1. In this suit the plaintiff and defendant, who are brothers, and another brother as members of a joint family owned a village. In 1896 they executed a registered deed of partition, Ex. A, by which they agreed that each brother should be in management of the village for two years in turn and should settle the accounts for his management in July of each year and pay the amounts due to the other brothers. The defendant was in management under that arrangement for faslis 1326 and 1327. The plaintiff sued for what was due to him for those faslis. The defendant in his written statement claimed to set off what was due to him from the plaintiff for the plaintiff's period of management, faslis 1324 and 1325. The District Judge found that the defendant's claim for those two earlier faslis was barred, as it should be taken to be governed by Article 89 of the Limitation Act. On second appeal Mr. Justice Wallace found that the defendant's claim in respect of those two faslis was in time as it could be brought under Article 116 of the Limitation Act as well as Article 89. The present appeal is against that decision of Mr. Justice Wallace.
2. As the document, Ex. A, was a registered document and there was this contract that each brother in turn should be in charge and render accounts in July of each year and pay over what was due to the other brothers, if those terms of Ex. A were broken, as it is admitted they were broken, then either the plaintiff or the defendant could have sued for damages for breach of contract and the suit would have come under Article 116. Mr. Justice Wallace is of opinion that the suit and the defendant's claim were of that nature. But, if we examine the plaint in this case, we find that the plaintiff was clearly not suing for compensation for breach of contract. He sued for an account and put in an approximate account, stating approximately what he thought was due as it was necessary under the Code of Civil Procedure that he should put in some such statement. The defendant in his written statement said, 'the plaintiff is bound to render accounts to this defendant relating to his (plaintiff's) management for faslis 1324 and 1325 when he had the management and pay to this defendant the proportionate amount found due under the same,' and he put in an account. I think it is perfectly clear that, whatever kind of suit the plaintiff and the defendant might have brought, the suit which the plaintiff brought and the reply which the defendant gave were both claims for an account and nothing else. With great respect it appears to me that Wallace, J., has not noticed exactly what the prayers of the parties were.
3. It has been decided that, when by an oral agreement one tenant-in-common is left in possession as the agent of the other tenants-in-common, if one of them sues him for an account, the article applicable is Article 89 of the Limitation Act. A Full Bench of this Court expressed that opinion in Yerukola v. Yerukola I.L.R. (1922) M. 648 : 42 M.L.J. 507; and the Privy Council decided that that was the right article in Asghar AH Khan v. Khirshed Ali Khan . Again, when the High Court of Calcutta applied that article to such a case in Chandra Madhab Barua v. Nobin Chandra Barua I.L.R. (1912) C 108 that was approved by their Lordships of the Privy Council in Nobin Chandra Barua v. Chandra Madhab Barua I.L.R. (1912) C 108. There is also another statement of the Privy Council, obiter dictum, to the same effect in Marla Venkanna v. Merla Agasthiah (1922) 27 C.W.N. 725 (P.C.). It has also been decided that, when an agent agrees to submit yearly accounts to his principal, Article 89 is the article which applies to a suit for an account brought by the principal. Madhusudan Sen v. Rakhal Chandra Das Basak I.L.R. (1915) C. 248 and Bhabatarini v. Sheikh Bahadur (1919) 30 C.L.J. 90 are to that effect. Even if the agent's agreement to submit yearly accounts is a registered agreement, there is the opinion of the Chief Justice Maclean obiter in Hafezuddin Mandal v. Jadu Nath Saha I.L.R. (1908) C 298 that the article applicable is Article 89.
