1. The short question arising in these appeals is whether a principal can sue the legal representative of his agent for an account, the agent having died without rendering an account. The defendant's father Vasudeo had two brothers, Ramkrishna and Bhaskar, and when the three brothers were still undivided, Ramkrishna and Bhaskar appointed Vasudeo to manage the joint family property, and on, September 25, 1908, both of them gave him a power of attorney. Vasudeo managed the property till 1924 when the three brothers came to a partition. At the partition the property was not divided by metes and bounds and Vasudeo continued to manage the shares of Ramkrishna and Bhaskar also till 1931. In that year the lands were divided by metes and bounds and subsequently in November, 1935, the power of attorney was cancelled. Vasudeo died on October 30, 1937, without rendering an account of his management. He left a minor son who was taken care of by his mother's father Shivaram. In April, 1938, Ramkrishna and Bhaskar gave notices to Shivaram to give an account of the management of their property by Vasudeo since 1908, and as Shivaram did not comply with the request, they filed two separate suits against Vasu-deo's minor son by his guardian ad litem Shivaram to have an account of the management by Vasudeo and to recover the sums found due out of Vasudeo's estate in his son's hands. The defendant contended in both the suits inter alia that a suit for accounts was not maintainable against him and that the suits were not in time. These issues were tried as preliminary issues and the trial Court held that the suits were in time, but that they were not maintainable against the legal representative of the deceased agent Vasudeo. After reviewing various cases of different High Courts the trial Court adopted the view expressed in Kumeda Charan v. Asutosh (1912) Cri.L.J. 282 and dismissed the suits on the ground that suits for accounts as framed by the plaintiffs were not maintainable. The lower appellate Court following the ruling in Prem Das v.Charan Das A.I.R.  Lah. 362 held that such suits were maintainable, and remanded both the suits for trial on merits according to law. A perusal of the judgments of the two Courts shows that both have taken a substantially correct view of the extent and nature of the liability of the legal representative of a deceased agent, but have failed to give full effect to that view.
2. It is not disputed that after the death of an agent his estate in the hands of his legal representative continues to be liable to the principal for sums found due on account from the deceased agent. The liability of the legal representative of an agent to make good, any loss caused to the principal by the misfeasance or malfeasance of the deceased agent in the course of the agency to the extent of his assets in the hands of the legal representative being admitted, there is some difference of opinion regarding the mode of enforcing that liability. Even in Kumeda Charan's case relied upon by the trial Court it was admitted that the estate of the agent in the hands of a legal representative did not escape liability, but it was held that the legal representative could not 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. Only a fortnight after the decision in Kumeda Charan's case the same High Court held inJhapajannessa Bibi v. Rash Behari (1912) Cri.L.J. 288 that such a suit for an account and for recovery of the amount due was maintainable against the legal representatives of a deceased agent and that such legal representatives were bound to furnish account. It appears that Kumeda Charan's case was not then brought to the notice of the learned Judges. The decision in Prem Das v. Charan Das (supra) relied upon by the lower appellate Court does not really conflict with the principle laid down in Kumeda Charan's case, but it indicates precisely the nature of the suit for accounts brought against the legal representative of a deceased agent in the following words (head-note) :-
The nature of an ordinary suit by the principal against his agent for rendition of accounts is well known. In such a suit the plaintiff has to prove in the first instance that the defendant is an accounting party. If the finding of the Court on this point is in favour of the plaintiff then a preliminary decree is immediately passed in his favour and the burden of proof is placed upon the agent to show what amounts he has received and what disbursements he has made for and on behalf of the principal. And the final decree declares the amount, if any, which is found due to the plaintiff from the agent.
But after the death of the agent it would be extremely unjust to call upon his legal representatives to render an account 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. On the other hand, it is the duty of the legal representative to place before the Court all the accounts in his possession and power which the deceased agent might have prepared during the period of his agency.
The only difference in substance between a suit for an account against an agent and one against his legal representative after his death is that the burden of proof in the latter case will be upon the principal to establish his case. In Venkatackaryulu v. Mohana Panda I.L.R. (1920) Mad. 214 Spencer J. observed (p. 217) :-
The representatives are liable equally with their father, the only difference being that while the agent's first duty is to be, constantly ready with his accounts and to be always prepared to explain them and support them with vouchers, his representatives should not be required to' attempt the impossible and explain matters of which they have no personal knowledge or to assist the plaintiff in the investigation of the management of his estate of which they are wholly ignorant.
