Sankaran Nair, J.
1. The following is the pedigree of the parties:
had two sons and one daughter.
| | |
son daughter son
Chelamann. Saramma adopted P. Tattaya
| Venkanna (2nd defendant) |
| | | |
Sarayya (1st Subbannu Venkanna |
plaintiff) | (2nd defendant). |
| | ____________|_________
Sreeramamoorthy Lakshmana (3rd | |
defendant adopted Paddasarayya Gangayya
by 2nd defendant) | (3rd plaintiff.)
2. The plaintiffs and the 1st defendant are members of an undivided family, and the 2nd defendant though born in their family has been adopted by Ayyanna, the son-in-law of Sarayya the grand-father of the 1st and 3rd plaintiffs, and has become a member of a separate family. The 3rd defendant is the adopted son of the 2nd defendant. It is the plaintiffs' case that all the property belonging to their joint family has been already divided among them into four equal shares; and with the exception of the property shown in schedule III, the various members are in possession of the properties separately allotted to them. They pray for a division among themselves of the property which still remains undivided. They further allege that their family is entitled to a half share in the trade carried on at Akkividu by the 2nd defendant who is the active member of the partnership and has all the accounts and properties in his possession. The plaintiffs pray for a dissolution of that partnership and for the recovery of their share in the assets of that firm.
3. An objection was taken by the defendants that the suit was bad for misjoinder of distinct causes of action. This issue was argued first before the suit was posted for evidence and it was decided in favour of the plaintiffs on the 14th August 1903. The Judge held that the plaintiffs are entitled to sue for their share of the family property and, also for a dissolution of the partnership in the circumstances of this case and that there is no misjoinder either of causes of action or of parties.
4. When the case came on for hearing on the 19th January 1905, the Judge made the following order:
There are two sets of contending parties, viz., plaintiffs and 1st defendant; plaintiffs and 1st defendant against 2nd and 3rd defendants.
The contentions between the first set of parties are raised in issues Nos. 1 to 4. The contentions between the second set of parties are raised in issues Nos. 6 to 14.
The 5th issue raises the question of misjoinder. and was found in favour of plaintiffs.
I am of opinion that the two causes of action cannot be conveniently tried together. The parties agree.
I direct under Section 45, Civil Procedure Code, that the two causes of action be separately tried.
5. The plaintiffs and the 1st defendant compromised the questions in dispute between them and issues Nos. 1 to 4 were not, therefore, tried. Issues Nos. 6 to 14 alone were tried by Subordinate Judge. He finally passed a decree in favour of the plaintiffs for their half share in the Akkividu business and gave the necessary directions in 'he decree for ascertaining their share and giving' the property to them. This is an appeal against that decree.
6. The plaintiffs were living at Kottapalli and were trading at that place. The 2nd defendant was at Akkividu.
7.According to the plaintiffs, when the business was started at Akkividu in 1868, it was arranged that their family was to take one half share and the 2nd defendant was to take the other half share and manage the business. He was also to contribute towards the capital to the extent of the money in his hands and the plaintiffs were to contribute the rest of the money that he required. Accordingly both themselves and the 2nd defendant contributed respectively their shares of the capital. They used to settle their accounts every year till 1891, when the last adjustment of profits was made (see Exhibit A-12). According to the 2nd defendant who is now 70 years old, his father who died about 30 or 40 years ago left him between 10 to 15 thousand rupees. His mother and sister also helped him with some money; with this he carried on the trade at Akkividu. He states that there was an agreement between him and the plaintiffs that the monies earned by them both at Kottapalli and Akkividu should be equally shared between them and as a result each contributed capital to the business carried on by the other.
8. In 1891 they came to a settlement that the plaintiff's family should realize for their share the assets of the Kottapalli business and that he himself should take the assets of Akkividu business. It was then ascertained that the Kottapalli properties came to Rs. 1,70,000 or 1,80,000 and that the Akkividu properties were worth about Rs. 1,10,000. The Judge finds that this agreement has not been proved.
