1. This is an appeal by the first defendant in a suit foraccounts. The facts material for the decision of the questions of law raisedbefore us may be briefly stated. On the 5th September 1895 the defendant wasappointed agent of the plaintiffs and their co-sharers for management of theirestate. The defendant and his father at the time hypothecated Immovableproperty as security for the due performance of the duty of the first defendantas agent. This bond was executed in favour of persons who were proprietors of ahalf share of the entire property. One of these, Radhika Mohan Das, wasinterested to the extent of one-eighth share; another, Rakhal Chandra Das, forhimself and as guardian of his infant brother, Brojo Gopal Das, was interestedto the extent of another one-eighth share. Two other persons, Gobind Lal Dasand Keshab Lal Das, were each interested to the extent of one-eighth share. Theproprietors of the remaining one-half share were not parties to the transaction,but it has been alleged--and that statement has not been challenged--that thedefendant was also their agent for the purpose of collection of rent. Thisagreement continued in force till the 19th August 1904, when its terms werevaried in the manner following, viz., the defendant undertook to collect therent of one-fourth share separately and to submit separate collection papers inrespect of that share year after year. In the interval, Radhika Mohan Das haddied in the year 1900 and his interest in the property had vested in RakhalChandra Das and Brojo Gopal Das; but there was no new contract in writingbetween these persons and the defendant, although the latter continued to actas their agent as previously. The defendant was discharged from his office onthe 7th August 1908. This suit for account was commenced against him on the 7thAugust 1911 by the plaintiffs who are representatives of the one-fourthshare-holder other than Gobind Lal Das and Keshab Lal Das. These latter havenot joined as co-plaintiffs and have consequently been joined as pro formadefendants. The plaintiffs claim accounts for the period from the 14th April1901 to the 7th August 1908. The claim is resisted by the defendant on themerits as also on the ground of limitation; he urges that he has renderedaccounts and is under no further obligation to the plaintiffs, and furthercontends that, if this plea is not established, the claim is barred bylimitation. The Court of first instance decided in favour of the defendant anddismissed the suit. Upon appeal the Subordinate Judge has set aside thatdecision and has made a preliminary decree for accounts from the 14th April1901 up to the 7th August 1908. On the present appeal, it has been urged onbehalf of the, defendant that the entire claim is barred by limitation. In ouropinion, this contention cannot possibly prevail.

2. The defendant and his father hypothecated Immovableproperty as security for the due discharge of the duty of the defendant asagent of the plaintiffs and their co-sharers. The plaintiffs seek to realisefrom the defendant whatever sum may be found due to them on adjustment ofaccounts, by sale of the Immovable properties hypothecated. The suit isconsequently one to enforce a charge on Immovable property within the meaningof Article 132 of the Indian Limitation Act. This view is supported by thedecisions in Hafezuddin Mandal v. Jadu Nath Saha 35 C. 298 : 12 C.W.N. 820 : 7C.L.J. 279 Troilukhyanath Mandal v. Abanish Chandra Roy 24 Ind. Cas. 18 : 21C.L.J. 459; Sures Kanta Banerjee v. Nawab Ali Sikdar 29 I.C. 848 : 21 C.L.J.462 and Venkatachalam Chetty v. Narayanan Chetty 26 Ind. Cas. 740 [LQ/MadHC/1914/509] : 28 M.L.J.140. It has been pressed upon us, however, on behalf of the appellant that acontrary view is supported by the case of Jogesh Chandra v. Benode Lal Roy 5Ind. Cas. 59 : 14 C.W.N. 122. But as was pointed in Troiluhhyanath Mandal v.Abanish Chandra Roy 24 Ind. Cas. 18 : 21 C.L.J. 459 the case of HafezuddinMandal v. Jadu Nath Saha 35 C. 298 : 12 C.W.N. 820 : 7 C.L.J. 279 was notbrought to the notice of the Division Bench that decided the case of JogeshChandra v. Benode Lal Roy 5 Ind. Cas. 59 [LQ/CalHC/1909/164] : 14 C.W.N. 122. For this reason thatdecision was not followed either in Troiluhhyanath Mandal v. Abanish ChandraRoy 24 Ind. Cas. 18 : 21 C.L.J. 459 or in Sures Kanta Banerjee v. Nawab AliSikdar 29 Ind. Cas. 848 [LQ/CalHC/1915/62] : 21 C.L.J. 462. In these circumstances, we adopt theview taken in Hafezuddin Mandal v. Jadu Nath Saha 35 C. 298 : 12 C.W.N. 820 : 7C.L.J. 279 and hold that the claim of the plaintiffs in so far as they are in aposition to enforce a lien on Immovable property is not barred by limitation.This brings us to the question, whether the plaintiffs are entitled to enforcea lien on Immovable property in respect of their entire claim.

