1. The 1st plaintiff in these appeals brought O.S. No. 8 of 1900 against Subbaraya Chetti, Siva Chidambara Chetti and Narayana Row for dissolution of partnership, for winding up of the partnership accounts and for the recovery from Subbaraya Chetti of a certain sum of money. It was alleged that under the partnership agreement Subbaraya Chetti was the managing partner, that a sum of money was given to him by the plaintiff and Narayana Row's father and that he refused to furnish accounts. The cause of action was stated to have arisen in September 1899 when the partnership trade was stopped. A decree was passed dissolving the partnership and directing Subbaraya Chetti to pay the 1st appellant Rs. 2,976-8-2 3/4 with interest. Subbaraya Chetti having died before execution, the 1st appellant sought to execute the decree under Section 234, Civil Procedure Code, against Rathina Ammal, the widow, and Veerappa Chetti, the undivided brother of Subbaraya Chetti. The District Judge passed a certain order against which there was an appeal to this Court. This Court held that the decree against Subbaraya Chetti was purely a decree in personam against him, and further remarked that there was nothing on the record to show that Subbaraya Chetty was sued in his representative capacity as manager of the family or that the trade in respect of which the suit was brought was one that was necessarily a family business and not Subbaraya Chetti's individual trade. With these views I entirely agree. The decree was therefore not allowed to be executed against Veerappa Chetti by attaching and bringing to sale joint family property which had come to him by survivorship, whether it was ordinary family property or property acquired for the family by the partnership trade. As regards the separate property of Subbaraya Chetti, it was held that execution under Section 234, C.P.C., should proceed only against his widow who was his legal representative and the name of Veerappa Chetti was struck off the record. The 1st appellant and his son, the 2nd appellant, then filed O.S. Nos. 13 and 14 of 1903 and, these suits having been dismissed, presented the present appeals.
2. The plaint in O.S. No. 13 which was against Veerappa Chetti, Veerappa Chetti's son and Rathina Ammal as 1st, 2nd and 3rd defendants, set out that the present 1st appellant acting as manager of his family, Subbaraya Chetti acting as manager of his family, and others entered into a partnership; that disputes having arisen, O.S. No. 8 of 1900, above referred to, was brought; that Subbaraya Chetti had carried on the partnership trade for the benefit of the joint family then consisting of himself and Veerappa Chetti and that, as the family had enjoyed the benefit of the trade, the 1st and 2nd defendants were bound to pay to the plaintiffs the amount due to them by Subbaraya Chetti that Subbaraya Chetti represented the joint family in O.S. No. 8 of 1900; that the finding in O.S. No. 8 of 1900, that Rs. 2,976-8-2 3/4 was due to the plaintiffs by Subbaraya Chetti and that the latter was liable to pay that amount with interest at 12 per cent per annum from the 26th March 1900, the date of the plaint in O.S. No. 8 of 1900, was binding on the 1st and 2nd defendants, as also the order of the Court dissolving the partnership as from the 16th December 1901, the date of the decree; that the 1st and 2nd defendants were bound to pay the amount above mentioned, and that the' 3rd defendant was also liable to pay that amount because she was in possession of property belonging to the joint family of a larger value than that amount; and that the cause of action arose on the 16th December 1901, the date of the decree or in July 1902, by which date is apparently meant the date of Subbaraya Chetti's death. The prayer was that the defendants do pay the plaintiffs Rs. 4, 186-8-2 3/4, made up of Rs. 2,976-8-2 with interest as abovementioned.
3. In O.S. No. 14, in addition to the three persons impleaded as defendants in O.S. No. 13, there were four other defendants. Of these four only two, the 5th and 6th defendants, need be considered, they being the persons who as partners were made defendants with Subbaraya Chetti in O.S. No. 8 of 1900. The plaint in O.S. No. 14 made the same main allegations as were made in the plaint in O.S. No. 13, mentioned the institution of O.S. No. 13, and prayed that if the Court should for any reason hold in O.S. No. 13 that the 1st and 2nd defendants were not bound by the findings in O.S. No. 8 of 1900, and that the plaintiffs were not in O.S. No. 13 entitled to recover the amount due to them, the partnership might be wound up, and the accounts of the partnership taken, and that the plaintiffs might be paid the amount found due to them by such defendants as were found liable. The cause of action was stated to have arisen on the same dates as in O.S. No. 13.
4. Two of the issues framed in O.S. No. 13 were:
(1) Whether or not Section 244, Civil Procedure Code, is a bar to the maintenance of the present suit either against 1st and 2nd defendants or against the 3rd defendant and
(2) 1st and 2nd defendants not having been parties to O.S. No. 8 of 1900, does the fresh suit to make them liable to satisfy the decree in that suit lie ?
5. On the frit of these issues the District Judge found that Section 244, Civil Procedure Code, was a bar to the suit as against the 3rd defendant. He found the second of the issues in the negative, and accordingly dismissed the suit. Both these findings are attacked in appeal No. 187.
