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. 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). 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 above view also held as follows:- "x x x x x .........in my judgment, an unquali­fied endorsement on a railway receipt has the effect of not only transferring to the endorsee the property in the goods covered by the railway receipt but also of transferring to him the right and benefit of the contract of carriage evi­denced by the railway receipt. He has, therefore, a right to maintain an action to enforce its performance in his own name, or to sue to recover damages oc­casioned by failure to perform the con­tract." 5. The above view was influenced largely on some observations of the Privy Council in AIR 1916 PC 7, Ramdas Vithal-das v. Amarchand and Co. This will be apparent from the following observations of Hidayatullah, C. J. in the Nagpur deci­sion AIR 1957 Nag 31 (supra): "Whenever a new document is used to base a suit, the question arises and the Courts try to find out (a) if it is a docu­ment of title in goods, i. e. a negotiable document, or (b) whether in the ordinary course of business it is regarded as so negotiable in ILR 40 Bom 630 = (AIR 191.6 PC 7) the document was held nego­tiable on custom........." "x x x x x x x x x x In my opinion, the matter has be­come so settled that even if it was neces­sary to prove a custom that a railway receipt is a negotiable document, it is not necessary to prove such a custom today. After the Privy Council ease where it was recognized that a railway receipt is used 'in the ordinary course of business' to represent the goods, the law must be settled." On the other hand, Rao, J., in agree­ment with Bhagwati, J. in AIR 1947 Bom 169, Shamji Bhanji and Co. v. North Western Railway Co. After the Privy Council ease where it was recognized that a railway receipt is used 'in the ordinary course of business' to represent the goods, the law must be settled." On the other hand, Rao, J., in agree­ment with Bhagwati, J. in AIR 1947 Bom 169, Shamji Bhanji and Co. v. North Western Railway Co. quoted with ap­proval the following observations in the Bombay decision: ".........an endorsement by itself is not enough to constitute the endorsee either a bona fide pledgee for value or a bona fide transferee for value of the goods represented by the railway receipt. Without anything more, it only consti­tutes the endorsee the agent of the con­signee for the purposes of taking deli­very of the goods represented by the railway receipt from the railway com­pany. X X X X X There are no rights created merely by reason of the endorsement between the endorsee and the railway company which has issued the railway receipt to the consignee the only remedy of the en­dorsee being against the endorser, x x x x x x x x x x The contract would remain all the same between the consignor and the railway company, and in the event of loss, destruction or deterioration of the goods represented by the railway receipt, the consignor would be the only person entitled to sue the railway company for compensation for the same." The above view of the Nagpur High Court receives support in a Division Bench decision of the Allahabad High Court in AIR 1954 All 747 , Sheo Prasad v. Dominion of India. In the above deci­sion, Malik, C. J., speaking for the Court, observed as follows:- "A railway receipt being a mercan­tile document of title to goods, it is pos­sible to transfer the title in the goods, to the endorsee by mere endorsement. It is, therefore, not possible to accept the contention that a mere endorsement of a railway receipt is not by itself enough to transfer the property in the goods re­presented by the receipt and the endorsee has to prove aliunde that he is the owner of the goods covered by the railway re­ceipt endorsed in his favour." 6. The High Courts of Bombay, Calcutta and Gujarat took a contrary view on the point. We have already referred to Bhagwati. J.'s view in the Bombay decision. The High Courts of Bombay, Calcutta and Gujarat took a contrary view on the point. We have already referred to Bhagwati. J.'s view in the Bombay decision. There is a Division Bench deci­sion of the Bombay High Court in (1956) 58 Bom LR 650, The Union of India v. Taherali Isaji, where Shah, J., speaking for the Court, held as follows:- "An endorsee of a railway receipt is entitled to file a suit for damages against the railway administration relying upon his ownership or interest in the goods covered by the railway receipt. The, property in the goods covered by a rail­way receipt is not necessarily transfer­red merely by an endorsement