A KN V VALLIAPPA CHETTIAR Vs. PKLSNACHIAPPA CHETTIAR

JUDGEMENT

(1.) THE order which is sought to be revised was an interlocutory order made by the Principal Subordinate Judge of Coimbatore in O.S. No. 270 of 1947 directing that a. commissioner should be appointed to take an inventory of the assets of the firm of which certain of the defendants, including the second defendant were partners, including the monies collected by defendants 2, 11 and 12. THE petitioner here is the second defendant in the suit. THE suit was brought by the plaintiffs, who are junior members of the family of which the first defendant is the managing member, for a declaration that the plaintiffs were entitled to a half share and the first defendant to the other half share in the partnership assets of the firm of which the first defendant, the second defendant and others were partners; for an account against the first defendant in respect of the assets and reali-sations of the family in the partnership; for payment to the plaintiffs of their half share; and for the appointment of a receiver with directions to him to insti-tute a suit for dissolution of the partnership for the purpose of getting in the assets. In making his order the learned Subordinate Judge referred to the fact that written statements had not been filed in the suit and observed that at that stage it would be premature to go into the question of the maintainability of the suit, as against the first defendant and the other partners. He directed the appointment of the commissioner to inspect the accounts and take an inventory because he accepted the contention of the plaintiffs that the defendants had been selling the properties. In my opinion the learned Subordinate Judge should not have made an order of this importance as against the petitioner and the other defendants affected unless he was satisfied that they were necessary parties to the suit. Even if no written statements had been filed the second defendant filed a counter-affidavit to the application in which he stated that he was not a proper party and that the plaintiffs had no right to be granted inspection of the partnership accounts.

(2.) A contract of partnership entered into by the manager of a joint Hindu family with strangers does not ipso facto make the other members of the family partners; and not being partners, the other members whether divided or undivided cannot institute any suit in respect of the partnership (e.g.) a suit for dissolution of partner-ship. This was decided in Gangayya v. Venkataramiah (1917) 34 M.L.J. 271 : I.L.R. 41 Mad. 454 (F.B.) by a Full Bench of this Court. In that case Kumaraswami Sastriar, J., pointed out what was the proper procedure to be adopted by a junior member of the family when the managing member refuses to take proceedings against his partners. The learned Judge observed: If he refuses or neglects to do so their remedy is to treat the interest of the coparcener in the firm as joint family assets and to sue for partition. In such a suit the assets can be realised by the appointment of a receiver who as representing the partner coparcener can by appropriate proceedings-get in what may be due to him. To such a suit it does not seem that the partners who are not members of the joint family are necessary parties at all. It is not necessary, however, to decide the question in this petition. There may be reasons, why they should be joined as parties which do not appear from the application for inspection and an inventory and the issue may be decided in the suit. As far as the order directing the appointment of the commissioner to inspect and take an inventory is concerned it seems to me clear that it was wrong and should not have been made. On principle, as laid down in Gangayya V/s. Venkataramiah (1917) 34 M.L.J. 371 : I.L.R. 41 Mad. 454 (F.B.), the other members of the co-parcenary, whether divided or undivided cannot interfere with the partner-ship entered into by the managing members of the family; and if they cannot interfere with the partnership and cannot maintain a suit for dissolution of the partnership it seems to me that it would be wrong in principle to allow them to ask the other partners for an inventory and inspection of the accounts merely because they suspect, or are dissatisfied with, the conduct of their managing member. Until either the other coparceners have or the receiver appointed in their application, has been given the right to maintain a suit against the other partners it does not seem to me that orders should be made against the other partners at the instance of the junior members which in effect will allow them to interfere with the affairs of the partnership. The petition is therefore allowed with costs.