VELLAYAPPA MOOTHAN Vs. KRISHNA MOOTHAN

JUDGEMENT

(1.) The plaintiff is the appellant and the suit was a suit for partition. The genealogical tree is as follows:

(2.) There was a prior suit (O.S. No. 27 of 1906) brought by the 4th defendant which was decreed, but that decree was not executed, as, by a private engagement, his claims were satisfied. Hence the plaintiff sues for 1/3 share in the properties left (after so satisfying the 4th defendant s claim), the 1st defendant being entitled to another 1/3 share and defendants 2 and 3 being entitled to the remaining 1/3 share. This litigation was, however, complicated by the plaintiff claiming (among others) one further relief which arises out of the following facts :-The plaintiff, the 1st defendant, and the 2nd and 3rd defendants alone carried on a partnership trade for their separate benefit. This trade was carried on even during the lifetime of the plaintiff s father Ponnappa and of 2nd and 3rd defendants father Navutti. Ponnappa died about August 1906. For his funeral expenses, the partnership consisting of the plaintiff, the 1st defendant and the defendants 2 and 3 spent moneys belonging separately to the partnership. When the partnership was dissolved in 1911, the amount alleged on the above account to be due to the partnership by the joint family estate fell to the share of the plaintiff among the partners. The plaintiff claims in this suit to recover from the 1st defendant and the defendants 2 and 3, 2/3 of this amount which forms item 1 of the 1) schedule to the plaint, the remaining 1/3 being due to himself (as the assignee from the firm) by himself (as one of the three sharers of the joint family) The value of this relief, that is, for recovery of 2/3 of the debt due by the joint family to the partnership business is Rs. 567-12-7. The lower courts disallowed the plaintiff s claim for this relief as also for a minor relief valued at Its. 68-5-4 relating to items 2 to 4 of B 1 schedule. This second appeal relates to these two matters, but there is nothing in the appeal so far as it relates to items 2 to 4 of B 1 schedule. The second appeal is therefore at once dismissed so far as it relates to that matter.

(3.) The ground on which the lower courts disallowed the plaintiff s claim to recover 2/3 of the amounts spent out of the partnership funds for the necessities of the joint family is that the amount was spent so long ago as in 1906 and the claim for its recovery was barred by limitation, the suit having been brought in 1913.