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Sukumari Gupta and ors. Vs. Dhirendra Nath Roy Chowdhury and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata
Decided On
Reported inAIR1941Cal643
AppellantSukumari Gupta and ors.
RespondentDhirendra Nath Roy Chowdhury and ors.
Cases ReferredMoran v. Mittu Bibi
Excerpt:
- nasim ali, j.1. this is an appeal by the plaintiff in a suit raised by him on 16th march 1936, for recovery of rs. 8000 as principal and interest on a bond (ex. 5) executed in his favour on 23rd july 1924 by defendant 20 as common manager appointed under section 95, ben. ten. act, of sidhakati estate of which defendants 1 to 14 are proprietors. the bond in suit was executed for rs. 4000 with the permission of the district judge of backergunj. plaintiff's case is that out of this amount rs. 2340 was set off against his dues from the sidhakati estate (hereinafter referred to as the 'estate') on account of a loan taken by kali kumar ganguli, the previous common manager of the estate, and that the balance, namely rs. 1660, was paid in cash to defendant 20. plaintiff's case further is that.....
Judgment:

Nasim Ali, J.

1. This is an appeal by the plaintiff in a suit raised by him on 16th March 1936, for recovery of Rs. 8000 as principal and interest on a bond (ex. 5) executed in his favour on 23rd July 1924 by defendant 20 as common manager appointed under Section 95, Ben. Ten. Act, of Sidhakati estate of which defendants 1 to 14 are proprietors. The bond in suit was executed for Rs. 4000 with the permission of the District Judge of Backergunj. Plaintiff's case is that out of this amount Rs. 2340 was set off against his dues from the Sidhakati estate (hereinafter referred to as the 'estate') on account of a loan taken by Kali Kumar Ganguli, the previous common manager of the estate, and that the balance, namely Rs. 1660, was paid in cash to defendant 20. Plaintiff's case further is that defendant 20 as common manager paid to the plaintiff interest on this bond from time to time and that on account of the payment of interest on this loan the claim on the bond in suit has not been barred by limitation. The defence of the proprietor defendants in substance is that there was no consideration for the bond in suit at all and that even if there was any they were not bound to pay anything to the plaintiff as the alleged loan was not incurred for the benefit of their estate. They also plead limitation. The defence of defendant 20 is that he is not at all liable for the bond in suit and that the suit is not maintainable against him inasmuch as no notice under Section 80, Civil P.C., was served on him and the permission of the Court appointing him common manager to sue him was not obtained.

2. The trial Judge has dismissed the suit. His findings are these : (1) That out of the consideration of the bond in suit Rs. 2340 was set off against plaintiff's dues on account of a loan given by him in the benami of one Sasi Bhusan to Kali Kumar, the previous common manager and the balance, viz., Rs. 1660 was paid in cash by the plaintiff to defendant 20. (2) That the loan contracted by Kali Kumar was not for the benefit of the estate and that in any event the said debt could have been paid off by skilful management. (8) That there was no justification for borrowing Rs. 1660 from the plaintiff by defendant 20 and that the said loan was not incurred for the benefit of the entire estate. (4) That defendant 20 obtained permission from the District Judge to raise the loan of Rs. 1660 by practising fraud upon the District Judge as well as upon defendants 1 to 9 and husband of defendant 10 for whose benefit the raising of the said loan was alleged by defendant 20 to have been necessary. (5) That the loan in question was contracted for a purpose unconnected with the estate and that the raising of such a loan is not a legal duty of a common manager appointed under the provisions of the Bengal Tenancy Act. (6) That defendant 20 was not competent to save limitation against the proprietors by paying interest on the disputed loan inasmuch as he was not their agent. (7) That the suit is not maintainable against defendant 20 as no notice under S.80, Civil P. C, was served on him and as no permission of the District Judge to sue him was obtained.

3. On 3rd June 1920 Kali Kumar obtained permission of the District Judge to raise a loan of Rs. 2400 from Sasi Bhusan Gupta to pay off debts amounting to Rs. 2150 due to (a) Jogendra Nath Sen and others, (b) Rindhon Samity and (c) Jnanendra Mohan Roy Chaudhury (ex. 1-A, Ex. 9-B). He however borrowed only Rs. 2000 (Ex. 4-K, Ex. 4-J, Ex. 4-1 and Ex. C). Although the bond for Rs. 2000 was executed in favour of Sasi Bhusan (P.W. 4) his evidence shows that the money which was lent belonged to the plaintiff and that he was the benamidar of the plaintiff. Out of this amount Rs. 1700 was raised on behalf of defendants 1 to 8 and Rs. 300 on behalf of defendant 9 (Ex. C). This amount of Rs. 2000 would not have been raised by Kali Kumar on behalf of these nine proprietors only unless they had authorised him to do so. At the time when the bond in suit was executed Rs. 289 was due as interest on the amount raised on behalf of defendants 1 to 8 and Rs. 51 was due as interest on the amount raised on behalf of defendant 9 (ex. c and Ex. A- (6)). The total amount due to the plaintiff on account of this loan at the time of the execution of the bond in suit was, therefore, Rs. 2340. This amount was set off against the consideration of the bond in suit with the consent of defendants 6 to 9 (ex. 16). The learned advocates appearing on behalf of the proprietor respondents contended before us that the recovery of the debt contracted by Kali Kumar was barred by limitation at the time of the execution of the bond in suit. I am unable to accept this contention. There is no evidence in this case to show what was the due date of the bond. Interest on this amount was paid by Kali Kumar and defendant 20 from time to time. The proprietors themselves consented to set off this amount against the consideration of the bond in suit. The materials on the record of the present ease are not sufficient to show that Kali Kumar could have paid the debts due from defendants 1 to 9. by skilful management without borrowing any money.

4. The learned advocates appearing for the proprietor respondents assailed the finding of the trial Judge that the sum of Rs. 1660 which was a part of the consideration of the bond in suit was paid in cash by the plaintiff to defendant 20. The learned Judge has discussed the evidence on this point in his judgment. This evidence was criticised before us at great length by the learned advocates for the proprietor respondents. I do not see any force in this criticism. The evidence on this point clearly establishes that the plaintiff paid Rs. 1660 in cash to defendant 20. I therefore affirm the finding of the trial Judge on this point. Defendants 1 to 8 applied to the District Judge for permitting defendant 20 to raise Rs. 1000 for payment to them for the purchase of certain properties as there was no other means to get the said money except by borrowing. The evidence of defendant 20 is that defendant 9 and the husband of defendant 10 approached him to raise loan on their behalf (Rs. 380 for defendant 9 and Rs. 200 for the husband of defendant 10) and that he obtained the permission of the District Judge to raise Rs. 1660 in cash for payment to defendants 1 to 9 and the husband of defendant 10. The husband of defendant 10 died before the institution of this suit. Defendants 10, 11 and 13 have not deposed in this suit. Defendant 9 in his evidence stated that he did not ask defendant 20 to raise any money on his behalf. The evidence of defendant 20 that the husband of defendant 10 and defendant 9 asked him to raise money on their behalf finds support from his report to the District Judge. I therefore see no reason to disbelieve his evidence.

