Sadasiva Aiyar, J.
1. The plaintiff is the appellant and the suit was a suit for partition. The genealogical tree is as follows:
| | | |
Plaintiff 1st defendant 4th defendant Navutti (died 1913)
I Defendants 2 and 3.
2. There was a prior suit (O.S. No. 27 of 1906) brought by the 4th defendant which was decreed, but that decree was not executed, as, by a private engagement, his claims were satisfied. Hence the plaintiff sues for 1/3 share in the properties left (after so satisfying the 4th defendant's claim), the 1st defendant being entitled to another 1/3 share and defendants 2 and 3 being entitled to the remaining 1/3 share. This litigation was, however, complicated by the plaintiff claiming (among others) one further relief which arises out of the following facts :-The plaintiff, the 1st defendant, and the 2nd and 3rd defendants alone carried on a partnership trade for their separate benefit. This trade was carried on even during the lifetime of the plaintiff's father Ponnappa and of 2nd and 3rd defendants' father Navutti. Ponnappa died about August 1906. For his funeral expenses, the partnership consisting of the plaintiff, the 1st defendant and the defendants 2 and 3 spent moneys belonging separately to the partnership. When the partnership was dissolved in 1911, the amount alleged on the above account to be due to the partnership by the joint family estate fell to the share of the plaintiff among the partners. The plaintiff claims in this suit to recover from the 1st defendant and the defendants 2 and 3, 2/3 of this amount which forms item 1 of the 1) schedule to the plaint, the remaining 1/3 being due to himself (as the assignee from the firm) by himself (as one of the three sharers of the joint family) The value of this relief, that is, for recovery of 2/3 of the debt due by the joint family to the partnership business is Rs. 567-12-7. The lower courts disallowed the plaintiff's claim for this relief as also for a minor relief valued at Its. 68-5-4 relating to items 2 to 4 of B 1 schedule. This second appeal relates to these two matters, but there is nothing in the appeal so far as it relates to items 2 to 4 of B 1 schedule. The second appeal is therefore at once dismissed so far as it relates to that matter.
3. The ground on which the lower courts disallowed the plaintiff's claim to recover 2/3 of the amounts spent out of the partnership funds for the necessities of the joint family is that the amount was spent so long ago as in 1906 and the claim for its recovery was barred by limitation, the suit having been brought in 1913.
4. Mr. Narayanaswami Aiyar for the appellant before us contended, (a) that the claim was not barred by limitation because the cause of action arose only at the dissolution of the partnership in 1911, (b) that, though his claim to recover the shares of the 1st defendant and of the 2nd and 3rd defendants in the money spent may be barred, the plaintiff was entitled, in effecting a partition of the joint family properties, to have allotted to him properties exceeding the value of the shares allotted to the other 1/3 share by the amount due to the partnership by such sharers.
5. As regards contention (a), I do not see how the date of the dissolution of the partnership can give a cause of action against the joint family which cause did not exist before. The right of the members of the partnership firm in the moneys taken out of the firm had nothing to do with the rights and liabilities of the joint Hindu family of which the members did not solely consist of the partners of the firm but included others. Mr, Narayanaswami Aiyar, argued on the basis of the two decisions, in Rustomji v. Sheth Purshotamdas I.L.R. (1901) B. 606 and Kashinatha Kedari v. Ganesh I.L.R. (1902) B. 739 that the partnership consisting of the plaintiff, the 1st defendant and the defendants 2 and 3 (four in number) could not have brought a suit against the joint family consisting of the plaintiff, the 1st defendant, the father of the defendants 2 and 3 the defendants 2 and 3 and the 4th defendant, (six in number), because the plaintiffs' four names would also have to appear as the names of four of the six defendants in such a suit and that therefore the only course for the members of the partnership was to have treated the loan as an item to be taken into account in their favour against the other coparceners of the joint family when the joint family members separated from one another.
6. In the first place, these two decisions were given in 1901 and 1902 under the old Civil Procedure Code. Jenkins, C.J., says. at page 612, (Rustomji v. Sheth Purushotamdas I.L.R. (1901) B. 606. 'This is in accordance with the doctrine that where an individual is a common partner in two houses of trade, no action can be brought by one house against the other house upon any transaction between them while such individual is a common partner. In illustration of this, we may refer to Bosanquet v. Wray (1815) 6 Taunt 597.'