on the railway receipt. The endorsement is in form only an authority by the consignor or by his endorsee to a named person to ask for delivery of the goods represented by the receipt from the railway admin­istration. By the request endorsed on the railway receipt to deliver goods to the endorsee, the endorsee does not become a transferee of the goods represented thereby. But a railway receipt being a document of title to goods, the property in the goods may be transferred by mere delivery of the receipt. In each case, the question is not whether an endorse­ment effects a transfer of the goods but whether the endorsement of the railway receipt and the delivery thereof is made with the intention of transferring the goods to the endorsee. If the delivery of the railway receipt with an endorse­ment is made with the intention of transferring the goods, the holder of the railway receipt would be entitled, as owner of the goods, to file a suit against the railway administration for loss or damage thereof." Referring to the decision of Bhag­wati, J., in AIR 1947 Bom 169 (supra), Shah, J., observed as follows:- "In Shamji Bhanji & Co.'s case, AIR 1947 Bom 169 it was clear on the evidence that the title in the goods re­mained with the plaintiffs even after the consignment was despatched and S had only a right to collect the goods. In other words, the railway receipt was endorsed only for authorising the en­dorsee to take delivery of the goods. In other words, the railway receipt was endorsed only for authorising the en­dorsee to take delivery of the goods. The plaintiffs in that case as owners of the goods and also as parties who con­tracted with the railway administration, were held entitled to file a suit for co-pensation for loss or destruction of the consignment. Again the plaintiffs in that case were the ultimate endorsees of the railway receipt and even as ultimate endorsees they were entitled to file the suit. The Court in that case was not called upon to decide whether an en­dorsee to whom property in goods was transferred was entitled to maintain a suit for compensation for loss of the goods against the railway administra­tion. The case is, therefore, not an au­thority for the proposition that an en­dorsee of a railway receipt, who is also an owner of the goods covered thereby cannot maintain a suit for compensation for loss of the goods against the railway administration. XXX XX In Shamji Bhanji & Co.'s case, AIR 1947 Bom 169 the plaintiffs being the consig­nors and consignees as well and having themselves entered into a contract with the railway administration and also be­ing the ultimate endorsees, were on any view entitled to file a suit for compen­sation." The Calcutta High Court also ( AIR 1964 Cal 290 , Commissioners for the Poit of Calcutta v. General Trading Corpora­tion Ltd.,) did not accept the view of the Nagpur High Court, AIR 1957 Nag 31 (Supra). Bhachawat, J., in that case made some pregnant observations thus: "I was inclined to hold, if I could, that every consignee named in the rail­way receipt as also every endorsee of it by the named consignee are entitled to sue the railway administration concerned for loss or injury to the goods. The existing commercial practice favours such a right of suit arid I was inclined to uphold the practice, if I could. But on the authorities, and on principle, I am compelled to hold otherwise. I regret this conclusion, because it will encour­age technical defence by the railway ad­ministration. In the interest of com­merce, the Legislature should intervene and sanction the existing commercial practice." Similarly the Gujarat High Court also in AIR 1966 Guj 6 , Ibrahim Isaphai v. Union of India was not inclined to follow the views of the Nagpur High Court in the above cited decision supra. In the interest of com­merce, the Legislature should intervene and sanction the existing commercial practice." Similarly the Gujarat High Court also in AIR 1966 Guj 6 , Ibrahim Isaphai v. Union of India was not inclined to follow the views of the Nagpur High Court in the above cited decision supra. The Gujarat High Court, referring to the definition under Section 2 (4) of the Indian Sale of Goods Act, observed as follows: "By the definition, a railway re­ceipt has, in terms, been stated to be a document of title to goods The adop­tion of the aforesaid definition given by the Privy Council clearly shows that the Legislature did not intend to use the term "title" in the expression "docu­ment of title to goods" in the wider sense of the ownership of goods. The term "title" is used in the limited sense of a right to receive or take delivery ol goods. It