CHAUDHURY MOHAMMAD BUX Vs. CHAUDHURY ZAHRUL HAQUE

JUDGEMENT

(1.) This is an appeal by defendant l from a preliminary decree in a suit for accounts. Defendant 1 had three brothers, Quadir Bux, Khoda Bux and Elahi Bux, all of whom are dead. Plaintiffs 1, 2 and 3 are son, daughter and widow respectively of Khoda Bux. Plaintiffs 4 to 9, who were originally impleaded as defendants 4 to 9 but subsequently transposed to the category of plaintiffs, are the heirs of Elahi Bux, plaintiffs 4 and 5 being his sons, plaintiff 6 his widow, and plaintiffs 7 to 9 his daughters. Defendants 2 and 8 are son and daughter, respectively, of Quadir Bux. Plaintiff 1 and Elahi Bux instituted a partition suit (No. 41 of 1938) in the Court of the Subordinate Judge at Gaya against defendant l and the remaining oosharers which ended in a compromise. As a result of the compromise, a tasfianama deed dated 9 June 1934 was executed by plaintiffs 1 to 3, Elahi Bux and defendants 1 to 3. In Schedule 3 of the deed were mentioned certain debts due to the family in which the share of each of the four brothers or his branch was specified to be 4 annas. By the terms of this deed defendant 1, as mutwalli for the time being of the Manshahi Wakf Rstate under a wakf deed of the same date referred to in the tasfianama deed, was authorised to realize these debts and distribute them, if realized in cash, among the oosharers according to their shares.

(2.) Plaintiffs 1 to 3 instituted the present suit on 4 January 1988 for accounts and for recovery of the money that might be found due, with interest at 12 per cent, per annum, alleging that in spite of demand defendant 1 did not furnish them with any account of the realizations made or make over to them their share of the amount realized, and that, so far as they could ascertain, defendant 1 realized the dues mentioned in Schedule 2 of the plaint. The plaintiff's 4 annas share out of these dues together with interest at 12 per cent, per annum was Rs. 12,056, and the suit was valued at this amount. Defendants 4 to 9 filed separate written statement, substantially supporting the plaintiff's case. Defendants 4 and 5 further stated that though they granted receipts to defendant 1 for small amounts paid to them, defendant 1 did not render any account to them. Subsequently, however, defendants 4 to 9 were transferred to the category of plaintiffs and were made plaintiffs 4 to 9. They paid court-fee on the tentative value put by them on their claim. Defendant 1 contested the suit on various grounds of which those that are material to this appeal are: (1) that plaintiffs 2, 4 and 5, in any case, are not entitled to ask for accounts for the period up to 22nd Asarh 1844, because they received their full share of the moneys realized during that period and granted receipts to defendant 1 giving full acquittance after inspecting the accounts; (2) that the plaintiffs are not entitled to any interest; (8) that they are not en. titled to any costs as defendant 1 was always ready to pay them their share of the moneys realized and in fact he deposited the same in the Imperial Bank at Purnea. In his original written statement defendant 1 gave an account of the receipts and expenses during the years 1842-48, 1848-44, 1344-45 and 1845-46 (Mulki). According to this account, rupees 22,149-8-9 was admittedly due to plaintiffs 1 to 8 for their 4 annas share. In the supplementary written statement filed by defendant 1 after defendants 4 to 9 became plaintiffs 4 to 9, he gave a further account stating that Rs. 10,698-7-6 was deposited in the Imperial Bank to the credit of plaintiffs 4 and 5 and Rs. 5260-6-9 was deposited to the credit of plaintiffs 6 to 9. On the application of plaintiffs 1 to 8, defendant l in obedience to the Court's order deposited in Court the sum of Rs. 22,149-8-9 which was admittedly due to those plaintiffs, and they withdrew the amount. This was before defendants 4 to 9 were transposed to the category of plaintiffs.

(3.) The learned Subordinate Judge who tried the suit overruled all the defences taken by defendant 1 and passed a preliminary decree with costs against him with the direction that the period of accounting should be from the date of the tasfianama deed, that is, 9 June 1934 up to the date of the preliminary decree. As regards interest, he allowed it at 6 per cent, per annum to be calculated from the date of each cash realization. Hence this appeal by defendant 1 who will be referred to hereafter as the defendant. The first point argued by Mr. S. N. Dutt for the appellant is that plaintiffs 2, 4 and 5 are not entitled to ask for accounts for the period up to 22nd Asarh 1344 inasmuch as they received their share of the amount realized up to that date and gave full discharge after examining the accounts. The defendant relies on the receipts Exs. B, B (1) and B (2). [After considering the evidence his Lordship proceeded.] The receipts EXS. B and B (2) themselves contain a gist of the account, and it is difficult to hold that plaintiffs 4 and 5 kindly signed the receipts without satisfying themselves that the statement of account was correct. They with their eyes open gave full acquittance and they cannot again ask for accounts for the period covered by the receipts.