Bombay High Court
Balkisandas vs Uderaj Harackchand Jain And ... on 21 July, 2016
Bench: Ravi K. Deshpande
1 sa179.94 459.02.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 179 OF 1994
1. Balkisandas Hansraj Gattani
through L.Rs.
1-a Smt. Sharau wd/o Balkisandas Gattani
aged about 64 years, Occ. Household,
1-b Shri Omprakash s/o Balkisandas Gattani,
aged about 46 years, Businessman.
1-c Shri Anandkumar s/o Balkisan Gattani
1-d Sou. Shoba w/o Jiwanlal Soni,
aged about 43 years, Occ. Household work,
M.I.G. 577, Housing Board, Padmanabhpur,
Durg (M.P.)
Nos. 1-a to 1-c R/o. Janephal, Tah. Mehkar,
Distt. Buldhana
2. Damodardas Hansraj Gattani
3. Suresh Hansraj Gattani
4. Kashibai Hansraj Gattani
(Deleted vide Court's Order dated 22.04.94).
5. Shrikisan Hansraj Gattani
(deceased, thr. L.Rs.)
5-a Gitabai w/o Shrikisan Gattani
5-b Rajendra Shrikisan Gattani
(deceased thr L.Rs)
Smt. Suraj wd/o Rajendra Gattani
aged 21 yrs, R/o B-2 Kanchan-Kiran
::: Uploaded on - 27/07/2016 ::: Downloaded on - 30/07/2016 10:11:08 :::
2 sa179.94 459.02.odt
Ramdaspeth, Nagpur-10
5-c Naresh Shrikisan Gattani
5-d Ku.Kirti d/o Shrikisan Gattani
6. Chanda w/o Bansilal Mundhada
(deleted)
7. Pushpa w/o Ratanlal Chandak
8. Tara w/o Narayandas Navandhar...... APPELLANTS
Org.Pltffs.
ig ...VERSUS...
1. Uderaj Harakchand Jain
(deceased thr L.Rs)
1-a Shri Nirmal s/o Uderaj Jain,
aged 45 years, Occ. Agriculturist,
1-b Shri Tejmal Uderaj Jain,
aged 33 years, Occ. Businessman.
1-c Shri Padam s/o Uderaj Jain,
aged about 30 years, Occ. Businessman,
1-d Sou. Punnabai w/o Navalchand Pugulia,
aged 38 years, C/o Navalchand Pugulia,
R/o. Sarafa Bazar, Itwari, Nagpur.
Nos 1-a to 1-c, C/o Uday Shopping Centre,
Main Road, Khamgaon, Distt. Buldana.
2. Bhagwandas Punnalal Gattani,
3. Prashantkumar Bhagwandas Gattani,
4. Pavankumar Bhagwandas,
5. Prafullakumar Bhagwandas,
(i) Bhagwandas Pannalal (deleted)
::: Uploaded on - 27/07/2016 ::: Downloaded on - 30/07/2016 10:11:08 :::
3 sa179.94 459.02.odt
(ii) Prashant Bhagwandas (deleted)
(iii) Pravinkumar Bhagwandas (deleted)
6. Jagdish Bhagwandas Gattani....... RESPONDENTS
Org. Defts.
SECOND APPEAL NO. 459 OF 2002
1. Bhagwandas Punnalal Gattani,
aged 53 yeas, Occ. Cultivator,
R/o. Janefal, Tq. Mehkar, Distt. Buldana.
2. Ramabai Pannalal Gattani (dead)
By L.Rs.
a]
Bhagwandas Pannalal Gattani (deleted)
b] Prashant Bhagwandas Gattani,
aged 25 years,
c] Pravinkumar Bhagwandas Gattani,
aged 20 years,
d] Prafullakumar Bhagwandas Gattani
aged 20 years,
e] Jagdish Bhagwandas Gattani,
minor by guardian Bhagwandas
Punnalal Gattani,
All R/o. Janefal, Tq. Mehkar APPELLANTS
...VERSUS...
1. Udayaraj Harakchand Jain,
aged years, R/o. Bidi, Tq. Mehkar
(dead) through L.Rs.
A] Nirmal s/o Udaraj Bedasani (Jain)
Aged 45 years, Occ. Agriculturist,
R/o. Bidi, Tq. Mehkar, Distt. Buldana.
