NARAYANA PILLAI Vs. CHANDRASEKHARAN PILLAI

JUDGEMENT

(1.) The plaintiff and Kochunarayana Pillai deceased, the latter being represented in this suit by his widow, the deceased first defendant, by his children defendants 2 to 4, and by his brother the 5th defendant, were foremen of a chitty. Two of the subscribers obtained decrees in O. S. 54 of 1113 & O. S. 448 of 1118 for chitty money against the foremen; in execution of these decrees, the plaintiff had to pay the full amount thereof. The plaintiff has instituted the suit out of which this second appeal arises, for contribution from defendants 1 to 5. Defendants 3 & 5 contended, that Kochunarayana Pillai was but a name lender in the chitty, the sole conduct of which was undertaken by the plaintiff and that the suit is not maintainable being in respect of two specific items of partnership assets and not for a general settlement of partnership accounts. The contention that Kochunarayana Pillai was only a name lender was negatived by the two courts. While the first court held the suit to be not maintainable, the Subordinate Judge in appeal held otherwise and gave a decree to the plaintiff. The 5th defendant has accordingly preferred this second appeal.

(2.) The only point requiring consideration in second appeal is whether the suit as framed is maintainable or not. The Trial Court relied on Mathan Mathai v. Mathan Mathai (33 TLJ 637) for holding the suit to be not maintainable, but as the Subordinate Judge has held, the partnership was dissolved upon the death of Kochunarayana Pillai which took place in the year 1117. Moreover, this is a case in which decrees have been obtained against the joint foremen, the plaintiff and Kochunarayana Pillai, and the decree amounts realised from the former exclusively. In such cases, the law is as laid down by the majority of the Judges in Chockalingam Chettiar v. Meyappa Chettiar ( AIR 1939 Mad. 228 at p. 242). Pandrang Row, J. to whom the case was referred on a difference of opinion between the other Judges, observed thus: