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Shankar Lal and anr. Vs. Toshan Pal Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1934All553; 150Ind.Cas.151
AppellantShankar Lal and anr.
RespondentToshan Pal Singh
Excerpt:
.....was alleged by the defendants that so far as their liability, if any, arising in the life-time of dhyan pal singh was concerned the plaintiff's suit is time-barred, the same having been brought more than three years from the date on which dhyan pal singh died. as regards the collections that might have been made by the defendants after the death of dhyan pal singh, it was alleged that all accounts were rendered to the plaintiff in 1924. as for the period from 1925 to 1928, it was pointed out that the accounts are admittedly with the plaintiff who has satisfied himself of the correctness of the entries therein made. the defendants complained that the plaintiff was in possession of all the account books and connected papers for the year 1921 to 1924, and that it was not possible for the..........dhyan pal singh, the plaintiff's father, to manage certain zamindari properties belonging to the joint family consisting of dhyan pal singh and his sons, that defendant 2, brother of defendant 1 was associated with the latter in the management of the aforesaid property, that dhyan pal singh died in 1923, after which the plaintiff, who is the eldest son of dhyan pal singh, became the karta, that the defendants continued to act as managers of the family property till october 1928, when they were dismissed, and that they have not rendered any account of sums received by them in their capacity as agents. the reliefs claimed by the plaintiff are (1) that the defendants be directed to render accounts of the moneys received by them during the term of their 'employment, namely, 31st march 1921.....
Judgment:

Niamatullah, J.

1. This is an appeal by the defendants and arises out of a suit for rendition of accounts on the allegation that the defendants were the agents of a joint Hindu family of which Dhyan Pal Singh father of the plaintiff was the karta op to 1923 and thereafter plaintiff 1 became the karta. The suit has been decreed by the Court below which passed a preliminary decree directing the appointment of a commissioner and an account being taken of what is due from the defendants to the plaintiff. The plaintiff's case was that defendant 1, Pt. Shankar Lal, was employed by Thakur Dhyan Pal Singh, the plaintiff's father, to manage certain zamindari properties belonging to the joint family consisting of Dhyan Pal Singh and his sons, that defendant 2, brother of defendant 1 was associated with the latter in the management of the aforesaid property, that Dhyan Pal Singh died in 1923, after which the plaintiff, who is the eldest son of Dhyan Pal Singh, became the karta, that the defendants continued to act as managers of the family property till October 1928, when they were dismissed, and that they have not rendered any account of sums received by them in their capacity as agents. The reliefs claimed by the plaintiff are (1) that the defendants be directed to render accounts of the moneys received by them during the term of their 'employment, namely, 31st March 1921 to 30th October 1928; (2) that the defendants be ordered to deliver to the plaintiff certain receipts and counter-foils mentioned in detail in para. 13(b) of the plaint, and (3) that a decree for Rs. 5,250 or such sum as may be found due from the defendants be passed in favour of the plaintiff.

2. It was not denied that the defendants were in the employment of Dhyan Pal Singh till 1923 and that their services were retained after the death of Dhyan Pal Singh by the present plaintiff. It was however pleaded that the agency which was in existence in the lifetime of Dhyan Pal Singh terminated on his death and that a fresh agency began with the employment of the defendants by the plaintiff. This aspect of the matter has an important bearing on the question of limitation which will be presently mentioned. It was not clearly admitted in the written statement that the defendants were entrusted with the duty of collecting rents in respect of the zamindari property belonging to the plaintiff's family. Defendant 1 was alleged to have been a mukhtar for conducting cases, but it was admitted that defendant 2 was engaged to collect rents. The defendants' case clearly was that whatever liability might arise from collections of rent being made by one or the other of the defendants, the person responsible was defendant 2, and that no liability attached to defendant 1. It was alleged by the defendants that so far as their liability, if any, arising in the life-time of Dhyan Pal Singh was concerned the plaintiff's suit is time-barred, the same having been brought more than three years from the date on which Dhyan Pal Singh died. As regards the collections that might have been made by the defendants after the death of Dhyan Pal Singh, it was alleged that all accounts were rendered to the plaintiff in 1924. As for the period from 1925 to 1928, it was pointed out that the accounts are admittedly with the plaintiff who has satisfied himself of the correctness of the entries therein made. The defendants complained that the plaintiff was in possession of all the account books and connected papers for the year 1921 to 1924, and that it was not possible for the defendants to render any account of sums received by them during that period in the absence of account books withheld by the plaintiff.

3. On the pleadings mentioned above the lower Court struck a number of issues. It is noticeable that no issue was framed as to whether both the defendants were entrusted with the duty of collecting rent from the zamindari property belonging to the family. The reason probably was that defendant 1 was examined as a party in the initial stages of the case and certain admissions were elicited from him which made it unnecessary to frame an issue on that point. It is a curious feature of the case that neither party led any oral evidence. Each alleged that the onus lay on the other. The learned Subordinate Judge found with reference to the contents of the written statement and the statement of defendant 1 in pleadings that defendant 1 was the principal agent and that at his request defendant 2 was associated with him in the collection of rent from the zamindari property belonging to the plaintiff. We have been taken through the written statement and the statement of defendant 1, to which reference has already been made, and are satisfied that defendant 1 particularly admitted the plaintiff's case on this point. It is clear from a perusal of the pleadings that originally defendant 1 half-heartedly denied that he had anything to do with the collection of rent, but was subsequently forced to admit being confronted with certain documents, that he was entrusted with the duty of collecting rent, and that defendant 2 was associated with him in that work. On this finding the learned Subordinate Judge was in our view justified in passing a preliminary decree directing the defendants to render an account of what they received in course of their employment as agents on behalf of the plaintiff's family.

