P (PLP)

It is not disputed that Jnanada was an agent and he was liable for accounts. Section 213, Contract Act, provides that an agent is bound to render account to his principal, on demand and this duty will be enforced by following in the hands of the agent the properties representing the money for which he ought to have accounted, and the liability to account is irrespective of any express contract to that effect. It is well settled on principle that the liability of an agent is personal and the deceased agent' legal representatives cannot be required to render accounts in the same sense in which the agent himself might have been called upon to do. The reason seems to me that the legal representatives of the deceased cannot be required to discharge the duty to explain matters of which they have no personal knowledge and they cannot assist the principal in the investigation of the management of his estate of which they are wholly ignorant and they cannot be asked to do that which does not lie within the power and they should not be required to do something which is impossible. The rights and remedies of the principal against the agent and on the death of the agent against his representatives are not identical and this is supported by the view taken by Wilson J. in Lawless v. Calcutta L. and S. Co., 7 Cal.

627. A suit for account will lie if the defendant is under an obligation to account and an obligation to account arises only (i) if the person upon whom the obligation is sought to be imposed must have received some kind of property not belonging to himself, (ii) that the person seeking to impose the liability must be the owner or must have some title to that property as would enable him to recover it, (iii) that the defendant must have received the property in his possession and control and (iv) there must be fiduciary relationship between the plaintiff and the defendant. Now the legal representative of an agent does not stand in a fiduciary relationship. So a suit for account is not maintainable. Monmothanath Bose v. Basanta Kumar Bose Mullick, 22 All. 332 : (1900 A. W. N 98) is a case by a ward for accounts against his guardian during his guardianship. Kumeda Charan Bala v. Ashutosh Chattopadhya, 17 C. W. N. 5 : 16 C. L. J. 282 : (16 I. C. 742), is a suit by principal against legal representa tives of an agent, Nobin Chandra v. Chandra Madhab, 44 Cal. 1 (A. I. R. (3), 1916 P. C. 148) and Bir Bikram Kishore v. Jadab Chandra,

40. C. W. N. 245 : (A. I. R. (22) 1935 Cal. 817), are suits by principal's legal representative against the agent, and Srish Chandra v. Supprovat Chandra, 44 C. W. N. 304 : (A. I. R. (27) 1940 Cal. 337), and Amiya Krishna v. Debendra Lal, 46 C. W. N. 865, the former is a suit against a trustee and the latter by a co-trustee against legal representative of his co‑trustee. Then the question arises what is the remedy of the principal against the representatives of the agent. It is not at all tenable that the estate of the agent, who has not tendered accounts to his principal, escapes all liability in the hands of his representatives: It is equally well settled that the remedy of principal in a case a this description is to sue the representatives of the agent for any losses he may have suffered by reason of the negligence, misconduct, misfeasance or mal‑feasance of his agent; in other words, the suit is not one for accounts strictly so‑called but a suit for money payable by the representatives of the agent out of his assets in their hands. The contention that the liability is; personal and has expired, on the death of the agent is not well founded. A suit for recovery of the money misappropriated by a trustee or agent will lie against the legal representatives of the agent and in such a suit the decree will be against the assets of the deceased agent or trustee. A suit for recovery of a specified sum of money, however, does not assume the character of a suit for accounts merely because in the determination of the question in controversy accounts may have to be examined. The sole foundation for a suit for account is the obligation to account and where that does not exist, the suit for money cannot be regarded as a suit for accounts. Kshetranath Bauerjee v. Kalidasi Dasi, 27 C. L. J. 96 : (A. I. R. (5) 1918 Cal. 1037). The law is well- settled now that a case of this description is maintainable by the principal against the agent's legal representatives. Bindraban Bahari v. Jainima Kwinar, 25 All. 55 : (1902 A. W. N. 191); KninBda Charau Bala v. Ashutosh Chattopzdhya, 17 C. W. N. 5 16 C. L. J. 282, Sashi Sekhareswar Roy v. Hajirauuessa Bibi, 28 C. L. J. 492 : (A.

1. R. (5) 1918 Cal. 276); Baineswar Singh Bahadur v. Narendra Nath Das, A. I. R. (10) 1923 Pat. 259 71 I. C. 916 and Sree Amiya Krishna v. Debendra Lal, 46 C. W. N.

