Walter Salis Schwabe, Kt. C.J.
1. The question referred to the Bench Full is, 'What are the articles of the Limitation Act of 1908 applicable to certain money and profits received by two brothers or their representatives under the following circumstances. Three brothers had been members of an undivided joint Hindu family. In 1905 they separated and appointed arbitrators to divide the ancestral property. Before division was complete disputes arose and the properties remaining undivided were left in the hands of different members of the family until in 1917 this suit was brought for partition and for account, it is found, and no doubt correctly, that the properties remaining undivided were held during the period in question under a tenancy-in-common. Money was received from debtors in respect of debts which were owned in common and rents and profits partly in money and partly in kind were received in respect of lands also owned in common. When asked to account and pay for the shares of the other co-owners, defendant set up the Limitation Act in answer, and there being a conflict of judicial views on the subject, it is for us to decide which article in the schedule of the Act applies.
2. The articles relied upon by those who claim to keep what they have received were articles 62 and 109, whereas plaintiff relied on article 127 or 120.
3. I agree that articles 109 and 127 have no application on the grounds stated in the order of reference.
4. Article 62 relates to suits 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. There is, however, one case in which that form of action would not he in England and that is by one tenant-in-common against another who has received more than his share. In fact, in such a case until the passing of the Statute IV Anne ch. XVI, Section 27, no action would lie at all and by that statute an action was permitted but only for an account. In Thomas v. Thomas 5 Exch. 28, one of two tenants-in-common of some lands alleged that the other alone had received all the rents arising from those lands and he brought his action for money had and received. It was held by the Court of Exchequer (the judgment of the Court being delivered by that very eminent Judge Parke B) that no such action lay, the reason being that the rents remained undivided and no one tenant-in-common was entitled to any specific part and further the collecting tenant-in-common would be entitled to all just allowances which could not be given in that form of action but could be given in an action for an account which under the statute was permitted. It is worth observing that in Mahomed Wahib v. Mahomed Ameer I.L.R.(1903) Cal. 527 in which it was held that article 62 applied to a case somewhat similar but in my view distinguishable from this, Harrington, J. states that the ground of decision in Thomas v. Thomas 5 Ex. 28 was that the plaintiff was bound to pursue his remedy for an account under IV Anne, which in my view is not correct, while Mookerjee, J. states the ground of the decision correctly but gives no effect to it. This in my judgment is in itself a sufficient ground for holding that Article 62 has no application to this case, it being quite impossible to say that any particular debt or rent or profit or any part of either was received for the use of any particular tenant in common. Indeed on partition any of the debts or rents or profits might be awarded in toto to any of the tenants-in-common and further in this case each of the tenants-in-common was collecting part of the common properties or the income from it and ho doubt incurring expense in so doing. An action for an account would be appropriate, an action for money had and received would, in my judgment, be quite inappropriate. This view was taken in Subba Rao v. Rama Rao30 M.L.J. 341 in which it was held that article 120 and not Article 62 applied in similar circumstances.
5. There are a large number of cases in the High Courts of India which decided in favour of article 62 as against article 120. Some are distinguishable. With those that are not, I do not agree. Of the Madras cases the earliest is Arunachala v. Ramasamy I.L.R.(1883) Mad. 402 and this case has been treated in later cases as an authority for holding that Article 62 applied to moneys collected by one of several tenants-in-common. It did not so decide, for, in that case a debt had been collected by one of two brothers, each of whom was entitled to a third of the debt; but this was after partition and the debt had on partition been divided. The collecting brother had no authority or right to collect his brother's one-third share and it was a specific sum which the brother was alone entitled to and for which an action for money had and received would properly lie. Tellis v. Saldanha I.L.R. (1887) Mad. 69 , Vaidyanatha Aiyar v. Aiyasami Aiyar I.L.R. (1908) Mad. 191 , Ramalagu Servai v. Solai Servai : (1921)41MLJ274 , Segu Chidambaramma v. Segu Balayya (1911) (2) Mad. Weekly notes 467, Avancha Lakshminarasamma v. Avancha Lakshmamma (1914) 14 M.L.T. 325 Binode Lal v. Preo Nath (1917) 40 I.C. 173 purported to follow Arunachala v. Ramasamy I.L.R.(1883) Mad. 402 but they really extended the doctrine to cases like the present. To the same effect are Banoo Tewary v. Doonoo Tewary I.L.R. (1896) Cal. p 309 Mahomed Wahib v. Mahomed Ameer I.L.R.(1903) Cal. 527, Knndan Lal v. Batisi Dhar I.L.R. (1880) All. 170, Thakur Prasad v. Partab (1883) .L.R. 6 All 442 , Masih-ud-din v. Imtiaz-un-nissa Bibi I.L.R. (1914) All. 40 , Amina Bibi v. Najm-un-nissa Bibi I.L.R.(1915) All. 233, Abdul Ghaffar v. Nur Jahan Begum I.L.R. (1915) All. 435 . On the other hand, the contrary has been held in Abdul Rahinian v. Pathummal Bibi (1915) (30 M.L.J. 104), following Mariain Biviammal v. Khadir Meeru Sahib Taragan (1915) 29 I.C. 275, Subba Rao v. Rama Rao I.L.R. (1916) Mad. 291 Umardraz Aliz Khan v. Wilayat Ali Khan I.L.R. (1897) All. 169 Parsoiam Rao Tanlia v. Radha Bai I.L.R. (1915) All. 318, Venkala Reddi v. Kuppu Reddi (1921) 13 LW 260 and Gabu v. Zipru I.L.R.(1920) 45 Bom. 313 . All these cases decided against Article 62 and excepting the last, in favour of Article 120. In Subba Rao v. Rama Rao I.L.R. (1916) Mad. 291 and Venkata Reddi v. Kuppu Reddi (1921) 13 LW 260 it was held that Article 62 does not apply 1o transactions in which the defendant is not under a mere duty to hand over the moneys which he has received but has other duties as well in respect of it. Without going through all these cases in detail, for the reasons stated above, I prefer the latter series of cases--in which it was held that Article 62 did not apply-to the former in which it was held that it did.
6. Holding as I do that Article 62 has no application, it follows that Article 120 which applies to suits for which no period of limitation is provided elsewhere in the schedule would apply unless there is some other article applicable. In my judgment, Article 89 has to be taken into account. This article applies to suits by a principal against his agent for movable property received by the latter and not accounted for, and the period of limitation is three years from the time when the account is during the continuance of the agency, demanded and refused or where no such demand is made, when the agency terminates. The reference to us is wide enough to cover this question. But it has not been considered in the Court below or by the Referring Bench and I doubt whether we have really sufficient materials before us upon which to decide whether it applies or not I think however that it is desirable to say something about it and leave it to the Referring Bench to decide whether, on the facts which are before it, it applies in this case or not. If the facts be that these moneys and rents and profits were received with the consent of all concerned by the various persons in possession pending final settlement by division, I think that in the absence of evidence to the contrary, each of such persons should be considered as receiving as agent for himself land his co-owners; he would have authority express or implied to receive and would be acting upon that authority on behalf of the co-owners and not on his own behalf adversely to them. We were referred to two letters Exhibits III and M. (pages 66 and 68 of the documents paper) and to passages in the judgment of the District Judge which seem to indicate that all the moneys, rents and profits were collected in fact on behalf of the co-owners, and it would, in my view, be very difficult indeed for a person collecting undivided parts of an estate in this manner to say that he was acting otherwise than for the benefit of himself and other co-owners. In Banoo Tevary v. Doona Tevary I.L.R.(1896) Cal. 309 on facts similar to these it was held that the defendant was acting on behalf of other co-sharers as their agent in the realisation of their shares, and in a recent case in Gabu v. Zipru I.L.R.(1920) 45 Bom. 313 , where an elder brother after partition, by agreement with his brothers realised parts of the estate, it was held that he acted as agent and that Article 89 applied. With this judgment I fully agree. That case differs from this only in that there was in that case an express agreement that the elder brother should realise and divide among the three brothers while in this case there is no such agreement, But such an agreement can be implied as well as express, and in the absence of evidence to the contrary, in my judgment where one brother collects the assets of an estate of which he and the other brothers are co-owners, the natural inference is that he is acting as agent for himself and the other co-sharers and not on his own account.
