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Pana, Ravanna Mana, Ana, Alagappa Chettiar Vs. Kana, Rcona, Kana Vellian Chetti and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1894)4MLJ283
AppellantPana, Ravanna Mana, Ana, Alagappa Chettiar
RespondentKana, Rcona, Kana Vellian Chetti and anr.
Cases ReferredCourt Mallikarjuna v. Pullayga I. L.
Excerpt:
- - the plaint was presented on the 14th january 1898. 2. on the 14th august 1893 the defendants put in separate written statements in both of which it is objected that the suit is bad for non-joinder of parties, because the plaintiff is only one of several members of a hindu family carrying on business in partnership together. on the other hand if the amendment must by the operation of section 22 of the limitation act lead to the dismissal of the suit then it would clearly be useless......called a salary chit and explains that the letters p. r. m. a. appearing in that paper before his name alagappa are not his own initials but stand for the firm's name.4. on the evidence the judge held that the plaintiff was not competent to maintain the suit in his own name only. further with reference to the petition presented on the same day, but after he had expressed an opinion adverse to the plaintiff, he refused to allow any addition of new parties. the suit was accordingly dismissed. the appeal was supported on alternative grounds. it was argued that the plaintiff alagappa was competent to maintain the suit in his own name, or in the alternative that the designation of the plaintiff in the cause title was sufficient to denote all the persons interested in the firm. there can be.....
Judgment:

1. It appears from the plaint that the 1st Defendant Vellian was on the 19th January 1887 engaged by the plaintiff to carry on his business in Moulmein for a period of three years and that accordingly he did act as the plaintiff's agent till the 17th December 1889 when he left Moulmein. It is charged against the 1st defendant that during the period of his agency he acted in contravention of the plaintiff's orders and that on his return to this country he refused to render proper accounts. The plaint was presented on the 14th January 1898.

2. On the 14th August 1893 the defendants put in separate written statements in both of which it is objected that the suit is bad for non-joinder of parties, because the plaintiff is only one of several members of a Hindu family carrying on business in partnership together. On the same day, the 14th August, certain preliminary issues were adjusted with reference to this objection. By the first of them the question of fact is raised. 'Whether (as alleged in the plaint) the plaintiff is sole owner of the firm P.R. M.A. in Moulmein, or whether such firm has other partners, or belongs to a family which has other members.' On the 2nd November certain persons describing themselves as members of the family of the plaintiff Alagappa put in a petition stating that Alagappa was the manager of the family business and that the 1st defendant was by him alone appointed agent, and asking that the plaintiff might be permitted to proceed against the defendants.

3. On the 14th November the plaintiff himself filed a petition praying that, if the court holds that the other members of his undivided family should also be parties, they might 'also be described as plaintiffs.' On the same day the trial of the preliminary issues took place. The plaintiff Alagappa was examined as a witness. He at once admitted that he was not the sole owner of the firm but that five persons in all named by him as members of his family were interested in it. The witness proves the execution by the 1st defendant Vellian of the document (A.) called a salary chit and explains that the letters P. R. M. A. appearing in that paper before his name Alagappa are not his own initials but stand for the firm's name.

4. On the evidence the judge held that the plaintiff was not competent to maintain the suit in his own name only. Further with reference to the petition presented on the same day, but after he had expressed an opinion adverse to the plaintiff, he refused to allow any addition of new parties. The suit was accordingly dismissed. The appeal was supported on alternative grounds. It was argued that the plaintiff Alagappa was competent to maintain the suit in his own name, or in the alternative that the designation of the plaintiff in the cause title was sufficient to denote all the persons interested in the firm. There can be no doubt that as a general rule all the members of a partnership firm ought to be joined as plaintiffs in a suit brought in respect of transactions with the partnership. It makes no difference that the persons, carrying on business together, were also members of a Hindu family, Kalidas Kevaldan v. Nathu Bhagvan I. L. R. 7 B 217 and cases cited. The proposition that the manager of a Hindu family can sue without joining those interested with him is one which cannot be supported and no authority was cited in support of it save a dictum in Arunachala Pillai v. Vythilinga Mudaliyar I.L.R. 6 M 27 There can be no doubt in the present case that the employment of Vellian as agent was an employment in the business of the firm and that the contract was made by Alagappa on, behalf of the firm. The Appellant's Vakil, however, endeavoured to convince us that Alagappa, though acting for the firm made the contract in his own name under such circumstances as to entitle him to sue alone. 'The case of Agacio v. Forbes 14 M. P. C. 160 was cited and it was urged that similarly here Alagappa was entitled to sue alone. In Agacio v. Forbes it is true that the contract made in Hongkong between the plaintiff and the defendant was made for the benefit of the plaintiff's firm; but the consideration for it, namely, the forbearance by the plaintiff from proceedings threatened against third parties, was a consideration moving from the plaintiff alone, but that five persons in all named by Mm as members of his family were interested in it. The witness proves the execution by the 1st defendant Vellian of the document (A.) called a salary chit and explains that the letters P. R. M. A. appearing in that paper before his name Alagappa are not his own initials but stand for the firm's name.

