MADHUSUDAN SEN Vs. RAKHAL CHANDRA DAS BASAK

JUDGEMENT

(1.) This is an appeal by the first defendant in a suit for accounts. The facts material for the decision of the questions of law raised before us may be briefly stated. On the 5th September 1895 the defendant was appointed agent of the plaintiffs and their co-sharers for management of their estate. The defendant and his father at the time hypothecated immoveable property as security for the due performance of the duty of the first defendant as agent. This bond was executed in favour of persons who were proprietors of a half share of the entire property. One of these, Radhika Mohan Das, was interested to the extent of one-eighth share; another, Rakhal Chandra Das, for himself and as guardian of his infant brother, Brojo Gopal Das, was interested to the extent of another one-eighth share. Two other persons, Gobind Lal Das and Keshab Lal Das, were each interested to the extent of one-eighth share. The proprietors of the remaining one-half share were not parties to the transaction, but it has been alleged--and that statement has not been challenged--that the defendant was also their agent for the purpose of collection of rent. This agreement continued in force till the 19th August 1904, when its terms were varied in the manner following, viz., the defendant undertook to collect the rent of one- fourth share separately and to submit separate collection papers in respect of that share year after year. In the interval, Radhika Mohan Das had died in the year 1900 and his interest in the property had vested in Rakhal Chandra Das and Brojo Gopal Das; but there was no new contract in writing between these persons and the defendant, although the latter continued to act as their agent as previously. The defendant was discharged from his office on the 7th August 1908. This suit for account was commenced against him on the 7th August 1911 by the plaintiffs who are representatives of the one-fourth share-holder other than Gobind Lal Das and Keshab Lal Das. These latter have not joined as co-plaintiffs and have consequently been joined as pro forma defendants. The plaintiffs claim accounts for the period from the 14th April 1901 to the 7th August 1908. The claim is resisted by the defendant on the merits as also on the ground of limitation; he urges that he has rendered accounts and is under no further obligation to the plaintiffs, and further contends that, if this plea is not established, the claim is barred by limitation. The Court of first instance decided in favour of the defendant and dismissed the suit. Upon appeal the Subordinate Judge has set aside that decision and has made a preliminary decree for accounts from the 14th April 1901 up to the 7th August 1908. On the present appeal, it has been urged on behalf of the, defendant that the entire claim is barred by limitation. In our opinion, this contention cannot possibly prevail.

(2.) The defendant and his father hypothecated immoveable property as security for the due discharge of the duty of the defendant as agent of the plaintiffs and their co-sharers. The plaintiffs seek to realise from the defendant whatever sum may be found due to them on adjustment of accounts, by sale of the immoveable properties hypothecated. The suit is consequently one to enforce a charge on immoveable property within the meaning of Article 132 of the Indian Limitation Act. This view is supported by the decisions in Hafezuddin Mandal v. Jadu Nath Saha 35 C. 298 : 12 C.W.N. 820 : 7 C.L.J. 279; Troilukhyanath Mandal v. Abanish Chandra Roy 24 Ind. Cas. 18 : 21 C.L.J. 459; Sures Kanta Banerjee v. Nawab Ali Sikdar 29 Ind. Cas. 848 : 21 C.L.J. 462 and Venkatachalam Chetty v. Narayanan Chetty 26 Ind. Cas. 740 : 28 M.L.J. 140. It has been pressed upon us, however, on behalf of the appellant that a contrary view is supported by the case of Jogesh Chandra v. Benode Lal Roy 5 Ind. Cas. 59 : 14 C.W.N. 122. But as was pointed in Troiluhhyanath Mandal v. Abanish Chandra Roy 24 Ind. Cas. 18 : 21 C.L.J. 459 the case of Hafezuddin Mandal v. Jadu Nath Saha 35 C. 298 : 12 C.W.N. 820 : 7 C.L.J. 279 was not brought to the notice of the Division Bench that decided the case of Jogesh Chandra v. Benode Lal Roy 5 Ind. Cas. 59 : 14 C.W.N. 122. For this reason that decision was not followed either in Troiluhhyanath Mandal v. Abanish Chandra Roy 24 Ind. Cas. 18 : 21 C.L.J. 459 or in Sures Kanta Banerjee v. Nawab Ali Sikdar 29 Ind. Cas. 848 : 21 C.L.J. 462. In these circumstances, we adopt the view taken in Hafezuddin Mandal v. Jadu Nath Saha 35 C. 298 : 12 C.W.N. 820 : 7 C.L.J. 279 and hold that the claim of the plaintiffs in so far as they are in a position to enforce a lien on immoveable property is not barred by limitation. This brings us to the question, whether the plaintiffs are entitled to enforce a lien on immoveable property in respect of their entire claim.

