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Panmal Lodha and anr. Vs. Omraomal Lodha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberO.O. in Matter No. 867A of 1934
Judge
Reported inAIR1953Cal244
ActsEvidence Act, 1872 - Sections 101 to 103 and 114
AppellantPanmal Lodha and anr.
RespondentOmraomal Lodha and ors.
Advocates:R. Goho, Adv. for Receiver, ;Special Referee and Commissioner of Partition; ;Sankar Banerjee, ;B.K. Ghosh and ;S.K. Acharya, Advs. for ;Sobhagmal Lodha, Adv., ;A.C. Bhabra, Adv. for ;Manmohan Lal Lodh
Cases ReferredBrij Kishore v. Sm. Nazuk Bai
Excerpt:
- ordersinha, j. 1. this is an application by the defendant sobhagmal lobha for several reliefs the most important being a direction upon the special referee to make a special report. a few facts must be stated in order to appreciate how the question of a special report arises. 2. the suit was instituted in may 1934 by kanmull lodha father of the present plaintiffs, for partition of what is known as the lodha estate. there are numerous parties to this suit, taut they may be divided into three groups, namely the sujanmull group, the samirmal group and the umedmull group. the petitioner is the grandson of umedmull and the son of abbey-mull who was the adopted son of umedmaull. the lodha family carried on about seventeen different businesses in all parts of india and the books of accounts.....
Judgment:
ORDER

Sinha, J.

1. This is an application by the defendant Sobhagmal Lobha for several reliefs the most important being a direction upon the Special Referee to make a special Report. A few facts must be stated in order to appreciate how the question of a special Report arises.

2. The suit was instituted in May 1934 by Kanmull Lodha father of the present plaintiffs, for partition of what is known as the Lodha Estate. There are numerous parties to this suit, taut they may be divided into three groups, namely the Sujanmull group, the Samirmal group and the Umedmull group. The petitioner is the grandson of Umedmull and the son of Abbey-mull who was the adopted son of Umedmaull. The Lodha family carried on about seventeen different businesses in all parts of India and the books of accounts number more than two thousand.

3. On 16th May 1940, a preliminary decree for partition was made by Ameer Ali J. and various accounts and enquiries were ordered. An account was ordered to be taken of what was due from one party to another and an enquiry was ordered as to who was the accounting party. By an order dated 22nd December 1943, Rai Saheb U.N. Maitra since deceased was appointed the Commissioner of Partition and Special Referee. The late Rai Sahib who was an accountant, prepared balance sheets of the various business and abstract accounts. These are in the English language and run to 20 typed volumes. Unfortunately however the Rai Sahib died before he could complete his labour and by an order dated March 17, 1950, Mr. A. N. Bose, Barrister-at-Law was (appointed Commissioner of Partition and Special Referee. The present Special Referee entered into the enquiry as to who was the accounting party. By his finding dated 11th July 1950, the Special Referee held as follows:--

'I therefore find that between 1838 and December 4, 1923 Seth Umedmal Lodha managedthe joint businesses and estate of the Lodhas. Between December 5, 1923 and July 30, 1924Seth Abhaimal Lodha managed the said businesses and estates. And between July 31, 1924 and February 1935 (i.e. till the appointment of the Receiver) Seth Biradhmal Lodha managed the said businesses and estate ........ Accordingly Seth Umedmal Lodha, Seth Abhaimal Lodha and Seth Biradhmal Lodha are the accounting parties for the respective periods of their management as stated above and Seth Sobhagmal Lodha and Seth Umraomal Lodha as their successors in interest are liable to render accounts.'

On 10th July 1950, the Special Referee directed the accounting parties to file the accounts for the respective periods mentioned above. On 14th August 1950, Mr. I.P. Mukherjee appeared on behalf of the petitioner and argued that his client Sobhagmal was an accounting party only an the sense of being the legal representative of the deceased accounting parties and was not under the same obligation to render accounts as the original accounting parties who were dead. According to learned Counsel, his client was not called upon to file any accounts except as to that portion of which he had personal knowledge. If any claim was made by any party against his predecessors, an answer would be provided by producing the books of accounts which could then be inspected by the others.

