Sharf-Ud-Din, J

[1] This is a suit by the plaintiffs against, the defendants, the heirs of one Laban Sarkar, who is alleged to have been an agent of the plaintiffs and their co-sharers from 1287 or 1288 and to have continued as such up to his death which took place in Pous 1311, (January 1905). In this suit, the plaintiffs have made their co-sharers pro forma defendants. Their allegation is that there was a contract between them and their co-sharers on the one side and Laban Sarkar the agent on the other, that the latter should render accounts annually to each of his employers including the present plaintiffs. It is farther alleged by the plaintiffs that the agent, although repeatedly asked, never rendered accounts for the period 1293 to Pous 1311, and that after his death, his heirs also, although repeatedly asked, never did so. The present suit, therefore, is to obtain a decree against the heirs of Laban Sarkar for rendition of accounts for the above period, for the return of certain documents belonging to the plaintiffs and their co-sharers, and for payment of the cash balance that may be found, on an adjustment, to have been in the hands of Laban Sarkar before his death in 1311.

[2] The first Court passed a preliminary decree against the defendants and on an appeal to the District Judge by the defendants, the judgment and the decree were confirmed and the appeal was dismissed. The defendants have now appealed to this Court and the principal question to be decided in this appeal is as to whether the present suit is governed by Article 89 or ll5 of the second Schedule of the Limitation Act (XV of 1877).

[3] Article 89 of the Limitation Act governs a suit by a principal against his agent for moveable properties received by the latter and not accounted for. The period of limitation for a suit of the above description is 3 years and the limitation begins to run when the account is, during, the continuance of the agency, demanded and refused, or, where no such demand is made, when the agency terminates.

[4] Article 115 of the same Act is a provision for a suit for compensation for the breach of any contract, expressed or implied, not in writing registered and not specially provided for in the Schedule. In this also, the period of limitation is three years, and that period is to commence when the contract is broken, or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or, (where the breach is continuing) when it ceases.

[5] The defendants allegations are that Laban Sarkar had rendered accounts to the plaintiffs and their Co sharers in 1305 and that after his death the defendants again rendered accounts in 1312.

[6] The finding of the lower Appellate Court is this: "In short, taking into my consideration the oral and the documentary evidence adduced by the defendants, I am strongly of opinion that the defendants have failed to prove that Laban Sarkar rendered accounts in 1305, and that they (defendants) again rendered accounts to the plaintiffs in Assarh 1312." This is a finding of fact and is, therefore, conclusive.

[7] There can be no doubt that the present suit is not against the agent himself but against his heirs, and it is admitted by the defendants that Laban Sarkar had to render accounts in the manner described in the plaint, that is, yearly, (vide paragraph No. 7 of the written statements).

[8] The question of limitation, it is alleged, was raised in the grounds of appeal to the lower Appellate Court, but that Court had not dealt with that question in its judgment. Under Section 3 of the Limitation Act, if a suit is barred by limitation, it shall be dismissed although limitation may not have been set up as a defence. We have, therefore, to determine as to whether this suit is governed by Article 89 or by Article 115.

[9] The first point urged on behalf of the appellants is that the agency having terminated on the death of Laban Sarkar, the plaintiffs have no cause of action against the heirs of Laban Sarkar. In the present suit, the plaintiffs not only sue for accounts but also for account papers and the cash balance that may be found, on adjustment, to have been in the bands of the deceased agent. In the case of Shib Chandra Ray Chowdhury v. Chandra Narain Mukerjee 1 C.L.J. 232 : 32 C. 719 it was held that a suit for money found due from an agent on an account being taken, and a suit for rendering an account cannot be distinguished.

[10] Other questions raised by the parties have been fully dealt with by my learned brother in his separate judgment. There is, however, the question of limitation and the application of the Articles of the Act, which is of some difficulty owing to some conflicting rulings of this Court.

