1. This was a suit originally instituted to recover the value of ornaments alleged to be worth Rs. 5,993 and to recover Rs. 6,007 which was alleged to have been taken out of Court by the defendants, on the ground that they were accountable in both these respects to the plaintiff.
2. The learned Subordinate Judge dismissed the suit and when this matter came up in argument in first appeal, it became so apparent that complete justice could not be done between the parties if the claim was limited in the manner in which the plaintiff by his plaint had limited it. We, therefore, sent the matter down to the lower Court to consider particularly the state of account in respect of certain zamindari property. It was alleged that a lady, Mt. Chandrowal, the mother of Narsingh Das, owned zamindari property, and that for a period of some eight years, from 1908 to 1916, that zamindari property had been managed by the defendants. The findings have been returned to us and in this Court even wider arguments have taken place on both sides, and in the result we have had, upon very scanty material, to go into the whole of the transactions between these parties to arrive at the best and fairest decision we can.
3. The first difficulty that we have been mot with is this: On 15th February 1922 Mt. Chandrawal was examined on commission and had on that day concluded her examination-in-chief and had been under cross-examination for a considerable period. Her cross-examination, we are told, occupied some seven pages of print. By that time 9 O'clock in the evening had arrived, and not unnaturally the parties wished to separate. Mt. Chandrawal was not well at that moment. There arose a discussion as to when next her cross-examination should be continued, and whilst the pleader for Narsingh Das was willing for the lady to be examined on the next or any of 3 or 4 subsequent days, the pleader for the defendants had other engagements and the matter was left open. In that state of affairs Mt. Chandrawal died on 19th February 1922,-it is said she died of plague. The plaintiff naturally wished that evidence to be used in the lower Court and here. It was excluded in the lower Court and we have been obliged to exclude it here, being guided by the decision which is reported in Coomar Sattya Sankar Ghosal v. Ranee Golapmonee Debee  5 C.W.N. 230 (Notes) and on a consideration of the terms of Section 33, Evidence Act, and we have had to decide that the evidence cannot be received because the evidence was not concluded. That is to say although her examination-in-chief was concluded, it was open to the defendants to argue that a subsequent cross-examination would have destroyed to a great extent the effect of the evidence-in-chief, and therefore, one could not take an incomplete deposition of the lady and pay any attention to it. We have no doubt that argument put forward by the defendants was a good argument, and we did decide to exclude her incomplete statement, and it has not been presented to us.
4. That however, has not diminished the difficulties in the case, because it is probable that the lady might have, in evidence, given an account of the value, for instance, of certain jewels which undoubtedly passed into the hands of the defendants. She might also have given some evidence in the defendants' favour in relation to a large item claimed for puja expenses, and indeed on every issue that has been raised in this appeal, the lady must have given evidence of one character or the other. There was an instance when a deposition of Mt. Chandrawal, which had been made in 1908, was accepted by the lower Court, and it has been urged upon us that we should accept it here. We have, however, felt unable to accept that deposition for the reason that it was not a deposition tendered to the Court at a time when the deponent was dead. The way in which it was used was that the deposition had been put to the lady in cross-examination, and she was invited to say whether in the year 1908, she had not given that evidence before a Court. The position might have been different if after the 19th February 1922 the defendants had urged the Court to receive the deposition, and the Court then had examined who were the parties to the litigation of 1908. We are of opinion that deposition ought to be excluded on another ground because the parties to the litigation of 1908 were not the same parties in the subsequent proceedings then before the Court, namely the suit of Narsingh Das and Gokul Prasad. The 1908 matter was a partition suit. Therefore in our opinion even if the application had been made after the death of Mt. Chandrawal, that deposition should not have been permitted to come upon the record.
5. The simpler way in our opinion to treat this matter, which like all questions of account has been discussed to and fro. is to turn to the account at pp. 10 and 11 of the record. On the left hand side there is an item entitled Court Rs. 6,007' That is an amount which the defendants admit they must pay. (The judgment then discussed the several items and concluded that the total credit was Rs. 12,256 and the total deduction was Rs. 6,867-13-9. It then proceeded.) Deducting these figures from Rs. 12,256 we get a balance in favour of the plaintiff of Rs. 5,388-2-3.
6. Both sides have raised the question of interest but they are agreed that it would be a calculation in effect almost impossible. This Court would have to say what wore the respective sums due at stated intervals and the task would occupy an enormous amount of time, and having regard to the fact that the defendants did have in their hands a sum of Rs. 6,007 from an early date, the result would have been in our opinion more or less evenly balanced. At all events in trying to do what is substantially right in the adjustment of accounts between those parties, we are of opinion that a decree for Rs. 5,388-2-3 in favour of the plaintiff will as nearly as possible meet the case. That decree, however, must be a decree against the joint family property of the joint Hindu family, consisting now of Gokul Prasad and his minor son Bindbasni Prasad. We, therefore, reverse the decision of the learned Sub. Judge and give to each side proportionate costs according to success and failure in all Courts.