is in this limited sense that a railway receipt is a document of title and, in view of the fact that there is no provision in the Indian Sale of Goods Act which either expressly or impliedly states that an endorsement on or a delivery of the railway receipt passes title to the goods represented thereby, the proposition cannot be subscribed to that such an endorsement and delivery would pass title to the goods." Even the Privy Council has observ­ed in AIR 1916 PC 7, (supra) at page 9 as follows:- "It remains to consider the appel­lant's argument, so far as it is based on the use of the expression "instrument" instead of "document" of title. In the first place it is to be observed that "title" in both expressions can relate only to the right to receive delivery of the goods to which the instrument or document relates. I can have nothing to do with ownership." Being faced with the situation as has been portrayed under the law as well as under the custom noticed by his Lordship, Hidayatullah, C. J., did not choose to have the reservation which Bachawat, J., indicated in the Calcutta case and at para 63 of the Nagpur deci­sion, AIR 1957 Nag 31 (supra), his Lord­ship made the following observation: "I may point out that the trading community is sometimes ahead of the law and tries to invest with negotiabi­lity other and new documents. How they achieve this is noted in Pollock on Contracts (13th Edition) at page 182 as follows:- "The complete solution of the pro­blem, for which the ordinary law of contract is inadequate, is attained by the law merchant in the following manner:-• (i) The absolute benefit of the con­tract is attached to the ownership of the document which according to ordinary rules would be only evidence of the con­tract. (ii) The proof of ownership is then facilitated by prescribing a mode of transfer which makes the instrument itself an authentic record of the succes­sive transfer: this is the case with in­struments transferable by endorsement. (iii) Finally the proof is dispensed with by presuming the bona fide posses­sor of the instrument to be the true owner: this is the case with instru­ments transferable by delivery, which are negotiable in the fullest sense of the word." Further, his Lordship observed at para­graph 65: "of course, nobody is claiming for a document of title to goods negotiability on a par with that attaching to a bill of exchange. The document of title to goods represents title to the goods or the goods themselves." His Lordship quoted from the deci­sion of 1899-1 QB 643 at page 660, Cahn v. Pockett's Bristol Channel Steam Packet Co., where Collins, L. J. observ­ed : "The Legislature has deliberately chosen to alter the common law..... and has step by step enlarged the class of persons who, having possession, may give a better title than they have them­selves got, and has relaxed the condi­tions under which they may do so, and I think it would be a backward step to subject the title of the purchaser from such persons to speculations such as the argument of the defendant suggests." In the Nagpur case, AIR 1957 Nag 31 (supra) Hidayatullah, C. J., further deal­ing with endorsees held : ".......the last endorsee can sue in his own name without proving that he is a holder for value, since that will be presumed unless rebutted. He can give a valid discharge to the carrier and can thus sue and is not required to prove that all intervening transactions were bona fide and for value." 7. Let us now look at the posi­tion from the decisions of the Supreme Court. He can give a valid discharge to the carrier and can thus sue and is not required to prove that all intervening transactions were bona fide and for value." 7. Let us now look at the posi­tion from the decisions of the Supreme Court. Bhagwati, J., speaking for the Court in AIR 1955 SC 182 , Duni Chand v. Bhuwalka Brothers Ltd., in para 17 observed: ".......it is unnecessary to consider the argument which was sub­mitted before us based upon the defini­tion of "documents of title" in Section 2 (4) and the provisions of Section 30, pro­viso to Section 36 (3) and the proviso to Section 53 (1) of the Sale of Goods Act that all the documents of title enumerat­ed in Section 2 (4) were assimilated to bill of lading and a mere transfer of the documents of title in favour of a buyer was tantamount to a transfer of posses­sion of the goods represented thereby." In AIR 1961 SC 426 , Commissioner of Income-tax v. Bhopal Textiles Ltd., Hidayatullah, J.. (as he then was) speak­ing for the Court (S. K. Das and Shah. JJ., agreeing) observed at para 5 as follows:- "A railway receipt is a document of title to