Patna High Court
Jaggernath Singh vs Narayan Sarogi on 9 October, 1964
Equivalent citations: AIR1965PAT300, AIR 1965 PATNA 300
JUDGMENT
1. This appeal by the defendant arises out of a suit for recovery of Rs. 4096/-, principal and interest, which was decreed in full by the trial court and only in part by the lower appellate court.
2. According to the plaintiff's case, the defendant was the Munim of his firm and in that capacity an amount of Rs. 3411/- had been entrusted to him on the 19th February, 1953 for the purpose of making payment of Rs. 3200/ to a firm known as Chaman Lal Haridwari Lal at Banares and utilising the balance of Rs. 211/- for making certain purchases and meeting the expenses of travelling to and back from Benares. It was alleged that the defendant, instead of paying the sum of Rs. 3200/- to Chaman Lal Haridwari Lal and making the purchase etc., which he had been instructed to do, absconded with the money and never returned to the plaintiff, whereupon the plaintiff filed a criminal case which had ultimately ended in the acquittal of the defendant. On these allegations, the plaintiff instituted the suit for recovery of Rs. 3411/- as principal--the money which had been entrusted to him--and Rs. 685/- as interest from the 19th February, 1953, the date on which the aforesaid amount of Rs. 3411/- had been entrusted to the defendant to the 10th of February, 1956, at the rate of 9 per cent per annum.
3. The defendant contested the suit on the ground that the claim was false. He alleged that there were dues of the defendant's brother to the extent of Rs. 2128/- lying in deposit with the plaintiff's firm and that when the defendant demanded that money, there was trouble between him and the plaintiff, with the result that the defendant gave up the service of the plaintiff. According to him, the suit had been filed with a view to defraud him of the dues of his brother.
4. The Courts below have come to a finding that the defendant was entrusted with Rs. 3411/- by the plaintiff on the 19th February, 1953 and that the said amount has never been returned by the defendant. They have concurred in disbelieving the defendant's case. In regard to the claim for interest, while the trial court decreed the entire claim, the lower appellate court has, by reducing the rate of interest from 9 per cent to 6 per cent. only modified the plaintiff's claim for interest to that extent.
5. It appears that before the lower appellate court, the defendant-appellant filed an application seeking leave to urge two additional grounds:(1) that upon the death of the original plaintiff Gajanand Sarogi, his minor son Narayan Sarogi alone having been substituted in his place and his widow Shyam Lata not having been brought on the record, the suit abated as a whole or to the extent of the widow's interest; and (2) that the trial court had erred in law in allowing the plaintiff's claim for interest on Rs. 3411/-. The lower appellate court besides holding that on the facts and circumstances of the present case the defendant-appellant could not be allowed to agitate the question of abatement at the appellate stage, has repelled both the grounds on merits and has decreed the suit in full except in regard to the rate of interest as pointed out above. Mr. Gorakh Nath Singh, learned Counsel appearing for the defendant-appellant, has pressed this appeal mainly on the aforesaid two additional grounds which were urged on behalf of the defendant-appellant in the court of appeal below and has contended that the lower appellate court has erred in law in rejecting those contentions and in holding that the defendant-appellant could not be allowed to take objection on the score of abatement at the appellate stage. He has further contended that even on merits the finding on the question of entrustment of the money to the defendant-appellant by the plaintiff was vitiated in law on two grounds: (1) that no reliance should have been placed on the deposition of Gajanand Sarogi (Ext. 4) given in the criminal proceedings, and (2) that the account book (Ext. 2/b) should not have been used as substantive evidence.
