1. (After stating the facts, continued): With regard to the appeal on behalf of defendant in respect of the character in which defendant held the property, it seems clear that the plaintiff and defendant joined in the purchase in 1865, and each had equal interests in the properties until 1868 when the plaintiff's interest was reduced to one-third. The defendant paid the entire purchase-money in the first instance, and incurred expenses in conducting suits for possession of the property, and for registration of the deed; and ultimately obtained possession in 1869 or 1870, and took the profits from that date. The plaintiff does not appear to have paid any part of the money up to 1870; he subsequently paid Rs. 3,500, and it was not till 1871 that the rest of his share of it was subscribed; and he seems to have paid little or nothing towards the expenses.
2. Under the above circumstances, there was a resulting trust in favour of the plaintiff, and the defendant became liable to account to the plaintiff for his share; but there was no express trust; the property did not become vested in trust for a specific purpose within the meaning of Section 10 of the Limitation Act, nor is this suit brought for the purpose of following such trust property in the hands of a trustee within the meaning of the section. Their Lordships of the Privy Council have ruled that the section applies to suits for the purpose of recovering the property for the trusts in question, and that when property used for some purpose other than the proper purpose of the trusts, it may be recovered, without any bar of time, from the hands of the persons indicated in the section.--Bulwant Rao v. Puran Mal I.L.R. 6 All. 1. This suit is not therefore one which, under Section 10, may not be barred by any length of time.
3. The Judge has applied to it the limitation of Article 320, so far as if is a suit for account, and recovery of the money found to be due. On the other hand, it is contended for the defendant that either Article 89 or Article 62 of the Limitation Act (XV of 1877) is applicable.
4. In our opinion, the former article is not applicable, for no relation of principal and agent can be said to subsist between the plaintiff and the defendant, nor do we consider Article 62 to apply. That article refers to suits for money payable by the defendant to the plaintiff for money received by the defendant, for the plaintiff's use, but it does not meet a suit like this relating to an equitable claim against a trustee liable to account, in which the relief sought is to have an account taken of the trust property and to recover what may be due. The form in which the suit is brought is not that of an action for money had and received for the plaintiff's use, and the latter class of suit would not afford a sufficient relief.
5. We may refer to the case of Guru Dass Pyne v. Ram Narain Sahoo L.R. 11 Ind. Ap. 59 : I.L.R. 10 Cal. 860 decided by the Privy Council on the 21st February 1884, in support of the view of Article 62 which we take. The plaintiff in that case had obtained a decree for money against the widow of one Modhosadan as representing the latter, on account of the value of timber converted by Modhosadan to his use. Some property of Modhosadan's brother was attached, and the plaintiff instituted the suit to try his right to recover the amount of decree by sale of the property, on the ground that Modhosadan's brother had misappropriated the proceeds of the sale of the timber. Their Lordships held that Article 60, Act IX of 1871, which corresponds to Article 62, Act XV of 1877, was inapplicable to the suit, which they observe was 'to enforce an equitable claim on the part of the plaintiffs to follow the proceeds of their timber, and finding them in the hands of the defendant, to make him responsible for the amount;' and they held that the suit came within Article 118, Act IX of 1871, which corresponds with Article 120, Act XV of 1877.
6. In the same way, an equitable claim of the nature of the present will not fall under Article 62, but under Article 120 of the Limitation Act, and the Judge was right to apply that article, as the suit is one for which no period of limitation is provided elsewhere in the schedule.
7. Other matters dealt with in the judgment are not material to the purposes of this report. The case was remanded to the lower Court for the determination of certain questions of fact.