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Judgment
437 paragraphs · 11,046 wordsWalter Salis Schwabe, Kt. C.J.
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.
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.
I agree that articles 109 and 127 have no application on the grounds stated in the order of reference.
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.
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 ILR (1887) Mad. 69 , Vaidyanatha Aiyar v. Aiyasami Aiyar ILR (1908) Mad. 191 , Ramalagu Servai Vs. Solai Servai and
Others, , 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 ILR (1896) Cal. p 309
Mahomed Wahib v. Mahomed Ameer I.L.R.(1903) Cal. 527, Knndan Lal v. Batisi Dhar ILR (1880) All. 170, Thakur Prasad v. Partab (1883)
.L.R. 6 All 442 , Masih-ud-din v. Imtiaz-un-nissa Bibi ILR (1914) All. 40 , Amina Bibi v. Najm-un-nissa Bibi I.L.R.(1915) All. 233, Abdul
Ghaffar v. Nur Jahan Begum ILR (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 ILR (1916) Mad. 291
Umardraz Aliz Khan v. Wilayat Ali Khan ILR (1897) All. 169 Parsoiam Rao Tanlia v. Radha Bai ILR (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 ILR (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.
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.
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.
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.
Ayling, J.
I agree
Coutts Trotter, J.
I also agree.
Kumaraswami Sastri, J.
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 Immovable 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 Immovable shown in
the schedules to the plaint. The reliefs which the plaintiff asks for are (1) a partition by metes and bounds of the Immovable 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 ?
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.
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 ILR (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 ILR (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.
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 ILR (1890) All. 282, Sultan Begam v. Debi Prasad ILR (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 ILR (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 ILR (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 ILR (1884) All. 25. The learned Judges on the authority of
Gum Doss Pyne v. Ram Narain Salioo ILR (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 ILR (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 immovables. In Robert Watson & Co., Ltd. v. Ram Chund Dutt ILR (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 ILR (1902)q Cal. 262 the suit was one for a partition of moveable and Immovable 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 ILR 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 ILR (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 ILR (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 Immovable 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.
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 ILR (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. Ramalagu Servai Vs. Solai Servai and Others, , 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 ILR (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 ILR (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 ILR (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, ILR 37 All. 318 which I have already referred to would apply. In Masih-ud-din v. Imtiaz-
un-nissa ILR (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.
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 ILR (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 ILR (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 ILR (1896) Cal. 309 , has already been referred to by me. As regards Tellis v. Saldanha ILR
(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 ILR (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.
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 ILR (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 Immovable 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 ILR (1920)45 Bom. 313 , was a case where the learned Judges applied Article
They dissented and in my view rightly from the decision in Banoo Tewary v. Doona Tewary ILR (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.
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.
Devadoss, J.
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 Immovable 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,
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.
I shall first examine the cases relied on by Mr. Narayanamurthi in support of his contention. In Arunachala v. Ramasamya ILR (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 ILR (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.
The decision in Vaidyanatha Aiyar v. Ayyasami Aiyar ILR (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 ILR 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.
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 ILR (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.
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 ILR 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 ILR (1883) Mad. 402, and Vaithinatha Aiyar v. Aiyasawmy Aiyar ILR (1908)
Mad 191 . In Banoo Tewary v. Doona Tewary ILR (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
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.
The facts of the case in Mahomed Wahib v. Mahomed Ameer ILR (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 ILR (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.
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 A