Deva Prasanna Mukherji vs Lakhi Narayan Mandal and Another

Manohar Lall, J.—This is an appeal by the plaintiff against the concurrent decisions of the Courts below by which they have dismissed his suit which was instituted on 26th November 1934, asking

for a decree to be passed for rendition of accounts against defendant 1, and in case any sum is found due to the appellant a mortgage decree may be passed in favour of the appellant against defendant 1 as well as against defendant 2,

who stood as surety for him to duly discharge his duties as gomasta of the plaintiff. The facts which are no longer in controversy may be stated thus. Defendant 1 was appointed gomasta of the plaintiff in POUS 1832 B.S. corresponding to December 1925, upon defendants 1 and 2 executing a duly registered zaminnama on POUS 7, of that year by which they hypothecated certain properties in schedule ''Kha''; defendant 1 also deposited Rs. 500 as cash security. On Agrahayan 7, 1385, defendant 1 was also entrusted with litigation in respect of Taluk Sulunga in possession of the plaintiff. (This was in addition to his earlier duties). It appears that defendant 1 used to render accounts every year to the plaintiff at the Sadar Katchery, the last account which he submitted related to the period 1336 to 1838 B. Section evidenced by Ex. 6 dated 14th Kartic 1339, when on explaining the accounts a sum of Rs. 797-8-4 was admitted to be due to the plaintiff from the defendant, who signed the document across a one-anna stamp. But it was stipulated in that document that if any difference would be found on enquiry at the Mufassil, defendant 1 would be liable together with any dues which might have become barred by limitation and which might subsequently come to light. After this conditional accounting defendant 1 remained in charge of the collections, but on this point there is a serious controversy between the parties which will be dealt with later. Defendant 1 was dismissed by letter No. 504 dated 14th Asarh 1840 B.S. and the general power of attorney in his favour was revoked by the plaintiff on 2lst July 1933.

The plaintiff''s case is that after the dismissal of defendant 1 he came to learn that defendant 1 had misappropriated large sums of money and had not given a true account of the realization made through him up to 1338 B.S., that notwithstanding the supDDervision placed upon him, defendant 1 was able to realize surreptitiously sums from the tenants in 1339 and 1340, and that defendant 1 allowed a number of suits and decrees to become time-barred. Accordingly he instituted the present suit praying that the defendant should be asked to render a true account to him for the period of his agency. The defence to the action was that defendant 1 has rendered a full and true account to the plaintiff till the year 1838 B.S. and that nothing further is due from him than Rs. 797-8-4 although it is stated in the written statement that that amount also is not due from him because the amlas of the plaintiff and the plaintiff himself have wrongfully and unjustifiably not passed his accounts to the extent of Rs. 300 which were justly due to him. It was also asserted that defendant 1 did not make any realization in 1339 and 1340 B.S., that he had then ceased to be the agent of the plaintiff and as he was suspected falsely of misappropriation the plaintiff deputed his amlas and tahsiidars who were present throughout when realizations were made from the tenants in these two years and that defendant 1 merely signed the receipts whereas the money was taken directly by the amlas to the plaintiff.

A number of issues were struck by the learned Subordinate Judge of Dumka, but the material issue which fell for decision was issue 7, namely whether defendant 1 was liable to render accounts to the plaintiff. The learned Subordinate Judge came to the conclusion that defendant 1 had rendered full accounts to the plaintiff in 1338 B.S. and therefore he thought it was absurd for the plaintiff to call for accounts from defendant 1 after he had rendered full accounts in 1338 and when all the papers had been admittedly made over by defendant 1 to the plaintiff. With regard to the period 1339 to 1340 B.S. the learned Subordinate Judge took the view that as the plaintiff had taken away all the papers and responsibilities from defendant 1 it was not open to him to ask for accounts after he had fettered his agent by setting overseers on him. Accordingly he dismissed the suit on 31st March 1939, without recording any finding on the other issues and in particular on the liability of defendant 2. In so doing the learned Subordinate Judge failed to follow the repeated decisions of this Court where it had been pointed out, following the observations of their Lordships of the Judicial Committee that in all appealable cases it is eminently desirable that the Subordinate Courts should pronounce their decision on all the relevant issues so that if the superior Courts take a different view upon the issue which alone has been decided by the Subordinate Court, the parties litigant would be saved from the harassment of a consequent remand. This is exactly what has happened in this case.