7. I therefore answer the question submitted by holding that Articles 62, 109 and 127 have no application and that Article 120 applies only if, applying the principles above enunciated, it is held on the facts that Article 89 does not apply.
8. The question raised in the order of reference is in these words: 'If Article 120 be held applicable, the question will still arise as to whether the right to sue is to be deemed to accrue on the receipt of the profits or when an account is called for and refused'. I am rather doubtful whether the question is referred to the Full Bench for decision, though I am inclined to construe the order of reference as intending so to do. However that may be, 1 think that, as the matter is before us, it is desirable that we should express our views upon it. The question turns on words of Article 120. 'Suit for which no period of limitation is provided elsewhere in this schedule, time from which period begins to run, when the right to sue accrues.' In my judgment and I have the support of the authority already referred to, Marian Biviaunnal v. Kadir Meera Sahib Taragan (1915) 29 I.C. 275, the right to sue arises in this kind of case when there is a demand and refusal for an account, or it could be put as when there is, in fact, an ouster. It really follows from what I have already said that there is no cause of action on the mere receipt by one of the brothers of any particular amount, and it is clear to my mind that the period of limitation cannot arise until 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 is holding it adversely to the plaintiff. If Article 89 is held to apply, the same result would follow--when, during the continuance of the agency, the account is demanded and refused, or when the agency terminates if no such demand is; made.
9. I agree
Coutts Trotter, J.
10. I also agree.
Kumaraswami Sastri, J.
11. This reference arises out of a suit for partition. The plaintiff, the deceased Dalayya (the father of defendants 1 to 3) and the , 4th defendant were brothers. The 5th defendant is the son of the 1st defendant. The 6th and 7th defendants are the sons of the 2nd defendant. The 8th defendant is the son of the 4th defendant who died pending suit Laving the 8th defendant his legal representative. The family was joint and undivided and owned moveable and immoveable properties but in 1.905 disputes arose between the members and the plaintiff and his brothers divided some of the family outstandings, moveables and houses. Being unable to effect an amicable partition of the rein lining properties they submitted their disputes to arbitration . The arbitrators divided some of the moveable properties and prepared lists showing the division effected by them but did not proceed further. The result was that there was a partial partition and a large portion of the joint properties was not divided. Some of the properties remained in the possession of the plaintiff and some in the possession of the defendants while some lands were still enjoyed by all the parties in common. The case for the plaintiff is that he is entitled to a third share in the joint family properties moveable and immoveable shown in the schedules to the plaint. The reliefs which the plaintiff asks for are (1) a partition by metes and bounds of the immoveable properties specified in the plaint schedules (2) an account of the moveables yet remaining undivided and the division of them into three equal shares and (3) payment of a specific sum of Rs. 6,150 which he alleges to be due under an arrangement. The account which he asks of the moveables includes, according to the plaintiff, the outstandings due to the family and the amounts collected by the defendants who, according to the plaintiff, have to account for and pay him one third of the collections. Various defences were raised but it is only necessary to consider the plea of limitation as regards the amounts collected by the defendants. The District fudge in dealing with the question of limitation held that the plaintiff's clam; to money is governed by Article 62 and the claim to mesne profits by Article 109. As the period of limitation under these articles is three years from the date when the money or profits were received, the plaintiff's action in respect thereof would be barred if those articles apply. The plaintiff appealed. His contention was that the case falls either under Article 127 or Article 120. In view of the conflict of authorities Wallis, C. J. and Oldfield, J. have referred to a Full Bench the question 'What are the articles applicable to the claims for money and mesne profits in the present suit ?'
12. The facts contained in the pleadings which I have set out above show that this is a suit by a member of a Hindu family some of the properties of which have been actually divided by metes and bounds and the rest of which are in the possession of the various members who have become divided in status though the properties have not been divided by metes and bounds or apportioned among the various members in proportion to their respective shares. The plaintiff in prayer (b) in the plaint wants a decree 'directing that an account be taken of moveables yet remaining undivided as per schedules F, G and H and to direct that the same be divided into three equal shares and that plaintiff be awarded one share thereof from the defendants' and in prayer (d) wants a decree 'directing defendants to pay costs of this suit with subsequent profits in respect of lands in possession of defendants till elate of delivery and interest on the value of moveables from date of plaint to date of realization.' I am of opinion that the proper article to be applied to a chum like the present is article 120.
13. I shall first deal with Article 109 which provides for a suit to recover the profits of immovable property belonging to the plaintiff which have been wrongfully received by the defendant and fixes three years as the period of limitation, the starting point being the date on which the profits are received. It seems to me to be clear that the receipt of profits by one of several tenants-in-common cannot be said to be wrongful, The receipt of rents or profits from tenants or persons in occupation of lands held in common is one of the ordinary modes of enjoyment of property and it cannot be said that a tenant-in-common is not entitled to receive the rents due. In Watson and Company v. Ramchund Dutt I.L.R. (1889) Cal. 10 one co-sharer was in actual occupation of a portion of joint property and was cultivating it as if it was his separate property. Another co-sharer wanted to enter upon the same land and cultivate it for himself. Their Lordships of the Privy Council held that the co-sharer who was cultivating the land was entitled to protect himself by the profitable use of the land in good husbandry and that the other co-sharer was only entitled to receive his share of the profits. The matter came up again before the High Court as regards the period of limitation which governs such cases and in Robert Watson and Co., Limited v. Ram Chund Dutt I.L.R. (1895) Cal. 799 it was held that the proper article to be applied was Article 120. It seems to me that if the cultivation of land by one co-sharer in the ordinary course to the exclusion of the other co-sharers is not wrongful the receipt by him of the rents and profits from persons who are bound to pay the same cannot become wrongful so as to attract the provisions of Article 109.
