what he had stated in examination-in-chief about these office copies. These two documents purport to have been signed by one Ambika Prasad for the Deputy Regional Food Controller, Agra. There is no evidence as to who this Ambika Prasad was, and whether he was signing on behalf of the sender or as the person delivering the goods to the Railway Administration Moreover, there is no evidence that Ambika Prasad did actually sign or execute the original Risk Notes. It should be noted that there is a difference between the existence of a document and the execution of a document The railway receipts (EXS. A and A1) no doubt, refer to Risk Notes in Form B: that would merely prove that there were such documents. But that does not relieve the Railway Administration from proving the due execution of the the risk notes, with particular reference to the conditions which have to be fulfilled under Sub-section (2) of Section 72, Railways Act, It was open to the Railway Administration to give secondary evidence of due execution, but this they failed to do. It is unfortunate that the Railway Administration failed to do so, because a few more questions to the witness examined on behalf of the Railway Administration with regard to the risk notes might have proved the due execution of the original risk notes.

(5) Mr. N. C. Ghose, appearing on behalf of the respondent, has very strenuously contended before us that the suit having been based on the two railway receipts, it was not open to the appellants to say that the Risk Notes in form B were not duly executed. Mr. Ghosh has relied on a Single Judge decision of the Calcutta High Court in E. I. Rly. Co. Ltd. v. Ram Chabila, A.I.R. (12) 192B Cal. 915 : (86 I. C. 558) and a large number of Lahore decisions which have followed the Calcutta decision. The Lahore decisions are Kundan Lal v. Secretary of State, A.I.R. (16) 1929 Lah. 698 : (11 Lah. 4) ; Secretary of State v. Shib Dayal, A.I.R. (16) 1929 Lah. 887 : (114 I. C. 51) ; B.B. and C. I. Rly. v. Mt. Abdul Raquib, A.I.R.. (21) 1934 Lah. 186 : (15 Lah. 596) and Secy. of State v. Deviditta Mal, 148 I. C. 489 (Lah.). He has also relied on certain observations in another Calcutta decision in B. N. Rly. Co. v. Moolji Sicka and Co., A.I.R. (17) 1930 Cal. 815 [LQ/CalHC/1930/188] : (58 Cal. 686) [LQ/CalHC/1930/216] . The earlier Calcutta decision in E. I. Rly. Co. Ltd. v. Ramchabila, A.I.R. (12) 1925 Cal. 915 [LQ/CalHC/1924/299] ; (86 I. C. 558) relied on an English decision H. C. Smith v. G. W. Rly., (1922) 1 A. C. 178: (91 L. J. K. B. 423). That was, however a case in which the suit was brought on the basis of an agreement by which the railway company was held free from any liability for loss, damage, misdelivery etc., except upon proof that such loss, damage or misdelivery etc., arose from the wilful misconduct of the servants of the Railway Administration. Lord Buckmaster said that as the suit was based on that contract, it was not open to the plaintiff to say that the suit was based on the delivery of goods only because then the plaintiff "would be suing outside the only contract upon which ho would have been entitled to recover." In the case before us, I do not think it would be correct to say that the appellants were suing on the railway receipts. They were suing on the contract of carriage of goods, of which the railway receipts are merely evidence. In the Calcutta decision, the matter was not put on the ground of estoppel, so as to preclude the plaintiffs from showing that there was no special agreement but it was put on the footing that the plaintiffs case was found upon the railway receipt which referred to the risk note and embodied the contract itself. This decision was considered by another Single Judge of the Calcutta High Court in B. N. W. Rly. v. Sobrati Mia, A.