The matter was then taken in appeal to the learned District Judge who, agreeing with the decision of the trial Court, held that after the accounts had been rendered by defendant 1 and after he handed over all the papers, which are mentioned in Ex. 6 on 13th Jeth 1839 B.S. to the plaintiff he was: not liable any further for the period ending 1338. With regard to the period after 1338 the learned District Judge took the view that the remedy of the plaintiff was to institute a suit for specific sums of money which may have been realized by defendant 1 in that period. But he held that the plaintiff was entitled to get a decree for the sum of Rupees 797-8-4 which was acknowledged by defendant 1 as having been due from him, provided the acknowledgment was valid in law and binding on defendant 1, which was the subject of issue 10. The learned District Judge was unable to decide this issue because the learned Subordinate Judge had not come to any finding on this as on any other issue except issue 7. He accordingly remanded the suit to the lower Court for a finding on issue 10 and on such of the other issues as may be necessary in consequence. The present appeal by the plaintiff is directed against the findings in this order of remand dated 11th January 1940.

It is argued by the learned advocate for the plaintiff that the learned District Judge has misconceived the legal situation and ought to have ordered the passing of a preliminary decree in favour of the plaintiff directing defendant 1 to render accounts to him for both the periods, namely, the period ending 1388 B.S. and the second period coverng 1389 and 1840 B.S. In my view this contention is correct and must prevail. It is now the admitted case of both sides that defendant 1 was accountable to the plaintiff for the period ending 1331 B.S. This has been amply proved by the evidence adduced and although defendant 1 challenged the right of the plaintiff to ask for accounts for a portion of the zamindari of which, he alleged, the title was not with the plaintiff, but as defendant 1 was let into possession as an agent on behalf of the plaintiff, it is not open to him to challenge the title of the plaintiff to receive the moneys which were realized of defendant 1 who was appointed as the agent for this purpose by the plaintiff. The only question is whether the plaintiff is entitled to re-open the accounts which are said to have been finally agreed upon by the parties by Ex.6. It has already been indicated that defendant 1 himself wants to have these accounts re-opened because he states in para. 14 of the written statement that this acknowledgment is neither valid in law nor binding upon the defendant especially because the amount of necessary expenditure in respect of plaintiff''s estate to the extent of Rs. 300 (duly passed in previous years) was wrongfully and unjustifiably not passed by the plaintiff.

Further there are clear recitals in the receipt that the amount of Rs. 797-8-4 found due was not a final account but was conditional and defendant 1 was liable for any difference that might be found upon inquiry at the mufassil or for any sum which might be found to be barred by limitation and which may come to light later on. The plaintiff has given prima facie evidence that inquiry at the mufassil has disclosed that this accounting was not correct and that some other sums will be found due from defendant 1 if a proper accounting is taken. Defendant 1 himself, as already stated, challenged not only the correctness of this accounting but also the validity and legality of the acknowledgment. For these reasons I hold that the plaintiff has made out a prima facie case that he should call upon defendant 1 to render accounts to him for the period ending 1338 B.S. The question which remains to consider is whether the plaintiff is also entitled to call upon defendant 1 to explain the accounts for 1339 and 1840 B.S. The learned District Judge accepted the argument that the relationship of principal and agent did not exist between the plaintiff and defendant 1 for these two years although it was proved on behalf of the plaintiff that defendant 1 worked as a gomasta in these years and that he granted kutcha receipts to the tenants. The learned District Judge thought that as defendant 1 was not a free agent for this period but was only made to work under other agents deputed from the Sadar he ceased to be an agent liable to account for these two years. He says at page 11:

It is also stated that there is evidence to show that the defendant did work as gomastha even in 1340 and that he gave kutcha receipts to tenants. It seems to me that the mere fact that the agreement was not revoked previously, will not be of much help to the plaintiff if it is proved that the plaintiff by his own actions made it impossible for defendant 1 to work as a free agent and unless this was done, it is difficult to see how the terms of the agreement to render accounts can be enforced.