14. It was argued for the appellant that Article 127 would apply to cases like the present. Article 127 provides a period of 12 years for a suit by a person excluded from joint family property to enforce a right to share therein, the period starting from the date when the exclusion becomes known to the plaintiff. It is clear from the pleadings in the present case that at the date of suit the members of the family were not members of a joint Hindu family in the ordinary sense of the term. The effect of the partial partition of certain properties and the reference to arbitration as regards the properties undivided as well as the conduct of the parties subsequently show clearly that they had become divided in status. At the date of the suit the plaintiff was not a member of a joint family. It is argued for the appellant that Article 127 should be read as if the words 'joint family property' meant property which at one time was joint family property and ought not to be confined to cases where the property is joint family property at the date of the suit but to property in which the plaintiff has a share and which is not divided by metes and bounds. No authority has been cited in support of such a construction of the plain terms of the article. I agree with the learned referring Judges that Article 127 is inapplicable to cases where at the date of the suit the property has ceased to be joint family property and is held by the sharers as tenants-in-common. This view is in accordance with the decisions in Amine Raham v. Zia Ahmad I.L.R. (1890) All. 282, Sultan Begam v. Debi Prasad I.L.R. (1903) All. 821, where it was held by a Full Bench that the word 'joint' in Article 127 has a settled and well-defined meaning and could not be used as descriptive of property held in common,--Banoo Tewary v. Doona Tewary I.L.R(1896) . Cal. 309, where the learned Judges held that Article 127 presupposes the existence of some joint family and proceeding upon the hypothesis that there is a joint family it provides for the remedy of a member who is excluded and has no application to cases where there was disruption of the status of jointness, and Bhavrao v. Raklimin I.L.R.(1898) Bom. 137. The only other articles that could have any application are articles 62 and 120. Before dealing with the applicability of these articles, I think, it is necessary to consider the position in the Hindu Law of persons situated like the present plaintiff. Till the decision of the Privy Council in Suraj Narain v. Iqbal Narain I.L.R.(1912) All 80 the current of authority was that in order to effect a separation of status there must be an agreement express or implied between all the co-parceners, Sudarsatiam Maistri v. Narasimhiilu Maistri I.L.R. (1901) Mad. 159 deals with this question at great length, It has however now been settled by the decision of their Lordships of the Privy Council in Suraj Narain v. Iqbal Narain 6 and Girja Bai v. Sadashiv Dhundiraj 31 M.L.J. 435 (P.C.) that a separation of status is created by a clear and unambiguous expression of the determination of one member to become divided, On such a declaration the rights and liabilities of the parties are no longer those of a joint Hindu family but have to be determined on the footing that they are not joint tenants but tenants-in-common, This, however, does not by itself change the nature of the suit to be brought for the working out of the rights of such members. The rule of Hindu law that a member of a joint-family cannot except in certain specific circumstances sue for a partial partition is applicable to cases where the joint family has been disrupted by severance of status between the various members. It is clear that, if a member of a Hindu family seeks to recover his share of any particular item of property, he will be met with the plea that the suit is bad and that he ought to file a suit for a partition of all the available properties in order that all the equities may be adjusted between the various parties. Each member will have to bring into the hotchpot the properties in his possession and an account will have to be taken at least from the date when the joint-family became divided in status of the rents and profits of the joint-family properties received by any member and which are liable to be brought into the hotchpot. Until the properties are actually divided, it cannot be predicated that any particular item of property would fall to any particular member of the joint family nor can it be said that any particular member of the joint-family has a right to insist that each item of property shall be broken up into as many shares as there are sharers and that he should get a particular share of each item. As far as possible, in suits for partition the entire items of family property will be allotted to the members if it can be done without any prejudice to the rights of the others, It may thus well be that where the cosharer has received the whole or portion of the monies due on a debt clue to the family that particular item might be allotted to the member who has so received or in taking accounts it may well be that one co-parcener who lays claim to a particular item hay overdrawn his share and is not entitled to any portion of the family property, Under these circumstances if a co-parcener should file a suit for a specific share in an outstanding recovered he will be met with the reply that not only is the suit for that share not maintainable but that the liability of the parties should be adjusted with reference to the taking of . the general accounts. It is difficult to see how in such cases Article 62 can be applied. As pointed out in Augutstnus v. Nertinckx (1880) 167 Ch. D. 17 where no specific sum is claimed but an account is asked for, the action is not a mere common law action to recover monies had and received and a plaintiff may in a proper case claim on account of the monies due to him. if a separate suit for partition cannot except in certain specified cases be brought for each item recovered, I think the only equitable course is to treat the cause of action in respect of a partition of family property as single and indivisible and to apply the same period of limitation as regards moveable property including outstanding collected. A distinction ought to be drawn between cases where the suit is one for a partition of joint family properties one of the items for partition being (he collections made by one or the other of the members of rent or outstandings due to the family and cases where no account is necessary owing to the only item for division being properly held in common. For example, if nothing more appears than that a debt is due to two or more persons jointly and one has collected it, the only question is whether the collection was made and the shares being ascertained there is no necessity to take an account. On the other hand in cases where a partition has to be effected of properties that were once held as joint tenants and subsequently as tenants-in-common the accountability of each member being an essential element in the consideration of the division of shares it would lead to injustice if in taking accounts each member is allowed to keep whatever be collected three years prior to the suit. In Subba Rao v. Rama Rao I.L.R. (1916) Mad. 291, it is pointed out that Article 62 of the Limitation Act can only apply to cases where a definite sum of money has been received by the defendant and which the law says he must hold for the use of (he plaintiff and that it is not applicable to cases where the defendant is asked to account for monies and where the person collecting is entitled to just allowances. The learned Judges refer to various cases and point out that in cases where Article 62 was applied there was no question of rendering account. In Muhammad Habibullah Khan v. Safdar Husain Khan I.L.R. (1884) All. 25. The learned Judges on the authority of Gum Doss Pyne v. Ram Narain Salioo I.L.R. (1885) Cal. 860 applied Article 120 and held that Article 62 of the Limitation Act does not apply to cases of an equitable claim against a trustee liable to account, in which the refief sought is to have an account taken of the trust properties and to recover what might be due as the form in which the suit is brought is not that of an action for money had and received for the plaintiff's use this form of suit not affording a sufficient relief. In Kadhersa Hajee Bappu v. Pnlhen Veetil Ayissa Ummali I.L.R. (1910). Mad. 511 it was held by a Full Bench that a suit for partition of property left by a Mahomedian intestate was governed by Article 120 as regards moveables and Article 144 as regards immoveables. In Robert Watson & Co., Ltd. v. Ram Chund Dutt I.L.R. (1896) Cal. 799 it was held that a suit by one of several joint tenants to recover compensation for the use and occupation by some of the joint tenants of part of the joint lands to the exclusion of the other Joint tenants is governed by Article 120. In Abdul Qahiman v. Pathnminal Bivi (1915) 30 M.L.J. 404, it was held that in a suit for partition by a Mahomedan lady against her co-heirs a claim for the amount of a mortgage debt due to the deceased intestate collected by the defendants was governed by Article 120 and not Art, 62. In Marian Beeviammal v. Kadir Meera Sahib Taragan (1915) 29 I.C. 275 a suit was filed by a Mahomedan lady for a share of her husband's property 23 years after her husband's death. She wanted to recover one-eighth share of the sum of Rs. 28,000 which was cash left by her husband. The suit was dismissed by the Subordinate Judge as being barred. On appeal it was held that the proper article to apply was Article 120. The learned Judges observe. 'The defendants having taken possession of the property as tenants-in-common, they must be deemed to have been in possession of such property on behalf of themselves and of the plaintiff and it lies on them to show that so far as the plaintiff is concerned, the character of their possession was changed six years before the date of their suit. The judgment of the Judicial Committee in Corea v. Appasamy (1912) A.C. 230 would show that mere intention on their part is not enough to change the character of that possession.' In Ganesh Dutt Thakoor v. Jewack Thakoorain I.L.R. (1902)q Cal. 262 the suit was one for a partition of moveable and immoveable properties. An issue was raised as to whether the suit was barred by limitation as regards the moveable properties and the Subordinate Judge dismissed the suit as regards moveables on the ground that it was filed after the lapse of 3 years from the date when according to the plaintiff the cause of action arose. The High Court held that no portion of the plaintiff's claim was barred and this view was upheld by the Privy Council. Though their lordships of the Privy Council did not discuss the particular article under which a suit for partition would lie, it is clear that they dissented from the view that the three years rule was applicable to cases of partition where the claim is inter alia for the recovery of the plaintiff's share in the bond debts and decrees realised by the defendant. In Umardaraz Ali Khan v. Wilayat Ali Khan I.L.R. 11987 All. 169 it was held that a suit brought by some of the heirs to recover from the widow of a deceased Mahomedan a sum of money realised by her on account of a mortgage debt due to the deceased was governed by Article 120 of the second schedule to the Indian Limitation Act. In Venkata Reddi v. Kuppu Reddi (1921) 13 L.W. 260, Article 120 was applied to a suit for partition as regards the income derived from the joint properties. Wallis, C. J. observed 'The next question is with regard to the period of limitation, within which the plaintiff is entitled to recover the income, from the defendants, in respect of the portions of the properties which ought to have fallen to his share, but which were enjoyed by them. It has been contended that the case is governed by Article 62 which applies to a suit (i. c.) for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use. The scope of this article in cases like the present has been considered in Snbba Rao v. Rama Rao I.L.R. (1916) Mad. 291 , where it has been pointed out that it does not apply to transactions, in which the defendant is not under a mere duty to hand over the money which he had received, but has other duties as well in respect of it.' In Parsotam Rao Tantia v. Radha Bai I.L.R. (1915) All. 318 , where property was owned by three brothers as tenants-in- common and the rents were received by one of them as if he was the kartha of the family it was held that a suit by a widow of one of the members to recover from the manager her husband's share of money received by him as manager but owned by all the members of the family in equal shares was not a suit for money had and received but was one to which Article 120 of the Limitation Act applied. Richards, C.J. and Banerji, J. observed, 'Reading however, the plaint as a whole, and having regard to the nature of the evidence and the defence, we think that the suit was in reality a suit for partition of the moveable and immoveable property which had been held by the three brothers and in which the plaintiffs husband had a third share' and held that Article 120 was applicable to a suit of that kind.
