1. This appeal has been filed by defendant 3 against the confirming judgment of the lower appellate Court arising out of a suit for recovery of Rs. 1000/- in the following circumstances :
2. One Anem Tatayya had two sons, Anem Basanna and Anem Narasimhulu. The present defendant 1 is Anem Narasimhulu and his son is defendant 2. Defendant 3 the appellant, is the widow of Anem Basanna, who died on 10-1-1942. Anem Tatayya obtained a mortgage decree against Agadhu Bissoi and others (who are not parties to the present suit) in original suit No. 11/1924 and eventually obtained a final decree for a sum of Rs. 5700 and odd on 2-11-1032. The decree-holder Anem Tatayya had realised a sum of as. 2900/-from the judgment-debtors. Defendant 1 (Anem Narasimhulu) executed a deed of transfer (Ex. 10), on 13-8-1934 in favour of the present plaintiff in respect of his half share in the above mortgage decree.
It is to be mentioned here, Anem Tatayya died nearly a month prior to this deed of transfer on 3-7-1934, Anem Basanna, the elder son, realised a further sum of Rs. 2000/- towards the decretal amount on 3-9-1935. The present plaintiff-transferee in respect of the half share of Anem Narasimhulu in the mortgage decree put in a petition for recognition of his transfer by the executing Court which was in the first instance dismissed but was ultimately allowed on 17-8-1942 (Ex. 3).
The plaintiff asserts that as he is interested in respect of eight annas of the mortgage decree on the basis of the transfer by defendant 1, he is entitled to recover Rs. 1000/- as a moiety share of the sum of Rs. 2000/- realised from the judgment-debtors by the deceased husband of defendant 3.
3. This claim was resisted on the ground that in any event the plaintiff is not entitled to more than 6/16ths of the amount realised as according to the provisions of the will left by the father of defendant 1 (Anem Tatayya), the elder brother Anem Basanna will be entitled to ten annas share and Anem Narasimhulu to six annas share. The Courts below have decreed the plaintiff's suit in accordance with the provisions of the will, that is for a sum of Rs. 750/-. The plaintiff-respondent does not challenge this decree for the reduced amount.
3a. A further plea also was taken by defendant 1 challenging the transfer in favour of the plaintiff; but the finding of the courts below accepting the plaintiffs position as a transferee from Anem Narasimhulu is not challenged.
4. Mr. Sovesh Chandra Roy, appearing on behalf of defendant 3, the appellant, however, has taken up three points before us. The first contention is that the suit is premature as according to the terms of the will and according to the direction given in the judgment of the High Court (Ext. 2) in Misc. Appeal No. 7 of 1937 disposed of on 8-3-1939, the plaintiff will be entitled to his dues only after complete realisation of the decretal amount and after the expenses for the realisation of the decretal amount have been deducted from out of the realisation.
On a perusal of the relevant paragraphs of the will (Ext. C.), that is, paragraphs G and N, we find that the testator had provided that the elder brother Anem Basanna would be entitled to collect all the debts in general and the mortgage debt in particular and would be further entitled to disburse from the amount realised all the expenses incurred in the process of realisation of the debts. It is further provided that Anem Basanna will be entitled to ten annas share and Anem Narasimhulu will be entitled to six annas share in all the debts due to Anem Tatayya, the testator.
It is important to note that there is no specific provision that even though the debts or the decretal amounts are realised piecemeal from time to time Anem Narasimhulu will not be entitled to get anything till after the complete realisation of each item of debt. We are not Inclined to accept that it was the intention of the testator that all the collections piecemeal would be retained by Anem Basanna and that Anem Narasimhulu would be waiting indefinitely till the debts were realised in full.
On a perusal of the will as a whole, we find that the immoveable properties bequeathed in favour of A'nem Narasimhulu are not of such a substantial character as to maintain him and his family for the whole year. It would be reasonable to accept that the testator intended that Anem Narasimhulu would be entitled to receive his share after disbursement of the necessary expenses as when the amounts were realised in piecemeal. The same consideration also will prevail in respect of the Judgment of their Lordships of the Patna High Court (Ex. 2).
In exercise of their powers under the provisions of Order 21, Rule 15, C. P. C., their Lordships had made some directions for safeguarding the interests of the other decree-holder who had not joined the execution. The execution was started by Anem Basanna and there was dispute regarding the transfer of the share of Anem Narasimhulu in favour of the present plaintiff.
Their Lordships therefore observed
'half of Rs. 2000/- which has been realised by the executing decree-holder if not accounted for should be deducted out of the sum of the mortgaged properties.'
This observation does not mean that Anem Narasimhulu or the transferee, after the settlement of dispute between them finally, will not be entitled to get his real share out of the sum. In this view of the matter, we reject the contention of Mr. Roy.
5. The next contention of Mr. Roy is that the present suit is barred under Section 47, Civil P. C. as it is a question regarding execution and adjustment of the mortgage decree. It is the settled law that if the question is merely one as between co-decree-holders without in the least affecting any rights or liabilities of the judgment-debtors, it is not hit by the provisions of Section 47.