3. The same view regarding the burden of proof was expressed in Kumeda Charon's case. In Maharaj Bahadur Singh v. Basunta Kumar Roy 17 C.W.N. 695 and Sasi Sekhareswar v. Hajirannessa (1918) Cri.L.J. 492: 22 Bom. L.R. 1289 s.c. a suit for accounts was originally brought against the agent himself and after his death during its pendency it was allowed to be continued against his legal representative, but it was held that after the death of the agent the burden of proof which originally lay upon him to render an account shifted. In the latter case the learned Judge suggested that the proper course for the Court to follow, after the legal representatives were brought on record, was that the claim made by the plaintiff should be investigated in the presence of the deceased agent's legal representatives and that the onus should be placed upon the plaintiff who must prove each item in the sum which he claims, that is to say, he must prove that each item was actually realised by the agent and further it was not paid to the plaintiff by him and that it would be open to the legal representatives in each case to adduce evidence to show either that the money was never realised by the agent or that it was paid to the plaintiff after realisation or was properly spent. The Court should then pass a decree for the amount found due to the plaintiff against the assets of the deceased agent in the hands of the legal representatives.
4. In cases like Appa Rao v. Subba Rao I.L.R. (1926) Mad. 249 and Gabu v. Zipru I.L.R. (1920) 45 Bom. 313 it was held that a suit for accounts against the legal representative of a deceased agent was governed by Article 89 of the first schedule to the Indian Limitation Act, 1908, but the maintainability of such suits was not disputed.
5. The learned trial Judge has carefully considered the views of the different High Courts and has come to the conclusion that since both, the principal and the legal representative of the deceased agent have no personal knowledge about the accounts, if one of the parties has to suffer, the more innocent of them, viz. the legal representative, must not be made to suffer and, therefore, should not be called upon to render accounts of the management of the deceased agent. This equitable view is correct so far as it goes, and it is for this reason that the burden of proof must be thrown on the principal. But the principal cannot be called upon to state beforehand what amount may be found due to him when the accounts are taken. A' suit for an account does not necessarily mean a suit for rendition of accounts by the defendant. What the plaintiff really wants is that on the materials, placed before it the Court should take an account and determine what is due to him from the estate of the deceased agent. The burden of placing those materials before the Court lies primarily on the plaintiff. Of course in such a case it will not do for the defendant to withhold the accounts, since it is possible that the plaintiff may prove what was realised by his agent, and in the absence of the accounts the defendant may find it difficult to show what expenses had been incurred in the course of the management. Hence it will be to the interest of the defendant also to produce all the accounts maintained by the deceased agent. After both the parties have thus laid before the Court all the materials available to them accounts will have to be taken on the basis of such materials.
6. From this discussion three propositions can be deduced, viz. (1) when an agent dies without rendering an account to his principal, his estate in the hands of his legal representative is liable for whatever may be found due to the principal on account ; (2) the principal can file a suit for an account against the legal representativefor the determination of the amount due from the deceased agent, 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 and (3) 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.
7. This is what the plaintiffs in the two suits have really prayed for. In the prayer clause they request that accounts should be taken of the management of the estate by Vasudeo, but they do not specifically say that such accounts should be taken from the defendant. They want to recover the amount that may be found due at the foot of the accounts. The learned trial Judge wanted to have this made clear and asked the plaintiffs to state the nature of their claim. They then put in a purshis conceding that the modes of taking accounts in the case of an agent and in the case of his legal representative after his death were different, but they added that the liability of the legal representative to render accounts was the same as that of the agent himself. This last sentence is inartistically worded and the learned Judge rightly refused to accept the view pressed for in it. In this Court it is fairly conceded that the defendant is not liable to render an account, that the burden of proof lies on the plaintiffs and that their claim for accounts is subject to these restrictions. If so, there is no reason to regard the suits in the present form as not maintainable.
8. The lower appellate Court has set aside the decree of the trial Court and remanded the suits for trial without specifying the mode in which accounts are to be taken. This specification is particularly necessary in view of the purshis put in by the plaintiffs. I, therefore, modify the order of remand 'by adding the words ' as laid down in this judgment'. In other respects the order of remand is confirmed.Costs of the appeal will be costs in the cause.