CHAKKA PURNACHANDRARAO Vs. KUNALA MALLIKHARJUNA RAO

JUDGEMENT

(1.) The 6th defendant in O. S. No. 95 of 1954 on the file of the Subordinate Judge, Tenali is the appellant in this appeal. The 1st respondent was the plaintiff in that suit. That suit was instituted for the recovery of a sum of Rs. 6737-3-0 from the defendants of whom there were seven. The 1st defendant was a firm of which it was stated that defendants 2 to 5 were partners. The 6th defendant was described as a member of the joint family consisting of himself and his elder brother the 5th defendant and if was stated that the 5th defendant joined the firm on behalf of the joint family. The 7th defendant was impleaded as the widow of the second defendants father who was also stated to be a partner of the firm.

(2.) We are only interested in the present appeal with the suit in so far as it related to the 6th defendant. The suit was based upon two promissory notes both dated 20/01/1952 -- one executed in favour of the plaintiff for a sum of Rs. 3,000.00by the 2nd defendant on behalf of the firm, and the other for a sum of Rs. 2000.00 also by the 2nd defendant for the firm of one Kunala Basavapunniah and transferred to the plaintiff for collection.The 6th defendant put the plaintiff to proof of the execution of the promissory notes and the passing of the consideration thereunder and contended that the 5th defendant was a member of the firm only in his personal capacity, that in fact there had been a division in status between him and the 5th defendant some time in 1951 and that pursuant to it (on the basis of a demand made by him on 1-8-1952 as soon as he became a major) there was an agreement to divide to 6-1-1953 which was followed by an actual division by metes and bounds evidenced by a registered partition deed dated 1-7-1953. He averred further that the 5th defendant ever since the partition was endeavouring to involve him in his own liabilities.The suit debts were entirely the personal debts of the 2nd defendant and they were therefore not enforceable against him. The trial court found that there was actually no division between the brothers at any time, that the 5th defendant became a partner of the 1st defendant-firm in his capacity as the manager of the joint family consisting of himself and the 6th defendant, that the debts evidenced by the suit promissory notes were incurred on behalf of the firm and that the 6th defendant was equally with the other members of the firm, liable therefor. The 6th defendant as above-stated has therefore come up in appeal to us.

(3.) Three contentions have been raised before us on behalf of the appellant: firstly that the 6th defendant is not at all liable for the debts because the 5th defendant did not as a matter of fact and further could not as a matter of law join the firm on behalf of the joint family; secondly that there could be no personal decree against the 6th defendant and a decree if any against him should be limited to his share in the properties belonging to the joint family; thirdly, that in any case, as the plaintiff is not entitled to a decree against any of the members of the firm so far as Ex. A-2 the promissory note for Rs. 2,000.00 is concerned, as the endorsement of that note in his favour does not operate to transfer the debt, upon which alone he could ask for decree against any person other than the maker.