A N CHOCKALINGAM CHETTIAR Vs. KMSCHINNAYYA SERVAI

JUDGEMENT

(1.) This appeal arises out of a suit by Chinnayya Servai the first respondent to recover from, th.e appellant and ten other persons who were impleaded as defendants, the principal and interest clue in respect of a deposit made with a Nattukottai firm which carried on business at a place called Maubin in Burma. The deposit consisted of two sums placed in deposit on two different occasions, sometime after 1927. The vilasam of the firm in which the deposit was made was known as M.P.N. The firm was started in 1922 or 1923, by three partners, namely, Narayanan Chetty, Kadiresan Chetty and Chockalingam Chetty. Narayanan Chetty was the father of defendants 1 to 5; Kadiresan was the sixth defendant and the father of defendants 7 to 9, and Chockalingam was the tenth defendant and the father of defendant No. 11. At the date of the deposit Narayanan Chetty had died, but the business was being continued in fact. In the business so continued there is no doubt that Kadiresan and Chockalingam were partners and so far as they and their sons are concerned, the Subordinate Judge has passed a decree, from which no appeal has been preferred. The controversy raised in the appeal relates to the liability of Narayanan Chetty's sons by his junior wife one of whom, namely, the fourth defendant is the appellant in this appeal.

(2.) Narayanan Chetty died on 2nd October, 1927. His first wife was Unnamulai by whom he has left three sons, defendants 1 to 3. Even while she was alive he married a second wife Alamelu by whom he had two minor sons, namely, the appellant now a major and the fifth respondent still a minor. Each of these two groups has in its defence in the Court below attempted to shift the liability on to the other. According to the plaintiff, the sons by both the wives formed with their father Narayanan Chetty members of a joint Hindu family, and even after his death they continued joint with this difference only, that instead of the father, the eldest of the sons, namely, the first defendant became the manager of the family. Defendants 1 to 3 were majors at the date of the deposit and were accordingly sought to be made personally liable as partners but as against defendants 4 and 5 who were at that time both minors, the plaintiff only prayed for a decree against their interest in the firm and in the joint family assets. There can be no doubt that the plaintiff rested his case throughout in the lower Court on the allegation that defendants 1 to 5 were always joint in interest, a position which is quite untenable. These defendants belonging to both the groups agreed in their defence to this extent, namely, that they ceased to be joint from and after 1908 as the family became divided in status by the compromise decree in O.S. No. 28 of 1907 on the file of the Sub-Court, Madura, by which defendants 1 to 3 who were the children of his first wife became separated from Narayanan Chetty and his children by the second wife, though as between the members of each group inter se the joint status thereafter continued to subsist. Their versions however materially differed as to who in fact carried on the business after Narayanan's death, and on whose behalf it was so carried on. The position taken up by defendants 1 to 3 was that they were at no time partners of the M. P. N. business, either during the lifetime of the father or even after his death. The first defendant's undoubted association in the business was explained as being due to his having merely supervised it at the request of his stepmother. The fourth defendant asserted on the contrary that Narayanan Chetty during his life represented himself as well as defendants 1 to 3 in the partnership, that he held his interest in it, half for himself and half for defendants 1 to 3; that the partnership being one in which there were strangers associated, became necessarily dissolved on his death, and could not therefore be continued by the first defendant or by any other and that if it is found to have been in fact continued, neither he nor his younger uterine brother nor their property in the firm or outside, could be held liable as they were neither partners in any sense nor admitted to the benefits of a partnership.

(3.) The learned Sub-Judge has accepted the case of the defendants to this extent, namely, that the compromise decree in O.S. No. 28 of 1907 created a division in status between the two groups of Narayanan Chettiar's family the children by his senior wife remaining joint in one group, while Narayanan Chetty himself with his children by the second wife formed the other group which continued in itself joint down to his death. In spite of the criticisms of the respondent's Advocate, we are not disposed to differ from the Subordinate Judge's finding on this point, as there is sufficient material in this case to support it, and the probabilities also point to the same conclusion. The division is in accordance with the patni bhaga rule of custom recognised in Palaniappa Chettiar V/s. Alagan Chetti (1921) L.R. 48 I.A. 539 : I.L.R. 44 Mad. 740 (P.C.). The notional definition of share according to the custom has been followed in this case by an actual partition evidenced by the compromise, Exhibit I, which we have no reason to doubt was anything but a genuine arrangement. We think we shall not be justified in disturbing a finding duly arrived at in this case, on the ground that in another similar appeal which arose out of a suit by another creditor against the same family this Court has expressed a different opinion on what is but a question of fact. We feel bound to examine the facts and evidence for ourselves and come to our own independent conclusion on the matter. It would indeed be a grave error, were we to take any other course.