1. This is an appeal by defendant 1 against a decree of the learned Additional Civil Judge of Agra in a suit for accounts.
2. Mauza Itaura lies in the district of Agra, not very far from it. It is divided into four Mahals, Mahals Shyam Lal, Dindayal, Panna Lal and Moti Lal. On the death of Shyam Lal in 1909, his son, Prag Narain, the plaintiff, succeeded. In 1927 he also purchased Mahal Dindayal. In 1900 Ram Swarup, the appellant, was married in Itaura and took up his abode there. He entered service of Shyam Lal either in that very year or soon after as his agent. The present suit was instituted on 11-12-1937. The plaint is prolix document of portentous length, but, stripped of unnecessary details, the story unfolded by it is this: Defendant 1, Ram Swarup, and subsequently, defendant 2, his son, Chandrahans, were found to realise all the income in the best way possible and manage the property with the utmost economy and to the best advantage of the plaintiff. The plaintiff's father and, after him, the plaintiff reposed full confidence in the defendant, but they abused it and obtained their signatures on the accounts draw up by them but no accounts were properly rendered or understood. On these allegations the plaintiff prayed:
that the defendants be ordered to render true and proper accounts from 1308 to 1342 Fasli about the realisation, income and expenditure of Mauza Itaura, Mahals Shyam Lal and Dr. Dindayal, or in the alternative if the defendants rely on so called accounts the same may be re-opened and the defendants be ordered to render true and proper accounts for the above mentioned period.
3. The defence was a denial of these allegations and a definite plea that there was no fraud, that the accounts were true and correct and that:
(a) the plaintiff has signed the copies of those accounts,
(b)is estopped from questioning the correctness of the copies of the accounts and
(c)defendant 1 used to annually account for the amounts realisable by and due to the plaintiff and if there were arrears he used to realise them himself.
4. It was also pleaded that defendant 2, who was a son of defendant 1, had nothing to do with the matter.
5. The learned Additional Civil Judge exempted defendant 2 from the suit. He found that the agency commenced from 1910 and directed the accounts to be re-opened from 11-8-1910 upto the end of 1342 fasli. The defendant, Ram Swarup, has come to this Court in appeal.
6. Before going into details, it is necessary to bear in mind certain salient features of this case. The plaintiff, Prag Narain, who died during the pendency of the suit and is now represented by his sons and grandsons, was, on his own showing, one of the leading lawyers of Agra. The defendant, it was admitted by Prag Narain himself, was illiterate. The plaint clearly shows that the terms of agency were never settled. There is nothing to indicate that Ram Swarup was to get any salary. On the other hand there was, as is manifest from the materials on the record, a rough and ready sort of adjustment of accounts.
7. It is also clear that whatever the attempt to submerge the truth in a plaint of unnecessary details and inordinate length, the fact remains that there was a settlement of account and the present is an attempt to re-open it for a period of well-nigh thirty-four years. This the plaintiff could not do without laying the necessary foundation. The law on the subject was laid down so far back as the year 1877 in the leading case in Williamson v. Barbour (1881) 9 Ch. D. 529. Sir George Jessel, the Master of the Rolls, observed as follows:
Where you show a single fraudulent entry in the case of persons occupying the position of principal and agent, or trustee and cestui quo trust, the Court has actually opened an account extending over a greater number of years and closed for a much longer period than the account I have before me, I mean in the case of (1850) 12 Beav. 292 before Lord Cottenham. We therefore have this as a sort of guide without laying down any general rule, because every case must depend on its own circumstances, that where the accounts have been shewn to be erroneous to a considerable extent both in amount and in the number of items, or where fiduciary relations exist and a less considerable number of errors are shown, or where the fiduciary relation exists and one or more fraudulent omissions or insertions in the account are shown, there the Court opens the account and does not merely surcharge and falsify.
8. This was followed in Puran Mal v. Ford & Mac Donald & Co 6 A.I.R. 1919 All. 440 and Bhagwan Bakhsh Singh v. Joshi Damodarji 6 A.I.R. 1919 All. 1.
9. The plaintiff must show (a) error in the accounts to a considerable extent both in amount and in the number of items, but where exists a fiduciary relationship between the parties, (b) a less considerable number of errors and one or more fraudulent omissions or insertions in the account.
10. It must also be borne in mind that it was his duty, as laid, down by Lord Westbury in Parkinson v. Henbury (1865-67) 2 H.L.C. 1, to specify instances for opening the entire accounts.
