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Jagir Singh Vs. Dheru and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 55 of 1953
Judge
Reported inAIR1958P& H487
ActsLimitation Act, 1908 - Sections 2 - Schedule - Articles 89 and 120; Code of Civil Procedure (CPC) , 1908 - Sections
AppellantJagir Singh
RespondentDheru and ors.
Appellant Advocate K.C. Nayar and; Harkishanlal Jandal, Advs.
Respondent Advocate H.R. Sodhi, Adv.
DispositionAppeal dismissed
Cases Referred(N) and Lal Singh v. Jiwan Ram
Excerpt:
.....was faintly suggested on the authority of the case in 16 ind cas 742 (cal) (e), that as legal representatives are not mentioned in article 89, that article can have no application to a suit like the-present. that in my view is distinctly overruled by the case in arunachelam chetty v. the plea taken up by the defendants was that the accounts were demanded and refused by the agent during the pendency of the agency and, therefore, the suit was barred under article 89. the plea was rejected on the ground that refusal of an agent to render accounts mentioned in article 89 must be an express refusal on a definite date and not merely a virtual refusal to be inferred from the omission or failure on his part to fulfil a promise made by him to render the account to the principal, in..........on behalf of the appellant in his absence.the appellant asked dheru and others, respondents, the legal representatives of nathu, to render accounts and to deliver the documents relating to his property. this having been refused the present suit for the said purpose was instituted against the legal-representatives on 1-5-1951. a preliminary objection with regard to limitation was raised by the defendants.it was contended that the suit was governed by article 89, limitation act and the same having been instituted more than three years after nathu's, death, when the agency terminated, was barred by time. the trial court decided the issue against the defendants, holding that the suit was governed by article 120, and passed a preliminary decree in favour of the plaintiff. on appeal by the.....
Judgment:

G.L. Chopra, J.

1. The only point involved in this Letters Patent Appeal is one of limitation. The facts which are not disputed before us are these:

2. Jagir Singh appellant appointed one Nathn his 'mukhtar-i-am' (general attorney), on 15-10-1937. Leaving Nathu to manage his affairs and look after his property in India, Jagir Singh appellant proceeded to Singapore in 1937. He returned from there in January 1951. Nathu, his attorney, had died on 25-5-1945, without rendering accounts for the moneys realised by him on behalf of the appellant in his absence.

The appellant asked Dheru and others, respondents, the legal representatives of Nathu, to render accounts and to deliver the documents relating to his property. This having been refused the present suit for the said purpose was instituted against the legal-representatives on 1-5-1951. A preliminary objection with regard to limitation was raised by the defendants.

It was contended that the suit was governed by Article 89, Limitation Act and the same having been instituted more than three years after Nathu's, death, when the agency terminated, was barred by time. The trial Court decided the issue against the defendants, holding that the suit was governed by Article 120, and passed a preliminary decree in favour of the plaintiff. On appeal by the defendants, the District Judge agreed with the finding that Article 120 applied and that the suit was within time.

However, the preliminary decree was set aside on some other grounds and the case remanded for fresh decision after framing of further issues on merits. The defendants preferred a second appeal which was heard and accepted by a learned Single Judge of this Court. The learned Judge is of the view that the suit, though not brought against the agent but against his legal-representatives, is covered by Article 89 and having been instituted more than three years after the termination of the agency on the agent's death was barred by time. This is an appeal by the plaintiff under the Letters Patent.

3. The only question that has to be determined is whether the case is governed by Article 89 of Schedule I of the Limitation Act. If it is, the suit would certainly be barred by time; for the limitation of three years under the Article began to run on the death of Nathu on 25-5-1945, when the agency terminated. On the other hand, if the Article does not apply, the suit would be governed by the residuary rule of limitation of six years under Article 120 and would be well within time. Article 89 of the Limitation Act says--

Descriptionof suit.

Period of Limitation.

Time fromwhich period begins to run.

By a principal against his agent for moveable property received by the latter andnot accounted for.

Three years.

When the accountis, during the continuance of the agency demanded and refusedor, where no such-demand is made, when the agency terminates.

The present is certainly a suit by a principal for moveable property received by the agent and not accounted for. By virtue of the provisions of Section 201, Contract Act, the agency terminated on the death of the agent and that gave rise to a cause of action to the plaintiff and would be the starting point of limitation under the Article. The only point that remains to be seen is whether the present suit by the principal can be regarded as one 'against his agent'.

4. According to the appellant the term 'agent' used in the Article does not include legal-representatives of a deceased agent and, therefore, the Article is inapplicable. The argument is that if that where the intention of the legislature, it would have been so declared in Section 2 relating to 'definitions', as it has done in the case of 'applicant', 'plaintiff', and 'defendant'.

In Section 2 (4) 'defendant' is laid down to include any person from or through whom a defendant derives his liability to be sued. Similarly, 'applicant' and 'plaintiff' are declared to include any person from or through whom he derives his right to apply or sue. To me the contention appears to be without force.

