Rajasthan High Court - Jaipur
Manohar And Ors. vs Chatter Singh And Ors. on 9 November, 1978
JUDGMENT S.K. Mal Lodha, J.
1. This civil miscellaneous appeal has been preferred by Manoharjal, Parkash Chand & Prakash Chand sons of Roshanlal (defendant No. 1) under Order XLIII, Rule 1(1) CPC against the order of the learned Senior Civil Judge, Udaipur, dated April 13, 1968.
2. The facts leading to this appeal may briefly be noticed. The plaintiffs Chhattar Singh Sheodan Singh & Roshanlal instituted a suit for rendition of accounts under Section 92 C.P.C. against the members of Shri Jain Swetamber Prabhu Pujak Dharmsala Committee (hereinafter referred to as 'the Committee') a registered Institution of the former Mewar State in connection with the trust property relating to a Jain Dharmsaja. The suit was instituted in the court of District Judge, Udaipur on November 11, 1955 after obtaining sanction from the Advocate General of Rajasthan. It is necessary here to mention that the Advocate General accorded permission to the plaintiffs to file a suit against the whole body of the Managing Committee of Shri Jain Swetamber Prabhu Pujak Dharmsala Committee for rendition of accounts under Section 92 C.P.C. vide his order dated September 5, 1955. While according permission he specifically noted that from the trend of accounting between the Dharmasala and the firm, Roshanlal Chatur cannot be accused of analafides in charging the interest from the Dharmsala on the previous running accounts is the Samvat year 2003. It was also mentioned that Roshanlal Chatur and his predecessors had rendered substantial service in the cause of Dharmsala by supplying the needed funds without which there would perhaps have been serious obstacles in the way of the construction of the Dharmsala. According to the Advocate General the adjustment of Rs. 16127.9 annas on account of interest after the partners of the firm had declared that they had given up their claims of interest against the Dharmsala raised a serious legal issue as to whether Roshanlal Chatur was legally justified in doing so even though the declaration had been made in the proceedings to which the Dharamsala Committee was not a party. In these circumstances he concluded that it is desirable in the case of this Public Trust that the matter should be submitted before the Competent Court for its adjudication. The following extract from the order of the Advocate General dated September 5, 1955 needs to be quoted:
The suit should however, be filed against the whole of the Managing committee including all its members and not against Shri Roshanlal Chatur and Shri Manobarlal Chatur only because the responsibility for the maintenance of accounts is of the whole Committee and not of the two individuals members only, particularly when it is alleged on behalf of. the non-applicants and also substantiated to a certain extent that they have been singled out by the applicants Shri Veer Ghand Siroya arid Shri Chatersingh Nabar on account of the grudge and malice....
In the plaint in para 16 rendition of accounts was claimed against all the members of the Committee, After trial of the suit the learned Senior Civil judge, Udaipur passed a preliminary decree for rendition of accounts on September 6j 1960 against defendant No. 1 Roshanlal Chatur ordering him to render accounts to the plaintiffs from the year Samvat 1965 upto that date and Shri Mangilal Khabia was appointed Commissioner for the purpose.
3. An appeal was filed against the said preliminary decree dated September 6, 1960. But as the defendant No. 1 Roshanlal Chatur had died sit Udaipur on February 5, 1964 and his legal representatives were not impleaded in time, the appeal was dismissed on July 23, 1965 as having abated.
4. On May 2, 1964 an application was moved under Order XXII, Rules 4 and 10 CPC praying therein that the appellants (three sons of Roshanlal Chatur and Smt Umrao Bai) maybe substituted in his place. This application was resisted on the ground that heirs of Roshanlal Chatur were not his legal representatives so as to be substituted in the place of the deceased Roshanlal Chatur as it was a suit under Section 92 CPC. It may be mentioned here that Smt. Umrao Bai also died on December 16 1964 and on April 13, 1965 an application was filed for bringing her legal representatives on record and they are respondents Nos. 9(a) to (j) in this appeal The learned Senior Civil Judge accepted the application by his order dated April 13, 1968 Being dissatisfied with the order of substitution, the appellants preferred this appeal as aforesaid.
