(THUMBALAM GOOTY) THIMMAYYA Vs. KONAKONDLA VITTOBARAO

JUDGEMENT

(1.) The plaintiff brought this suit to recover a sum of Rs. 810 alleged to be due to him by two brothers defendants 1 and 2. Defendant 2 became an insolvent and defendant 3, the Official Receiver, was added. Defendants-2 and 3 remained ex parte in the suit. The plaintiff's case was that defendants-1 and 2 were members of an undivided Hindu family, that there was a joint-family shop at Adoni which both of them managed, that there was an understanding with him that both of them, would be responsible for money owing; by either of them, and that he accordingly opened a joint account in their names.

(2.) The suit was brought upon three items: first a sum of Rs. 1,000 borrowed on 5th December 1920 for which both the defendants executed a pro-note for Rs. 600 and for the remaining Rs. 400 gold jewels were pledged; and the interest in both the cases was to be 14 annas-per cent per mensem. On 27 July 1921 a further sum of Rs. 500 was borrowed by defendant 2 at one rupee per cent per mensem. On 30 October 1922; Rs. 15 was borrowed by defendant 1. Repayment of Rs. 500 was made by defendant 2, on 28 April 1921 and the- pledged jewels were also sold to the-plaintiff for the sum of Rs. 498-2-9. These sums were credited in the plaintiff's account and he sued for the balance-together with the charge of registering notice, As. 3-6 and Rs. 12-10-0 being charges incurred by the plaintiff in demanding his debt on 27 November 1923. Defendant 1, who alone contested the suit denied that the family was. joint. He alleged that there had been, a division in 1908 of the movable properties. Immovable properties were not-divided till 1921, when a registered partition deed, Ex. M, dated 7 December 1921, was executed. He denied that there was a joint shop and said he knew nothing about the pledge of jewels. He-alleged that the promissory note for Rs. 600 which he had jointly executed with defendant 2 had been fully discharged. The following issues were framed: 1. Whether defendants 1 and 2 divided their movables in 1908 and their immovables in December 1921 and whether defendants 1 and 2 are divided brothers? Prom what time the divided status should be allowed? 2. Is that matter of division considered fraudulent in O.S. No. 314 of 1922 res judicata in this suit? 3. Did defendants 1 and 2 carry on a joint business in Adoni and whether the items of loans are true and binding on defendants? 4. Whether the promissory note debt was fully discharged? 5. Was not defendant 1 declared insolvent, and whether the plaintiff obtained permission of the District Court to sue defendants? 6. To what relief?

(3.) The plaintiff contended that the alleged division effected under Ex. M was in fraud of the creditors. The trial Court found that there was no division in status in 1908 as set up by defendant 1. It disbelieved defendant 1 and gave a decree to the plaintiff for the amount claimed except a sum of Rs. 12-8-0 claimed as charges for sending a man to demand payment. On appeal the learned District Judge accepted the finding that only Rs. 500 was paid towards the promissory note and that the remainder was not discharged. He held that defendant 1 was not liable for the loan of Rs. 500 or for the Rs. 15 borrowed by his brother, and he further reduced the remaining liability on the promissory note which defendant 1 and his brother jointly executed by allowing him to set against this the surplus of Rs. 126-5-8 realized by the sale of the jewels. Except with regard to the item Rs. 12-8-0 the plaintiff prefers the second appeal. I may state at once that there is no clear finding of the lower appellate Court as to the question whether defendants 1 and 2 were divided in status on the dates the first two loans sued upon were granted, and whether as regards the third loan of Rs. 15 incurred after the execution of the partition deed, Ex. M, this partition deed was in fraud of creditors. The learned advocate for the respondent however undertook to support the judgment of the lower appellate Court even taking the view that neither of the alleged partitions was effected; and as on the argument I consider that he has made out his plea, I find it unnecessary to remand the suit for a finding on the question whether there was a division either in 1908 or 1921 as it would probably have been necessary to do otherwise.