GABU NAROBA RAJPUT Vs. ZIPRU RAMSING RAJPUT

JUDGEMENT

(1.) The plaintiff sued for an account and for recovery of his one-third share of the proceeds of certain securities, alleging that the plaintiff, Ramsing, father of the defendant, and Ravjee were three brothers living jointly; that they divided in June 1898 the immoveable estate, but that they kept joint certain cash securities as they were all 1 in the name of Ramsing who was the elder brother and manager of the joint, estate; that at the time of partition it was orally agreed" that Ramsing should realize the securities and divide the proceeds among the three brothers; that Ramsing did not divide the proceeds nor give any account; that Ramsing died 011 6th January 1914; that after Ramsing s death the plaintiff asked the defendant for an account but he refused to give it.

(2.) The suit has been dismissed in both Courts. The learned Judges held that the claim was barred by limitation, it being governed by Article 62 of the Indian Limitation Act. Exhibit 62 is a document which evidences the arrangement made by the brothers with regard to these securities. It was written therein that the three brothers had joint and equal ownership over them, and that these securities had to be recovered. Therefore it must follow that the securities, meaning thereby the debts due to the family by outsiders, remained joint family property, or at the least they remained family property undivided after j the separation, in which case the members of the family would be with regard to those securities tenants-in- common. It cannot be, therefore, in my opinion, that when Ramsing collected these debts on behalf of himself and his brothers, the money so got in would be considered as money had and received for his brothers so that time would begin to run in his favour at once. I should prefer to think that the money remained as owned by the three brothers as tenants in-common, and that time would not begin to run against the other brothers until a demand was made and refused, or Ramsing showed his intention to hold the fund/ which he had collected against his brothers. However that may be, in any case he must be considered as an agent for his brothers, and in that case Article 89 would apply, and time would not begin to run until the account was demanded and refused, or if no demand was made, when the agency was terminated.

(3.) The lower Court has relied on the decision in Banoo Tewary v. Doona Tewary (1896) I.L.R. 24 Cal. 309. 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 Article 89. In a case of this description, the other sharers would not be expected to know when the debts were recovered by the member of the family entrusted with their recovery, and it would seem to be 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 In my opinion, therefore, the decision of the lower appellate Court was wrong, and there should be a decree in favour of the plaintiff for an inquiry into the amount of debts recovered by Ramsing. The appellant will be entitled to his costs up to date. Fawcett, J.