7. This doctrine is founded on the elementary rule of procedure too often disregarded in this country, that the same individual, even in different capacities, cannot be both a plaintiff and a defendant to one and the same action.' But the learned Judge proceeded to say, 'While, however, at Common Law, this rule led to the result we have indicated, the Courts of Equity surmounted this difficulty. Though they observed strictly the rule that a man cannot be both plaintiff and defendant, they did not allow it to stand in the way of doing justice between the parties; for provided all interested were before the court either as plaintiffs or as defendants, they adjusted and determined their rights. This is aptly exemplified in Luke v. South Kensington Hotel Company (1879) 11 Ch. D. 121.' I think that the reasoning in the above decision does not lead to the result that no suit at all could be brought in which a decision could be arrived at as regards the claim by a firm consisting of A and B as partners against a firm consisting of A and C as partners even under the old Procedure Code. All that seems to have been decided was a matter of procedure that A should not figure both as plaintiff and defendant and that the suit should be so framed as regards parties that this irregularity does not occur while further taking care that all the three partners A, B and C in both firms are made parties to the suit. The proper prayer in such a suit ought to be for the taking of the accounts of both partnerships if necessary, for adjusting the rights of the partners and for the grant of just and equitable relief's which arise on the facts. Further, I do not think it is allowable to treat a Hindu joint family as of the nature of a partnership firm (the shares and the numbers of the members interested in the family properties not depending upon contractual relations but upon the rules of Hindu law) or to treat the claim of a few of the members (who are members of a separate partnership firm) against the joint family as the claim of one partnership firm against another partnership firm. Even if this could be done, a partnership by lending to the joint family, does possess an immediate cause of action and though the former rule of procedure might not have enabled it to bring a suit in the form of an ordinary suit for recovery of the entire amount of the loan (with the members of the firm ranged as plaintiffs and the same members and the other members of the joint family as defendants), there was nothing to prevent the members of the partnership firm from utilizing that cause of action to bring a suit ranging the other members of the family alone as defendants and praying for proper equitable relief's. Even if any of the articles 57, 61, 62 and 115 of the first Schedule of the Limitation Act, does not apply to such a suit, the residuary Article 120 would apply to it and the firm should have brought the suit within 6 years. No such suit within 6 years of 1906 was brought and hence the claim based on the loan of 1906 seems to have been clearly barred in 1913.
8. Again, if all the 3 members of the firm are treated as managing members of the family, Article 107 of the Limitation Act would apply. That article is as follows :-' By the manager of a joint estate of an undivided family for contribution, in respect of a payment made by him on account of the estate.' This shows that a managing member is entitled to sue for contribution and is not bound to sue for or wait till, partition to get his claim against the joint family adjusted. (In the cases in Aghorenath Mukhopadhya v. Grish Chunder Mukhopadhya I.L.R. (1892) C. 18, and Tirupatiraju v. Rajagopala Krishnama Raju : (1898)8MLJ271 , the suit was brought after division in the family for contribution in respect of moneys recovered by a creditor from the person who was joint family manager) Again, the new Civil Procedure Code of 1908 (which came into force on 1st January 1909) by Order 30 Rule 9 allows a suit by one firm against another notwithstanding that the firms have common partners. Hence, the plaintiff could have brought his suit against the joint family even as an ordinary debt claim (and not for contribution or other equitable relief) on 1-1-1903 and this suit brought in 1913 is barred on this ground also.
9. Reliance was placed by Mr. Narayanaswami Aiyar on the decision in Ramdhari Singh v. Permanund Singh 19 C.W.N. 1183, and on a passage in Mayne's Hindu Law, Section 470 for his contention that the plaintiff's claim is not barred by limitation. In the case in Ramdhari Singh v. Permanund Singh 19 C.W.N. 1183, the plaintiff and the defendants were joint heirs of one R. S. Singh. The plaintiff was entitled to 1/6th share in the estate of R, S. Singh, the defendants being entitled to 5/6th share. A sum of Rs. 7,700 and odd belonging to the estate was in deposit in a court. The plaintiff sued for recovery of 1/6th of that amount (nearly Rs. 1,300). Defendants (among other defences) claimed to set-off plaintiff's 1/6th share of the expenses incurred by the defendants on the sradh ceremony of one of R. S. Singh's widows. The learned Judges in their judgment (at page 1187) make the following observations on the defendant's claim of set-off : ' There remains the second item, the expenses of sradh. The learned Judge in one part of his judgment seems to have held that there was no agreement on the part of the plaintiff to pay a share of such expenses, but in another place he says as follows:-' The plaintiff alleges that the amount of cash found was over Rs. 4,000 and certain amounts were allotted for sradh and other expenses and only the balance divided. The defendants allege that all that was found was divided and they undertook the sradh expenses on the plaintiff agreeing they should recoup themselves from the moneys in deposit, etc. now in suit. All these questions have to be gone into and many others.' It seems to us therefore that the learned Judge has not come to any positive finding upon the alleged agreement on the part of the plaintiff to pay a share of the sradh expenses. Besides, apart from any agreement, the plaintiff is liable to contribute his share of the sradh expenses. The amount, however, which may be found on enquiry into the above matter, cannot be called an 'ascertained sum.' But the sum need not be ' ascertained' in an equitable set-off. We think it inequitable to give a decree to the plaintiff for his share of the assets realised, and drive the defendants to claim against the plaintiff the amount which might have been spent on account of the sradh, under an arrangement with the plaintiff, or the reasonable expenses of the sradh apart from any agreement, more specially when a fresh suit may be barred by limitation, and when the defendants have paid court-fee upon the whole amount claimed by them.' So far as I could see, the learned Judges admit that the claim of the defendants for contribution if made in a suit by the defendants against plaintiff might be barred by limitation and all that they hold is that as defendants, they are entitled to claim a set-off of the contribution due to them by the plaintiff in respect of the sradh expenses.