3. On behalf of the appellant, it has been contended thatwhen Radhika Mohon Das died in 1900, the agency of the defendant under himterminated. In support of this view, reliance has been placed upon Section 201of the Indian Contract Act, which provides that an agency is terminated by thedeath of either the principal or the agent. On behalf of theplaintiffs-respondents, it has been argued that a contrary view may besupported by a reference to the terms of Section 209 which defines the duty ofthe agent on termination of the agency by the death of the principal. In ouropinion, there is no foundation for this contention. Section 209 is in theseterms: "When an agency is terminated by the principal dying or becoming ofunsound mind, the agent is bound to take, on behalf of the representatives ofhis late principal, all reasonable steps for the protection and preservation ofthe interests entrusted to him." This provision does not indicate that theagent continues to be the agent as he was before the death of the principal. Ifhe continues to be the agent, no such provision as is embodied in Section 209is needed. On the other hand, if we contrast the provisions of Section 253which defines the effect of the death of any partner on a partnership, it becomesplain that under Section 209 an agency is terminated by the death of theprincipal or the agent. Clause (10) of Section 253 lays down that, in-theabsence of any contract to the contrary, partnerships, whether entered into fora fixed term or not, are dissolved by the death of any partner. In Section 209we miss the expression "in the absence of any contract to thecontrary" which finds a place in Section 253. We hold accordingly that theagency of the defendant was terminated in 1900 with regards to the share ofRadhika Mohan Das, and that thereafter a new agency was created by implicationin respect of that share as between the defendant and the representatives ofthe deceased: Mohendra Nath Ghosh v. Jadu Nath Mullik 3 I.C. 684 : 9 C.L.J.107. In respect of the account of this share consequently the plaintiffs arenot entitled to enforce a lien on Immovable property under the terms of theoriginal contract of the 5th September 1895, Behari Lal Roy v. Hara Kumar Dutta29 I.C. 748 : 21 C.L.J. 458 and Sures Kant a Banerjee v. Nawab Ali Sikdar 29Ind. Cas. 848 : 21 C.L.J. 462. The question next arises, what period oflimitation is applicable with regard to this portion of the claim of theplaintiffs. On behalf of the appellant, it has been contended that Article 115applies and that as, on the 19th August 1904, the parties agreed that accountswould be submitted from year to year, there was a breach of obligation of thedefendant at the end of each year, so that under Article 115, this portion ofthe claim is barred by limitation. In support of this view, reference has beenmade to the decisions of Mati Lal Bose v. Amin Chand Chattopadhay 1 C.L.J. 211;Easin Sarkar v. Barada Kishore Acharyya Chowdhury 5 Ind. Cas. 186 [LQ/CalHC/1909/122] : 11 C.L.J.43; Jogesh Chandra v. Benode Lal Roy 5 Ind. Cas. 59 [LQ/CalHC/1909/164] : : 14C.W.N. 122. and Jhapajhanessa Bibi v. Bama Sunduri Chaudhrani 16 Ind. Cas. 414 [LQ/CalHC/1912/471] : 16 C.W.N. 1042 : 16 C.L.J. 286. The first three of the cases mentioned, nodoubt, lend some support to the contention of the appellant. But it must beobserved that, as pointed out in Jhapajhanessa Bibi v. Bama Sundari Chaudhrani16 Ind. Cas. 414 [LQ/CalHC/1912/471] : 16 C.W.N. 1042 : 16 C.L.J. 286 there is a strong current ofauthority in the contrary direction. The cases of Jogendra Nath v. Deb NathChatterjee : 8 C.W.N. 113. Shib Chandra Roy v. Chandra Narainv. Mukerjee 32 C. 719 : 1 C.L.J. 232; Hafezuddin Mandal v. Jadu Nath Saha 35 C.298 : 12 C.W.N. 820 : 7 C.L.J. 279 and Chandra Madhab Barua v. Nabin ChandraBarua 18 Ind. Cas. 735 [LQ/CalHC/1912/319] : 4 C. 108 : 16 C.L.J. 103 show that Article 89 isapplicable to cases of this description. It is worthy of note that in the casesof Easin Sarkar v. Barada Kishore Acharyya