John Stanley, Kt., C.J. and Banerji, J.
1. This appeal raises an important question under the Indian Limitation Act. The suit out of which it arises was instituted by the plaintiff respondent on the 31st of March, 1904, for the recovery of Rs. 3,52,180-2-5 alleged to have been due to her by her father Rao Umrao Singh at the time of his death in respect of the income of the plaintiff's estate, known as the Sahanpur estate, received by him under a power of attorney executed by the plaintiff in his favour. The plaintiff sought to recover this amount out of the family property known as the Kuchesar estate, which was owned and possessed by Rao Umrao Singh and his family.
2. The court below gave the plaintiff a decree for Rs. 2,17,840.4-2 with future interest from the 31st of March, 1904, up to the date of realisation, to be recovered by attachment and sale of the property held jointly by Rao Umrao Singh and the defendants who are now owners of and in possession of the Kuchesar estate. From this decree the present appeal has been preferred.
3. The Sahanpur estate was owned by Khushal Singh, deceased, The plaintiff is the daughter of Rao Umrao Singh and the widow of Khushal Singh and upon the death of the latter became entitled to this estate. The defendants 1--4 are the sons and the defendant No. 5 is the grandson of Rao Umrao Singh and formed with him a joint Hindu family. Khushal Singh died on the 6th of August, 1879; and shortly after his death the plaintiff, who is a pardanashin lady, executed a power of attorney in favour of her father Rao Umrao Singh, authorizing him to manage the estate on her behalf. This power of attorney is dated the 10th of May, 1880, and by it the usual powers of management were conferred upon Rao Umrao Singh, including a right to collect the rents and profits of the villages forming the Sahanpur estate and also debts and, in case of necessity, to execute mortgages or sale-deeds. This document is No. 6 of the record. Another power of attorney was executed by the plaintiff respondent in favour of Rao Umrao Singh on the 15th of January, 1887, empowering him to register documents executed by him on behalf of the plaintiff respondent and realise moneys due to her. Formerly the Kuchesar estate included the Sahanpur and also the Bhadsona estates. A number of years ago it was divided into three tappas called respectively Kuchesar, Sahanpur and Bhadsona. Rao Umrao Singh and his family owned the tappu now called 'Kuchesar, while Khushal Singh owned Sahanpur. The remaining portion fell to the lot of Par tap Singh. Acting under the power of attorney which we have mentioned above, Rao Umrao Singh managed the Sahanpur estate on behalf of the plaintiff from the year 1880 up to the 3rd of June, 1898, the date of his death. Two sets of accounts were kept by him, one for the Kuchesar and the other for the Sahanpur estate and each estate bad its own money chest. After defraying the necessary expenses of the plaintiff's estate, there were large savings out of the income of that estate during the management of Rao Umrao Singh, and money was from time to time transferred by Umrao Singh from the money chest of that estate to the money chest of the Kuchesar estate. There was no adjustment of the accounts between the plaintiff and Rao Umrao Singh during the lifetime of Rao Umrao Singh. After his death his son Rao Girraj Singh and the other defendants made over, to the plaintiff's agents the accounts of the Sahanpur estate and on the basis of these accounts it was ascertained that during the management of Rao Umrao Singh a very large sum was due to the plaintiff in respect of the surplus income of the Sahanpur estate.
