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Nathubhai Bhikaridas Vs. Devidas Mangaldas - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case Number Second Appeal No. 16 of 1909
Judge
Reported in(1910)12BOMLR951
AppellantNathubhai Bhikaridas
RespondentDevidas Mangaldas
Excerpt:
.....and agent-account between- agent's liability to account-demand and refusal-termination of the agency.;d received from g a sum of money as the agent of n on the 4th november 1902. in may 1908 disputes arose between d and nin which d denied n's right to the money. but on the 30th june 1903, d again received from g another sum of money as the agent of n. there was not, after that date, any demand and refusal or termination of the agency. n tiled a suit against d in 1907 to recover the money from d :-;that the claim was not barred; for though d asserted his own right in 1903, the adverse claim was not continued and acted upon; and when in june 1903, he again received the money for and on behalf of n, his conduct plainly amounted in law to a continuance of the agency and fiduciary..........then, is, whether this suit, treated as one by a principal against his agent to account for moneys received by the latter, is barred under article 89 of schedule i to the limitation act.3. on the facts found by the lower appellate court the mortgagor made two payments, the first to mangaldas and his son devidas on the 4th of november 1902; and the second on his death to devidas (the 2nd defendant) on the 30th of june 1903. the present suit was brought in 1907.4. as to the first payment, though the lower appellate court in certain parts of its reasoning in support of its finding mentions it as having been made to mangaldas, the finding that the money was received by mangaldas and devidas for and on behalf of the plaintiff, must be understood as applying to this payment, having.....
Judgment:

N.G. Chandavarkar, J.

1. The lower appellate Court has found upon the evidence that both Mangaldas and Devidas received the money due upon the mortgage from the first defendant ' for and on behalf of the plaintiff' as mortgagee of the said defendant. The legal effect of that finding is that both Mangaldas and Devidas by their own act and conduct constituted themselves agents of the plaintiff for the purposes of the amount or amounts received by them from the plaintiff's mortgagor; and it is not open to them to deny that fiduciary relation and plead that the money was received by them on their own account an for their own benefit: Lokhee Narain Roy Chowdhry v. Kalypuddo Bandopadhya . The principle applicable to the present case, and applied in the judgment of the Privy Council abovementioned, is stated by Anderson J. in Gawton v. Lord Dacres (1590) 2 Leon, 219 which is referred to with approval in Lyell v. Kennedy (1889) 14 A C. 437: ' If one become my bailiff of his own wrong, without my appointment, he is accountable to me.'

2. The question, then, is, whether this suit, treated as one by a principal against his agent to account for moneys received by the latter, is barred under Article 89 of Schedule I to the Limitation Act.

3. On the facts found by the lower appellate Court the mortgagor made two payments, the first to Mangaldas and his son Devidas on the 4th of November 1902; and the second on his death to Devidas (the 2nd defendant) on the 30th of June 1903. The present suit was brought in 1907.

4. As to the first payment, though the lower appellate Court in certain parts of its reasoning in support of its finding mentions it as having been made to Mangaldas, the finding that the money was received by Mangaldas and Devidas for and on behalf of the plaintiff, must be understood as applying to this payment, having regard to the fact that in Exhibit 29, a letter written by Devidas to the plaintiff after the payment, he acknowledged in effect his and his father's agency in respect of the sum. When Mangaldas died, Devidas became the sole agent in respect of the mortgage money.

5. It is indeed found by the lower appellate Court that on Mangaldas' death, i. e. in the Vaishakh of Samvat 1959 (May 1903),' disputes arose between plaintiff and Devidas ' and ' the latter withheld the mortgage deed and thus showed an intention to dispute plaintiff's right to receive the money'. If nothing more, implying in law a continuance of the agency thereafter, had happened after that dispute, the plaintiff's cause of action to demand an account would have arisen under Article 89 in May 1903; and the present claim made by the suit brought in 1907 would have been clearly barred. But the finding of fact of the Court below is that in June 1903 Devidas received the second payment from the mortgagor for and on behalf of the plaintiff. An agent's liability to his principal is to render an account of the sums received by him; the account is one and indivisible; and he cannot plead limitation as to any particular item as against his principal. No doubt in May 1903 Devidas set up his own right to the mortgage; that was an assertion of adverse right', but the adverse claim then set up was not continued and acted upon. The claim was in the nature of adverse possession, but, for such possession to ripen into a right, it must be continued and uninterrupted and there must be nothing equivocal in it: Lallubhai Bapubhai v. Mankuverbai ILR (1876) 2 Bom. 288. When in June 1903 Devidas again received the money for, and on behalf of, the plaintiff, his conduct plainly amounted in law to a continuance of the agency and fiduciary relation and the liability to account in respect of it.

6. It is not Devidas's case that, after that, there- was any demand and refusal or termination of the agency.

7. On these grounds the decree appealed from must be reversed and that of the Subordinate Judge of Bassein restored with the costs of this appeal and the appeal to the District Court at Thana on defendants Nos. 2 to 5.


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