B] Tejmal s/o Udaraj Bedasani (Jain),
aged 43 years, Occ. Contractorship.
::: Uploaded on - 27/07/2016 ::: Downloaded on - 30/07/2016 10:11:08 :::
4 sa179.94 459.02.odt
R/o. Khamgaon, Tq. Khamgaon
(Uday Shopping Centre), Main Road,
Khamgaon, Tq. Khamgaon, Distt. Buldana.
C] Dr. Padam Udaraj Bedasani (Jain)
Age 40 years, Occ. Dentist,
R/o. Khamgaon, Tq. Khamgaon
(Uday Shopping Centre), Main Road,
Khamgaon, Tq. Khamgaon, Distt. Buldana.
D] Sau. Pannabai w/o Navalchandji Pugliya,
aged about 38 years, Occ. Household,
R/o. C/o. Navalchandji Pugliya,
Sarafi Dukan, Sarafa Bazzar, Itwari,
Nagpur, Tq. And Distt. Nagpur.
2. Balkisan Hansraj Gattani
(dead) through L.Rs.
2-A Omprakash Balkisan Gattani,
aged 42 years, Occ. Business,
R/o. Janefal, Tah. Mehkar, Distt. Buldana
2-B Sanjay Omprakash Balkisan Gattani
aged 38 years, Occ. Business,
R/o. Janefal, Tah. Mehkar, Distt. Buldana
2-C Smt. Sarubai wd/o Balkisan Gattani
aged 63 years, Occ. Household work
R/o. Janefal, Tah. Mehkar, Distt. Buldana
2-D Sau. Shobha w/o Jivanlal Soni,
aged 35 years, Occ. Household Work
R/o. Durg, Distt. Durg (M.P)
3. Damodhar Hansraj Gattani
(deceased through L.Rs)
3A Deepak S/o Damodhar Gattani
3B Dilip s/o. Damodhar Gattani.
Both R/o. Janefal, Tah. Mehkar, Distt. Buldana
::: Uploaded on - 27/07/2016 ::: Downloaded on - 30/07/2016 10:11:08 :::
5 sa179.94 459.02.odt
3C Smt.Varsha W/o. Sunil Kothari,
C/o. Sunil Gopal Kothari,
Shanti Niketan, In front of
Multipurpose High School,
Mahavir Chowk, Nanded, Distt. Nanded.
4 Shrikrushna Hansraj Gattani,
(deceased through L.Rs)
4A Gitabai Shrikrushna Gattani,
aged about 45 years,
4B Rajesh Shrikrushna Gattani,
(abated)
4C Naresh Shrikisan Gattani
(dismissed as per Regr(J) order dt. 16.07.09)
4D Ku. Kirti Shrikisan Gattani
(dismissed as per Regr(J) order dt 05.09.13)
5 Suresh Hansraj Gattani,
age 44 years, R/o. Janefal.
6 Chanda Bansilal Mundda,
(deceased through L.Rs.)
6A Bansilal Ramnath Mundhada,
aged 50 years,
6B Gopal Bansilal Mundada,
aged 22 years.
6C Kiran Bansilal Mundhada,
aged 26 years,
6D Jyoti Bansilal Mundhada,
aged 24 years
6E Usha Bansilal Mundhaha,
aged about 20 years,
::: Uploaded on - 27/07/2016 ::: Downloaded on - 30/07/2016 10:11:08 :::
6 sa179.94 459.02.odt
All R/o. Mangrulpir, Tq. Mangrulpir,
Distt. Akola.
7 Pushpa Ratanlal Chandak
(deceased through L.Rs)
7A Shri Ratanlalji Dayaramji Chandak
C/o Santosh Ratanlalji Chandak,
R/o. Chaitanya Wadi, Buldhana.
7B Santosh Ratanlalji Chandak,
R/o. Chaitanya Wadi, Buldhana.
7C Satish Ratanlalji Chandak
(dismissed as per Regr (J) order dt. 20.02.14)
7D Sharad Ratanlalji Chandak,
R/o. Flat No. 1002, BRENT WOOD
Apartment, 4, Charam, Wood Village,
Suraj Kund Road, Faridabad,
Peth Hariyana.