5. The account-books of the estate show that out of Rs. 1660 received by defendant 20 from the plaintiff as part of the consideration of the bond in suit, Rs. 35-9-0 was spent for the stamp and registration of the bond in suit, defendants 1 to 8, the husband of defendants 10 and 11 to 13 were paid Rs. 1100 and Rs. 200 respectively and that Rs. 380 was credited to the account of defendant 9 : see Ex. A (5), Ex. A (6), Ex. A (7) and Ex. A (8). The account books also show that defendant 9 withdrew monies from his account from time to time. I do not believe the evidence of defendant 9 that he did not receive any money from the common manager. I also do not believe the evidence of defendant 12 that he and the husband of defendant 10 and defendants 11 and 13 did not receive Rs. 200 inasmuch as I find no sufficient reason to hold that the entries in the account books of the estate are false. The husband of defendant 10 was the karta of the joint family of which defendants 11 to 13 were members. He asked defendant 20 to raise Rs. 200 to enable him to acquire certain properties jointly with defendants 1 to 8. Certain properties in his name and the name of defendants 11 to 13 were acquired jointly with defendants 1 to 8 (Exs. 7 and 8) and this amount was spent in connexion with this acquisition. The trial Judge has found that defendant 20 obtained permission from the District Judge by submitting a fraudulent report. The reason given by the learned Judge in support of his finding is this: at the time when defendant 20 applied to the District Judge for permission to raise the loan in question he had sufficient funds in his hand on behalf of defendants 1 to 9 and the husband of defendants 10 and 11 to 13. He did not disclose the existence of this fund to the District Judge or to these defendants.

6. The evidence of defendant 20 is that this money was not actually available to him as it was in the custody of the son of Kali Kumar who was the da facto manager of the estate. The evidence in this case shows that though defendant 20 was appointed common manager of the estate after the death of Kali Kumar, Kali Kumar's son Akshoy was the de facto manager of the estate and that the proprietors were aware of this fact. It seems to me that defendant 20 as well as defendants 1 to 9, the husband of defendant 10 and defendants 11 to 13 knew that defendant 20 had no money actually in his hand on their behalf. Defendant 20 should have disclosed this fact to the District Judge. The very fact that defendants 1 to 8 in their petition stated that defendant 20 was not in a position to pay to them except by borrowing and the fact that the permission to raise the loan was given by the District Judge at their instance indicate that defendant 20 did not intentionally suppress this fact from the District Judge. As the proprietors on whose behalf defendant 20 raised the money were all aware of the real state of affairs, I am not prepared to say that he practised any fraud upon them. The endorsements on the back of the bond in suit show the payment of interest by defendant 20 as common manager from time to time. The account books of the estate show that interest on the bond in suit was paid only out of the share of defendants 1 to 8 in the income of the estate.

7. It was contended on behalf of the proprietor defendants that the loans given by the plaintiff to Earn Kumar or to defendant 20 were not bona fide loans as he was in collusion with them. I, however, find no reliable evidence in support of this contention. On the other hand, the evidence in this case clearly shows that plaintiff lent money to the two common managers relying in good faith on the permission granted by the District Judge to raise these loans. My findings are these : (1) That defendants 1 to 9 authorized the previous comnon manager Kali Kumar to raise Rs. 2000 on their behalf without any personal liability on the part of Kali Kumar. (2) That Kali Kumar raised this loan from the plain. tiff without incurring any personal liability with the permission of the District Judge and paid off the debts of defendants 1 to 9 out of this loan. (3) That Kali Kumar and defendant 20 paid interest on this loan out of the share of defendants 1 to 9 in the income of the estate in their hands. (4) That at the time of the bond in suit, defendants 1 to 9 acknowledged their liability to the plaintiff for Rs. 2370 and proposed to set off this amount against the consideration of the bond in suit. (5) That defendant 20 thereupon obtained the permission of the District .Judge to set off this amount against the consideration of the bond in suit. (6) That defendant 20 was authorized by defendants 1 to 9 and the husband of defendant 10 to borrow Rs. 1660 in cash from the plaintiff for payment to them. (7) That defendant 20 thereupon borrowed this amount with the permission of the District Judge and executed the bond in suit and that this amount was received and spent by defendants 1 to 9, the husband of defendant 10 and defendants 11 to 13 for their benefit. Defendant 20 did not by borrowing this amount make himself personally liable for the amount secured by the bond. (8) That the plaintiff in good faith advanced money to Ram Kumar and defendant 20 relying on the permission of the District Judge, knowing full well that there was no personal liability on their part to pay the debts. (9) That defendant 20 did not practise any fraud either upon the District Judge or upon the proprietors of the estate. (10) That defendant 20 as common manager paid interest on the bond in suit from time to time out of the share of defendants 1 to 8 in the income of the estate having been authorized to do so by defendants 1 to 8.

8. The question then arises whether on these findings, plaintiff is entitled to get any relief in this suit, and if so, against whom. I am not aware of any authority or principle which precludes a proprietor or a set of proprietors of an estate under the management of a common manager appointed by the District Judge under Section 95, Ben. Ten. Act, from borrowing money without the permission of the District Judge for purposes unconnected with the manage-'.merit of the estate. He can pay off the debt Incurred by him out of his share of the income of the estate which may be paid to him by the common manager or in any other way he likes provided he does not interfere with the management of the common manager. A creditor therefore can lend money to him agreeing to the repayment of the debt by such proprietor or set of proprietors. The common manager is not bound to pay directly to such a creditor out of the share of that particular proprietor or set of proprietors in the profits of the estate unless the order of the District Judge to that effect is obtained, as under Section 98,cl. (4),Ben. Ten. Act, the common manager is to deal with and distribute the profits of the estate in accordance with the orders of the District Judge. If a proprietor or a set of proprietors wants to borrow money for purposes unconnected with the management of the estate and desires that the debt to be incurred by him or them is to be paid out of his or their shares of the profits of the estate in the hands of the common manager such a proposal can be considered by the District Judge as a matter dealing with the profits of the estate. The object of the permission of the District Judge authorizing Kali Kumar and defendant 20 to raise the loans in question was to enable the common manager to repay the debt out of the share of the profits of the proprietors who wanted those loans.

