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Ahinsa Bibi and ors. Vs. Abdul Kader Saheb and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Judge
Reported in(1902)ILR25Mad26
AppellantAhinsa Bibi and ors.
RespondentAbdul Kader Saheb and ors.
Cases ReferredKandhiyn Lal v. Chandar I.L.R.
Excerpt:
limitation act - act xv of 1877, sections 7, 8, schedule ii, article 106--suit by joint claimants, one being a minor--bar of limitation saved as against all. - - if such agreement had been established, it would have afforded strong evidence of the alleged partnership. i am clearly of opinion that the suit is not governed by article 60 of the limitation act which relates to money deposited under an agreement that it shall be payable on demand, and i may also dismiss article 59 from consideration, especially as the alleged agreement of 1891 has not been established. it the period is to be reckoned from august 1890 when pacha mean died, the cause of action having accrued to chanda mean who was then under no disability, the suit would be clearly barred by limitation, and the minority of.....bhashyam ayyangar, j.1. it is alleged in the plaint that five persons, namely, the first defendant; one chanda mean, the deceased husband of the first plaintiff; one pacha mean, the deceased father of defendants nos. 2 to 4, and husband of fifth defendant; the sixth defendant, and one mathari bavudin saheb, father of defendants nos. 7 to 10 and husband of eleventh defendant, were carrying on partnership business at ambur, the first-named three persons being brothers and the last named two being their brothers-in-law, and that on the death of chanda mean saheb in august 1891 it was agreed that the first defendant and the other surviving partners should use the amount of capital and profits due to the share of chanda mean saheb in carrying on the business of partnership, that interest.....
Judgment:

Bhashyam Ayyangar, J.

1. It is alleged in the plaint that five persons, namely, the first defendant; one Chanda Mean, the deceased husband of the first plaintiff; one Pacha Mean, the deceased father of defendants Nos. 2 to 4, and husband of fifth defendant; the sixth defendant, and one Mathari Bavudin Saheb, father of defendants Nos. 7 to 10 and husband of eleventh defendant, were carrying on partnership business at Ambur, the first-named three persons being brothers and the last named two being their brothers-in-law, and that on the death of Chanda Mean Saheb in August 1891 it was agreed that the first defendant and the other surviving partners should use the amount of capital and profits due to the share of Chanda Mean Saheb in carrying on the business of partnership, that interest thereon should be paid to plaintiffs at one per cent. per mensem, that the total amount due to the plaintiffs should be settled as per accounts and paid over to them on demand, and that the partnership business was accordingly carried on even after the death of Chanda Mean.

2. The plaintiffs and defendants Nos. 12 to 18 are the legal representatives of the deceased Chanda Mean Saheb, including the legal representatives of a deceased heir of Chanda Mean. Plaintiffs bring this suit for taking an account of the profits of the partner-shin which was dissolved by the death of Chanda Mean in August 1891 and for recovering the share due to him in such profits with subsequent interest at 12 per cent. after giving credit for sums paid to first plaintiff, since the death of her husband, oil account of interest. On behalf of the contesting defendants it is contended that the business carried on by the first defendant was his sole and exclusive business, that neither Chanda Mean Saheb nor any other person was a partner therein, that the agreement alleged to have been made with the plaintiffs on the death of Chanda Mean Saheb is false and that the suit is barred by the law of limitation.

3. The District Judge dismissed the plaintiff's suit, holding that the first defendant's business and trade was not carried on in partnership with Chanda Mean Saheb and others, that the agreement alleged to have been made between the plaintiffs and the first defendant on the death of Chanda Mean Saheb is not true, and that the suit is barred by the law of limitation.