4. In answer to this contention it was argued that the decree passed in this suit did not contemplate any such mode of accounting and Sobhagmal would have to produce the account books (which are already in possession of the Receiver) and vouch for each item. Both parties relied upon a Bench decision of this Court. -- 'Brij Kishore v. Sm. Nazuk Bai', 51 Cal WN 157 at p. 170.

5. In his reply, learned counsel for Sobhagmal pointed out (56th meeting) that he had no quarrel with the preliminary decree or with the findings of the Special Referee by which Abheymal or Umedmull were found to be accounting parlies. According to him, Sobhagmal's duties were to have the books of accounts produced and to vouch for such items as it was possible for him to vouch and if he could not vouch, the other side might call upon the Court to draw such adverse conclusion as the Court thought proper under Section 114 of the Evidence Act. On 11th September 1950, Mr. Deb appearing on behalf of Sobhagmal stated as follows 'Without prejudice to the contentions of my client as already submitted and recorded in the minutes, my client is agreeable to file accounts as directed under the decree.'

6. After this, a statement of fact was filed by Sobhagmal which consists of a number of balance sheets covering the period of accounting. The other parties have filed counter statements. Either side accuses the other of not having complied with the directions of the Special Referee. Sobhagmal's state of fact is attacked as not being a state of fact at all. The counter statements are attached as being sp vague and general that no issues can be raised. In other words, the accounting party complains that he is quite unable to gather as to what is objected to or what is accepted as correct.

7. The events that have happened subsequently make somewhat painful reading. There was a bereavement in the family of one of the solicitors necessitating an adjournment. It seems that starting with this, a great deal of misunderstanding has ensued, some hard words said and some disagreeable things have crept into the record. It would be a waste of my time to try and apportion the blame. It is sufficient to say thatthe Special Referee was perhaps a little precipitate in holding that Sobhagmal had refused to render accounts and that he would report accordingly. On the other hand, I cannot say that the parties have always been very helpful to the Special Referee. In my opinion, the offer of Sobhagmal to file accounts without prejudice to his contentions was somewhat meaningless. I can understand the stand taken by his counsel Mr. Mukherjee, but Mr. Deb's offer on behalf of his client to file accounts, without the position being clarified, inevitably led to confusion.

All parties appearing before me have assured me that they are extremely anxious to have the accounting done quickly. If this has always been their attitude, I fail to understand why in twelve years the accounting cannot even be said to have started. I need not further dilate on this aspect of the case. All parties are unanimously agreed that the finding of the Special Referee that Sobhagmal has refused to render accounts, should be set aside. I don't think it is necessary to set aside anything. It will be sufficient for me to say that upon a consideration of all the facts, it does not appear that there has ever been such a refusal and the Special Referee will proceed accordingly. It is upon this point of the accountability of Sobhagmal that a special Report has been asked for. The precise points have been indicated in Para 18 of the petition.

8. I pointed out to the parties appearing before me that it would be useless waste of time to direct the Special Referee to make a special Report and then deal with the point. All the parties including the Special Referee are before me and I have heard them. It would be much better if I gave my decision on the points raised. All parties have agreed that I should do so now instead of duplicating the proceedings.

9. Having heard all the parties, including Mr. Goho appearing on behalf of the Special Referee, I think that there is a considerable amount of misapprehension as regards the precise point that arises for determination. There appears also to be a confusion between the liability to account and the mode of accounting. The following facts must exist to impose an obligation to account:

(1) The person upon whom such an obligation is sought to be imposed (the obligor) must have received some property not his own.

(2) The person seeking to impose the obligation (the obligee) must be the owner of the property in respect of which the obligation is sought to be imposed.

(3) The obligor must not have received the property as mere bailee.

(4) The obligor must have received it into his possession and control.

(5) There must be a fiduciary relation between the obligee and the obligor, or in other words there must be privity between them. The obligation may arise in a variety of ways, giving rise to different manner of accounting. Thus, it may arise between principal and agent, between banker and customer, between mortgagor and mortgagee, between partners, between trustee and 'cestui que trust' and so forth, it cannot however be said that the manner or mode of accounting should be the same in each case.