6. It appears that within four months of the institution of this suit, out of which this appeal arises Gajanand Sarogi, the original plaintiff died on the 5th June, 1956 leaving behind him his minor son Narayan Sarogi and his widow Sham Lata Devi. On the 11th day of his death, that is, on the 16th June, 1956, an application under Order 22, Rule 3 of the Code of Civil Procedure was filed praying for substituting Narayan Sarogi, the minor son of deceased Gajanand Sarogi under the guardianship of his mother Shyamlata Debi in place of the deceased original plaintiff. This substitution was allowed, and Narayan Sarogi under the guardianship of his mother Shyam Lata Debi was brought on the record and the suit was continued. The defendant entered appearance on the 8th August, 1956; but at no stage he took any objection on the score of the widow not having been substituted along with the minor son. The trial Court decreed the suit on the 14th November, 1959, and the defendant preferred his appeal to the lower appellate court on the 31st December, 1959. No objection on the score of abatement of the suit either in whole or in part was taken in the memorandum of appeal. It was, however, on the 22nd March 1961, when the appeal was almost ripe for hearing that the defendant filed the aforesaid application seeking leave to urge the aforesaid grounds in support of his appeal. For these reasons, in my opinion, the lower appellate court has correctly pointed out that the defendant-appellant could not be allowed to urge the question of abatement in support of his appeal at the appellate stage. Whether upon one of the several heirs having been brought on the record by way of substitution, the suit has abated or not is a mixed question of law and fact. If an objection had been taken in the trial court, it would have been open to the substituted plaintiff to adduce evidence in support of the fact that he effectively represented the interest of the deceased plaintiff, either because he was the karta of the family after the death of his father or that his mother had gifted all her interest to him. It will be noticed that the defendant entered appearance well within ninety days of the date of the death of the original plaintiff; and if he had taken an objection that the widow should also be substituted as one of the legal representatives of the deceased plaintiff, there would have been no difficulty at that stage in bringing the widow on the record and thereby cutting at the very root of the objection subsequently taken. It appears, however, that far from objecting at the time when he entered appearance, he kept silent over it all through while the suit was pending in the trial court. He did not even take any such ground in his memorandum of appeal to the lower appellate court. It cannot be urged with any justification that the defendant, who had been working for so long as the Munim of the original plaintiff, was not aware of the presence of his widow, specially when the widow herself had come forward with the substitution application seeking her minor son's substitution in place of her deceased husband purporting to do so as the natural guardian of the former. In Balgajan Rai v. Sukhu Ral, AIR 1948 Pat 288, in similar circumstances, the following significant observations were made at p. 290: --
"The Calcutta High Court followed a decision of the Madras High Court In which it had been held that the defendants were estopped from contending that a person who had been substituted as the legal representative of a deceased plaintiff did not fully represent his estate; Meenatchi Achi v. Ananthanarayana Ayyar, ILR 26 Mad 224. If the principle of equitable estoppel can be applied in such cases as these, It seems to me that a fortiori it can be applied in the present case. The appellants were permitted by the trial court to carry on the suit on the understanding that they and Ram Chandra Rai fully represented the estate of the deceased plaintiff Chhatrapati Rai. If in consequence of the death of Ramchandra Rai, they, or any of them, were of opinion that they no longer fully represented his estate, and that, In order to secure such full representation it was necessary to bring on the record the widow and the minor sons of Ramchandra Rai, they could and ought to have intimated this to the court.' Their Lordships concluded by saying:
"It would amount to putting a premium on fraud to hold that they were entitled to conceal certain facts from the Court, and then on the basis of these facts, to assert that there had been an abatement of the appeal."
Applying the test laid down in the passage, quoted above, I am of the view that the defendant-appellant was estopped from contending that Narayan Sarogi who had been substituted as the legal representative of the deceased plaintiff did not fully represent his estate and that the suit on account of the non-substitution of the widow of the deceased had abated.
7. Apart from applying the rule of equitable estoppel, I am satisfied that even on merits, there is no substance in the contention of the defendant-appellant. In Barmeshwar Nath Prasad Singh v. Babu Kuer Rai, AIR 1964 Pat 116, a Bench of this Court, while dealing with the question whether a suit abated, if any of the several heirs of a deceased party was not substituted within the time allowed by law, upon a review of the various decisions on the point enunciated the law as follows:--
"Where the deceased leaves several heirs and a bona fide application for substitution of only some of them has been made, there is full representation of the deceased and there is no abatement; the other heirs may subsequently be added as parties even beyond the period of limitation."
It further observed:
"Where the deceased leaves behind several heirs, but a mala fide application is made for substitution of some of them only, such an application does not prevent abatement."
In the present case, I do not find anything on the record to show that the omission to substitute herself as well along with her minor son in place of her deceased husband was in any way mala fide. There could he no motive whatsoever for Shyamlata Devi to omit to substitute herself when, in fact, it was she who filed this application for substitution purporting to do so as guardian of her minor son. In this court, an application was filed on behalf of Shyamlata Devi for adding her as a respondent to this appeal. It was stated in paragraph 10 of this petition as under:--
"That In course of argument in the present appeal it has transpired that the presence of your petitioner Shyamlata Devi is proper as a precautionary measure for full discharge of the liability of the defendant-appellant Jagarnath Singh."