[11] In the case of Mati Lal Bose v. Amin Chand Chattopadhay 1 C.L.J. 211 it was held that a suit for accounts by a principal against his agent on the basis of a registered agreement is governed not by the three years rule laid down in Article 8) but by the six years rule laid down in Article 116 of the Limitation Act and the time begins to run from the date when the contract to render accounts is broken and if, under the contract, the account has to be rendered at the end of every year, the plaintiff is not entitled to accounts for more than six years preceding the suit. The Article applicable, if the contract had not been registered, would appear to be Article 115. It appears that the judgment in Mati Lal Bose v. Amin Chand Chattopadhay 1 C.L.J. 211 was questioned in the case of Shib Chandra Ray Chowdhury v. Chandra Narain Mukerjee 1 C.L.J. 232 : 32 C. 719 because in the latter case, it was held that in an action by a principal against his agent claiming an account and the money found due on such account, the period of limitation is three years as prescribed in Article

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11. The difference between Articles 89 and 115 is that a suit by a principal against his agent falls within the particular class provided for by Article

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9. If after the termination of agency, by the death of the agent, an action for accounts is brought against the heirs of the deceased agent, it cannot be treated as a suit against the agent for which there is a special provision in Article

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9. A suit for account against the heirs of the deceased .

[12] Other questions raised by the parties have been fully dealt with by my learned brother in his separate judgment. There is, however, the question of limitation and the application of the Articles of the Act, which is of some difficulty owing to some conflicting rulings of this Court.

[13] In the case of Mati Lal Bose v. Amin Chand Chattopadhay 1 C.L.J. 211 it was held that a suit for accounts by a principal against his agent on the basis of a registered agreement is governed not by the three years rule laid down in Article 8) but by the six years rule laid down in Article 116 of the Limitation Act and the time begins to run from the date when the contract to render accounts is broken and if, under the contract, the account has to be rendered at the end of every year, the plaintiff is not entitled to accounts for more than six years preceding the suit. The Article applicable, if the contract had not been registered, would appear to be Article 115. It appears that the judgment in Mati Lal Bose v. Amin Chand Chattopadhay 1 C.L.J. 211 was questioned in the case of Shib Chandra Ray Chowdhury v. Chandra Narain Mukerjee 1 C.L.J. 232 : 32 C. 719 because in the latter case, it was held that in an action by a principal against his agent claiming an account and the money found due on such account, the period of limitation is three years as prescribed in Article 89.

[14] The difference between Articles 89 and 115 is that a suit by a principal against his agent falls within the particular class provided for by Article

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9. If after the termination of agency, by the death of the agent, an action for accounts is brought against the heirs of the deceased agent, it cannot be treated as a suit against the agent for which there is a special provision in Article

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9. A suit for account against the heirs of the deceased agent, would, therefore, be governed by Article 115, if the contract is not in writing registered, and if there is a contract in writing registered, the Article applicable would be Article 116.

[15] It seems that the correctness of the finding in the case of Mati Lal Bose v. Amin Chand Chattopadhay 1 C.L.J. 211 was also doubted in the case of Hafiz-ud-din Mondol v. Jadu Nath Saha 12 C.W.N. 820, 7 C.L.J. 279 : 35 C. 298 where it was held that a suit by a principal against his agent for accounts is not "a suit for compensation for breach of a contract in writing registered" when the contract between the parties is embodied in a registered document, and Article 89 and not Article 116 should govern such a suit. In this reported case, Maclean C.J. observed (and my learned brother agreed): There seems to be some difference of judicial opinion upon the question as to which Article does apply. In the Privy Council case of Asghar Ali Khan v. Khurshed Ali Khan 24 A. 27 : 3 Bom. L.R. 567 : 28 I.A. 227 the Judicial Committee held that in a case of this nature, Article 89 applied and that the expression moveable property in that Article included money. The same view was followed by this Court in the cases of Shib Chandra Ray v. Chandra Narain Mukerjee 1 C.L.J. 232 : 32 C. 719 and Debendra Nath Ghosh v. Sheik Esha Haq Mistri 14 C.W.N. 121 : 5 Ind. Cas.

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8. In this case, however, it appears that the contract under which the gomastha was appointed is a registered document. The argument is that as it is a registered document, the case falls within Article 116 of the second Schedule to the Limitation Act: and the respondent relied upon a decision of a Division Bench of this Court also Mati Lal Bose v. Amin Chand Chattopadhay 1 C.L.J. 211 which laid down that where the contract between the parties is under a registered document, the case is governed by Article 116 and not by Article

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9. Had the matter rested there, my own view would have been that Article 89 applied and not Article 116. Article 89 expressly applies to the case of a principal suing his agent for an account whilst Article 116 applies to a suit for compensation for the breach of a contract in writing registered.

