Das Gupta, J.
1. This is a suit instituted by the plaintiff originally against Manmatha Nath Mullick since deceased for an account of the trust properties created by Jadulal Mullick deceased, for necessary enquiries and directions regarding the said trust properties, for a decree for the sums found due to the plaintiff for self and as an heir of Pradyumna Kumar Mullick, for removal of Manmatha Nath Mullick as trustee and for other reliefs. The only question to be decided by me is whether Abhiram Mullick, son of one Pramatha Nath Mullick since deceased, a defendant in this suit, is liable to render accounts. The rest of the matters are, it is understood between the parties, to be referred to an Officer of this Court for an enquiry and for accounts.
2. The matter arises in this way: On 5-2-1894 one Jadulal Mullick died. A genealogical table showing the descendants of the said Jadulal Mullick is as follows:
JADULAL (d. 5.2 1894)
= Saraswati Dassi (d. 1916)
| | |
Anath Nath Pramatha Nath Manmatha Nath
(d. 28.6.1900) (d.23.8.43) (d. 30.5.47)
| | ___________________|_________________
Pradyumna Abhiram | | |
(d. 11.4.43) (def. 5) Rashbehari Bonbehari Brindaban
__________|________________ (def. 2) (def. 3) (def. 4)
Profulla (plff.) Provash (d. 12.12.43)
On 12-12-1877 the said Jadulal Mullick had made a will and a codicial. Under the said will his widow Saraswati Dassi along with other persons were appointed executrix and executors. On 21-4-1894 probate of the said will was granted to Saraswati Dassi. On 1-6-1894 Saraswati Dassi pursuant to the directions contained in the said will conveyed certain properties to herself and to her sons Anath and Pramatha as trustees. Thereafter disputes arose amongst the heirs of Jadulal Mullick and the said disputes were referred to the arbitration of late W. C. Bonnerjee On 30-6-1899 an award was made by W. C. Bonnerjee. On 28-6-1900 Anath died. Thereafter a suit being Suit No. 783 of 1900 was instituted by Pramatha against Manmatha and others claiming partition and other reliefs. Late Bhupendra Nath Basu was appointed Commissioner of Partition. On 26-12-1903 the return of the Commissioner of Partition was filed and under the said return certain properties were set apart for the trusts mentioned in the will of Jadulal and the rest of the properties were divided amongst the parties. On 20-2 1902 Manmatha was appointed a trustee of the trust estate and continued to be such trustee till his death.
3. In 1916 Jadulal's widow Saraswati did. On 11-4 1943 Pradyumna died leaving his two sons Profulla and Provash as his heirs and legal representatives. Thereafter on 12 12-1943 Provash died leaving his brother Profulla as his heir. On 23-8-1943 Pramabha died and thereupon Manmatha became the sole trustee of the said trust. Sometime in the year 1945 this suit was instituted by Profulla for self and as legal representative of Pradyumna Kumar Mullick against Manmatha Nath Mullick. The original plaint, as I shall presently indicate, has undergone a number of amendments. Originally this suit was filed only against Manmatha and the case of the plaintiff as made out in the original plaint was as follows: In Para 19 of the plaint it was alleged that the defendant (i. e. Manmatha Nath Mullick) along with the said Pramatha had since the year 1916 the custody and possession of the trust properties and was in charge thereof and had been collecting rents, issues and profits thereof and managing the same. In Para. 20 it was alleged that the defendant failed and neglected to render an account-in respect of his dealings and to pay to the plaintiff's father Pradyumna Kumar Mullick his one-third share in the surplus of the income of the said trust properties and also the expenses incurred by the plaintiff's father on account of the Deb Sheba during his Pala and a considerable amount is left every year as surplus from the income of the said trust properties. In Para. 21, it was alleged that the defendant had also failed and neglected to render any account or to pay the plaintiff his share in the said surplus and committed a breach of trust in respect thereof. In Para. 22, the plaintiff claimed an enquiry and account as to the dealings of the defendant in respect of the trust properties and as to the amount due to Pradyumna in respect of his share in the said surplus and the Deb Sheba expenses and a decree for such sum as may be due. In Para 23, the plaintiff claimed an enquiry and account as to the dealings of the defendant in respect of the trust properties after the death of Pradyumna. Lastly in Para. 24 it was alleged that the defendant had committed breach of duty and trust in not furnishing accounts of the trust properties and giving information relating thereto. The material prayers of the original plaint were as follows: (1) Account; (2) All necessary enquiries and directions; (3) Decree for the sum found due to the plaintiff for self and as heir of Pradyumna Kumar Mullick; (4) Removal of the defendant as trustee and appointment of the plaintiff as trustee; (5) Discovery; (6) Administration.