865. In the light of these principles the plaint in this case has to be examined. I may say at the outset that both the Courts below have come to the right conclusion that the present suit is not a suit for accounts but one for recovery of money against the legal representatives of the agent Jnanada Babu. The plaint consists of 10 paras and the first prayer is for a decree for a sum of Ins. 2225‑15‑9 only with costs and the second prayer is for general or other relief. The plaint states how the sum claimed in the suit has been arrived at. So on a reading of the plaint one comes to the only conclusion that it is a suit for recovery of money and not for accounts. It is true that the suit has been described at the heading as an account suit and this appears to me, as has been pointed out by the trial Court, that it is a mistake which has been committed by the office of that Court. In construing the plaint, I must look to the substance and not to the n account suit at all but a suit fort form. I hold that this is not a recovery of money. So the first branch of argument of Mr. Pal on his second contention fails. As regards the second branch of the argument of Mr. Pal on his second contention, I have already pointed out the law on the subject and the principle governing a case like the present one instituted by the principal against the legal representatives of his agent and I hold that this suit for recovery of a specified sum of money against the representatives of the deceased agent and for a decree to recover the said sum from out of the assets of the agent Jnanada Babu in the hands of the defendants is maintainable. So the second branch of the second contention of Mr. Pal is not well‑founded and is without any substance. The main question, which has been seriously argued by the learned advocates of both parties, is the question of limitation. In the facts of this case and in view of the findings, I am clearly of opinion, that the learned Subordinate judge has arrived at a right conclusion, and I am unable to give effect to the contention of Mr. B. K. De for appellants and I hold that Mr. Tapendra Kutnar Pal advocate for the respondent, i; right in his contention that the suit is governed by Article 62, Limitation Act. I may point out at the beginning that there has been divergence of whether in a case like, the present, Article 62 or 89 will apply or as contended by Mr. D Article 115 or 120, Limitation Act will apply. In determining this question of limitation, one will have to keep in view the definition of "defendant" in the Limitation Act which is in section 2 (4) and it is in the following terms:‑" `Defendant' includes any person from or through whom a defendant derives his liability to be sued". I shall have to keep in view also the language in Articles 62, 89, 115 and 120, Limitation Act, which are as follows: Article 62: For money payable by the de‑fendant to the plaintiff for money received by the defendant for the plaintiff's use. Three years. When the money is received. Article 89 By a principal against his agent for movable property received by the latter and not accounted for. Three years. When the account is during the continuance of the agency, demanded and refused or, where no such demand is made, when the agency termi nates. Article 115: For compensation for the breach of any contract, express or implied, not in writing re‑istered and herein specially provided for. Three years. When the contract is broken, or where there are successive breaches when the breach in respect of which the suit is instituted occurs, or (where the b r e a c h is continuing) when it ceases. Article 120 Suit for which no period of limitation is provided elsewhere in this schedule. Six years. When the right to sue accrues. To decide the point of limitation, I shall have to recapitulate certain facts. Jnanada Babu, predecessor of the defendants, was the law agent of the plaintiffs from 2nd January 1926 till his death on 12th Magh 1345 B. S. corresponding to 26th January 1939. It is also an admitted fact that Jnanada Babu rendered accounts to the plaintiff for the year 1339 B. S., and the present suit was for recovery of a sum of Rs.2,225‑15‑9 from the defendants, the heirs and legal representatives of Jnanada Babu. The present suit has been filed on 26th January 1942 as 25th January 1942 was a Sunday. It is common ground between the parties and also found by the learned Subordinate judge that all the money that is claimed by the plaintiffs under the Muktear Sherista was received by Jnanada Babu prior to 7th Aswin 1345 B. S. corresponding to 24th September 1938. The learned Subordinate Judge says as follows:-- "It is in evidence in this case that demands were made from Jnanada Babu during his life‑time for a sum of Rs. 2,226 entered in 'the rokar Ex. 2Z (17). There can, therefore, be no doubt that the cause of action arose with effect from the date of this demand, which was made prior to the death of Jnanada Babu. Even if it was made one day before the death of Jnanada Babu, the suit would be barred. I found that the disregard made by jnanada Babu of the demand amounted to his refusal. I find therefore, that the plaintiffs' claim under the account Sherista is also barred by limitation. In this case the breach occurred at the time when the demand was made and the demand was not satisfied." The contention of Mr. De for the appellant is that Article 115 applies as held in the case of Kumeda Charan v. Ashutosh Chattoiadhaya, 17 C. W. N. 5 : 16 Cr. L. J. 282 or Article 120 applies as held in Brindraban Behari v. Jamuna Kunwar, 25 All. 55 : (1902 A. W. N. 191). The reason of Mr. De is that the cause of action arose on the death of jnanada Babu on 26th January 1.939 and this is a suit within 3 years from that date, so Article 115 applies and the plaintiffs' claim is not barred by limitation. In that respect Mr. De is in a serious difficulty because it has been found by the Court of fact that there was demand and refusal during the lifetime of Jnanada Babu and so plaintiffs' suit is barred by limitation. It is correct on principle as has been pointed out by their Lordships of the Judicial Committee in Harinath Chatterjee v. Mothoor Mohun, 20 I. A. 183 : (21 Cal. 8 P. C.) and Khunilal v. Gobind Krishna, 38 I. A. 87 : (33 All. 356 P. C.) that the intention of the law of limitation is not to give a right where there is not one, but to interpose a bar, after a certain period, to a suit, to enforce an existing right. It is equally settled that when a cause of action accrues and limitation once commences to flow it will not cease to flow. Here, in the present case, the finding is that there has been a demand on 24th September 1938 and there was refusal during the lifetime of Jnanada Babu and if that refusal was even one day before his death the suit would be barred even under Article 115, Limitation Act. The only other argument of Mr. De is that Article 120, Limitation Act, applies. But I do not find any reason how this article is applicable when there are other articles governing a case like this. Mr. De's other branch of argument is that Article 89 does not apply as the suit is not against the agent but against his representatives. But I cannot uphold this contention. The cause of action here began not on the death of the agent on 26th January 1939, but on 24th September 1938 when there was demand and refusal, as found by the lower Appellate Court and' that finding is binding on me in second appeal, hence in any view the suit is beyond three years. The case of Bindraban Behari v..Jamuna Kunwar, 25 All. 55 (1902 A. W. N. 191), is cited. That was a suit by the plaintiff against the sons of a pleader, who collected plaintiff's money. There it was argued that Article 62 or Article. 89 applied but that contention of the plaintiff was overruled on the ground that the suit was not against the pleader but as against the pleader's representative, and the right to sue did not accrue when the money was received by the pleader but when it was received by the son and on the death of the pleader, and as the suit was within six years of the receipt of money by the father it was in time. This case in my opinion has not been correctly decided and in no way can Articles 120 be applicable as there are other articles in the Act, applicable to that class of cages. In that case the definition of 'defendant' in section 2 (4), Limitation Act, has been overlooked. According to the definition the defendant includes any parson from or through whom a defendant derives his liability to be sued. To the similar effect is also the decision of Rao Girraj Singh v. Rani Raghubir Kunwzr, 31 All. 429 (2 I. C. 118), and that was a suit against the sons and grandsons of the agent and it was held that Article 120 applied. There also the definition of defendant in section 2 (4), Limitation Act, was overlooked. The case of Bindraban Behari v. Jamuna Kunwar, 25 All. 55: (1902 A. W. N. 191), has been dissented from in Parthasarthi Appa Rao u. Subba Rao, 50 Mad. 249 : (A. I. R. (14) 1927 Mad. 157) and in Ramhari Kapali v. Rohini Kanta, 35 C. L. J. 330: (A. I. R. (9) 1922 Cal. 499) and the case of Rao Girraj Singh v. Rani Raghubir Kunwar, 31 All. 429 ; (2 I. C. 118), has been dissenter) from in the case of Deorao Zolba v. Laxman Singh,