goods, and, for all purposes, re­presents the goods. When the railway receipt is handed over to the consignee on payment, the property in the goods is transferred. In this case, it is a matter of considerable doubt whether the pro­perty in the goods can be said to have passed to the buyers by the mere fact of the railway receipts being in the name of the consignees, as has been held by the High Court. In this case, it is a matter of considerable doubt whether the pro­perty in the goods can be said to have passed to the buyers by the mere fact of the railway receipts being in the name of the consignees, as has been held by the High Court. Since we are not decid­ing the question of accrual, we do not elaborate the point." In AIR 1965 SC 1954 (Morvi Mercan­tile Bank v. Union of India) which is a majority decision given by Subba Rao, J. (as he then was) (Raghubar Dayal and Bachawat, JJ., agreeing) observed as follows: "The Indian decisions cited at the Bar do not deal with the question whether a valid pledge of goods can be ef­fected by transfer of documents of title, such as a railway receipt, representing the goods; they were mainly concerned with the question whether an endorsee of a railway receipt for consideration could maintain an action on the basis of the contract embodied in the said re­ceipt : See Firm of Dolatram Dwarkadas v. Bombay Baroda and Central India Railway Co., ILR 38 Bom 659 = AIR 1914 Bom 178; AIR 1957 Nag 31; AIR 1964 Cal 290 and (1956) 58 Bom LR 650. These raise a larger question on which there is a conflict of opinion. In the view we have taken on the question of pledge, it is not necessary to express our opinion thereon in these appeals." In AIR 1966 SC 395 , Union of India v. W. P. Factories, Wanchoo, J. (as he then was) speaking for the Court (Gajendra-gadkar, C. J., Hidayatullah, J. (as he then was), Shah and Sikri, JJ. agreeing) ob­served at para 10 as follows:- "It is true that railway receipt is a document of title to goods covered by it, but from that alone it does not follow where the consignor and consignee are different, that the consignee is necessari­ly the owner of goods and the consignor in such circumstances can never be the owner of the goods. The mere fact that the consignee is different from the con­signor does not necessarily pass title to the goods from the consignor to the con­signee, and the question whether title to goods has passed to the consignee will have to be decided on other evidence. The mere fact that the consignee is different from the con­signor does not necessarily pass title to the goods from the consignor to the con­signee, and the question whether title to goods has passed to the consignee will have to be decided on other evidence. X X X X As we have said, already, ordinari­ly, the consignor is the person who has contracted with the railway for the car­riage of goods and he can sue; and it is only where title to. the goods has passed that the consignee may be able to sue. Whether title to goods has passed from the consignor to the consignee will de­pend upon the facts of each case and so we have to look at the evidence produced XXX X We have noted above the conflict of judicial authority regarding negotiabi­lity of a railway receipt. 8. In our opinion, the railway receipt is not negotiable in the sense that the bill of lading is under the Indian Bills of Lading Act, 1856, or a negoti­able instrument is under the provisions of the 'Negotiable Instruments Act, 1881, according to the rules of the Law Mer­chant. The railway receipt cannot, there­fore, confer on the endorsee such rights as are available under the provisions of the above two Acts. We may in passing note the provisions of Section 1 of the Indian Bills of Lading Act, which read as follows:- "Every consignee of goods named in a bill of lading, and every endorsee of a bill of lading to whom the property in the goods therein mentioned shall pass, upon or by reason of such consignment or endorsement shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in res­pect of such goods as if the contract con­tained in the bill of lading had been made with himself." The definition in Section 2 (4) of the Sale of Goods Act and the provisions of Section 137 of the Transfer of Property Act do not lead to the vesting of a right of suit on a plaintiff by mere endorse­ment of the railway receipt in his favour. The endorsee, apart from the endorsement, must establish that right to property in the goods has also passed in his favour and that he is the owner of the goods to enable him to institute a suit against the railway which is found­ed on the basis of the original contract, breach of