(Neelam) Sitaramaswami vs (Thummala) Mahalakshmamma and Another

Wadsworth, J.—The only question for determination in this second appeal is one of limitation. The appellant and the defendant''s - husband

were two of four brothers. They were divided. Their father died and left a will bequeathing his share to the plaintiff. This will was disputed and, in

order to avoid loss to the family, there was a mediation which resulted in an agreement between the plaintiff and the defendant''s husband, whereby

the latter, who was in possession of the property, should continue to collect and retain rents and other income and ultimately pay those amounts to

the plaintiff if the will was held to be genuine by the Court, or, if it was held not to be genuine, divide the money into four equal ''shares to be paid

to the four brothers. It is also alleged in the plaint that this agreement provided that the defendant''s husband or his heirs should render an account

of credit and debit with interest. Both the lower Courts have found these allegations in the plaint to be true. They have also found that when the

defendant''s husband died on 24th November 1917, there was an informal arrangement between the plaintiff and the defendant that the latter

should continue to collect the income from the property in dispute and hold it pending the result of the litigation. The suit ended on 26th August

1920, in a decree in favour of the plaintiff. This decree was confirmed in appeal on 12th September 1922. The present suit was filed on 24th April

1924. Both the lower Courts have held that the plaintiff is entitled as against the defendant to an account of her collections from the date of her

husband''s death, that is to say 24th November 1917, but not for her husband''s collections prior to his death. Against this decree there is an

appeal and a memorandum of cross-objections which contends that the accounting should be confined to three years prior to suit.

Now it seems to me that there was no properly constituted trust such as would bring in Section 10, Lim. Act. At the same time I am of opinion

that there was no proper contract of agency such as would bring in Article 89. It must be remembered that the beneficiaries under this arrangement

were not definitely known when the arrangement was made. The money might have bean payable either to the plaintiff alone, or to the plaintiff, the

defendant''s husband, and the other two brothers. In order that the contract; might be deemed a simple contract of agency, all the principals, i.e.,

all the three brothers of defendant''s husband, ought to have been parties. Actually though apparently the other two brothers were aware of the

arrangement, it is not alleged, nor is there any proof, that there was any regular contract between all the four brothers that the defendant''s husband

and after his death the defendant should act as the agent of the other three. It seems to me, .therefore, that the mere -accident of the plaintiff being

the successful party in the suit on the will would not transform the agreement between the plaintiff and the defendant, which was not in its inception

an agreement of agency, into such an agreement. I am of opinion that the agreement between the plaintiff and the defendant''s husband was that he

should be constituted a receiver or administrator to collect the income of the property which was in suit. Had the appointment of the defendant''s

husband been made by Court, instead of at the instance of arbitrators, there could have been no possible doubt as to its nature. It seems to me

clear that the period of limitation to be applied to the present suit is that prescribed in the residuary Article 120, which has been held to apply to

suits to establish an equitable right to an account and to suits by co-owners and quasi trustees, when the suit does not fall u/s 10, or Article 89. If

Article 120 applies, the suit must be brought within six years of the date when the right to sue accrues. In this case the right to sue did not accrue

until there was a decision as to the validity of the will and I am of opinion that the date of the decree of the first Court in the will suit is the proper

starting point for limitation. The suit having been filed within six years of that date, the plaintiff is entitled to an account from the defendant not only

of the moneys collected by her since the death of her husband, but also of any moneys received by her out of the collections made by her husband,

before his death. The appeal is therefore allowed with costs throughout and the decree granted by the trial Court will be modified accordingly.

The memorandum of cross-objections is dismissed with costs.

Leave to appeal granted.