10. Since the legal relationships between the parties differ and are not the same, it is not to be expected that the liability should also be the same. The word 'Account' has no definite legal meaning. The primary idea of 'account com-putatio' is some matter of debit and credit and it implies that one is responsible to another on the score either of contract or some fiduciary relations of a public or private nature, created by law or otherwise. It is not necessarily restricted to several items, nor is it less an account because all are fay one person against another and not of mutual demands.

But the liability to account must not be confused with the method of accounting. Just as liability differs, the method of accounting also differs. The method or mode of accounting may be regulated by contract, law or even custom and usage. There cannot be a uniform rule in all cases upon such points as to what books of accounts should be kept, when they should be adjusted, what vouchers shall be kept and so forth. It is plain that an account from an agent as to what he had purchased for the principal cannot be the same as that of a mortgagee in possession, accounting for rents which he might have realised if he was not negligent. But one of the most vexed questions is as to what happens when the real accounting party dies. In English Common Law, a Bill of Account was sometimes thought to be a personal action falling within the rule 'actio personalis moritur cum persona'.

But this view is an archaic one, and both in England as well as in India it is no longer accepted as a sound one: -- 'Lee v. Sarah Bowler', (1674) 23 E. R. 68; -- 'Holstcomb v. Rivers', (1669) 22 E. R. 726; -- 'D. K. Cassim & Sons v. Sara Bibi', 13 Rang. 385; -- 'Hills v. Shokhee Monee Dossee', 10 W. R. 59 (Cal); -- 'Lawless v. Calcutta Landing and Shipping Co., Ltd.', 7 Cal 627. Section 306 of the Indian Succession Act lays down that all demands whatsoever against a person and all rights to prosecute him survive against his executors or administrators except causes of action for defamation, assault etc. On this point however there is a considerable conflict of authority in India and I shall now proceed to consider this.

11. In -- 'Kumeda Charan Bala v. Asutosh Chattopadhyaya', 17 Cal W. N. 5, the plaintiff alleged that the father of the infant defendant was an agent entrusted with collection of rent. He had collected rent, did not account for it and died. The plaintiff asked for an account. Sir Ashutosh Mukherji said 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 in 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 -- 'Manmathonath v. Basant 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 Tewari v. Kishan Kumar', 2 All W. N. 6, and -- 'Pritam Singh v. Mubarik Singh', 1911 Pun L. R. 78. This position may plainly be defended on principle.

No doubt as stated in -- 'Shib Chandra v. Chandra Narain', 32 Cal 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 cannotbe called upon to do that which does not lie within their power, and should not be required to attempt the impossible ......

What then is the nature of the remedy of the principal against the representative of his deceased agent? It does not follow that the estate of the agent who has not rendered an, account escapes all liability in the hands of the representative. The remedy of the principal in a case of this description is to sue the representative for any loss he may have suffered by reason of the negligence or misconduct, the misfeasance or malfeasance of his agent, in other words the suit 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 ........ .... The suit may therefore be deemed as onefor 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.'

See also -- 'Nuyuf Ali v. Patterson', 2 All H. C. R. 103 -- 'Concha v. Murietta', (1889) 40 Ch. D. 543.

12. -- 'Rameshwar Singh v. Narendra Nath', AIR 1923 Pat 259 (263) was a case in which the plaintiff, the Maharaja of Darbhanga sued the legal representative of a pleader who was entrusted with the conduct of all his cases at Madhupura. It was held that the defendant as the legal representative of his father had no liability to render accounts to the plaintiff. It will be observed that in this class of cases it has been held that no suit lies for accounts against a legal representative. The proper frame of such a suit is to claim a definite sum of money and the onus is upon the plaintiff to prove each item. But there is another class of cases which hold that a suit for account against the legal representative of a deceased accounting party does lie.

13. In -- 'Kali Krishna v. Mt. Jaggat Tara', 11 W. R. 76 (Cal), the plaintiff a Mahajan sued the heirs of a deceased 'Gomastha' on the allegation that the 'Gomastha' had overdrawn moneys during his lifetime. Sir Barnes Peacock C. J. said

'There would be an obligation on the agent to render an account of his agency and to account for the moneys in question. In using the word 'account' I use it in its legal sense as not confined merely to rendering an account of what he has done with the money, but as including the payment of any balance which might be found due from him upon taking the accounts. The agent died before he was requested to account for, or to render an account of the moneys; and then, I apprehend a cause of action accrued against his representatives, so far as they had assets, to repay to the principal any balance, which upon the adjustment of accounts, might appear due from the agent.'