4. As I have already said, the only person against whom the suit was originally filed was Manmatha Nath Mullick. Thereafter, on 14-3-1945 an order was made by S. R. Das J. and by that order Abhiram Mullick son of Pramatha was added as a party to this suit and was appointed a co-trustee along with Manmatha. Except the consequential amendments which had to be made due to the fact of Abhiram being added as a party the plaint remained the same. Thereafter, on 17-12-1946 an order for amendment was made by Khundkar J. and as a result of the said order Abhiram (then defendant 2) was described in the cause title as 'for self and as trustee to the said estate' and the defendant Manmatha Nath Mullick was described in all the material paragraphs in the body of the plaint as defendant 1 and after Para. 24 Which was the last paragraph in the original plaint two other paragraphs were added being Paras. 25 and 26 which were as follows :
Paragraph 25 : Defendant 1 alleged that the said Pramatha Nath Mullick was until his death on 23-8-1943, in possession, custody and control and management of the said trust properties and that defendant 2 is in possession of the books, papers and accounts relating to the said trust properties. Should the said allegations be found correct, the plaintiff claims account of the dealings of the said Pramatha Nath Mullick and a decree against defendant 2 as his heir and legal representative for whatever is found due by the said Pramatha Nath Mullick to the said trust estate and to the plaintiff.
Paragraph 26 : By an order made on 14-3-1945 by his Lordship the Hon'ble Das J. in this suit the defendant Abhiram Mullick was added as a party defendant to this suit and the said Abhiram Mullick and the plaintiff have been appointed trustees to the said trust estate along with the said Manmatha Nath Mullick. The prayers in the said plaint had also as a result of the said order, undergone some change. Prayer (a) as altered stood as follows : all necessary accounts, enquiries and directions' instead of as originally prayed 'all necessary enquiries and directions'. The original prayer (4) was limited only to a prayer for 'removal of defendant l as trustee'. The rest of the prayers remained the same. There was no change of paragraphs 19 to 24 of the original plaint to which I have already referred.
5. On 30-5-1947, Manmatha died. Thereafter an application for amendment was made before Majumdar J. It appears that in the petition for amendment what was prayed for was that the name and description of the defendant Manmatha Nath Mullick be struck out, and in the place and stead thereof the names and descriptions and addresses of Sm. Firoza Sundari Dassi, Rashbehari Mullick, Bonbehari Mullick and Brindaban Mullick be substituted in the cause title of the plaint and the body of the plaint be amended as indicated in the copy plaint annexed to the said petition. The said Sm. Piroza Sundari was the widow of the said Manmatha Nath Mullick and the said Rashbehari Mullick, Bonbehari Mullick and Brindaban Mullick were his three sons, heirs and legal representatives under the Dayabhag School of Hindu Law. In the body of the petition also, all that was stated was that Manmatha Nath Mullick having died leaving his widow and sons mentioned above the petitioner was desirous of having an order for substitution of the said heirs and legal representatives of the said defendant Manmatha Nath Mullick and for necessary amendment of the plaint. But in the copy plaint, which was annexed to the said petition, showing the proposed amendments the original prayers were sought to be amended by adding after the words 'accounts' in the original prayer No. l the words 'against the defendants as the heirs and legal representatives of the said Manmatha and Pramatha Nath Mullick' and also adding after the original prayer No. 2 the words 'against the defendants as the heirs and legal representatives as aforesaid'.
6. By the order made by his lordship Majumdar J. necessary amendments in the cause title and in the body of the plaint which were occasioned by the death of Manmatha Nath Mullick were allowed. But the additions sought to be made in the prayer portion of the plaint were not allowed and the same were struck out. Two other paragraphs being paragraphs 27 and 28 had to be added and the same read as follows :
Paragraph 27 : The said Manmatha Nath died interstate on 30 5-1947 leaving him surviving defendants 1 to 4 as his sole surviving widow and sons and his heir and legal representatives under the Dayabhaga School of Hindu Law by which he was governed.
Paragraph 28 : The plaintiff class the necessary accounts and enquiries against defendants 1 to 4 as the heirs and legal representatives of the said Manmatha Nath Mullick deceased.
Prayer (4) of the original plaint being the prayer fox removal of Manmatha Nath Mullick as trustee and for appointment of the plaintiff as trustee had also to be deleted. This is the final shape which the plaint took after the several amendments were made and it is on this plaint that the parties have proceeded to trial.
7. As I said before the only point urged before me was whether or not a decree for accounts against Abhiram Mullick can be passed in this suit. Mr. Banerjee appearing on behalf of the defendant Abhiram Mullick contended before me that no decree for accounts can be passed against Abhiram Mullick for the dealings of Pramatha Nath Mullick. In other words, his contention was that in law no decree for accounts can be passed against the heirs of a deceased trustee. He further contended before me that in the plaint there is no claim for recovery or production of books of account and all that is asked for is a general account which cannot be granted. He relied mainly on two decisions of this Court, one reported in Kumeda Charan Bala v. Asutosh Chattopadhyaya, 17 C. W. N. 5 and the other reported in Amiya Krishna v. Debendra Lal, 46 C. W. N. 865 in support of his contention namely that a suit for accounts against the heirs and legal representatives of a deceased trustee does not lie and he contended that the present suit as against his client is a pure suit for accounts.
