Badrinath Upadhya vs Kesho Kumar

Rowland, J.—This is an appeal by the plaintiff in a suit for account. The defendants were firstly Kesho who is respondent before us and secondly Kesho''s father Chintaman. It was said that Chintaman was Tashildar in the estate of Srimati Bacha Bai from 1315 F. onwards to 1336. Thereafter Kesho was the Tahsildar until 1339. The suit was brought on 10th April 1935, for accounts for the whole period 1315 to 1339. During the pendency of the suit Chintaman died and his name Was struck off. The plaintiff continued the suit against Kesho in his own capacity and as representative of Chintainan. The defendant, denied that he was ever the tahsildar or was an agent of the plaintiff. He says that in the last years terminating in 1339 he was a sub-agent acting under his father that Chintaman''s employment continued till 1339. It was further alleged that accounts had been rendered.

It was not the duty of Chintaman to receive money on behalf of the plaintiff because the, plaintiff made his own collections and Chintaman merely prepared receipts; that all the books of account which were in the possession of the defendant or his father had been returned to the office of the plaintiff''s estate and that there is no longer any liability to account. The Munsif held that Chintaman worked as tahsildar till 1339 and that Kesho was never an agent of the plaintiff but was for a time a sub-agent under Chintaman.

He held that Chintaman in fact had acted as tahsildar and had been in charge of collections of money. He held that all the papers in the custody of Chintaman had been submitted to the estate and there was no remaining liability to submit accounts. He said that even if the plaintiff were entitled to demand accounts from Chintaman, he could not enforce this liability against his son, the defendant Kesho, after his death. In the result, he dismissed the suit. The judgment of the Subordinate Judge does not divide the points for decision into any sub-heads. He states as the sole point for consideration "whether the defendant is liable for the rendition of the account to the plaintiff." As a result, we have received less assistance from the judgment of the Subordinate Judge than might have been hoped.

The finding of the Munsif that Chintaman was the tahsildar and remained so till 1339 is however affirmed; as also that Kesho was merely a sub-agent under Chintaman. The question whether all books of account had been made over to the plaintiff''s estate is not touched in the judgment of the Subordinate Judge; but it must be assumed that on this matter the finding of the Munsif remains undisturbed.

In second appeal it is contended that the Subordinate Judge, is in error in holding that for any sum misappropriated by his father the defendant is not liable and is under no pious obligation to pay up. It is contended that at least a preliminary decree should have been passed for the taking of accounts.

Further, it is said that if Kesho being a sub-agent under his father committed any misappropriation, the legal position would be this that he himself would be answerable to his father, the agent of the estate, and his father would be liable to the estate, in respect of any moneys unaccounted for by the sub-agent. Therefore any moneys misappropriated by Kesho are a debt from the father to the estate, and as such, on the father''s death are recoverable from his son. In reply it is contended that the remedies of a principal against the heirs of his agent are not identical with his remedies against the agent, and for this reliance is placed on the decision in Rameshwar Singh v. Narendra Nath Das AIR (1923) Pat 259, where it was held that the representatives of a deceased agent are not liable to render an account in the sense in which the agent, had he lived, might have been called upon to do so. The liability to render accounts is a personal one attaching to the agent and cannot be enforced against his heirs.

But if the principal can prove that he has suffered loss owing to breach of duty of the agent, his heirs are liable to the extent of the assets of the deceased agent in their hands. The burden of proof however in such a case rests on the plaintiffs. It is clear that the plaintiff can only succeed in enforcing liability against the defendant in respect of his father''s failure to account to the extent that the plaintiff can prove that through this failure loss has been caused to the plaintiff''s estate.

It is next contended for the respondent that before the Court will call on the defendant to account in a case in which the books of account have been made over by the agent, the plaintiff has to show a prima facie case of the existence of some outstanding dues from the defendant to himself. For this reliance is placed on Bharat Chandra Chakrabarty Vs. Kiran Chandra Rai, . Here, following previous decisions it has been pointed out that the mere fact that books of account have been submitted is not by itself sufficient to absolve an agent from liability to explain the accounts if called on. But it is said the plaintiffs are not entitled to a preliminary decree merely because the defendant has not explained the papers.

It is said that on the finding that all the papers have been submitted, it was for the plaintiff next to call upon the defendant to explain the accounts; then, on refusal to do so, an account might have been ordered by the Court. But where all the papers have been submitted, it was held that it was the plaintiff''s duty to produce the accounts in Court with a statement of the matters objected to and of what balance the plaintiffs claim to be in their favour. This decision was followed in this Court in Shiva Prasad Seth and Others Vs. Hanuman Bux Seth, which again was a case where the principal being in possession of all the account books sued the agent for accounts. It was held that before a preliminary decree could be passed, it was for the plaintiff to disclose such particulars as would establish a prima facie liability of the agent. In the present case as in the one last mentioned, practically no particulars are given either in the plaint or in evidence from which an idea can be formed as to the nature and extent of the liability sought to be imposed on the defendant.

The inquiry proposed, that is to say the taking of accounts by a Commissioner, would appear to be something in the nature of a fishing inquiry. Following these two decisions, I am of opinion that the Subordinate Judge was right in refusing to give the plaintiff a preliminary decree. The result will be that the appeal is dismissed with costs.

Chatterji, J.

I agree.