1. This is an appeal from a decree of the learned Additional Subordinate Judge of Khulna reversing a decision of the learned Munsif at satkhira. The suit arises in this way. A zemindar employed one Rakhal Ghose as his naib and as his under-naib the appellant Rajendra Nath Mitra. Certain sums due from the collections out of which it appears that these Servants of the plaintiff were paid, were not handed over to the plaintiff. During the period when Rakhal Ghose was the naib he was responsible for handing over all moneys received by him or which, with reasonable diligence, might have been so received. The duty of Rajendra was to hand over that part of the collection money which he received to the naib, and in a suit by the plaintiff against Rajendra it would have been a good answer that he had received the money, and that he had handed it over as it was his duty to do, to the naib. Now as regards Rajendra the plaintiff's case is founded upon a furd on adjustment of accounts. All the items in the furd except four in respect of which the plaintiff claims payment from Rajendra are in respect of a period during which Rajendra was acting as the naib in charge, and the learned Additional Subordinate Judge has found, and rightly found that in respect of the items in the furd admitted thereby to be due from Rajendra which related to the period during which Rajendra was the naib there was no defence to the plaintiff's suit.
2. However, Dr. Kanjilal has with great persistence argued that in respect of four of these items Rajendra is under no liability to the plaintiff because they related to a period when Rakhal Ghose was the naib and Rajendra was serving in the matter of collection in a position subordinate to Rakhal Ghose. As I understand the legal position it is this. It is found as a fact (and there is evidence to support it) that the sums representing those four items passed into the hands of Rajendra and if Rjendra had been in a position to prove that those sums had been duly handed over by him to the naib he would be under no further liability to the plaintiff. But that is just what Rajendra failed to do, and the finding of fact upon this matter is that although it is found that sums representing those four items were received by Rajendra there were no a quittance, no vouchers, or any other documents to show that he had handed those money over to the naib in accordance with his duty. The result is that in law he had received those moneys to the use of the plaintiff and as he has failed satisfactorily to account For the manner in which he disposed of those moneys, in my opinion, in respect of a those four items also the plaintiff's suit, which in legal phraseology is one for moneys had and received to the plaintiff's use, must succeed.
3. In my opinion, having regard to the findings of fact at which the lower Courts have arrived, the appeal is without substance and must be dismissed with costs.
4. I agree.