4. But for the defendant it has been contended before us that, when a principal sues his agent for an account, he sues for money which he hopes to obtain as the result of the accounting. As a matter of human nature no doubt that proposition is. true. Very few people, one may imagine, bring suits for accounts before the Courts and hope to get nothing out of them. The Privy Council in Rahimbhoy Habibbhoy v. C.A. Turner I.L.R. (1916) C. 1 : 31 M.L.J. 886 (P.C.) has stated that a decree for the taking of an account implies that, if a balance is due from the defendant, he must pay it. So far the contention of the defendant is no doubt sound. Then it is further contended by Mr. Viswanatha Aiyar for the defendant that in such cases, if money is found due on the agent's account being taken, it is really due because the agent has broken his contract to account, and, if anything is recovered in such a suit from the agent, it must be regarded as compensation for breach of contract, and, if the agent's agreement is registered, then Article 116 of the Limitation Act applies. He has pointed out that money recovered by suit as due on a registered bond or due as rent under a registered counterpart of a lease must now be treated by us as money recovered as compensation for breach of contract under Article 116 of the Limitation Act in accordance with the opinion of the Privy Council in Tricomdas Cooverji Bhoja v. Gopinath Jiu Thakur . That is so. But is a suit for an account a suit for compensation in that sense? It has been decided in some cases that it is a suit for compensation in that sense. That is the effect of Matt Lal Bose v. Amin Chand Chattopadhay (1902) 1 C.L.J. 211, Easin Sarkar v. Barada Kishore Acharya Chowdhry (1909) 11 C.L.J. 43 Jogesh Chandra alias Dhalu Ghose v. Benode Lal Roy (1909) 14 C.W.N. 122 and Bhagirath v. Prem Chand (1912) 17 C.L.J. 201. On the other side there is the decision in Bhabatarini v. Sheikh Bahadur (1919) 30 C.L.J. 90 that a suit for an account and for money due on taking the account is not a suit for compensation for breach of contract. But, in my opinion, Mr. Rajah Aiyar for the plaintiff in this case is right in his contention that we are not at liberty to say that a suit for an account is a suit for compensation for breach of contract even in the sense in which 'compensation for bench of contract' has been used in the cases recognised as correct by the Privy Council in Tricomdas Cooverji Bhoja v. Gopinath Jiu Thakur (1916) L.R. 44 T.A. 65 : I.L.R. 44 C. 759 : 32 M.L.J. 357 (PC). In Hurrinath Rai v. Krishna Kumar Bakshi their Lordships of the Privy Council themselves made a statement, which shows that a suit by a principal against his agent for an account is something different altogether from a suit for compensation for breach of contract, because in a suit for an account the defendant can claim a decree, if the accounting turns out to be in his favour, and that could never happen in a suit merely for compensation for breach of contract. The words actually used in that case by their Lordships of the Privy Council are:
Nothing could prevent the defendant in a suit framed like this from claiming the benefit of an account if in his favour, just as the plaintiff claims it if a larger sum than he specifies should be found due to him.
5. There we have an essential difference between a suit for an account and a suit for compensation for breach of contract. As was pointed out by Trevelyan, J., in Kunjo Behary Singh v. Madhub Chandra Ghose I.L.R. (1896) C. 884, a suit for an account is not a suit for a definite sum of money but for ordering the defendant to account to the plaintiff for monies received by him and the first result is that the plaintiff gets a decree for discovery. That an agent when sued as defendant for an account can get a decree for the balance of the account, if anything is found due to him, even though he has not claimed it in his pleadings, was decided in Parmanand v. Jagat Narain (1910) T.L.R. 32 A 525 which was approved in a later decision of the same Court, Ram Charan v. Bulaqi (1924) 22 A.L.J. 783. It is true, as Mr., Viswanatha Aiyar has pointed out, that in Narasimha Rao v. Zamindar of Tiruvur I.L.R. (1919) M. 873 : 37 M.L.J. 193 Mr. Justice Phillips dissented from that view and was of the opinion that a defendant-agent in such a suit could not get the balance by decree if a balance was found due to him. But it appears that Hurrinath Rai v. Krishna Kumar Bakshi (1886) L.R. 13 LA. 123 : I.L.R. 14 C 147 (PC) was not quoted to the learned Judge in that case, and, as has just been pointed out by Mr. Rajah Aiyar, in Ramalinga Chetti v. Ragunatha Rao I.L.R. (1897) M. 418 it is recognised as the law and practice in England--and there is no reason to suppose that the practice in this country should be different--that a defendant-agent in a suit for an account can recover the balance, if on the accounting a balance is found to be due to him. I must accede to Mr. Rajah Aiyar's contention that a suit for an account is not a suit for compensation for breach of contract. It appears to me to be a suit of an entirely different nature and may have results impossible in a suit for compensation for breach of contract. I may remark that, if such a suit were really a suit