NATHUBHAI BHIKARIDAS Vs. DEVIDAS MANGALDAS

JUDGEMENT

(1.) The lower appellate Court has found upon the evidence that both Mangaldas and Devidas received the money due upon the mortgage from the first defendant " for and on behalf of the plaintiff" as mortgagee of the said defendant. The legal effect of that finding is that both Mangaldas and Devidas by their own act and conduct constituted themselves agents of the plaintiff for the purposes of the amount or amounts received by them from the plaintiff's mortgagor; and it is not open to them to deny that fiduciary relation and plead that the money was received by them on their own account an for their own benefit: Lokhee Narain Roy Chowdhry V/s. Kalypuddo Bandopadhya (1875) L.R. 2 I.A. 154. The principle applicable to the present case, and applied in the judgment of the Privy Council abovementioned, is stated by Anderson J. in Gawton V/s. Lord Dacres (1590) 2 Leon, 219 which is referred to with approval in Lyell V/s. Kennedy (1889) 14 App. Cas. 437: " If one become my bailiff of his own wrong, without my appointment, he is accountable to me."

(2.) The question, then, is, whether this suit, treated as one by a principal against his agent to account for moneys received by the latter, is barred under Art. 89 of Schedule I to the Limitation Act.

(3.) On the facts found by the lower appellate Court the mortgagor made two payments, the first to Mangaldas and his son Devidas on the 4 of November 1902; and the second on his death to Devidas (the 2nd defendant) on the 30 of June 1903. The present suit was brought in 1907.