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Sambasiva Aiyar Vs. Natesa Aiyar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1938Mad388; (1938)1MLJ106
AppellantSambasiva Aiyar
RespondentNatesa Aiyar and ors.
Cases ReferredGangayya v. Venkataramiah
Excerpt:
- - which carried on a money lending business and the plaintiff's case was that this share in the money lending business belonged to the family and that this particular asset of the family was not divided at the time of the partition of the remaining family properties which took place in 1926. in paragraph 7 of the plaint, it was clearly stated that the subordinate judge in the previous suit for partition, while affirming the award of the arbitrator, rao bahadur a. if it is found after trial that there was no dissolution it is not right that he should fail altogether......or suit as the case may be.2. it is clear therefore that the subject-matter of the suit was the family share in the business of which the plaintiff claimed one-third. it was also alleged in the plaint that the partnership, that is, the money lending firm in question had been dissolved sometime in january, 1928, that is, before the suit, and that after this dissolution some secret arrangement was arrived at between the first defendant and the fourth defendant, the partners, the details of which were not known to the plaintiff. the dissolution alleged in the plaint, was denied by the contesting defendants in their written statements which were filed in december, 1929 and january, 1930. in september, 1931, the plaintiff applied to amend the plaint so as to enable him to obtain an.....
Judgment:

Pandrang Row, J.

1. These arise out of O.S. No. 46 of 1929 on the file of the Subordinate Judge of Tanjore. The Revision Petition is for the purpose of revising the order passed by the Additional Subordinate Judge dismissing the application of the plaintiff for amendment of his plaint and the appeal is from the decree dismissing the suit itself with costs on the ground that it was not maintainable. The suit was by one Sambasiva Aiyar who claimed one-third of the share of the first defendant in a certain firm described as the K.A.Rm.N. Firm. The share in the firm originally belonged to an undivided Hindu family. The plaintiff is the son of one Krishna Aiyar. Defendants 2 and 3 are the grandsons of one Sundarappier by his deceased son, while the first defendant is one Natesa Aiyar. These three persons Krishna Aiyar, Natesa Aiyar and Sundarappier were brothers. The fourth defendant is the other partner in the firm of K.A.Rm.N. which carried on a money lending business and the plaintiff's case was that this share in the money lending business belonged to the family and that this particular asset of the family was not divided at the time of the partition of the remaining family properties which took place in 1926. In paragraph 7 of the plaint, it was clearly stated that the Subordinate Judge in the previous suit for partition, while affirming the award of the arbitrator, Rao Bahadur A. Krishnaswami Aiyar, retired Assistant Commissioner of Police, had declared that:

The rights of the parties in the K.A.Rm.N. Firm are left open for future settlement or suit as the case may be.

2. It is clear therefore that the subject-matter of the suit was the family share in the business of which the plaintiff claimed one-third. It was also alleged in the plaint that the partnership, that is, the money lending firm in question had been dissolved sometime in January, 1928, that is, before the suit, and that after this dissolution some secret arrangement was arrived at between the first defendant and the fourth defendant, the partners, the details of which were not known to the plaintiff. The dissolution alleged in the plaint, was denied by the contesting defendants in their written statements which were filed in December, 1929 and January, 1930. In September, 1931, the plaintiff applied to amend the plaint so as to enable him to obtain an alternative relief for partition of the assets of the family in the partnership in case it was found by the Court that there was no dissolution of the partnership and for appointing a Receiver to realise the family assets and to pay the one-third share of the plaintiff therein.

3. The only point raised in this appeal by the plaintiff is that the dismissal of the suit by the lower Court on the ground that it was not maintainable without taking evidence or recording any finding on the question of the dissolution of the partnership alleged in the plaint is wrong. We are of opinion that this contention of the appellant is right. The present case is more or less analogous to that of Thazhath Soopi v. Abdulla : AIR1924Mad909 in which the plaintiff was a junior member of a marumakathayam tavazhi; here the plaintiff was a member of a Hindu family whose share in the partnership assets remains undivided. We see no real distinction in principle between the present case and that of Thazhath Soopi v. Abdulla : AIR1924Mad909 . The principle is that when family assets are in the hands of strangers any member of the family who is entitled to a share in the assets has a right to recover his share of the assets, and if it is necessary for the purpose of ascertaining such share of the assets to take an account, such account has to be taken by the Court at the instance of the plaintiff. The case would be different no doubt if there was no dissolution before the suit as was held in Gangayya v. Venkataramiah (1917) 34 M.L.J. 271 : I.L.R. 41 Mad. 454. The learned Judge however did not decide the question whether there was a dissolution or not before suit. That was a question of fact and without any decision thereof it was not open to the Court below to dismiss the suit on the ground that it was unsustainable even if the plaint allegations were assumed to be true.

4. The appeal must therefore be allowed and the decree of the Court below dismissing the suit set aside. The suit is remanded to the Court below for fresh disposal according to law. The costs of this appeal will abide the event and be provided for in the revised decree to be passed by the Court below. The court-fee paid on the memorandum of appeal will be refunded to the appellant.

5. As regards the Revision Petition we are of opinion that the lower Court was not right in refusing permission to amend the plaint though there was considerable delay which was not satisfactorily explained. In the matter of rectifying defects in pleadings which do not affect any substantial rights it is not consonant with justice to deny a remedy which otherwise would be lost by reason of carelessness or delay. Any carelessness or delay can always be punished, so to speak, by imposing terms. In this case it was not possible for the plaintiff to be certain whether there was a dissolution or not because he is not one of the partners and he can have no personal knowledge about the matter, and it is not right that he should lose all simply because he chose to institute a suit on the basis that there had been a dissolution; if it is found after trial that there was no dissolution it is not right that he should fail altogether. In these circumstances therefore we think the lower Court ought to have allowed the petition for amendment.

6. The order of the Court below dismissing the prayer for amendment is set aside and the amendment is allowed as prayed for but in the circumstances of the case the petitioner in the Civil Revision Petition must bear his own costs and pay the costs in the Civil Revision Petition of the contesting respondents 1 and 4 and also their costs in the amendment application in the Court below.


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