It is not clear what the learned District Judge means by the last sentence in this quotation. But having read his judgment carefully it appears that he takes the view that as defendant 1 was working in these two years under the supervision of other agents deputed from the Sadar office and as he was under a suspicion and was not wholly free to realize any amount and keep it with himself but had to make it over then and there to the agents deputed from the Sadar defendant 1 being merely asked to sign the receipts he could not be held to be the agent of the plaintiff. It seems to me that there is some confusion in this mode of reasoning. An agent under suspicion or under supervision is still an agent and must be held liable to account if it is established prima facie that he has made realisations from the tenants himself even in the period of suspicion or while subject to supervision. The plaintiff has given prima facie evidence by proving that in these years defendant 1 had made certain realisations of rent by granting kutcha receipts and of other sums. The learned District Judge thought that:

It is not sufficient for the plaintiff to show that even subsequently the defendant did make some realisations of rent by the granting of kutcha receipts to prove that the relationship of principal and agent continued uninterrupted.

But defendant 1 himself has admitted in his evidence: "I received my dismissal in Asrah 1840 B.S. I have not rendered accounts for 1339 and 1340 yet" and also that he has granted a number of kutcha receipts, for instance, Exs. 24, 26, 27 and 28 series. With regard to these he tries to explain:

I may have granted kuteha receipts in Bent Execution Cases when printed receipts ran short. These four kutcha rent receipts were granted by me Exs. 26 to 26 (3); also this kuteha receipt Ex. 27; also these Exs. 28 and 28(1); also this Rent Receipt Ex.29; I have made these endorsements Exs. 30 to 30 (2) in order sheet of Rent Seduction Case No. 24 of 1932 in token Qf realization of money in Court.

The amounts relating to these receipts have admittedly not been accounted for in Ex. 6. In answer to the Court question defendant 1 stated that he deposited these amounts in Sadar office, but when pressed in cross-examination he stated:

These amounts were deposited to head office through estate employees named Lalit Mohan Aditya and Manmohan Maitra. They promised to deposit money in Sadar and to send me chalans. But they did not send any chalans. I did not inform the Manager separately about the despatch of money. I did not make any enquiry to ascertain if the amounts had been credited in head office or not. It is not a fact that I have misappropriated the amounts. I did not inform the manager after, my dismissal that I had sent these amounts to head office through the aforementioned estate employees.

It is perhaps unnecessary to refer to the evidence adduced by the plaintiff. But P.W. 3, a tenant, states that defendant 1 realised rents from the tenants and that he paid him Rs. 10 on Baisakh 3, 1340 B.S on a kutcha receipt, Ex. 10. For these reasons it seems to me that the plaintiff has made out a prima facie case that notwithstanding the supervision imposed on him defendant 1 succeeded in realising rents from the tenants by granting kutcha receipts. He is therefore entitled to rendition of accounts from defendant 1 for the amounts which he had reached in these two years. It is difficult for this Court to come to a finding whether defendant 1 is liable for other items or for the amount of rents which have become time-barred or for the amounts covered by the suits which have been dismissed owing to the fault of the defendant or for the amount of the decrees which have become time-barred for similar reasons. But it is sufficient to say that a prima facie case has been made out by the plaintiff requiring defendant 1 to render to him accounts for the period 1339 to 1840 B.S also. For these reasons, the decree passed by the Courts below is set aside and a preliminary decree is passed in favour of the plaintiff directing defendant 1 to render true and full accounts to him for the period ending 1338 B.S. and also for the period 1839 and 1340 B.S up to the date when defendant 1 was dismissed. Upon the records being received by the learned Subordinate Judge he will depute a competent person as commissioner directing him to take accounts from defendant l. The learned Subordinate Judge will also proceed to decide issues 5, 8 and 10 before the commissioner takes up his work. The plaintiff is entitled to costs throughout but the costs will be worked out only when the amount found due from the defendant has been ascertained.