T T P KUNHIKUTTIALI Vs. TPKUNHAMMAD

JUDGEMENT

(1.) In this case the plaintiff WHS the manager of a mosque. He held his position under a karar, dated the 21 of October 1910, which was a yearly appointment authorising him to collect the various dues due to the mosque, to pay the outgoings of the mosque and to take his remuneration according to stipulations in a previous karar which stipulations were also incorporated in this document. Turning to the previous karar, Exhibit XXXII in the case, dated the there November 1903, one finds there a more detailed account of the payments to be made by the manager of his duties and liabilities and a detailed account of what is to be given as remuneration for the work he did which included a right to take 720 seers of paddy and Rs. 12 per annum. One of the terms was that he was to maintain a correct account of receipts and disbursements and that they were to be rendered and the balance struck on a certain date each year after the end of the year's management. It was arranged between the parties that when the mosque was short of funds the manager advanced monies of his own, and that yearly a balance was taken on one side which showed the expenditure by him, the advances by him and the salary due to him, and on the other side all that he had received on account of the mosque. His employment came to an end in February 1912 and before the expiration of three years he brought a suit for an account and payment to him of the amount he claimed as due, mainly made up of advances made by him to or for the benefit of the mosque. It has been found that the balance due to him was Rs. 923. He is met with the defence that this amount is not recoverable, because it is barred under the Limitation Act, 1908, Art. 61. That Art. applies to money paid for and on account of another which becomes barred after three years from the date when the money is paid. The plaintiff replies to that, that Art. 61 has no application but Art. 85, which is "for the balance due on a mutual, open and current account, where there have been reciprocal demands between the parties," the period for bringing a suit in respect of which is three years from the close of the year in which the last item admitted or proved is entered in the account. It is argued for the trustees that this Article has no application, because there is not in this case a mutual, open and current account, and we are referred to English cases and particularly to Padwick V/s. Hurst (1854) 18 Beav. 575 : 23 L.J. Ch. 657 : 18 Jur. 763 : 52 E.R. 225 : 104 R.R. 536, in which it was held that for an account properly to be called a mutual account there must be mutual dealings in the sense that both parties come under liability to each other. That principle has been applied in many cases in India in reference to the interpretation to be put upon Art. 85. But in applying the principle one has to look at it rather carefully and it was most carefully examined by Mookerjee, J. in his judgment in Ram Pershad V/s. Harbans Singh 6 C.L.J. 158. In that case dealing with the earlier leading authority of Hirada Basappa V/s. Gadigi Muddappa 6 M.H.C.R. 142, a judgment of Holloway, J., he points out and. approves of the statement by the learned Judge that "in order that accounts might be mutual, there must be transactions on each side, creating independent obligations on the other, and not merely transactions which create obligations on the one side, those on the other being merely complete or partial discharges of such obligations." He then enters on a discussion of the various cases on those lines and points out that "where you have a case of a shifting balance, sometimes in favour of one side, sometimes in favour of the other, it is a test of mutuality, but its absence is not conclusive proof against mutuality." The meaning of that, as I understand it, is that, if you may get a balance in favour of either party, it follows that there must be mutual liabilities of both parties to each other; if the balance is always in favour of one party in the very nature of the transactions, there you have got a case where you have not separate mutual dealings. Later in his judgment, having quoted that and applied the English cases referred to above, he says thus: "In order to prove a mutual and open account current, it is sufficient to prove mutual dealings between the parties consisting of sales made, or services performed, by each party, to, or for the other, creating mutual debts or reciprocal demands." I think that is a fair statement of the principle to be applied and one has to look at each particular case and see if it is really a case of debtor and creditor only or a case of mutual obligations which will in the ordinary way result in enforceable liabilities on either side. Rooking at the facts of this case, it seems to me that it is clearly a case where you have a mutual, open and current account with reciprocal demands. That the account was open and current there can be no doubt whether it is mutual or not, and whether the demands are reciprocal or not. In this case it is enough to say that there is an obligation, on the one hand, to pay salary and an obligation on the other hand, to account for and pay over to the principal the amounts that may yearly be found due on balance to the principal. I think also it would be enough if the course of dealing is, as in this case, the lending of money by the agent to the principal, which is not an ordinary part of an agent's duty, such loans by the agent to the principal being brought into the account, you would have, apart from the question of salary, reciprocal dealings between the parties in the sense required to fulfil the conditions stated by Mukerjee, J. A clear instance of the application of an Art. of the limitation Act of 1877, similar in terms to Art. 85 of this Act, is to be found in Lakshmayya V/s. Jagannatham 10 M. 199 : 3 Ind. Dec. (N.S.) 891.

(2.) It follows that, in my judgment, the judgment of the Subordinate Judge is right. I should think it right to add that I consider it a great pity that such a point should have been taken by the trustees of a mosque, assuming the facts to be as they have been stated to us, namely, that this agent assisted the mosque from his own pocket and to a great extent without being under any obligation to do so. This appeal must be dismissed with costs of the plaintiff. Wallace, J.

(3.) I agree and have nothing to add.