14. In -- 'Hills v. Shokhee Monee Dassee', 10 W. R. 59 (Cal), it was held a cause of action accruing against an agent for money received and accounts kept, survived after the death of the agent.

15. In -- 'Lawless v. The Calcutta Landing & Shipping Co. Ltd'; 7 Cal 627 there were two cross suits. The one was brought by the administrator of Captain Lawless for arrears of salary and commission due to Captain Lawless before his death as manager of the Calcutta Landing and Shipping Company. The other suit was for money for which the defendant (the administrator) was said not to have accounted. Wilson J. said

'There is nothing to show that Captain Lawless was ever called on to account for those moneys or to account generally. He died on 29th August 1877 and his agency terminated. I think by his death the company acquired a fresh right to have an account rendered by his representative, and that right is recognised by Article 89, Schedule II, Limitation Act'.

16. In -- 'Chand Mal v. Kalian Mal', (1886) Pun Re. 96, the principal brought a suit against the legal representative of the deceased agent on the allegation that there was a balance in favour of the plaintiff in his account with the agent, and he asked for an account. It was held that 'a principal could obtain an account from the son of his agent the agent having died without account'. It was pointed out that this was not in reality a case of suing the legal representatives of the deceased agent for rendition of accounts but that the plaintiff was in substance asking that an account between him and his deceased agent may be taken in Court in the presence of the defendants as a step towards the decree against the defendants for payment.

17. In -- 'Rao Girraj Singh v. Rani Raghubir Kunwar', 31 All 429, a manager took moneys from the chest of a Purdanashin lady and put it into his own account. Held that his sons and grandsons were liable to pay the balance which on taking of accounts might be found due to the lady.

18. In -- 'Jhapajhanessa Bibee v. Bama Sundari', 16 Ind Cas 414 (Cal), the suit was against the heirs of one Laban Sarkar who acted as the agent' of the plaintiff and his co-sharers: Sharfuddin J. said as follows:

'There can be no doubt that there was a contract between the principal and the agent that the latter should render his accounts every year to the plaintiffs and their cosharers. After the agent's death the law presumes that there is always an implied contract by which the heirs of the deceased agent are bound to give an account of whatever they may have received from the agent at the time of his death'.

In the same case Cox J., said:

'To hold that when a 'gomostha' dies all his accounts and the money which he may have collected can be kept by his legal representatives is impossible. It is argued that the plaintiffs ought to ascertain themselves what is due to them and sue for that amount. But that amount can only be ascertained with accuracy by an examination of the accounts kept by the 'Gomostha', and there is no reason why the legal representatives should be entitled to withhold those accounts. A suit for money due on an account and a suit for an account are really the same thing'

-- 'Shib Chandra v. Chandra Narain', 32 Cal 719.

In -- 'Prem Das v. Charan Das', AIR 1929 Lah 362, the suit was brought against a Chela of Mahant Sant Ram as his legal representative and the plaintiff inter alia asked for rendition of account. Aga Haider J., pointed out that -- 'Kumeda Bala's case', 17 Cal W. N. 5 was in conflict with the Division Bench case of --'Jhapajhanessa Bibee' 16 Cal w. N. 1042 decided a fortnight later. The learned Judge however said as follows:

'After the death of the agent it would be extremely unjust to call upon his legal representatives to render an account in the same manner in which the agent would be liable if he were alive. The reason is obvious. Some of these legal representatives might be 'purdanashin' ladies who knew nothing at all aboutthe dealings of the deceased agent, others might be infants in arms. In the present case when the legal representatives of the deceased agent is being sued, the burden of proof should fall upon the plaintiff who must prove each item of the amount which he claims. On the other hand, it is the duty of the legal representative to place before the Court all the accounts in his possession and power which the deceased agent might have prepared during the period of his agency.'

