KALI PADA DE Vs. SMHARI DASI DASI

JUDGEMENT

(1.) This appeal arises out of a claim for accounts, the only question being that of limitation. The learned Munsif dismissed the suit as being out of time, but on appeal the decision was modified by the learned Subordinate Judge who made a decree for part of the period in suit. Defendants have preferred this appeal. There is no cross-objection by plaintiff. Priyanath De and Rajendra Nath De were two brothers and had some ejmali properties. There were also separate properties of Rajendra. Priyanath died, leaving two sons as his heirs, and they are the defendants in this suit. Rajendra fell ill in 1917 and came down to Calcutta for treatment, and in December 1919 he died, leaving his widow, the plaintiff, as his sole heiress. During this period, it is said, Rajendra was unable to look after the properties himself, and left the management to his nephews. The nephews continued in management after Rajendra's death. Their case is that they regarded all the properties as ejmali. As a matter of fact, a few months after Rajendra's death Priyanath's sons instituted a suit (T. S. No. 70 of 1920) for partition of these properties. A preliminary decree was passed on 29 September 1921, but the suit was eventually dismissed for default on 12 November 1921, owing to the plain-tiffs failure to deposit the costs of the commissioner of partition. This order was confirmed on appeal by this Court on 16 December 1924 (in F. A. No. 52 of 1922), the question as to the right of any of the parties to bring a fresh suit for partition being left open. A fresh suit was afterwards actually instituted by one of the sons of Priyanath (T. S. No. 19 of 1925), and one of the issues raised in it was whether some of the properties, being the properties concerned in the present suit, were the self-acquired properties of Rajendra. The trial Court found they were so, and this finding was affirmed on appeal (in T. A. No. 9 of 1929). The appellate judgment was passed on 2 February, 1933 and this date is important as the defendants say that in consequence of this decision they gave up their possession of these properties to the plaintiff on and from this date. The position consequently is that the defendants were in possession of these properties, since admitted to be the separate properties of Rajendra, right from the date of his illness in 1917 down to the date of the final decree in the partition suit, 2nd February 1933, aforesaid. The claim for accounts is in respect of the whole of the period.

(2.) In what character was such possession held? On that will depend the question of limitation. The possession might be that of trustees, in which case the question would be, if Section 10, Limitation Act, would apply; or it might be that of agents, bringing the case under Art. 89, or, as a third alternative defendants might be regarded as trespassers, and Article 109 made to apply; plaintiff's case in the plaint was that the defendants were trustees appointed by her husband, and she asked for accounts on this basis; in the alternative, she made a case of wrongful possession and misappropriation of the usufruct. Defendants repudiated the character of trustees altogether, and asserted on the other hand that they were in possession throughout in the bona fide belief that the properties were ejmali. This of course implied that to the extent of eight annas defendants admitted the plain-tiff's title. The learned Munsif was of opinion that merely because Rajendra had asked the defendants to look after his properties, it did not follow that they were appointed trustees by him : Section 10 would not therefore apply. Nor could the defendants be regarded as trespassers, seeing that no mesne profits were claimed against them. If, then, they were agents of Rajendra, the agency terminated with his death, and as the suit was brought more than three years after that, it was clearly barred by limitation. In this view the Munsif dismissed the suit.

(3.) On appeal, the learned Subordinate Judge thought it "proper" to hold that the defendants came to possess the land from 1917 as agents of the plaintiff's husband. On the latter's death in 1919, a new agency was created between them and the plaintiff, but by reason of the partition suit which they instituted in 1920, claiming an eight annas interest adversely to her, they must be deemed to have dropped this character and become trespassers as regards the said eight annas from that point of time. As regards the remaining eight annas, the new agency was held to continue till 2 February, 1933, when, as already stated, the defendants admittedly gave up possession. On this basis-plaintiff would be entitled to accounts (1) from 1917 to 1919 (i.e. till the death of Rajendra) as his agents, and (2) from 1919 to 2nd February 1933, as agents of plaintiff in respect of eight annas, and also (3) ? to mesne profits for the same period from 1919 to 2 February, 1933 in respect of the remaining eight annas, so far, of course, as the claim for any of these periods, in. whole or in part, was not barred. As for (1), the learned Subordinate Judge held. that this was obviously barred under Art. 89, but the claim under (2) was within, time, the suit having been instituted within three years of the termination of the agency, while as regards (3) it was barred except for a period within three years preceding the suit, i.e. for the period 16 April 1931 to 2 February, 1933, the suit having been filed on 16 April 1934. He made a decree in favour of the plaintiff accordingly. As there is no cross-objection by plaintiff, no question arises in this appeal as regards the periods for which the claim has been disallowed by the learned Subordinate Judge.