9. The main question argued before us is: Whether the plaintiff's claim is barred by limitation under Article 106 of the Indian Limitation Act. It is contended that even if there was no actual settlement in 1891 by which the partnership was dissolved yet the conduct Of the parties shows that the plaintiffs were not treated as partners of the 2nd defendant so far as the business of Akkividu was concerned, and the suit, not having been brought within 3 years from the date when the partnership must be taken to have been dissolved in 1891, was barred by limitation.
10. There is no doubt that in 1891 the plaintiffs commenced to divide the properties which belonged to them. They say that they wanted to divide their properties at Akkividu also and for that purpose went to Akkividu and wrote the final adjustment which is Exhibit A-12. Except the dwelling houses at Akkividu itself all the other properties to which the plaintiffs are entitled are included in this adjustment. They found that the total amount that they were then entitled to get was Rs. 53,765-14-6. The houses at Akkividu were excluded because they say they wished to divide the houses themselves. The division of the Kottapalli properties which began in that year went on for over one year and with the exception of the properties now in suit all the rest of properties worth over Rs. 1,70,000 have been divided. So far as Akkividu was concerned they say that they demanded their share again in 1893. The defendant evaded by saying that the grain in the store and that to be collected from the ryots must be sold and converted into money and that then alone the division could be made. There was another attempt they say in 1896. When they began to take accounts for the purpose of partition the 1st defendant left Akkividu as he received a message that his wife was dangerously unwell or that she had died and that they also left the place shortly after. They also attempted on one or two occasions afterwards to get their share. On the first occasion they were unable to do it as all the accounts and documents had to be produced before the Collector for the purpose of settling the income-tax payable to Government. On the last occasion they said that the 2nd defendant went away stating that he had to go to Ellore, Bezwada, and other places in order to execute the decrees which would become barred. That attempt also proved ineffectual. And then finally in 1901, Exhibit I was executed by which the plaintiffs undertook to accept anything which the 2nd defendant might give them for their share in the Akkividu property. The effect of Exhibit I is one of the questions we have to determine.
11. After 1891, it is admitted that the plaintiffs did not contribute any capital to the Akkividu business. They received no payment from Akkividu. There were no dealings between them and the 2nd defendant. There is no ledger in the name of the 2nd defendant in Kottapalli accounts. Before 1891, the 2nd plaintiff used to attend to the leasing of lands and collecting the rent of the lands in Akkividu whenever he happened to stay there. After that he did not do anything. It thus appears that, after 1891, there were not only no settlement of accounts but the plaintiffs never had anything to do with the accounts of Akkividu. After that they never interfered in the management of that business though they interfered in it before. According to themselves, their attempts to get their share were evaded for some reason or other by the 2nd defendant who is not a member of the family, and finally we have their own statement in Exhibit I that they had agreed among themselves to divide equally the property which the 2nd defendant had acquired at Akkividu and the property which the plaintiffs' family had acquired at Kottapalli, and that on account of their dividing the Kottapalli properties among themselves without giving the 2nd defendant anything on account of his share, the 2nd defendant refused to give any share to the plaintiffs in the Akkividu business adducing as a reason therefor their refusal to give him any share in Kottapalli.
12. According to the evidence in the case, the 1st and 3rd plaintiffs pressed the 2nd defendant to give them a share of the profits of the business at Akkividu on the ground that he had no children and that they had for a long time entertained expectations of succeeding to his estate, the 2nd defendant replied that there was a complete severance of interest between himself and themselves, that they were not entitled to ask for a share of the Akkividu properties, and being importuned he finally consented to give them a certain sum at his discretion provided they executed a letter stating that the plaintiffs would abide by whatever proposal he might make, and accordingly Exhibit I was written by the 1st and 3rd plaintiffs and signed by them as well as by the 1st defendant and the 2nd plaintiff.