4. Against this decree plaintiffs appeal, and it is chiefly urged on their behalf that the facts found by the District Judge establish in law that the business was carried on by the first defendant in partnership with first plaintiff's husband and others and that the suit is not barred by the law of limitation by reason at any rate of the minority of the third plaintiff, one of the heirs of Chanda Mean Saheb. I agree with the learned pleader for the appellants that the District Judge substantially finds that the business was carried on in partnership though he nominally finds the first issue relating to partnership against the plaintiffs. [His Lordship dealt at length with the evidence and held that the business had been carried on in partnership.] The agreement alleged to have been made by the plaintiffs with the first defendant on the death of Chanda Mean Saheb is the subject of the second issue, and I concur with the District Judge that the oral evidence adduced by the plaintiffs to prove such an agreement is untrustworthy, and that no such agreement was entered into. If such agreement had been established, it would have afforded strong evidence of the alleged partnership. But as I have found the existence of the partnership, it becomes immaterial for the purposes of this suit whether the alleged agreement of 1891 is true or false, for it is undoubted law that 'partners continuing to carry on business without coming to an account with their late partner or those who represent him, are liable to be charged either with the profits made by the use of his capital or with interest on it at 5 per cent. at the option of those to whom such capital belongs.' Lindley on 'Partnership' 5th edition page 528; Bhugwandas Mitharam v. Rivett-Carnac L.R. 26 IndAp 32 : I.L.R. 23 Bom. 544 and also Section 241 of the Indian Contract Act. As the rate of interest claimed is the ordinary 12 par cent., rate which is current among persons of the class to which the parties belong, the plaintiffs will be entitled to charge that interest upon the amount of property which, on taking an account, may be found to belong to the share of the deceased husband of the first plaintiff out of the assets of the partnership as they were at the time of his death.

5. The next and the only remaining question to be considered is the issue of limitation which is the subject of the fourth issue. I am clearly of opinion that the suit is not governed by Article 60 of the Limitation Act which relates to money deposited under an agreement that it shall be payable on demand, and I may also dismiss Article 59 from consideration, especially as the alleged agreement of 1891 has not been established. The suit being really one for an account and a share of the profits of the partnership which was dissolved by the death of Chanda Mean in August 1891 with subsequent interest thereon, the article applicable to the case is Article 106 of the Limitation Act. The facts material to this issue are the following :-That the partnership business commenced in 1885 with five partners already mentioned; that one of them, Pacha Mean, the father of defendants Nos. 2 to 4 and husband of the fifth defendant, died in August 1890; that the surviving four partners continued to carry on the same business, but that Pacha Mean's heirs were not introduced as partners into the partnership and apparently no account was settled either with Pacha Mean or his heirs, that while the four surviving partners were carrying on the business Chanda Mean died in August 1891, leaving numerous heirs, among whom the third plaintiff and her deceased sister, the wife of the second defendant, were minors, and that the surviving three partners continued to carry on the business in partnership, the heirs of Chanda Mean not being introduced as partners into the partnership. The first question which arises for consideration is whether the starting point for computing the period of limitation for this suit is the death of Pacha Mean or the death of Chanda Mean. It the period is to be reckoned from August 1890 when Pacha Mean died, the cause of action having accrued to Chanda Mean who was then under no disability, the suit would be clearly barred by limitation, and the minority of certain of the heirs claiming under Chanda Mean will in no way affect the question of limitation. On the death of Pacha Mean in August 1890 there was a complete dissolution of the partnership (Section 253, Clause 10 of the Indian Contract Act), for it is not alleged or proved that there was a contract to the contrary antecedent to such dissolution, the existence of which contract would have barred the dissolution of the partnership, so far as the four surviving partners were concerned. The fact that the surviving partners did carry on the same business in partnership among themselves would only amount in law to the formation of a new partnership and the investing therein as capital the respective shares of the surviving partners in the profits of the dissolved partnership. The surviving partners, therefore, by thus continuing the business of the dissolved partnership dispensed with the taking of an account of the profits of the dissolved partnership for sharing its profits. The result will be that, in a suit for an account and share of the profits of the new partnership which was dissolved in August 1891, by the death of Chanda Mean, it will be necessary incidentally to take an account of the profits of the old partnership which by the death of Pacha Mean was dissolved in 1890, merely for the purpose of ascertaining the capital contributed to the new partnership by each of its four partners. The present suit is brought by the plaintiffs for an account and a share of the profits of the partnership which was formed in August 1890 and was dissolved in August 1891, and it cannot be regarded, within the meaning of Article 106, as a suit in part for an account and a share of the profits of the partnership which was dissolved in August 1890 on the death of Pacha Mean, This very question was considered by the Court of Appeal in Betjemann v. Betjemann [1895] 2 Ch. 474 by Lindley, L.J., Lopes, L.J., and Rigby, L.J., and they unanimously held, reversing the decision of Wright, J., that when a partnership is determined by death and the surviving partners continue to carry on the business, the statute of limitation was no bar to taking the accounts of the new partnership by going into the accounts of the old partnership which have been carried on into the new partnership without interruption or settlement. I cannot therefore uphold the view of the District Judge that the suit, not having been brought within three years from the date of the death of Pacha Mean, is barred by the law of limitation. The District Judge further finds that even if the period of limitation is to be reckoned from the date of the death of Chanda Mean in August 1891 the suit is barred except in respect of the share of the third plaintiff who is a minor. The District Judge is of opinion that the claims of the plaintiffs are separate and distinct, that Section 8 of the Limitation Act has no application to the case, as the plaintiffs cannot be regarded as joint claimants or joint creditors, and that the third plaintiff cannot be considered to be barred inasmuch as neither the first nor the second plaintiff can give a valid discharge in respect of the share of the third plaintiff. Under Article 106, the date of dissolution of the partnership is the time from which the period of limitation has to be reckoned, and at that time the third plaintiff, one of the heirs of the deceased partner Chanda Mean, was labouring under the disability of minority.