4. The learned advocate for the appellants strongly urged that the lower Court should have adjudicated on the question raised by the written statement, namely, that the documents for the year 1921 to 1924, and other papers were in possession of the plaintiff, who was deliberately suppressing them, and that if the finding of the Court were in favour of the defendants, no preliminary decree could be passed. We do not think that this contention is well founded. Since, the liability of the defendants to render account arises from the facts admitted in the pleadings, a preliminary decree should be passed directing that an account be taken from the defendants. In rendering account it is open to the defendants to establish their allegation that certain material account books and papers are in possession of the plaintiff who is deliberately withholding them. If their allegation is proved, the Court will doubtless draw proper inferences from the plain, tiff's conduct. The fact that the plaintiff is in possession of certain documents and is withholding them cannot have the effect of relieving the defendants of their liability to render account if they are otherwise liable. Our view is supported by Ram Dass v. Bhagwat Dass (1905) 1 A.L.J. 347, in which it was held that:

the law does not impose any duty upon a plaintiff, who calls on his agent to account, first to satisfy the Court that there is or ought reasonably to have been some surplus in the hands of the agent. It is the duty of the Court to fix a date foe the furnishing of the accounts. The plaintiff has only to show that the defendant is an accounting party, and then it is for the defendant to prove the amount of his receipts.

5. In this view we are of opinion that the lower Court was justified in passing a preliminary decree. As regards the defendants' plea of limitation that the plaintiff's claim for rendition of accounts in respect of the years 1921 to 1923 is barred by limitation, we are of opinion that it has no force. The plea rests on the assumption that there were two successive contracts of agency, the first being entered into between Dhyan Pal Singh and the defendants, and the second by the present plaintiff and the defendants. It is argued that so far as the first contract is concerned it terminated on the death of Dhyan Pal Singh. Reference is made in this connexion to Section 201, Contract Act. The obvious fallacy on which this contention rests lies in the assumption that the contract was entered into by Dhyan Pal Singh as an individual.

6. It is not disputed that the property which was managed by the defendants belonged to the joint family and that the sums which they received were due not to Dhyan Pal Singh alone, but to the entire joint family, of which he was the karta. Dhyan Pal Singh retained the 'services of the defendants not on his own behalf personally, but on behalf of the (family of which he was the karta. After the death of Dhyan Pal Singh the present plaintiff continued the services of the defendants who were not the agents of the plaintiff personally, but of the family of which the plaintiff became the karta on the death of his father. It was faintly suggested that a joint Hindu family can-loot be considered to be a legal entity for all contractual purposes. We do not think that this argument has any force. A joint Hindu family has always been treated as a juristic person on whose behalf contracts can be entered into and enforced. Section 182, Contract Act, defines the terms 'agent' and 'principal';

An 'agent' is a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done or who is so represented, is called the 'principal.'

7. The word 'person' is defined in the General Clauses Act. Section 3(39), as including 'any company or association or body of individuals whether incorporated or not.' We have no doubt that the word person used in Section 182 and other cognate sections of the Contract Act, includes a joint Hindu family In this view the defendants were agents not of Dhyan Pal Singh or of the plaintiff acting individually but of the joint Hindu family of which they were successively the managers, and that the defendant's employment did not terminate with the death of Dhyan Pal Singh and again commence when the plaintiff took over; charge of the family business. For the purposes of limitation the agency began' in 1921 when the defendants were first employed, and terminated in 1928, when they were dismissed. The suit is admittedly within time if limitation is counted from 1928. Another contention put forward on behalf of the appellants is that the account for 1924 was submitted to the plaintiff who examined it and satisfied himself of the correctness of the same. It is said that in token of his approval of the manner in which the defendants had disbursed the sums received by them on behalf of the plaintiff's family the latter noted 'seen.' The plaintiff alleged in his plaint that he was an inexperienced; youth and that defendant 1 taking advantage of his inexperience persuaded him to write the word 'seen' on the accounts for 1921. As already stated neither party led any oral evidence on any of the questions arising in the case. In the absence of evidence as regards the circumstances; in which the plaintiff noted the word 'seen' on the account book for 1924, we are unable to hold that the defendants rendered satisfactory account of the sum] received by him up to 1924 when the plaintiff wrote the word 'seen' on the' account book. The mere fact that the plaintiff wrote 'seen' on the account book does not imply that the defendants had rendered account up to that time and the plaintiff had satisfied himself of the correctness of the entries in the book which he bad seen, It was the duty of the defendants to have given at least their own evidence to prove what had happened on the occasion in question. For these reasons we agree with the lower Court that the defendants failed to establish that they rendered an account to the plaintiff in 1924 for that year or any of the years preceding it.

8. One of the reliefs claimed by the plaintiff was for recovery of certain receipts counterfoils and other documents, para. 13(b). The learned Subordinate Judge held in answering issue 5 that there was no evidence that the defendants were in possession of the documents claimed by the plaintiff. The learned Judge however expressed the opinion that as the defendants were liable to render account it does not matter to the plaintiff that the defendants were in possession of the documents claimed by him. It is not clear whether the learned Subordinate Judge intended to refuse the relief mentioned in para. 13(b) of the plaint. The decree appealed from has not however granted that relief which should therefore be considered to have been refused. We agree with the learned Subordinate Judge that the question is not of first rate importance having regard to the principal relief which is claimed by the plaintiff, namely, rendition of accounts, by the defendants. The learned Counsel for the plaintiff-respondent has stated before us that if the defendants render account of what they received during the years in suit they would not insist on the physical handing over of the account books to the plaintiff.

9. The result of our findings is that this appeal fails and is dismissed with costs.


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