1. This is an appeal against the decree of the Additional Subordinate Judge of Ramnad at Madura decreeing a portion of 'the plaintiff's claim. The only question before us is one of limitation. The learned Subordinate Judge has applied Article 89, Lim. Act., and has given a decree in favour of the plaintiff directing an account; to be taken and the profits of the plaintiff ascertained for his share of the income from the plaint property for three years prior to the date of Ex. A. He finds that defendants 1 to 4 were the agents of the plaintiff and his brother, defendant 5 and that they are accountable for the rents and profits received from the plaint property. The finding as to agency is supported by the evidence on record and we cannot say that that finding is wrong.
2. Agreeing that that finding is correct and the proper article to be applied is Article 89, it is difficult to see how the learned Judge could give a decree only for the share of the income of the property for three years prior to 1920. He finds that there was no demand and refusal and if that be so the agents are liable to account for all the amounts received on behalf of the principal.
3. The plaintiff relied upon Article 120,, Lim. Act. and not upon Article 89, If there was no contract of the agency between the parties the proper article to apply would be Article 120: vide Yerukola v. Yerukola A.I.R. 1922 Mad. 150. In such a case limitation begins to run only from the date of demand and refusal or the date of setting up a hostile title to the knowledge of the plaintiffs. In this case there is no evidence that the defendants set up a title hostile to the plaintiff. No doubt the plaintiff and defendants 1 to 4 quarrelled over the collection of the income of the property but that would not amount to an assertion of a hostile title on the part of defendants 1 to 4 against the plaintiff. In any view of the case whether Article 89 applies on the ground of agency or Article 120 in the absence of a specific contract of agency we think that the learned Judge's judgment is wrong inasmuch as it gives relief to the plaintiff only for three years prior to 1920. We think the plaintiff is entitled to a decree for an account for the period mentioned in the plaint.
4. As the conduct of the plaintiff has been obstructive throughout, we think he ought not to have the costs of this appeal. We, therefore allow the appeal but in the circumstances without costs.