8. Mr. Meyer appearing on behalf of the plaintiff on the other hand contended that a suit for accounts as against an agent or a trustee is not the same thing as a suit for accounts against the heirs and legal representatives of such agent or trustee. As against the heirs and legal representatives of an agent or a trustee a suit for accounts in the strictest sense no doubt does not lie but a suit for account in a limited sense is maintainable. In other words, he contended that if a decree for accounts is passed against the heirs and legal representatives of an agent or trustee that will not mean that they would be asked to explain the accounts but they would certainly be called upon to produce the books of account and the vouchers. In such a case, Mr. Meyer contended the onus would no doubt be upon the plaintiff but the Court will also be entitled to draw its own inference from the non-production of the books of account and vouchers if the same are not produced. Mr. Meyer has contended that in such limited sense and not in its strict sense that a suit for accounts against the heirs and legal representatives of a deceased trustee is maintainable.
9. Mr. Banerjee in the course of his argument also relied upon two other points and it would be convenient to dispose of those two points urged by Mr. Banerjee first before I enter into the more important question, namely, the maintainability of a suit for accounts against the heirs and legal representatives of a deceased trustee. Mr. Banerjee contended before me that even assuming that a decree for accounts can be passed against the heirs and legal representatives of a deceased trustee in the present case the plaint which has been filed is not a proper plaint even for the said purpose. There is no doubt a general prayer for accounts but that is not enough, and there should have been a specific prayer for accounts against the heirs and legal representatives of the deceased Pramatha Nath Mullick. He further contended that the present prayer for accounts was made when Manmatha Nath Mullick was alive and when Manmatha Nath Mullick was the only defendant in this suit. Therefore, the prayer for accounts is really a prayer against the heirs of Manmatha Nath Mullick. Although there is some force in Mr. Banerjee's contention, I am unable to accept the same. Whatever might have been the reason, the Court did allow an amendment and para. 25 was allowed to be added to the original plaint. In para. 25 of the plaint it is stated that should the said allegations be found correct namely that until his death on 28-8-1943 Pramatha Nath Mullick was in possession, custody and control and management of the trust properties, then the plaintiff claims an account of the dealings of the said Pramatha Nath Mullick and a decree against the said defendant 5 as his heir and legal representative for whatever is found due by the said Pramatha Nath Mullick to the said trust estate and to the plaintiff. This averment made in paragraph 25 along with the prayer No. (1) which is a prayer for account makes it clear that the plaintiff, in the plaint as it now stands, is claiming an account against the heir and legal representative of the deceased trustee. Whether or not the plaintiff would succeed is a different matter, but there is sufficient averment in the body of the plaint and there is a prayer which can form the basis for a decree for accounts against Mr. Banerjee's client. This contention of Mr. Banerjee therefore, fails.
10. Mr. Banerjee then contended before me that in the petition for the amendment which was made before Majumdar J., additions were sought to be made to the original prayers of the plaint by adding after the prayer for account the words against the defendant as the heirs and legal representatives' of the said Manmatha Nath Mullick and Pramatha Nath Mullick. Majumdar J. did not allow those additions to be made and therefore, it must be held that the Court came to the conclusion that the plaintiff in this suit cannot ask for accounts against the defendants as the heirs and legal representatives of Pramatha Nath Mullick. In other words, a prayer for accounts against Mr. Banerjee's client was negatived by Majumdar J., when he refused the said additions to be made in the original prayer. This contention of Mr. Banerjee in my opinion must also fail. I am not aware of the reason which prompted Majumdar J., to delete those portions and from the materials before me it is not possible to as certain it. But it appears that in the summons taken out for the application for amendment before Majumdar J., all that was asked for was that the cause title and the body of the plaint be amended by striking out the name of Manmatha Nath Mullick and by substituting in its place the names of his widow and sons. But in the prayer of the plaint, the additions to which I have referred, were sought to be made and which Majumdar J., was pleased to strike out. It may be, as Mr. Meyer argued, that those additions were thought to be unnecessary, as the original prayer for account was wide enough to include any claim for account not only against Manmatha Nath Mullick and after his death his heirs but also against the heirs of Pramatha Nath Mullick, and in the added para. 25 of the plaint it had been specifically stated that the plaintiff claims account against the heirs of Pramatha Nath Mullick. In any event, the fact remains that the present prayer of the plaint read with the averments made in paragraph 25 of the plaint, show that the plaintiff claims account against the heirs and legal representatives of Pramatha Nath Mullick as well and, therefore, it cannot be said that in the present plaint there is no sufficient prayer for accounts against the heirs or legal representatives of the deceased Pramatha Nath Mullick. This point of Mr. Banerjee also fails.