Chowdhury 5 Ind. Cas. 414 : andJogesh Chandra v. Benode Lal Roy 5 Ind. Cas. 59 [LQ/CalHC/1909/164] : : 14 C.W.N.122 the attention of the Court was not invited to the decision of Shib ChandraRoy v. Chandra Narain Mukerjee 32 C. 719 : 1 C.L.J. 232 where it had beenpointed out, on a review of the earlier authorities including the decision ofthe Judicial Committee in Asghar Ali v. Khurshed Ali 24 A. 27 3 Bom. L.R. 576 :28 I.A. 227 that Article 89 is applicable to a suit for accounts by a principalagainst his agent. We may observe paranthetically that the appellant has arguedthat the case before the Judicial Committee was not in reality a suit by aprincipal against his agent. We are unable to give effect to this contention.The suit was brought by the then plaintiff for money in the hands of thedefendant, who had consequently to account for the sum which he had taken andspent; and the Judicial Committee held that the suit was one for accounts,governed by Article 89 of the Indian Limitation Act. We hold accordingly thatArticle 89 is applicable in respect of this portion of the claim of theplaintiffs. We do not think it necessary to refer the question for the decisionof a Full Bench of this Court, first, because the point is really concluded bythe decision of the Judicial Committee in Asghar Ali v. Khurshed Ali 24 A. 27 3Bom. L.R. 576 : 28 I.A. 227 and, secondly, because the later decisions to thecontrary did not take notice of the earlier decisions which are precisely inpoint. It is further worthy of note that Mr. Justice Coxe who reluctantlyfollowed the decision of Jogesh Chandra v. Benode Lal Roy 5 Ind. Cas. 59 [LQ/CalHC/1909/164] : 14C.W.N. 122 in Jhapajhanessa; Bibi v. Bama Sundari Chaudhrani 16 Ind. Cas. 414 [LQ/CalHC/1912/471] :16 C.W.N 1042 : 16 C.L.J. 286 was of opinion that the contrary view taken inShib Chandra Roy v. Chandra Narain Mukerjee 32 C. 719 : 1 C.L.J. 232 gaveeffect to the true intention of the Legislature. We now proceed to examine theeffect of the application of Article 89 to the case before us. That Articleprovides that a suit by a principal against his agent for moveable property receivedby the latter and not accounted for may be instituted within three years fromthe date when the account is during the continuance of the agency, demanded andrefused, or where no such demand is made, when the agency terminates. On behalfof the respondent it has been strenuously urged that the case is governed bythe second alternative, namely, that time runs against the plaintiff from thedate when the agency terminates. The reason for this contention is obvious,because if it prevails, the plaintiffs would be entitled to accounts for theentire period claimed; for, as was pointed in Sures Kanta Banerjee v. Nawab AliSikdar 29 Ind. Cas. 848 [LQ/CalHC/1915/62] : 21 C.L.J. 462 and the same view had been taken by theJudicial Committee by implication in Jawahir Singh v. Lachman Das 24 A. 27 3Bom. L.R. 576 : 28 I.A. 227 and by the Bombay High Court in Nathubhai Bhikandasv. Devidas Mangaldas 8 I.C. 637 : 12 L.R. Bom. 951 if the suit has been broughtwithin three years, the plaintiff is entitled to accounts for the entire periodof the agency. The appellant has fully appreciated the danger of this argument,and accordingly contended strenuously that the case falls within the firstalternative, namely, that here the account was demanded and refused during thecontinuance of the agency. To substantiate this contention, reliance has beenplaced upon a letter written admittedly by the plaintiffs to the defendant onthe 24th April 1909. In this letter, it was stated that the defendant hadsubmitted account papers for 1311 and 1312 Faslis but had not explained them.He was accordingly called upon to appear before the plaintiffs and explain, assoon as possible, the accounts up to the end of the year 1312 Fasli. Thedefendant admittedly has not responded to this call. The question is, whetherthere has been a demand and refusal within the meaning of Article 89. Ourattention has, in