11. It is necessary also to bear in mind that there is no absolute standard of fiduciary relationship. It assumes protean shapes and myriad forms. There is always a degree of difference in the confidence reposed by one party in another. Section 11, Evidence Act, merely speaks of the burden of proof, but makes no attempt at a definition of active confidence'. In In re Coomber (1911) 1 Ch. 729 Moulton L.J., says:
Fiduciary relationships are of many types; they extend from the relation of myself to an errand boy who is bound to bring me back my change, up to the most intimate and confidential relations which can possibly exist between one party and another, where the one is wholly in the hands of the other because of infinite trust in him.
In the case of relationship, for instance, of a son and a father, a husband and a wife, or in the extreme case, of a pardanashin woman so peculiar to this country, the confidence is implicit. There may be cases where a principal reposes equally implicit confidence in an agent, but the present does not appear to be one such. On the one side, the principal was a shrewd lawyer with, on his own showing, an extensive practice. On the other side, is an illiterate agent between whom and his master no terms of agency were settled and who was to get no fixed salary.
12. It is an equally well established principle of law that equity does not step in to grant a [relief in cases of 'folly, imprudence, or want of foresight' but only in cases of 'victimisation.' In the well-known case in Allcard v. Skinner (1887) 36 Ch. D. 145 at p. 182 Lindley L.J., explained the principle thus:
The principle must be examined. What then is the principle? Is it that it is right and expedient to save persons from the consequences of their own folly or is it that it is right and expedient to save them from being victimised by other people? In my opinion the doctrine of undue influence is founded upon the second of these two principles. Courts of Equity have never set aside gifts on the ground of the folly, imprudence, or want of foresight on the part of donors. The Courts have always repudiated any such jurisdiction. It would obviously be to encourage folly, recklessness, extravagance and vice if persons could get back property which they foolishly made away with.... On the other hand, to protect people from being forced, tricked' or misled in any way by others into parting with their property is one of the most legitimate objects of all laws.
13. We have, therefore, to see whether the plaintiff succeeded in proving that the situation in which he found himself on the date of the suit was a result of his own lack of foresight or imprudence or that he was victimised by defendant 1.
14. The procedure adopted in the case hardly redounds to the credit of the party concerned. The suit was instituted on 11-12-1937. The written statement was filed on 4-2-1938, but the evidence of the witnesses was not started before 1-5-1940, and the judgment was not delivered till 30-1-1942. It appears that the original plaintiff Prag Narain, died after the institution of the suit and his sons and grandsons were brought on the record by an order of 14-9-1938. Karamendra Narain was a minor and was brought on the record under the guardianship of his brother, Pratab Narain. There was a reference to arbitration, without an express order of the Court under Order 32, Rule 7, Civil P.C., so far as Karamendra Narain was concerned. The arbitrator returned an award on 7-11-1989. Karamendra, Narain attained majority soon after and applied for setting it aside on the ground of want of the permission of the Court. It was set aside by an order of 6-4-1940. It is true that he was entitled to have the award set aside on the legal plea, but it is not difficult to see why this course was adopted. There was, after all, no conflict of interest between him and his brothers. This interval between the date of the reference and the date of the award was utilised to fill up the gaps in evidence. Several paragraphs in the plaint charged the defendant with either not showing the correct amount realised from the tenant or not making proper realisations. Suits were brought in the revenue Courts during this interval and the decrees in those suits have largely formed the basis of the findings of the learned Additional Civil Judge.
15. We now come to the evidence on the question of the settlement of account, which, as said above, appears to be of rough and ready character. It consists of a number of transactions ranging from the year 1915 to 1936 and is almost one-sided in character. To notice a few, the defendant filed two registers of accounts Ex. A-2 and Ex. A-55. The latter is for a period from December 1915 to 1924 and the former for a period from September 1926 to 24-4-1936. It also contains accounts upto the end of 1342 Fasli, but somehow it does not contain any account for a period from 1-7-1935 to 24-4-1936.
