SUDISHT LAL Vs. MUSSUMMAT SHEOBARAT KOER

JUDGEMENT

(1.) THIS is an action brought by Sudisht Lal, a mahajun carrying on his business at Mozufferpore, against Mussummat Sheobarat Koer, to recover a sum of Rs. 23,470 and interest upon the footing of a stated and settled account. The plaint is based entirely upon an account which, it alleges, had been settled, not by the Defendant herself, but by her husband, Ajudhya Pershad, who, it is said, had authority from her to state and settle accounts. In the outset it may be noticed that no evidence was given of the items of the account so as to establish an indebtedness independently of the account stated. This omission seems to have been intentional, for the Plaintiff himself, and two of his gomashtas, who might have given evidence if a debt really existed, were called.

(2.) THE circumstances which preceded the action may be shortly stated. Ram Dyal Misser, who is now dead, carried on a banking business in the same place as the Plaintiff, at Mozufferpore. He died in the year 1857, leaving a widow and two daughters, of whom the Defendant is one. His widow died in the year 1860. The elder sister, whose name is Sheoraj Koer, had married Durga Persad Tirbaidi. The Defendant had married the person already named, Ajudhya. The banking business of Misser was carried on by the widow during her lifetime, and there is some evidence that it was also carried on after her death by the two daughters, the Defendant being at her mother's death a minor, and the husband of the elder sister, Sheoraj, carrying on the business on her behalf and on that of her infant sister. The Defendant, Mussummat Sheo harat, became of age in February, 1869, and shortly after her coming of age it appears that the banking account was separated ; whatever may have been due at that time from the two sisters to the Plaintiff's firm was divided, and one half carried to the debit of each of the sisters. Although there is some evidence that the sisters carried on banking business, there is really no satisfactory evidence that such a business was carried on by the Defendant alter the separation, and certainly none that it was carried on with her knowledge and authority. However, it is alleged on the part of the Plaintiff that such a business was carried on, and was managed by Ajudhya, her husband, and the account which is sued on is said to have been signed by him as the adjustment of a banking account. The account so signed is set out at length in the record, and begins with this item : " Credit. Former balance, principal and interest, as per former chitta, for the year 1280, Rs. 21,933. 14a. Op." There are other items and interest, and some items on the other side of the account, resulting in a balance of Rs. 23,405. 13a., the amount for which the action is brought, plus a sum of Rs. 50, as to which no evidence whatever exists. The Plaintiff's claim to recover this sum rests entirely upon the admission which was made by Ajudhya, the husband, in settling this account. Not only is there no proof of indebtedness independently of the account, but there is not sufficient evidence to satisfy their Lordships that a banking business was carried on by the Defendant; whilst there is some evidence that Ajudhya was carrying on business with the Plaintiff's firm on his own account, and that he had purchased with the Plaintiff a saltpetre property which they were working together.

(3.) THEIR Lordships must not be supposed to lay down that, when an agent is appointed to manage a banking business, and is invested with the powers of a manager of that business, a statement of account made by him in the regular and ordinary way of business would not be evidence against his principal; that question does not arise on this record. It is enough for them to say that in this case, there is no sufficient proof that the business was carried on with the Defendant's knowledge and by her authority and therefore no implication founded on the course of business can arise. The evidence of express authority also fails.