ABDUL KHADAR Vs. NPRMLCJCHIDAMBARAM CHETTYAR

JUDGEMENT

(1.) Assuming the facts of the case to be as found by the Subordinate Judge of Tinnevelly, the Question raised for pur decision in this appeal is whether the defendants Nos. 3 to 6 in the action have been rightly held to be liable on the promissory note for Rs. 5,000(Exhibit A) executed in favour of the plaintiff by the defendants Nos. 1 and 2 on the 17 May 1902 under the following circumstances. Defendants Nos. 3 to 6 who were minors not only at the time when the money sought to be recovered was advanced by the plaintiff but also at the date of the institution of the suit, are the children of one Mowl Ally Tharagan, a Muhammadan, and the defendants Nos. 1 and 2 are Mowl Ally's brothers. The three brothers lived together and traded jointly until 1896 when Mowl Ally died. The first defendant, t who, soon after Mowl Ally's death, married his widow, the mother of defendants Nos. 3 to 6 earned on the old business jointly, with the second defendant on behalf, not only of themselves but of the defendants Nos. 3 to 6 who lived under the protection of the first defendant, the latter purporting to act as their guardian. The sum of money in question was borrowed for the purposes of this business which appears to have proved a financial failure in the hands of the first and the second defendants. The Subordinate Judge has passed a decree against all the defendants and against the minor defendants whose appeal we have to consider; the decree is to the effect that the plaintiff will recover from them Rs. 4,718-12-0, the amount found to be owing on the promissory note, to the extent of their interest in the assets and properties belonging to the business.

(2.) The Subordinate Judge does not tell us upon what principle of law he has based the liability of the appellants. If he has proceeded upon the law governing the joint family tenure of property among the Hindus as he would seem to have done, he has clearly fallen into an error. Such a system of homing property is not recognized by the Muhammadan Law, and the principle on which that system is founded cannot be applied to the determination of questions relating to the tenure and devolution of property among Muhammadans. No doubt, it would be otherwise in the case of a family which may be proved to have adopted by custom having the force of law the joint family mode of holding property; but no such custom is alleged in the present case. Under the Muhammadan Law a co-owner is presumed in the absence of an express contract to the contrary to hold his property in severalty whether that property represents a share in tangible, movable or immovable property, chose in action, or a trading concern.

(3.) The business in which Mowl Ally was interested must be treated as an ordinary partnership concern with all its incidents. On his death the partnership came to an end. On this point the Muhammadan Law is at one with the English Law. In the Heda a it is laid down (see Hamilton's Transaction, Bensley Edition, Volume II, page 328, or Grady's Edition, page 229.