11. I now come to the most important question in this case and on this point I had the best assistance from learned counsel appearing for both parties. The question for my decision is whether or not a suit for account lies against the heirs and legal representatives of the deceased trustee and that is the substantial question which I have to decide in the suit before me. In order to determine this question I have to ascertain the effect of the several decisions both of this Court and of other High Courts which have been cited before me. The first and the important decision on this question is the one decided in Kumeda Charan Bala v. Ashutosh Chattopadhyaya, 17 C. W. N. 5. That is the leading decision on this subject and the principle laid down in that decision has not been dissented from in any of the subsequent decisions of this Court but what has sought to be done in subsequent decisions is to interpret the same. The principle laid down in Kumeda Charan Bala's case, still holds good.
12. In the first place what was decided in Kumeda Charan Bala's case, (17 C. W. N. 5) is that the representatives of a deceased trustee or agent cannot be required to render account in the same sense in which the agent himself might have been called upon to do. It would be convenient to set the material passage from the judgment on this point which reads as follows:
'On behalf of the appellants it has been argued that the liability is personal and the legal representatives of the deceased agent cannot be required to render accounts is the same sense in which the agent himself might have been called upon to do. A similar question appears to have been raised in the case of Manmothonath v. Basanto Kumar, (22 All. 332) where it was ruled that though a guardian of a ward was liable to render accounts of his guardianship, yet after his death his representatives could not be called upon to render an account in the same manner. The same view was adopted in the cases of Rameshur Tiwari v. Kishun Kumar, (1882 A. W. N. 6) and Pritam Singh v. Mubarik Singh, (1911 P. L. R. 78 : 9 I. C. 591).'
This is the first proposition which has been laid down in Kumeda Charan Bala's case, and the principle behind this proposition has also been stated by their Lordships when they proceeded to observe as follows:
'This position may plainly be defended on principle. No doubt, as is stated in Shib Chandra v. Chandra Narain, (32 Gal. 719) the first duty of an agent is to be constantly ready with his accounts, and to be always prepared to explain them and support them by vouchers. But it does not follow that his representatives may be required to discharge this duty, to explain matters of which they have no personal knowledge, and to assist the plaintiff in the investigation of the management of his estate of which they are wholly ignorant; any other decision would place the representatives of the deceased agent at an unfair disadvantage; they cannot be called on to do that which does not lie within their power, and should not be required to attempt the impossible.'
Their Lordships at the same time made it quite clear in their judgment in Kumeda Charan Bala's case, that it does not follow that the estate of the agent who has not rendered account escapes all liability in the hands of the representative and their Lordships held that a suit for any loss suffer-ed due to negligence, misconduct, misfeasance or malfeasance of the agent would lie. Such a suit, according to their Lordships, is not one for accounts strictly so-called but a suit for money payable to the principal by the representatives of the agent out of the assets in their hands. Thus it was laid down in Kumeda Charan Bala's case, that although a suit for account against the representatives of an agent is not maintainable but a suit for any loss suffered due to the negligence, misconduct, malfeasance or misfeasance of the agent would lie; such a suit being a suit for money payable to the principal. Their Lordships accepted the view expressed in Nayuf Ali v. Patterson, reported in 2 ALL. H. C. R. 103. That was a suit for recovery of money and delivery of papers and documents belonging to the principal. In that case the contention that the liability was personal and bad expired on the death of the agent was overruled. It was held that if the agent had misappropriated money the representative was bound to indemnify the principal to the extent of the estate that had come into his hands as by the alleged wrong of the agent property was acquired which benefited the deceased. The right of action did not expire in such a case on the death of the wrong door. The claim for papers and documents also survived. The said suit in the Allahabad High Court was not a suit for accounts but a suit for recovery of money and for delivery of papers and documents and it was held that if it was established that the agent had misappropriated the money the said reliefs could be granted. Ultimately, in Kumeda Charan Bala's case, their Lordships came to the conclusion that a suit is maintainable for recovery of money misappropriated by the deceased and they treated the suit before them as a suit not for accounts but a suit for recovery of money misappropriated by the deceased and granted relief on that basis. Their Lordships proceeded to observe as follows:
'In the case before us, therefore, although we hold that the suit has not been properly framed yet the claim is maintainable for recovery of money misappropriated by the deceased, if he is proved to have been the agent of the plaintiff and also for recovery of damages for the loss suffered by the plaintiff by reason of his negligence or misconduct. The only difference in substance will be that the burden will be upon the plaintiff to establish his case. In fact the plaintiff has attached to his plaint a detailed statement of the sums he was entitled to receive from his agent and sums he did actually receive. The suit may, therefore, be deemed as one for recovery of the balance, and the onus will be upon the plaintiff to establish, with regard to each specific sum, that he is entitled to recover it.'
On this view of the matter their Lordships directed the original plaint to be amended by striking out in the first prayer clause the following words 'that the decree may be passed against the defendants for getting accounts from the defendants as mentioned in paragraph 7 of this plaint' and the prayer clause (Ga) was also ordered to be expunged and their Lordships ordered that the suit will stand as one for recovery of a specific sum of money i. e., Rs. 6,372 and the plaintiff will be strictly confined to the items specified in the schedule to the plaint. Thus their Lordships directed a fresh trial of the suit not on the basis of a suit for account but on the basis of a suit for recovery of specific sums of money. The net result of the decision in Kumeda Charan Bala's case seems to me to be that a suit for accounts against the heirs and legal representatives of a deceased trustee is not maintainable but a suit for recovery of loss or damage due to the negligence, misconduct, malfeasance or misfeasance of the trustee is maintainable and a suit is also maintainable for recovery of specific sums of money which may be alleged to have been misappropriated by the deceased.