7E Sujit Ratanlalaji Chandak
(dismissed as per Regr (J) order dt. 17.03.16)
8. Tara Narayandas Navdhar,
(Dismissed as per Regr (J) order dt. 16.07.09)
9. Kashibai Hansraj Gattani
(Deleted as per Regr's Order)
-------------------------------------------------------------------------------------------
Shri C.S.Dhabe, counsel for appellant in S.A. No. 179 of 1994
Shri N.R.Saboo, counsel for appellant in S.A. No. 459 of 2002
Shri A.V.Bhide for respondents
-------------------------------------------------------------------------------------------
CORAM: R. K. DESHPANDE, J.
st
DATE : 21 JULY, 2016 .
ORAL JUDGMENT
1] The trial Court dismissed the Regular Civil Suit
7 sa179.94 459.02.odt
No. 269 of 1971 for rendition of accounts filed by some of the
L.Rs of one Hansraj against Uderaj and others for the period
from 1950 to 1971 i.e. till the date of filing of suit on
16.12.1971. The lower appellate Court dismissed the
Regular Civil Appeal No. 75 of 1979 on 02.03.1993. Hence,
the original plaintiffs are before this Court in Second Appeal
No.179 of 1994.
2] Similarly, the other L.Rs of Hansraj had also filed
Regular Civil Suit No. 268 of 1971 against Uderaj for
rendition of accounts for the period from 1950 to 1971 and
that was dismissed by the trial Court on 23.03.1989. The
Regular Civil Appeal No.47 of 1989 was dismissed by the
lower appellate Court on 29.06.2002. Hence, the original
plaintiffs are before this Court in Second Appeal No. 459 of
2002.
3] Undisputedly, the plaintiffs in both the suits are
the L.Rs of one Hansraj, the Karta of joint family. On
04.05.1950, the property was purchased by a firm Asaram
Badrinarayan, in which the plaintiffs and the defendants were
the partners to the extent of their respective shares. The
8 sa179.94 459.02.odt
defendant No. 1 - Uderaj Harakchand Jain (Oswal) in both
the suits was authorized by Hansraj to collect the rents for
and on behalf of the firm, from about 52 tenants therein. By
issuing notice dated 24.01.1969 at Exh. 58, Uderaj was
called upon to furnish the accounts in respect of the rent so
collected and he refused it by giving reply on 30.01.1969 at
Exh. 59.
4] Both the Courts below have dismissed the suits
on the ground that the claim for rendition of accounts was
barred by the law of limitation as contained in Article 3 of the
Limitation Act. The Courts have accepted the stand taken by
the defendant No. 1 - Uderaj that his agency to collect the
rent was terminated on 20.02.1963, when another person
namely Shankarappa was given a registered power of
attorney at Exh. 61 to collect the rent from tenants. The
Courts have held that the suits, therefore, should have been
brought within a period of three years from 20.02.1963. The
suits were filed in the year 1971, which were ultimately
barred by time.
5] Second Appeal No. 179 of 1994 was admitted
9 sa179.94 459.02.odt
and substantial question of law was framed by an order dated
18.10.1995, which is reproduced below.
"Admit on the question of law as to whether the Courts
below were right in holding firstly that the creation of a
power of attorney in favour of Sakharam Appa ipso facto
resulted in the termination of the contract of agency in
favour of the defendant No. 1 Uderaj and on that count
were the Courts below right in invoking Article 3 of the
Limitation Act to hold that the suit was barred by limitation.
6] Second Appeal No. 459 of 2002 was admitted by
this Court on 21.06.2007 by framing substantial question of
law and the said order is also reproduced below.
"It appears that by an order dated 18 th October, 1995, this
Court had admitted Second Appeal No. 179/1994, in which
similar sets of parties and the substantial question of law,
are involved.
The present second appeal is, therefore, admitted on the
same substantial question of law which reads as under:
(1) Whether the Courts were justified in invoking Article 3
of the Limitation Act to hold that the suit was barred by
limitation?
This second appeal should be tagged along with Second
Appeal No. 179/1994."
7] In view of the aforesaid position, the common
substantial question of law which arises for consideration is,
Whether the Courts below in both the second appeals were
right in dismissing the suits as barred by the law of limitation
as contained in Article 3 of the Limitation Act?