for compensation for breach of contract, then all the decisions which I have mentioned that a suit for an account against an agent falls within Article 89 of the Limitation Act would be unjustifiable, and it should be remembered that those decisions include two of the Privy Council. A suit for compensation for breach of contract may oossibly come within some other article of the Limitation Act than Article 115 or Article 116. But how could it ever come within Article 89? The very wording of Article 89 precludes that. Article 89 runs 'by a principal against his agent for moveable property received by the letter and not accounted for.' Is it possible, using English language with any approach to accuracy or even sense, to sneak of compensation for breach of contract as moveable property received by the agent for his princinal? Money received by the agent for the principal is moveable property, as was declared in Asghar Ali Khan v. Khurshed Ali Khan . There is no difficulty about that. But to my mind it is beyond all reason to suggest that a suit for compensation for breach of contract comes within Article 89 of the Limitation Act. As the Privy Council has definitely decided that a suit against an agent for an account comes within Article 89 of the Limitation Act, that is alone sufficient to show that, when the plaintiff sued for an account in this case and when the defendant asked for an account, it was Article 89 which was applicable and not Article 116. Both parties might have sued, if they had chosen, for compensation for breach of contract and have brought themselves under Article 116; but it happens that they have chosen to sue for accounts, and we must apply the article applicable to the relief for which they have prayed. That being so, in my opinion this appeal must be allowed and the decree of the District Judge restored with costs.
Anantakrishna Aiyar, J.
6. I agree. The only question that arises for decision in this appeal is one of limitation. As I construe the pleadings in the case, the claim put forward by the plaintiff as well as the defendant is one for an account by the principal against his agent. That is the view which both the Lower Courts also took of the pleadings in the case. If so, prima facie, Article 89 of the Limitation Act would apply to this case, and the only question then is whether Article 116 would apply because Ex. A under which the liability arises is a registered document. Both the Lower Courts held that Article 116 would not apply to such a case; but the learned Judge (Mr. Justice Wallace) held that 'there was no obstacle in law to the suit coming under Article 116 as well as under Article 89 of the Limitation Act.' The question is whether that view is correct.
7. The learned Advocate for the respondent argued that Article 116 applies to the case, for there is a contract in writing registered in the present case (Ex. A.), one party has committed breach of that contract, and the other party claims compensation for the said breach, and that the claim is therefore really for compensation for breach of a contract in writing registered. He drew our attention to the decision of the Privy Council in Tricomdas Coowerji Bhoja v. Gopinath Jiu Thakur and also to the decision of a Full Bench of this High Court in Ratnasabapathy Chettiar v. Devasigamony Pillai I.L.R. (1928) M. 105 : 56 M.L.J. 10. The Privy Council held that Article 116 applied to a suit for royalties due under a registered lease of certain lands. Reading pages 767 and 768 of the report, it is clear that their Lordships thought that they should accept the interpretation 'so often and so long put upon the statute (as to the meaning of the word 'compensation' occurring in Article 116) by the Courts in India' and that the decisions cannot now be disturbed. The Full Bench held that 'where a mortgage deed containing a personal covenant to pay the mortgage money is registered, Article 116 applies to a suit to recover the balance due to the mortgagee after the sale of the mortgage property.' In delivering the opinion of the Full Bench, Mr. Justice Kumaraswami Sastriar refers to various decisions of this and other High Courts where it was held that suits to recover money due on registered bonds, suits to recover rent due on registered lease deeds, and suits to recover amounts due in respect of covenants in registered deeds of partnership, were governed by Article 116 of the Limitation Act. No reference was, however, made to decisions dealing with Article 89 in cases where the documents creating the agency are registered. We have therefore to consider the nature of the suit contemplated by Article 89 and to see whether the same could be considered to be a 'suit for compensation for breach of a contract' within the meaning of Article 116. No doubt, we should keep in view the fact that the word compensation has been used in a wider sense in the Contract Act and in the Limitation Act. We should also remember that there is generally a distinction established by the Limitation Act in favour of registered instruments, a longer period of limitation being (generally speaking) prescribed in the case of registered instruments. We have therefore to be fully alive to the above features in construing Art 89 of the Limitation Act.