4. On the 23rd of May, 1901, Ram Raghubir Kunwar instituted a suit against Rao Girraj Singh and the defendants 2--4 for recovery of the amount so ascertained to be due in respect of the income received by Rao Umrao Singh on her behalf, over and above moneys paid to or applied on her behalf, and also for a sum of Rs. 8,379, representing the income of the Sahanpur estate, collected by the defendants after the death of Rao Umrao Singh. The defendants filed a defence to that suit and in their written statement alleged that Rani Raghubir Kunwar had in accordance with her husband's will adopted Indarjit Singh, son of Girraj Singh, and grandson of Rao Umrao Singh, and that in consequence of this adoption she had no right to maintain the suit. This suit was compromised on the 11th of July, 1902, and a decree was passed in the terms of the compromise on the 21st of July, 1902. According to the compromise the defendants withdrew their plea as to the adoption of Kunwar Indarjit Singh and the plaintiff withdrew her claim in respect of the amount alleged to be due to her for collections made by Rao Umrao, Singh. The defendants admitted their liability for the amount received by them after Rao Umrao Singh's death, namely, a sum of Rs. 8,379-13, and it was agreed that a decree for this amount should be passed in the plaintiff's favour. It was further agreed that if any of the parties should deviate from the compromise the other party should not be bound by it; and that if the defendants or any of them should deviate from it, it should be deemed null and void and the plaintiff should 'revert to her right to claim.' The decree was drawn up in the terms of the compromise. But before this decree was passed it was arranged that Kunwar Indarjit Singh as also Jagjib Singh, the minor son of Digbijai Singh, should be made parties to the suit so that they might be bound by the compromise and decree. An application for this 'purpose was made to the court and granted, and as appears from the judgment of the learned Subordinate Judge, the interests of all parties were carefully considered before the decree on the compromise was passed. The object of making Indarjit Singh a party to these proceedings was to quiet the title of Raghubir Kunwar.
5. Despite this decree, on the 8th of December, 1903, Kunwar Indarjit Singh under the guardianship of his maternal uncle Chaudhri Balbir Singh, instituted a suit against the plaintiff and Brijraj Saran Singh, whom she had in the meantime adopted, for a declaration that the plaintiff is the adopted son of Kunwar Khushal Singh and that the decree of the 21st of July 1902, is null and void against him and that the adoption of the defendant Brijraj Saran Singh was null arid void, and for possession of the property of Khushal Singh. The bringing of this suit by Kunwar Indarjit Singh under the guardianship of his inaternal uncle was an ill-disguised device to make it appear that his father Girraj Singh was not at the bottom of it. It is perfectly clear that Girraj Singh was the prime mover in the litigation. He supported his son's case and gave evidence in support of the adoption. This suit was dismissed on the 21sb of December 1906, by the learned Additional Subordinate Judge of Aligarh, who decided after an exhaustive review of the evidence that the alleged adoption of Kunwar Indarjit Singh was not proved. From this decision an appeal, viz., F.A. No. 138 of 1907, was preferred which was heard by us and judgment therein was delivered to day affirming the decision of the court below. The conclusion at which we arrived was that there was no foundation for the allegation that Indarjit Singh had been adopted by Rani Raghubir Kunwar.
6. In the appeal now before us the first ground of appeal which was pressed in argument is that the suit is barred by Section 373 of the Code of Civil Procedure of 1882. The contention of the learned advocate for the appellants is that the plaintiff having abandoned her claim to recover the moneys received by Rao Umrao Singh on her behalf in the earlier suit of the 23rd of May, 1901, without, as alleged, having obtained permission of the court to bring a fresh suit in respect thereof was precluded from bringing the suit. We are of opinion that there is no force in this contention. The suit of the 23rd of May 1901, was compromised, and it was one of the terms of the compromise that if any of the parties should deviate from the compromise, the compromise should be deemed null and void and that the plaintiff should in that event 'revert to her right to claim,' that is, to prosecute a suit for recovery of the amount alleged to be due to her. A decree was passed, as we have said, in the terms of the compromise embodying the provision of it in regard to the right of the plaintiff to sue in the event of the compromise not being observed. It appears to us, therefore, that it cannot be successfully contended that the plaintiff in the events which 'have happened was not at liberty to bring a fresh suit. It was intended by the compromise that the question of the adoption of Indarjit Singh should be set at rest and it was on the express understanding that his alleged adoption would not be set up that the plain-till withdrew her claim in respect of the moneys received, by Rao Umrao Singh on her behalf. Despite this compromise and decree Indarjit Singh supported by his father Girraj Singh again set up the alleged adoption and so deviated from the compromise, and thereupon the plaintiff was relegated to her rights as they stood at the date of the compromise. It would be obviously inequitable if under the circumstances the plaintiff could not maintain her suit. Farther, having regard to the terms of the decree it may we think properly be regarded as equivalent to an order granting leave to the plaintiff to withdraw from the suit with liberty to bring a fresh suit.