13. The next decision to which I should refer was in the case of Srish Chandra v. Supravat Chandra, : AIR1940Cal337 . In that case although the suit was against the heir of deceased trustee but the plaintiffs did not charge the heir of the trustee (defendant 1) with liability for account but asked the Court to direct the defendant 1 to file the account papers which according to the plaintiff were with him. The other part of the plaintiff s claim was that the defendant 1 was to make good from the inherited assets the loss caused to the trust estate by his father by his negligence and wilful default. Plaintiffs also claimed moveables and ornaments belonging to trust estate and received by the trustee, list of which was given in the plaint. Thus the question whether a suit for account lies against the heir of a deceased did not arise for their Lordships' consideration. In my opinion not much assistance can be had from the decision in the said case for determining the question which is now before me because the same did not arise for their Lordships' consideration in the said case.
14. The next important decision which was placed before me is in the case of Amiya Krishna v. Debendralal, reported in 46 C. W. N. 865. That was a decision of R. C. Mitter and Khundkar JJ. In my opinion the real implication of the decision in Kumeda Charan Bala's case has been brought out in its clearest possible perspective by their Lordships in their judgment delivered in the said case of Amiya Krishna v. Debendralal. In effect their Lordships held that the real character of the suit has to be ascertained and it has to be determined whether it is a suit for account pure and simple or it is a suit for recovery of specific sums of money from the estate. In Amiya Krishna's case the relief which was granted was not on the basis of a claim for accounts but on the basis of the alternative claim made in the plaint, namely, a claim for recovery of specific sums of money. Mitter J. in delivering the judgment in that case observed as follows :
'As the legal representative of a deceased agent or trustee does not stand in a fiduciary relationship, a suit for account is not maintainable against him. It is equally settled law that a suit for recovery of money misappropriated by a trustee or an agent would lie against his legal representative. In such a suit, the decree would be against the assets of the deceased agent or a trustee. A suit for recovery of specific sum of money, however, does not assume the character of a suit for account merely because in the determination of the questions in controversy accounts may have to be examined. The sole foundation for a suit for account is, as we have already pointed out, the obligation to account, and where that does not exist, the suit for money would not be regarded as a suit for accounts. In the light of these principles the plaint in the case which we have before us has to be examined.' I entirely agree with the views expressed by their Lordships in the said case of Amiya Krishna v. Debendralal. In my opinion that is the real effect of the decision of Kumeda Charan Bala's case. In my opinion, the result of the decision of Kumeda Charan Bala's case also is that a suit for accounts pure and simple is not maintainable but if it is a suit for recovery of specific sums of money such a suit would be maintainable even if in determining whether or not a decree for the said sum can be passed accounts have to be taken. In other words in my opinion, the real test is, what is the nature of the claim with which the plaintiff has come to Court. Is the suit of the plaintiff a suit for account pure and simple against the heirs of the deceased trustee If that is so, then it is not maintainable. But if it is a suit for recovery of specific sums of money misappropriated, then such a suit against the heirs and legal representatives of the deceased trustee would be maintainable. It is in the light of this principle that every plaint has to be examined and it is to be seen what is the nature of the case with which the plaintiff has come to Court, and upon it will depend whether or not the relief which is claimed in the suit should be granted or not. This is also the effect of the decision of Mitter and Khundkar JJ. in Amiya Krishna v. Debendralal, and with all respect to their Lordships I entirely agree with that decision and I endorse the view which has been expressed by them. That is also in my opinion is the principle which has been laid down in Kumeda Charan Bala's case and it is for that reason that their Lordships deciding Kumeda Charan Bala's case had to strike out the prayer for accounts in the plaint and directed the trial to be proceeded only on the basis of the claim for recovery of specific sums of money.
15. In the said case Amiya Krishna v. Debendralal, (46 C. W. N. 865) Mitter J. after stating the principle to which I have just now referred proceeded to examine the prayers of the plaint. Prayer No. 1 was a prayer for accounts and the second prayer was for the recovery of a specific sum of money. In the first 12 paragraphs of the plaint, the plaintiff referred to the two Niyampatras and said that they created a trust, that the executants were trustees and ultimately Bejoy became the managing trustee. Then the plaint charged the mother and natural guardian of the defendant 1 with default in not sending to the plaintiff after Bejoy's death authenticated accounts of income and expenditure during the last period of Bejoy's life. In the last portion of para. 12 the plaintiff stated that on account of that default he was not entitled to ascertain exactly how much money of the trust estate was in the hands of Bejoy at the time of his death. In para. 13 the plaintiff stated that as a result of enquiry he has found that considerable sums of money had been realised by Bejoy from one of the trust properties, namely, Mahal Jhakra but they were either not credited or lesser amounts had been credited by Bejoy in the accounts and the balance had been misappropriated by him. Then a detailed statement in respect of the sums of money so misappropriated by Bejoy was given in schedule Ga to the plaint and the total was Rs. 1891-0-5. The plaintiff had not been able to ascertain whether there was similar misappropriations by Bejoy in respect of the income of the other trust properties, but proceeding upon the account papers which had been sent to him the sum of Rs. 7886-13-3 the details of which are given in schedule Gha was the surplus which was in the hands of Bejoy at the time of his death. The second prayer in the plaint is a prayer for the recovery of specific sum of Rs. 9777-13-8 which is the total of the items mentioned in schedule Ga and Gha. In para. 14 of the plaint the plaintiff charged the defendant 1 with liability to account for the management of his father. Mitter J. held :
'The suit is not purely a suit for accounts. It is a suit of a composite nature. In substance it is a suit with alternative claims against the defendant 1, namely, a suit for account, in the alternative a suit for recovery of a specific sum of money. The prayer for accounts is not maintainable but we do not see why prayer Kha is not maintainable. The learned Subordinate Judge has in fact granted that prayer only.'
Thus their Lordships in that case proceeded on the view that in the suit as there was an alternative claim for specific sums of money and reliefs on that basis can be granted.
16. The next case to be considered is Brij Kishore Singh v. Nazuk Bai, 51 C. W. N. 157. Mr. Meyer has placed considerable reliance on this decision and on the strength of this decision he contended before me that the view taken by Mitter J. in Amiya Krishna's case (46 C. W. N. 865) is no longer maintainable and Mitter J. himself has taken an entirely different view in this case and, therefore, I should follow the decision in Brij Kishore Singh v. Nazuk Bai. Mr. Meyer also contended before me that in this case Mitter J. has made no reference to his previous judgment given in the case reported in Amiya Krishna's case, 46 C. W. N. 865 and, therefore, it must be assumed that his Lordship did not want to follow his previous decision. I am unable to accept this contention of Mr. Meyer. In my opinion, there is no conflict between the decision of Mitter J. reported in Amiya Krishna's case, 46 C. W. N. 866 and his decision reported in Brij Kishore's case, 51 C. W. N. 157. In my opinion Mitter J. in his later judgment did not differ from the view taken by him in previous case and on the facts and circumstances of the case of Brij Kishore v. Nazuk Bai it was not necessary for His Lordship to reconsider the effect of his judgment in Amiya Krishna v. Debendralal Khan. It appears to me that the case of Brij Kishore v. Nazuk Bai, 51 C. W. N. 167 is distinguishable from the present case and also from the case of Amiya. Krishna v. Debendralal, 46 C.W.N. 865 and also from Kumeda Charan Bala's case, (17 C.W.N. 5). In my opinion the view taken by Mitter J. in Brij Kishore's case does not conflict with the view taken by his Lordship in Amiya Krishna's case. In the case of Brij Kishore v. Nazuk Bai the suit was originally brought against the agent and a preliminary decree for accounts had already been passed against him. Thereafter the agent died and the question arose whether the suit could proceed against his representative. The question involved in that case really was whether a preliminary decree already passed against the agent could be given effect to as against his heirs and legal representatives and if so, to what extent That was the only question which Mitter J. had to consider in that case and this is to my mind clear from the observations of his Lordship in that case. Mitter J. while discussing this point quoted with approval the observations of Bowen L. J. in Phillips v. Homfrey, (1883-24 ch. D. 439 at p. 454) in a case where accounts had been directed and observed as follows:
'These observations furnish us the authority for holding that in a suit for account death of the obligor should not render nugatory the granting of the relief sought by the plaintiff.'
His Lordship further observed as follows :
'As early as 1868 this Court held that a cause of action in a suit for account against an agent survives his death and can be enforced against his legal representative.'
After considering the provisions of Section 300, Indian Succession Act, His Lordship proceeded to observe as follows :
''A suit for account does not fall within the named exceptions in that section and in our judgment it does not fall within the general expression, for it cannot be said that on the death of the obligor the granting of the relief sought in such an action would be nugatory.'
In other words, Mitter J. was discussing the question whether a suit for account already filed against an agent can, after the agent had died, be proceeded with against his heirs and legal representatives. In particular, on facts of that case, His Lordship had to consider whether after a preliminary decree for accounts had already been passed against an agent that decree be ineffective simply because the agent had died since the passing of the preliminary decree and whether or not the said decree can be enforced against the heirs and legal representatives of the deceased, and if so, to what extent. That was the only question which was before his Lordship in that case. It is true that in considering the decision in Kumuda Charan Bala's case Mitter J. observed as follows:
'On that principle it may at most be said that the legal representative of an agent or other person holding a fiduciary character cannot be directed by the Court to explain the accounts kept by the dead agent or the other person. But there is no inherent impossibility in the performance of the other facts by the legal representative, namely to deliver the account papers and support them by vouchers, for the hand of death does not remove papers.'
