Walter Salis Schwabe, Kt. C.J.

1. 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.

2. 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.

3. I agree that articles 109 and 127 have no application on the grounds stated in the order of reference.

4. Article 62 relates to suits for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiffs 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 (1903) I.L.R. 32 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 Exch. 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 inappropr