[16] I have no doubt as to the correctness of f the view taken in the above case. That was a suit between the principal and an agent and it was immaterial whether the contract between the parties was in a writing registered or not, as there is a special provision for suits by a principal against an agent for accounts. But the present suit, as already observed, is not between the principal and the agent. It is a suit by the plaintiffs against the heirs of the deceased agent. We have, therefore, to see when the contract was, broke, or if there have been successive breaches, when the breach in respect of which the present suit was instituted occurred, or if the breach was continuing, when it ceased, 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 co-sharers. 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 what ever they may have received from the agent at the time of his death. That being so and also because the contract, was not in writing registered, Article 115 of the Limitation Act applies to such a case.

[17] Another case referred to during the course of argument is the case of Jogendra Nath Roy v. Debnath Chatterjee 8 C.W.N. 1

13. This was a suit by a principal against his agent for an account and for money that might be found due upon such account being taken and it was held that Article 89 was applicable. As already observed before, when there is special provision under Article 89 for limitation for a I suit by a principal against his agent, this and no other Article is applicable.

[18] The case of Easin Sarkar v. Baroda Kishore Acharyya Chowdhury 11 C.L.J. 43 : 5 Ind. Cas. 186 [LQ/CalHC/1909/122] was referred to. In this reported case, the question that arose was what should be the period of limitation in a suit for accounts when there had been an agreement to furnish accounts year by year, which had been neglected year by year: and the contention of the appellant of that suit was that it was immaterial whether Article 89 or Article 115 applied inasmuch as there was a succession breach of agreement. This case was decided not exactly on the application of the Article 115 to the facts of the case but on quite a different ground. I find in the judgment of this reported case the following passage: "That being so, we are of opinion that the Munsif is perfectly right in saying that it does not matter which Article applies. Whether Article 89 applies or Article 115 applies, there having been successive breaches year by year, the limitation dates from each breach. The plaintiff brought the suit within three years of the last breach and he is, therefore, entitled to accounts for one year." There is no doubt that in the judgment of this reported case, cases of Mati Lal Bose v. Amin Chand chattopadhay 1 C.L.J. 211 and Hori Narain Ghosh v. The administrator-General of Bengal 3 C.L.R. 446 were followed. But a discussion as to which of the two Articles applied was not necessary for the disposal of that appeal as is clear from what the Munsif said which was accepted by the Division Bench that decided that appeal.

[19] In the above circumstances, I am also of opinion that the limitation against the present suit should be governed by Article 115 and that the plaintiff can only obtain accounts for so much of the period in suit as falls within three years of the institution of this suit. This appeal will, therefore, be allowed in part and the plaintiff will get a preliminary decree for the accounts of the year 1311 only. The appellants would be entitled to their costs.

Coxe, J.

[20] This appeal arises out of a suit for an account and for other reliefs against the legal representatives of one Laban Sarkar. Laban Sarkar was the agent of the plaintiffs and their co-sharers; he died in 13

11. The plaintiffs seek accounts for the period 1293-13

11. The suit has been decreed and the defendants appeal.

[21] The first point taken is that, as the agency terminated on the death of Laban, the defendants are not liable to account at all. Bat, clearly, the plaintiffs are entitled to some relief against them. To hold that when a gomastha 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 deceased gomastha, and there, is no reason why the legal representatives should be entitled to withhold those accounts. A suit for money found due on an account and a suit for an account are really the same thing. Shib Chandra Ray Chowdhury v. Chandra Narain Mukerjee 1 C.L.J. 232 : 32 C. 71

9. And in the present case, the plaintiffs do sue not only for an account, but also for the account papers, for the money found due on the account, and finally, in the event of accounts not being furnished, for a lump sum of Rs. 905. It was held in Lawless v. Calcutta Landing and Shipping Co. 7 C. 627 and in Jogesh Chandra v. Benode Lal Roy 14 C.W.N. 122 : 5 Ind. Cas. 59 [LQ/CalHC/1909/164] that the legal representative of a deceased agent is bound to furnish accounts and this view seems to us correct. The first objection taken on behalf of the appellants, therefore, fails.

[22] Another point is that the plaintiffs cannot sue for the accounts of their share. The co-sharers, however, have been made parties and a decree has been given for an account of the whole agency from which the plaintiffs share can be ascertained. The defendants are, therefore, relieved from any further liability to the co-sharers. In these circumstances I think that this objection also fails.

