Walter Salis Schwabe, K.C., C.J.
1. In this case the plaintiff sues for partition of certain property which he describes as joint family property. In 1895 the father of the plaintiff and of the 1st defendant, who had been canning on a business for many years past with the plaintiff, became more or less insane. The two brothers of the plaintiff, namely, the 1st defendant and one Rarnavelu, who subsequently became an insolvent, claimed that the property including the business was joint family property and should be divided as such. The plaintiff denied that the property was joint family property but ultimately entered into an agreement, Ex. A in the documents in O.S. Appeal No. 2 of 1917, referred to in this case as the muchilika, under which it was agreed that he should take half and his two brothers a quarter each in certain properties. They agreed to refer to arbitration how those properties should be apportioned. An arbitration took place. The arbitrators valued the moveable property in the possession of each member of the family and divided the immoveable property among the members in the proportion agreed upon. Nothing-further was done. In 1900 Ratnavelu brought a suit for partition. He alleged that the property was joint family property and that the completion of the arbitration had been stopped by the action of the plaintiff, and he asked the Court to decree partition of everything. The plaintiff set up as a defence that there was no joint family property undivided, that the property, in fact, was the self-acquired property of himself and his father and, except in so far as it had been agreed by the muchilika, there was no right to partition at all and that the arbitrators had properly divided all the property included in the muchilika. With that defence the 1st defendant agreed and that suit was discontinued. In 1901 a fresh suit was brought with the same objections and with the same result. Nothing further of any importance occurred until 1908 when a dispute arose in the course of which the letter Ex. Q was written in which the 1st defendant complained that he had been ousted from certain of the immoveable property which was his, by the plaintiff and stated that he was willing to settle any accounts that might be outstanding. 1 should have mentioned before that in 1905 an account had been settled between the plaintiff and the 1st defendant (Ex. P) which showed that, on balance, the defendant was indebted in a sum of Rs. 3,275 to the estate of the father or as it might be put, to the joint faimly. No payment was made, no demand was made and nothing seems to have been done in any way until 1915 when a suit was filed by a purchaser of certain of the immoveable properties claiming to have them put into his name. I do not think that anything that happened in that suit has any real bearing on the matter before us. In 1918 the plaintiff brings this suit.
2. The first question to be decided is whether there is any joint family property, or any property of which the parties are co-owners, to be divided. The plaintiff only asks that an account should be taken for the purpose of a partition in which the business which had been carried on by him and his father was to be treated as a business of which he, the 1st defendant and Ratnavelu were or became co-owners, so that they would be liable for any loss that there was in that business. Apart from that, he requires no partition, because there is nothing which he alleges that has got to be divided. His whole case depends on the question of whether or not that business, which he alleges resulted in a net loss, is to be brought into the account as between him and his brothers; so that, if he is right in contending that there has been a loss which he has borne, he would be entitled to be indemnified for that loss in the division of the property and for this purpose, it necessary, to reopen the partition which took place under the arbitrators' award. The terms of the muchilika are : The immoveable and moveable properties, gold, silver and precious stone ornaments which are partly the self-acquisition of the father and which were partly acquired by the plaintiff by having traded for about 18 years along with him and separately and the good debts leaving off the had debts as per ledger account kept in the business carried on at present only in the name of the plaintiff and the mortgages, simple loans, shares and all such other things which are in the possession of all the members of our family shall be valued on the whole by you the two arbitrators. That clause contains a statement that the business had been the business of the father and the plaintiff. It contains first of all an agreement under which certain property was to be treated, for the purpose of this arbitration and division, as though it was joint. That was 'immoveable and moveable.' The business is not included in those words. It is, secondly, 'the good debts leaving off the bad debts as per ledger kept in the business'; and it is thirdly 'mortgages, simple loans, shares and all such other things.' In this third category, 'all other such things' must according to the strict construction of those words, be read ejusdem generis with the words going before, and I think that means assets unconnected with the business and things like mortgages, loans and shares, which might perhaps be compendiously described as choses in action. As regards the business specifically, what is to be divided is the balance of good debts over bad. The good will of the business is not brought in. The liabilities of the business are not brought in. In my judgment, the proper interpretation of those words is this, that if there is a balance of good debts over bad debts, then it is to be divided, if there is no balance, there will be nothing to be divided. You cannot read into those words the provision contended for by the appellant, namely that the whole business was included and that, if that business ultimately turned out as a burden instead of a benefit, the net loss was to be brought in and shared between the brothers. That being so, there is nothing to divide which the plaintiff wishes to divide and his suit must accordingly fail. No question of limitation arises in the matter at all, because he fails in limine to establish a right to what he claims, namely, a right to saddle the defendants with the share of the alleged losses in the business.