this connection, been invited to the cases of Hori NarainGhose v. Administrator-General of Bengal 3 C.L.R. 446; Basin Sarkar v. BaradaKishore Acharyya Chowdhury 5 I.C. 186 : 11 C.L.J. 43 and Chandra Madhab Baruav. Nabin Chandra Barua 18 IC 735 : 40 C. 108 : 17 C.L.J. 103. The cases of HoriNarain Ghose v. Administrator-General of Bengal 3 C.L.R. 446 and Easin Sarkarv. Barada Kishore Acharyya Chowdhury 5 I.C. 186 : 11 C.L.J. 43 show that ifthere has been a demand for accounts and the agent has not responded to thecall there is, by implication, a refusal within the meaning of Article 89. Adifferent view appears to have been taken in Chandra Madhab Barua v. NabinChandra Barua 18 I.C. 735 : 40 C. 108 : 17 C.L.J. 103. In that case, there wereapparently repeated demands by the principal, with which the agent had failedto comply. The Court held that as the demands were made while the business wasin existence, limitation would run from the termination of the business. Thefacts of the case do not appear, however, fully either from the judgment orfrom the report; but, if this was intended as a formulation of a generalprinciple applicable to all cases, Ave are unable to accept it as well-foundedon principle. In our opinion, if there has been a demand, failure to respond tothe demand is refusal within the meaning of Article 89. There may, however, becases where omission to render accounts may not be a refusal within the meaningof Article 89. To take one illustration, if the principal demands an accountand the agent submits papers, there is not necessarily a refusal on the part ofthe agent to render accounts. But, in the case before us, after the papers hadbeen submitted, there was a further demand upon the agent to explain them. Tothis he failed to respond. In these circumstances, there was a refusal withinthe meaning of Article 89. Consequently, the claim for accounts up to 1312Fasli in respect of the share of Badhika Mohan Das, is barred by limitation. Inrespect of the accounts for the remaining period, there is nothing to show thatthere was a demand and refusal; consequently the claim for accounts from 1313Fasli is governed by the second alternative in the third column of Article 89and is not barred by limitation.

4. Finally, we have to deal with the question of the mode inwhich accounts should be rendered. On behalf of the defendant the position hasbeen maintained that as soon as the defendant as agent of the plaintiffssubmitted his account papers, his duty was discharged, and that the plaintiffsare under an obligation to examine these papers without his assistance. Insupport of this position, reliance has been placed upon observations in ChandRam v. Brojo Gobind Das 19 W.R. 14 and Upendra Kishore Rai Chaudhury v. RamTara Debya Chaudhurani 4 I.C. 542 : 13 C.W.N. 696. We are unable to agree inthe view put forward on behalf of the appellant. The duty of an agent when heis called upon to render account to his principal was explained by the JudicialCommittee in the case of Hurrinath Rai v. Krishna Kumar Bakshi 14 C. 147 : 13I.A. 123 : I.A. 123 : Ind. Jur. 475 : 4 Sar. P.C.J. 751. It is well-settledthat his obligation towards his principal does not terminate merely by thesubmission of account papers; he is bound to explain those papers, and if, onaccounts taken, it is found that he has in his hands money which belongs to hisprincipal, he is bound to pay that sum. This principle has been recognised in along series of cases: Shushee Shekhur Audhikaree v. Suleem Biswas 22 W.R. 191Alaiahmad alias Boolaki v. Nusibun Bibee 24 W.R. 70; Annoda Persad Roy v.Dwarkanath Gangopadhya 6 C. 754 : 8 C.L.R. 321; Ram Chunder Shaha v. ManickChunder Banikya 7 C. 428 : 9 C.L.R. 157 Chandra Roy v. Chandra Narain Mukerjee32 C. 719 : 1 C.L.J. 232 and Ram Das v. Bhagwat Das 1 A.L.J. 347 : (1905)A.W.N. 1. But the defendant here has not explained the papers, at any rate, thepapers subsequently to 1310 Fasli and, consequently, he must render accountswhen they are taken by a Commissioner.