10 sa179.94 459.02.odt
8] The Courts below have relied upon the oral
evidence of Shankarappa who was given a registered power
of attorney on 20.02.1963 at Exh. 61 by Hansraj, the Karta of
the joint family. The agency of defendant No. 1 Uderaj, to
collect the rent up to that date, is not disputed. The Courts
below have held that on executing the power of attorney at
Exh. 61 in favour of Shankarappa, the agency of defendant
no.1 Uderaj to collect rent stood automatically terminated.
9] Shri Dhabe, the learned counsel appearing for
the appellants in Second Appeal No. 179 of 1994 has relied
upon the decision of the Apex Court in the case of Khila
Dhish and others vrs. Mool Chand and others, reported in
1969 (3) SCC 411, in support of his proposition that
execution of power of attorney at Exh. 61 shall not ipso facto
result in termination of the agency of defendant No.1 Uderaj.
Shri Dhabe and Shri Saboo, the learned counsels have relied
upon the document at Exh. 30, a Souda Chhitti, which the
defendant No.1 Uderaj got executed from one Bhagwandas
and others on 31.08.1966. The contents of the said
document indicate that the defendant no.1 has paid certain
amount of money on account of the rent collected by him
11 sa179.94 459.02.odt
upto the date of execution of Souda Chiitti on 31.08.1966.
The learned counsels, therefore, submit that the agency of
defendant no.1 Uderaj was continued till the year 1971 and
the finding recorded that the agency stood impliedly
terminated on 20.02.1963 is not proper.
10] Both the Courts below have taken into
consideration the document at Exh. 30 along with the
certified copies of the assessment lists in respect of the suit
property for the year 1963-64 to 1973-74, which indicated
that defendant No.1 Uderaj was paying Municipal taxes in
respect of the suit property. The Courts have also taken into
consideration the entire oral evidence brought on record to
hold that the agency of defendant no.1 Uderaj stood impliedly
terminated on 20.02.1963 and that the plaintiffs who were
legal heirs of the Manager at that time, had knowledge about
the management of property by Hansraj through
Shankarappa and it is only upon death of Hansraj on
10.07.1968, both the suits were filed on 16.07.1971. The
findings of fact recorded by both the courts below are based
upon the evidence available on record and at any rate is a
possible view of the matter, which does not give rise to any
12 sa179.94 459.02.odt
substantial question of law.
11] So far as the decision of the Apex Court in the
case of Khila Dhish and others vrs. Mool Chand and others,
reported in 1969 (3) SCC 411 (cited supra), relied upon by
Shri Dhabe is concerned, the said decision lays down the
principle as under;
(i) The question as to when the agency terminates is
question of fact to be determined on the matters
proved or admitted in a particular case.
(ii) In the present case applying the principles
contained in Section 201 and 213 of the Contract
Act, the agency of Dharam Das did not terminate
in June, 1941 or in July 1944 but the agency
continued till 21st August, 1951 when he admitted
that he was willing to account all the money
received by him.
(iii) The suit of the respondents is not barred under
Article 89 of the Limitation Act"
12] The question as to when the agency terminates
is a question of fact to be determined on the matters proved
or admitted in a particular case and this is the first principle
laid down by the Apex Court. In the case before the Apex
Court, the termination of agency was not proved, whereas in
the facts of the present case, the termination of agency of
defendant no.1 has been proved on the basis of the
registered power of attorney dated 20.02.1963 at Exh. 61
13 sa179.94 459.02.odt
and the oral evidence of the witnesses. The provisions of
Section 201 read with Section 207 of the Contract Act deal
with implied termination of the agency and it was, therefore,
possible for the Courts below to draw an inference in the
facts and circumstances of the present case as to whether
the agency stood terminated on 20.02.1963. No fault can be
found with the view taken by the Courts below. The
substantial questions of law framed by this Court in both the
second appeals are answered accordingly.
In the result, the second appeals are dismissed.
JUDGE
Rvjalit
14 sa179.94 459.02.odt
C E R T I F I C A T E
"I certify that this Judgment/Order uploaded is a true and correct copy
of original signed Judgment/Order.
Uploaded by : R.V.Jalit, P.A. Uploaded on : 27 July, 2016