6. The cause of action for an account and share of the profits of the partnership which Chanda Mean had against his co-partners was only a single and indivisible one, and certainly if he had retired from the partnership, or if the partnership was otherwise dissolved during his life-time, he could have brought only one suit. On his death his right devolved upon all his heirs in several shares which are regulated by the Muhammadan law of inheritance. Though as between themselves their rights are several, yet so far as the ancestor's debtor is concerned his obligation is single and cannot be split up without his consent. The numerous heirs of the deceased creditor are only jointly entitled to enforce the right which the deceased creditor, if alive, could singly enforce. If by the death of the creditor the right and the correlative obligation are, as under the civil law, split into several so that each one of the heirs of the creditor can enforce the payment to him of his share of the debt, and the debtor is under a distinct obligation to each of the heirs of the creditor to discharge his several shares in the debt see Pothier on 'Obligations,' volume I, part II, chapter IV, Section 2, Article 2, page 179,-also translation of an extract from Demolombe's Traite des Contrats quoted in Kandhiya Lal v. Chandar I.L.R. 7 All. 313 each of the heirs will have to bring a separate suit against the debtor and all the heirs cannot join as plaintiffs in one suit against the debtor Smurthwaite v. Hannay [1894] A.C. 494 and Section 7 of the Limitation Act will be applicable only to such of the heirs as are affected by disability and no question of the competency of a co-claimant to give a complete discharge can arise, inasmuch as the claim of each co-heir is a distinct and several one. Conversely, under the civil law, the obligation and the correlative right are also split into several, if the debtor dies leaving several heirs. Neither the English law nor the Indian law has followed the civil law in this respect,-and it is unnecessary to refer here to the limited class of cases in which, under the English or Indian law, an apportionment takes place on a transfer of property in several shares vide Twynam v. Piokard 2 B. & All. 105 Section 37 Transfer of Property Act, and Section 30 of the Indian Easements Act), nor to claims to realty, nor to cases in which the covenantees are tenants in common. A question similar to the one now under consideration arose in the case of kandhiya Lal v. Ghandar I.L.R. 7 All. 313 in which two out of several heirs of a deceased Hindu brought a suit for the recovery of their 4 1/2 anna share in the debt due to the estate of the deceased. It was held by the Full Bench (Mahmood, J., dissenting) 'that when, upon the death of the obligee of a money bond, the right to realise the money has devolved in specific shares upon his heirs, each of such heirs cannot maintain a separate suit for recovery of his share of the money due on the bond.' I fully concur in the judgment of the majority, but in arriving at their conclusion I am influenced mainly by the general principles of English and Indian law bearing on the question and a consideration of the serious hardship and inconvenience which will result from a contrary doctrine in the case of Hindus and more particularly in the case of Muhammadans, and, in dissenting from the judgment of Mahmood, J., I do not attach the same weight as the majority of the Full Bench do to the provisions of the Succession Certificate Act. The principle of the above decision applies With greater force to the present case in which the claim is for an account of the share of a deceased partner in the profits of a dissolved partnership and not for a share of an' ascertained sum or debt, as in the Allahabad case. Under the English law the question has occasionally arisen in respect of co-parceners, who correspond to co-heirs under the Hindu law or Muhammadan law, for in other cases under the English law the legal representative of a deceased person is either an executor or an administrator. In Deoharms v. Horwood 10 Bing. 526 it was held that one co-parcener cannot sue separately for his portion of rent accruing to him and his fellows, Tindal, C.J., stating the law on the subject as follows: 'The authorities all agree that whatever be the number of parceners, they all constitute one heir. They are connected together by unity of interest and unity of title; and one of them cannot distrain without joining the others in the dowry. If they cannot distrain separately, how can they separately claim a portion of the rent from a person who has received it in the character of a trustee? It would be a great hardship on him to be exposed to three actions instead of one. But it might happen that he might have received authority from the other parceners. Inasmuch, therefore, as there has been no division of these rents, nor any agreement by the defendant to hold one-third of them separately for the plaintiff he has no right separately to sue the defendant.' Freeman in his treatise on 'Co-tenancy and Partition,' 2nd edition, page 427, Section 336, lays down the same proposition as follows, citing American decisions also on the point: If a 'covenant of general warranty be broken by the eviction of heirs of the covenantee they must jointly sue the covenantor. He is not liable to as many suits as there are heirs of his grantee.'

