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Mahomed Silar Sahib and Co. by Mahomed Silar Sahib Vs. Nabi Khan Sahib and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in35Ind.Cas.157; (1916)31MLJ93
AppellantMahomed Silar Sahib and Co. by Mahomed Silar Sahib
RespondentNabi Khan Sahib and ors.
Cases ReferredLachman Das v. Chaturbhuj Das I.L.R.
Excerpt:
- .....v. krishna ayyan i.l.r. (1901) m. 431 that 'a payment out of court to one only of several joint decree-holders cannot bind the others,' unless he was also constituted by them an agent for the purpose; and, as explained by the learned judge with reference to the case before him, the mere fact that one of the joint decree-holders is the managing member of the family consisting of the joint decree-holders will not empower him to give a discharge of the decreedebt without the concurrence of the remaining members it has not been shown how any relevant distinction can be drawn between the position of a manager and that of a member of a partnership in this respect. the conclusion must therefore be against the validity of the payment to two out of the three partners pleaded by the.....
Judgment:

Oldfield, J.

1. Reason has not been shown for dissent from the statement of the law by Bashyam Iyengar, J. in Periasami v. Krishna Ayyan I.L.R. (1901) M. 431 that 'a payment out of Court to one only of several joint decree-holders cannot bind the others,' unless he was also constituted by them an agent for the purpose; and, as explained by the learned Judge with reference to the case before him, the mere fact that one of the joint decree-holders is the managing member of the family consisting of the joint decree-holders will not empower him to give a discharge of the decreedebt without the concurrence of the remaining members It has not been shown how any relevant distinction can be drawn between the position of a manager and that of a member of a partnership in this respect. The conclusion must therefore be against the validity of the payment to two out of the three partners pleaded by the Judgment-debtor in this case.

2. As the payment pleaded would not in any event be valid, it is useless to consider whether the lower Court should have enquired whether it was made.

3. The appeal must therefore be allowed and the Lower Court's orders be set aside, E.A. No. 358 of 1914, being dismissed and E.P. No. 7 of 1914 being reminded for readmission and disposal according to law. The judgment-debtor and 1 and 3 decree-holders will pay the costs of the 2nd decree-holder in this Court and in E.P. No. 7 in the Lower Court.

Sadasiva Aiyar, J.

4. I think that payment of the decree amount to two out of the three joint decree-holders cannot be treated as satisfaction of the decree even in part unless it is admitted by the third decree-holder or proved that he and the other two decree-holders to whom the money was paid own separate and definite shares in the joint decree dabt. In Tamman Singh v. Lachhmin Kunwari I.L.R. (1901) A. 318 there was no dispute as to the shares and in Sultan Moideen v. Savalaiyammal I.L.R. (1891) M. 343 the distinct share due to the payee was proved and in both cases there was no dispute as to the right of the payee to receive his separate share. The present is a case where tle right of the payees to receive their alleged shares is neither admitted nor proved. I am very doubtful whether two out of three partners can in their individual capacities legally claim definite shares in a particular decreedebt belonging to themselves and the other partners jointly, such a decree debt beiing only one asset out of the numerous partnership assets, I think that they cannot make such a claim, to own separate shares in a particular asset, any more than a member of a joint Hindu family can claim to receive in his individual capacity (or give a valid discharge for) his share of a particular debt due by one of the debtors of the joint Hindu family which possesses numerous other assets. Neither a partner nor a member of a joint Hindu family can claim and receive a definite share in a particular partnership debt or family debt as the case may be. The right of two out of three partners to receive on behalf of the partnership a partnership debt which has not merged into a decree so as to bind the third partner has no bearing on the decision of the question whether when the three partners have become joint decree-holders (and are not merely joint private creditors) two of them as such decree-holders can receive the joint decree debt so as to release the judgment-debtor from liability in execution for even a portion of the decreedebt. Sir Bashyam lyengar's judgment in Periasami v. Krishna Ayyan I.L.R. (1901) M. 431 in my opinion, establishes that one of several joint decree-holders cannot receive his alleged share of the decree debt so as to enable the judgment debtor to put forward a claim to enter up satisfaction of that portion of the decree unless the payee had been appointed by all the other decree-holders as their agent. The status as such agent must either appear expressly in the decree or should be expressly created after the passing of the decree and cannot merely be inferred from the position of the payee as managing member of the Joint Hindu family of the decree holders or as one of several partners-decree holders. See also Lachman Das v. Chaturbhuj Das I.L.R. (1905) A. 252. I would therefore hold that even if the alleged payment to the two partners of the appellant's firm was proved and was a real payment, it cannot have the legal effect of satisfying or adjusting the decree even in part and I would therefore reverse the orders of the District Judge, dismiss the judgment debtor's application to enter up satisfaction and direct the District Judge to pass fresh orders on the appellant's execution petition according to law in the light of the above remarks. I also agree in the order proposed by my learned brother in respect of costs.


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