5. The explanatory definitions of the particular terms in Section 2 afford no indication that 'agent' in Article 89 was not intended to include the legal representatives of a deceased agent. Context of the provisions where the terms 'plaintiff' and 'defendant' occur shows that the explanation was absolutely necessary; otherwise the provisions would have led to absurd results.

For instance, Section 14 provides that in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting another civil proceeding shall under the specified circumstances, be excluded. The benefit is not to be denied to the plaintiff if the prior proceeding was prosecuted by a predecessor-in-interest of the plaintiff.

Under Articles 90, 91, 92, 94, 95, 96 and 114 of the First Schedule, limitation begins to run when the particular fact giving rise to the cause of action becomes known to the plaintiff. The explanation was necessary for the purpose of impressing that knowledge of that fact of the person from or through whom the plaintiff derives his right to sue would also give a start to the period of limitation. No such explanation was needed in the present case.

It is not the case of a predecessor-in-interest but is one of a successor-in-interest. The successor is generally liable to the obligations and responsibilities incurred by the person he succeeds, at least to the extent of the assets to which he has succeeded. He should, therefore, be deemed to be included in the provision with respect to his predecessor-in-interest. The definition of 'defendant' in Sub-section (4) of Section 2 rather lends support to this intention of the legislature.

6. The intention is to be judged from all the provisions of a statute taken together and anomalous results have always to be avoided. The Limitation Act does nowhere make any separate provision for a suit by or against the legal representatives of a person entitled to any right or subject to any obligation. That ought to be taken to be included in the provisions with respect to the latter, if under the law the right or obligation subsists and the suit by or against the legal representatives is competent.

To accept the appellant's contention would mean that every suit by or against the legal representative would fall under the residuary Article 120. The proposition cannot be readily accepted, Undoubtedly, a suit for accounts brought against an agent can be continued against his legal representative after his death and it would still be governed by Article 89.

Again, if an agent dies after the termination of the agency and a suit for accounts is brought against his legal representative, the limitation will be counted from the date when the agency terminated; the death of the agent will not furnish any fresh cause of action against the legal representative. There seems to be no reasons why the matters should be different when the agency terminates on the agent's death and the suit is brought against the legal representative.

7. If 'agent' in Article 89 were not to include legal representatives of a deceased agent, the Article would also have no application to a suit of the description mentioned in the Article brought by the legal representatives of a deceased 'principal'. Article 89 was held to be applicable in such a case by their Lordships of the Privy Council in Nobin Chandra Barua V. Chandra Madhab Barua, AIR 1916 PC 148 (A).

A suit for accounts brought by the legal representatives of a deceased principal was held to be governed by Article 89 and not to fall under the resi-uary Article 120 in a number of decisions of the Calcutta High Court, Mohendra Nath v. Jadu Nath, 8 Ind Cas 684 (B); Sarashibala Dasi v. Chuni Lal Ghosh, AIR 1922 Cal 53 (C); and Bikram Kishore v. Jadab Chandra, AIR 1935 Gal 817 (D). A contrary view that Article 89 is not applicable to-a suit brought not against the agent but his representatives had, however, been taken by the same Court in Kumuda Charan Bala v. Asutosh-Chattopadhyaya, 16 Ind Cas 742 (E).

The reasons for arriving at this conclusion in the case were considered in a decision of the Madras High Court in Appa Rao v. Subba RaO, AIR 1927 Mad 157 (F), and it was observed--

'It was faintly suggested on the authority of the case in 16 Ind Cas 742 (Cal) (E), that as legal representatives are not mentioned in Article 89, that article can have no application to a suit like the-present. That in my view is distinctly overruled by the case in Arunachelam Chetty v. Raman-Chotty, 27 Ind Cas 807: (AIR 1915 Mad 596) (G): and it is pointed out by Mr. Varadachariar that there are many articles which would be reduced to-absurdity if this contention were applied to them, for instance Articles 78 and 79.

The column under which these articles appear is headed 'description of suit'. To my mind the omission of any mention of legal representatives in the words under 'description of suit' docs not mean that the article is net intended to apply to a suit against the legal representatives in order to let in Article 120.'

This view was accepted as the correct view and; followed in AIR 1935 Cal 817 (D), and it was reiterated that the omission of any mention of legal representatives in the words under 'description of suit' in Article 89 does not mean that the article is not intended to apply to a suit against the legal representatives.

8. Suits by the payee or acceptor of a bill of exchange against the drawer and by surety against the principal debtor or co-surety are provided for in Articles 78, 79 and Articles 81, 82 of the 1st Schedule of the Limitation Act. Similar provisions are also made in a number of other Articles. In all these, it is difficult to believe that legal representatives of either party were not intended to be included and the suit by or against them is to be governed only by the residuary Article 120.

9. The latest decision on the point referred to at the bar is Deorao Zolba v. Laxmansingh Bania, AIR 1943 Nag 227 (II). This was a suit for accounts brought by the principal against the legal representatives of his deceased agent. The suit was instituted more than three years after the agent's death. The Courts below following the rule laid down in Girraj Singh. v. Raghubir Kun-war, ILR 31 All 429 (I), had rejected the suggestion that Article 89 was applicable. Bose J., did not find favour with this view and observed--

'That however overlooks the definition of 'defendant' given in Section 2 (4). Limitation Act, which is in these words: ''Defendant' includes any person from or through whom a defendant derives his liability to be sued'. Applying that definition here, it is clear that Article 89 would apply assuming that this is a case of agency.'