1. L. R. (1943) Nag. 470 : (A. I. R. (30) 1943 Nag. 227) and I respectfully agree with the aforesaid decisions of the Calcutta, Madras and Nagpur High Courts. The decision of the Calcutta Madras and Nagpur High Courts seems to be in accordance with well‑established principles. Now, if the principal sues his agent during latters' life‑time after the termination of the agency, or when the accounts are demanded and refused and the defendant agent dies during the pendency of that litigation, then the suit could be continued against the legal representatives.' The next position is where the agent dies after the termination of the agency or where there is a demand and refusal in the agent's life‑time. In that event the cause of action will accrue during agent's life‑time and limitation once having commenced to run will not cease to run by reason of the death of the agent. In that event, the agent's representatives can be sued after his death because the cause of action cannot alter by reason of the agent having died. The third position is where the agency terminates on the death of the agent. I find no reason why the rule should be different in this case. Again when the case is looked at the other way round, there is no doubt as to what the law is because as has been pointed out by their Lordships of the Privy Council in the case of Nabin Chandra v. Chandra Madhab, 44 Cal. 1 : (A. I. R. ,(3) 1916 P. C. 148) and Bir Bikram Kishoro v. Jadab Chandra, 40 C. W. N. 245: (A. I. R. (22) 1935 Cal. 817), where it has been held that the suit by the principal's legal representatives is governed by Article 89, Limitation Act. Though it is a converse case, to the present one, the principle appears to me to apply. The cases where article 89 has been applied as against, the legal representa tives of the agent are numerous and I may mention Parthasarathi Appa Rao v. Subba Rao, 50 Mad. 249 : (A.