15. Many of the cases cited by Mr. Narayanamurthi for the respondents are cases where the claim was not for a partition between the members of a joint family which had become separate in status and in which an account was necessary to be taken to establish the liability of the various members to each other. Mahomed Wahib v. Mahomed Ameer I.L.R. (1903) Cal. 527 was a suit to recover the share of the plaintiff in respect of his zurpeshgi leases the income of which the defendant had recovered from the lessees. Ramalagn Servai v. Solai Servai : (1921)41MLJ274 , was not a suit for partition but a suit to recover a debt which one member of a Hindu funnily which had become divided had collected and had not paid over to the other. Sankunni v. Goviuda I.L.R. (1912), Mad. 381 was a case where the karnavan of a Malabar tarwad sued a junior for the recovery of a sum of tarwad money received by the latter and not paid over to the karnavan. As no partition is possible in the case of Malabar tarwads and as the junior member had no right to receive the monies when the karnavan was in management, the case was a simple one of money received by one member who did not pay it to the rightful person. Syed Lulf Ali Khan v. Mussmat Afzalunnissa Begum 9 Ben. L.R. 348 also related to the recovery of the plaintiff's 10/24th share of a sum of Rs. 2,00,000, paid by a debtor in respect of a debt due to the joint family and the only question was whether the claim was barred by limitation and there was no question of accountability partition of joint family property. Wehor Ali v. Goddai Bahari 2 C.L.R. 165 , was a case where one of two decree-holders, without the knowledge of the other decree-holder, transferred the decree to another person who executed the decree and recovered the money, and it was held that, if there was any cause of action against the transferee, it would be for money had and received and the suit would be governed by Article 60 of the Limitation Act of 1871 which corresponds to Article 62 of the present Act. Binode Lal v. Preo Nath (1917) 40 I.C. 173 , was a case where one of several co-sharer land-lords filed a suit for arrears of rent and made the other co-sharers party defendants along with the tenants and prayed that if the co-sharers had received the rents, the plaintiff should be paid his portion, It was found that the rent was paid by the tenants to the landlord defendants and the question was whether the suit was barred. It was held that Article 62 applied to such a case even though the defendants when . they received the money did not intend to pay it to the plaintiff. Thakur Prasad v. Partab I.L.R.(1883) All. 442 was a suit by one of two divided members of a joint Hindu family for the recovery of a specific amount being his share of a decree debt due to the family which the defendant had realised. Dalip Singh v. Tulshi Ram (1885) 7 All. W.N. 100, was a case where certain property was purchased by a person in his own name but for the benefit of himself and another. The purchaser refused to account for the profits and a suit was filed against him. It was held that the transaction in that case created the defendant a trustee for the plaintiff and that the money received by the defendant which he was bound to pay over to his cestuis que tnistenl was money received for the use of the cestuis que trustent and fell under Article 62 and not Article 109 of the Limitation Act. It is unnecessary to consider how far this decision is right having regard to the finding that the defendant was a trustee for the plaintiff and to the applicability of Section 10 of the Limitation Act to such cases. Abdul Ghaffar v. Nur Jahan Begam I.L.R. (1915) All. 434, was a case where a Mahomedan obtained a succession certificate to realise the debts of his deceased uncle and recovered some of them. A suit was filed by the widow of his co-heir for an account of the sums he collected on the authority of the succession certificate and for the recovery of her husband's share, and it was held that Article 62 was applicable to that case. With all respect I do not agree with the learned Judges in their attempt to distinguish this case from the decision in Umardaraz Ali Khan v. Wilayat Ali Khan I.L.R. (1896) All. 169, and Mahomed Riasat Ali v. Hasin Banu I.L.R.(1893) Cal. 157 , and if it is authority for holding that in suits for partition and account Article 62 is applicable, I would respectfully dissent from it. 1 find it difficult to see how a case where one of the heirs takes charge of the cash left by the deceased and does not pay over the share of the others can be distinguished from a case where the heir receives money from a debtor and in Mahomed Riasat All v. Hasin Banu I.L.R.(1893) C. 157 their Lordships of the Privy Council held that as regards monies taken possession of by one heir the suit was not barred at the expiry of 3 years. Treating it as a suit for partition, the decision in the same volume at page 318, I.L.R. 37 All. 318 which I have already referred to would apply. In Masih-ud-din v. Imtiaz-un-nissa I.L.R. (1914) All. 40 , it was held that where, pending arbitration, in respect of the distribution of the estate of a deceased person amongst his heirs, the estate was by their consent put in charge of a third party who was to realise the assets and pay the debts, a suit by one of the heirs to recover from such person her share was a suit for money had and received and was governed by Article 62 of the Limitation Act. This decision is in direct conflict with Subba Rao v. Rama Rao 30 M.L.J. 341 Lakhpat Pandey v. Jang Bahadur Pandey (1917) 40 I.C. 37 was a suit to recover the share of a person who was entitled to it out of the monies collected in respect of certain bonds which stood in the name of the defendant or some of them and in which he was a co-sharer. It was held that Article 62 was applicable. This was not a case where there was any claim for partition are any account was asked for. Dulabh Vahuji v. Bansidhar Rai I.L.R(1884) . 9 Bom. 111 was a case where a person who was entitled to a share in a deshpaiide vatan sued to recover monies collected by his co-sharer and it was held that Article 62 of the Limitation Act applied.
16. The only case which so far as I can see really touches the question is Vaidyanatha Aiyar v. Aiyasamy Aiyar 19 M L.J. 94 where there was a partial partition between the members of a Hindu family. The greater portion of the properties had been divided and the parties subsequently continued to live separately. It was held that in such a case where the members of the joint family had become divided in status no member had a right on behalf of the others to recover any debt due to the family and where it was so recovered it was not joint family property so as to attract the provisions of Article 127 of the Limitation Act, the article applicable in such cases being Article 62. It was also held that the principle that the possession of one tenant-in-common is to be deemed possession of all and limitation begins to run only after the exclusion of any tenant-in common or adverse possession is set up, would not apply in the case of joint families after a complete separation in status. The latter proposition can hardly be good law having regard to the decision in Kumarappa Chettiar v. Saminatha Chettiar I.L.R. (1918) Mad. 431 . It is difficult to see how a mere separation in status could by itself make possession by one member hostile to the other or by itself amount to ouster. As regards the applicability of Article 62, the learned Judges do not discuss the cases there referred to where Article 120 has been applied to claims for partition. Of the cases referred to by the learned Judges, Arunachala v. Ramasamya I.L.R. (1883) Mad 402 , was not a suit for partition but a suit to recover a specific share of a joint debt collected by the father of the family. Thakur Prasad v. Partab I.L.R.(1883) All. 442, which was referred to was also a similar case, and Banoo Tewary v. Docna Tewary I.L.R. (1896) Cal. 309 , has already been referred to by me. As regards Tellis v. Saldanha I.L.R. (1886) Mad 69 , the main question there considered was whether there was a survivorship as between two native Christian brothers. It was held that as regards the claim for the share of the rents by one of the persons so entitled, Article 62 applied, and there is hardly any discussion on the subject. Kundan Lal v. Bansi Dhar I.L.R. (1880) All. 170 , which was relied on was also not a suit for a general partition but only a suit by one of two heirs to recover his share of money which the other heir got from a person in respect a money due to the family.
