BHOWANI PROSAD SHAHA Vs. JUGGERNATH SHAHA

JUDGEMENT

(1.) The events which led to the litigation out of which the present appeal arises are of a somewhat complex character, but, so far as it is necessary to state them for the disposal of the questions argued before this Court, they may be thus briefly outlined. The father of the plaintiff-appellant formed along with the first two defendants a joint Hindu family governed by the Mitahshara law. The family was engaged on mercantile business, out of the profits of which, movable and immovable properties were acquired by the care and labour of the members of the family. The father of the plaintiff died in January 1902 and, in June following, the parties separated in mess. It is alleged in the plaint that at the time of the separation, the uncles of the plaintiff gave him a share of all the immovable properties of the family, in respect of which they subsequently executed, on the 9 December 1902, a deed of release in his favour. At the same time, the plaintiff appears to have executed a deed of release in favour of the defendants in respect of the share of the properties which they received on the footing of the same partition. It further appears that on the 13 May previously, the parties had drawn up and executed momoranda in respect of the partition of the movables possessed by the family. The plaintiff, however, alleged in. the plaint that at the time when the partition was effected, no adjustment of accounts was made in respect of the profits of the ancestral trade and of the immovable properties which had come into the hands of the first defendant as the head of the family. He, accordingly, instituted this suit, and prayed for a decree for account; he further stated that, if upon evidence it was found that any portion of the joint- family properties had been ignored at the time of the partition, a decree might be made in Ins favour in respect of a third share thereof. The claim of the plaintiff was resisted on various grounds amongst which it is sufficient to mention that the defendants denied their liability to render any accounts. Their case in substance was that accounts had been taken at the time of the partition with a view to determine the assets available for division and that the settlement was conclusive between the parties. The Subordinate Judge who heard the case in the first instance raised a preliminary issue as to the right of the plaintiff to claim any account at all and on this he held that, although there had been an ascertainment of the assets at the time of the partition, yet there had not been such an adjustment of accounts as the first defendant as head of the family was bound to render to the other members. He consequently concluded that accounts had not been properly rendered and that the claim of the plaintiff was sustainable. At a subsequent stage of the hearing of the suit before the Subordinate Judge a Commissioner was appointed to take accounts. After an elaborate investigation, he submitted his report to which various objections were taken by both the parties. The Subordinate Judge discussed these objections and made a partial decree in favour of the plaintiff. Neither party was satisfied with this judgment and two appeals were preferred to the District Judge. On behalf of the defendant the objection was reiterated that the plaintiff was not entitled to claim any accounts at all, and exceptions were also taken to the various items allowed by the Court below on the assumption that the claim of the plaintiff was maintainable. The learned District Judge held that the suit of the plaintiff was not maintainable inasmuch as the division of the property agreed to by the parties was a final settlement and apportionment of all the joint- family properties. He examined, however, in detail, the specific objections of the defendants to various items of the account taken by the Commissioner and came to the conclusion that these objections were well-founded, so that the plaintiff was not entitled to any relief on the merits also.

(2.) The plaintiff has now appealed to this Court, and on his behalf the decision of the District Judge has been challenged by the learned Advocate-General, substantially on four grounds; namely first, that the partition was not of a character which precluded the claim of the plaintiff for accounts, and that in any event, it was open to the plaintiff to claim relief in respect of the joint property which had been excluded from the partition either by mistake or by fraud; secondly, that the plaintiff was entitled to relief in respect of two jotes which belonged to the joint-family at the time of the partition but had not been taken into account when the partition was effected; thirdly, that the plaintiff was entitled to relief in respect of the debt payable by Shama Sundari, the principal amount alone of which debt had been taken into account in the partition, while the large amount of interest which had accumulated at that time was excluded; and fourthly, that the plain-1 tiff was entitled to relief in respect of the debts duo to the Berhanipore shop at the time of the partition, which had become barred and irrecoverable by reason of the negligence of the first defendant as head of the family. We shall consider these points in the order in which we have just stated them.

(3.) As regards the first point urged by the learned Advocate-General, it will be observed that he divided it into two branches. So far as the first branch of the contention is concerned, we are of opinion that it is not sustainable either upon principle or upon the authorities. It is common ground in the case before us that there was a partition as alleged by the plaintiff, and upon the facts found by the Courts below it cannot be successfully disputed that at the time of the partition the assets were determined and divided. The plaintiff, however, now puts forward a claim, which found favour with the Subordinate Judge, that the defendant as head of the family is. bound to render an account of the dealings of the family during a period of six years immediately antecedent to the institution of the suit. In our opinion, no foundation has been laid for a claim of this description. It is now well-settled that when accounts have to be taken with a view to a partition of joint-family properties, the account which has to be taken of the entire family property in the hands of the different members is mainly an enquiry into the existing assets the head of the family cannot, in general, be called upon to defend the propriety of the past transactions of the familer. In support of the proposition that no co- parcener has, under circumstances like those of the present case, any right to claim an account of past transactions of the family, it is sufficient to refer to the cases of Jagmohandas MangaMas V/s. Sir Mangaldas Nathubhoy 10 B. 528 at pp. 561; 581 and Narayan V/s. Nathaji Durgaji Marwadi 28 B. 201. In the first of these cases, Mr. Justice Scott referred with approval to the statement of law made by Mr. Justice Melville in the case of Konerrav V/s. Gurrav 5 B. 589 namely, that the ordinary rule, no doubt, is that the members of an undivided Hindu family when making a partition are entitled, not to accounts of past transactions but to a division of the family property actually existing at the date of partition. We need not consider cases of fraud and misappropriation, or of gross, reckless, waste on the part of the manager, because no such element has been established in the case before us. The view we take is supported by the decision of a Full Bench of this Court in the case of Abhai Chandra Boy v. Pyari Mohau Guho 5 B.L.R. 347 at p. 349 : 13 W.R. 75 and also by the observation of the Supreme Court of Calcutta in Sreemutty Soorjeemoney Dossee V/s. Denobundo MulUck 6 M.I.A. 526 at p. 540 : 4 W.R. 114 (P.C.) : 1 Ind Jur. O.S. 37. The substance of the matter is that the manager of the joint family administers it for the purposes of the family, and so long as he does this, he is not under the same obligation to economise or to save as would be the case with a paid agent or trustee. That this distinction is well-founded is obvious from the decision of the Judicial Committee in Setrucherla Ramabhadra V/s. Setru-cherla Virabhadra Suryanarayana 26 I.A. 167 : 22 M. 470 : 3 C.W.N. 533. The contention of the appellant, therefore, that the plaintiff is entitled to claim an account in respect of the dealings of the family for six years antecendent to the institution of the suit cannot be supported.