9. Although the common manager is an officer of the Court, there is nothing in law which prevents a particular proprietor or a set of proprietors from authorizing him to raise in his own name a particular loan as their agent. In this view of the matter, Kali Kumar may be considered as agent of defendants 1 to 9 for raising the loan of Rs. 2000 from the plaintiff in the year 1920 and defendant 20 may be considered as agent of defendants 1 to 9 for setting off their debt against the consideration of the bond in suit and as agent of defendants 1 to 9, husband of defendant 10, for borrowing Rs. 1660 in cash on the bond, in suit. Out of the consideration of the bond in suit, defendants 1 to 8 have been benefited to the extent of Rs. 8069, defendant 9 to the extent of Rs. 731 and defendants 10 to 13 to the extent of Rs. 200. Defendant 20 was authorized by the defendants to raise the loan in question in his name without undertaking any personal liability and to repay the loan out of the share of these defendants in the profits of the estate. He paid within the period of limitation interest from time to time out of the share of the income of these defendants and endorsed these payments on the back of the bond in suit. Although he paid the interest out of the share of defendants 1 to 8 only in the income of the estate he did not disclose this to the plaintiff. Plaintiff received interest presumably as paid on behalf of all the debtors. The claim against defendants 1 to 13 on the bond in suit is therefore saved from the bar of limitation by the provisions of Section 20(1), Limitation Act. As defendant 20 did not undertake to pay personally the amount due on the bond in suit and as this was known to the plaintiff, plaintiff cannot get any relief against defendant 20. Defendants 1 to 13 only are therefore liable on the bond in suit. Under the provisions of the Bengal Money-lenders Act, 1940, plaintiff-appellants are entitled to receive Rs. 4565 from defendants 1 to 8 (now represented by respondents 1 to 7); Rs. 1141 from defendant 9 (now represented by respondent 8); and Rs. 354 from defendants 10 to 13 (respondents 9 to 14). Respondents 1 to 7 will pay Rs. 4565 in nine instalments specified below:

April 30, 1941 ... ... Rs. 500

April 30, 1942 ... ... Rs. 500

April 30, 1943 ... ... Rs. 500

April 30, 1944 ... ... Rs. 500

April 30, 1945 ... ... Rs. 500

April 30, 1946 ... ... Rs. 500

April 30, 1947 ... ... Rs. 500

April 30, 1948 ... ... Rs. 500

April 30, 1949 ... ... Rs. 565.

10. Respondent 8 will pay Rs. 1141 according to the following instalments:

April 30, 1941 ... ... Rs. 100

April 30, 1942 ... ... Rs. 100

April 30, 1943 ... ... Rs. 100

April 30, 1944 ... ... Rs. 100

April 30, 1945 ... ... Rs. 100

April 30, 1946 ... ... Rs. 100

April 30, 1947 ... ... Rs. 100

April 30, 1948 ... ... Rs. 100

April 30, 1949 ... ... Rs. 100

April 30, 1950 ... ... Rs. 100

April 30, 1951 ... ... Rs. 141.

11. Respondents 9 to 14 will pay Rs. 354, according to the following instalments:

April 30, 1941 ... ... Rs. 54

April 30, 1942 ... ... Rs. 100

April 30, 1943 ... ... Rs. 100

April 30, 1944 ... ... Rs. 100.

12. The result therefore is that this appeal is allowed. The suit is decreed as directed above. The decree of the trial Judge dismissing the suit against the other defendants is affirmed. The parties in this suit will bear their own costs throughout in the trial Court as well as in this Court.

Pal, J.

13. I agree that the appeal should be allowed and the suit decreed in the manner directed by my learned brother. The broad circumstances of this case are these: The plaintiff's suit is for the recovery of money due upon a registered bond executed by defendant 20 who at that time was the common manager of the estate of defendants 1 to 14. One Kali Kumar Ganguly was appointed the common manager of the estate of defendants 1 to 14 (Sidhakathy Estate) under Section 95, Ben. Ten. Act, some time in 1913. On 1st June 1920 Kali Kumar applied to the District Judge of Bakergunj for permission to raise a loan of Rs. 2400 from Sashy Bhushan Gupta at an interest of 10 per cent. in order to repay certain debts of the estate. On 3rd June 1920 the District Judge granted the permission and Kali Kumar took a loan of Rs. 2000 from Sashy Bhushan. Kali Kumar died in 1924. Defendant 20 Khagendra Nath Chatterjee was appointed permanent common manager of the estate in his place under Section 95, Ben. Ten. Act, on 3lst March 1924 though even before that he was so appointed temporarily on and from 31st March 1924. On 21st July 1924, defendants 1 to 8 applied to the District Judge, Backergunj, praying that the common manager might be permitted to raise a loan of Rs. 1000 from the plaintiff in order to enable them to purchase a property. In this petition defendants 1 to 8 made it clear that if the debt was not in the meantime repaid by the common manager they would repay it out of their own funds if and when they would get the estate released from the common manager. On 22nd July 1924 the then common manager, Khagendra Nath Chatterjee, submitted a report stating that the creditors of the estate, (viz. Sashi Bhushan Gupta, Rs. 2000 and Rs. 340 and loan office Rs. 500 and 160) were pressing for repayment. He prayed for permission to raise a loan of Rs. 4000 for the following purposes, viz:

Rs. 1000 for defendants 1 to 8 for the purchase of property.

Rs. 200 for Lalit Mohan Ray Choudhury, husband of defendant 10.

Rs. 300 for Kulada Charan Choudhury, defendant 9.

Rs. 2500 to repay loans of the estate.

14. In the said petition the loan was proposed to be allocated to the different proprietors in the following manner:

In the petitioner's share (i. e. defendants 1 to 8) ... Rs. 3069In Kulada Babu's share(defendant 9) ... Rs. 731In Lalit Babu's share(defendant 10) ... Rs. 200--------Total Rs. 4000.