7. In Foley v. Addenbrooke 4 Q.B. 197 there was a joint demise by Edward Foley and his wife and Mary Whitby, and the covenants were with the said three persons and the heirs and assigns of the wife and Mary Whitby, respectively. It appears that Edward Foley and his wife were the owners of an undivided moiety, and Mary Whitby of the other undivided moiety and that on the death of Edward Foley and his wife, the reversion in their undivided moiety descended to the plaintiff as the son and heir of the wife of Edward Foley who, without joining the other lessor Mary Whitby, brought the suit. It was held that the cause of action was joint and that both the covenantees ought to have sued, though as between themselves their interest might be separate; and the principle on which the decision was based is that 'if the cause of action be joint, the action should be joint, though the interest be several.'

8. Whatever doubts may arise on the construction of an instrument as to whether a covenant in favour of two or more persons, parties to the instrument, whether in their character as tenants in common, co-heirs or otherwise, is joint, several, or several according to their respective interests-and under the English law, unlike the civil law, a covenant in favour of two or more cannot be both joint and several, except perhaps in a single instance, which need not be referred to here Keightley v. Watson 3 Exch. 716 Slingsby's Case Coke's Rep. part V. p. 186; Eccleston v. Clipsham 1 William's Notes to Saunder's Rep. pp. 162-68; Bradburne v. Botfield l4 M. & W. 559 there can be no doubt that a single cause of action cannot be divided into several causes of action against the obligee without his privity, though two or more persons may have several interests in the right giving rise to the cause of action, whether such persons be joint covenantees or the heirs of a single covenantee. Exceptions to this rule generally rest on statutory provisions and their nature has been already indicated. When a right accruing to a single person from a covenant in his favour devolves, on his death, on two or more of his heirs in several shares, no question can possibly arise as to whether the covenant was joint or several, and the only difference caused by the death of the covenantee is that the cause of action which resided in one person, is, by operation of law, transferred to a number of parceners, who, as observed by Tindal, C.J., in Deoharms v. Horwood 10 Bing. 526 constitute one heir. In other words, the claim which was possessed by one individual is now possessed jointly by a number of individuals, who are his legal representatives and all must therefore join in a suit to enforce that claim. If one or more of such joint claimants do not join as plaintiffs, the course to be pursued in India, according to long-established course of decisions, is for the claimants bringing the suit to join, as party defendants, those who do not join as plaintiffs. The cause of action for taking an account and recovering Chanda Mean's share of the profits of the partnership which was dissolved by his death in 1891, being one and indivisible, as against the surviving partners, it necessarily follows that the suit cannot be barred in respect of some of his heirs and not barred in respect of the others. It must be either wholly barred or not barred at all. This is the principle underlying Sections 7 and 8 of the Indian Limitation Act, which in this respect is, I believe, the same as the English law of limitation.

9. The law of limitation operates in favour of the obligor and if the obligation which is sought to be enforced against him is single and indivisible it is perfectly immaterial, so far as he is concerned, whether the correlative right is possessed by a single person, or by several persons jointly and whether, as between those several persons, the right is a joint one with right of survivorship or a several one according to their respective interests. Section 7 of the Limitation Act applies to cases in which the right of suit resides either in one person singly or in several persons jointly. In the former case, only one individual has to bring the suit, but in the latter case, the suit has to be brought by all the persons who possess that right except that in those cases in which one or more of them refused to join as plaintiffs, they may be and ought to be joined as party defendants; and for the purposes of Section 7, all such persons have to be regarded as plaintiffs. In the case of a sole plaintiff affected by disability, the application of the section is clear and it is in no way controlled by Section 8. In cases in which