Bhagirathprasad vs Badriprasad

Bhutt, J.—This defendant''s appeal from the decree for money and rendition of accounts.

Defendants-appellants are sons of Jagmohan Singh who died on 9-7-1941. Plaintiff-respondent is his younger brother. The two brothers inherited the property of their father, Janki Prasad, who died on 15th September 1929. They continued joint till 18th May 1931 when they referred the question of partition of the joint family property for decision by Panchas. The arbitrators gave an award on 13-9-1931 with respect to the division of house property. In this, parties, houses worth Rs. 67,500 were given to Jagmohan Singh and worth Rs. 65,500 to Badri Prasad. In order to equalise the shares, the arbitrators provided as below:--

In this way, the value of share No. 1 is in excess, by Rs. 2000 (two thousand rupees), the half share of which, that is Rs. 1000 (one thousand rupees), shall be paid to Badri Prasad by Thakur Jagmohan Singh from his own pocket, or Rs. 2,000 (two thousand rupees), from joint properly after the partition is made.

As regards the house called Bhargavawala, the arbitrators made the following provision:--

In the account mentioned above is not included the Bhargavawala house in Lord Ganj, which Thakur Jagmohan Singh baa purchased. Thakur Jagmohan Singh shall pay Thakur Badri Prasad half of the amount for which it has been purchased and of the entire expenses incurred on repairs and shall keep the house in his share.

These terms were accepted by the brothers in writing: See Ex. P-24.

After the award, the brothers referred the dispute of partition of the remaining property to Panchas on 26th February 1932 vide Ex. P-27. The arbitrators effected a partition on 10th September 1932 in respect of the villages, lands and some movables. This partition was also accepted by the brothers. The brothers then made a third reference to arbitration on 21-12-1933 for division of the remaining properly: See Ex. P-12. The arbitrators, however, could not make an award and in the meantime the defendants served them with a notice in August 1937 not to proceed with the arbitration. Thus certain old debts consisting of hundis and cheques remained undivided.

The plaintiff instituted the suit on 17th July 1943 inter alia for recovery of the two items of money due to him under the first award dated 13th September 1931 and for rendition of the accounts of the old debts, which had remained undivided. The lower appeal Court upheld the claim for Rs. 1,000 which was a warded by the Panchas for equalisation of the shares of the house property. AS regards the Bhargavwala house, it granted a decree for Rs. 2,250 on account of the plaintiff''s share of the purchase price. The learned Judge estimated the costs of repairs at Rs. 742 but left the question of its adjustment in the accounts to be finally made between the parties. As regards the undivided debts, he passed the following order:--

In view of the above findings, it is hereby ordered that the respondent is entitled to one-half share in the property still left undivided. A Commissioner will be appointed to take accounts from the appellants in respect of such property drescribed in para. 11 of the plaint and Schedule ''A'' attached to it except the M.F.C. Deposits.

It was contended before me that the claim for the two items of money decreed by the lower appellate Court was barred by limitation and that the decree for rendition of accounts could not be passed against the defendants as they were only legal representatives of the accounting patty.

It was not disputed before me that the suit would be governed by Article 120, Schedule 1 of the Indian Limitation Act, so far as the recovery of the two items of money is concerned. The period of limitation would, therefore, be six years from the date when the right to sue accrued. As for the first amount of Rs. 1,000 it was expressly agreed that it would be payable only after the partition was effected. The lower appellate Court was right in holding that what was contemplated was a complete partition of the entire property, The right to sue, therefore, accrued when the defendants had asked the arbitrator not to proceed with, the division of the property. This was some time in August 1937. The suit in respect of this item was, therefore, instituted before the expiry of six years and was accordingly within limitation.

As regards the amount payable on account of Bhargavawala house, there is no doubt that no specific time was mentioned for payment. This does not, however, mean that it became payable immediately. At the time of the decision of the ponchos, the bulk of the property was still undivided and was under the management of the defendant''s father. They could not, therefore, have provided for immediate payment of the amount. Their decision therefore, must be construed only as determining the liability of Jagmohan Singh for the amount. In these circumstances the amount could not be claimed by the plaintiff during the time the proceedings for partition were pending. Therefore, the right to sue accrued when the defendants terminated the authority of the arbitrators to proceed with the partition. Suit for this amount also was, therefore, within limitation.

No question of limitation was raised as regards the claim for rendition of accounts. All that was contended was that the accounting party was Jagmohan Singh and not his legal representatives. Reliance is placed, in this connection, on AIR 1929 362 (Lahore) This case, however, does not hold that the legal representatives are not at all liable to account. All that it decides is that their liability would only extend to the assets of the deceased in their bands for the amounts which be had realized and misappropriated, the burden of proving which shall be on the plaintiff-Whether or hot the legal representatives can be made accountable to the same extent and in the same manner as the deceased, the suit against them would still be one for accounts. This position emerges from Deorao vs. Laxmansingh, I.R.L. 1943 Nag, 470, in which it was held that such a suit would be governed by Article 89 of the Indian Limitation Act. The question whether on certain facts the suit would be governed by Article 120, as held in Yerukola vs. Yerukola A.I.P. 1922 Mad. 150, is immaterial in this case for that would only give an enlarged period of limitation to the defendants. All that may be urged is that the accounts should not be made in the manner and to the extent available against an agent personally, but this matter should properly be urged before the lower Court during the proceedings for final partition.

The appeal, therefore, falls and is dismissed with costs.