3. As the question of limitatoin has been raised, I desire to say a word or two about it, although, in the view I have just expressed, it is not necessary for the decision. But, assuming that the business was included as a whole, the question would arise whether the plaintiff's cause of action has become barred by limitation. The converse case was fully discussed by a Full Bench in Yerukola v. Yerukola 42 M.L.J. 507 . But the cause of action here is different. The plaintiff says that he wants an account because, on the taking of that account, it will be found that he, as one of the co-owners has spent on behalf of the co-owners more than he has received as his share and he wants them to contribute towards that expenditure. It seems to me that the claim that he makes must either come under Article 61 or Article 120 of the Limitation Act. Article 61 is for money payable to the plaintiff for money paid for the defendant and time begins to run from the date when the money is paid. I see great difficulty in applying that article, because I do not think it can be intended in such a case that the cause of action should arise from the moment of every payment made by a co-owner in possession, it being impossible to say whether, in fact, there is anything due or not until he has not only paid off what has to be paid but received what has to be received and I express no view about it except that 1 am extremely doubtful whether Article 61 can possibly apply to such a case. The result would be that we should have to fall back on Article 120, which is for suits for which no period of limitation is provided elsewhere in the schedule, and the time there is six years and begins to run when the right to sue accrues. The question is when the plaintiff's right to sue accrued, and I should say that it accrued at the latest when the business was wound up definitely when the amount paid by the plaintiff could be definitely ascertained and must no longer be a question of conjecture depending on the other uncertain events. In this case the business was wound up in 1895 and I am quite satisfied that at least by 1897 the plaintiff knew perfectly well exactly how he stood in the matter.
4. The fact that he himself having ascertained the debts took time for the payment of those debts is an irrelevant consideration. I am satisfied that, even if this business was included, the time for his suit for the recovery of the balance, which he says he is out of pocket by reason of payment of debts of this firm, because barred at the latest after six years from 1897. He also claims that he was entitled to recover from the 1st defendant the sum of Rs. 3,275 referred to above. I can see no ground for that contention at all. Accounts were settled between them, and ii the settlement meant that the 1st defendant was liable to the plaintiff for that amount there was nothing to prevent the plaintiff from suing for it as a simple money debt which has long since become barred. It may be that, in the event of the 1st defendant's suing the plaintiff in respect of his property alleged by him to be in the hands of the plaintiff, the plaintiff may be able to set up against that claim this claim for Rs. 3,275, but with that we are not concerned in this suit.
5. For the above reasons, in my Judgment, this appeal fails and must be dismissed with costs of the 2nd respondent.
6. The question is raised as to the liability for costs to the 8th defendant. His position is this. He is the legal personal representative of the 7th defendant who had been brought into the suit by the plaintiff. He defended the suit up to the third or fourth day of hearing and then died. After his death, the plaintiff announced his intention of withdrawing his suit against the deceased person and then claimed that the legal personal representative of that deceased person had no right to be brought upon the record and, when brought upon the record, had no right to receive costs. Looking into the matter, I do not think there is anything in it at all. Under Order 22, Rule I the death of a defendant does not cause the suit to abate if the right to sue survives; and under Rule 4 when a defendant dies, the Court, 'on an application made in that behalf,' shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.. It is argued that that means that the deceased defendant's representative lo an appliuation by one or other of the parties. The 8th detion to an application made by the plaintiff, for to do so would be gross injustice to the estate of the defendant who has been wrongly brought before the Court and who, having incurred by reason of his having been so brought before the Court a heavy expenditure, dies. It is holding that his estate is to be deprived of the indemnity for his expenditure, which would be given to him by law if he survived, because the plaintiff does not choose to add his legal representative as a defendant to the suit. That would be gross injustice and I see no reason at all for implying any such provision into Rule 4 which says definitely 'on an application made in that behalf' without confining it to an application by one or other of the parties. The 8th defendant, having been properly joined as a defendant, has quite properly, in my judgment, asked the Court for his costs and the Court was perfectly right in giving him costs. He must also have his costs in this appeal estimated on the pleader's fee.
7. I agree.