CHOCKALINGAM CHETTIAR Vs. MUTHUKARUPPAN CHETTIAR

JUDGEMENT

(1.) This appeal raises two questions. One is whether the minor members of a trading family can be held liable to the extent of their interests in the family properties for debts incurred in a business carried on by the father in partnership with strangers. The other question is whether a decree passed by consent in a partition suit puts an end to the joint status, notwithstanding that the terms of the decree are never carried into effect and the members of the family continue to live together and regard themselves, as still being joint.

(2.) The appellant is the son of one Narayanan, a Nattukottai Chettiar, who died in 1927. Narayanan had two wives Unna-mulai and Alamelu. By Unnamulai he had three sons, A.M. A.N. Annamalai Chettiar (the third respondent), A.M.A.N. Natesan alias Chidambaram Chettiar (the fifth respondent), and A.M.A.N. Sambandam Chettiar (the sixth respondent). By Alamelu he had four sons. The eldest, Annamalai, predeceased his father and the youngest Yoganandam was given in adoption. The other two sons are the appellant, and A.M.A.N. Subbayya Chettiar (the seventh respondent). Many years ago Narayanan founded a money-lending business with his brother at Kuala Lampur in the Federated Malay States. Afterwards they separated and on the partition of the family properties the Kuala Lampur business fell to the share of Narayanan, who carried it on until his death for the benefit of himself and his sons. This business was continued after his death and it is not disputed that it must be regarded as a family business. In 1907 there was a disagreement between the two wives of Narayanan with regard to their Stridhanam moneys and it would appear that Unnamulai wished to make certain that her sons would not be prejudiced so far as their shares, in the family properties were concerned as the result of other sons being born to Alamelu. At this time the only son born to Alamelu was Annamalai. As the result of the differences between the two wives a suit for partition was filed in the Court of the Subordinate Judge, Madura East, by the sons of Unnamulai, who were represented by their maternal grandfather Chidambaram Chettiar. This suit was numbered as O.S. No. 28 of 1907. The defendants were Narayanan, Unnamulai, Unnamulai's daughter Unnamulai, Alamelu's son Annamalai and Alamelu. There does not appear to be any doubt that this suit was of a friendly nature. Narayanan, his wives and children were all living together at the time and continued to live together until his death. In fact the sons have always lived in the family house. On the 30 September, 1908, a decree was passed by consent in the partition suit. It declared inter alia that the sons of the first wife were to have a half share of the family properties, and the sons of the second wife, including the sons to be born thereafter, the other half. The decree did not, however, result in the division of the family properties and can only be regarded as embodying arrangements to be carried into effect, if and when a partition did in fact take place. In the course of his evidence the 3 respondent stated that the movable properties were divided, but as it is clear that he was untruthful on other points we are not prepared to attach any weight to his testimony, and it was not accepted by the learned trial Judge. I will return to this compromise decree later.

(3.) After the partition suit had been settled Narayanan entered into a partnership with the second and fourth respondents for the purpose of carrying on a money- lending business at Maubin in Burma under the vilasam of M.P.N. The capital contributed by Narayanan to this partnership must be deemed to have come from the common fund of the family. What the amount of the capital is does not appear. The books have not been produced and the appellant must share the responsibility for this. It is common ground that the business was a very successful one for many years and that Narayanan took part in its management during his life. On his death it was not wound up, but continued exactly as before, except that the 3 respondent as the eldest son took his father's place in the partnership. It was not until the rebellion broke out in Burma in 1930 that the business ceased to prosper.