1. In this case the second defendant became divided from his family in January 1898. Prior to this data the first defendant (father of second defendant) entered into a contract as managing member of an undivided family by which he undertook that in the event of a shortfall taking place in respect of a consignment of indigo made by the first defendant through the plain till, he (first defendant) would pay to the plaintiff the amount of the shortfall. The pecuniary liability which the plaintiff seeks to enforce in the present suit arises under a contract entered into before partition. The plaint does not allege a cause of action entitling the plaintiff to a personal decree against the second defendant in respect of such liability, and Mr. Krishnamachari on behalf of the respondent concedes he is not entitled to a personal decree as against him. In our opinion the plaintiff is entitled to judgment as against the second defendant in respect of this liability, but the second defendant's liability is limited to the extent of the family property which came to him under the partition. The decree must be amended accordingly.
2. The case relied upon by the appellant, Krishnasami Konan v. Ramasami Ayyar I.L.R. 22 Mad. 519 is clearly distinguishable from the present cage. In that case the suit was brought after partition against the father alone, and the point decided was that property taken by a son under a partition effected before the suit could not be seized in execution of a decree obtained against the father only such suit. The case turned on the plaintiff's rights in execution not, as here, on the question whether the plaintiff is entitled to judgment as against the son. Appellant must pay the costs of this appeal.
3. As regards the memorandum of objections, the plaintiff's case is that the amount claimed for interest, brokerage, &c.;, is in fact in respect of a pecuniary liability arising under a contract entered into before partition. The accounts support this view and the appellant's pleader has been unable to show that the real facts are otherwise, The liability of the second defendant in respect of the amount claimed in the memorandum of objections will also be limited to the property which came to second defendant under partition.
4. The memorandum of objections is allowed with coats.