the right of suit vests jointly in a plurality of persons, I am clearly of opinion that if Section 7 stood by itself, and Section 8 had not been enacted, the protection given by Section 7 would extend only to cases in which each and all of the persons jointly entitled to sue were affected by disability at the time from which the period of limitation is to be reckoned and that if any one of them was then free from disability, the suit would be governed by the ordinary law of limitation and that Section 7 cannot be availed of by all or any of them, for the simple reason that the cause of action is a joint one This is the construction placed by this Court on Section 7 taken by itself in Seshan v. Rajagopala I.L.R. 13 Mad. 238 following the decision of Lord Kenyon in Perry v. Jackson 4 T.R. 616 and if I may venture to say so, I fully concur in the soundness of this construction of Section 7, notwithstanding that such construction has been apparently dissented from by the other High Courts Surja Kumar Dutt v. Arun Chunder Roy I.L.R. 28 Calc. 465 Zamir Hassan v. Sundar I.L.R. 22 All. 199 and Govindram v. Tatia I.L.R 20 Bom. 388. The operation of Section 7, however, la extended and modified by Section 8, which deals with cases in which the right of suit resides jointly in a plurality of persons, and its object is principally to extend the protection given by Section 7 to cases in which the persons entitled to sue were not all affected by disability at the time when the right to sue accrued, but only one or some of them were so affected and the others not. The protection given by Section 7 is extended to this class of cases, not absolutely, but subject to the important condition that a complete discharge of the obligation could not be given by all or any of those unaffected by disability without the concurrence of the person or persons so affected. If such a discharge could be given time will run against all the persons (including the person or persons affected by disability), and the suit will be governed only by the ordinary law of limitation. This clearly follows from the first part of Section 8. The latter part of Section 8 provides that if no such discharge can be given, time will not run as against any of them, until one of them becomes capable of giving such discharge without the concurrence of the others. This latter part relates to a case in which, though all were affected by disability at the time from which the period of limitation is to be reckoned, yet one of them whose disability terminates before the disability of the others becomes capable of giving a complete discharge of the obligation, without the concurrence of those still labouring under disability (vide illustration (b) to Section 8). But for this provision, made by the latter part of Section 8, time will begin to run under Section 7, not from the time when one of them ceases to be under disability and becomes capable of giving a discharge without the concurrence of the others, but only from the time when the last of such persons has ceased to be under disability. Section 8 does not expressly provide that in a case in which one or some alone of the persons entitled to sue were affected by disability at the time when the cause of action accrued to all the persons entitled, time will not run as against any of them, unless a complete discharge of the obligation could be given by one or more of the persons free from disability, without the concurrence of the person., or persons labouring under disability. But this is necessarily implied in the section. The combined operation of Sections 7 and 8 in cases in which the right of suit resides jointly in a plurality of persons is, in my opinion, as follows:-(a) such suit cannot be barred in part, in respect of some, and not barred in part, in respect of the others; (6) if any one of several joint creditors or claimants is under a disability and a full discharge could be given without his concurrence by all or any of the other joint creditors or claimants, the suit will be governed by the ordinary law of limitation and time will run against all; (c) but where no such discharge can be given, time will not run against any of them, until all have ceased to be under disability; (d) if all were affected by disability, time will not run against any of them, until all have ceased to be under disability, unless one of them, who, in the meanwhile, has ceased to be under disability, becomes capable of giving a complete discharge without the concurrence of the others, in which latter case, time will run against all from the time when one of them has thus become capable of giving such discharge.