13. On the facts stated above, it must be found that the partnership was dissolved in 1891. The partnership is not one for any period of time. It was a partnership at will. It might be dissolved at any time by any one of the parties. Exhibit A-12 was prepared with a view to divide the properties at Akkividu. There was no intention, it is clear, at that time of the plaintiffs carrying on the Akkividu business as their property as before.
14. It is contended on behalf of the plaintiffs that the 2nd defendant realised certain debts in execution of the decree passed in favour of the 1st defendant's father to which the 1st defendant was made a party as the representative of his father on the latter's death, and the proper inference, therefore, is that the 2nd defendant was carrying on the Akkividu business on behalf of the plaintiffs as well. The circumstances under which the 2nd defendant was allowed to execute the decree which stood in the name of the 1st defendant are not explained. Nor is there any evidence to show that the plaintiffs requested the 2nd. defendant to have this amount credited in their favour in the Akkividu business.
15. It is next urged that the 2nd defendant has been collecting the rents of the Ibhimavaram lands which were near Akkividu and which belonged to the plaintiffs' family. The collection of the rents is admitted. But here also there is no evidence as to the circumstances under which the 2nd defendant collected it. He is a near relation of the plaintiffs and it is also an admitted fact that plaintiffs asked the 2nd defendant to act as a mediator in the disputes amongst themselves. Without, however, some evidence as to the circumstances under which the debts were collected or the incomes realised to show that he realized them as a partner, it is impossible to say that the plaintiffs were treated as having a subsisting interest in the Akkividu business.
16. The only other evidence which is referred to as supporting the plaintiffs are the statements in certain letters between the plaintiffs and the 2nd defendant. They are Exhibits G, H and L. In Exhibits H and L we are unable to find anything to support the plaintiffs' contention. In Exhibit G there is a reference to the 2nd defendant purchasing paddy for the joint benefit of the plaintiffs and the defendant. But it must be remembered that this was during the Khara year when the settlement evidenced by Exhibit A-12 was going on. There is no evidence of any transaction in any subsequent year which tends to prove that they had been jointly carrying on any business. Exhibit II of 1895 on the other hand is decidedly against the plaintiffs' contention. It is a deed of sale, dated the 22nd July 1895, executed by Subbanna and Venkanna. The property itself was in Akkividu. The 2nd defendant alone agreed to sell the property for a sum of Rs. 4,600 and received an advance of Rs. 50, and he writes the letter Exhibit M to the 1st and 3rd plaintiffs telling them that he had agreed to sell this property and received an advance. He, therefore, requested them to send the 1st defendant to Akkividu to join in the execution of the deed of sale; the 1st defendant accordingly went to Akkividu and joined in the sale-deed with the 2nd defendant. If the plaintiffs also had any interest in this property it is scarcely likely that the 2nd defendant alone would have entered into a contract for the sale of it and the plaintiffs and the 1st defendant would have acquiesced in the sale. There is no suggestion that the plaintiffs' family received their share of it. The plaintiffs say that the sale was carried out between the 1st defendant and the 2nd defendant in collusion to defeat the plaintiffs. But Exhibit M rebuts this suggestion.
17. The only other evidence that remains to be dealt with has reference to the income-tax which the parties had to pay. It appears that, before 1887, for income-tax purposes both Kottapalli and Akkividu. were treated as one, and in 1837, the members of the plaintiffs' family presented a petition in which they stated that the business at Kottapalli and Akkividu were one and the same and that they were not separate. And in Exhibit III (a) they requested the 2nd defendant to make a similar statement. This statement is now admitted to be false, as according to the plaintiffs, the 2nd defendant was not entitled to the Kottapalli properties. They continued to make the same allegations in Exhibits N. K and 0, in which they maintained that there ought to be no separate assessment. As it is admitted by the plaintiffs themselves that they made the false statement for the purpose of getting some reduction of the income-tax, no weight can be attached to them. If such statement is true, then the 2nd defendant is also entitled to Kottapalli business. We are, therefore, of opinion that the partnership must be treated as having been put and end to in 1891, that the plaintiffs were not treated as partners subsequent to that date and, therefore, their claim to recover the amount due to them is barred by limitation.