15. It was further stated in the report that the proprietors had agreed to the proposal. On this report of the common manager the District Judge called for a report from the Sheristadar and the latter on 23rd July 1924 submitted his report recommending that the proposed loan of Rs. 4000 might be sanctioned. In his report the Sheristadar also pointed out that the total amount of Rs. 4000 to be so raised -was to be repaid from the proprietors' shares as noted in the report of the common manager and that the proprietors had agreed to the proposal. On the same day the District Judge sanctioned the proposal and in his order sanctioning the same referred to the petition of defendants 1 to 8 and to the report of the common manager. The plaintiff advanced the amount on the basis of this sanction and with the full knowledge of the contents of the petition of the proprietors and of the reports. After the loan the common manager credited the several accounts of the different groups of proprietors in the following manner:

Dhirendra & others Kulada Lalit(defdts. 1 to 8) (Defdt. 9) (Defdt. 10)Rs. 3069 . Rs. 731 Rs. 200.

16. Thus he completely gave effect to the proposal made in his report. In raising this loan the bond in suit for Rs. 4000 was executed by the common manager in favour of the plaintiff and in it the petition of the proprietors and the report of the common manager were recited. The recital in the bond of the necessity for the loan was the repayment of Sashi Bhushan's debt, the purchase of property and various other purposes. The bond was executed and registered on the same day, viz., 23rd July 1924. An attempt has been made to show that the actual disbursement of the money thus raised by the loan was not in the above proportion. The evidence does not support this contention and in my opinion this is not material for the purposes of the plaintiff. There is no doubt that the common manager credited the entire amount as stated above and that the different sets of the proprietors as indicated above took the benefit of the loan. The due date for repayment of the loan was given in the bond as chaitra 1331 B.S. (13th April 1925) and the interest stipulated for was 10 per cent. per annum. The common manager (defendant 20) made the following payments towards interest:

26th Jaiatha 1332 B.S. ... Rs. 100(9th June 1925)28th Chaitra 1334 B.S. ... Rs. 100(10th April 1928) 31st Chaitra 1334 B.S. ... Rs. 125(13th April 1928)16th Bhadra 1335 B.S. ... Rs. 80(1st September 1928) 3rd Chaitra 1336 B.S. ... Rs. 80(17th March 1930)5th Magh 1337 B.S. ... Rs. 350.(19th January 1931)

17. After giving credit for these payments the amount still due on the bond on the date of the suit (16th March 1936) stood at Rs. 10,545-12-9. The plaintiff claims Bs.8000. The plaintiff's case is that the proprietor defendants are personally liable for the amount and he bases his claim in this respect on the following grounds : (1) That according to law, justice, equity and contract, the defendants are bound to repay the dues on the bond in suit personally, and also on the basis that their estate is liable therefor (plaint, para. 6). (2) That the proprietor defendants are personally liable for the amount claimed (a) in view of their promise that if the amount borrowed from the plaintiff was not paid by the common manager out of the estate, the proprietor defendants would pay it personally .. .; (b) the amount having been borrowed from the plaintiff by the then common manager with the consent of the proprietors and the permission of the District Judge for the benefit of their estate and for purchasing new properties on behalf of the estate .... (plaint, para. 7); (c) the defendants by their application dated 13th July 1924 having appointed defendant 20, Khagendra Nath Chattopadhya as their agent for purchasing properties in their behalf and borrowing money therefor and the said Khagendra Nath Chattopadhya having borrowed the said sum from the plaintiff .... (plaint, para, 9). The present suit was instituted on 16th March 1936 and the plaintiff sought to save limitation against the proprietor defendants by the several payments on account of interest made by the common manager as above stated. These payments were duly endorsed on the back of the bond by the common manager. The several endorsements on the back of the bond were made in the following manner : 'Paid out of interest on....Rs. ... only.

Khagendra Nath Chattopadhya,Common Manager.(Date)

18. It may be pointed out here that though the endorsements stood as above all the. payments were debited in his accounts by the common manager to the account of defendants 1 to 8 and were stated there as on the requisition of those defendants. The learned Subordinate Judge dismissed the suit as against all the defendants, taking the view : (1) that as regards defendant 20 (the common manager), he was an officer of the Court and was not an agent of the proprietors. The plaintiff had not taken the permission of the District Judge nor had served any notice under Section 80, Civil P.C., to bring a suit against him. The plaintiff's suit against defendant 20 was not therefore legally maintainable against him, though the defendant was no longer the common manager of the estate; (2) that as regards the other defendants, the loan covered by the bond (Ex. 5) was not incurred for the benefit of the entire estate, inasmuch as the raising of a loan for a purpose unconnected with the estate could not be called a legal duty under the provisions of the Bengal Tenancy Act, and inasmuch as there was no knowing whether the loans referred to in Kali Kumar's petition were contracted for the benefit of the estate; (3) that the claim was also barred by limitation inasmuch as the payments by the common manager were ineffective for the purposes of Section 20, Limitation Act, (a) because the common manager was not an agent of the proprietors; (b) because he could not bind the proprietors, the loan not having been contracted for the benefit of the entire estate represented by the proprietors. In the result, the learned Subordinate Judge dismissed the suit, being of opinion that the suit against defendant 20 Khagendra was not maintainable for non-service of notice under Section 80, Civil P.C., and for not taking the permission of the District Judge to institute the suit against him.

19. As against the other defendants he found that the proprietors, defendants 1 to 19, could not be made responsible for the plaintiff's claim as the account of the common manager defendant 20, had not been adjusted and as the estate had not been benefited by the loan contracted by the common manager. The plaintiff has preferred the present appeal against this decision. The case raises several points of law and fact. In my opinion these can be best considered by taking them differently with the different sets of the defendants. As regards defendant 20, the common manager, the points that shall have to be considered are : (1) (a) Whether any notice under Section 80, Civil P.C., was necessary for this case. (b) Whether leave of the District Judge to sue the common manager was needed in this ease. If so, what will be the consequence of not taking such leave? (2) Whether the common manager was liable personally for the debt. As regard the other defendants, the following points will require our consideration and will affect them equally, viz.: (1) The scope and extent of the power of the common manager appointed under Section 95, Bengal Tenancy Act, to raise any loan with the sanction of the District Judge. (2) Whether the purpose of the loan will affect the liability of the parties in respect thereof. (3) The extent of the liability of the proprietors to the creditor in respect of the loan incurred by the common manager with the sanction of the District Judge.

20. As regards defendants 1 to 8, the points to be considered are: (1) Whether the common manager was constituted their agent (a) for the purpose of raising the loan of Rs. 1000; (b) for the purpose of raising the loan of Rs. 3069; (2) Whether payments made by the common manager saved the bar of limitation as against them. As regards defendant 9, we shall have to consider : (1) Whether the common manager was constituted his agent (a) for the purpose of raising the loan of Rs. 300; (b) for the purpose of raising the loan of Rs. 731. (2) Whether the payments of interest made by the common manager would save the bar of limitation as against him. As regards defendants 10 to 13, the points that require our consideration are : (1) Whether the common manager was constituted their agent for the purpose of raising the loan of Rs. 200. (2) Whether the payments of interest made by the common manager would save the bar of limitation as against them. In any event the plaintiff's claim shall have to be reduced in view of the provisions of the Bengal Money-lenders Act, 1940. I shall first take up the case against defendant 20. Section 80, Civil P.C., lays down that

no suit shall be instituted .... against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been .... delivered to him ....