In -- 'Brij Kishore v. Sm. Nazuk Bai', 51 Cal W. N. 157, the point for consideration was whether the liability of an executor to render accounts ceased with his death or whether the executor's legal representatives were liable to render accounts. Mitter J. in this case tried to reconcile 'Kumeda Bala's case and said as follows:

'Kumeda Charan Bala's case (ibid) also does not, in our opinion militate against our view. Mookherjee J., nowhere says in his judgment that the cause of action for account against the obligor does not survive. All he says is that the representative of a deceased agent cannot be ordered to render account in 'the same form as' the agent himself. In any view of the matter we prefer to follow the view expressed in our Court in 'Hill's case' (10 W.R.59 Cal) (ibid) ..'Kumeda Charan Bala's case lays down the principle that a decree of a Court should not direct what is impossible to perform, That is a sound principle. A trustee should not be ordered by the Court to find out at the suit of the 'cestui que trust' a valuable heirloom, a historic jewel, for instance, ' which he may have in a fit of anger thrown into the bottom of the sea and to restore it to the trust. 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 acts by the legal representative, namely, to deliver the account papers and support them by vouchers, for, the hand of death does not remove papers.'

19. The order so far as accounts were concerned was as follows:

(a) A Commissioner was appointed to take accounts.

(b) The legal representative was directed to file within a month the account papers kept by the dead accounting party (the executor) together with vouchers.

(c) If the account papers were not filed, the plaintiff was granted liberty to adduce secondary evidence and/or adduce other evidence to show what sums of money had been realised by the dead executors and not paid.

(d) In that case, the legal representative was allowed to adduce evidence to show that the sums alleged by the plaintiff to have been realised were not realised or realised and justly expended in due course of administration.

(e) If the account papers or vouchers were not produced for the whole period or a part, the Court was declared to be at liberty to find if they were being withheld and make such inferences as were proper.

In my opinion, the nett result of all these decisionsmay be summarised as follows:

20. 1. --'Kumeda Charan Bala's case', (17 Cal WN 5), (ibid) and the decisions following it are not good law in so far as they hold that no decree for accounts can be asked for or passed against the legal representative of an accounting party who is dead. Such a decree can be asked for, and theCourt is quite competent to pass a decree ordering the legal representative to render accounts.

2. All the decisions are however unanimous on the point that the mode of accounting by such a .egai representative is not the same as the original accounting party.

3. Where a decree for accounts has been made against a legal representative of the original accounting party, the position in law is as follows:

(a) The legal representative must produce all the books of accounts, documents and vouchers kept by the deceased accounting party,

(b) He cannot however be compelled to explain or vouch for them. But if he is able to explain the account or any part thereof or vouch lor the account or any part thereof, he must do so.

(c) If the legal representative does not produce the books of accounts, vouchers or documents relating to the transactions, or produces only a part, the Court will be at liberty to investigate and find out whether he is withholding the same, and in the event of a finding to that effect, draw such inferences as it thinks proper.

(d) If the books, documents and vouchers are produced, the plaintiff will be at liberty to prove that they are not the proper books, documents or vouchers or that the contents thereof are not correct, or that the items are not true. The onus would be upon him. In such a case, the legal representative can answer the challenge if he so chooses.

(e) If the books, documents and vouchers are not produced (either wholly or in part), the plaintiff will be at liberty to prove by secondary evidence or other evidence as to what he claims the dead accounting party to have realised or expended and the balance payable by him, for which the legal representative will be liable to the extent of the assets of the deceased in his hands. The onus of doing so will be upon him and the legal representative will have the right to adduce evidence in answer.

It is a mistake to think that the liability consequent upon accounting, is in any way affected by the death of the original accounting party, as accounting party by his death cannot avoid liability or improve his account or make it more sacrosanct. It is not to be denied however that in such a case, death may in an indirect way improve his chances of ultimate success, by making it immeasurably more difficult for the other side to challenge his accounts. If an accounting party is alive, he has to explain, or if necessary vouch for, every item of debit and credit in his books, if he is dead, it may be inordinately difficult for the other side to prove him in the wrong.