7. The next question raised by the learned advocate for the appellants is that the suit is barred by limitation. A commission was issued by the court for the examination of the accounts kept by Rao Umrao Singh and a Pleader of the court was appointed Commissioner. He was directed to submit a report with reference to the wazkhams (day-books) of the estate as to how much money was debited to the Kuchesar estate in the day-books of the Sahanpur estate. He found that a sum of Rs. 3,71,591-6-6 were so debited between the period from the 14th of February, 1883, to the 17th of May, 1898. The various items so debited are entered as 'parol debts debited to the Kuchesar estate.' Rao Umrao Singh appears to have withdrawn money from time to time from the chest of the Sahanpur estate and placed it in the chest of the Kuchesar estate and this he did up to the date of his death. There was no adjustment or settlement of accounts during all these years between him and the plaintiff. Mr. Sundar Lal on behalf of the defendants-appellants contends that the article of limitation applicable to the case is either Article 57 or Article 62 of Schedule II to the Limitation Act, 1877, and that under either of these articles the entire claim is barred, the suit not having been brought within three years from the date when the money was either lent by the plaintiff to Rao Umrao Singh, or received by Rao Umrao Singh for her use. Article 89 was also relied on as barring the suit on the assumption that it can be treated as a suit by a principal against his agent for movable property received by the agent and not accounted for.
8. On the part of the plaintiff-respondent the contention is that Article 120 is the article applicable to the case and that the plaintiff Had six years from the date of the death of Rao Umrao Singh within which to bring the suit that the right to sue the defendants only accrued on the death of Rao Umrao Singh.
9. It appears to us that Article 57 is not applicable. There is no evidence of any loan having been made by the plaintiff to Rao Umrao Singh. Rao Umrao Singh as the Manager of the plaintiff's estate, collected the rents for her and placed the money either in the chest of the Sahanpur estate or in that of the Kuchesar estate debiting the Kuchesar estate with any sums belonging to the Sahanpur estate which were so placed in the chest of the Kuchesar estate. There is no evidence that the plaintiff ever agreed to lend the money to her father. He simply retained her money in his hands.
10. Article 62 we think has equally no application. The suit is not one on the common indebitatus count for money received by the defendants for the use of the plaintiff, but is one for money which the plaintiff seeks to follow in the hands of the defendants as owners of the Kuchesar estate. The money was placed in the coffers of the Kuchesar estate by Raio Umrao Singh and the defendants as owners of that estate had the benefit of it. It is in the nature of an equitable claim.
11. It is not also in our judgment a suit coming within Article 89 inasmuch as the defendants are not and never were the agents of the plaintiff. The article which is applicable to the case is we think Article 120. The case stands thus: Umrao Singh as agent or manager for the plaintiff collected the rents and profits of the Sahanpur estate which were payable to her. He made payments to her from time to time on account and defrayed on her behalf the outgoings and expenses of management. He withdrew from the Sahanpur chest and transferred to the Kuchesar chest whatever sums he required from time to time and treated the sums so withdrawn as advances made to the Kuchesar estate for which he was liable to account. There was in fact a running account between the two estates and this account was never adjusted. In circumstances such as these a cause of action would not accrue so soon as any particular sum was transferred from the Sahanpur estate to the Kuchesar, money chest. Rao Umrao Singh continued to keep the money so transferred as agent for the plaintiff and as such agent remained under an obligation to render an account of his agency when called upon to do so and to pay any balance which might be found to be due on the taking of such account. He was not called upon to account and there was no adjustment of the accounts during his lifetime. The defendants, his sons and grandsons, on his death became liable to pay the balance which from the accounts might be found to be due to the plaintiff, under their pious obligation to satisfy Rao Umro Singh's debts, if for no other reason, to the extent of any joint family property in their hands. The cause of action against them accrued, we think, on the death of Rao Umrao Singh and not before, and Article 120 is, we think, applicable and the suit haying been brought within six years from the date of the death of Rao Umrao Singh it is not barred by limitation. Apart from their pious obligation to pay their father's debts the defendants as owners of the Kuchesar estate ware benefited to the extent of the moneys transferred by Rao Umrao Singh, the head of the family, to the chest of that estate from the chest of the Sahanpur estate, and in this view also they are liable in equity to make good out of the Kuchesar estate the amount so appropriated to that estate by Rao Umrao Singh out of the rents and profits belonging to the plaintiff.