6. That the suit was rightly dismissed as against the 3rd defendant is clear. So far as the separate property of Subbraya Chetty is concerned, the plaintiff's only remedy was to execute the decree in O.S. No. 8 of 1900 against the third defendant, Subbraya Chetti's legal representative, under Section 234, C.P.C, Section 244, C.P.C, being a bar to a suit against the 3rd defendant in respect of such separate property. With regard to the joint family properties of which the 3rd defendant is said to be in possession it is contended that the 3rd defend ant was properly impleaded because she may be regarded as an executor deson tort and Magaluri Garudiah and Ors. v. Narayana Rangiah I.L.R. (1881) M. 359 and Narayana-Sawmy Pillai v. Essa Albai Salt, etc. I.L.R. (1905) M. 351 are relied upon. Even if the 3rd defendant is in possession of joint family property, she cannot be regarded as an executor de son tort in regard to it. An executor de son tort is a person who intermeddles with the estate of a deceased person. The joint family property cannot be regarded as the estate of Subbaraya Chetty. The interest he had in it passed at dis death to his co-parceners by survivorship. The cases quoted are both cases in which the estate of a deceased person had been intermeddled with. The mere fact that the 3rd defendant may have family property in her possession cannot give the plaintiffs a cause of action against her in a suit like the present, as the District Judge has properly pointed out.
7. The next question is whether the suit is maintainable as against the first and second defendants. The cause of action is stated in the plaint to have arisen on the 16th December 1901 or in July 1902. How any cause of action against the defendants accrued to the plaintiffs on the second of these dates is not explained. The first date is the date of the decree in O.S. No. 8 of 1900 and the prayer in the plaint is for the recovery of the amount due under that decree by Subbaraya Chetty. The suit is therefore clearly to recover from the defendants a decree debt due by Subbaraya Chetti, and the question is whether the plaintiffs have any cause of action for such a suit. If the 1st and 2nd defendants were the sons of Subbaraya Chetty, they would be under a pious obligation to pay the decree debt, and the passing of the decree would give a fresh cause of action against them quite independently of the original cause of action on which the suit against Subbaraya Chetty was brought--Periasami Mudaliar v. Seethatama Chttiar I.L.R. (1903) M. 243. But being only his undivided brother and nephew they are not bound to pay any debt contracted by him unless contracted for the benefit of the family, and it cannot be said that the debt imposed upon Subbaraya Chetti by the decree was a debt contracted by him for the benefit of the family, whatever was the nature of the debt upon which O.S. No. 8 of 1903 was brought. The decree debt is not the original debt but a new debt altogether--Periasami Mudalar v. Seetharama Chettiar I.L.R. (1903) M. 243--and must of its own force give a cause of action if the plaintiffs are to maintain a suit upon it. I am, therefore, of opinion that the suit was rightly dismissed as against the 1st and 2nd defendants also, and would dismiss Appeal No. 187 with costs.
8. In O.S. No. 14 the District Judge found that the suit, as against the 3rd defendant, was barred by Section 244, C.P. C, for the same reasons as in O.S. No. 13. He also found that the suit was barred by the same section as against the 5th and 6th defendants who were parties to O.S. No. 8 of 1900. The third issue framed was, first defendant not having been a party to O.S. No. 8 of 1900, whether the present suit brought on the same cause of action as O.S. No. 8 of 1900 is maintainable This issue the District Judge found in the negative and dismissed the suit.
9. That the cause of action in O.S. No. 14 of 1903 was the same as the cause of action in O.S. No. 8 of 1900 was clearly not disputed in the lower Court. Here it is suggested that the cause of action was different because in O.S. No. 8 there was a prayer for dissolution of partnership in addition to the prayer for winding up. The cause of action is not affected by the relief claimed. In O.S. No. 8 it was alleged that the trade stopped in September 1899 and it was prayed that the partnership accounts might be wound up. It is not alleged in O.S. No. 14 that there were any fresh transactions after September 1899 or any accounts to be gone into other than those which had to be gone into in O.S. No. 8. The cause of action for winding up the partnership is therefore clearly the same in both suits. The 5th and 6th defendants were parties to O.S. No. 8 and no fresh suit can be brought against them on the same cause of action. They were, therefore, wrongly impleaded in the present suit. But to a suit for winding up a partnership each partner having a distinct interest must be a party--Lindley on Partnership, 7th Edition, page 504. This proposition is not disputed, and the 5th and 6th defendants are therefore manifestly necessary parties to any suit for winding up the partnership now in question. They have not been placed on the record as mere pro forma defendants. The prayers in the plaint make no distinction between the 5th and 6th defendants and the other defendants but ask for relief against whichever defendant may be found liable. As therefore the 5th and 6th defendants cannot properly be made parties, the whole suit must fail. I would therefore dismiss Appeal No. 188 with costs.
10. I agree. The appeals are dismissed with costs.