1. The parties are Moplahs governed by the Marumakkathayam Law. The 2nd defendant appeals. The 2nd defendant and one Alipi Haji, now dead, were carrying on a timber trade. In 1896, the 2nd defendant took his son, the 1st defendant, as a partner and a partnership agreement was drawn up, which is Ex. A, dated 9th February, 1896. Under this, each of the partners had a 1 3 share in the profits of the timber trade. The assets contributed by the 1st defendant were the putravakasam property of the tavazhi, consisting of himself and the plaintiff, the 5th defendant and her children (plaintiffs 5 to 9) and the wife of the 2nd defendant. The tavazhi property was thus invested in the partnership trade, 1st defendant being the Karnavan of the tavazhi. In such a case, each member of the tavazhi does not himself become a partner, but as held in Ramanathan Chetti v. Yegappa Chetti (1915) 30 MLJ 241 and Gangayya v. Venkataramayyah ILR (1917) M 454 : 34 MLJ 271 the manager of the family is the trading partner and represents the interests of the joint family. That being the case, the members of the tavazhi would have no right to interfere in the management of the affairs of the partnership so long as it was a going concern. But in 1913 the partners entered into an agreement (Exhibit C) to dissolve the partnership and to have a partition deed drawn up. They also made a temporary arrangement for the allotment of the elephants which were used in the working of the timber trade. The dissolution of partnership agreed to at that time was finally embodied in Ex. I, dated 22nd November, 1914, under which the and defendant was given a half share instead of 113 on account of his extra exertion and his supply of funds. Alipi Haji agreed to take one quarter and the 1st defendant also took one quarter. This suit was instituted to declare that that arrangement is not binding on the members of the tavazhi and to recover their rightful share.
2. It is obvious that the 1st defendant as Karnavan had no right to surrender the interests of the tavazhi without any consideration as this amounts to an alienation of tavazhi property, and as he was in a fiduciary position, the plaintiffs representing the tavazhi are entitled to follow the tavazhi property into the hands of those in whose favour it has been alienated. The objection that this suit will not lie on the ground that the plaintiffs are not members of the partnership and have no voice in the direction of the partnership affairs is answered by showing that at the time when the suit was instituted there had been a dissolution of partnership. In Watts v. Driscoll (1901) 1 Ch 294 it was held by the Court of Appeal that the assignor of a share in a partnership is not bound by any agreement made by the partners themselves on a dissolution of partnership by which the amount or value of the share is altered. In the English Partnership Act of 1890, Section 31 makes it clear that an assignee cannot interfere in the management of the affairs of the partnership, but upon dissolution he is entitled to take his assignor's share of the assets and to have an account from the date of the dissolution. The same principle was followed in Chidambaram Chetti v. Karuthan Chetti (1919) 39 MLJ 511. That was a case of sub-partners and the learned Chief Justice observed that in the absence of any settlement between the partners before dissolution, which of course would be binding on the sub-partner, the sub-partner after the dissolution is entitled to have an account taken to ascertain the share of the partners under whom he claims, as without such an account it would be impossible to say what he was entitled to. The objection to the maintainability of the suit thus fails.
3. On the merits it is urged for the appellant that the lower Court should have found on the evidence that there was a settlement by arbitrators by which the 1st defendant's and Alipi Haji's shares were reduced after looking into the accounts and the 2nd defendant's share was increased. The Subordinate Judge has held that the alleged mediation was a fiction. We have referred to the evidence of the defence witnesses. They do not say that in consideration of the extra contribution made by some persons definite sums were allocated to those partner who had contributed most, but they say that, before the net assets of the partnership were ascertained, there was an agreement that 2nd defendant should take half of the whole assets and that the other partners should take each a moiety of the remainder, as the arbitrators thought it was proper to do so. Unless the adult members of the tavazhi consented to such an arrangement, they would not be bound by the 1st defendant's action against their interests. The witnesses do not speak of any such consent being given by the other members of the tavazhi. D. W. 1 and D. W. 3 say that the 1st plaintiff was present at the mediation. Nanu Menon, the 5th witness, who is supposed to have settled it, says that the 1st plaintiff was present but he was not consulted and he did not raise any objection. The 1st plaintiff has stated that he did not know about any mediation by Nanu Menon, and he was not cross-examined as to whether he was present on that occasion. D. Ws. 2 and 3 say that they did not see Nanu Menon that day.
4. It has not been shown that there was any occasion for arbitration on account of any disputes between the partners. The 2nd defendant has not gone into the witness box and given his account of what happened.
5. On the whole, we see no reason to differ from the Subordinate Judge's conclusion that there was no regular arbitration in the matter. The lower Court's judgment awarding plaintiffs 1 and 3 to 10 on behalf of themselves and defendants 1 and 5 1/6th of the properties given to the 2nd defendant is therefore correct. The decree provides that the 2nd defendant do deliver up 116th of the properties given to him as shown in Schedules A and E, and if it is not available, to pay their value Rs. 27,502. There is no question of the immoveable properties being available or not available.
6. The Memorandum of Objections raises the question whether 16th of the properties should not have been partitioned and delivered. The decree will be amended by directing that the 2nd defendant do deliver up 1/6th of the immoveable properties and 16th of the moveables and providing that if any moveables are not available to be delivered, 16th of their value as found by the Commissioner shall be paid by the 2nd defendant, or as ascertained in execution if the Commissioner has not already valued any particular item. With this modification, the Appeal is dismissed with costs.
7. The division of both immoveable and moveable properties may be made in execution.
8. Upon the Memorandum of Objections, the respondents will recover Rs. 265, the difference between the amount of Court-fee which the appellants actually paid and the amount they ought to have paid. Vakil's fees to be calculated on the correct amount at which the suit ought to have been valued, namely Rs. 55,000.