17. Reference has been made to the English law that a tenant-in-common cannot maintain an action for money had and received against his co-tenant. Prior to the statute 4 and 5 Anne C, 16, which gave a right of action by a suit for an account, by one joint tenant or a tenant-in-common against the other of the rents and profits received in excess of his share there was no remedy at common law. In Thomas v. Thomas (1850) 5 Exch. 28, it was held that one tenant-in-common of real property cannot maintain an action for money had and received against his co-tenant, his remedy being by an action of account under Statute 4 Anne. C.16 Section 27. So far as I can see, this decision has not been dissented from and an action for money had and received would not lie in England. This rule has not been applied to cases between joint tenants in India. The only case where so far as I can see, the English doctrine was considered is Mahomed Wahib v. Mahomad Ameer I.L.R. (1905) Cal. 527 , where Harington, J. is meeting the contention that one tenant-in-common cannot maintain an action for money had and received against his co-tenant was of opinion that the ground of decision in Thomas v. Thomas 2 was that the plaintiff was bound to pursue his statutory remedy for account under 4 Anne C. 16, Section 27. Mookherjee, J. simply stated that under English law one tenant-in-common cannot recover in an account for money had and received against another who has received more than his share of the profits, and referred to the Statute 4 Anne, c 16, Section 27 and Thomas v. Thomas (1850) 5 Ex. 28 . He decided that Article 62 of the Limitation Act applied. His view evidently was that the rule was not applicable to India. The referring Judges were inclined to the view that this principle is equally applicable to cases arising in India. The decisions in India I have referred to assume that a tenant-in-common has a right of action for money had and received against his co-tenant and it is argued that as Courts in India are not bound by the technical rules and procedure in England but have to administer justice on broad principles of equity and good conscience in cases where there is no statutory enactment relating to a particular subject and as there is nothing against equity or good conscience in one co-sharer suing to recover monies received by another in excess of his share without the necessity of having to take the cumbrous procedure of filing a suit for an account, Courts in India ought not to apply the rule in Thomas v. Thomas (1850) 5 Exch. 28 that an action will not lie except for an account as between tenants-in-common. It is unnecessary to determine this wide question as I am of opinion that in suits for partition between members of a joint and undivided Hindu family who have become subsequently divided in status, the plaintiff being entitled to ask for an account and the relative rights and obligations of the parties being dependent on the taking of the account which would include not only the properties moveable and immoveable in the possession of each member hut also the assets of the family including the out-standings and rents and profits collected, the action for partition and the reliefs claimed in it cannot be brought under article 62 of the Limitation Act. Even in cases where Article 62 has been applied, it seems to me that Courts have not given sufficient weight to article 89 of the Limitation Act. In cases of receipt by one member of a Joint family, though divided in status, of sums due to the family it may well be that the person making the collection is acting on behalf of the other members and it need not necessarily be assumed that because there was a division of status there is necessarily a dishonest intention on the part of the person who is collecting the outstandings to appropriate the money to himself. Very often the receipt of rents is by the person who, when the family was joint and before separation in status, was the managing member of the family, In cases where the properties of the joint family stand in the names of different members the receipt is very often by the person in whose name the particular item stands. Sometimes when the members of the family live in different places the receipt is by the person who resides at the place where the debtor happens to be or which is most convenient for collection. In all these cases the mere fact that a member declares his intention of separation does not amount to notice to the debtors not to pay. Except in cases where one member of the joint family has given notice to the other member or members not to receive monies due to his co-sharers and has informed the debtors not to pay I do not think the collection by one of the co-sharers necessarily imports an intention on his part to appropriate the monies collected to his own use and not distribute them among the sharers when demanded. The mere fact that the person receiving the money was not expressly authorised after the division in status to collect it would not affect his liability as agent. I may in this connection refer to the decision of the House of Lords in Lyell v.Kennedy14 A.C. 437, where it was held that the collection of rents by a person on behalf of another though unauthorised, may be ratified by the true owner and that such ratification may be expressed by a suit brought for an account within a reasonable time. Gabu v. Zipru I.L.R. (1920)45 Bom. 313 , was a case where the learned Judges applied Article 89. They dissented and in my view rightly from the decision in Banoo Tewary v. Doona Tewary I.L.R. (1895) Cal 309 , where the learned Judges applied Article 62 in spite of their holding that the defendant was acting on behalf of his co-sharers as their agent in receiving their share of the monies. It seems to me that, in cases where the suit is not one for partition after the taking of an account the question may still arise whether or not the defendant acted as the agent, express or implied, of the plaintiff in making the collections and, if so, it seems to me that the proper article to apply will be 89 and not 62.
18. My answer to the reference is that in a suit for partition where a claim is made for an account being taken of the moveable properties, outstandings and collections made by the various members in respect of properties in which the parties were once joint but who subsequently became separate in status the proper article to apply is Article 120. 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. The observations I have referred to in Mariam Biviammal v. Kadarmeeva Sahib Taragan (1915) 29 I.C. 275, supports this view. I may also refer to Abdul Rahiman v. Pathummal Bivi (1915) 30 M.L.J. 104 where Mariam Bivi Ammal v. Khadar Meera Sahib Taragan is approved of and followed.
19. The question referred for the opinion of the Full Bench is 'what are the articles applicable to the claims for money and mesne profits in the present suit.' In order to understand the question fully it is necessary to set out a few facts. The plaintiff, his brothers Dalaya and 4th defendant with sons and grandsons constituted a Hindu Joint family till 1905. In that year, the plaintiff and his brothers became separate in interest and divided some of the family properties. Other properties remained undivided owing to disputes between the brothers till 1917 when the plaintiff brought the present suit for the division of the remaining properties. No question of limitation arises as regards the immoveable properties. As regards outstandings and mesne profits the defendants contend that the plaintiff's claim for his share of outstandings realised by them is barred by limitation under Article 62 and as regards mesne profits his claim is barred under Article 109 of the Schedule I of the Limitation Act of 1908. The plaintiff's contention is that as regards his share of outstandings collected, Article 120 of the Limitation Act applies and as regards mesne profits Article 127 applies. It is strongly contended before us by Mr. Narayanamurthi for the respondents that the proper article to apply to the case of outstandings collected is Article 62 of the Limitation Act,
20. Column I of Article 62 reads thus :--for money payable by the defendant to the plaintiff, for money received by the defendant for the plaintiff's use. This article is taken from the well-known form of action for money had and received. What averments are necessary to sustain the action can be seen from the following passage from Bullen and Leake's Precedents . of Pleadings page 257 (6th Edition). 'In actions for money received to the plaintiff's use, the statement of claim should in all cases state clearly by way of particulars or otherwise, the facts relied on as showing that the money was received to the use of the plaintiff.'
21. I shall first examine the cases relied on by Mr. Narayanamurthi in support of his contention. In Arunachala v. Ramasamya I.L.R. (1883) Mad. 402 it was held that Article 62 applied to the plaintiff's claim to a specific debt due to the family said to have been collected by the father after a decree for partition. In the decree for partition there was a declaration that the plaintiff was entitled to a third share of the specific debt and the plaintiff did not choose to give the debtor notice that he was entitled to a third share of the debt. It was contended that Section 10 of the Limitation Act applied to the facts of the case and that the father was a trustee for the sons. The Court held that the father was not a trustee and that the plaintiff's claim was barred under Article 62 of the Limitation Act. That decision can have no application to the present case as the facts therein are different from the facts herein. In the present case there was no decision by arbitrators or a decree of Court that plaintiff was entitled to a third of any specific item. When Dalaya collected the outstandings due to the family he collected what was due to the whole family and not any amount specifically due to the plaintiff either as a whole or in part. In the next case Tellis v. Saldanha 1, the Court held co-parcenership and the right of survivorship which are incidents peculiar to Hindu Law have no application to the members of a Christian family, and if one member of such family collects rent to which two or more members of such family are entitled, the claim for a portion of the rent is barred after 3 years under Article 62 of the Limitation Act. In this case there is no question of agency and the mere fact that two persons are members of a family would not make one the agent of the other. In the case of a joint Hindu family there is a managing member who contracts in his own name for the family and transacts all the affairs of the family and the other members cannot question his acts except by a suit for partition. In the present state of the law a mere unequivocal unilateral declaration of intention would bring about a division of status and that by itself would not take away the power of the managing member to manage the affairs of the family in the interests of all its members till there is an actual division of the property. Tellis v. Saldhana I.L.R. (1886) Mad. 69, is not an authority for the contention that article 62 should be held to be applicable to the facts of the present case.
