KOCHU VELU PILLAI Vs. KARTHIYANI PILLAI

JUDGEMENT

(1.) THE plaintiff, now represented by the appellant who is impleaded as the additional second plaintiff, sued defendants 2 to 7, who are the widow and children of Patchan Pillai, a deceased nephew of the plaintiff, for money alleged to be due to him. During his absence in Singapore for nearly seventeen years, the plaintiff made remittances to Patchan Pillai in India for various purposes, such as the purchase of properties in his name, the disbursement of monies to his relations, the investment of funds in savings-bank accounts and the purchase of a cow. THE remittances were during the period which commenced on the 7th March, 1938, and ended on the 18th September, 1952; in all, he had remitted a sum of rs. 4,522. According to the plaintiff, they were not applied by Patchan Pillai as per directions and so the plaintiff sued defendants 2 to 7 to account for the same, out of the assets of Patchan Pillai. THEy contended, that except for a sum of Rs. 600 which was admitted to be a loan to the second defendant, and which together with interest was deposited in court during the pendency of the suit for repayment, the other amounts were paid to Patchan Pillai gratuitously and denied that they were to be applied for any specific purpose. THE court found that Patchan Pillai had not accounted for a sum of over Rs. 3,300, but held the claim to be barred by limitation except to the extent of Rs. 1,500. THE court repelled the contention of the plaintiff, that Patchan Pillai received the amounts from the plaintiff on trust within the meaning of S. 10 of the Limitation Act, finding however at the same time, that their relationship was as principal and agent. THE suit was decreed for Rs. 1,500 and interest and this appeal relates to a sum of Rs. 1,689. 37 p. additionally claimed, and to costs in the lower court which had not been decreed.

(2.) THE main question to consider in this appeal is, whether the suit is barred by limitation. On the facts and circumstances of the case as disclosed by the pleadings and by the evidence, there is good reason to hold, in agreement with the lower court, that Patchan Pillai was the agent of the plaintiff for carrying out the instructions which, as found, accompanied the remittances made from time to time. THE plaintiff apparently was making some saving in Singapore which he desired to apply in India, and so the services of Patchan Pillai were requisitioned. THE case that the remittances were made gratuitously and for Patchan Pillai's benefit, was rightly found against. As agent, Patchan Pillai was liable to account to the plaintiff for the due application of the amounts remitted. S. 10 of the limitation Act having no application, on the finding as recorded, learned counsel relied on Art. 89 of the Indian Limitation Act which is as follows: On the plain language of the article, it is not possible to hold that the frame of the suit should be as for accounts generally. THE article contemplates a suit for recovery of movable property received by the agent and not accounted for by him. A suit for accounts, as in a running account, may be within the article, the term "movable property" being comprehensive to include money. Thus a suit to call upon the agent to account for money entrusted with him, not necessarily a suit for accounts, is within the article. It has been so held in Kashiram v. Santokhbai AIR. 1958 Madhya pradesh 91. But it was contended, that the suit being against the legal representatives of Patchan Pillai, is not a suit against an agent within the meaning of Art. 89. This raises a point as to the scope of the article and though at one time the view was entertained that a suit against the legal representatives of an agent is not a suit contemplated by the article, later cases have taken a different view. In Nobin Chandra Barua v. Chandra Madhab barua AIR. 1916 P. C. 148 the Privy Council had held, that the term'principal' in art. 89, is wide enough to include his legal representatives and that a suit by them against an agent to account for movable property is governed by this article By parity of reasoning, the term'agent' must also receive a similar construction. It is not open to doubt, that a suit instituted against an agent under Art. 89 can be continued after his death against his legal representatives. THE liability of the legal representatives of an agent is no doubt conditioned by the possession by them of properties and assets of the agent. It may also be, that a different standard as to burden of proof may apply, in judging their liability as distinguished from the liability of the agent, the burden being on the principal to prove as against the legal representatives, that realisations have been made by the agent on behalf of the principal, and the extent of such realisations. THEse distinctions as regards the extent or character of their liability and the onus of proof, cannot affect the nature or the substance of the cause of action which is the same against them as against the agent. Sufficient reasons have been adduced, if I may say so, by a Division Bench of the Punjab High Court in Jagir Singh v. Dheru AIR. 1958 Punjab 487 in support of the view, that Art. 89 applies to a suit against the legal representatives of the agent. THE preponderance of judicial opinion is also in favour of holding, that Art. 89 applies to such suits. Decisions to the contrary have been explained or distinguished in the case cited. Bikram kishore Manikya Bahadur v. Jadab Chandra Choudhury AIR. 1935 Calcutta 817 decided by the Calcutta High Court and Sree Rajah Parthasaradhi Appa Rao v. Subba Rao AIR. 1927 Madras 157 decided by the Madras High Court are two other cases in point. Learned counsel relied on Art. 62 of the Indian Limitation Act, but I consider that Art. 89, dealing with principal and agent, is the specific article and has to be applied.