16. Exhibit A-2 is not printed on the paper-book. There is a note that it was not printed under the order of the Editor, dated 10-1-1945, 'for want of expert.' The learned Additional Civil Judge has, however, referred to it in these terms:
In register Ex. A-2 we find the signatures of Babu Prag Narain on several pages. At p. 7 of this register we find an entry in the handwriting of Babu Prag Narain to the effect that account upto this place is cleared. It is dated 30th October 1927. Above this entry there are several entries showing that Babu Prag Narain made certain calculations on this page to examine the accounts. At p. 61 there is an entry to the effect that the account is cleared even by annas and pies upto the end of 1342 Fasli. This entry is signed by Babu Prag Narain. It is admitted this entry was made, on 24th April 1936. Above this entry there are certain other entries and all these entries are in the handwriting of Babu Shiv Narain, son of Babu Prag Narain.
17. The above shows that there has been a complete settlement of accounts for a period beginning with September 1926 and ending with 24-4-1936. Along with this may also be mentioned the statement of B. Prag Narain made by him before the Assistant Collector, First Class, on 3-8-1937, in the suit for ejectment which he had brought against the present defendant. He had to admit that the accounts bore his signature. Exhibit A-55, which covers a period from December 1915 to 1924, is printed from pp. 368 to 371. The learned Additional Civil Judge has dismissed it on the finding that:
It is written in a very irregular manner and it is very difficult to prepare any accounts on its basis.
18. There were some accounts placed before the Court. The burden of proof rested on Prag Narain or, if the fate of the case is not to be determined by abstract questions of burden of proof, on Ram Swarup. Prag Narain was dead. Ram Swarup is about ninety years of age, is ill and unable to come into the witness box. In any event, for the present plaintiffs to obtain a decree it was necessary that they should explain to the Court how the accounts were signed by Prag Narain and why they were not bound by them.
19. On these materials there was no escape from the conclusion that the accounts had been settled and the learned Additional Civil Judge was right in his finding that 'this evidence on record shows that there has been accounting between Babu Prag Narain and defendant 1.' He has, however, re-opened the acetrant largely as a result of the decrees passed in suits for ejectment brought during the pendency of the suit under Section 44, Agra Tenancy Act. According to those decrees Ram Swarup either realised or should have realised more than what he actually did. We are of opinion that this was hardly a proper procedure. The terms of the agency, as already mentioned, had not been settled. Ram Swarup, as also mentioned, was not to get any salary. It is difficult to believe that Babu Prag Narain signed papers or made endorsements such as the one he had made on 29-9-1926, to the effect that he had understood the full account or such as he made in 1936 almost on the same lines, without applying his mind to those accounts and without full careful scrutiny. Placing the most favourable construction on these papers and the most charitable interpretation on his conduct, it is, at the very outside, a case of 'lack of foresight' and certainly not one of victimisation.
20. What appears to be a fact is that as there was no salary fixed, Ram Swarup used to pay a sufficient percentage of the profits to his master, which the latter accepted in full satisfaction of his claim. This state of affairs continued till a time came when the relations between the master and the servant did not remain happy, either because the master suspected that the servant made more profits and retained more in his hands than he should have, or for some other undisclosed reason. It is only when the relations between them grew strained that the present suit was brought and an attempt made to rake up the past history. This the plaintiffs are not entitled to do and this the learned Judge should not have allowed them to do. Defendant 2, Chandrahans, went into the witness box and was cross-examined at an inordinate length. His statement began-on 30-4-1941, and concluded on 12-8-1941, a remarkably long period which nobody has been able to explain. He was cross-examined for thirteen-days and the cross-examination covers thirty-two pages of the paper-book. He has not been shaken in any material particular. At p. 59 of the paper book he distinctly says that:
Babu Prag Narain himself realised rents in some years to see what rent was paid by which tenant and to know the actual state of affairs.
This is not an overdrawn picture, but support is lent to it by the evidence of one of the plaintiff's own witness, Chhote Lal, the Patwari, who says that B. Prag Narain himself used to visit the village in question frequently. To use his own words:
Babu Prag Narain visited the garden whenever he found leisure. I cannot say whether he visited the garden ten times in a year or fifty times in a year. Babu Prag Narain also looked after the rose cultivation in Itaura.
21. On a consideration of all the facts we have come to the conclusion that this was not a case in which the accounts should have been allowed to be re-opened, more particularly having regard to the long lapse of time after which the suit has been instituted : Chappedelaine v. Dechenaux 2 L. Ed. 629, Horan v. Long 11 Tex. 230 andPratt v. Weyman 1 S.C. Eq. (Mc. Cord) 89.
22. We, therefore, allow the appeal, set aside the decree of the Court below and dismiss the plaintiffs' suit with costs.