12. The case of Seth Chand Mal v. Kalyan Mal (1886) P.R. No. 96 lends support to this view. In that case the plaintiff sued the defendant who was the son of the plaintiff's deceased agent, and who was in possession of the property of the deceased agent for an account of his property for which the agent was accountable and he prayed that an account might be taken of the amount recoverable by him and a decree might be passed in his favour. It was held by Peacock and Burney, JJ., that the plaintiff was entitled to have the account taken and a decree passed for any sum which might be found to be due by the agent at the time of his death. It was held that the suit having been brought within three years from the date of the agent's death was within time whether it was governed by Article 62 or Article 120 of Schedule II of the Limitation Act and that Article 89 had no application. It was not necessary to decide in this case whether Article 62 or Article 120 was applicable.
13. The case of Kalee Kishen Pal Chowdhry v. Srimati Juggat-Tara (1868) 2 B.L.R. 139 also supports our view. In that case the representatives of a gomashta who had for the last four year of his life taken the money of his employers in advance for the purposes of his business, were sued for the balance of account of such moneys after giving credit for the amount of the gomashta's annual salary. It was held that the suit being brought within six years from the date of the gomashta's death, was not barred by the provisions of Act XIV of 1859. Both the lower courts in that case had held that Clause 16, Section 1, of Act XIV of 1869, which corresponds with Article 120 of Act XV of 1877, was applicable to the suit and that on the date of its institution the moneys overdrawn were barred by lapse of time. In appeal under Section 15 of the Letters Patent this ruling was reversed. In delivering the judgment of the Court Peacock, C.J., observed: 'In such a case the cause of action would not accrue immediately the money was advanced. There would be an obligation, on the agent to render an account of his agency, and to account for the moneys in question. In using the word 'account,' I use it in its legal sense as not confined merely to rendering an account of what he has done with the money, but as including the payment of any balance which might be found due from him upon taking of the accounts. The agent died before he was requested to account for, or to render an account of the moneys; an then I apprehend a cause of action accrued against his representatives, so far as they had assets, to repay to the principal any balance which upon the adjustment of the accounts might appear due from the agent. It appears to me therefore that the period of six years must be computed not from the time when the agent drew the moneys but from the time of his death.'
14. The case of Gurudas Pyne v. Ram Narain Sahu (1884) I.L.R. 10 Cal. 860 P.C. also lends support to the view which we have above expressed. The question raised in that appeal related to the law of limitation under Act IX of 1871, the suit being one for the proceeds of the sale of timber wrongfully converted by a deceased person against whom a decree had been obtained for such wrongful conversion, such proceeds being in the hands of the defendant who held' them as agent for the representative of the deceased. It was held that neither Article 48 Of Schedule II of the Act in question which fixed the limitation of three years for suits for moveable property acquired by dishonest misappropriation or conversion nor Article 60 of the same schedule, corresponding to Article 62 of Act XV of 1877, which fixed a limitation of three years for, suits for money payable by the defendant to the plaintiff for money received for the plaintiff's use was applicable, but that as a suit for which no period of limitation was provided elsewhere, it fell within Article 118 of the same schedule which corresponds with Article 120 of the Act of 1877. Sir Barnes Peacock in delivering the judgment of the Privy Council observed: 'There was no dishonest misappropriation or conversion. The defenant sold the timber on account of his brother; he held the proceeds on account of the widow, and there was no dishonest misappropriation, although the plaintiffs had a right; on finding the money in his hands, to attach it and make him responsible to them.' Later on he observes: 'The suit is to enforce an equitable claim on the part of the plaintiffs to follow the proceeds of their timber and finding them in the hands of the defendants to make him responsible for the amount. That does not fall either within Article 60 or Article 48, but comes within Article 118, as 'a suit for which no period of limitation is provided elsewhere in this schedule, and for suits of that natures period of six years is the limitation.' We should also refer to the case of Bindraban Behari v. Jamna Kunwar (1902) I.L.R. 25 All. 55 in which it was held that a suit to recover from the son of a deceased pleader as representative of his father money which had been received by the pleader in his professional capacity on behalf of his client was governed as regards limitation by Article 120.
