Das, J.:— These two appeals are by the defendants first party. The suit out of which these two appeals have arisen was a tripartite suit, though the contest was between two parties only. The plaintiffs respondents, first party here, brought the suit for recovery of Rs. 4565 and odd annas on the following allegations. They alleged that they carried on a joint family business of commission agency and goladari at Naugachia in the District of Bhagalpur. The appellants had a joint family business at Jaunpur under the name and style of Mohan Lal Mata Prasad. The defendants second party, respondents second party before us, had also a business at Naugachia under the name and style of Lalchand Bhagat Ambica Ram. On 11th August 1942, the plaintiffs respondents purchased, on behalf of the appellants, 337 bags of maize weighing 627 maunda and odd at the rate of Rs. 5-9-0 per maund from the respondents second party, and paid the price thereof. The maize in question had been loaded already in wagon at Karhagola railway station, and was booked for Jaunpur in the name and in favour of the firm Lalchand Bhagat Ambica Earn under a particular invoice dated 10th August 1942. The maize did not, however, reach Jaunpur having been looted by a violent mob during the disturbances in August 1942. The railway receipt which it is stated, was endorsed in favour of the plaintiffs-respondents was sent to the Bank of Bihar at Jaunpur with a demand draft for Rs. 1200 for realisation of the money from the appellants. The appellants refused to pay. The suit was brought for the realisation of the price etc., including the price of 387 gunny bags and paya charges, of the aforesaid 337 bags of maize. It appears that the plaintiffs-respondents also claimed some money as a result of certain cash transactions alleged to have taken place between the plaintiffs-respondents and the appellants. In all, the claim was laid at Rs. 4565 and odd annas, as already stated above.

2. The defence of the appellants was that they had nothing to do with the respondents second party, and they purchased 387 bags of maize on 9th August 1942 (and not 11th August 1942, as alleged by the plaintiffs-respondents) from the plaintiffs-respondents; but the title to, or the property in the goods had not passed to the appellants, because the agreement between the parties was that the property in the goods would pass on delivery of the goods and payment of the price at Jaunpur. In other words, the main defence of the appellants was that the property in the goods was still retained by the plaintiffs-respondents, and the loss in transit must, therefore, fall on the plaintiffs-respondents.

3. The learned Subordinate Judge, who dealt with the suit in the first instance came to the following findings: (1) 337 bags of maize were purchased by the plaintiffs respondents themselves from the respondents second party, and the title thereto had passed to the plaintiffs-respondents as soon as they paid the price and got the railway receipt endorsed in their favour; and (2) title to the said bags of maize never passed to the appellants, and the plaintiffs-respondents still retained their property in the goods. On these two main findings, the learned Subordinate Judge dismissed the claim for the price of the maize. With regard in the claim arising out of certain other transactions, the learned Subordinate Judge held that the appellants owed a sum of Be. 546 and odd annas to the plaintiffs-respondents, and passed a decree accordingly. Two appeals were preferred to the learned District Judge, one by the plaintiffs-respondents, and the other by the present appellants. The learned District Judge came to the following findings. He held that the plaintiffs-respondents merely acted as agents, and the purchase of 837 bags of maize on 11th August 1942, was really made by the present appellants, who thereupon acquired good title to the goods, though the price was paid by the plaintiffs-respondents on behalf of the appellants. He further found that the railway receipt was sent through the Jaunpur branch of the Bihar Bank with a demand draft for Rs. 1200 for the purpose of enforcing the lien which the plaintiffs-respondents held as agents. On these findings, the learned District Judge held that the property in the goods had passed to the present appellants; therefore they had to bear the loss due to unforeseen causes, which took place in transit. With regard to the claim arising out of other transactions, the learned-District Judge found against the present appellants in the result, he dismissed the appeal of the present appellants, and allowed that of the plaintiffs-respondents.

4. In the two appeals before us, learned counsel for the appellants has advanced his arguments mainly on the question as to the party in whom the property in the goods of 337 bags of maize lay. We have not been addressed with regard to the claim arising out of other transactions.

5. The point urged before us on behalf of the appellants may be put in the following way. 14, is contended that as between the appellants and the plaintiffs-respondents the property in the goods could not have passed, in law to the appellants, in view of the findings that the railway receipt was not endorsed in favour of the appellants, and the railway receipt along with a demand draft for Rs. 1200 was sent to the Jaunpur branch of the Bihar Bank for realisation of the price from the appellants Learned counsel for the appellants contends that it is clear from, the aforesaid findings, which were accepted by the Court of appeal below, that the intention of the parties was that the property in the good would not pass till the demand draft was honoured by the appellants. Our attention has been drawn to Sections 23(2) and 25(2) of the Sale of Goods Act, and to the decisions in M.R Mehta & Co.… v. Joseph Heureux…., 48 Bom. 531 : A.I.R (11) 1924 Bom. 422) and Rameshwardas Poddar…Plaintiff; v. Paper Sales, Ltd.…Defendants., Ltd., A.I.R (31) 1944 Bom. 21 : (211 I.C 93) I do not think that there is any doubt that in an ordinary contract for sale, the seller may retain the property in the goods till the price is paid, Ordinarily and normally, a party buying goods is entitled to call upon the vendor to give him physical delivery of the goods, but by agreement a purchaser may say that he will to satisfied with a constructive delivery if the goods are made over to a bailee, the bailee would ordinarily be an agent of the seller unless the buyer agrees to make the bailee his agent, and asks the bailee to hold the goods for him. In the case before us, the railway receipt was not endorsed in favour of the appellants. On the contrary, it was sent to the Jaunpur branch of the Bihar Bank with a demand draft for Rs. 1200, and unless the demand draft was honoured, the appellants could not get the goods. Normally, I think, these circumstances would give rise to the inference in law that the seller retained the property in the goods till the money was paid. The present case cannot, however, be decided on such a simple issue. The final Court of fact, on a consideration of the entire evidence in the case, came to the clear finding that the plaintiffs, respondents were merely acting as agents for the appellants, and the purchase made on 11th August 1942, of 337 bags of maize, which had already been loaded in wagons at Karahgola railway station, was a purchase really made by the appellants, though the money for the price was advanced by the plaintiffs-respondents. Learned counsel for the appellants has subjected this finding to a good deal of criticism, and has drawn our attention to that part of the judgment of the learned District Judge where he said that

