SAMBASIVA AIYAR Vs. NATESA AIYAR

JUDGEMENT

(1.) These arise out of O.S. No. 46 of 1929 on the file of the Subordinate Judge of Tanjore. The Revision Petition is for the purpose of revising the order passed by the Additional Subordinate Judge dismissing the application of the plaintiff for amendment of his plaint and the appeal is from the decree dismissing the suit itself with costs on the ground that it was not maintainable. The suit was by one Sambasiva Aiyar who claimed one-third of the share of the first defendant in a certain firm described as the K.A.Rm.N. Firm. The share in the firm originally belonged to an undivided Hindu family. The plaintiff is the son of one Krishna Aiyar. Defendants 2 and 3 are the grandsons of one Sundarappier by his deceased son, while the first defendant is one Natesa Aiyar. These three persons Krishna Aiyar, Natesa Aiyar and Sundarappier were brothers. The fourth defendant is the other partner in the firm of K.A.Rm.N. which carried on a money lending business and the plaintiff's case was that this share in the money lending business belonged to the family and that this particular asset of the family was not divided at the time of the partition of the remaining family properties which took place in 1926. In paragraph 7 of the plaint, it was clearly stated that the Subordinate Judge in the previous suit for partition, while affirming the award of the arbitrator, Rao Bahadur A. Krishnaswami Aiyar, retired Assistant Commissioner of Police, had declared that: The rights of the parties in the K.A.Rm.N. Firm are left open for future settlement or suit as the case may be.

(2.) It is clear therefore that the subject-matter of the suit was the family share in the business of which the plaintiff claimed one-third. It was also alleged in the plaint that the partnership, that is, the money lending firm in question had been dissolved sometime in January, 1928, that is, before the suit, and that after this dissolution some secret arrangement was arrived at between the first defendant and the fourth defendant, the partners, the details of which were not known to the plaintiff. The dissolution alleged in the plaint, was denied by the contesting defendants in their written statements which were filed in December, 1929 and January, 1930. In September, 1931, the plaintiff applied to amend the plaint so as to enable him to obtain an alternative relief for partition of the assets of the family in the partnership in case it was found by the Court that there was no dissolution of the partnership and for appointing a Receiver to realise the family assets and to pay the one-third share of the plaintiff therein.

(3.) The only point raised in this appeal by the plaintiff is that the dismissal of the suit by the lower Court on the ground that it was not maintainable without taking evidence or recording any finding on the question of the dissolution of the partnership alleged in the plaint is wrong. We are of opinion that this contention of the appellant is right. The present case is more or less analogous to that of Thazhath Soopi V/s. Abdulla in which the plaintiff was a junior member of a marumakathayam tavazhi; here the plaintiff was a member of a Hindu family whose share in the partnership assets remains undivided. We see no real distinction in principle between the present case and that of Thazhath Soopi V/s. Abdulla . The principle is that when family assets are in the hands of strangers any member of the family who is entitled to a share in the assets has a right to recover his share of the assets, and if it is necessary for the purpose of ascertaining such share of the assets to take an account, such account has to be taken by the Court at the instance of the plaintiff. The case would be different no doubt if there was no dissolution before the suit as was held in Gangayya V/s. Venkataramiah (1917) 34 M.L.J. 271 : I.L.R. 41 Mad. 454 (F.B.). The learned Judge however did not decide the question whether there was a dissolution or not before suit. That was a question of fact and without any decision thereof it was not open to the Court below to dismiss the suit on the ground that it was unsustainable even if the plaint allegations were assumed to be true.