21. Section 2 (17), Civil P.C., defines the expression 'public officer' and the said definition is wide enough to include a common manager appointed under Section 95, Ben. Ten. Act. Besides there is ample authority in support of the view that a common manager, appointed under Section 95, Ben. Ten. Act, like a receiver appointed in a suit under Order 40, Rule 1, Civil P.C., is a public officer within the (meaning of S.80, Civil P.C. Beni Madhab v. Deb Narayan ('20) 7 AIR 1920 Cal 575; Jatindra Mohan v. Rebati Mohan : AIR1932Cal275 and Rebati Mohan v. Jatindra Mohan may be cited in 'support of this view. So far as defendant 20 is sought to be made liable as the common manager, the suit will be against a public officer within the meaning of S.80, Civil P.C. The question is whether it can be said to be 'in respect of any act purporting to be done by such public officer in his official capacity.' Assuming that the loan was taken by the common manager as such and the bond was given by him as common 'manager, the act of taking the loan and executing the bond will be 'act done by a 'public officer in his official capacity.' The question therefore is whether the present suit can be said to be in respect of this act. In 59 Cal 96l2 at p. 976, Mukherjee J. assumed that a suit founded on a mortgage given by a common manager will require a notice under S.80, Civil P. C, if instituted against the common manager. From this he further concluded that such a suit even if brought against his successor in office will equally require the notice. On appeal, the Judicial Committee reversed this decision and observed:

In the case of a suit against public officer it is only where the plaintiff complains of some act purporting to have been done by him in his official capacity that notice is enjoined. Counsel for respondent contends that this condition was satisfied by the execution of the mortgage, or, alternatively, by the failure to pay off the mortgage. In their Lordships' opinion neither branch of this contention is sufficient to bring the section into play in the present case. On the first branch it is sufficient to point out that the mortgage was not executed by respondent 1, but by a former manager, and that the appellant does not complain in any way of the execution of the mortgage .... On the alternative contention their Lordships are unable to hold that non-payment by respondent 1 is 'an net purporting to be done by' the manager 'in his official capacity.' Under the general definition contained in Section 3, General Clauses Act, 1897, an 'act' night include an illegal omission but there clearly was no illegal omission in the present case. It is also difficult to see how mere omission to pay either interest or principal could be an act purporting to be done by the manager in his official capacity.

22. In my opinion on the authority of this decision of the Judicial Committee, a suit of the present description will not be one coming within S.80, Civil P.C. The act of executing the bond or taking the loan is the act done by the manager; the transaction is the result of that act. A suit founded on a mortgage may be a suit in respect of the mortgage, but it need not be a suit in respect of act which resulted in the mortgage. If there is any complaint in respect of that act - if, for example, there is any complaint in respect of execution of the mortgage - the suit will be a suit in respect of that act. The omission complained of by the plaintiff is the omission to pay off the amount and the suit is no doubt in respect of this omission. But this omission cannot, on the above authority of the Judicial Committee, be said to be an act purporting to be done by the manager in his official capacity. In my judgment notice under S.80, Civil P. C, was not required for the present suit. It is doubtful whether any leave to sue the common manager was needed in this case : Dinshaw v. Amritlal & Co. ('31) 18 AIR 1931 Pat 298. Even assuming that such leave was needed, it was not a condition precedent to the institution of the suit: Banku Behari v. Harendra Nath ('11) 15 CWN 54, Sarat Chandra v. Apurba Krishna ('11) 15 CWN 925, Maharaja of Burdwan v. Appurba Krishna ('11) 15 CWN 872 and Jamshedji v. Husseinbhai Ahmadbhai ('20) 7 AIR 1920 Bom 11. The plaintiff should have been given time to take such leave before dismissing the suit on this ground : Rustomji v. Fredrick Gaebele ('19) 6 AIR 1919 Cal 426. As regards the question of personal liability of the common manager, I am inclined to the view that in the facts and circumstances of the present case, in raising this loan the common manager was constituted an agent for the special purpose of the transaction and acted as such agent for the different groups of the proprietors. In any case in this transaction neither the common manager intended to pledge his personal credit - himself looking for an indemnity to the assets of the estate under his management - nor did the creditor (plaintiff) accept his personal credit, ultimately looking forward to the benefit of his debtors' right of indemnity out of the assets of the estate. The common manager came in on special requisition and only as the convenient person, being in a better position to pay off the loan out of the profits of the estate available to the respective proprietors on future distributions. In this view of the transaction the liability of the parties in respect of it shall stand as follows : (1) Defendant 20 shall not be personally liable. (2) Defendants 1 to 8 shall be liable only in respect of Rs. 3069 of the loan this being the portion of the loan raised for them on their special requisition. (3) Defendant 9 shall be liable only in respect of Rs. 731 of the loan, this portion being raised for him and he having accepted the transaction. (4) Defendants 10 to 13 shall be liable only in respect of Rs. 200 of the loan, this being raised for them and they having accepted the transaction. The liabilities of defendants 1 to 13 as above specified shall, of course, be subject to the bar of limitation, if any.

23. If the common manager be looked upon as an agent specially constituted for the purposes of this loan, then prima facie he is not personally bound by it. Section 230, Contract Act, exonerates him from any such liability in the absence of any contract to that effect. The question whether an agent, who has made a contract on behalf of his principal, is to be taken to have contracted personally, or merely on behalf of the principal, and, if personally what is the extent of his liability on the contract, depends on what appears to have been the intention of the parties, to be deduced from the nature and terms of the particular contract and the surrounding circumstances. In the present case, my reading of the situation is that the parties intended (1) that the agent shall not be personally liable; (2) that the agent shall pay out of the assets of the estate under his management; (3) that the estate of the proprietors shall ultimately be liable to pay. The view that we have taken of the transaction makes it unnecessary for us to consider what would have been the position had the common manager acted as such in raising this loan. But as the matter has been argued before us fully I shall not be justified in withholding my views of the matter. As will appear from what I have said later on, the common manager did not in our, judgment pledge his personal credit in this matter, even assuming that he acted in his capacity as the common manager, the suit as against him should consequently be dismissed. As regards the other defendants, I shall take up the question of limitation first. The relevant portion of Section 20 (1), Limitation Act, runs as follows:

Where interest on a debt .... is before the expiration of the prescribed period, paid as such by the person liable to pay the debt .... or by his agent duly authorized in this behalf.... a fresh period of limitation shall be computed from the time when the payment was made.

