DEORAO ZOLBA KUNBI AND ANOTHER Vs. LAXMANSINGH BANIA

JUDGEMENT

(1.) THE only question in this appeal is about limitation. The suit is for an account by the plaintiff against the sons of a deceased agent. It was argued before me, and there is an observation to that effect in the lower appellate Court, that this was not a suit for accounts as between a plaintiff and an agent but that the defendant was being sued in some other capacity. This contention however cannot be accepted because of the plaintiff's pleadings. She states quite clearly in her plaint that the village shares and the fields in suit were managed by the defendants' father who acted as her "wahiwatdar." It is alleged that he used to recover the village profits on her behalf and used to let out and recover the rents of the fields. The prayer asks that the defendants be called upon to render accounts. This is clearly an assertion of facts constituting agency. But if there was any doubt about the matter it was cleared up in the plaintiff's written statement filed on 7th February 1936. She stated there that the defendants' father managed the property as the plaintiff's "wahiwatdar or agent" and that the defendants were consequently liable to render accounts. The suit actually covers two periods, one period from the year 1927-1931 when the defendants' father was in management, and the other for subsequent years when the defendants' mother was in management. We are only concerned' in this appeal with the first period covered by the father's management. The father died in 1931 and the suit was not filed till 16th September 1935. It is argued on behalf of the defendants-appellants that Article 89, Limitation Act, applies and that consequently the suit is beyond time. This contention receives support from Lalsingh v. Jiwanram where Macnair A.J.C. held that in a suit of this kind either Article 62 or Article 89 applies and that in either event the suit before him would be barred, as it would be here, if either of those two articles applied. That ruling binds me unless I see reason to dissent from it and refer it to a Bench. As at present advised I do not.

(2.) THE decision in which a contrary view is taken, and on which the lower appellate Court relies, is Rao Girraj Singh v. Rani Raghubir 31 All. 429 That was a suit against the sons and grandsons of the deceased agent, and the ground on which Article 89 was held not to apply was that the defendants in the suit were not the agents of the plaintiffs. That however overlooks the definition of "defendant" given in Section 2(4), Limitation Act, which is in these words: "'Defendant' includes any person from or through whom a defendant derives his liability to be sued." Applying that definition here, it is clear that Article 89 would apply assuming that this is a case of agency. Taking the matter in steps it seems to be beyond doubt that if the principal sues his agent during the agent's lifetime after the termination of the agency, or when the accounts are demanded and refused, and the defendant-agent dies during the pendency of that litigation, then the suit could be continued against the legal representative. The next step is where the agent dies after the termination of the agency or where there is a demand and refusal in the agent's lifetime. In that event the cause of action would accrue during the agent's lifetime and limitation once having commenced to flow would not cease to flow by reason of the agent's death. In that event, as I see it, the agent's sons could be sued after his death because the cause of action could not alter by reason of the agent having died.

(3.) THE only other case cited was Sitaramaswami v. Mahalakshmamma A.I.R. 1936 Mad. 170 and it was held there that Article 89 did' not apply because on the facts before them the learned Judges considered that there had been no proper contract of agency. If the relation of principal and agent does not obtain, clearly Article 89 cannot apply. Here, however, there is no doubt on the allegations made in the plaintiff's pleadings that that relationship did obtain between the plaintiff and the deceased father of the defendants. On an examination of the authorities I see no reason to differ from Lalsingh v. Jiwanram The appeal is allowed. The decrees of the lower Courts are set aside and a decree will now be passed dismissing the plaintiff's suit with costs in all three Courts.