5. I have heard Mr. H.M. Parekh, learned Counsel for the appellant and Mr. D.L. Mehta for Mr. S.M. Mehta, learned Counsel for respondents Nos. 4 and 7 have also gone through the record of the case.
6. Learned Counsel appearing for the appellants argued that the suit In which the preliminary decree was passed was for rendition of accounts. The permission was granted by the Advocate General under Section 92 CPC and the court below should not have gone beyond the permission. As member of the Committee, Roshanlal Chatur was directed to render accounts to the plaintiffs from the year Samvat 1965 upto the date of the preliminary decree and this liability came to an end with his death. He further contended that the heirs of Roshanlal Chatur namely the appellants cannot be asked to render accounts in as much as it is only the successor-in-office or the Managing Trustee of the Committee, who can be asked to render accounts. Mr. Parekh drew my attention to the Division Bench judgment dated November 19, 1959 passed in D.B. Civil Misc. first appeals Nos. 34 and 38 of 1955 wherein while disposing of the application for the appointment of a receiver during the pendency of the suit, the learned Judges observed as under:
In the first place, the suit is merely a suit for rendition of accounts. We have had the benefit of reading the order of sanction given by the Advocate General for the institution of the suit and we find that in granting the sanction he took note of only one item in the account. That was with regard to appropriation of a certain f mount of interest, otherwise there is nothing to show that there was any case of misfeasance or misappropriation of the income of the trust property funds therein.
In support of the proposition that the court while deciding the application, could not go beyond the permission accorded by the Advocate General, he placed reliance on two decisions of the Allahabad High Court in Rohanlal v. Banmali Lal and Ors. ILR (1970) 11 All. 722 & Umashanker and Ors. v. Saligram and Ors. . He also invited my attention to Mt. Moti Bala Debi v. Styannand Tirtha Swami A.I.R. 1930 All. 348 Kubra v. Seth Shubarati A.I.R. 1944 Nag. 190, Mt. Hasinabai v. Shrikisandas Tikamdas A.I.R. 1948 Nag. 60, Bishambhar Nath and Anr. v. Roghunath Prasad and Anr. and Suraj Narain v. Mangilal 11972 R.L.W. 201 to show that the right to render accounts would not survive against the legal representatives of the deceased trustee as right to demand accounts from a trustee is a personal right available again: t him and dies with him.
7. Mr. D.L. Mehta, learned Counsel for the respondents, contended that the appellants, who are heirs of deceased Roshanlal Chatur, (defendant No. 1) against whom the preliminary decree for rendition of accounts was passed, are liable, as they are legal representatives of the deceased Roshanlal Chatur within the meaning of Section 2(11) CPC. In this connection he invited my attention to Roshanlal Kunja Mal Ors. v. Kapur Chnnd and Ors. . Mr. Mehta also submitted that the preliminary decree dated September 6, 1960 was passed against defendant No. 1 Roshanlal Chaiur in his personal capacity and, therefore, his legal representatives are liable After making reference to Sections 15, 19 and 63 of the Indian Trust Act, 1882 (hereinafter referred to as 'the Act), Mr. Mehta submitted that the heirs of Roshanlal Chatur cannot escape the liability of rendering accounts in pursuance of the decree passed against him. Reliance was placed by him on Maharaja Srish Chandra Nandy and Anr. v. Suprsvat Chandra and Ors. , Purshottom Vasudeo v. Ramkrisana Govind A.I.R. 1945 Bom. 21, Bhusan Chnadra Mondal v. Chhabiwoni Dasi and Ors. A.I.R. 1968 Cal. 363, Profulla Kumar Mullick v. Smt. Firoza Sundan Dossi and Ors. A.I.R. 1950 Cal. 182, Girijanandini Devi and Ors. v. Bijendra Narain Choudhary & R.S. Shri Ram Prashad and Ors. v. Smt. Chhano Devi A.I.R. 1969 S.C. 75. As to who is the legal representative learned Counsel made reference to Brijkhishore Singh and Ors. v. Sm. Nozuk Bai and Ors. .
