RAMANATHAN CHETTY Vs. YEGAPPA CHETTY

JUDGEMENT

(1.) This was a suit for dissolution of partnership. The partnership was entered into in 1902 or 1903 between plaintiff, the 1st defendant, the 5th defendant and one Subramaniam Chetty. The sole question we have to determine is whether this suit for dissolution, which was launched on the 12th March 1912, is or is not barred by limitation, the period of limitation in such cases being three years. Various points of the time were suggested when it was said that the plaintiff s cause of action arose, but in my opinion it is sufficient to confine our attention to the year 1908 when Subramaniam Chetty died. It is clear that if, on his death, the cause of action arose, the plaintiff s suit cannot be in time. Prima facie, one would suppose that if a person who was a partner in a firm died, the partnership would stand dissolved. But it is contended on behalf of the appellant that the ordinary rule of law is not applicable to cases where the partner who dies is a member of an undivided Hindu family and where it is to be supposed that he enters into the partnership in his capacity as a member of the undivided family to which he belongs, with the intention of creating an interest in the partnership business for his family as a whole. One may take the case of a partner who is the managing member of his family. Then on this doctrine, the family as a whole becomes a member of the partnership firm. In that case the death of the particular individual who happened to join the partnership and take part in its affairs is quite irrelevant, because the family still subsists as an entity. It is a family partnership and, therefore, there is no alteration of the person? composing the partnership. Such a doctrine would, of course, cause commercial inconvenience of the most extreme type. I do not think anybody would doubt that.

(2.) The question is whether it can be supported in law. Chief reliance was placed on a judgment of the Privy Council delivered by Lord Shaw reported as Joopoody Sarayya v. Pulavarti Lakshmanaswamy 19 Ind Cas. 513; 36 M.185; 11 A.L.J. 556; 18 C.L.J. 13; 15 Bom. L.R. 634; 14 M.L.T. 7; 17 C.W.N. 1006; (1913) M.W.N. 571; 25 M.L.J. 128 (P.C.) in the middle of page 192. It appears from the report that the matter was not touched upon either in the argument of the appellant or that of the respondent. The decision of the Privy Council was one which confirmed the judgment of this Court on the facts and held that a certain partnership which was the subject of that case had been dissolved in the year 1891 and did not, as the appellant contended, subsist after that date. The main fact which appears to have carried weight with their Lordships was that in 1891, final accounts of the partnership were taken in a way in which they were never taken before and that after that date no partnership accounts of profits and losses were made up at all, and they also considered the fact that there was almost simultaneously a division of the family property which rendered it very likely that there had been at the same time a dissolution of the partnership. The particular passage in the judgment relied upon by the appellant s Counsel in support of his contention is, different person? had arisen in law and with these it was open to Venkanna to say whether he should be allied in partnership or not." It is said that this sentence suggests that whenever there is a partition as between the members of a joint Hindu family, ipso facto there is a dissolution of any partnership in which the family is interested by reason of the fact that it removes from the partnership a large number of persons and it is argued that conversely it must be held that so long as the family is not divided as long the partnership subsists. Mr. Krishnaswami Iyer, for the respondents, suggested various ways of interpreting the sentence so as to give it a different meaning from that suggested by the appellant s Counsel. I think it is quite wrong to take a sentence of the judgment and to build upon it so startling a doctrine as that of the appellant s. 1 do not think that there can be anything less likely to commend itself to their Lordships of the Privy Council than such a course. The matter was not necessary to be decided nor had it been argued. I do not think a casual sentence ought to be made the foundation of a whole legal doctrine. I should add that the matter so far as this Court is concerned is settled, because in Sokkanadha Vannimundar v. Sokkanadha Vannimundar 28 M. 344 Mr. Justice Subramania Iyer and Mr. Justice Boddam definitely decided against this contention. I agree with their reasoning and I am not in the least prepared to say that this single sentence in the judgment of the Privy Council must be taken as impliedly overruling their considered judgment on this point. I am, therefore, of opinion that though doubtless when the manager of a joint Hindu family is a member of a trading partnership there may be many cases in which the family property may, in one way or other, be available to the creditors of the partnership, yet the family as such is not a trading partner, the partner being the person who entered into the agreement of partnership and conducted the partnership business as a partner. To my mind it is not only a misnomer but also a confusion of thought to argue that the joint family is a member of the partnership. The partner is the person who actually enters into an agreement with other persons. That being so and there being no evidence at all of any new partnership after the death of Subramaniam Chetti, because no business was done at all after the death of Subramania other than the taking of accounts, the partnership as I have already said terminated. I agree with the lower Court in holding that the suit is time-barred.

(3.) The appeal fails and is dismissed with costs. Srinivasa Iyengar, J.