8. Article 89 speaks of
a suit by a principal against his agent for moveable property received by the latter and not accounted for; period of limitation is three years, and time runs from the time when the account is during the continuance of the agency demanded and refused, or where no such demand is made, when the agency terminates.
9. The Privy Council decided in Asghar Ali Khan v. Khurshad Ali Khan that the expression 'movable property' in Article 89 includes money. In Shib Chandra Roy v. Chandra Narain Mukerjee I.L.R. (1905) C. 719 it was held by Harrington and Mookerjee, JJ., that a suit by a principal against his agent for an account and also for recovery of money that may be found due from him is a suit for movable property received by the agent on behalf of the principal and not accounted for and is governed by Article 89. It was argued that, because the plaintiff prays that an account may be taken first, the sum due ascertained, and the amount so due be also decreed to him, the suit is therefore not one for account but for money. At page 725 Justice Mookerjee answered the objection in the following terms:
As pointed out by Sir Barnes Peacock in Kalee Kishen Paul Chowdhry v. Mussammut Juggut Tara (1868) 11 W.R. 76, when it is said that the law imposes an obligation on the agent to render an account of his agency and to account for the monies of his principal, the word 'account' is used in its legal sense and is not confined merely to rendering an account by the agent of what he has done with the monies, but also includes the payment of any balance which might be found due from him upon taking the account. This is substantially in accordance with the observations of Lord Esher in Harsant v. Blaine (1887) S6 L.J.Q.B. 511 that the duty of the accounting party is not merely to be constantly ready with his accounts, but also, if the accounts show that he has money to pay over, to be constantly ready to pay. In this view of the matter, Article 89 would cover a case of the present description, the object of which is to obtain an account of the monies in the hands of the agent as also to recover the sum due.
10. What is technically known as 'a suit for account' by a principal against his agent has been described in several cases. The agent has to be ready with his accounts, he has to explain the entries in the accounts which require explanation, he has to support the entries by vouchers in proper cases, and he has also to hand over the balance, if any, that might be found clue, to the principal. It has also been mentioned in the cases that, if it should turn out that, as a result of the taking of the accounts, some money is due to the defendant-agent then there should be a decree in favour of the defendant-agent for that amount. See Collyer v. Dudley (1823) 2 L.J.Ch. 15 : 37 E.R. 1163, Hurrinath Rai v. Krishna Kumar Bakshi (1886) L.R. 13 LA. 123 : I.L.R. 14 C. 147 (P.C.) Rahimbhoy Habibbhoy v. C.A. Turner (1890) L.R. 18 LA. 6 : I.L.R. 15 B. 155 (P.C.) and Ramalinga Chetti v. Ragunatha Rau I.L.R. (1897) M. 418. See also the following regarding the nature of a suit for account: Kunjo Behary Singh v. Madhub Chandra Ghose I.L.R. (1897) M. 418 per Trevelyan, J., Rajhunath v. Ganpatji (1823) 2 L.J.Ch. 15 : 37 E.R. 1163, Parmanand v. Jagat Narain I.L.R. (1910) A. 525 and Ram Charm v. Bulaqi (1924) 22 A.L.J. 783. See also sections 213 and 218 of the Indian Contract Act. In Hurrinath Rai v. Krishna Kumar Bakshi the plaint concluded as follows:
There is a balance against him (the defendant) of Rs. 19,925-14-0 for the recovery of which I institute this suit. If by the decision of the Court a larger sum shouldbe proved to be payable to me by him under proofs and papers, the prayer is also for the recovery of the same.
11. The High Court was of opinion that the suit was virtually one for an account, and the Privy Council agreed with that view. At page 153, their Lordships observed as follows:
Nothing could prevent the defendant in a suit framed like this from claiming the benefit of an account if in his favour, just as the plaintiff claims it if a larger sum than he specifies should be found due to him. Such a suit is essentially one for account.
12. In Rahimbhoy Habibbhoy v. C.A. Turner , the Privy Council remarked, as to the effect of a preliminary decree for an account passed in a suit for account, as follows:
It is true that the decree that was made does not declare in terms the liability of the defendant, but it directs accounts to be taken which he was contending ought not to be taken at all; and it must be held that the decree contains within itself an assertion that, if a balance is found against the defendant on these accounts, the defendant is bound to pay it.
