The burden of proof lies on the defendant to show that the plaintiff had clear and definite knowledge of the fraud in cases involving fraudulent misappropriation and concealment of facts.

JUDGMENT

Asutosh Mookerjee, J. - This is an appeal under Clause 15 of the Letters Patent from the judgment of tyro learned Judges of this Court who were equally divided in opinion in an appeal from an appellate decree preferred in a suit for recovery of money. The Court Of first instance decreed the suit. The District Judge reversed that decision and dismissed the suit. On second appeal to this court, Mr. Justine Tennon was of opinion that the decree of the Subordinate Judge should, be restored. Mr. Justice Newbould held, on the other hand, that the decree of the District Judge should be maintained. The result was that, under paragraph 1 of subsection (2) of Section 98 of the civil Procedure Code, the degree of the District Judge stood can-firmed.

2. The facts material for the decision of the question of law raised before us lie in a narrow Compass. One Jatindra Mohan Dutta died, leaving as his heir a Childless widow, Pranab Kumari Dasi. The widow sold her ornaments through her maternal untie, Pramatha Nath Ghose and made over the sale proceeds to him to be deposited on her behalf in the Hazaribagh Bank. The deposit was made on the 18th December 1909 and the account Was opened in the books of the Bank in the name of Pramatha Nath Ghose on behalf of Srimati Pranab Kumari Dasi. Pramatha Nath Ghose, Who is the defendant in this litigation, war, consequently, the only, person who could operate on the astound, Pranab Kumari Dasi died on the 21st November 1910, and a sum of about Ks. 800, stood to the credit of the account on that date. On the 22nd December 1910 Pramatha Nath Ghose Withdrew the money from,(he Bank. The plaintiff, who is the brother of Jotindra Mohan Dutta, the diseased husband of the lady, is bar admitted heir-at law. He commenced the present suit on the 6th October 1915 on the allegation that the money belonged to his sister-in-law, that it had been misappropriated by the defendant, and that on the 25th March 1915, he ascertained from the Bank the facts of the transaction. The defendant repudiated the claim as entirely unbounded, and denied that the money deposited in the Bank was the property of his niece. He farther contended that the suit was barred by limitation. The Subordinate Judge held that the money belonged to Pracab Kumari Dasi and had been misappropriated by the defendant. The Subordinate Judge further held that the suit was governed by Art. 120 of the Schedule to the Limitation A at which prescribes a period of sis, years from the date when the right to sue act rues He adopted the view that the residuary Article applied, because Art. 62 invoked by the plaintiff was inapplicable. The Subordinate Judge also expressed the opinion that even if Art. 62 had been applicable, the plaintiff would have been entitled to the benefit of Section 18 by reason of the fraud committed by the defendant. On appeal, the District Judge held, in conference with the Primary Court, that the claim was well founded on the merits. On the Question of limitation, however, he held that as the plaintiff had knowledge of the deposit and the withdrawal early in 1912, the suit was barred under Art. 62. In this Court, Mr. Justice Teunon and Mr. Justus Newbould have disagreed on the point, which has formed the only subject of controverry before us.

3. We are of opinion that the suit falls within the scope of Art. 62, which provides that every suit for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiffs use must be instituted within three years from the date when the money is received. The form of suit indicated by this Art. is applicable where the defendant, has received money, which, in justice and equity, belongs to the plaintiff, under such circumstances as in law renders the receipt of it a receipt by the defendant to the use of the plaintiff. In the words of Sir Lawrenoe Jenkins, the Act. most nearly approaches the formula of mosey had and received by the defendant for the plaintiff's u