1. The plaintiff and the second defendant are brothers, and sons of Muttusami Pillai, deceased.
2. Plaintiff brought suit No. 43 of 1877 against his father and the second defendant for partition, and obtained a decree, dated the 6th April 1878, and a declaration that, as to the out standings due to the family, the plaintiff was entitled to and to collect one-third share thereof.
3. Amongst the out standings was item No. 25 referred to in the decree, Rs. 200 due by a debtor to the family. Plaintiff might have given notice to the debtor to pay him, plaintiff, his one-third, but he did not do so before it was paid to the plaintiff's father.
4. The debtor paid on the 12th of May 1878.
5. Plaintiff now sues the first defendant, the debtor, for his one-third share and also the second defendant, plaintiff's brother, their father being dead.
6. The suit is dismissed against the first defendant, as he duly paid the debt to plaintiff's father; and there is no appeal against the decision. But both the Lower Courts have found that the second defendant is liable to pay the plaintiff's one-third share. This suit was filed on the 18th of July 1881, more than three years after the payment by the first defendant to plaintiff's father. If the plaintiff's father was alive and was sued here, we should be bound to apply the statute of limitation, as plaintiff's claim would be under Article 62 of that Act. The plaintiff's share received by his father was money received to plaintiff's use on 12th May 1878. However, the Courts below considered that plaintiff's father was a trustee for specific purposes, under Section 10 of the Limitation Act, and that, therefore, the statute of limitation did not bar the suit. This is an error--see Kherodemoney Dossee v. Doorgamoney Dossee I.L.R. 4 Cal. 455 Greender Chunder Ghose v. Mackntosh I.L.R. 4 Cal. 897.
7. The statute of limitation appears to us to be a bar; and the decrees of the Lower Courts must be reversed, and the suit dismissed with costs.
8. The plaintiff endeavoured to support the decision on the ground that his father had, after receipt of the Rs. 200, denied such receipt and so misled plaintiff. But the plaint is not founded on any fraud alleged against plaintiff's father, nor is the second defendant sued as representative of his father, though no doubt he got the property- of the deceased.
9. The plaintiff's suit is, first, that first defendant is liable, and second, that, if it is found that second defendant got the Rs. 200, he might be declared bound to pay plaintiff's one-third share.
10. It is found as a fact that the second defendant did not get the Rs. 200.
11. If plaintiff intended to rely on fraud by his father, he should have alleged it; but he did not do it in the plaint, and cannot do so now.