10. In the present case among the heirs of Chanda Mean at least one of them, viz., third plaintiff, was a minor, in August 1891, the other heirs having, prior thereto, attained the age of majority. If it was competent for any of the major heirs, without the concurrence of the third plaintiff, to discharge the surviving partners from liability to account for the share of Chanda Mean, in the profits of the partnership, the case would fall under class (b) above and would be completely barred by limitation. But if neither all nor any of the heirs who were sui juris were competent to bind the third plaintiff by' their discharge, the case would fall under class (c) above, and the suit will not be barred by limitation as against any; and in fact it would be in time, if brought within any period not later than three years after the third plaintiff attains the age of majority. In the case of joint promises it was no doubt held, following the English law, in the case of Barber Maran v. Ramana, Goundan I.L.R. 20 Mad. 46l that a release by one of them, without the knowledge or concurrence of the other or others, will bind the latter. The authority of this decision, so far as the principle laid down therein was applied, as it was in that case, to co-mortgagees, as such, is considerably shaken by the recent decision of the Court of Chancery in Powell v. Brodhurst [1901] 2 Ch. 160. It may be that when money is advanced to one, by several persons jointly, each of them authorises the others, by implication, to act on his behalf, and a release or discharge therefore, of the claim, by one, is binding upon the others. Assuming that the principle of the English common law as to the operation of a release given by one of two or more joint promisees, is not affected by the Indian Contract Act, and is the law here, as held in Barber Maran v. Ramana Goundan I.L.R. 20 Mad. 461 already cited, it is clearly inapplicable to the case of co-heirs, who are not joint promisees but the heirs of a single promisee, and it will be dangerous to extend and apply the English doctrine to a release given by one of such co-heirs. Mahmood, J., in his dissenting judgment in the Full Bench case already referred to, maintains that as between co-heirs none of them can receive the whole, for the others, nor give a discharge to the debtor. It is obvious that such is the law and I fully concur with that learned Judge that a co-heir cannot, as such, give a valid discharge binding upon the other co-heirs. In the case of co-heirs, among Hindus, the Hindu law, as a general rule, constitutes one of them, the senior in age, as the karta or manager of the inheritance on behalf of all the co-heirs; and it has been held that the managing member of an undivided Hindu family is one who, within the meaning of Section 8 of the Limitation Act, can give a discharge without the concurrence of the minor members of the family, and that time therefore will run against all the members of the undivided family including the minor member thereof-vide Surju Prasad Singh v. Khwahish Ali I.L.R. 4 All. 512 and Vigneswara v. Bapayya I.L.R. 16 Mad. 436. But, under the Muhammadan law, none of the co-heirs is given the position which the managing member of an undivided Hindu family holds with reference to his co-heirs. The discharge contemplated by Section 8 of the Limitation Act, is by one or more of the joint creditors or claimants, by virtue of their being such creditors or claimants. The fact, if fact it be, that a minor's guardian, who also happens to be a co-claimant with the minor, can, in his or her capacity as such guardian of the minor, give a discharge binding the minor, is not a discharge within the purview of Section 8, and limitation therefore will not run against any of the creditors or claimants. It may also be mentioned that the test under Section 8 is not whether a suit can be brought or an application can be made without the concurrence of the joint creditor or claimant labouring under disability,-for in the case of a joint claim the right of action resides in all jointly and the suit cannot therefore be brought, nor the application made as of right, by one or more without joining the others,-but whether one or more, can, without the concurrence of those under disability, give a release binding upon all. In my opinion the finding of the District Judge that suit is barred by the law of limitation, cannot be upheld and he ought to be directed to take an account and submit his findings on the third and fifth issues within three months from the date of the receipt of this order.