1. R. (31) 1944 Cal. 50 [LQ/CalHC/1943/1] : (I. L. R. (1943) l Cal. 397) and it was pointed out that the railway receipt in that case did not contain the terms of the contract and that it was merely evidence to show that certain goods were placed in the custody of the railway and that a certain sum was paid as freight. It was further pointed out that if the contract was contained in the railway receipt the railway authorities would obviously not be justified in realising further money when the freight had been wrongly calculated. It was stated that even if the railway receipt did contain the terms of the contract, it did not contain anything about the risk note, and the hieroglyphic letter H did not prove the execution of a special agreement. If I may say as with respect, I agree entirely with the observations made by Henderson J. in B.N.W. Rly. v. Sobrati Mia, A.I.R. (31) 1944 Cal. 50 [LQ/CalHC/1943/1] ; (I. L. R. (1943) 1 Cal. 397). The railway receipts, of this case stand on no better footing than the railway receipt to which Henderson J. referred in the Calcutta case. The railway receipts are merely evidence to show that certain goods were placed in the custody of the railway and that a certain sum was paid as freight. The entry of the letter B against the column Risk Note Form" does not, in my opinion, prove the execution of a special agreement, as confirm plated by Sub-section (2) of Section 72, Railways Act. I do not propose to examine the Lahore decisions in detail, some of them go to the extent of saying that the plaintiff is estopped and concluded, and cannot show that there was no such special agreement as is contemplated in Sub-section (2) of Section 72, other decisions do not go to that length, but say that the onus will shift, and it will be for the plaintiff to show that there is no such agreement as is referred to in the railway receipt, Those decisions which say that the plaintiff is estopped or concluded by the railway receipt, certainly go beyond even what was decided in B. I. Rly. Co. Ltd. v. Earn Chabila, A.I.R. (12) 1925 Cal. 915 [LQ/CalHC/1924/299] : (86 I. C. 558). If the matter is looked at from the point of view of onus only the question presents no difficulty in this case. On the evidence, as it exists in the record, it is clear that there was no due execution of Risk Notes in form B. The observations made in B.N. Rly. Co. v. Moolji Sicka and Co., A.I.R. (17) 1930 Cal. 815 [LQ/CalHC/1930/188] : (129 I. C. 769) are of no particular help to the respondent, because in that case it was found as a fact that the risk notes were signed by one Nathu Singh who had delivered the goods. In Ganesh Dass Bisheshwar Lal v. E. I. R. Co., 6 Pat. 189 : (A.I.R. (14) 1927 Pat, 193) Jwala Prasad A. C. J., pointed out that the risk note was an exception to the ordinary responsibility of the railway company, and as an exception to the general responsibility, the risk note must be proved by the railway company to have been duly executed. The same view was again expressed in S. I. Ry. v. V. M. S. P. Brothers, A.I.R. (14) 1927 Mad, 639 : (101 I. C. 55) where it was pointed out that to limit the liability of a railway company, it must be shown under Section 72 (2), Railways Act that the person delivering the goods entered into an agreement to that effect, and the mere fact that the goods clerk wrote on the receipt given to the consignor the words "O. R. H." signifying owners risk as per H form would not take away the liability of the railway company in the absence of proof that the person who delivered the goods authorised the clerk to enter the aforesaid letters on the receipt or at least he consented or was aware that such letters were written thereon. The fact of charging a lower rate of freight was also considered in that case, and it was held that mere charging of the lower rate would not take away the liability of the railway company unless the railway company brings itself within the provisions of Sub-section (2) of Section 72 of the Act.

(6) For the reasons given above, my view is that the liability of the railway company in the present case is that of a bailee under the Contract Act. It is not seriously disputed that on that footing the appellants are entitled to a decree. Both the Courts below have found that there was negligence on the part of the railway company, though they differ as to whether that negligence amounted to misconduct or not, the learned Munsif holding that there was misconduct and the learned Subordinate Judge holding otherwise. It has been held in a long line of decisions of Indian Courts that loss or damage of goods entrusted to a bailee is prima facie evidence of negligence, that the burden of disproving negligence lies on the bailee, and that this burden lies also on a railway administration in the absence of a special contract to the contrary. I have already held no special contract has been proved in this case. The railway administration as bailee was, therefore, liable for the shortage of the mustard oil and the damage caused to the tins.

(7) For the reasons given above, I would allow this appeal, set aside the decision of the learned Subordinate Judge and restore the decree passed by the learned Munsif. The appellants will be entitled to costs proportionate to their success throughout.