In the present case reading the plaint and the written statements, it is absolutely clear that the question is purely one of adjustment of decree as between two joint decree-holders, and the judgment debtors had nothing to do with any of the questions raised In the present suit. The contention therefore is bound to fail.
6. The last and the most important point raised by Mr. Roy is one of limitation. He Strongly contends that the case is governed by Article 62, Limitation Act, or in any event under Article 89. Under Article 62, the suit has got to be brought within 3 years when the money is received by the defendant for the plaintiff's use. The cause of action therefore arises from the date of receipt of money which is -3-9-1935. The suit having been brought on 18-8-1945, it is to be held as barred by limitation if this Article applies. Article 89 runs as follows:
By a principal against his agent for moveable pro pertyreceived by the latter and not accounted for.
When the account is during the continuance of the agencydemanded and refused or, where no suchthe agency terminates.
Indeed in the- nresent case, Anem Basanna, the agent for realisation of the debts on behalf of Anem Narasimhulu, having died on 10-1-1.942, there was a termination of agency and the cause of action for the suit arose since that date. Here again, if the suit is governed by Article 89, the suit not having been brought within 3 years from the termination of the agency, it is barred by limitation. For the purpose of a decision on the point, we get the most valuable guidance from a Full Bench decision of the Madras High Court reported in -- 'Yerukola v. Yerukola', AIR 1922 Mad 150 (FB) (A).
The Bench consisted of 5 eminent Judges of the Madras High Court, and in the reported case we have three separate Judgments of Schwabe C. J. Kumarswami Sastri and Devadoss JJ. In that case in a Hindu family many items of properties had been actually divided by metes and bounds and the rest was in the possession of the various members who had become divided in status though all the properties had not been divided and apportioned among them. The suit was brought by one member asking for his share of the undivided movables and the rents and profits of the immovables after taking accounts.
The main question which was for determination by the Full Bench was which of the three Articles 62, 89 or 120 would govern a case of this nature. Prior to the decision, there was a good deal of controversy as to the applicability of Article 62 even to cases between tenants-in-common, co-sharers and co-owners. Article 62 relates to suit for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use. These are technical terms of the law of England used to cover a great variety of cases in which it can be said that the defendant has received money which really belongs to the plaintiff.
Their Lordships, after discussing quite a number of cases on the point, came to the conclusion that in a case between tenants-in-common co-owners or co-sharers, it could not be said that the money was payable by the defendant to the plaintiff for money received by the defendant for the use of the plaintiff; as such, such kinds of cases are taken out of the scope of Article 62. We respectfully agree with the view taken by the Full Bench and.reject the contention of Mr. Roy that the case is governed by Article 62.
7. Let us now examine as to the applicability of Article 89. Here also, the principle has been very well enunciated in the aforesaid Full Bench Case. Their Lordships observed and were unanimous in their view that if in such a case the man collecting the dues could be deemed to be an agent for the other co-sharer either by express terms of agreement between the co-sharers or by implication arising from the conduct of the co-sharers, the case was to be governed by Article 89.
If on the other hand, such a relationship of agent and principal could not be inferred expressly or impliedly, Article 89 has no application and we shall have to fall back upon the residuary Article 120.
8. Let us now scrutinise the facts of the present case to see if such on agency can be made out. The will provides that Anem Basanna will be entitled to collect mortgage debts on behalf of both the brothers and that he will be entitled to disburse himself all the expenses incurred in the process of collection. Thereafter the net-proceeds will be divided according to ten annas and six annas shares.
Indeed both Anem Basanna and Anem Narasimhulu had accepted the provisions of the will and it can safely be said that Anem Basanna was acting as an agent of Anem Narasimhulu while making collections of the decretal amount. But the position stands entirely on a different footing when we take into consideration the relationship between the present plaintiff and Anem Basanna. The present plaintiff had never accepted the provisions of the will.
Rather we may go to the length of finding that there is no substantial material that the plaintiff was aware of the provisions of the will at the time of the collection of the amount which was after the transfer in favour of the plaintiff. We have examined the registered deed of transfer by Anem Narasimhulu (defendant No. 1) in favour of the plaintiff dated 13-8-1934 on the basia of which the plaintiff is claiming eight annas interest contrary to the provisions of the will allotting only six annas interest to Anem Narasimhulu.
There is nothing in the deed of transfer mentioning any of the provisions of the will or even, the existence of the Will. Even in the judgment of the High Court (Ex. 2), their Lordships were proceeding on the basis of the eight annas interest of each of the two brothers and there is absolutely no mention about the will. In the plaint itself, we do not get any reference to the will. The present plaintiff is a complete stranger to the family and as there is nothing to indicate that he was in the position to know that Anem Basanna will be entitled to realise the mortgage decretal amount on behalf of the decree-holders, we cannot imply an agency between the plaintiff and Anem Basanna.
