Abdur Rahim, Offg. C.J.
1. There were two brothers belonging to the Nattukottai Chetty community, namely, Narayana Chettiar and Mathiah Chettiar. The plaintiff is the son of the former and defendants Nos. 4 to 6 are sons of the latter. The two brothers carried on money-lending business in the name of M.P.M.R.M. They had business in various places. Narayana Chettiar died fifteen years ago, and Muthiah Chettiar died about 10 years previous to the suit. At the time of the latter's death, plaintiff and defendants Nos. 4 to 6 were all minors and the family was undivided. The 1st defendant in the suit is maternal uncle of defendants Nos. 4 to 6. He was appointed as agent by the mother of there defendants to manage and look after their share in the family property and the business. The 2nd defendant, who is the maternal uncle of the plaintiff, was similarly appointed by the plaintiff's mother. The suit was instituted by the plaintiff, who attained majority in 1911, for a decree directing defendants Nos. 1 and 2 to render an account to him of their management of the affairs of the family of the plaintiff and the defendants during his minority and for other reliefs.
2. The first question that arises is, whether the suit is maintainable. It is to be noted that the mothers of plaintiff and defendants Nos. 4 to 6, who appointed defendants Nos. 1 and 2 as agents, have not been made parties. It is contended by the learned Advocate-General on behalf of the appellant (plaintiff) that defendants Nos. 1 and 2 must be treated as trustees de son tort and as such liable to account to the plaintiff, His argument is that the guardians of the plaintiff and defendants Nos. 4 to 6 occupied the position of trustees and defendants Nos. 1 and 2, having intermeddled with the estate of the minor and having received the properties of the minor, are liable to account to him. He has cited a number of rulings, but it is sufficient to point out that all those rulings relate to the liability either of trustees or of persons accountable as trustees for intermeddling or for being connected with breaches of trust of the trust property. The leading authority on the point is the case of Barnes v. Addy (1874) 9 Ch. App. 244 : 43 L.J.Ch. 513 : 30 L.T. 4 : 22 W.R. 505. The' other cases sited by the Advocate-General, Mara v. Browne (1896) 1 Ch. D.199 : 65 L.J.Ch. 225 : 73 L.T. 638 : 44 W.R. 330 and Barney, In re, Barney v. Barney (1892) 2 Ch. D. 265 : 61 L.J. Ch. 585 : 67 L.T. 23 : 40 W.R. 637 simply follow the principle laid down in that case at page 251. There Lord Selborne states the principle in these words: 'Those who create a trust clothe the trustee with a legal power and control over the trust property imposing on him a corresponding responsibility. That responsibility may no doubt be extended in equity to others who are not properly trustees, if they are found either making themselves trustees de son tort or actually participating in-any fraudulent conduct of the trustees to the injury of the cestui que trust. But, on the other hand, strangers are not to be made constructive trustees, merely because they act as the agents of the trustees in transactions within their legal powers, transactions, perhaps of which a Court of Equity may disapprove, unless those agents receive and become chargeable with some part of the trust property, or unless they assist with knowledge in a dishonest and fraudulent design on the part of the trustees. Those are the principles, as it seems to me, which he must bear in mind in dealing with the facts of this case. * * *
3. But, on the other hand, if persons dealing honestly as agents are at liberty to rely on the legal power of the trustees, and are not to have the character of trustees constructively imposed upon them, then the transactions of mankind can safely be carried through and I apprehend those who create trusts do expressly intend, in the absence of fraud and dishonesty, to exonerate such agents of all classes from the responsibilities which are expressly incumbent, by reason of the fiduciary relation, upon the trustees.' And Lord Justice James added: 'I have long thought, and more than once expressed my opinion from this seat, that this Court has, in some oases, gone to the very verge of justice in making good to cestui que trust the consequences of the breaches of trust of their trustees at the expense of persons perfectly honest but who have been, in some more or less degree, in-judicious. I do not think it is for the good of cestui que trust or the good of the world that those oases should be extended.' The learned Advocate-General admitted that there is no authority for the proposition that an agent appointed by the guardian of a minor is liable to account to the minor as if he was a trustee de son tort because he received property belonging to the minor, On the other hand, there is a ruling of this Court which seems to be opposed to such a proposition, Chidambaram Chetti v. Pichappa Chetty 80 M.P 243 : 2 M.L.T. 326. There it was held that an agent appointed by the administrator of an estate as such cannot be proceeded against on such contract of agency by the person entitled to the estate, and it makes no difference that the administrator obtained the grant as the attorney of the mother and guardian of the person entitled.
4. The learned Advocate General, however, drew our attention to a passage in the judgment to the effect that no claim was made against the defendant on the ground of his possession of property belonging to the plaintiff, and he argued that where such an agent is in possession of the property, the law makes a difference. But we do not think that, in the absence of any clear authority, it would be safe to hold that an agent appointed by the guardian of the minor is liable to account to the minor for his acts as an agent on the principle applicable to trustees or persona intermeddling with the trust estate. If there were any force in the contention of the appellant, one might reasonably expect that there would have been some authority forthcoming in support of it. It would be unsafe to extend the rule laid down with respect to trustees de son tort to the persons in the position of agents of the guardian of the. minor. Under the ordinary law an agent is liable to the principal. The state of accounts between an agent and a principal and the liabilities of the agent to the principal would be on a very different footing from the account which a trustee or a person intermeddling with the trust estate has to render to the cestui que trust. Beside?, as mentioned above, in this case the mothers, who appointed defendants Nos. 1 and 2 as agents, have not been made parties and any decree in this case would not exempt the agents from their liability to their principals. The conclusion of the learned Subordinate Judge on this point is right.
5. The 2nd point relates to a sum of Rs. 14,000 and odd which the plaintiff paid to the 1st defendant on behalf of defendants Nos. 4 to 6. The Subordinate Judge has found that this was settled by arbitration and the question cannot be reopened. On the other hand, the case of the plaintiff is that it is a matter of stated and settled accounts and if he is able to show errors in the account, be is entitled to re open the question. Exhibit III makes it dear that the settlement was made by arbitrators or mediators. Such a settlement is not liable to be re-opened, except on the ground of fraud which is not alleged in this case.
6. The third point arises under the 2nd issue. Plaintiff claims to recover from the 1st defendant a certain book of account called Oorkanakku. The Subordinate Judge upon the evidence found that the 1st defendant was not in possession of the account. Besides that, it is doubtful, if the plaintiff is not entitled to ask the 1st defendant to render an account to him, that he can ask him to hand over any account,
7. The appeal fails on all the points and must be dismissed with costs.
8. I agree.