In a long and complicated accounting, the other side might not even know, what credits to charge or what debits to allow and be placed in a position of great disadvantage. But this is a position which cannot be helped. No one can guarantee that the accounting party will be alive to render an account personally. If he is dead, the accounts must be taken in the best way that the exigencies of human affairs will allow. There is no presumption that the accounts produced by the legal representatives as being that of the deceased accounting party, are either genuine or correct. But since the original accounting party is not available, they must be treated as 'prima facie' the accounts of the deceased, and it would be for the plaintiff to prove that they are not genuine or correct.

21. Coming to the facts of this case, we find that there is no difficulty as to the form of thedecree inasmuch as there has already been a decree directing accounts & the Special Reteree has found that Umedmal and .Abheymal are the accounting parties and Soohagmai snould render accounts as their 'successors in interest' by which I take it he means their legal representative. We must not find out as to how he is to render such an account. The mode of accounting by a legal representative has been fully discussed above and Sobhagmal will have to account in the manner indicated. It remains for me to consider whether what has been done or is proposed to be done in this case accords with those principles.

22. I have already pointed out that, a great deal of confusion has been caused by the ofter of Sobhagmal to file his statement of facts without the position being clarified. All that he has done is to have a few balance sheets made and file them, calling it a statement of facts. The counter statements have consequently been equally vague. The other parties have proceeded upon the footing that it was for Sobhagmal to state each item of account and to vouch i'or the same and in so far as he fails to do it, that item was to be disallowed.

23. In my opinion, the whole accounting is proceeding upon wrong lines and does not accord with, the principles of law enunciated above. Now that after 12 years the accounts have at last begun it would be disastrous if it is allowed to proceed upon wrong lines. I have therefore tried to ascertain the views of the parties as to the best method that should be adopted and there seems to be the greatest measure of support for the directions that I propose to give for the future conduct of the reference.

24. My directions will be as follows:

1. The defendant Sobhagmal Lodha should be directed to file a fresh statement of fact containing the following:

(a) A statement upon oath as to which portion of the account (Between 1898 and July 30, 1924) is within his personal knowledge, for which he can vouch for.

(b) Regarding that part which is within his personal knowledge, or which he can vouch for, a statement in detail showing credits and debits, grouped under classified headings and separately under each year of account.

(c) Regarding that part which is not within his personal knowledge or which he cannot vouch for, a list of all the books of account, documents and vouchers relating to the period of accounting, which he claims to relate to the account for the period of accounting, which are or have been in his possession or are in the possession of the Receiver, and upon which he intends to rely as being the accounts for the relevant period. These should be conveniently classified and grouped under the heading of every separate business or undertaking and separately shown under each year of account.

(d) A statement whether he accepts the balance sheets and/or abstracts of accounts prepared by the late Special Referee Rai Sahib Umanath Maitra, if not, particulars of those items therein which he states are incorrect. Where the balance sheets of the Rai Sahib are stated to be incorrect, a correct balance sheet should be filed. The balance sheets already filed will remain as a part of his statement of facts but marked as 'Supplementary' and he may refer to such balance sheets.

(e) All adjustments relied on, should be shown under a separate heading 'Adjustments', setting out the adjustments separately under each year of adjustment.

(f) A statement showing the final balance at the end of the accounting period.

2. Upon the statement of fact being filed, the said Sobhagmal Lodha should be directed to make over to the Special Referee all books, documents and vouchers in his possession. They should be distinctively marked.

3. The Special Referee will take steps to separate from the rest of the books, documents and vouchers in the possession of the Receiver either at Ajmere or elsewhere, the books, documents and vouchers stated under heading 1(c) of the statement of facts as being in the possession of the Receiver, and have them distinctively marked.

4. All such books, documents and vouchers between the years 1898 and 1904 should be brought down to Calcutta, unless they are already in Calcutta.

5. All parties should 'be afforded inspection of these books, vouchers and documents.

6. After inspection, the parties, other than Sobhagmal Lodha, should file counter statements of fact containing the following:

(a) Whether he disputes any of the statements in the statement of fact under headings 1(a) and (c). If it is alleged that Sobhagmal has or ought to have personal knowledge of any period not admitted by him, then particulars of such period. If it is alleged that he has or ought to have in his possession any books, documents or vouchers not disclosed by him, or that he is withholding the same, then particulars of such allegation.