8. Before examining the rival contentions raised by the learned Counsel for the parties, it is necessary to read the relevant provisions of law bearing on the question which I am called upon to decide in this appeal. Section 2(11) defined legal representative as follows:
(11) legal 'representative' means a person Who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
9. Order XXII Rule 4 provides for procedure for substitution in case of death of one of several defendants or of sole defendant. For the application of this Rule five conditions are necessary, (i) there must be a suit; (ii) one of the defendants must have died; (iii) the death of the defendant must be pending the suit; (iv) the suit must be pending in a court having jurisdiction to entertain it; and (v) the right to sue should survive but not against the surviving defendants alone. Thus, if the tight to sue but not survive at all, the rule will not apply.
10. Order XXII, Rule 10 lays down that whenever there is an assignment, creation or devolution of any interest during the pendency of the suit, then by leave of the court the suit can be continued by or against the person to or upon whom such interest has come or devolved,
11. Section 19 of the Act deals with accounts and information and inter alia provides that a trustee must keep clear, accurate accounts of the trust property and at the request of the beneficiary the trustee is required to furnish full and accurate information as to the amount and state of the trust property.
12. Section 63 of the Act deals with the remedies available to the beneficiary where the trust property comes into the hands of a third person inconsistently with the trust or where the trustee has disposed of the trust property and the property or money which he has received there for can be traced in his hands. In a proper case even under Section 63 of the Act, the beneficiary is entitled to sue for the removal of the trustee appointed under the trust, for the appointment of a new trustee and for delivery to the new trustee of the property improperly alienated by the previous trustee.
13. The suit was instituted for rendition of accounts under Section 92 C.P.C. One of the conditions for the applicability of Section 92 is that the suit must be a representative one On behalf of the public and hot by individuals for their own interest. Section 92(1)(d) provides for a direction for accounts and inquiries.
14. In the plaint, in para 16, amongst others, following reliefs were claimed:
gqDe fnyk;k tkos fd mDr fglkckr ds is'k gksus ij mudh okthfc;r dh tkap djkbZ tkdj mlds urhts dk ,syku djk;k tkos vkSj tks Hkh fdjk;k VªLV izkIkVªh dk ftl ftl eqnk;yku usohyk vf/kdkj desVh ds fu;e foijhr xyr rjhds ls mBk fy;k gks ;k eueolqn [kpZ dh gks oks jde mu eqnk;yku dh tkr [kkl o tk;nkn ls olwy djk VªLV dks fnykus ckcr fMdzh fnykbZ tkos A Defendant No. 1 Roshanlal Chatur, inter alia, pleaded in the written statement that on April 1956, Shri Jain Swetambar Mahasabha took the management of the Dharamshala and its properties and account books (Bahis) from him and as such, he is not liable to render accounts, Issue No. 6 was framed 8>y the trial court on the basis of the aforesaid averments. The trial court decided issue No. 6 against Roshanlal Chatur (defendant No. 1) and the preliminary decree for rendition of accounts was passed against him, ordering him to tender accounts to the plaintiffs from the Samvat year 1965 upto that date i.e. September 6, 1960 It is, therefore, clear that though the Advocate General accorded permission for instituting the suit for rendition of accounts against the whole of the Managing Committee of Shri Jain Swetambar Prabhu Pujak Dharmshala, after trial preliminary decree for rendition of accounts was passed against defendant No. 1 alone.
15. In these facts and the relevant provisions of law referred to herein above, I, now, proceed to determine whether the order of the learned Senior Civil Judge, Udaipur dated April 13, 1968 regarding the substitution of the appellants and Smt. Umrao Bai as legal representatives of Shri Roshanlal Chatur (defendant No. 1) and directing them to produce all the account books of the Dharamshala is correct or not?. Before the learned Senior Givil Judge, both the parties relieo upon Prafulla Kumar Mullick's case . K.C. Das Gupta J., as he then was) agreeing with the observations of Mitter J. in Shree Amiya Krishna Kanu v. Shree Debendra Lal 46 C.W.N. 865 observed as follows:
The net result therefore is that if in first place if a suit for accounts is filed originally against the agent or the trustee and after the institution of such suit the agent or trustee dies whether before or after the preliminary decree the suit can be proceeded with against the heir and legal representatives of the deceased agent or trustee In the second place, if the suit against the representatives of a deceased agent is not a suit for accounts but is a suit for the recovery of a specific sum of money then even if in determining the validity of the plaintiff s claim account has to be gone into such a suit is maintainable. But a suit for accounts pure and simple without and claim for any specific sum of money against the representatives of a deceased agent is in my opinion not maintainable....
