A N RAMASAMI AIYER Vs. VEERAPPA CHETTI

JUDGEMENT

(1.) The 1 plaintiff in these appeals brought O.S. No. 8 of 1900 against Subbaraya Chetti, Siva Chidambara Chetti and Narayana Row for dissolution of partnership, for winding up of the partnership accounts and for the recovery from Subbaraya Chetti of a certain sum of money. It was alleged that under the partnership agreement Subbaraya Chetti was the managing partner, that a sum of money was given to him by the plaintiff and Narayana Row's father and that he refused to furnish accounts. The cause of action was stated to have arisen in September 1899 when the partnership trade was stopped. A decree was passed dissolving the partnership and directing Subbaraya Chetti to pay the 1 appellant Rs. 2,976-8-2 3/4 with interest. Subbaraya Chetti having died before execution, the 1 appellant sought to execute the decree under Section 234, Civil Procedure Code, against Rathina Ammal, the widow, and Veerappa Chetti, the undivided brother of Subbaraya Chetti. The District Judge passed a certain order against which there was an appeal to this Court. This Court held that the decree against Subbaraya Chetti was purely a decree in personam against him, and further remarked that there was nothing on the record to show that Subbaraya Chetty was sued in his representative capacity as manager of the family or that the trade in respect of which the suit was brought was one that was necessarily a family business and not Subbaraya Chetti's individual trade. With these views I entirely agree. The decree was therefore not allowed to be executed against Veerappa Chetti by attaching and bringing to sale joint family property which had come to him by survivorship, whether it was ordinary family property or property acquired for the family by the partnership trade. As regards the separate property of Subbaraya Chetti, it was held that execution under Section 234, C.P.C., should proceed only against his widow who was his legal representative and the name of Veerappa Chetti was struck off the record. The 1 appellant and his son, the 2nd appellant, then filed O.S. Nos. 13 and 14 of 1903 and, these suits having been dismissed, presented the present appeals.

(2.) The plaint in O.S. No. 13 which was against Veerappa Chetti, Veerappa Chetti's son and Rathina Ammal as 1st, 2nd and 3 defendants, set out that the present 1 appellant acting as manager of his family, Subbaraya Chetti acting as manager of his family, and others entered into a partnership; that disputes having arisen, O.S. No. 8 of 1900, above referred to, was brought; that Subbaraya Chetti had carried on the partnership trade for the benefit of the joint family then consisting of himself and Veerappa Chetti and that, as the family had enjoyed the benefit of the trade, the 1 and 2nd defendants were bound to pay to the plaintiffs the amount due to them by Subbaraya Chetti that Subbaraya Chetti represented the joint family in O.S. No. 8 of 1900; that the finding in O.S. No. 8 of 1900, that Rs. 2,976-8-2 3/4 was due to the plaintiffs by Subbaraya Chetti and that the latter was liable to pay that amount with interest at 12 per cent per annum from the 26 March 1900, the date of the plaint in O.S. No. 8 of 1900, was binding on the 1 and 2nd defendants, as also the order of the Court dissolving the partnership as from the 16 December 1901, the date of the decree; that the 1 and 2nd defendants were bound to pay the amount above mentioned, and that the" 3rd defendant was also liable to pay that amount because she was in possession of property belonging to the joint family of a larger value than that amount; and that the cause of action arose on the 16 December 1901, the date of the decree or in July 1902, by which date is apparently meant the date of Subbaraya Chetti's death. The prayer was that the defendants do pay the plaintiffs Rs. 4, 186-8-2 3/4, made up of Rs. 2,976-8-2 with interest as abovementioned.

(3.) In O.S. No. 14, in addition to the three persons impleaded as defendants in O.S. No. 13, there were four other defendants. Of these four only two, the 5 and 6 defendants, need be considered, they being the persons who as partners were made defendants with Subbaraya Chetti in O.S. No. 8 of 1900. The plaint in O.S. No. 14 made the same main allegations as were made in the plaint in O.S. No. 13, mentioned the institution of O.S. No. 13, and prayed that if the Court should for any reason hold in O.S. No. 13 that the 1 and 2nd defendants were not bound by the findings in O.S. No. 8 of 1900, and that the plaintiffs were not in O.S. No. 13 entitled to recover the amount due to them, the partnership might be wound up, and the accounts of the partnership taken, and that the plaintiffs might be paid the amount found due to them by such defendants as were found liable. The cause of action was stated to have arisen on the same dates as in O.S. No. 13.