1. This suit was brought by the proprietor of a certain Inam in the Ganjam District against his agent for an account of the collections made by him in two villages, Agu and Konabhaghu. During the continuance of the suit, after the issues were framed, the agent (the firsi defendant) died, and his legal representatives, defendants Nos. 2 to 4, were brought on record and the suit continued against them. The District Munsif found that the first defendant had failed to account for a sum of Rs. 282 and odd per annum and gave the plaintiff a decree for a lump sum of Rs. 4,691-14-0, being the sum misappropriated or not accounted for, for ten years at the rate of Rs. 282 and odd per annum. The District Judge thought that the suit though filed against the agent stood upon a different footing, when it was continued against his representatives. He observed that 'plaintiff was bound to prove by positive evidence that defendant had received the money for which they (his representatives) are to be held responsible.' Acting on the evidence afforded by the receipts filed in the suit, he reduced the amount to be paid by the defendants to Rs. 941 and odd and decreed accordingly. The plaintiff appeals.
2. I think that the District Judge was mistaken in thinking that the plaintiff was bound to prove actual receipt of all the monies, which he seeks to recover. Even as against the representatives of an agent, the principal is entitled to a decree for sums actually due to him, on account of the agent having received and failed to account for them and also for sums which he negligently failed to collect when it was his duty to collect. This is made clear by the observations of the Calcutta High Court in Kumuda Charan Bala v. Ashutosh Chatiaopadhya (1912) 17 C.W.N. 5 and Maharaj Bahadur Singh v. Basanta Kumar Roy (1913) 17 C.W.635 the latter being one, where, as here, the agent died pending the suit and the suit was continued against his legal representatives. At p. 9 it is observed that the only difference in substance between a suit for accounts against an agent and the same suit against the agent's representatives will be that the burden of proof will lie upon the plaintiff to establish his case. At p. 697 it is observed that the estate of the deceased agent 'is liable for any sum which he may be found to have been owing or liable to make good at the date of his death.' In this case issues 2 and 3 have been inartistically drawn up. It would have been sufficient to have had one issue 'whether the first defendant and his estate are liable to the plaintiff on taking accounts and, if so, how much is owing.'
3. The respondent's advocate raised two points in reply. First, he argued that until the amount of the father's indebtedness was ascertained it was not a debt under the Hindu Law for which the joint family estate could be made liable ; and, secondly, that if the father incurred debts by some criminal act the sons were not responsible by a pious duty to pay such debts. The first contention is a novel one and we have not been shown any authority for the theory that the sons are not liable upon contracts and quasi contracts entered into by their father or upon other similar obligations legally incurred. The second contention is equally untenable and was not advanced as a defence to the suit in the Lower Courts. The respondent's advocate relied on in Mc Dowetl & Co., Ltd. v. Ragava Chetty I.L.R. (1808) Mad. 71 and Paramandas v. Bhattu Mahto. I.L.R. (1897) Cal. 672 These cases may be distinguished on the ground that where there is a breach of civil duty even though it may involve some tort or crime the sons are liable to make it good out of the family property. This is made clear in Kumada Charan Bala v. Ashutosh Chattopadhya (1912) 17 C.W.N. 5 where the observations of Lord Justice Cotton in Concha v. Marrita (1889) 40 Ch. D. 543 are quoted that ''although no action for a tort could be revived or commenced against the representatives of the person who committed, yet the case was different where the act was not a mere tort but was a breach of a quasi contract, where the claim was founded on breach of a fiduciary relation or on failure to perform a duty.' In Garuda Sanyasayya v. Nerella Murthenna : (1918)35MLJ661 the representatives of a trustee were made liable for collections not accounted for for a period of 12 years with the observation that 'it. was the duty of the trustees to collect the income and their subsequent misappropriation of it does not affect the liability to account, which they incurred by reason of the collection. The fact that the misappropriation amounted to a criminal offence appears to be irrelevant.' It is no answer to a claim based on an antecedent civil liability to plead a subsequent criminal act.
4. The District Judge therefore misdirected himself when he held that the plaintiff was bound to prove that the agent had actually received money, for the respresentatives to be held responsible for that money. The representatives are liable equally with their father, the only difference being that while the agent's first duty is to be constantly ready with his accounts and to be always prepared to explain them and support them with vouchers, his representatives should not be required to attempt the impossible and explain matters of which they have no personal knowledge, or to assist the plaintiff in the investigation of the management of his estate of which they are wholly ignorant. The Judge however came to the conclusion that the District Munsif was fully justified in accepting Ex. D as a correct statement of the yearly demand, and he says that it would be a fair inference in a suit against the first defendant personally that he had collected the difference between the sum accounted for by him and the demand as shown in Ex. B.
5. I have felt some doubt whether in consideration of the frame of the issues a fresh finding should not be called for from the District Judge. But I think his intention was clear that the first defendant, if alive, would have been responsible for paying the sum decreed in the District Munsif's judgmen and that only his death was the reason for reducing the amount. If this was his intention, he was clearly wrong and he ought to have held the respondents liable for the full amount which the first defendant had failed to account for. As my learned brother agrees we must therefore set aside the decree of the District Court and restore that of the District Munsif with costs here and in the Lower Appellate Court.
6. I agree.