22. The decision in Vaidyanatha Aiyar v. Ayyasami Aiyar I.L.R. (1908) Mad. 191 is a direct authority for the respondent's contention. The learned Judges observe at page 198 'After the division in status of the members of the family one of them does not represent the others, He is not bound by the dealings of the others with reference to any property in which a person may be interested. Thus after 1892 no member of the family can recover the debt or any portion of the debt that may be payable to the other members. Their right against any debtor would stand unaffected by any payment to him and if any member as a joint creditor recovers the debt he becomes liable immediately to paylover over the share of his joint creditor to him. This also explains the case of Ganesh Dull Thakoor v. Jewach Thakoorain I.L.R. 1903 Cal. 262. There, as expressly stated by their Lordships, it was not the case of either party that there was a partial separation or a separation in respect of certain properties only and the debts therefore realised by the brothers were realised on account of their family; the only question was whether one of the brothers, as whose representative his widow claimed a partition, was separated in interest or continued an unseparated member. There was no claim advanced by any one of the members, to the debts realized, to the exclusion of the other members of the family. In the case before us, as already pointed out, the debts were not recovered or realized by the first defendant or any of the other brothers as the representative of the family or on behalf of the other members as well. We are, therefore of opinion that article 62 applies.'
23. It is difficult to see how article 62 would apply to such a case. The article refers only to cases where money was received by defendant for the plaintiff's Use. After division in status till outstandings are collected and divided or allocated to the various members of the family each may collect what he could and an account will have to be taken at the time of actual division. In no sense can one member of a family, divided in status, but holding property to be allocated or divided, be said to collect or manage on behalf of any other, unless there is an agreement implied or express to that effect or at least conduct indicating an intention to act as agent. Where one or some of the outsandings belonging to a once joint family is collected by a person after the members cease to be joint in status it cannot be predicated that such collection was made for the use of a member other than the person collecting. The matter would be different if any particular outstanding is ear-marked wholly or in part to any member and if another collects that whole or part, it can be persumed that the person collecting it did so for the use of the person to whom it was ear-marked. This I think is the principle of the decision in Arunachella v. Ramasamya I.L.R (1883) Mad. 402. It would be overlooking the clear words of article 62 and the history of the action for the money had and received, to apply the article to the facts brought out in evidence in Vaidhinatha Iyer v. Ayyasami Iyer I.L.R. (1908) M. 191 . The words of the articles of the Limitation Act have to be construed strictly, and with the greatest possible respect to the learned Judges who decided 32 Mad. 191, I venture to state that article 62 should not have been held applicable to the fact of that case.
24. The next case relied on by Mr. Narayanamurthi is Avancha Lakshminasimmah v. Avancha Lakshamma 25 M.L.J. 531, wherein it was held that article 62 applied to a case where two brothers jointly advanced a sum of Rs. 1,600 on mortgage and one of the brothers realised the mortgage amount without the knowledge of the other. Mr. Justice Sadasiva Iyer observes at page 326 'In Sankunni Menon v. Govinda Menon (1911) 11. M.L.T. 325. Also Reported in 22 M.L.J. 485, Benson, J. and myself held that article 120 should be applied only as a last resort in case no other article is applicable, that article 62 relating to money had and received for the use of the plaintiff was intended to cover all cases where plaintiff claims money which the defendant has received but which ex aque et bono the defendant ought to refund to plaintiff and that the action for money had and received, is a very extensive and beneficial remedy. I think the case of Segu Chidambaramma v. Segu Ballayya (1911) 2 M.W.N. 487 decided by Abdur Rahim and Spencer, JJ. established that such a suit as the present will be governed by article 62. The suit in that case was one by the plaintiff for his share of rent realised by the defendant after partition between the parties.' In Sankunni Menon v. Govinda Menon (1911) 11. M.L.T. 325 . Also Reported in I.L.R. 37 Mad. 381, the decision relied on by Sadasiva Aiyar, J. the junior member of a Malabar Tarwad withheld from the Karnavan certain tarwad money which he had got hold of, and a suit by the Karnavan was held to be governed by Article 62. The learned Judges say : 'As observed in Black-stone's commentaries' Vol III, page 162, an action lies ' When one has had and received money belonging to another, without any valuable consideration given on the receiver's part: for the law construes this to be money had and received far the use of the owner only and implies that the person so receiving promised and undertook to account for it to the true proprietor. And, if he unjustly detains it an action on the case lies against him for breach of such implied promise and undertaking; and he will be made to repair the owner in damages, equivalent to what he has detained in such violation of his promise. This is a very extensive and beneficial remedy, applicable to almost every case where the defendant has received money which ex aequo et bono he ought to refund.' Evidently the learned Judges have overlooked the basis of the action for money had and received, that defendant has collected or is in possession of money that rightfully belongs to the plaintiff and to which the defendant is not entitled and that the circumstances in evidence justify the inference that the defendant collected it or is in possession of it for the plaintiff's use. It is hot necessary to examine in detail the case of Ramalagu Servai v. Solai servai (1921) 4l M.L.J. 274 , which simply follows Arunachala v. Ramasamya I.L.R. (1883) Mad. 402, and Vaithinatha Aiyar v. Aiyasawmy Aiyar I.L.R. (1908) Mad 191 . In Banoo Tewary v. Doona Tewary I.L.R. (1816) Cal, 309, a Bench of the Calcutta High Court held that a suit by some members of a joint Hindu family who had separated against other members of the family who collected the family outstandings was governed by article 62, The plaintiffs contended that article 127 applied and the defendant contended that article 62 applied. The learned Judges held that Article 127 could not apply as it presupposed 'the existence of a joint family and proceeding upon the hypothesis that there is a joint family it provides that when any member of such joint family is excluded from the enjoyment of the joint property or any portion thereof, the period of limitation shall run from the date when the exclusion comes to his knowledge. But when there has been a disruption of the status of jointness, it is difficult to conceive that it could have been the intention of the legislature that the same provision should apply. The case of the plaintiffs is, that everything was divided, the family became separate, and only those debts were left undivided which were not ripe for realization. They were to be divided of course when they were realized. In such state of circumstances it does not appear to us that Article 127 would apply.' They held that the proper article to apply was 62. But with great respect to the learned Judges it is difficult to understand what follows after the passage quoted above viz. 'The defendant was acting on behalf of other co-sharers merely as their agent in the realization of their shares in these moneys, and we think therefore that the case is subject to 3 years' limitation and that the claim of the plaintiffs so far as the items Nos. 1, 2, 3, 4 and 6 are concerned, is barred as they were realised more than three years before the institution of the suit.' If the defendants acted as agents of the plaintiffs and other sharers the proper article to apply was 89. From the report of the case it does not appear that plaintiff sought to bring his case under Article 89 or 120 of the Limitation Act.
25. The facts of the case in Mahomed Wahib v. Mahomed Ameer I.L.R. (1903) C. 527 are that B received from C money due on two deeds of mortgage. A who was entitled to a share of the money instituted a suit for recovering his share from B more than 3 years after the receipt of the money by B. Held that the money was received by B for A's use and that therefore the suit was governed by Article 62 and not by Article 120. The Lower Courts found that the money was not received for plaintiff's use and following Nund Lall Bose v. Meeragboo Mahomed I.L.R. (1880) Cal. 597 held that Article 62 did not apply. The learned Judges dissented from the view expressed in 5 Cal. 57, quoted with approval the passage from Blackstones's commentaries already extracted and decided that the money was received for plaintiff's use because the defendant unjustly detained it for his own benefit.