Learned Counsel for the appellant tried to distinguish Prafulla Kumar's case whereas learned Counsel for the respondent supported the order under appeal on the basis of the observations made therein. Whether a claim for rendition of accounts is not a personal claim came up for consideration; in Girijanandini Devi's case's . While considering the maxim "action personalis moritur cum persona," their Lordships of the Supreme Court observed that this maxim has a limited application and operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. Regarding claim for rendition of account, it was observed:
An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor it is such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. Death of the person liable to render an account for property received by him does not, therefore affect the liability of his estate.
(Emphasis supplied).
Thus, this decision of the Supreme Court clearly negatives the contention of the learned Counsel for the appellant that the obligation to render an account comes to an end with the death of the trustee.
16. Sections 19, 44 and 48 of the Act and Section 92 CPC were examined in R.S. Shri Ram Prasad's case A.I.R. 1969 S.C. 75. In that case, the plaintiffs filed a suit, against the defendant for preliminary decree for rendition of accounts in favour of the plaintiff and against the defendant directing him to render accounts of the income of the Trusty Property since Samvat 1976 and a final decree for such amount as may be found due from the defendant to the Trust on rendition of accounts. One of the questions that arose was whether the suit for rendition of accounts originally filed against the deceased first defendant could be proceeded against the legal representatives. The learned Judge noticed the decisions reported in Girijanandini's case . Brijkishore's case , Prafulla Kumar Mullick's case , Panmal Lodha and Anr. v. Omraomal Lodha and Ors. , Ghulam Rusid v. Muhammed Abdul Rab and Ors. , Purushottam Vasdeo's case and Daulat Ram and Ors. v. Baluk Rum and Ors. A.I.R. 1950 E Punj. 250. It may be useful here to extract a part of para 11 from R.S. Shri Ram Prasad's case A.I.R. 1969 S.C. 75.
with the result, a suit for rendition of accounts filed against a trustee cannot be said to abate with the death of the trustee but such suit can be continued against the legal representatives with the change in the obligation necessarily caused by the death of the trustee The obligation of the legal representatives will be to produce before the Court what ever books and papers and vouchers left behind by the deceased and it is thereafter the duty of the plaintiff to establish what amount was really due from the estate of the deceased trustee In other words, the burden is on the plaintiff to establish that monies were due by the deceased to the trust and once he succeeds in establishing that, then the estate of the deceased in the hands of the legal representatives will be liable to the extent of the amount so established.
The learned Judge deduced from the aforesaid decisions that the liability to the account is not to be confused with the method of accounting just as the liability differs, the method of accounting also differs; there cannot be any uniform rule in all cases upon such point as to what books of accounts should be kept, when they should be adjusted and what vouchers should be kept and so forth; the obligation to render accounts involves duties (a) to keep accounts, (b) to keep them ready and deliver them, (c) to vouch after delivery to the obligee and (d) to explain them if explanation is needed or called for; and that the legal representatives of an agent or other person holding a fiduciary character cannot be directed by the court to explain the accounts kept by the agent or other person but there is no inherent impossibility in the performance of other acts by the legal representatives, namely to deliver the account that papers and support them by vouchers left by the deceased person; though the legal representatives cannot be called upon to render an account in the forensic sense in which the agent would be liable in ordinary suit for rendition of accounts, when the suit is continued against the legal representatives, it is really, for the Court to take an account on such materials as are laid before it by the parties and determine what amount, if any, was due to the plaintiffs from the deceased person in the fiduciary position. This is based on the sound reason that the legal representatives may not be aware and may be totally ignorant of what the deceased did with reference to the trust proper- ties and, therefore, the legal representatives cannot be called upon to perform the impossible but at the same time, to the extent to which the estate of the deceased is in the hands of the legal representatives, such estate should not be allowed to escape the liability if the said estate has been enriched by any misappropriation committed by the deceased in respect the trust properties. Under the aforesaid circumstances, I find myself unable to agree with the learned Counsel for the appellant that as the decree for rendition of accounts has been passed against defendant No. 1 Roshanlal Chatur, in a suit under Section 92 CPC, further proceedings in pursuance of that decree cannot proceed against the appellants and Smt. Urnrao Bai either on the ground that the obligation to render the accounts came to an end with his death or on the ground that it wilt be impassible for the legal representatives to render accounts or that the right to render accounts does not survive against his legal representatives. I may point out that the liability of the legal representatives with regard to the mode of accounting will not be the same as that of defendant No. 1 Roshanlal Ghatur and they cannot be called upon to account in the same sense and in the same manner in which the deceased defendant No. 1 could be called upon to account but that does not put an end to the liability to pay any amount that may be found due on taking accounts by the court in presence of the plaintiffs as well as the legal representatives of deceased defendant No. 1 Roshanlal Chatur against whom the preliminary decree for rendition of accounts was passed.