Mr. Meyer laid great emphasis upon these observations but to my mind these observations were made and have to be read with reference to what His Lordship Mither J. had to decide in that particular case. This would be evident from what His Lordship Mitter J. said immediately thereafter which is as follows:
'To that extent a departure may have to be made for the general principle that a suit is to be tried throughout in all its stages on the cause of action as laid in the plaint and the relief appropriate thereto is to be given, and that a person substituted as legal representative can only take a defence appropriate to his character as legal representative of the deceased defendant. As the respondent's advocate has stated before as that his client does not wish to call for any explanation of the accounts and would be satisfied if the account papers kept by Hari Singh and vouchers in support are directed to be produced by the legal representatives of Hari Singh, we need not further examine the position of the legal representative, where the obligor had died after the preliminary decree for rendering accounts had been passed.'
Thus the observations made by his Lordship Mitter J. with regard to Kumeda Charan Bala's case should be read with reference to the context, that is to say, with reference to the facts and circumstances of the case and what his Lordship had to decide therein. In my opinion, the net result of Mitter J's. decision in Brij Kishore's case is that if after a suit for accounts has been filed against an agent, the agent dies either before or after preliminary decree the suit can be proceeded with against his representatives but only with this reservation, namely, that having regard to the changed circumstances of this case, that is to say, death of the agent, his legal representatives cannot be called upon to explain the accounts but they will be bound to deliver the books of account and papers and the vouchers and if they do not do so, adverse inference can be drawn against their conduct. This is what Mitter J. had decided on the facts and circumstances of that case, and it was not necessary for his Lordship to discuss the effect of his previous decision reported in Amiya Krishna v. Debendralal, 46 C. W. N. 865 and the argument of Mr. Meyer namely that Mitter J. has whittled down his own view expressed in that case does not appeal to me. If Mitter J. had the intention of going back upon the view expressed by him previously in Amiya Krishna's case, then in my opinion His Lordship would have discussed about it in his subsequent judgment in Brij Kishore's case and would have stated that His Lordship was unable to maintain his previous opinion. In any event in my opinion it is quite clear on reading the judgment itself in Brij Kishore's case, that Mitter J. was not holding any different view from what he had expressed previously in Amiya K. Khan's case. In my opinion what his Lordship had to consider was as to what extent the preliminary decree already passed against an agent can be given effect to as against his heirs and legal representatives. I am not unmindful of the fact that there are certain observations in the judgment which are of a general nature and it may seem at first sight that His Lordship was inclined to hold that the decision in Kumeda Charan Bala's case, did not warrant the proposition that the cause of action against the agent did not survive his death but as I have already said those observations must be read with the facts and circumstances of the case which was before Mitter J. In fact towards the latter part of his judgment Mitter J. clearly distinguished Kumeda Charan Bala's case, from the facts of the case which was before his Lordship on the ground that in Kumeda Charan Bala's case, the death of the agent took place before the preliminary decree. To my mind the decision in Amiya Krishna's case, 46 C. W. N. 865 places the matter beyond all doubts.
17. The view which I am taking about this matter is also supported by a decision of S. R. Das J. in Kanai Lal Ghosal v. Purnendu Nath Tagore, I. L. R. (1947) 1 Cal. 48. Although Mr. Meyer relied on this decision as supporting his contention but to my mind it is clear that this decision of Das J. instead of supporting the view propounded by Mr. Meyer supports the view which I have taken as to the effect of Kumeda Charan Bala's case, (17 C. W. N. 5) and the view which Mitter J. also took in Amiya Krishna's case, (46 C. W. N. 865). S. R. Das J. in his judgment observed as follows:
'It is next said that the plaintiffs have no right to claim accounts from the defendants who are the legal representatives of the Raja and reliance was placed on the observations of Mookerjee J. in Kumeda Charan Bala v. Asutosh Chattopadhyaya and of Mitter J. in Amiya Krishna v. Debendralal. In the first place this suit was instituted against the Raja himself and on his death during she pendency of the suit his legal representatives were substituted in his place. Therefore this suit was not initially against the legal representatives. In the next place the plaintiffs' claim is for the sum of Rs. 75,000 said to have been received by the trustees including the Raja and not spent for the benefit of the trust estate. It is for following the trust property and such a suit is clearly contemplated and protected by Section 10, Limitation Act. In Soar v. Ashwell the suit was against the personal representatives. The plaintiff's claim is for the whole of the said sum. It may be that the defendants may account for the same or part thereof. The suit as framed is not in my opinion a mere suit for accounts.'