26. Mr. Justice Harrington refers to the case of Thomas v. Thomas (1850) 5 Exch 28 and says, 'that case lays down that one tenant in common of real property cannot maintain an action for money had and received against his co-tenant. But the ground of that decision was that the plaintiff was bound to pursue his statutory remedy for account under 4 Anne C. 16 Section 27. So it does not affect the present case.' With the greatest respect I may observe Thomas v. Thomas 3 has not. been corrrectly understood by the learned Judge. By the common law, a tenant in common could not bring an action against his companion for money had and received. Parke Baron in delivering judgment in Thomas v. Thomas 3 said, 'it is expressly laid down that no action of account lay by the common law by one tenant in common against his companion for taking more than his share of the profits, unles where he had constituted him his bailiff to receive them. Now this want of remedy by the common law was provided for by the statute 4 Anne C. 1.6, Section 27, which enables one tenant in common to maintain an action of account against the other as bailiff for receiving more than his due share or proportion, in which case, however, he is entitled to all the rights and indemnities of a receiver, and consequently would be able to show that the money had been lost without his fault; whereas, in an action for money received to the use of another, the defendant is liable for the money absolutely. It is clear, therefore, that the statute of Anne only gives an action of account, in which the receiver would be entitled to all just allowances; and if so, that this action for money had and received will not lie.'
27. In an action for money had and received the defendant is not entitled to deduct the cost of collections, Court expenses and other charges incidental to collection. Can it be contended here that the plaintiff is absolutely entitled to a third of the amount collected without any deduction for expenses incurred in collecting it it is obvious the English action for money had and received could not apply to a case like the present. The statute of Anne gave a new remedy not available under the common law and not as thought by Harrington, J. that the statute restricted the remedy available under the common law.
28. In Kundun Lal v. Bansi Dhar I.L.R. (1880) All. 170, a Bench of the Allahabad High Court held that a claim by one heir of a deceased person against another for a share of the money realised by the latter was barred under Article 62 'the suit being for money payable by defendant to the plaintiff for money received by the defendant for plaintiff's use. The receipt by the defendant was in law a receipt to the use of the plaintiff to whom the sum in deposit rightfully belonged'. if the said sum in deposit or any portion of it was ear-marked for the plaintiff, the decision would be in accord with Arunachala v. Ramasamya I.L.R.(1883) Mad. 402. The learned Judges who decided Umardaraz Ali Khan v. Wilayat Ali Khan I.L.R. (1896) All. 169 observe 'we should have followed it referring to Kundan Lal v. Bunsidhar I.L.R.(1896) All. 169 had it not been for the ruling of the Privy Council in the case of Mahomed Riasat Ali v. Husain Banu I.L.R. (1893) Cal. 159. In that case the plaintiff, as the widow of the deceased owner, claimed among other properties certain cash and deposit money received and appropriated by her husband's brother, but their Lordships held that for a suit of this description there was no article in the schedule which was clearly applicable, and therefore Article 120 governed the case'. The ruling in Amina Bibi v. Najm-un-nissa Bibi I.L.R. (1915) All. 233 , that Article 62 applied to the case of some heirs of a deceased Muhammadan suing other heirs for their share of a mortgage amount collected by the latter was upon the peculiar facts of the case. 'The plaintiff's right to a fourth share in the money in suit has not at any time been disputed. On the contrary, it has always been openly admitted by the defendants, who in the execution proceedings, when they objected to the plaintiff being brought on the record as a decree-holder, stated that they would pay to the plaintiff her one-fourth share in the amount recovered from the judgment-debtor after deduction of costs. When the amount of the decretal debt was set off in part against the amount of the defendants' bid at the auction this was done as a matter of convenience, and it was as if the defendants Nos. 1 to 3 had paid in the amount of their bid and had then with defendants 4 to 6 recovered the amount due under the decree, and we have no hesitation on the facts of the suit before us, in holding that Article 62 applies. The money was recovered by the defendants for the plaintiff's use. The decision in Mahomed Wahib v. Mahomed Ameer I.L.R. (1903) Cal. 527 supports us'. There is a distinct finding in this case that defendants undertook to pay to the plaintiff one-fourth share of the amount recovered and this ruling can have no application to the case before us. In Abdul Ghaffur v. Nur Jahan Begam I.L.R. (1915) All. 434 , the defendant recovered money belonging to his deceased uncle and the suit by the widow of the defendant's brother, who died subsequent to the uncle's death, was held barred under Article 62. The defendant collected money half of which belonged to his brother and it may de said he did so for his brother. If he denied the right of the brother to the money or set up a right in himself, it cannot be said that he collected the money for the use of his brother. In Dulabh Vahuji v. Bansidhar Rai I.L.R.(1884)9 Bom. 111 there was a declaratory decree of plaintiff's title and his suit against his co-sharer in a deshpande Vatan who was bound by the decree to recover arrears was held to be a suit for money had and received and was governed by Art 62. In this case also the plaintiff's right to a share of the specific debt was undisputed and on the evidence the collection was held to be for the use of the brother.
29. I shall now deal with the cases in which Article 120 of the Limitation Act has been held to be the proper article applicable to the cases of collection of outstandings or managed of property by one interested in the outstandings or property along with others. In Parsotam Rao Tantia v. Radha Bai I.L.R. (1915) All. 318 , the facts were :--Three brothers who had been living with their father as a joint Hindu family obtained under the will of their father, in whose hands it was separate property, a considerable amount of moveable and immoveable property. The property so bequeathed was divided by the will into three lots; but the legatees still continued to live as a joint Hindu family and the property was managed for a series of years by one member of the family acting as if he were the karta of a joint Hindu family. Richards, C.J. and Banerji, J. observe at page 322 .: 'we have already pointed out that the property was managed by one member of the family. He appears to have received the rents and profits of the immoveable property and to have invested and dealt with their money making investment in the ordinary course of business. When he received the money from Government in redemption of the debentures he still received it in his capacity of manager. When we speak of the manager we do not mean managing member of a joint Hindu family, but the individual to whom this particular family entrusted the management of their affairs. In this view we think that the suit was a suit governed by Article 120'. It is quite clear from the judgment that the manager who managed the affairs of the family did so for the benefit of not any particular member but of the whole family. It would be most inequitable if after collection, the manager is allowed to say that he collected it for A's or B's use and a claim by A or B for his share should be brought within 3 years after collection. If the manager acted as the agent of the others article 89 would apply if not Art, 120 as there is no other article specifically intended to cover such a case. In Subba Rao v. Rama Rao 30 M.L.J. 341 the facts were : The plaintiff and the defendant were co-sharers in a Jaghir of which the latter was appointed by the Government as manager. The former sued the latter in a District Munsif's Court for his share of the net income due for the year 1912, but the plaint was returned for presentation to the Court having jurisdiction. The plaintiff did not represent the plaint in any Court but instituted the present suit in 1913 in the District Court for an account and recovery of his share of income due for the years 1905 to 1907. The Court held that the suit was one for an account which was govened by Article 120 and not article 62. Srinivasa Ayyangar, J. observes at page 295: 'The plaintiff cannot claim a share in each individual collection nor can he claim any particular sum at the time of collection from the defendant. All that he is entitled to is an account technically so called. Whether that account is to be rendered once a year or when demanded [makes no difference. The plaintiff is not entitled to a particular sum from the defendant at the moment he has received it. The article of the limitation governing the suit is not therefore article 62.' If the plaintiff was entitled to any particular sum or any portion thereof the principle of the decision in Arunachala v. Ramasamya I.L.R. (1883) Mad. 402 would be applicable. As observed by the learned Judge the plaintiff was not entitled to any particular sum and therefore Article 62 could not apply to the case. In Khadersa Hajee Bappu v. Puthen Veetil Ayissa Ummah I.L.R. (1910) M. 511 it was held that 'in the case of a Muhammaden dying intestate the estate is at once vested in the heirs as tenants-in-common and there is no one charged by law with its distribution.... We think the answer to the question referred must be that article 144 is applicable when the property is immoveable and article 120 when it is moveable property.' In Madar Sahib v. Khader Moideen I.L.R. (1915) M. 54 the plaintiffs who were co-owners of the suit house with the defendants sued for possession of their half share of the house after partition and for recovery of arrears of rent and rent subsequent to the suit Both the lower Courts decreed partion and possession of a moiety of the house and rent for six years before suit under Article 120 of the Limitation Act, The defendants bought the undivided moiety of the house from the father of the plaintiffs 1 to 7 and later in the same year executed a lease to him in respect of the other moiety for a period of three years. The lease expired in 1899 and since that time the defendants have been in possession of the whole house without executing any fresh lease to the plaintiffs or paying them rent, The ' learned Judges observe at page 56, 'The decision of the question whether Article 110, 115 or 120 is to be applied to this case depends in our opinion on the answer to the question whether the relationship between the parties after the expiry of the lease in 1899 was based on a contract, express or implied. Articles 110 and 115 both presuppose the existence of such a contract. If the suit is in reality a suit for rent or for damages for vise and occupation then Article 110 or 115 may apply, but if not then the remaining Article 120 would be properly applied * * *