24. The bond in suit being a registered one the period of limitation for the suit shall be as prescribed by Article 116 of Schedule 1. This article prescribes the period of limitation as six years, the description of the suit being given as 'for compensation for the breach of a contract in writing registered.' According to Section 20, Limitation Act, in the ease of payment of interest, it will be effective if it is made (1) by the person liable to pay the debt, or (2) by his agent duly authorized in this behalf. In the first case he need not be the person against whom the suit is instituted. 'The person liable to pay the debt' is more comprehensive than 'the debtor.' A surety, for example, will be 'a person liable to pay the debt' of the principal debtor, though he will not be 'the debtor.' Hence if a surety makes part-payment of the principal, this will not save limitation as against the principal debtor. If, however, . he makes payment of interest as such, this will save limitation as against the debtor as well. In order to be effective the payment of part of the principal must be by the debtor or his agent; payment by the person liable to pay the debt, if he is not the debtor, would not give fresh start to limitation. In the ease of payment of interest, however, the payment need not be by the debtor; it would suffice if the person liable to pay the debt makes the payment: see e. g., Askaram Sowkar v. Venkataswami Naidu ('21) 8 AIR 1921 Mad 102. In this case Sir John Wallis C. J., and Ramesam J., held that a purchaser of the equity of redemption is a person liable to pay the mortgage debt within the meaning of Section 20, Limitation Act. Hence, if under a mortgage decree for sale of the mortgage property, to which he is a party though exempted from personal liability, he pays interest as such, such payment gives a fresh period of limitation for execution of the decree. In this case reliance was placed on Bolding v. Lane (1863) 1 De GJ & S 122 and Chinnery v. Evans (1861) 11 HLC 115 at p. 135 as these English decisions were considered to be with reference to the identical language of the English Statute : see also 571 A 1.13 If there are several persons liable to pay, payment of interest by any one of them will have the effect of giving a fresh start to limitation. 'Person liable to pay' does not neceasarily mean the entire body of such persons. If a person, liable to pay, makes payment, such payment will, according to this section, be available against another person who was also liable to pay. This is what the words used in the section will lead to. 'The section does not say 'a fresh period of limitation shall be computed, etc.,' only as against the payer. As the section stands, it means that as soon as payment is made towards a debt within the specified time and by the specified persons, a fresh period of limitation for the debt will commence : see Domi Lal Sahu v. Roshan Dobay ('06) 33 Cal 1278; Krishna Chandra v. Bhairab Chandra ('05) 32 Cal 1077 and Saroda Charan v. Durgaram De Sinha ('10) 37 Cal 461. Section 21 (2), however, greatly restricts the operation of this section in this respect.

25. When the persons are related as joint-contractors, partners, executors or mortgagees, payment by one will not enure against others by the operation of Section 21. Otherwise the person making the payment is the person liable to pay and if the other requirements of Section 20 are complied with, then his payment will be available against all others liable to pay the debt. The facts and circumstances leading to the present transaction leave no room for doubt that the common manager was the person liable to pay the debt at least during the period during which he made the payments in question. Whether anyone else would be liable to pay the debt incurred by him is a different question. But if there be any such person a suit for the enforcement of that liability against such person shall have a fresh period of limitation by reason of these payments by the common manager.

26. It has been stated above that at least some of the defendants agreed to the loan proposal contained in the report of the common manager. So far as these defendants are concerned the common manager did also satisfy the condition of being their agent duly authorized in the behalf of making; the payment within the meaning of this section. The section does not require any formal authorization. Such an authority may even be implied from the facts and circumstances of the loan: see National Bank of Upper India, Ltd. v. Bansidhar ('29) 16 AIR 1929 PC 297. The very nature and form of the transaction indicates that it was expected on all hands that the common manager shall pay off the debt as far as possible out of the assets of the estate under his management. Upon the true meaning and effect of the transaction it was agreed between defendant 20 and the proprietor defendants that the former would discharge the latter's debt to the plaintiff-appellant in respect of both principal and interest. This implied an authority from the proprietor defendants to defendant 20 to pay the interest on their behalf as it became due and this is sufficient to make the payments by defendant 20 effective under Section 20, Limitation Act. The fact that the payments were debited in the common manager's books to the accounts of defendants 1 to 8 only and were stated there as on the requisition of these defendants would not affect the position in the absence of any evidence that while making these payments to the creditor the common manager did so with any such reservation. Coming now to the question of the liability of the proprietor defendants, the points, raised are not altogether free from difficulty. But the question as to 'in what exact legal relationship does a common manager appointed under Section 95, Ben. Ten. Act, stand with the proprietors is one of some importance. The fact of co-ownership and of compulsory common management is not an isolated occurrence in this country. It is a form of possession which becomes an important and almost a permanent phenomenon because of common occurrence. The transaction by the common manager in this particular case may roughly be viewed from the following several different angles with very different legal consequences : (1) The common manager as such is an agent of the co-owners. He acted as such in raising this loan, never pledging his personal credit and never intending to bind himself personally. The creditor also shared this intention. In such a case the proprietors alone will be liable, (i) all the proprietors may be liable jointly and severally, if raising such a loan can be said to be within the scope of the common management as indicated by Section 98, Ben. Ten. Act; (ii) at least the proprietors will be liable to the extent of the estate under the common management. (2) The common manager is not an agent of the co-owners. He is merely an officer of the Court and prima facie pledged his personal credit, looking for indemnity to the estate assets. In such a case he will be personally liable to the plaintiff. The plaintiff may also proceed against the proprietors on twofold grounds, namely (1) on the basis of his right of subrogation into the manager's right of indemnity; (2) on the just and equitable principle that as the acts of the manager, acting within his authority are the acts of the Court, the estate cannot be permitted to enjoy the benefit of those acts without being held responsible for the obligations arising out of them. In such case any equity against the manager will be available against the plaintiff as well. The plaintiff in such a case will be in no better position than the common manager so far as the proprietors are concerned. When the plaintiff is to proceed on either of these grounds it will be a pertinent enquiry whether the estate has at all been benefited by the act and whether the act was within the authority of the Court and of the manager. (3) The common manager acted not as common manager at all, but only as an agent specially constituted for the raising of the loan on behalf of the proprietors or some of them. He was simply an agent of the party concerned though he also happened to be the common manager. In such a case their respective liabilities will be determined by Section 230, Contract Act.