These observations of Das J. to my mind conclude the matter and I also agree with the same. The net result therefore is that if in first place if a suit for accounts is filed originally against, the agent or the trustee and after the institution of such suit the agent or trustee dies whether before or after the preliminary decree the suit can be proceeded with against the heirs and legal representatives of the deceased agent or trustee. In the second place, if the suit against the representatives of a deceased agent is not a suit for accounts but a suit for the recovery of a specific sum of money then even if in determining the validity of the plaintiff's claim account has to be gone into such a suit is maintainable. But a suit for accounts pure and simple without any claim for any specific sum of money against the representatives of a deceased agent is in my opinion not maintainable and I am supported in my view both by the decision in Kumeda Charan Bala's case arid the decision of Mitter J. reported in Amiya Krishna v. Debendralal, 46 C. W. N. 865 and by the view expressed by S. R. Das J. in the case to which I have just now referred.
18. Before concluding this matter, I should refer to one decision on which Mr. Meyer laid considerable emphasis. That is a decision of Lokur J. of the Bombay High Court in the case of Purshottam Vasudeo v Ramkrishna Govind, : AIR1945Bom21 In that case the learned Judge relied on a decision reported in Premdas v. Charandas, A I. R. (16) 1929 Lah. 362 and came to the conclusion that a suit for accounts against an agent is maintainable against his legal representative after his death and that only the burden of proof will be upon the principal to establish his case. I am unable to agree with His Lordship's decision on this point. The correct view seems to me to be that the causes of action against the trustee and against his legal representatives are different. The agent is bound to render accounts, to explain the same and support the same by voucher. But the cause of action against his legal representative is for recovery of specific sums of money misappropriated by the trustee or for damages for loss suffered by the estate due to the negligence or misconduct of the trustee out of his estate in the hands of his representatives. In this connection it would be helpful to refer once again to the observation of Sir Asutosh Mukerjee in Kumeda Charan Bala's case, (17 C. W. N. 5) which are as follows:
'On the other hand, the view taken by Wilson J. in Lawless v. Calcutta L. & S, Co. that upon the death of the agent, a fresh right accrues to the principal against the representative of the agent, supports the position that the right and remedy against the representative are not identical with those against the agent.'
19. That being my view, it would be necessary in this case to examine the plaint and to find out whether the suit instituted against Mr. Banerjee's client is a pure suit for accounts or whether it is a suit for recovery of specific sums of money misappropriated or for loss suffered due to the negligence or misconduct of the agent. I have at the beginning of my judgment fully dealt with the averment made in the plaint and from the said averments it is abundantly clear that the suit which is filed against Mr. Banerjee's client is a suit for accounts simplicities and by no stretch of imagination it can be said that it is a suit for recovery of a specific sum of money misappropriated or for loss suffered due to negligence or misconduct of Pramatha Nath Mullick. In fact the averments mace as against Mr. Banerjee's clients are extremely vague. In para 25 of the plaint, the plaintiff merely says that Manmatha alleged that Pramatha until his death on the 23rd August 1943 was in possession, custody, control and management of the said trust properties and should those allegations be found correct the plaintiff claims accounts against his heirs. Thus the plaintiff himself does not make those allegations but puts them on Manmatha Nath Mullick as having made those allegations. The substance of the plaint as originally filed remains the same. The allegations made in the plaint are all against Manmatha Nath Mullick alone and those allegations remained unchanged upto the end. Nowhere in the plaint the plain-tiff has made any allegations against Pramatha Nath Mullick. There is no charge in the plaint against Pramatha Nath Mullick of being guilty of misappropriation or mala administration or causing loss to the estate by reason of his negligence or misconduct. Therefore, in my opinion, it is abundantly clear that the claim in the plaint as against Mr. Banerjee's client is a claim for accounts simplifier. In the premises I have come to the conclusion that the claim for accounts against Mr. Banerjee's client is not maintainable. 20. There will be a decree for administration, discovery and necessary enquiries. The suit against Abhiram Mullick for accounts will be dismissed. There will be a decree for accounts against defendants 1 to 4 as heirs and legal representatives of Manmatha Nath Mullick and the period for which the accounts would be taken would start from the year 1916. As the defendants 1 to 4 are the heirs of the original trustee defendant Manmatha Nath Mullick and were substituted as defendants after his death, I give the same directions which were given by Mitter J. in the case reported in Brijkishore v. Nazuk Bai, 51 C. W. N. 157. Defendants 1 to 4 are to file books, papers and vouchers of the estate kept by Manmatha Nath Mullick from the year 1916 upto the date of his death. If the accounts and papers for the same period be not filed by defendants 1 to 4 the plaintiff would be entitled to adduce evidence to show what sums of money had been realised by Manmatha Nath Mullick and had not been accounted for. In that case, defendants 1 to 4 will be allowed to adduce evidence to show that the sum or sums of money alleged by the plaintiff to have been realised by Manmatha Nath Mullick have not in fact been realised by Manmatha or to show how the said sums have been spent by him in due course of the administration of the trust. If the accounts papers and vouchers are not produced either in part or wholly during the period of accounting the Assistant Referee is at liberty to find if they have been withheld and make such inference as he would think proper. I make it clear that there would be no obligation on the part of defendants 1 to 4 to explain the accounts kept by the deceased Manmatha Nath Mullick. Costs of all parties to come out of the estate. Certified for two counsel.