The respondents' possession after 1899 may reasonably be referred to their rights as co-owners and in that view the decision in Robert Walson & Co., Ltd., v. Ram Chand Dutt I.L.R.(1895) Cal. 799 was in our opinion rightly applied to the case notwithstanding the difference in the facts which has been referred to above'. The facts of the case in Abdul Rahiman v. Pathummal Beevi (1915) 30 M.L.J. 104 , were 'One of the two suits was brought by two sisters against their two step-brothers and their mother for partition of the property of their father (including the accretions to the said properties) and the other suit was by the mother of the plaintiffs in the first suit against her said stepsons (the same defendants 1 and 2) for her share. The father died in February 1898 and these suits were brought in July 1911.' Sadasiva Aiyar and Napier, JJ. held that Article 120 governed the claim as regards moveables. Sankaran Nair and Oldfield, JJ. decided in Mariam Bivi Ammal v. Kadar Mesra Sahib Taragan (1915) 29 I.C. 275, that the heirs of a deceased Mahomedan take as tenants-in-common and the right of one heir to a share will not become barred unless and until the other heirs set up an adverse right to thy knowledge of that heir and that Article 120 applied to the case. 'The defendants having taken possession of the property as tenants-in-common they must be deemed to have been in possession of such property on behalf of themselves and of the plaintiff and it lies on them to say that so far as the plaintiff is concerned the character of their possession was changed six years before the date of the suit.' If I may say so Article 120 has been rightly held to govern the case. It was held in Umardaraz Ali Khan v. Wilayat Ali Khan I.L.R. (1895) All. 162, that a suit brought by the other heirs to recover from the widow of a deceased Mahomedan a sum of money said to have been realised by her on account of a mortgage-debt due to her deceased husband was governed by Article 120 of the Limitation Act. In Venkata Reddy v. Kuppu Reddy (1921) 13 L.W. 260, the facts were that in a partition between Hindu co-parceners one of whom was a minor represented by his mother, it was arranged that the senior co-parcener and the minor should enjoy their share of the property jointly. The minor sued to reopen the partition and to recover from the said senior co-parceners' sons the income from the portion of the properties which ought to have fallen to his share but which were enjoyed by them more than 3 years after the deed of partition. The learned Chief Justice observes at page 261 : 'It has been contended that the case is governed by Article 62 which applies to a suit for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use. The scope of this article in cases like the present has been considered in Subba Rao v. Rama Rao 3 where it has been pointed out that it does not apply to transactions, in which the defendant is not under a mere duty to hand over the money which he had received, but has other duties as well in respect of it. The facts of this case are for this purpose that under Exhibit LI it was arranged that the senior coparcener and the minor should enjoy their share of the property jointly and apparently believing that they continued joint, the defendant's father managed the property which fell under Exhibit U to him and to the plaintiff. As manager it was his duty, not merely to account for the money received but to pay the kist and the other expenses as well as to maintain the minor; and what sum the defendants should be ordered to pay can only be determined by taking an account. I entirely agree with the decision in Subba Rao v. Rama Rao I.L.R. 1916 Mad 291 that Art, 62 does not extend to such transactions. It is admitted that if this is so, the only other article applicable is Article 120; and therefore the suit is not barred.'
30. It is quite clear from the language of Article 62 that it cannot apply to the facts of the present case. The case like Arunachala v. Rmasamya I.L.R.(1883) Mad. 402 where Article 62 has been held applicable* can be explained on the ground that the plaintiff was entitled to the whole or part of a specific debt and the defendant when he collected it must have intended to collect it for the plaintiff's use. But where there are several outstandings belonging to a Hindu joint family consisting of say A, B, C and D, if A after they became divided in status collected any outstanding could it be said that he collected it for the use of B and not of C and D. Each member might probably collect what he could especially where they fall out, and an account will have to be taken of the various collections after deducting the cost of collection, incidental charges, &c.;
31. The plaintiff in this case does not contend that he is entitled to the whole or portion of any specific outstanding and he does not claim his share without a deduction for the cost of collection.
32. Article 89 of the Limitation Act would be applicable if the facts warrant an inference that by agreement, express or implied, Dalayya collected the outstandings. If Dalayya and the 4th defendant acted as agents for the whole family impliedly of expressly they cannot set up Article 6.2 as a bar to the plaintiffs' suit and they are bound to render an account within three years of demand for such amount. In Gabu v. Zipru I.L.R. (1921)45 Bom. 313, the facts were : . Plaintiff and his two brothers lived jointly. They divided their immoveable estate in .1898 but kept joint certain cash securities as they were all in the name of the elder brother Ramsingh. At the time of the partition it was orally agreed that Ramsingh should realise the securities and divide the proceeds among the 3 brothers. Ramsing did not divide the proceeds nor gave any account. He died on 6th January 1914. Thereafter plaintiff demanded an account from Ramsinghs son but he having refused, tiled a suit for an account on 3rd January 1917. Both the lower courts dismissed the suit as being barred under Article 62, The Bombay High Court disagreeing with Banoo Tewary v. Doona Tewary I.L.R.(1890) Cal. 309, held that the suit was governed by Article 89. Macleod, C. J. observes at p. 316 'The Lower Court has relied on the decision in Banco Tewary v. Doon Tewary 2. That was a very similar case to this. The learned Judges applied Article 62 of the Indian Limitation Act, although they said that the defendant was acting on behalf of his co-sharers as their agent in realising their share in these monies. With all due respect it seems difficult to see why Article 62 was applied and not Art 89. In a case of this description, the other sharers would not be expected to show when the debts were recovered by the members of the family entrusted with their recovery and it would seem to me very inequitable to hold that time was running against them from the time the monies were received, when they could not tell on what dates they had been received and could not be aware that the managing member was intending . to hold those monies against them. '
33. It is for the Division Bench trying the appeal to see whether the facts on record would warrant such an inference. If the facts would not warrant the inference that Dalayya acted as for the plaintiff, then the only article applicable is 120, there being no specific article applicable to such a case as the present. The principle deducible from the decisions discussed above is :--If A collects what belongs to B knowing that it belongs to B, he is absolutely liable to B for the amount collected without deduction for expenses, charges, etc., and loss by theft cannot be pleaded in bar of B's claim. A has no duty to collect B's money and being a volunteer cannot claim an account. Where A and B are jointly entitled to a specific sum if A collects the whole without being B's agent implied or expres, there is a presumption that he does so for B's use and Article 62 would apply. Where A and B are entitled to several outstandings and A collects some and B collects the others before they are allocated to A or B, neither A nor B can be said to collect for the other's use and a suit for account is the proper form of action and Article 62 would not apply.
34. In the case of the income of the immoveable property in the suit, the proper article to be applied is Article 120.
35. It is not necessary for the present purpose to examine the law relating to tenants-in-common. The position of the members of a Hindu joint family after division in status and before division of property by metes and bounds or allocation or collection of outstandings is not the same in all the cases. Each case Will defend upon the intention and conduct of the members.
36. My answer to the question referred to the Full Bench is, Article 62 of the Limitation Act does not apply to the claim, of the plaintiff in the present case. Article 89 would apply if Dalayya or the 4th defendant acted as plaintiff's agent implied or express. If the facts do not warrant the finding of agency on the part of Dalayya or the 4th defendant, the proper article to apply to the facts of the case is 120 of the Limitation Act.
37. 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.