No requirement of written document for proving agency or trust.

1. Defendant in O.S. No. 699 of 1981 on the file of the District Munsif Court, Cuddalore is the appellant. Late Ali Hussain and the appellant are brothers. The plaint schedule property belonged to late Ali Hussain who died in a motor accident. Plaintiffs in this case are his widow and children.

2. Plaintiffs alleged that after the death of Ali Hussain, they settled down at Nagercoil and the properties were entrusted for management with the defendant. They fully believed the defendant that he would take proper care of the property and that he will account for the income. First plaintiff was paradanishin widow and the children were also minors.

3. On the above circumstances, they had to rely on a male person to look after the properties of late Ali Hussain. Defendant also volunteered to look after the properties, but, thereafter, a misunderstanding arose between the defendant and the plaintiffs and the plaintiffs thereby demanded for settlement of accounts regarding the income which the defendant had derived from the properties. Suit notices were issued for which reply were sent. But, the accounts were not settled and the suit was filed against the defendant for settling of accounts and to realise the amount of such settlement.

4. In the written statement filed by the defendant, he admitted the relationship. According to him, on the death of Ali Hussain, the plaintiffs alone cannot be the legal heirs. Parents also are entitled to a share in the assets of the deceased son. There is no entrustment of any property in his favour and what he did was only to assist the widowed first plaintiff in her management of the property. First plaintiff alone was managing the property; she directly dealt with tenants by granting tenancy and by receiving rents. He also admitted that he was receiving some amounts from the income, but the same was utilised for redeeming a pledge of gold ornaments, incurred by the late Ali Hussain. According to him, the suit is also barred by limitation and there is no liability to account and there is no relationship for accounting. There is no agency as contended.

5. The trial Court held that the suit is maintainable even though there is no documentary evidence to prove that he acted as an agent. The trial Court believed the case of the plaintiffs taking into consideration the circumstances of the case and decreed the suit as prayed for, declaring that the defendant is liable to account for the period from October, 1971 till December, 1976. The trial Court also came to the conclusion that the suit was not barred by limitation.

6. When the matter was taken in appeal A.S. No. 75 of 1983 by the appellant, the findings of the trial Court that the defendant was liable to account, was confirmed. But, it modified the decree for the reason that the plaintiffs are not entitled to get the accounts settled in its entirety, since the parents of the deceased were also legal heirs. Therefore, plaintiffs were given a decree for accounting in respect of 4/6th share of the income. It is stated by the plaintiffs that the defendant surrendered possession of the property in December, 1976.

7. As against the said judgment, the defendant/appellant has preferred this Second Appeal on the following substantial question of law:

“1. Whether the suit filed on 15.12.1978 is in time especially when the demand for accounting made in the year 1973 by the respondents and the appellant denied the liability under Ex.A5?

2. Whether the findings of the Courts below that the appellant was in management of the property as the agent of the respondents is right especially when the Courts accepted that there are no documentary evidence regarding the same?

3. Whether the findings of the Courts below are vitiated by its failure to consider Exs.A3 and A4 and

8. Learned counsel for the appellant relied on the decision in Ridupaman v. Surinder Kumar (A.I.R. 1959 Punjab - 92) wherein theirs Lordships have held thus: —

“Remedy by way of account is remedy