which is only claimed. The consignor has always the right to sue as he was a party, to the original contract with the railway. The plaintiff, in order to institute a suit against the rail­way, must implead the consignor or someone who established ownership of the goods, which are consigned, deriving his title from the original consignor. Transfer of the contract in favour of the plaintiff has also to be proved in the ordinary course under the Law of Con­tract. We are unable to find any cus­tom or any provisions of law entitling the endorsee, by virtue of the mere en­dorsement, to institute the suit against the railway. It is interesting that even though the problem has been there and with the above conflict of judicial deci­sions, the Legislature has left the matter untouched even in the recent amend­ments of the Indian Railways Act. In our judgment, the plaintiff-endorsee of a railway receipt must establish his title to the goods represented by the rail­way receipt and no hard and fast rule can be laid down as to what sort of evidence may be sufficient to establish that claim. The Court will have to judge in each case whether the plaintiff has established such claim in the light of the pleadings and the evidence, oral or documentary, produced before it. 9. We are fortified in the above view even on the terms of the contract embodied in the railway receipt (Ext. 1) on the reverse of which the following condition in the notice is set out: "1. The Railway receipt given by the railway for the articles delivered for conveyance must be given up at destina­tion by the consignee to the Railway or the Railway may refuse to deliver and that the signature of the consignee or his agent in the delivery book at destination shall be evidence of complete delivery. The Railway receipt given by the railway for the articles delivered for conveyance must be given up at destina­tion by the consignee to the Railway or the Railway may refuse to deliver and that the signature of the consignee or his agent in the delivery book at destination shall be evidence of complete delivery. If the consignee does not himself attend to take delivery, he must endorse on the receipt a request for delivery to the person to whom he wishes it may, and if the receipt is not produced the delivery of the goods may, at the dis­cretion of the Railway, be withheld until the person entitled in its opinion to receive them has given indemnity to the satisfaction of the Railway, x x x x" This would go to show that the en­dorsement in the railway receipt only confers a right on the endorsee to receive the goods by delivering the railway re­ceipt to the Railway who will be dis­charged from any liability after the goods are delivered to such an endorsee. Any further right beyond this will have to be established by other usual-method and procedure de hors the endorsement. It may perhaps be safe and useful for a plaintiff being an endorsee to allege in his plaint the entire circumstances and even making the consignor and other intermediary endorsees parties to the suit so that all the transactions are before the Court and the Railway is also in a position to meet the claim. 10. In this case, the plaintiff has described himself in his plaint as "the1 purchaser owner of the said consign­ment by paying the value of the said consignment amount of Rs. 26,211.72 Np. through the State Bank of India, Tezpur Branch and having got the Railway Receipt duly endorsed in favour of the plaintiff.....". Since there has been conflict of judicial authorities on the point, we feel that we should give the plaintiff an opportunity to lead evidence on the point to establish his title to the goods in terms of the allegations in para 2 of the plaint. Further, since we are allowing this appeal and remanding the same we will not decide the merit of the third ground about proof of short delivery, which point will also be decid­ed by the lower Court after hearing the parties afresh. 11. Further, since we are allowing this appeal and remanding the same we will not decide the merit of the third ground about proof of short delivery, which point will also be decid­ed by the lower Court after hearing the parties afresh. 11. In the result, the appeal is allowed and the judgments and decrees of the courts below are set aside. The suit is remanded to the Court of first instance for disposal hi accordance with law and in the light of this decision. There will be no order as to costs. Delivery of this judgment was de­layed as my learned brother was trying an election case on the original side and this Bench was not available. M. C. PATHAK, J.:- 12. I agree. Appeal allowed.