Benson, J.

11. I fully concur with the judgment which has just been delivered.

12. The plaintiffs, as the representatives of the deceased, Chanda Mean, sue for an account of his partnership with the first defendant and others.

13. The District Judge, though finding that there was no such partnership, has set forth in his judgment what seem to me to be conclusive reasons for holding that there was, in fact, such a partnership. It was dissolved by the death of Chanda Mean in August 1891. Primd facie the present suit brought in 1898 for an account of the partnership would be barred by Article 106 of Schedule 2 of the Indian Limitation Act, which requires such a suit to be brought within three years from the date of the dissolution of partnership. The bar by limitation is, however, saved by Sections 7 and 8 of the Limitation Act inasmuch as the third plaintiff, one of the children of Chanda Mean was a minor in August 1891 and is still a minor. If she was the sole representative of Chanda Mean her suit would be saved from limitation by Section 7 of the Act; and the effect of Section 8 of the Act is to save the bar in the case of the other plaintiffs also, inasmuch as they are joint claimants with the third plaintiff and none of them could give, or could have at any time given, the partners of Chanda Mean a discharge from liability to Chanda Mean's representatives without the concurrence of the third plaintiff. The District Judge is in error in supposing that the plaintiffs have several or separate rights of action according to the shares in which they are entitled to the property of Chanda Mean. Inter se, no doubt, they are entitled to have separate shares in that property, but for the purpose of recovering the share of the partnership assets due to Chanda Mean their cause of action is one and indivisible and they cannot each maintain a separate suit, but must sue jointly as his representatives Kandhiyn Lal v. Chandar I.L.R. 7 All. 313. If, as in this case, some of the representatives are unwilling to sue they may be joined as defendants, so that all may be bound by the decree, and save the debtors from the liability to a series of actions on the same cause of action. The plaintiffs' suit, then, for an account of Chanda Mean's share of the assets of the partnership dissolved by his death in 1891 is not barred by the law of limitation. In order to ascertain his share in that partnership it is necessary to ascertain the amount of capital which he and the other partners put into the partnership business, and for this purpose it is open to the parties to go into the accounts of the prior partnership which was put an end to by the death of Baoha Mean in 1890, since it is admitted that on his death the remaining partners, including Chanda Mean, continued to carry on the partnership with the capital then employed in it-[Lindley on 'Partnership,' 5th Edition, (1888), pp. 520-521].

14. For these reasons I am of opinion that the dismissal of the plaintiffs' suit was wrong, and that we must ask the District Judge for a finding on the third and fifth issues in order to determine whether any sum, and, if so, what is due to the plaintiffs.

15. I concur in the order proposed by my learned colleague.


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