[23] The only other point taken is that of limitation. This is one of some difficulty. It was

held in Mati Lal Bose v. Amin Chand Chattopadhay 1 C.L.J. 211 that a suit for accounts against an agent is not governed by Article 89 at all. This decision was questioned in Shib Chandra Ray Chowdhury v. Chandra Narain Mukerjee 1 C.L.J. 232 : 32 C. 719 and also in Hafiz-ud-din Mondol v. Jadu Nath Saha 12 C.W.N. 820 7 C.L.J. 279 : 35 C. 298 and perhaps must be regarded as to some extent overruled by the Privy Council decision in Asghar Ali Khan v. Khursed Ali Khan 24 A. 27 : 3 Bom. L.R. 567 : 28 I.A. 227. I may refer also to Jogendra Nath Roy v. Deb Nath Chatterje 8 C.W.N. 113 But it has been held in Jogesh Chandra v. Benode Lal Roy Chowdhury 14 C.W.N. 122 : 5 Ind. Cas. 59 [LQ/CalHC/1909/164] and in Basin Sarkar v. Barada Kishore Acharya Chowdhury 11 C.L.J. 43 : 5 Ind. Cas. 186 [LQ/CalHC/1909/122] following Mati Lal Bose v. Amin Chand Chattopadhay 1 C.L.J. 211 quoted above, that such a suit is taken out of the operation of Article 89 and comes within Article 115 or Article 116, if there is a covenant to render accounts at the end of every year. The learned Judges, who decided the case of Easin Sarkar v. Barada Kishore Acharya Chowdhury 11 C.L.J. 43 : 5 Ind. Cas. 186 [LQ/CalHC/1909/122] one of whom was my learned brother, also held following Hori Narain v. The Administrator General of Bengal 3 C.L.R. 446 that in the case of a covenant to deliver accounts annually, the omission to render such accounts must be regarded as a refusal within the meaning of Article 89, and that, therefore, even if Article 89 applied, the period of limitation would not be extended. I must confess, speaking with the greatest respect, that I feel some difficulty in holding that mere neglect to render accounts, which the defendants have agreed to render, can be deemed to be a refusal within the meaning of Article 89 and also, as pointed out in Hafiz-ud-din Mondol v. Jadu Nath Saha 12 C.W.N. 820, 7 C.L.J. 279 : 35 C. 298 in regarding a suit for accounts or for the sum found due thereon as a suit for compensation for the breach of a contract. It seems to me that the plaintiff sues for the money because it is due, and not because it represents the loss caused him by the defendants neglect render accounts. I am not prepared, however, to press my doubts on this subject to the point of differing from the decisions that I have quoted, and it must be held that Article 115 applies.

[24] Furthermore, the balance of authority is to the effect that a suit is taken out of the operation of Article 89, if it is a suit against the legal representatives, though here, too, there is a conflict of judicial opinion. It was held in Harender Kishore Singh v. The Administrator General of Bengal 12 C. 357 that a suit against the representative of a deceased agent for specific sums misappropriated did not come under Article 89 but under Article 116. It was pointed out that such a suit could not be regarded as a suit for an account at all. But, clearly, a suit for the recovery of specific sums misappropriated would be in closer accordance with the wording of Article 89, then a suit for an account, so that if Article 89 does not apply TO a suit against the representatives of an agent for the recovery of specific sums misappropriated, a fortiori it would not apply to a suit against them for an account. Again, in Omrita Nath Mitter v. Administrator-General of Bengal 25 C. 54 at 55 it was held that Article 89 would not apply to a suit against the representatives of a deceased agent for recovery of a specific sum "because the suit was not against the agent but against the legal representatives of the agent." On the other hand it was held in Lawless v. Calcutta Landing and Shipping Co. Limited 7 C. 627 that a suit for an account against a representative was governed by Article

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9. That, however, was the decision of a single Judge and cannot outweigh the two other decisions.

[25] It would seem, therefore, that this case is governed by Article 115 and that the plaintiff can only obtain accounts for so much of the period in suit as falls within three years of the institution of the suit.

[26] I agree, therefore, that the appeal be allowed in part and the plaintiffs be given a preliminary decree for the accounts of 1311 only.