PATUR VENKATASESHAYYA Vs. DUBAGUNTA SUBRAHMANYAM

JUDGEMENT

(1.) THE appellant before me wasthe plaintiff in the original suit which has been dismissed by the trial Court as well as on appeal. The suit was for recovery of a certain sum of money said to represent the plaintiff's share of the sale proceeds of a site in Mambalam purchased by defendant l and the father of the plaintiff in the name of defendant l only. The properties sold are two items, one sold in August 1938 and the other in February 1939. The suit was laid on 8 -12 -1944. The Courts be -low have applied Article 62, Limitation Act, to the suit claim and held it to be beyond time. They have also held that even if Article 120 applied the suit would be in time with reference to the plaintiff's share of the proceeds of sale of February 1939 only and not with reference to the share of the proceeds of sale of August 1938, and that the reliance placed by the plaintiff upon Exs. P -4 and P -4 (a) as saving the bar of limitation with reference to the sale proceeds of August 1938 was of no avail, for the reasons that the alleged acknowledgments were in the nature of statements addressed not to the plaintiff but to a third party, and that they were not sufficiently clear as acknowledgments of a subsisting liability within Section 19, Limitation Act.

(2.) IT is common ground that Article 120, Limitation Act, cannot apply to the case unless the applicability of Article 62 stands excluded. The choice is between these two articles only, and there is no other article of the Limitation Actfor me to consider. Mr. Umamaheswaram contends that the view of the Court below that Article 62, Limitation Act, applied to the case is erroneous. His point is that this is not the case of a suit for money had and received at all but for the enforcement of an equitable right which his client has to monies in the hands of a benamidar. If that is the true jural relation between the parties underlying the suit claim, says counsel, the case falls directly within the ruling of a Full Bench of this Court in Karna -murthi v. Ramanatha, I. L. R. 1946 Mad. 306 : A. I. R. 1946 Mad. 248 . The argument is sought to be controverted by the learned counsel for the respondent on the ground that the relationship between the parties here is purely and simply that of co -sharers, and that there is no fiduciary or quasi -fiduciary relationship on the part of the defendant towards the plaintiff such as would render Article 120, Limitation Act, applicable.

(3.) BUT then, it is contended by Mr. Narasaraju that the law as laid down in Hussainali v. Baquir Ali : AIR1946Mad116 , (Leach C. J. and Rajamannar J.) directly governs the present case. To reproduce the facts of that ease from the head -note which correctly expresses them ; 'The estate of a Mahomedan who died in 1917 included a casuarina plantation which was sold in 1921 in accordance with the wishes of the majority of the heirs. The person who sold the property acting with the consent of the majority of the heirs handed over the sale proceeds to the defendant with instructions to distribute the money among the heirs in accordance with their respective interests. The defendant paid some of them but he did not pay the plaintiff. The plaintiff who stated that he did not become aware until 1940 of the fact that the money was in the hands of the defendant, sued to recover his share in the sale proceeds.' On those facts, the Court held that the receipt of the sale proceeds by the defendant for the purpose of distribution among the heirs did not constitute an express trust and that Section 10, Limitation Act, was not applicable to the case. The Court further held, and that is the material part of the decision for the present case, that the suit was governed by Article 62 and not by Articles 89, 120 or 123, Limitation Act, and that the suit was barred by limitation. In such a case, it is laid down that the starting point of limitation is the date when the defendant received the money and that the date of the plaintiff's knowledge of it is immaterial. That was a case in which the defendant who received the proceeds of the sale from the heir who sold the property with instructions to pay over the proceeds to the co -heirs could well be regarded as a person who did so for the plaintiff's use as well as the use of the other heirs in the parta in which they were entitled to the proceeds. The defendant in the present case does not occupy such a position, and the proceeds that he holds in the capacity of a co -sharer, pure and simpliciter.