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Upendra Kishore Rai Chaudhury Vs. Ram Tara Debya Chaudhurani and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in4Ind.Cas.542
AppellantUpendra Kishore Rai Chaudhury
RespondentRam Tara Debya Chaudhurani and ors.
Cases ReferredChand Ram v. Brojo Gobindo Boss
Excerpt:
account suit - when account papers are with plaintiff, he cannot ask court to take account--plaintiff to do equity. - .....of law which can be determined before the evidence is taken and a suit for the production of all account papers with a prayer to have those papers investigated and the balance paid, over in most undoubtedly a suit for accounts. what the judge really found is this that the plaintiff has come, to court with a false case. he was himself in possession of the evidence which was necessary to lay before the court before an account can be taken, and following the ruling in chand ram v. brojo gobindo boss 19 w.r. 14 which we may remark is not nearly so strong a case as the present, he held that the plaintiff could not ask the court to take accounts when the papers were with him and not with the defendant. this appears to us to be a sound finding. a person who seeks equity must dp equity. when.....
Judgment:

1. This was a suit for accounts brought by the plaintiff on attaining his majority against the defendant who appears to have been his aunt and at one time to have held certificate of guardianship for his person and property from the District Judge. The suit was brought on the allegation that the accounts of the period during which the defendant No. 1 administered the plaintiff's property were in the possession of the defendant No. 1, and the first prayer in the plaint was that defendant No. 1, he directed to produce. the papers which were fully described in the Schedule (ga). He then prayed that when these accounts were produced the Court itself or by a competent Commissioner should examine these accounts and award to the plaintiff Rs. 2,600 or any lesser amount which may be found to have been misappropriated, or any excess amount on payment of additional Court-fee.

2. An objection was taken before the Subordinate Judge in paragraph 11 of the written statement that all the account-books and documents belonging to the plaintiff's estate remained with and are still in the custody of the plaintiff and defendant No. 5. The Subordinate Judge did not come to any finding on that allegation, He found that the defendant had acted in her capacity as guardian and she executed and registered numerous deeds and that she was liable to render an account, He, therefore, passed a preliminary decree directing her to file a written statement of her accounts on or before the 15th January, 1906, exhibiting thereon all items of receipt on the one side and all items of disbursements on the other. In his final decree, dated 24th March 1906, he found that defendant No. 1 had disobeyed this order and he accordingly ordered the plaintiff to get up the account in the best way possible. He then found that a sum of Rs. 7,750 had been received by defendant No. 1 as sale-proceeds of the 50 couries share of the zemindari; and it being alleged that Rs. 4,000 of this went as payment of debts and the plaintiff's estimate not being objected to by defendant No. 1 he held that she was accountable for half this sum Rs. 3,750, plus half of Rs. 800 which the general agent Mohesh, who is defendant No. 5, deposes that he paid to her as surplus of income and expenditure.

3. The learned District Judge in appeal found as a fact that the plaintiff's story that the accounts were with the defendant No. 1 was wholly and deliberately false, that those papers and accounts were with the plaintiff himself and defendant No. 5 his agent and that it would have been impossible in any case for defendant No. 1 to carry out the preliminary order of the Subordinate Judge. From this finding of fact he derived two rather curious legal propositions, one that the suit was not for accounts at all. It is merely a suit for inspection of papers, and documents. The other is that the suit was not maintainable in its present form.

4. We are unable, of course, to agree with either of these propositions as a matter of law. Whether the suit is maintainable or not is a question of law which can be determined before the evidence is taken and a suit for the production of all account papers with a prayer to have those papers investigated and the balance paid, over in most undoubtedly a suit for accounts. What the Judge really found is this that the plaintiff has come, to Court with a false case. He was himself in possession of the evidence which was necessary to lay before the Court before an account can be taken, and following the ruling in Chand Ram v. Brojo Gobindo Boss 19 W.R. 14 which we may remark is not nearly so strong a case as the present, he held that the plaintiff could not ask the Court to take accounts when the papers were with him and not with the defendant. This appears to us to be a sound finding. A person who seeks equity must dp equity. When an account is to be taken between parties the first necessity is that the person who has possession of the accounts should produce them and put them before the Court, with a succinct, statement of what they contain and what the balance is whether in his favour or against him. Until he does that it is impossible to call upon a defendant to answer a charge of misappropriating money or being liable to the state on the accounts, It seems to us that the plaintiff by falsely stating that the lady had the accounts and by declining even in the final stage of the, case to produce the accounts has put himself out of Court.

5. It is urged that the real point in. issue between the parties was a very simple and single transaction and that there was no reason why any elaborate investigation need have been gone into, inasmuch as the defendant No. 1 had sold a parcel of the property for Rs. 7,750 and had paid off only Rs. 4,000 in debt. But it is precisely this Rs. 4,000 in debt which covers the whole of the suppressed accounts. There must be very numerous items and we have nothing but the plaintiff's own allegation that Rs. 4,000 was the amount paid. It may be that his statement about the amount that is paid is as false as his statement as to the custody of the account papers, and without the accounts we cannot say that there is a clear case of money due, and on the merits we do not see that it would serve any good purpose to give any remand in this case for the purpose of further enquiry, because there is a clear finding that the plaintiff himself who was a semi-adult of 15 years of age when his father died and was in the hands of Mohesh, defendant No. 5, ah old servant of his father, who, undoubtedly, as a matter of fact transacted all business which he has chosen to record in the name of the lady, had the practical disposal of his property all along; and on this findings of the Judge it is impossible to suppose that the lady dealt with the property in any way against his interest. However, it is not necessary for us to go into this matter except to show that the plaintiff has no ground for asking for a remand. On his own false case as laid he cannot succeed.

6. The appeal, therefore, must be dismissed with costs.

7. As regards the lady of the name of Navadurga Debya Chowdhrain, who is stated in the plaint to be the substituted defendant No. 4 and who appears to be called defendant No. 6 in the Subordinate Judge's judgment, we find that she has been unnecessarily called before this Court in second appeal, inasmuch as she was absolved from all liability in the suits in the first Court and got her costs there and was not brought before the lower appellate Court at all. She is, therefore, entitled to the costs awarded to her in the first Court by the Subordinate Judge and we think, that she is entitled to the hearing fee of one gold mohur before us. We order accordingly.


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