SOMASUNDARAM CHETTIAR Vs. KANOO CHETTIAR (DIED)

JUDGEMENT

(1.) Respondent 1 in this appeal is a creditor of a family firm consisting of the appellant, his uncle and his uncle's son, and it is alleged in his insolvency petition that this family firm owed a debt to respondent 1, that they ware unable to pay their debts, that one member of the firm had absconded and that the place of business had been closed. Respondent 1 had already filed a suit for the recovery of his debt and there were other creditors who filed suits shortly after this insolvency petition was filed. The District Judge states that the parties agreed that they would be bound by the findings come to in these suits. The real question at issue in these suits was whether the appellant and his cousin were liable for the debts incurred by the managing member of the firm. The Subordinate Judge found that the firm was a family firm and was conducted by all the members and the debts were binding not only on the managing member but also on the joint family consisting of the appellant, his uncle and cousin. Notwithstanding this finding he only gave a decree against the uncle personally and against the family properties of the other two members of the firm This was apparently because in nearly all the suits this was the sole relief asked for by the respective plaintiffs. When, however, members of a family trade together and are partners in a joint firm they are all personally liable for the debts of that firm, and this can hardly be disputed in view of the pronouncements of this Court. The case relied on by the appellant is the Official Assignee of Madras V/s. Palaniappa Chetty [1918] 41 Mad. 824, but that case was closely concerned with the liability of a minor member of a joint trading family for debts incurred by the firm before he attained majority. Six Judges took part in the proceedings of this case and all of them were of opinion that in the case of a major member of such a firm there was personal liability but it was held that a minor member was not liable for debts incurred during his minority. The argument therefore that the appellant cannot be declared an insolvent because under the decrees which have now been obtained he has not been made personally liable cannot avail him, because at the time this petition was filed there was a debt owing by the firm for which he as an adult member was personally liable. There is also an unreported decision of this Court-C.M.A. 47 of 1916-in which it was held that in order to make a person liable to be declared an insolvent the debt need not be one for which he was liable to arrest. It is sufficient if he owns a debt for which he is personally liable. This, however, goes further than, is necessary in the present case, and inasmuch as the appellant is clearly personally liable for the debts of the firm he has rightly been adjudicated an insolvent. It is suggested that the appellant should be allowed to re-open the findings in the suits filed by the creditors, but inasmuch as the District Judge has stated that the parties to the insolvency petition agreed to be bound by these findings and as there is no suggestion in the appeal memorandum that there was no such agreement, the appellant cannot now he heard to say that the District Judge's statement is incorrect and consequently he cannot ask to reopen the findings in those cases. No doubt, under the decrees the appellant is not personally liable for these debts but only the family property in his hands.

(2.) It is not suggested that he has any other property and in fact it is hardly possible for him now to allege that he has, inasmuch as he has filed all his appeals in forma pauperis asserting that he has no money to pay for the stamp duty. The question as to how the debts will be enforced need not be considered as all we are concerned with is whether the adjudication was right or wrong. Holding that the District Judge was right for the reasons given above this appeal must be dismissed with costs of respondents 4 and 11. Appeals Nos. 409 to 415 of 22 and 36 to 45 and 147 of 25.

(3.) These are appeals filed in respect of decrees obtained for debts due by the appellant's firm. The appellant is now an insolvent and the Official Receiver is unwilling to continue the appeals on his behalf. They therefore abate. Appeal No. 147 is dismissed with costs of respondent 1 and the other appeals are dismissed with costs of the contesting respondents and appellant must pay the stamp-fee payable to Government. Reilly, J.