The present suit is Indeed against the legal representative of Anem Basanna. It is not necessary to express any opinion as to whether Article 89 will apply when the suit is by the principal against the legal representative of the agent. But that apart even if the suit was brought as against Anem Basanna himself, it could not be governed under Article 89 as agency could never be implied by the conduct of the present plaintiff.
Before coming to the other article, we have got to refer to a decision of their Lordships of the Privy Council (which may be read as not exactly-fitting with the principles laid down in the Full Bench case of the Madras High Court) reported in -- 'Virayya v. M. Adenna', AIR 1930 PC 18 (B), where their Lordships observed that a claim by a member of a Hindu joint family against the manager of the joint property in respect of certain family outstandings alleged to nave been collected and misappropriated by the latted was governed by Article 89.
In that case, the question whether Article 89 applied to the facts of that case was not necessary to be decided. Their Lordships observed as follows:
'It is true that the Limitation Act was mentioned in Adenna's written statement and in his grounds of appeal, but before the trial Judge no issue was directed to bear upon the question, nor does the point appear to have been taken at the Bar during the trial.
In these circumstances their Lordships do not think the point was open on appeal. If, however. it was open, their Lordships are of opinion that the article of Limitation Act applicable is Article 89.'
Indeed no decision of any of the Indian High Courts has been referred to or discussed. It is sufficient for our purposes to observe here that the present case is so manifestly distinguishable from the decision of their Lordships of the Privy Council as the present plaintiff is a complete stranger to the family and the collection of Rs. 20,000/-was made after the transfer in plaintiff's favour.
Applying therefore the principles laid down in the Full Bench case to the facts of the present one, we are of the view that the case is not governed by Article 89.
9. The case therefore is definitely governed by the residuary Article 120 which provides that the suit is to be brought within six years from the date when the right to sue accrues. If the right to sue is to be deemed as arising from the date of receipt of the money, that is, 3-9-1935, the suit is barred by limitation as it was brought on 18-8-1945, long after the expiry of six years from the date of receipt of the money. If it be held that the right to sue as contemplated under Article 120 will arise from the date of the knowledge of the plaintiff as to the receipt, then also the suit is barred by limitation as it is clear from the judgment of the High Court (Ex. 2) to which the present plaintiff was a party, that Rs. 2000/- had been received by Anem Basanna.
It further transpires from the judgment that Anem Basanna had also credited this amount of Rs. 2000/- in the execution petition itself in execution case of the year 1935, and the present plaintiff also was a party to the execution proceedings as being a subsequent purchaser of some items of mortgaged properties. But in our opinion, mere receipt of money or mere knowledge of the receipt by the plaintiff does not start the period of limitation under Article 120.
It further requires either a demand by the plaintiff which was refused by the defendant or at least there was some unequivocal infringement of the rights of the plaintiff as a co-sharer, or at least clear and unequivocal threat to that right by the defendant in order that the period of limitation will start as against the plaintiff.
In that Full Bench decision itself we have got this question also decided unanimously by all the Judges that in cases where Article 120 applies, period of limitation cannot arise until the cause of action arises.
'That cause of action does not come into being until, at any rate, there is something done which shows that the man who got the money into his possession was holding it adversely to the plaintiff'.
Devadoss J. in the last part of the judgment observed:
'Time begins to run from the time of demand and refusal or from the time when the defendant asserted a hostile title to the knowledge of the plaintiff.'
Kumarswami Sastri J. observed:
'The period of limitation will run from the demand of the share by the plaintiff or refusal by defendant. The receipt by the co-tenant is not wrongful and consequently his possession cannot be wrongful till he refuses to deliver the share of the co-tenant he has received or set up a hostile title to the knowledge of the co-sharer.'
We can now refer to a decision of their Lordships of the Privy Council reported in --- 'Mt. Bolo v. Mt. Koklan', AIR 1930 PC 370 (C) where this principle has been very clearly laid down. Their Lordships, after quoting Article 120, observed as follows:
'There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.'
In the present case, however', there is no material placed that Anem Basanna had asserted any hostile right as against the plaintiff in respect of this amount realised by him. On the contrary, we get it from the judgment of their Lordships of the Patna High Court (Ex. 2) an observation that Anem Basanna, the decree-holder executing the decree, was ready and willing to pay due share of the other decree-holder either to Anem Narasimhulu or to the present plaintiff according as their rights are determined by a competent Court on the basis of the deed of transfer dated 13-6-1934.
It is further to be seen that he made an endorsement in the execution petition itself of the amount towards the decree. In this view of the matter, as there has been no infringement of the plaintiff's rights as a cosharer or an unequivocal threat to infringe such rights till the demand dated 11-4-1945 by the plaintiff and the refusal dated 24-4-1945 by the defendant, the suit must be held to be within the time.
10. All the points taken by Mr. Roy having failed, the appeal is dismissed with costs.
11. I agree.