(3.) On behalf of the appellant, it has been contended that when Radhika Mohon Das died in 1900, the agency of the defendant under him terminated. In support of this view, reliance has been placed upon Section 201 of the Indian Contract Act, which provides that an agency is terminated by the death of either the principal or the agent. On behalf of the plaintiffs- respondents, it has been argued that a contrary view may be supported by a reference to the terms of Section 209 which defines the duty of the agent on termination of the agency by the death of the principal. In our opinion, there is no foundation for this contention. Section 209 is in these terms: "When an agency is terminated by the principal dying or becoming of unsound mind, the agent is bound to take, on behalf of the representatives of his late principal, all reasonable steps for the protection and preservation of the interests entrusted to him." This provision does not indicate that the agent continues to be the agent as he was before the death of the principal. If he continues to be the agent, no such provision as is embodied in Section 209 is needed. On the other hand, if we contrast the provisions of Section 253 which defines the effect of the death of any partner on a partnership, it becomes plain that under Section 209 an agency is terminated by the death of the principal or the agent. Clause (10) of Section 253 lays down that, in-the absence of any contract to the contrary, partnerships, whether entered into for a fixed term or not, are dissolved by the death of any partner. In Section 209 we miss the expression "in the absence of any contract to the contrary" which finds a place in Section 253. We hold accordingly that the agency of the defendant was terminated in 1900 with regards to the shar of Radhika Mohan Das, and that thereafter a new agency was created by implication in respect of that share as between the defendant and the representatives of the deceased: Mohendra Nath Ghosh v. Jadu Nath Mullik 3 Ind. Cas. 684 : 9 C.L.J. 107. In respect of the account of this share consequently the plaintiffs are not entitled to enforce a lien on immoveable property under the terms of the original contract of the 5th September 1895, Behari Lal Roy v. Hara Kumar Dutta 29 Ind. Cas. 748 : 21 C.L.J. 458 and Sures Kant a Banerjee v. Nawab Ali Sikdar 29 Ind. Cas. 848 : 21 C.L.J. 462. The question next arises, what period of limitation is applicable with regard to this portion of the claim of the plaintiffs. On behalf of the appellant, it has been contended that Article 115 applies and that as, on the 19th August 1904, the parties agreed that accounts would be submitted from year to year, there was a breach of obligation of the defendant at the end of each year, so that under Article 115, this portion of the claim is barred by limitation. In support of this view, reference has been made to the decisions of Mati Lal Bose v. Amin Chand Chattopadhay 1 C.L.J. 211; Easin Sarkar v. Barada Kishore Acharyya Chowdhury 5 Ind. Cas. 186 : 11 C.L.J. 43; Jogesh Chandra v. Benode Lal Roy 5 Ind. Cas. 59 : 14 C.W.N. 122. and Jhapajhanessa Bibi v. Bama Sunduri Chaudhrani 16 Ind. Cas. 414 : 16 C.W.N. 1042 : 16 C.L.J. 286. The first three of the cases mentioned, no doubt, lend some support to the contention of the appellant. But it must be observed that, as pointed out in Jhapajhanessa Bibi v. Bama Sundari Chaudhrani 16 Ind. Cas. 414 : 16 C.W.N. 1042 : 16 C.L.J. 286 there is a strong current of authority in the contrary direction. The cases of Jogendra Nath v. Deb Nath Chatterjee 8 C.W.N. 113. Shib Chandra Roy v. Chandra Narain v. Mukerjee 32 C. 719 : 1 C.L.J. 232; Hafezuddin Mandal v. Jadu Nath Saha 35 C. 298 : 12 C.W.N. 820 : 7 C.L.J. 279 and Chandra Madhab Barua v. Nabin Chandra Barua 18 Ind. Cas. 735 : 4 C. 108 : 16 C.L.J. 103 show that Article 89 is applicable to cases of this description. It is worthy of note that in the cases of Easin Sarkar v. Barada Kishore Acharyya Chowdhury 5 Ind. Cas. 414 : and Jogesh Chandra v. Benode Lal Roy 5 Ind. Cas. 59 : 14 C.W.N. 122 the attention of the Court was not invited to the decision of Shib Chandra Roy v. Chandra Narain Mukerjee 32 C. 719 : 1 C.L.J. 232 where it had been pointed out, on a review of the earlier authorities including the decision of the Judicial Committee in Asghar Ali v. Khurshed Ali 24 A. 27 3 Bom. L.R. 576 : 28 I.A. 227 that Article 89 is applicable to a suit for accounts by a principal against his agent. We may observe paranthetically that the appellant has argued that the case before the Judicial Committee was not in reality a suit by a principal against his agent. We are unable to give effect to this contention. The suit was brought by the then plaintiff for money in the hands of the defendant, who had consequently to account for the sum which he had taken and spent; and the Judicial Committee held that the suit was one for accounts, governed by Article 89 of the Indian Limitation Act. We hold accordingly that Article 89 is applicable in respect of this portion of the claim of the plaintiffs. We do not think it necessary to refer the question