“the difference between the parties as regards whether the purchase of this quantity of maize was from plaintiffs, as stated by defendants first party, or from defendants second party through plaintiffs, as stated by plaintiffs, is not of much importance.”

It is contended that after having expressed himself that the matter was not of much importance, the learned District Judge could not have come to a finding that the plaintiffs-respondents were acting as agents of the appellants. The finding of the learned District Judge has to be taken from his judgment as a whole and not from a stray observation occurring in the judgment. I have very carefully considered the judgment of the learned District Judge, and it seems clear to me that he found in unambiguous terms that the plaintiffs-respondents acted as agents for the appellants in the matter of the purchase of 337 bags of maize, though the plaintiffs-respondents advanced the money for the price therefor. There is evidence in support of that finding which evidence the final Court of fact has, rightly or wrongly, accepted. No doubt, the learned Subordinate Judge came to a contrary finding. He thought that the transaction was of a different character, namely, first a purchase by the plaintiffs respondents from the respondent second party, and then a contract for sale by the plaintiffs-respondents to the appellants. The learned District Judge did not, however, accept that finding. He found that there was really one sale or purchase—337 bags of maize purchased on 11th August 1942, by the appellants through their commission agents namely, the plaintiffs-respondents. The plaintiffs respondents acted in a dual capacity: they acted as commission agents for the purchaser; and as money-lenders, they advanced the money for the price of the goods purchased. If this be the real character of the transaction as found by the final Court of fact, and I have no doubt that he has correctly found so, then the legal position would be different from the simple issue propounded by learned counsel for the appellants, Under Section 221 of the Contract Act, the plaintiffs-respondents would be entitled to retain the goods until the amount due to them for commission, etc., has been paid or acconnted for. There has been some argument before us if ‘disbursements’ in Section 221 of the Contract Act, include ‘loans’. That would depend on whether the loans have been specially assigned to the property. In the case before us, the plaintiffs-respondents were entitled to their commission as also to the money which they had paid for the price of the goods. In other words, they had an agent's lien on the principal's property. Learned counsel for the appellants has contended that if an agent retains possession of the goods in enforcement of the agent's lien, the entire loss, if the goods are lost during the retention of possession by the agent, must fall on the agent himself and not on the principal. I do not think that this contention is correct. What the agent loses is his lien which is extinguished. It is, I think, well settled that the lien of an agent being a mere right to retain possession of the property subject thereto is, as a general rule, lost by his parting with the possession. If possession is given to a bailee for safe custody or for some other purpose consistent with the continuance of the lien, and the circumstances are such as to show that the agent intends to retain his rights, his lien will not be prejudiced by his parting with the possession. But if the goods themselves are lost, the agent loses his lien, and the proprietor or owner loses the goods. The loss of the goods must fall on the owner, or the person in whom the property in the goods is vested. Such a loss cannot fall on the agent if the agent had paid for the price as a money-lender, he cannot lose his lien as also the money which he had paid for his principal. There is a well understood distinction in law between a lien on property and a title to property. The agent holds the lien, but the principal owns the title. When the goods are lost, the agent loses the lien and the principal loses the goods. That, in my opinion, is the correct position in law. Therefore when the goods in this case were lost in transit, due to circumstances beyond the control of the parties, the plaintiffs respondents lost their lien as agents which they wanted to retain till the demand draft was paid, and the appellants lost their property in the goods. The loss of the price of the goods etc., paid for by the plaintiffs respondents, must fall on the appellants. The position of an agent vis-a-vis the principal in very similar circumstance has been well-explained in Dhanpat Singh v. Haricharan, 29 C.W.N 121 : (A.I.R (12) 1925 Cal. 284).

6. In my view, the learned District Judge rightly held that ownership or the property in the goods was with the present appellants in spite of the fact that the railway receipt was not endorsed in their favour and was sent with a demand draft for Rs. 1200 to the Jaunpur branch of the Bihar Bank.

7. The learned District Judge also rightly held that the loss of the goods must fall on the party in whom lay the property in the goods.

8. For these reasons, the appeals fail, and are dismissed with costs.

9. Narayan, J.:— I agree.

V.R.B

10. Appeal dismissed.