5. On the evidence the judge held that the plaintiff was not competent to maintain the suit in his own name only. Further with reference to the petition presented on the same day, but after he had expressed an opinion adverse to the plaintiff, he refused to allow any addition of new parties. The suit was accordingly dismissed. The appeal was supported on alternative grounds. It was argued that the plaintiff Alagappa was competent to maintain the suit in his own name, or in the alternative that the designation of the plaintiff in the cause title was sufficient to denote all the persons interested in the firm. There can be no doubt that as a general rule all the members of a partnership firm ought to be joined as plaintiffs in a suit brought in respect of transactions with the partnership. It makes no difference that the persons, carrying on business together, were also members of a Hindu family, Kalidas Kevaldas v. Nathu Bhagvan I. L. R. 7 B 217 and cases cited. The proposition that the manager of, a Hindu family can sue without joining those interested with him is one which cannot be supported and no authority was cited in support of it save a dictum in Arunachala Pillai v. Vythilinga Mudaliyar I. L. R. 6 M 27 There can be no doubt in the present case that the employment of Vellian as agent was an employment in the business of the firm and that the contract was made by Alagappa on behalf of the firm. The Appellant's Vakil, however, endeavoured to convince us that Alagappa, though acting for the firm made the contract in his own name under such circumstances as to entitle him to sue alone. The case of Agacio v. Forbes 14 M. P. C. 160 was cited and it was urged that similarly here Alagappa was entitled to sue alone. In Agacio v. Forbes it is true that the contract made in Hongkong between the plaintiff and the defendant was made for the benefit of the plaintiff's firm; but the consideration for it, namely, the forbearance by the plaintiff from proceedings threatened against third parties, was a consideration moving from the plaintiff alone, made before us. On the respondents' behalf it is said that the required amendment ought not now to be made, because any claim against Vellian by the partners of Alagappa would be barred by the statute of limitation. Even on the 14th August when the informal application was made on behalf of those persons, such a suit would equally have been barred. On the other hand the plaintiff had elected to go to trial without offering to amend and therefore ought to be left to the consequences. Dular Chand v. Balram Das I. L. R 1 A 453

6. The case of Mohummid Zahoor Ali Khan v. Mussumut Thakooranee Rutta Koer 11 M. I. A. 468 was cited in support of the contention that the possibility of the bar of limitation afforded a reason for allowing an amendment. That case is, however, plainly distinguishable from the present and from Weldon v. Neal. In Mohummid Zahoor Ali Khan v. Mussumut Thakooranee Rutta Koer 11 M. I. A. 468 the mistake made consisted not in the nonjoinder of parties or the omission of any statement of claim, but in the joinder of parties who ought not to have been joined. In the result the cause was remitted for trial on the issues touching the liability of the defendant Rutta Koer on the bond in respect of which the suit had been brought. It is not necessary to consider what would be the consequence if the other partners were joined as to which point several cases were cited Kalidas Kevaldas v. Nathu Bhagvan I. L.R. 7 B 217 Appeal No. 31 of 1887; Appeal No. 150 of 1893 and Appeal No. 55 of 1898.

7. In our opinion the amendment which, as haft been observed, was never asked for in this Court on in the court below ought not now to be made.

8. If by the amendment the defendants were deprived of the defence of limitation, then according to the view taken in Weldon v. Neal 19 Q. B. D. 394 and followed in this Court Mallikarjuna v. Pullayga I. L. R 16 M 319 the amendment ought not to be allowed. On the other hand if the amendment must by the operation of Section 22 of the Limitation Act lead to the dismissal of the suit then it would clearly be useless.

9. The Appeal is dismissed with costs.


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