for the decision of a Full Bench of this Court, first, because the point is really concluded by the decision of the Judicial Committee in Asghar Ali v. Khurshed Ali 24 A. 27 3 Bom. L.R. 576 : 28 I.A. 227 and, secondly, because the later decisions to the contrary did not take notice of the earlier decisions which are precisely in point. It is further worthy of note that Mr. Justice Coxe who reluctantly followed the decision of Jogesh Chandra v. Benode Lal Roy 5 Ind. Cas. 59 : 14 C.W.N. 122 in Jhapajhanessa; Bibi v. Bama Sundari Chaudhrani 16 Ind. Cas. 414 : 16 C.W.N 1042 : 16 C.L.J. 286 was of opinion that the contrary view taken in Shib Chandra Roy v. Chandra Narain Mukerjee 32 C. 719 : 1 C.L.J. 232 gave effect to the true intention of the Legislature. We now proceed to examine the effect of the application of Article 89 to the case before us. That Article provides that a suit by a principal against his agent for moveable property received by the latter and not accounted for may be instituted within three years from the date when the account is during the continuance of the agency, demanded and refused, or where no such demand is made, when the agency terminates. On behalf of the respondent it has been strenuously urged that the case is governed by the second alternative, namely, that time runs against the plaintiff from the date when the agency terminates. The reason for this contention is obvious, because if it prevails, the plaintiffs would be entitled to accounts for the entire period claimed; for, as was pointed in Sures Kanta Banerjee v. Nawab Ali Sikdar 29 Ind. Cas. 848 : 21 C.L.J. 462 and the same view had been taken by the Judicial Committee by implication in Jawahir Singh v. Lachman Das 24 A. 27 3 Bom. L.R. 576 : 28 I.A. 227 and by the Bombay High Court in Nathubhai Bhikandas v. Devidas Mangaldas 8 Ind. Cas. 637 : 12 Bom. L.R. 951 if the suit has been brought within three years, the plaintiff is entitled to accounts for the entire period of the agency. The appellant has fully appreciated the danger of this argument, and accordingly contended strenuously that the case falls within the first alternative, namely, that here the account was demanded and refused during the continuance of the agency. To substantiate this contention, reliance has been placed upon a letter written admittedly by the plaintiffs to the defendant on the 24th April 1909. In this letter, it was stated that the defendant had submitted account papers for 1311 and 1312 Faslis but had not explained them. He was accordingly called upon to appear before the plaintiffs and explain, as soon as possible, the accounts up to the end of the year 1312 Fasli. The defendant admittedly has not responded to this call. The question is, whether there has been a demand and refusal within the meaning of Article 89. Our attention has, in this connection, been invited to the cases of Hori Narain Ghose v. Administrator-General of Bengal 3 C.L.R. 446; Basin Sarkar v. Barada Kishore Acharyya Chowdhury 5 Ind. Cas. 186 : 11 C.L.J. 43 and Chandra Madhab Barua v. Nabin Chandra Barua 18 Ind. Cas. 735 : 40 C. 108 : 17 C.L.J. 103. The cases of Hori Narain Ghose v. Administrator-General of Bengal 3 C.L.R. 446 and Easin Sarkar v. Barada Kishore Acharyya Chowdhury 5 Ind. Cas. 186 : 11 C.L.J. 43 show that if there has been a demand for accounts and the agent has not responded to the call there is, by implication, a refusal within the meaning of Article 89. A different view appears to have been taken in Chandra Madhab Barua v. Nabin Chandra Barua 18 Ind. Cas. 735 : 40 C. 108 : 17 C.L.J. 103. In that case, there were apparently repeated demands by the principal, with which the agent had failed to comply. The Court held that as the demands were made while the business was in existence, limitation would run from the termination of the business. The facts of the case do not appear, however, fully either from the judgment or from the report; but, if this was intended as a formulation of a general principle applicable to all cases, Ave are unable to accept it as well-founded on principle. In our opinion, if there has been a demand, failure to respond to the demand is refusal within the meaning of Article 89. There may, however, be cases where omission to render accounts may not be a refusal within the meaning of Article 89. To take one illustration, if the principal demands an account and the agent submits papers, there is not necessarily a refusal on the part of the agent to render accounts. But, in the case before us, after the papers had been submitted, there was a further demand upon the agent to explain them. To this he failed to respond. In these circumstances, there was a refusal within the meaning of Article 89. Consequently, the claim for accounts up to 1312 Fasli in respect of the share of Badhika Mohan Das, is barred by limitation. In respect of the accounts for the remaining period, there is nothing to show that there was a demand and refusal; consequently the claim for accounts from 1313 Fasli is governed by the second alternative in the third column of Article 89 and is not barred by limitation.