15. For the foregoing reasons we are of opinion that the plainiff's suit is not barred by limitation.
16. One other objection to the decree was this that four sums of Rs. 8,804, Rs. 2,000 Rs. 4,050, and Rs. 12,000 were allowed by the court below to the plaintiff though these sums were it is said not claimed by her in her plaint. We do not think that there is any substance in this objection. The plaintiff claimed in her plaint Rs. 3,52,180-2-5 and a sum of Rs. 2,17,840-4-2 (which includes interest) only was decreed to her. The Commissioner in his report did not give credit to the plaintiff for these sums, no doubt because they were not entered in the account books as debited to the Kuchesar estate. Of the items which makeup the sum of Rs. 8,804, the first appears in the account as having been used for indigo business j the second item of Rs. 2,000 as a loan to deposit account; the third of Rs. 4,050 as given for the purchase of horses, and the fourth Rs. 12,000 'as taken to Meerut for the Muhiuddinpur case debited to the Sirkar.' The court below we think rightly allowed these sums finding that they were spent upon or applied for the purposes of the Kuchesar estate and not for the Sahanpur estate. Full credit was given to the defendants for all sums which were applied for the plaintiff or her estate in the sum of Rs. 1,18,959-7-1 which was deducted from her claim. We think therefore that the court below rightly allowed these 4 items.
17. The only other question pressed before us in argument by the appellants' learned advocate is concerned with interest. The court below allowed interest on the amount decreed from the 21st of July 1902, up to the 31st of March 1904, that is from the date of the decree in the earlier suit up to the date of the institution of the present suit and also future interest. The appellants contend that the court below should not have awarded interest for the period during which the appellants abided by the compromise. We think under the circumstances that the plaintiff is entitled to interest for the period in question. According to the compromise she was relegated to her original rights, upon the refusal of Indarjit Singh to abide by the terms of the compromise and there is no reason why interest on the sum found to be due to her should not be allowed. This disposes of the only questions pressed before us in the appeal.
18. An objection was filed by the plaintiff-respondent under Section 561 of the Code of Civil Procedure of 1882, in respect of an item of Rs. 65,913-15-3 and other matters, but the objection has been pressed in respect of the item of Rs. 65,913-16-3 only. By an oversight the court below gave credit twice for this amount to the Kuchesar estate. In the last sentence of the judgment at page 23 of the paper-book the balance found to be due to the plaintiff is Rs. 1,97,456-4-2. In ascertaining this amount the sum of Rs. 65,913-15-3 as also other sums are deducted, but on turning to the account of the Commissioner (No. 5 of the record) it will be found that this sum had already been credited to the Kuchesar estate, under date the 25th of July, 1898. The learned advocate for the appellants admits that this is so. Consequently the objection of the plaintiff-respondent in this respect will be allowed.
19. The result is that we dismiss the appeal with costs. We allow the objection in part and give a decree to the plaintiff-respondent for Rs. 65,913-15-3 in addition to the sum decreed to her by the court below. This sum will carry interest at the rata of 6 per cent, per annum from the 21st of July, 1902. The costs of this objection will be paid and received by the parties in proportion to failure and success.