To this application, a counter-affidavit was filed by the appellant on the 7th February, 1964. In this counter-affidavit while resisting the application for the addition of Shyamlata Devi as a respondent to this appeal, It was stated that in Money Suit No. 218 of 1954 filed by one Sri Ramashankar Singh against Sri Gajanand Sarogi and others for recovery of Rs. 36,405/- upon the death of Sri Gajanand Sarogi both Shyamlata Devi and Narayanjl Sarogi were substituted as heirs and legal representatives of the deceased defendant Gajanand Sarogi and upon the substitution being made Mst. Shyamlata Devi appeared for self and as guardian of Narayanji Sarogi in the suit and contested the same. That suit was decreed on the 23rd December, 1957; and Mst. Shyamlata Devi and Narayanji Sarogi through Shyamlata Debi preferred First Appeal No. 169 of 1958 in this Court on the 28th February, 1958, and the said appeal was disposed of in their presence. Attention was drawn to toe substitution in Money Suit No. 218 of 1954 with a view to show that Shyamlata Debi must be deem ed to be Knowing that she was also one of the legal representatives of her deceased husband Gajanand Sarogi. Conceding for the sake of argument that on her as well as her minor son being substituted in place of her deceased husband in Money Suit No. 218 of 1954 she entered appearance for self and as guardian of her minor son and contested the suit, it does not follow that the application for substitution which she filed in the suit out of which this appeal arises was mala fide or, was not a bona fide application for substitution. By her very application she had apprised the court and all others concerned that her husband had died leaving her and her minor son as his legal representatives. There was, therefore, no suppression of any material fact. I am inclined to take the view that if the names of the legal representatives have been brought to the notice of the court through a regular application under Order 22, Rule 3 (1) of the Code of Civil Procedure, it becomes the duty of the court to array all such legal representatives as party whether as plaintiffs or as defendants. Order 22, Rule 3 (1) of the Code of Civil Procedure is, in my opinion, purposely worded in sufficiently wide language, and Sub-rule (2) of Rule 3 of order 22 of the Code of Civil Procedure says that where within the time limited by law no application is made under Sub-rule (1), the suit 'shall abate so far as the deceased plaintiff is concerned ...." It may be that when the substitution petition was filed Narayan Sarogl was the karta of the family after the death of his father. There is nothing in the Hindu Law which forbids a minor from occupying the status of a managing member of a particular joint Hindu family, particularly when he has a capable guardian to represent him. On the other band, section 21 of the Guardians and Wards Act, positively contemplates that a minor member can be a managing member of an undivided Hindu family. In Mulla's Principles of Hindu Law at page 590 (10th edition), the learned author has observed as follows: --
"There is no rule of Hindu Law that the managing member of an undivided Hindu family should be an adult. He may be a minor."
If, therefore, Narayan Sarogi was the karta of the family after the death of his father, then the application filed to substitute him in place of his deceased father under the guardianship of his mother was quite proper and upon his substitution the estate of the deceased would be fully represented. There may be many good reasons for the widow to apply for the substitution of her minor son in place of the deceased plaintiff. In such circumstances, I am constrained to hold that the application for substitution filed In this case was a bona fide application. In that view of the matter, the law as enunciated in AIR 1964 Pat 116 applies to the present case, and there will be thus no abatement at all. In this connection, reference may, however, be made to the following observations made in Shib Dutta Singh v. Karim Baksh, ILR 4 Pat 320: (AIR 1925 Fat 551) :
"Personally speaking we are of opinion that the appeal in the present case did not abate, inasmuch as an application for bringing upon the record some of the heirs of the deceased respondent No. 1 was already made within time. Rule 4 of Order XXII, Clause (3), directs that the appeal shall abate where within the time limited by law no application is made under Sub-rule (1). Here an application, as already observed, was made within time. Therefore, the appeal did not abate as against the deceased respondent. The respondent No. 1 having died the appeal could abate only if it was not continued against his representative by an application made within time and the moment the application was made within time the appeal was saved from abatement. The bringing on the record subsequently of the other heirs of the deceased will be simply an addition of the names in the category of respondents."
Similar question arose in Ishwarlal Laxmichand v. Kuber Mohan, AIR 1943 Bom 457, Lokur, J. while observing that it would have been proper if both the son and the widow had made an application that they should be brought on record as legal representatives posed the following question:
"The question now to be decided is whether the appeal abated, as the son alone made the application and was brought on record by an order of the lower court."
and answered the question by relying on a decision reported in Bhikaji Ramchandra v. Purshotam, ILR 10 Bom 220, in which case the appellant had died during the pendency of the appeal leaving three adult sons and one minor son. None of them made an application to be brought on record within time, and several months later the minor son made an application that he should be brought on record, and it was held that as the application made by the minor was within the time limited by law, the appeal did not abate. Sargent C.J. observed at p. 223:
"It is true that the complete legal representation as a fact is vested in him and his two brothers, but Section 366 (corresponding to Order 22, Rule 3, Sub-rule (2)) only requires an application to be made by a person claiming to be the legal representative, to prevent the order of abatment being made.' It appears to me that the words "legal representative' as occurring in Order 22, Rule 3, Sub-rule (1) of the Code, of Civil Procedure do not mean all the legal representatives and that it is not necessary that an application for bringing all the legal representatives on record should be made. The question whether a legatee of a part of an estate answered to the definition of "legal representative" as given in Section 2(11) of the Code of Civil Procedure was answered by the Supreme Court in the case of Andhra Bank Ltd. v. Srinivasan, AIR 1962 SC 232 in the affirmative, and, in my opinion from the observations made in that case it follows that no question of abatement will arise if one of the several representatives of a deceased representing only a part of his estate is brought on the record by filing an application as required by Order 22, Rule, 3 (1) of the Code within the time allowed by law. The application so filed has, however, to be a bona fide application, free from any deliberate suppression of material facts. This having been done in the present case, no question of abatement of the suit whether as a whole or in part could arise. In a recent case Daya Ram v. Shyam Sundari, Civil Appeal No. 360 of 1963 : (Reported in AIR 1965 SC 1049), Ayyangar, J. delivering the judgment of the Supreme Court has observed as under : --
"The almost universal consensus of opinion of all the High Courts is that where the plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded Legal Representatives sufficiently represent the estate of the deceased and that a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record."