10. The decisions relied upon by Mr. K. C. Nayar, learned counsel for the appellant, have all been considered and distinguished or dissented from in most of the cases referred to above. The earlier decision of the Punjab Chief Court on the point is Chand Mal v. Kalian Mal, 96 Pun Re 1886 (J). In this case, the plaintiff sued on the allegations that one Sais Mal who was his agent and as such agent held his (plaintiff's) property for which he was accountable, died on 24-12-1880 without accounting, that the balance on that date in plaintiffs favour stood at Rs. 3,700/- and that the defendant, his son, was in possession of the property of the deceased Sais Mal.

The plaintiff also desired that an account might be taken of the amount recoverable by him and a decree be made for that amount in his favour. The suit was instituted on 14-12-1883. As regards the objection on the ground of limitation, it was held:

'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 of the 2nd Schedule of the Limitation Act, being a suit for money received by the defendant in the suit to the use of the plaintiff, the date of such receipt being certainly within three years of suit, as the money was not received by defendant till after the death of S. M. or whether Article 120 applied, in which case the suit was undoubtedly within time.'

Reference to Article 89 was also made and with respect to it Plowden J., no doubt observed that the terms of the Article show it to be inapplicable to a case where the agency is terminated by death. However, the decision did not rest on the point. The learned Judge concluded the objection regarding limitation with the observation:

'There remains the question of limitation, I think it is clear that whatever provision of the Limitation Act applies to this suit, it is not barred by time, being within three years from the date of the agent's death.'

In another case of the Punjab Chief Court, Mt. Fatma v. Mt. Imtiazi Jan, 1 Pun Re 1912 (K), also the suit for accounts against legal representatives was instituted within three years of the agent's death. The plea taken up by the defendants was that the accounts were demanded and refused by the agent during the pendency of the agency and, therefore, the suit was barred under Article 89.

The plea was rejected on the ground that refusal of an agent to render accounts mentioned in Article 89 must be an express refusal on a definite date and not merely a virtual refusal to be inferred from the omission or failure on his part to fulfil a promise made by him to render the account to the principal, in answer to a demand by the latter, and that no such refusal was proved in the case. Article 120 was found to be applicable on the basis of the decision in 96 Pun Re 1886 (J).

11. Gurudas Pyne v. Ramnarain Sahu, ILR 10 Cal 860 (L), is a case decided under the Limitation Act of 1871. The corresponding Article 90 of that Act was differently worded and the time therein ran from the date 'when the account was demanded and refused'. The Article did not contain any provision with respect to the start of limitation on the termination of the agency, in case no such demand was made.

Moreover, as already noticed, the later decisions of the Calcutta High Court have taken the contrary view that Article 89 is the appropriate Article applicable in such cases.

12. The last decision relied upon by Mr. Nayar is ILR 31 All 429 (I). This was a suit against the legal-representatives to recover the money from time to time withdrawn by the deceased agent from the chest of his principal's estate and placed in the chest of his own estate, without adjusting the same in the accounts.

Properly construed, the suit was not for accounts but one for recovery of a specified sum of money. An earlier suit brought against the agent ended in a compromise, the fresh suit against the legal-representatives was instituted because of the violation of the terms of the compromise. In view of the peculiar facts of the case, Article 120 was held to be applicable and the suggestion of the defendants that either of the Articles 57 or 62 or 89 applied was turned down.

Application of Article 89 was ruled out simply by saying, without giving any reasons, that the defendants were not and never were the agents of the plaintiff.

13. It is thus clear that none of these cases is really helpful to the appellant. On the other hand, there are a number of decisions which support my view that Article 89 applies to suits for accounts not only between the principal and the agent but also between their legal representatives.

14. Lastly, it was faintly submitted that a suit for accounts was not competent against the representatives of the agent. No such objection on behalf of the defendants was taken in any of the Courts below, it cannot be raised for the first time in this appeal. In fact, it has throughout been admitted that the present is a suit of the description given in column (1) of Article 89, except that the suit is not against the agent but against his legal representatives.

Moreover, the general trend of opinion now is that a suit for accounts will lie against the representatives of the agent with the difference that the burden of proof will be upon the plaintiff to establish the case. The plaintiff in such a case must prove that each item was actually realised by the agent and that it was not accounted for or paid to the principal. Prem Das v. Charan Das, AIR 1929 Lah 362 (M); AIR 1927 Mad 157 (F); Girja-bai v. Narayan Rao, AIR 1925 Bom 148 (N) and Lal Singh v. Jiwan Ram, AIR 1928 Nag 250 (O).

15. For all these reasons I do not see any force in this appeal and would, therefore, dismiss it with costs.

A.N. Bhandari, C.J.

16. I agree.


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