MAMRAJ MANIRAM Vs. SKMUHAMMAD HASHIM

JUDGEMENT

(1.) In this ease the plaintiff firm has sued the defendants according to the concise statement in the plaint to recover the sum of Rs. 4736-10-6 found due on adjustment of accounts, or alternatively for an account and decree for the amount found due. The plaintiff firm in March 1933 entered into business dealings with Muhammad Raffique in his firm of Muhammad Raffique and Muhammad Hashim. Those terms have been set out in the plaint, and evidence was also given in support of the statements in the plaint. It is quite clear that the agreement that was entered into between the plaintiff firm and Muhammad Raffique in March 1933 was an agreement by which the plaintiff firm was to act as commission agent on behalf of Muhammad Raffique. There are several clauses in which details as to the discount, commission and brokerage payable are set out. The business continued until 1935 when there was a considerable amount due to the plaintiff firm. The last dealings were on 10 February 1935. The suit was filed on 15 July 1937. The plaintiff company has given evidence of the goods supplied and the manner in which the liability arose. Learned Counsel for defendant 3, Mt. Sayada Bibi, the widow of Muhammad Raffique, has put forward two contentions. In the first place, he contends that although the suit purports to be a suit for an account or an adjusted account, it is in fact a suit for goods sold and delivered, and he claims that any action for goods delivered after 14 July 1934 is barred by limitation. He relies on Art. 52, Limitation Act.

(2.) This contention cannot prevail. In the first place, it is quite clear from the nature of the suit that this is not a claim for goods sold and delivered; it is a claim based on a contract by which the plaintiff firm agreed to act as commission agent for the defendants. There was a single contract, namely a contract of agency which must be distinguished from the series of contracts which may be entered into each time a sale or purchase takes place. As I have said, this is a contract of agency and should not be confused with a mere contract with a tradesman for the supply of goods on credit. Furthermore, it appears from the evidence that the plaintiff firm submitted its accounts annually, and the defendant in several letters wrote to the plaintiff firm saying "Please credit the amount remitted to my account." The amount due at the end of each year was added to the account for the following year, and after the dealings between the parties had closed and the final accounts had been submitted the defendants continued on various dates during 1935 and 1936 to send remittances to be placed to the credit of their account. In my view this was not a contract for goods sold and delivered. The cases relied on by learned Counsel do not seem to me to be apposite. Particular reliance is placed on the case of Atmaram Vinayik V/s. Lalji Lakhamsi ( 40) 27 AIR 1940 Bom 158.

(3.) The other question which has been argued by learned Counsel for the defendants is that since the defendants are the heirs and legal representatives of Muhammad Raffique who died about five years ago, the decree in favour of the plaintiff firm should be confined as to each defendant to the extent only of his share of the debt proportionate to his share of the estate. In support of this argument, he has relied on Section 33 of Sir Dinshaw Mulla's book on Mahomedan law and also on Section 36 of that book. In Section 33 the learned author merely sets out the extent of the liability of heirs for debts and he states there that each heir is liable for the debts of the deceased to the extent only of his share of the debts proportionate to his share of the estate. In Section 36 he discusses the question as to the remedies of a creditor when only some of the heirs of the deceased have been sued, or for a decree passed against him. In this case the suit is against all the heirs of the deceased, and Section 36 of Sir Dinshaw Mulla's book does not appear to me to be applicable. The question really is whether the decree-holder should be forced to execute his decree against each defendant separately, even though the parties are in joint possession. Had the estate been distributed the position might be otherwise, but the estate has not been distributed and the parties are in joint possession. In the circumstances, there should be a decree against the defendants which will enable the decree-holder to execute against the property as a whole without interfering with the extent of the liability of the heirs inter se. There will be a decree for Rs. 4736-10-6. The contesting defendants must pay the costs of the suit. Interest on decree 6 per cent.