Daulat Ram and others vs Balak Ram and others

Kapur, J.—The sole point for determination in this appeal is the right of a principal to continue a suit for accounts against the legal representatives of a deceased agent.

The pedigree table of the parties is as follows :

The plaintiffs who were the grandsons of Bhagat Ram brought a suit for possession by partition of their 3/16th share in the immovable property mentioned in the plaint alleging that they were members of the joint Hindu family of which the karta was Mulkh Raj who also held a power of attorney from the other members of the coparcenary. They also alleged that defendants had been colluding among themselves and were misappropriating the joint Hindu family property where by the plaintiffs had been deprived of their share. In their prayer they asked for accounts as also the separation of their shares which they put at 3/16 of the whole. Mulkh Raj who was alleged to be the karta of the joint Hindu family and a general attorney died on 12th October 1940. Some time later his sons were brought on the record as his legal representatives, and on 21st October 1940, an amended plaint was filed by the plaintiffs in which they infer alia alleged that defendants 1 and 2 and the father of defendants 3 to 5 i. e. Mulkh Raj had colluded among themselves and had misappropriated the property of the joint Hindu family and had thus deprived the plaintiffs of their share. In the prayer clause the plaintiffs asked for rendition of accounts relating to income from the property noted in the heading and debts.

Various pleas were raised by the defendants which are not necessary to be stated at this stage. The legal representatives of Mulkh Raj, defendants 3 to 6, pleaded that a suit for accounts could not proceed against them, as such a suit lay against Mulkh Raj personally, and they as his legal representatives were not liable to render any accounts after his death. They said:

The plaintiffs are not even competent to ask us to render accounts.

Several issues were framed by the learned trial Judge and the issue that we are now concerned with is issue 4, which is to the following effect:

Whether defendants 3 to 5 are liable to render accounts as legal representatives of Mulkh Raj deceased ? O. P. Plaintiffs.

The suit was dismissed.

The finding of the learned Judge on issue 4 was that the legal representatives of Mulkh Raj were not liable to render any accounts and reliance was placed on Badrinath Upadhya Vs. Kesho Kumar, ).

Against this decree the plaintiffs have come up in appeal to this Court.

The case as it has been argued before us was confined to the liability of defendants 3 to 6 to render account as the legal representatives of Mulkh Raj not as a karta but in his position as an attorney under a registered power of attorney dated 26th June 1928.

Various submissions were made by the learned advocate appearing for the plaintiff-appellants; but ultimately they boiled down to this that the suit originally brought as against the defendant, Mulkh Raj, was one for accounts and on his death all that the plaintiffs were doing was that they were continuing the suit for accounts making defendants 3 to 5 representatives of the deceased Mulkh Raj. He submitted that whatever be the position in a suit which is brought in the first instance against the legal representatives of'' an agent where a suit is brought against an agent himself and he dies during the course of the trial, the plaintiff is entitled to continue his suit against the legal representatives of the deceased even though the allocation of onus may be different. He relied on Sasi Sekhareswar Roy v. Hajirannessa Bibi, 47 I. C. 371 : (A. I. R. 1918 Cal. 276). He also relied on a case decided by the Lahore High Court in AIR 1929 362 (Lahore) where a suit had been brought against a chela of a deceased guru who was the agent of the plaintiff and as such realised the rents and profits of the plaintiff''s property under a general power of attorney he held from the plaintiff. The point in dispute was whether the suit could lie against such a legal representative and it was held that after the death of the agent it would be extremely unjust to call upon his legal representatives to render accounts in the same manner in which the agent would be liable if he were alive. Therefore, the burden of proof should fall upon the plaintiff in the first instance who must prove each item of the amount which he claims. Reliance was also placed on Purshotam v. Ram Krishna, AIR 1945 Bom. 91: (218 I. C. 483) where it was held that when an agent dies without rendering accounts to his principal, his estate in the hands of his legal representatives is liable for whatever may be found due to the principal. The principal can file a suit for accounts against the legal representatives for the determination of the amount due, but the legal representative cannot be called upon to render an account in the technical forensic sense in which the agent himself would be liable in an ordinary suit for rendition of accounts. In such a suit filed by the principal against the deceased agent''s legal representative the burden of proof primarily lies upon the plaintiff, and it is for the Court to take an account on such materials as are laid before it by the parties and determine what amount, if any, was due to the plaintiff from his deceased agent.

In reply to these arguments the learned advocate for the respondents submitted firstly that a suit for accounts did not lie against the legal representatives at all, and secondly, that on the allegations as made in the plaint the suit was rightly dismissed by the trial Court.

With regard to the first submission of the respondents the law, if I may say with respect, appears to be correctly laid down in Sasi Sekhareswar Roy v. Hajirannessa Bibi, 47 I. C. 371: (A. I. R. 1918 Cal. 276). There, a defendant agreed to collect the rents of a mahal belonging to the plaintiff. The defendant failed to carry out the conditions of the contract and the plaintiff instituted a suit in 1908 as a rent suit and also asked for accounts. After the institution of the suit the defendant died and his legal representatives were brought on the record and they objected that the suit could not proceed against them and it was held by a Division Bench of the Calcutta High Court that after the death of the agent in a case like that the proper procedure for the Court to follow was that the plaint filed in the suit should be investigated preferably by a Commissioner in the presence of the representatives of the deceased and the onus would be on the plaintiffs to prove the items which they claim, that is, to prove that each item was actually realized by the agent and further it was not paid to him. This case was relied by Agha Haider J. in AIR 1929 362 (Lahore) The rule laid down in Purshottam Vasudeo Vs. Ramkrishna Govind, is also similar.

Badrinath Upadhya Vs. Kesho Kumar, ) relied on by the learned trial Judge does not support the proposition which has been contended for by the defendant. What was held there was that the liability to render accounts is a personal one attaching to the agent and cannot be enforced against his heirs; but it was also held that 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. It was not held in that case that no suit against the legal representatives of a deceased agent was permissible. Indeed it would be an extraordinary position that the death of an agent who has not rendered accounts to the principal should at once exonerate his legal representatives from all further liabilities to the plaintiff. It is hard to believe that a plaintiff will have no right against the legal representatives of the deceased agent if the agent collects money belonging to the plaintiff which he ought to have made over to the plaintiff and fails to do so and dies.

I am, therefore, of the opinion that the learned trial Judge has erred in holding that the legal representatives of Mulkh Raj deceased are not liable for accounts.

In the result, this appeal succeeds and must be allowed. The legal representatives of the agent, Mulkh Raj, would be liable to render accounts as asked for in the prayer clause in the plaint, that is, for accounts of income of the property mentioned in the heading of the plaint and debts received by Mulkh Raj.

The case is remanded to the trial Court for passing a preliminary decree. The advocates for the parties have been directed to cause their respective clients to appear before the trial Court on 17th April 1950.

Harnam Singh, J.

I agree in the order of remand.