18. On the fifth issue I am of opinion that, there is no mis-joinder of parties. Though it was not necessary I am not aware of any provision of law that precludes the plaintiffs from making the 2nd and 3rd defendants parties to the suit, to make any declaration of rights of the members of the plaintiffs' family in the Akkividu business binding on.
19. But I am of opinion that there is mis-joinder of. causes of action. The causes Of action are clearly different. The dissolution of partnership with the 2nd defendant was unnecessary for the partition of family property, and the questions that arise for determination in a suit for dissolution are entirely different from those arising in a partition suit.
20. The plaintiffs prayed in appeal for an amendment of the plaint by withdrawing the claim for partition against the 1st defendant and converting the suit into one for dissolution of partnership against the 2nd and 3rd defendants. I am of opinion this prayer ought to be allowed in the circumstances of the case.
21. The suit was mainly one for dissolution. The value of the partnership property is about Rs. 1,75,000 while that of the joint family property is only about Rs. 20,000. The allegations of the parties and the evidence show that the real question in dispute was whether the plaintiffs had any interest in the Akkividu business and a suit for mere partition of family property would probably not have been filed. The fifth issue as to mis joinder was tried first and decided in their favour and a party acting in good faith ought not to suffer on account of an erroneous view taken by the Court on a question of procedure, when the other side is not prejudiced. The Court ordered separate trials and after the compromise the suit was tried as one for dissolution of partnership only as if the plaint had been then amended. The parties had incurred heavy expenses, the Court-fee paid in appeal alone being Rs. 1,700 and given all their evidence. I would, therefore, allow the amendment and treat the plaint as one for dissolution of partnership only and as on that question my finding is in favour of the appellants, I reverse the decree and dismiss the suit with costs of defendants Nos. 2 and 3.
22. I agree that the decree of the lower Court must be reversed and the suit dismissed on the merits. I have little to add to what is set forth in the judgment of my learned colleague.
23. Though the finding of the Subordinate Judge, 'that the agreement of 1891 is not proved' was not contested in appeal before us, there is little doubt in my mind that that finding was not correct. Certain it is that from that date the 2nd defendant excluded the plaintiffs and 1st defendant from partnership in the Akkividu trade and the present suit is, therefore, barred by limitation. Exhibit I can only be explained in the way that the 2nd defendant explains it and that is as an arrangement by which the plaintiffs agreed to accept whatever sum the 2ad defendant might see fit to give as a solatium for their disappointed expectations of inheriting his estate.
24. I am of opinion that the suit is also bad for misjoinder of parties and causes of action and ought to be dismissed on that ground alone. The decision in Purushottam v. Atnaram Janardan 23 B. 597 appears to me to be clearly in point.
25. Mr. Mayne refers to the decision in para. 493, page 668 of the 7th Edition. He says 'Every suit for a partition should embrace all the joint family property unless * * * * it is held jointly with strangers to the family who have no interest in the family partition and, therefore, cannot be made parties to the general suit for partitions.
26. The Madras cases cited by the District Judge when deciding the preliminary issue are not in conflict with this. They are cases of joinder of a stranger to whom a portion of the family property has been alienated by one member and who, therefore, had to defend his title as against plaintiffs.
27. I am of opinion that the defect of misjoinder is^not one that can be cured. The objection was at the outset and has been hotly contested in both Courts.
28. The defect is one affecting jurisdiction and is not a mere irregularity. The fact that the suit for partition was compromised would seem to indicate that the mis-joinder was deliberate and with the object of detracting the 1st defendant from the 2nd defendant's side in the suit for dissolution of partnership.
29. The appeal must be allowed with costs of defendants Nos. 2 and 3 throughout.