10. The passage in Mayne's Hindu Law (see page 654, 8th Edn.) is as follows:-'But, of course, advances made to any member for a special private purpose, for which he would have no right to call upon the family purse, or to discharge his own personal debts, contracted without the authority of the other members, or alienations of the family property made by an individual for his own benefit, would be properly debited against him in estimating his share.'
11. This passage does not directly relate to the question now under consideration. It relates to the converse case where a member of a joint Hindu family as an individual member gets an advance of money from the joint family funds for his individual separate benefit, the case before us, being one where some members have themselves made an advance to the joint family. In the former case, the money advanced might be treated as joint family funds in the hands of the person to whom the advance was given which therefore ought to be brought into hotchpots at division. No question of limitation would then arise as regards such property. In the converse case before us, the joint family's liability to an individual member or individual members cannot be treated as assets or property to be brought into hotchpots at division, I must further remark, as regards the passage in Mayne's Hindu Law, that the authorities quoted in support of the proposition of law laid down in that passage, viz., the decisions in Konerrav v. Gurrao I.L.R. (1881) B. 589, Ramanna v. Venkata I.L.R. (1892) M. 246 and Damodardas Maneklal v. Uttamram Maneklal I.L.R. (1887) B. 271 cannot be said to fully support the said proposition laid down so broadly. I think, that, if the advance was made, say by a father to one of his sons out of the joint family income in the father's hands without any intention to make the son liable to account for the advance at division and without any agreement to that effect between the father and the son, it may be an act of partiality on the part of the father, but I do not think that, after three years, the joint family or any of the other sons can call the favoured son to account for the advance.
12. Mr. Narayanaswami Aiyar relied also on certain passages in Freeman on Co-tenancy, Sections 505 and 512, and contended that, in suits for partition between the co-sharers, courts of equity have got unlimited powers to do justice between the co-sharers. I was at first impressed with this argument, but after the best consideration which I have been able to give to it, I do not think that, where a statute law (in this case, Article 107 of the Limitation Act,) expressly treats a debt due even to the manager of a joint Hindu family as one to be sued for by him just as if he was a complete stranger and, if not, to have his remedy barred, it is permissible (apart from an agreement express or implied) to defeat the intention of the legislature by allowing it to be treated as an item of account or as a debt to be discharged from the joint family funds when partition takes place, it may be, after several years. Of course, the creditor member of the family, whether a manager or a junior member, may, before his debt is barred, take it out of any family moneys which come to his hands before his debt is barred, but he cannot do it after his claim for recovery is barred.
13. In the result, the second appeal is dismissed with costs.
14. Plaintiff and defendants 1 to 3 as partners of a trading firm defrayed the funeral expenses of plaintiff's father, a member of their family, and after dissolution of partnership, plaintiff alone became entitled to the assets of the firm. In his present suit for partition plaintiff seeks to recover the funeral expenses out of the joint family funds, although admittedly the claim, if treated as a debt, would now be time-barred. Plaintiff pleaded a separate oral agreement under which he is entitled to recover the funeral expenses, but it has been found that this agreement is not true and consequently it cannot be relied on here.
15. It is first contended that the firm consisting of plaintiffs and defendants 1 to 3 could not have sued the joint family of which they are members, because they would have been bringing a suit against themselves, although in a different capacity. Whatever may have been the Common Law of England on this point, the rule of procedure, that the same individual, even in different capacities, cannot be both a plaintiff and a defendant to one and the same action, has not been strictly followed by courts of equity as is pointed out by Jenkins, C.J., in Rustomji v. Sheth Purushotam Das I.L.R. (1901) B. 606, and is certainly not applicable to this country as is' shown by the provisions of Order 30, Rule 9 of the Code of Civil Procedure, which clearly contemplate suits between the same individuals in different capacities. The trading firm of which plaintiff and defendants 1 to 3, were partners could therefore have sued the joint family of which they were also members. Rule 9 no doubt places some restriction on execution of decrees obtained in suits between firms having one or more partners in common, but we are not now concerned with that question. I hold therefore that plaintiffs and defendants 1 to 3 could have brought a suit for the funeral expenses against their joint family, even if it be assumed that members of a joint family are partners in a firm, and that such a suit is now time-barred. It is then contended that plaintiff can claim the funeral expenses by way of set-off in partitioning the family property, although his right to sue for them as a debt is barred by limitation. The right to set-off, strictly speaking, is confined to a defendant, and if plaintiff makes the claim by way of equitable set-off, it is not very clear how plaintiff who has invoked the aid of the court against defendants, is entitled to any equity as against them. It is urged that he is so entitled because he has a legal right to demand partition. That is quite true, but there is no obligation on him to make such a demand and consequently when he moves the court to enforce his right to a share in the family property against the other defendants he is hardly entitled to claim something more than his share by way of equitable set-off. I therefore agree that the appeal should be dismissed with costs.