Mallick, J. - (1.) This suit is for a declaration that the plaintiff is the owner of the Hindusthan motor car No. WBD 194 and for wrongful detention and conversion.
(2.) The plaintiff's case is that on December 1, 1953, the defendant Biswas sold the car to the plain- tiff for Rs. 4,000/-. The said sum of Rs. 4,000/- was paid to the defendant Biswas in cash. The payment is evidenced by a receipt granted by Biswas to the plaintiff. The entries in the account book of the plaintiff have been tendered to corroborate the fact of payment of the said sum of Rs. 4,000/-. Further, oral evidence has been tendered by the plaintiff's husband Satyanarain Bagla and other witnesses to prove the payment. I have no reason to reject all this documentary and oral evidence in support of the sale of the car by the defendant Biswas to the plaintiff for the sum of Rs. 4,000/-, which was paid at the date of the sale. As is usual and required by the Motor Vehicles Act and/or the rules made thereunder, the defendant Biswas as seller made over two letters to the plaintiff, one to the registering authority, Motor Vehicles Department for registration of the car in the name of the plaintiff and another to Andhra Insurance Co. giving intimation of the sale, with a request that the insurance may be transferred in the name of the purchaser. Both these letters bear the same date, December 1, 1953. The defendant Biswas was well-known to the Baglas from before. After the sale Biswas wanted to use the car and was allowed to continue in possession of the car on a hiring agreement bearing the same date. Biswas, as the hirer, was to pay rent at the rate of Rs. 300/-per month, payable on or before the expiry of each month. The period of hire was three months, but time could be extended. Recital in the agreement is important for the purpose of this case and reads as follows: "Whereas the hirer has this day sold and delivered the vehicle hereinafter mentioned to the owner and has taken it on hire from the owner on terms hereinafter mentioned and whereas in view of the fact that as hirer the vehicle would be till the duration of this hiring used solely by the hirer who alone would be liable for all risks and offences arising therefrom it has been left registered in the name of the hirer who has delivered to the owner sale letters in owner's favour and has and hereby further agree and undertake to have and or allow the vehicle to be registered in the name of the owner on demand and to produce same to the proper Registering Authority For such transfer of ownership on demand." For reasons given in the recitals, the car was not in fact registered in the name of the purchaser and neither of the letters were sent to the registering authority or the insurance company. Further, the registration book was also left in possession of the seller Biswas. The reason for leaving the registration book with the seller is not stated in the agreement or in any document, but the reason is given in Court by Satyanarain Bagla, who gave evidence in this case, According to him, the reason was that Biswas wanted it because he intended to go outside Calcutta, when it may be necessary for him to pro-duce the registration book. I do not accept it. If the reason for leaving the registration book with Biswas is what is stated now, I would have expected it in the recital of the agreement. This recital refers to the letters left with the purchaser and further records an undertaking to have the car registered in his name and produce the same for that purpose. If Mr. Satyanarain Bagla thought it necessary to record all these facts and undertaking, I do not see any reason for not recording the fact of the registration book being kept with the seller Biswas and the reasons therefor. It seems to me that the real reason for leaving the registration book with the defendant Biswas was that the plaintiff would continue to be responsible to the Motor Vehicles Department as the owner of the car and also responsible to third parties, should there be an accident and would also realise from the insurance company the money, should the car suffer any accident and for that purpose it was thought that the, retention of the registration book by the defendant Biswas was necessary. It is to be noted that in breach of the rules under the Motor Vehicles Act, no intimation was given to the Motor Vehicles Department either of the fact o transfer or of the fact of hire. Mr. M. N. Banerjee, learned counsel for the defendant Jain, commented that this deliberate failure to intimate the Motor Vehicles Department amounted to a fraud on the statute.
(3.) Mr. Banerjee spent considerable amount of time and energy in cross-examination and in his address to the Court to prove that the transaction evidenced by the receipt, letters and hiring agreement is a colourable transaction and that in fact there was no sale by Biswas to Bagla and no hiring, after sale, to Biswas. To accept Mr. Banerjee's contention, I have to hold that the books of account produced fay the plaintiff are not the correct books, the receipt for Rs. 4,000/- given by Biswas is a false receipt and the hiring agreement has been procured subsequently from Biswas. I shall have to hold further that Satyanarain Bagla, the plaintiff's husband, can go to the length of manufacturing account books,. letters and receipts, which cannot be done except in close collaboration with Biswas, who is admittedly a rogue. On the evidence, I am not prepared to certify that Satyanarain Bagla is a man of that character. He is certainly not a cheat. He is a perfectly respectable gentleman, a man of commerce and of law, and even though I am unable to accept portions of his evidence, I would not consider him other than a perfectly good citizen with not more than usual human failings. He is certainly not a criminal.;