13. The question was also considered in this Court by Sir Arthur Collins, C.J., and Shephard, J., in Ramalinga Chetti v. Ragunatha Rau I.L.R. (1910) A. 525 whether a. defendant could obtain a decree for the amount that might be found due in his favour. At page 420, the Court observed:
If it were true that the suit was a suit for an account in the proper sense of that term, then it would follow, according to the decision in Hurrinath Rai v. Krishna Kumar Bakshi , which decision illustrates the English practice, that the first defendant would be entitled to have an account taken with a view to obtain a decree for the sum that might be found due to him.
14. It is therefore clear that in a 'suit for account'--properly so-called--the defendant has to render account in the technical sense, and pay the plaintiff the amount that might be found due to him; it is also clear that in such a suit the defendant would be entitled to a decree in his favour for any amount that might be found due to him, as the result of the taking of the accounts. The opinion expressed by Phillips, J., in Narasimha Rao v. Zamindar of Tiruvur I.L.R. (1919) M. 873 : 37 M.L.J. 193 that no decree could be passed in such a suit in favour of the defendant is thus unsustainable having regard to the authorities noticed above, which authorities were evidently not cited before the learned Judge.
15. Could such a suit be called 'a suit for compensation for breach of a contract' within the meaning of Article 116? No doubt, no plaintiff, ordinarily files a suit for an account unless he also hopes to get a decree for some amount of money in his favour; but it is possible that a plaintiff in a particular case might file such a suit with a view mainly to get possession of the accounts and other papers from the agent and to have the entries explained as is done in suits for accounts: ' see Madhusuddn Sen v. Rakhal Chandra Das Basak I.L.R. (1915) C. 248. Does the circumstance, then, that, ordinarily, and in a large majority of cases, a decree for money is also prayed for in such a case by the plaintiff, who has also to pay Court-fee on the amount at which he approximately values the relief, bring the case; under Article 116? The learned Advocate for the respondent strongly relied on this aspect of the case; but, after having given my best consideration to the arguments, I feel unable to agree with him. In my opinion, 'a suit by a principal against his agent for movable property received by the latter and not accounted for' cannot be said to be 'a suit for compensation for the breach of a contract.' After the decision of the Privy Council in Tricomdas Cooverji Bhoja v. Gopinath Jiu Thatkur , a Full Bench of this High Court, consisting of Sir Murray Coutts Trotter, C.J., Krishnan and Beasley, JJ., had to consider the question whether a suit by a share-holder against a company for recovery of dividend is governed by Article 116 of the Limitation Act. After noticing the Privy Council case in Tricomdas Cooverji Bhoja v. Gopinath Jiu Thakur the learned Chief Justice observed at page 482 of Rama Seshayya v. Sri Tripurasundnri Cotton Press, Bezwada I.L.R. (1925) M. 468 : 50 M.L.J. 520 as follows:
It is difficult enough to regard that form of words as applicable to a claim for rent. It seems to me clumsy beyond anything that is legitimate to allow the claim of a share-holder for his dividend to be regarded as aptly described by 'compensation for breach of contract, express or implied'.
16. No direct decision of this Court, on the question we have to decide, has been brought to our notice. In Venkatachalam v. Narayanan5 Sir John Wallis, C.J. and Seshagiri Aiyar, J., made certain observations relevant to the present question. At page 379, the learned Chief Justice observed as follows:
The plaintiffs rely on a decision in Jogesh Chandra alias Dhalu Ghose v. Benode Lal Roy (1909) 14 C.W.N. 122 that where there was a definite contract to render an account yearly, Article US and not Article 89 would be the article applicable in the case of unregistered contracts. This case proceeded to some extent on the authority of a decision in Mali Lal Bose v. Amin Chand, Chattopadhay (1902) 1 C.LJ. 211 that, in the case of a contract in writing registered, Article 89 does not apply but Article 116. The authority of the latter decision has been doubted in Shib Chandra Roy v. Chandra Narain Mukerjee (1902) 1 C.LJ. 211 and Hafezuddin Mandal v. Jadu, Nath Saha I.L.R. (1908) C. 298 and it is not in my view conclusive of the present case.