27. The legal proposition involved in the first two of the above questions has often been expressed in the form 'whether or not such a common manager can be said to be the agent of the proprietors.' The most diversified content may indeed be clothed in the form of a legal proposition, serving as the basis for judicial decisions. Every legal proposition which is to serve as the basis for judicial decision is itself a norm for decision and may be formulated in words, often asserting claim to universal validity, without reference to the case that might have occasioned it. There are very few authorities directly on the point whether the legal relationship between the proprietors and the common manager appointed under Section 95, Ben. Ten. Act, is that of principal and agent. But it has often been said that there is a close analogy in this respect between the position of a common manager appointed under Section 95, Ben. Ten. Act, and that of a receiver appointed in a suit under the provisions of the Code of Civil Procedure. Analogy may indeed often serve a very useful purpose and perhaps helps the stability of the norms for decision. The stability of the norms for decision receives a special respect when they are extended not merely to like or similar cases but also to cases that are only approximately similar. This makes it possible to apply a norm to cases as to which it is not a decision at all, on the sole ground that the latter are similar to the decided cases. But this projection of a norm to new cases, on the ground that these are approximately similar, is not without its danger.

28. Let us see how far the two cases are similar. Both a common manager under Section 95, Ben. Ten. Act, and a receiver appointed in a suit perhaps become officers of the Court by their appointment and in both the cases the intervention of the Court is occasioned by some quarrel. But to my mind the analogy does not proceed further than this. In the case of a receiver there is often a dispute as to the ownership of the property and the intervention of the Court is sought for or becomes necessary in order to manage the property and retain the assets for the ultimate rightful owner. The very object is to prevent anybody from taking any present benefit from the disputed property. It is very often in dispute as to who is entitled to this benefit. In the case of a common manager, it is really the case of having a common management through a common agent. The occasion for the appointment of a common manager is given in Section 93, Ben. Ten. Act. The section says:

(i) When any dispute exists between co-owners of an estate ... as to the management thereof; or (ii) when, owing to the existence of a large number of small cosharers in an estate...the tenants or landlords are put to inconvenience and harassment in the payment or receipt of the rent due ... the District Judge may....direct notice to be served on all the co-owners . . . calling on them to show cause why they should not appoint a common manager . . .

29. The ownership is not in dispute: the trouble is only in respect of the management, and but for the fact that the proper management of the estate is needed for the protection of parties other than the quarrelling owners, there would have been no intervention by the Court. The Court intervenes only when the parties fail to employ their common agent and the intervention is only for the purpose of giving them the common agent. The person who is thus employed is employed to act for and on behalf of the co-owners jointly and if we look to the definition of agent as given in Section 182, Contract Act, he will apparently satisfy all the requirements of that section unless, of course, the section requires that the employment should be an act of volition on the part of the principal. There is no reason why the co-owners should not look to the present benefit to be derived from the profits of the property and there is nothing in the law that does deprive them of this benefit even for the time being. These proprietors are not even disqualified like a ward of Court requiring any special care. Only in the interests of the parties concerned the Court intervenes to compel management of the property by a common agent and under certain circumstances takes upon itself the duty of making the appointment. Such an agent when so appointed may require some protection from the possible harassments by the proprietors. This may be and is amply safeguarded by defining his rights and liabilities. But beyond this it may not be unreasonable to see in him an agent of the proprietors.

30. A contract of agency is understood in English law as 'the employment of one person by another in order to bring the latter into legal relations with a third person.' See Bowstead on Agency, Article 2. The relationship of principal and agent may there be constituted (1) by express appointment, (a) by the principal or (b) by a person duly authorized by the principal to make such appointment; (2) by implication of law, (a) from the conduct or situation of the parties or (b) from the necessity of the case; (3) by subsequent ratification by the principal of acts done on his behalf. In English law

no man can become the agent of another person except by the will of that other person. His will may be manifested in writing or orally or simply by placing another in a situation in which, according to ordinary rule of law, or perhaps it would be more correct to say, according to the ordinary usages of mankind, that other is understood to represent and act for the person who has so placed him; but in every case, it is only by the will of the employer that an agency may be created : see Pole v. Leask (1860) 54 ER 481 and Samuel v. Whetherby (1908) 1 KB 184.

31. Agency may also arise by subsequent ratification or adoption by the principal of the act done by the agent : Markwick v. Hardingham (1880) 15 Ch D 339. A contract of agency may also arise because of the exigencies of the circumstances. This doctrine may also be extended so as to meet the needs of growing society to every case in which one person has to act for another in cases of emergency or necessity: Prager v. Blatspiel Stamp and Heacock Ltd. ('24) 1 KB 566. In Indian law the definition given in Section 182, Contract Act, seems to be somewhat wider, in this respect. Section 182, Contract Act, defines an agent as 'a person employed to do any act for another or to represent another in dealings with third persons'. The definition does not require that the employment should be by that other person. The definition does not limit the employment to one by the principal only. To my mind, it will include an employment by any authority authorized by law to make the employment. In my opinion, when several co-owners quarrel amongst themselves and in the interests of all as also of third persons who would possibly suffer by the quarrel the statute considers it necessary that these quarrelling persons should have a common agent and further provides for the employment of that agent in case the co-owners fail to agree amongst themselves in the matter of appointment of such common agent, such common agent when so employed by the statutory authority will come within this definition though on policy his rights, liabilities and duties may be defined by that statute. Of course, the relationship will not be contractual and their rights and liabilities inter se will not be dependent on any agreement of theirs. In view of the fact that the contractual relation of principal and agent has already gathered round it certain well-known and settled incidents very different from those that will govern the relationship thus created by the statute, it may not be expedient to characterize the legal relation thus constituted between them inter se as that of principal and agent.

32. But the real significance of the concept of 'agency' lies in emphasizing the instrumentality of one person in bringing two others into a legal relationship. It is in this capacity for or power of creation of a relationship between the principal and third parties that the essential importance of the concept of 'agency' is to be found. The concept is introduced to bring out the idea that an agent is a mere conduit pipe-a mere connecting link-in bringing about a contractual relation between the principal and third parties. The essential point about an agent's position is his power of making the principal answerable to third persons and so far as his capacity in respect of this third party relation is concerned, it may not be quite accurate to conclude that there is no relationship of principal and agent between the proprietors and the common manager, from the fact that as between themselves the legal relation does not produce the con-sequences of the relation of principal and agent contractually constituted. When the occasion for the appointment of a common manager specified in Section 93, Ben. Ten. Act, arises, Section 95 of the Act empowers the District Judge, upon proper application and under certain specified conditions, to make the appointment. The powers and duties of the manager so appointed are mainly to be found defined in Section 98 of the Act: see Amar Chandra Kundu v. Soshi Bhusan Roy ('04) 31 IA 24 at pp. 26-27. Sub-section (3) of Section 98 provides that

he shall, subject to the control of the District Judge, have, for the purposes of management, the same powers as the co-owners jointly might but for his appointment have exercised, and the co-owners shall not exercise any such power.