1. R. (14) 1927 Mad. 15?), where reasons given in the case of Kumeda Charan v, Ashutash Chattopadhya, 17 C. W. N. 5 : 16 C. L. J. 282, have been considered and have not been followed. The decision in the case of Parthasarathi Appa Rao v. Subba Rao, 50 Mad. 249 : (A.

1. R. (14) 1927 Mad. 157), has been followed in the case of Bir Bikram. Kishore v. Jadav Chandra, 40 C. W. N. 245 ; (A. I. R. (22) 1935 Cal. 817), where it has been held that article 89, Limitation Act, applies to a suit for accounts brought by the principal against his agent as also to a suit brought by the legal representative of the principal against his agent. That Article 89 applies to suit by a principal against the legal repre sentatives of the agent has also been held in the case of Deorao Zolba v. Laxsnansingh Bania, I. L. R. (1943) Nag. 470: (A. I. R. (30) 1943 Nag 227), Nlst. Piari v. Kashi Prasad, 23 Luck, 65 : (A. I. R. (36) 1949 Oudh 51) and Rameswar Singh v. Narendranath Das, A. I. R. (10) 1923 Pat. 259 : 71 I. C.

916. I respectfully agree with the aforesaid decision and do not agree with the decision in Kumeda Chandra Bala v. Ashutosh Chattopadhya, 17 C. W. N. 5 : 16 C. L. J. 282 for the reason that case overlooks the definition of `defendant' in section 2 (4), Limitation Act. Moreover, as I have said that in the present suit the cause of action arose before the death of Jnanada Babu and so the present suit filed on 26th January 1942 is clearly barred by three years rule of limitation in Article 89, Limitation Act. In this connection I may refer to a passage in Brindaban Behari v. Jamuna Kunwar, 25 All. 55 at p. 56 : (1902 A. W. N. 191), where it has been held that a fresh cause of action arose upon the death of the father, that the suit against the sons would not fall under Article 89, Limitation Act, because the suit was not against the agent but against his legal representative. With all respect, I must dissent from the view and it can be pointed out that the Limitation Act classifies suits according to their `description` and that a suit of the description referred to in article 89 may be brought against the legal representative of the agent as well as against the agent himself. The case of Kumeda Charan Baia v. Ashutosh, 17 C. W. N 5 : (16 I. C. 742), is based on the case reported in Bindraban v. Jamuna Kunwar, 25 All. 55 : (1902 A. W. N. 191), and as I dissent from that decision, I respectfully also disagree with the decision in Kumeda Charan Bala v. Ashutosh, 17 C. W. N. 5 : (16 I. C. 742), cited above. Then only one other question remains, namely, whether Article 89 applies to this case or Article 62 applies. My answer is that Article 62 applies because the suit here is one for recovery of money only from the legal representatives and in this view I am supported by the decision of Ramhari Kapali v. Rohini Kanta, 35 C. L. J. 330 : (A. I. R. (9) 1922 Cal. 499), and the case of Rameswar Singh v. Narendra Path Das, A. I. R. (10) 1923 Pat. 259 : 71

1. C. 916 and respectfully following the said decisions I hold that the present suit is governed by Article 62, Limitation Act, and in that view I find that the present suit of the plaintiffs is, clearly barred by limitation. As the only contention of Mr. De for the appellants fails, the result is that this appeal is dismissed. In the circumstances of this case‑direct that the parties will bear their‑own costs upto this Court. . Leave asked for and is refused. K.M.A Appeal dismissed.