The above observation in substance supports the view of the law enunciated in AIR 1964 Pat 116 to which reference has already been made.
8. On behalf of the appellant, reliance has been placed on the following three cases: Jamuna Rai v. Chandradip Rai, AIR 1961 Pat 178, Rameshwar Prasad v. Shambehari Lal Jagannath, AIR 1963 SC 1901 and Union of India v. Ram Charan, AIR 1964 S C 215. None of these cases are, however, in point and, therefore, are of no assistance to the appellant. All these cases are cases in which no application for substitution had been filed at all, and, the question which arises in the present case did not arise for consideration.
9. For all these reasons, it must be held that there is no substance in the first ground urged in support of this appeal.
10. The direction as to interest has been rested by the lower appellate court on a decision of the Supreme Court in Trojan and Co. v. Nagappa Chettiar, AIR 1953 S C 235. On the facts of the present case, I am of the view that the principle on which interest was allowed in the aforesaid Supreme Court case is fully applicable and, there is nothing wrong with the direction as to interest. The cases on which learned Counsel for the appellant sought to place reliance in support of his contention that no interest ought to have been awarded or allowed in the present case are not at all applicable to the facts alleged or found In the instant case. It is true as has been held in Bengal Nagpur Rly. Co. Ltd. v. Ruttanji Ramji, AIR 1938, P C 67 or in Thawardas Pherumal v. Union of India, (S) AIR 1D55 S C 468 and Mahabir Prasad v. Durga Dutta, AIR 1961 S C 990 or in Union of India v. A. L. Rallia Ram, AIR 1963 S C 1685 that interest for the period prior to the date of the suit cannot be allowed unless there is an agreement for the payment of interest at a fixed rate or is payable by the usage of trade having the force of law or under the provision of any substantive law entitling the plaintiff to recover interest. It is also true that in the present case there is neither usage nor any contract, express or implied, to justify the award of interest, nor can interest in the present case be payable by virtue of any provision of law governing the case. It may also be conceded that interest in the present case cannot be allowed under the main part of Section 1 of the Interest Act 32 of 1839, because to allow interest under that section not only the amount payable should be certain; the requirement further is that it must be payable at a certain time by virtue of a written instrument. But the Interest Act itself contains a provision that "interest shall be payable in all cases in which it is now payable by law. It is well settled that this proviso applies to cases in which the courts of equity exercise jurisdiction to allow an interest. In my opinion, the present case attracts the equitable jurisdiction of the Court, whereas the cases sought to be relied upon by the appellant were cases in which equitable jurisdiction of the Court could not be said to be attracted. It was observed in the decision of the Privy Council in Johnson v. Reg, 1904 A C 817, that there could be no doubt whatsoever "that money obtained by fraud and" retained by fraud can be recovered with interest, whether the proceedings be taken in a court of equity or in a court of law or in a court which baa jurisdiction, both equitable and legal." The Supreme Court In AIR 1953 S C 235 have referred to the above observation in the Privy Council case. In the present case, money was entrusted to the defendant for a particular purpose at a time when the defendant was working as an employee of the plaintiff. The defendant thus at the time when the money was entrusted to him was in the position of an agent vis-a-vis the plaintiff. If the defendant has been found to have wrongfully and illegally retained that money which was entrusted to him, I can perceive no reason why the just claim of the plaintiff for the money so entrusted and for interest thereon should not be decreed.
11. There is also no substance in the appellant's challenge to the finding on the question of the entrustment of the money by the original plaintiff to the defendant. The deposition of Gajanand Sarogi (Ext. 4) was clearly admissible under Section 33 of the Indian Evidence Act. As to what weight should be attached to a particular piece of evidence, whether oral or documentary, is for the final court of fact, and no interference is possible in second appeal. The relevant entries in the books of account have been taken into consideration along with the other evidence on the record, and it would not be correct to say that the appellate court has taken those entries in themselves as sufficient evidence to prove the fact of entrustment.
12. I, therefore, find that there is no merit in this appeal. It accordingly, fails and is dismissed with costs.