5. As regards the submission of the papers, it has beenargued on behalf of the defendant that up to the time when collection was jointhe had submitted some of the collection papers to the pro forma defendants andother papers to the proprietors of the eight-annas share known as the GuhaBabus. The Court of first instance found that the papers had been so submittedand in this view the defendant is under no obligation to submit papers again tothe plaintiffs. It is plain, in so far as the papers relating to the timeduring which the collection was joint are concerned, that it is a matterbetween the landlords themselves and steps must be taken by the Court at theinstance of the plaintiffs to compel the pro form a defendants and the GuhaBabus to produce the papers which were made over to them by the defendant. Thepowers of the Court in this respect are ample and have certainly not beenexhausted: every endeavour must be made by the Court below to obtain the papersfrom those persons. But, we desire to make it clear that the defendant cannotbe held responsible for the production of the papers, if they are not producedby the persons to whom they were submitted by him.

6. There remains only one other point for consideration. Onbehalf of the defendant it has been urged that the trial Court found expresslyin his favour that the papers up to 1310 Fasli had not only been submitted butexplained. Upon this point, the Subordinate Judge has not come to an explicitfinding. One fact, however, is patent; namely, that the co-sharers of theplaintiffs are satisfied with the accounts up to the end of 1310 Fasli they, atany rate, have not put forward a claim, in respect of the accounts for thatperiod. In view of the special circumstances of this case, we hold that inrespect of the accounts up to the end of 1310 Fasli the plaintiffs mustestablish that the accounts have not been explained to them by the defendant.If they make this out to the satisfaction of the Court below, the defendantmust explain the papers before the Commissioner. But in respect of the periodsubsequent to 1310 Fasli the defendant is clearly under an obligation toproduce such papers as have not already been produced and to explain all thepapers to the satisfaction of the Court.

7. The result is that this appeal is allowed in part and thedecree of the Subordinate Judge varied in the manner following. The plaintiffswill have a decree for accounts against the defendant in respect of one-eighthshare for the entire period claimed in the suit, and for the sum which n ay befound due on account of this share, they will be allowed to enforce their claimby sale of the Immovable properties hypothecated. In respect of the one-eighthshare originally vested in Radhika Mohan Das, the claim for accounts isdismissed up to the 13th April 1906 (that is, up to the end of the year 1312Fasli). But the plaintiffs are entitled to an account in respect of that sharefor the period commencing with the 14th April 1906 (corresponding to the 1stBaisakh 1313) up to the date of the termination of the agency on the 7th August1908. In respect of any sum which may be found due to the plaintiffs withregard to this share, the plaintiffs will have a money-decree against thedefendant. Steps will be taken by the Court below to compel the pro formadefendant and the proprietors of the one-fourth share who are not parties tothis suit, to produce such papers as were placed in their hands by the defendant.The defendant will explain the accounts subsequent to 1310 and he will producesuch papers as have not already been filed by him. In respect of the accountsantecedent to 1310 Fasli, the plaintiffs must establish to the satisfaction ofthe Court that they have not been explained by the defendant, and the defendantwill be called upon to explain the accounts antecedent to 1310 Fasli only ifthe plaintiffs establish this. If the Court fails to secure the production ofthe papers made over to the co-sharers of the plaintiffs, the accounts coveredthereby will be taken only if the plaintiffs are able to place other relevantmaterials before the Commissioner; if the plaintiffs fail to do so, theaccounts covered thereby will not be taken. Each party will pay his costs inthis Court. The costs in the Court of first instance and before the SubordinateJudge, as also the costs of the accounts now directed, will abide the ultimateresult of the suit.

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Madhusudan Sen vs.Rakhal Chandra Das Basak and Ors.(06.05.1915 - CALHC)