17. Mr. Justice Seshagiri Aiyar would seem to go a little further. At page 382 the learned Judge observed as follows:
The first to fifth respondents' vakil relied on Jogesh Chandra alias Dhalu Ghose v. Benode Lal Roy (1909) 14 C.W.N. 122 for the position that, when there is a special contract fixing a date for the rendering of the accounts, the article applicable to suits by principals against agents is 115 and not Article 89. The fixing of a date for rendering accounts cannot stop the termination of the agency. The authority relied upon in Jogesh Chandra alias Dhalu Ghose v. Benode Lal Roy (1909) 14 C.W.N. 122 has been dissented from by Maclean, C.J., in Hafezud din Mandal v. Jadu Nath Saha I.L.R. (1908) C. 298. Mr. Justice Mookerjee in Shib Chandra Roy v. Chandra Narain Mukerjee I.L.R. (1905) C. 719 held that Article 89 would apply to a case like the present.
18. The decisions of the Calcutta High Court are not uniform. They are all collected in Mathamad Mazaharal Ahad v. Mahamad Asimuddin Bhuan (1922) 27 C.W.N. 210, where there is also an interesting discussion about the meaning of the word 'compensation' at page 216--though the case itself related to recovery of dower debt under a registered dower deed--the Court holding that Article 116 applied to such a case. Though the decision in Venkatachalam v. Narayanan I.L.R. (1914) M. 376 : 28 M.L.J. 140 was passed before the ruling of the Privy Council in Tricomdas Cooverji Bhoja v. Gopinath Jiu Thakur the learned Judges who took part in the decision in Venkatachalam v. Narayanan5 would seem to be inclined to agree with the view of Maclean, C.J., in Hafezuddin Mandal v. Jadu Nath Saha I.L.R.(1908) C. 298.
19. Suits for accounts by principals against agents have been held to come under Article 89. See Asghar Ali Khan v. Khurshed Ali Khan , Hurrinath Rai v. Krishna Kumar Bakshi , Gabu v. Zipru (1920) I.L.R. 45 B. 313 and Girjabai Shivdeo Rao v. Narayan Rao Ganpat Rao. (1924) 88 I.C. 975 See also Yerukola v. Yerukola I.L.R. (1922) M. 648 : 42 M.L.J. 507 Merla Venkanna v. Merla Agasthiah I.L.R. (1922) M. 648 : 42 M.L.J. 507 and Madhu Sudan Sen. v. Rakhal Chandra, Das Basak I.L.R. (1915) C. 248, the Court (Mookerjee and Roe, JJ.) declined to refer the question to the decision of a Full Bench, and decided that, where there is an agreement to submit accounts annually, a suit against the agent for account is governed by Article 89 and not by Article 115 of the Limitation Act.
20. The wording of the corresponding Article 117 of Act IX of 1871 was 'on a promise or contract in writing registered' The words 'for compensation,' etc., were introduced by Act XV of 1877. Any argument derived from the change of language goes, if at all, against the respondent's contention.
21. No doubt there is a saving clause in Article 115, which does not find a place in Article 116, namely, the words 'not otherwise provided for'; but before Article 116 can apply the Court must be satisfied that the suit is one 'for compensation for breach of a contract'; and, for the reasons I have mentioned, a suit for an account by a principal against his agent is a suit well known to law and cannot properly be described as a suit for compensation for breach of a contract as ordinarily understood. Having regard to the apparent policy of the Limitation Act to provide generally a longer period of limitation to suits based on registered documents, (though it was more apparent under Act IX of 1871 than in the later Acts), I should be glad if I had been able to come to the conclusion that Article 116 applied to the present case seeing that Ex. A is a registered document; but, for the reasons already given, I feel myself unable to accept the contention that Article 116 is applicable to the present case. Holding that Article 89 is the article applicable, the appeal has to be allowed with costs.
22. This appeal having been posted to be spoken to this day the Court made the following Order.--Costs will be allowed both in second appeals and letters patent appeal--An both cases.