(b) The items of credit or debit not accepted as correct in the statement made under 1(b), setting out the correct figures, as also omissions.

(c) The items of credit or debit not accepted as correct in the books of account as disclosed in the statement under 1(c), setting out the correct figures. If any amount is not credited which should have been credited or debited which should not have been justly debited, the particulars thereof. For purposes of such a statement, the party will be at liberty, if he so wishes, to deal with the balance sheets prepared by Rai Sahib and admitted in the statement of facts under 1(d), or where not admitted the balance sheet prepared by Sobhagmal and forming part of his statement of facts or supplementary statement of facts, instead of the original account books; provided however, that the item challenged shall be clearly specified and the grounds of challenge indicated, so as to raise an issue thereon. Even if the balance sheets are relied on, no party shall be precluded from putting forward any item in the books, in addition thereto or by way of explanation thereof or as showing any defect or omission in the balance sheets or the statement of facts.

(d) A statement showing which items in the statement of facts under heading 1(e) are disputed and if so the correct figures, (e) A statement as to whether he accepts the balance sheets and/or abstract accounts prepared by Rai Sahib for the years 1898 to 1904. If not, particulars of the items not accepted as correct. Such statement will be taken to relate only to the correctness of the balance sheet and/or abstract accounts 'as such', and not an admission as to the correctness of the items themselves.

The' counter statement already filed shall be treated as 'supplementary'. Any party wishing to withdraw such counter statements and to file an entirely fresh' one may do so.

7. Upon the counter statements being filed, the Special Referee will proceed to take the accounts for the period 1898 to 1904. While the account is proceeding, the books, documents and vouchers of the next six years shall be brought down and inspection given to the parties in the same manner, and after inspection further counter statement of facts should be directed to be filed for the said period. After the accounting for the first six years is concluded, the next six years should be taken in hand and so on until the whole accounting period is covered. In the last counter statement, there will be an additional item in answer to item 1(f) of the statement of fact, relating to the final balance which is claimed against the accounting parties and/or their estate.

8. The onus of proof will be as follows:

(i) Statement of fact item 1 (b), upon SobhagmalLodha:

(ii) Counter statement of fact item 6 (a) (b) (c)(d) or as to the final balance -- upon the partyfiling the counter statement of fact.

9. The following time schedule shall be followed:

(a) Forfiling statement of facts

1 monthfrom date of making this order.

(b) Forseparating the books etc. marking them and bringing them to Calcutta

1 monthfrom date of filing the statement of facts.

(c) Forgiving inspection to the parties

2months from the date when inspection is offered.

(d) Forfiling of counter statement of facts

1 monthfrom the end of the period granted for inspection.

25. The Special Referee will fix the exact dates in the presence of the parties at a meeting. The accounting will begin a fortnight from the filing of the last counter statement of facts, and will proceed from day to day excepting Saturdays, Sundays and Gazetted holidays.

26. Liberty is given to the parties as well asthe Special Referee to maintain the matter uponnotice by letter to all parties, to make these directions effective.

27. As regards making Ajmere the venue of the reference or any part thereof, I reject the prayer.

28. I shall now indicate my order as regards the various prayers contained in the notice of motion.

(a) Not necessary. The points upon which a special Report is asked for have been dealt with in my judgment.

(b) Directions are contained herein.

(c) The statement of facts and counter statement of facts already filed shall not be rejected but shall be dealt with in accordance with the directions contained herein.

(d) The time schedule has been laid down in my judgment. The reference shall be held in Calcutta and not elsewhere.

(e) & (f) No direction at present. In case of undue delay, liberty to apply.

(g) & (h) These prayers cannot be adequatelydealt with upon the present application. Liberty to the parties to make such furtherapplication as they may be advised, uponsufficient materials.

(i) No longer necessary, in view of the directionscontained herein.

29. The costs of all parties of and incidental to the application will be costs in the partition proceedings and will be paid by the Receiver upon being taxed. The Special Referee will get his costsout of the estate taxed as between the attorney and client, and pay himself out of the funds in his hands.

30. The Special Referee to act upon a signed copy of the judgment. The attorney for the petitioner undertakes to file a requisition for drawing up of the order forthwith. Let the order be drawn up expeditiously.


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