33. Sub-section (i) provides that 'he shall deal with and distribute the profits in accordance with the orders of the District Judge.' By Sub-section (8) 'he shall be removable by the order of the District Judge and not otherwise.' By Section 100, the High Court may from time to time make rules defining the powers and duties of managers under the foregoing sections. In exercise of this power the High Court of Calcutta made a rule that

no manager is authorized to sell or mortgage any property nor to grant or renew a lease for any period exceeding three years (or such shorter period as the Judge may direct) without the express sanction of the District Judge.

34. In Amar Chandra Kundu v. Soshi Bhusan Roy ('04) 31 IA 24 at p. 27, the Judicial Committee pointed out that, there is no definition in the Act of what is to be included in the word 'management' and it must, therefore, be construed with reference to the subject-matter of the Act itself. To hold that the manager has no power to sell or mortgage or otherwise to raise a loan would have the effect of frustrating the object for which, generally speaking, a common manager is appointed. The management contemplated by Section 98 clearly contemplates also an obligation of distributing the profits amongst the co-owners, subject, of course, to the direction of the District Judge. This may necessitate the raising of a loan and when such a loan is raised with the sanction of the District Judge, it cannot be impeached as an act beyond the authority of the District Judge or of the manager. It may be that when the manager had in his hands profits of the estate he had to make payments, by the direction of the District Judge, to one co-owner in excess of his share because of that owner's necessity. After this, occasion for payment to another may arise when there may not be any money in the hands of the manager and the District Judge may think it fit to authorize a loan in expectation of future realizations. This act will be an act of management of the estate as authorized by the section and its consequences will be binding on the estate. Once it is accepted that the raising of a loan may be a part of the act of management of the estate, creditors advancing money should be protected if they act on the authority given by the District Judge. They should not be required to go behind such sanction and see whether the District Judge was right in according his sanction in any particular case.

35. As has already been noticed above, the position of a common manager appointed under Section 95, Ben. Ten. Act, has often been held to be analogous to that of a receiver appointed under Order 40, Civil P.C.: Nabakishore v. Atul Chandra ('13) 40 Cal 150; Beni Madhab v. Deb Narayan ('20) 7 AIR 1920 Cal 575 at p. 141 and Jatindra Mohan v. Rebati Mohan : AIR1932Cal275 . Even on this analogy the position will not be very different. Even in the case of a receiver the ordinary law of principal and agent applies but only to this extent that what the receiver rightly does, he does in the character of agent for the owner (whoever he be) of the property, and this is so even in the case of parties who opposed his appointment or objected to his receiving particular powers. The leading authority on the point is to be found in Wilkinson v. Gangadhar Sarkar ('71) 6 Beng LR 486. Phear J. at p. 488 of the report dealt with the matter and I respectfully agree with him in his conclusion on the point. In Paresh Nath v. Omerto Nath ('90) 17 Cal 614 at p. 616 Trevelyan J. followed this decision and referred to it as the leading authority on the point. When a receiver properly incurs debts the Court will see that such debts are satisfied by the receiver: In Re: London United Breweries Ltd. (1907) 2 Ch 511. A creditor can have resort to the benefit of a manager's indemnity as a foundation for his right to sue the estate for the debt incurred by the manager. The creditor is also entitled to proceed against the representative of the estate for recovery of debt incurred by the manager during his management of the same on a ground other than this benefit of the manager's indemnity. The right to maintain such suit may be founded on the just and equitable principle that as the acts of the manager, acting within his authority, are the acts of the Court (District Judge), the estate can-not be permitted to enjoy the benefit of those acts without being held responsible 'for the obligations arising out of them. In Mohori Bibi v. Shyama Bibi ('03) 30 Cal 937 at pp. 943-44, the principle underlying the right of a creditor to recover his debt from an estate with which he has had dealings through a receiver was thus stated by Sale J.:

Creditors deal with the Court through its receiver and the Court imposes obligations on the estate through the receiver for protection of creditors dealing with the receiver. It doubtless is the law, as appears from the case already cited that in carrying on a business under directions of the Court a receiver must necessarily incur personal obligations, but in incurring these personal obligations it seems to me that he necessarily and under the authority of the Court imposes obligations on the estate for the benefit of those creditors with whom he has dealt, and which obligations the Court ought and does give effect to and it is in this respect that a receiver occupies a position towards an estate in his hands different from that of an executor or trustee. The latter not acting through or under directions of the Court do not and cannot under ordinary circumstances create obligations binding on the estate in favour of creditors and it appears to me that the power of a receiver to bind an estate in his hands in favour of creditors dealing with him so long as he acts within his authority, is as necessary a consequence of the Court's managing or carrying on a business through a receiver as the personal responsibility of the receiver in acting under that authority.

36. When the Court has taken possession of an estate by a manager, it will, as against all parties for whose benefit the possession has been held, refuse to permit its officers to be discharged until the amount due to them has been paid : Moran v. Mittu Bibi ('76) 2 Cal 58. The common manager too may impose on himself a personal liability for the debts incurred by him in the discharge of his duties. He may raise a loan in circumstances leading to the inference prima facie that he pledges his personal credit, himself looking for indemnity to the assets of the estate under his management. The creditor may also prima facie accept this personal credit, ultimately looking forward to the benefit of his debtor's right of indemnity out of the assets of the estate. But, as has already been stated above, this is not the case here.

37. In my judgment, in the facts and circumstances of the present case the common manager did not act as such in raising the loan; he purported to act and did act only as agent of the several groups of the proprietors specified in his report. He did not purport to pledge his own personal credit for the loan and the creditor also' accepted this position. Both his report and the report of the sheristadar show that the proprietors agreed to the proposal. The accounts of the common manager after the transaction also support such arrangement. The common manager did credit the accounts of the several proprietors according to the proposal in the report and it appears that the proprietors accepted and all along acted on the basis of this allocation. In my opinion therefore the entire estate as such shall not be liable for the entire debt. The several groups of the proprietors shall be liable for the amounts allocated to them and the plaintiff's claim against them has not been barred by limitation.


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