17. None of the decisions cited by Mr. H.M. Parekh is applicable to the facts of this case and, therefore, no useful purpose will be served by examining them in detail. I may, of course, mention here that Mst. Moti Bala's case , Kubrabi's case A.I.R. 1944 Nag. 190, Mst. Hasinabai's case A.I.R. 1948 Njag. 60, Bishambhar Nath's case and Surajanarain's case 1972 R.L.W. 201 were cited in support of the proposition that successor in office of the Managing trustee is only liable to accounts & not the heirs and sons of the deceased trustee, for, liability to account dies with the person. I have already drawn distinction between the liability to account and the method of accounting which was noticed in R.S. Shri Ram Prasad's case A.I.R. 1969 S.C. 75 and after the preliminary decree the legal representatives of the deceased defendant No. 1 are liable to pay any amount that may be found due on taking accounts by the court in presence of the plaintiffs as well as the legal representees of deceased defendant No. 1 Roshanlal Chatur against whom the preliminary decree was passed. Roshanlal's case ILR 1970 11 All. 722 and Umash Shankar's case were cited for the purpose of showing that while deciding the application, the court could not go beyond the permission accorded by the Advocate General. In this case, en the basis of the permission accorded by the Advocate General, the suit under Section 92 C.P.C was instituted for rendition of accounts and therefore preliminary decree for rendition of accounts was passed against defendant No. 1. In these circumstances, in my opinion the question of traveling beyond the permission does not arise. Thus, the aforesaid Allahabad decisions are of no help to the learned Counsel for the appellants for resolving the controversy before me.
18. Most of the decisions relied upon by the learned Counsel for the respondents have been noticed in R.S. Shri Ram Prasad's case A.I.R. 1969 S.C. 75 & as such. I need not discuss them in detail so as to burden this judgment. I may, however, mention that Roshanlal Kunja's case , on which reliance was placed by Mr. D.L. Mehta is not applicable. In that case, a representative suit was instituted by the trustees. Some of the trustees died during the pendency of the suit. The question arose whether the newly appointed trustees were representatives of the deceased trustees within the meaning of Order XXII, Rule 3, C.P.C. notwithstanding the question of limitation. In that connection, it is pertinent to refer the following observations:
Mr. Sodhi was not able to place before us any reported or unreported case in which successors-in-interest of trustees were treated as legal representatives within the meaning of Order 22, Rule 3, C.P.C.
After examining the cases cited before the Division Bench in that case, G.D. Khosla, C.J. with whom Tek Chand J. agreed, observed:
I would, therefore, hold that in this case, there has been no abatement and the bar of limitation does not apply to the application which has been made or the permission of this Court to continue the appeal in the name of Harakchand and Kashmiver and, nor is there any objection to Sidhumal being transferred to the category of appellants.
19. The upshot of the above discussion is that the learned Judge of the court below was, therefore, right in ordering the substitution of legal representatives of the deceased defendant No. 1 whereby allowing the application of the plaintiffs.
20. No. other point was pressed for consideration in this appeal.
21. The result is that this appeal has no force and is accordingly dismissed. In the circumstances, I leave the parties to bear their own costs of this appeal