NOBIN CHANDRA BARUA Vs. CHANDRA MADHAB BARUA

JUDGEMENT

(1.) The appellants father, Nanda Kumar Barua, was the owner of one moiety and his uncles, the respondent and Chandicharan Barua, were the owners of the other moiety of a lakhraj estate in the district of Goalpara comprising a large tract of forest land. In or about the year 1894 Nanda Kumar Barua entered into an agreement with the respondent under which the respondent was appointed agent for the purpose of collecting rents and profits from the forest land, in order gradually to pay off a heavy debt, rendering accounts of his management, from time to time, to Nanda Kumar Barua. Nanda Kumar Barua died in July 1899, He left three sons, the appellants, two of whom were minors, For about two years after the death of the appellants father, the respondent managed the property on the same terms as before. The agency was terminated by a notice dated the 16th January, 1902- In September 19041116 appellants commenced a suit against the respondent claiming a declaration that the respondent was liable to render accounts to the plaintiffs of the amount realised in respect of the said property for the whole period of the agency. The Subordinate Judge ordered an account of the income and expenditure in regard to the Forest (Timber) Mahal, belonging jointly to both parties, from the month of Sraban 1303 B.S. to the month of Magh 1308 B.S. Against this order the respondent appealed to the High Court. The appeal was allowed and the order of the Subordinate Judge was varied so as to limit the account to five months from Bhadra to Magh 1308. It is against this order that the appear is brought.

(2.) During the course of the argument, the counsel for the appellants asked that accounts should be ordered for the whole period of the agency, but in the absence of any cross-appeal to the High Court, or of any memorandum such as is required to be filed under Section 561 of the Code of Civil Procedure Act, 1882, it is not competent for the appellants to get any further remedy than the restoration of the order of the Sub ordinate Judge. It is unnecessary to consider the argument addressed to their Lordships as to any liability to account from an earlier date. The question on appeal is limited to the consideration whether the order of the Subordinate Judge should be restored.

(3.) It was not argued before their Lordships that, after the death of Nanda Kumar Barua in Sraban 1306, the position of the respondent was altered or that he became a trustee in place of an agent. Consequently article 89 of the Limitation Act, 1877, applies, and the only point for decision is whether the provisions contained in this article protect the respondent against a liability to render accounts from the month of Sraban 1303 B. S. and limit his liability to render accounts from Bhadra 1-308. In their Lordships opinion the order 01 the Subordinate Judge should be" restored.