Madhavan Nair, J.
1. The 1st plaintiff is the appellant. This appeal arises out of a suit instituted by the plaintiff's to recover from the 3rd defendant personally and from defendants 1 and 2 out of the family properties Rs. 17,358 with subsequent interest at 12 per cent, per annum or in the alternative to recover from all the defendants 14/20th of the said amount with interest by way of contribution in respect of a decree debt discharged by the plaintiffs in execution of the decree in Appeal No. 296 of 1917 on the file of the High Court (see Ex. F). In the plaint the share of the debt claimed by way of contribution is 17/20, but in the argument the claim was altered to 14/20 accepting the contention of the defendants.
2. S.A. Subrahmanya Chetty and S.N. Subrahmanya Chetty, the 3rd defendant in the suit, sons of two brothers, started a money-lending firm at Singapore under the name and style of S.N.A. with a capital of more than six lakhs of dollars. The agents of the firm from 1901 to 1908 were successively Avadiappa Chetty and Jayangondan. They, as well as S.A. Subrahmanya Chetty, one of the partners, are now dead. Plaintiffs 1 and 2 in the present suit are the son and the grandson by a predeceased son of Avadiappa Chetty. Defendants 1 and 2 are the sons of Jayangondan. On the death of S.A. Subrahmanya Chetty, his mother adopted the 4th defendant as son to her husband Subrahmanya Chetty's father, and his widow adopted the 5th defendant as son to Subrahmanya Chetty himself. For the purpose of benefiting their agents it was the custom with these partners to start smaller firms in which their firm as well as the agents became partners. During the time of Avadiappa Chetty, S.N.A. firm and himself carried on such a partnership under the style of V.R.M.A. firm. We are not directly concerned with that firm in the present case. Avadiappa Chetty was agent till about the end of May, 1903. He was succeeded by Jayangondan. After the latter became the agent of the S.N.A. firm, a smaller firm, V.R.M.A.S. was started. It had a capital of 20,000 dollars. This is the firm with the dealings of which we are concerned in this appeal. The partners of this firm were S.N.A. firm, Avadiappa Chetty and Jayangondan. The plaintiffs stated that the shares of the partners in this firm were S.N.A.'s share 7 and 7, Avadiappa Chetty and Jayangondan's share 3 and 3. The defendants contended that the shares were in the proportion of 5, 5, 6 and 4. At the trial the plaintiffs admitted that the shares were in the proportion stated by the defendants. On the 11th November, 1904, S.A. Subrahmanya Chetty of the S.N.A. firm, died leaving a will. Afterwards the 3rd defendant for all practical purposes continued to manage the S.N.A. firm through the agent Jayangondan, who, it will be observed, was a partner of the firm of V.R.M.A.S. along with Avadiappa Chetty and S.N.A. firm and was also the manager of V.R.M.A.S. firm.
3. After a litigation which lasted from 1907 to 1912, Ramaswami Chetty, the executor of S.A. Subrahmanya Chetty, obtained probate of his will which was confirmed by the Privy Council on 21st February, 1916. In the meanwhile Subrahmanya Chetty's widow's attorney sued the 3rd defendant for a declaration that the S.N. A. firm had become dissolved by reason of Subrahmaniya Chetty's death and for accounts of the partnership. The present 3rd defendant contended that the suit was barred by limitation and got it ultimately dismissed by the Privy Council on 2nd March, 1916, on that point.
4. After Jayangondan became the agent of S.N.A. firm he was also the adathi agent of M.S.A.M. firm of Meyappa Chetty. As such agent he lent 3,000 dollars of M.S.A.M. firm's money to V.R.M.A.S. firm on the 29th February, 1908. At about this time both the S.N.A. firm and the V.R.M.A.S. firm had suffered heavy losses. In November, 1908, Jayangondan retired and his liabilities were taken over by the 3rd defendant on behalf of the S.N.A. firm. On Jayangondan's retirement the 3rd defendant appointed Ramanathan Chetty, 4th defendant's father-in-law as the agent of the S.N.A. firm. This agent paid on the 3rd September, 1909, 561/4 dollars to Narayanan Chetty, the adathi agent who succeeded Jayangondan in the M.S.A.M. firm.
5. In 1912 Meyappa Chetty of the M.S.A.M. firm and his son Palaniyappa Chetty instituted O.S. No. 177 of 1912 on the file of the Sub-Court, Ramnad, against Avadiappa Chetty and the present plaintiffs 1 and 2 (defendants 1, 2 and 3 in that suit), Jayangondan and the present defendants 1 and 2 (defendants 4, 5 and 6), the present defendants 3 to 5 (defendants 7, 8and9) and Ramaswami Chetty (10th defendant), the executor of the will of S.A. Subrahmanya Chetty, for the recovery of the amount due on the 3,000 dollars loan. That suit was first dismissed by the Sub-Court but the dismissal was set aside by the High Court which remanded the case for fresh disposal. Then the Subordinate Judge held that the partnership became legally dissolved by the death of S.A. Subrahmanya Chetty in November, 1904, that at any rate it became dissolved by the retirement of Jayangondan in November, 1908, that Jayangondan had no authority to borrow money so as to bind Avadiappa Chetty and the V.R.M.A.S. firm, that, Jayangondan's acts would bind only the 3rd defendant and himself, that Ramanathan Chetty was the agent of the 3rd defendant alone and that the payment made by him of interest which was after the retirement of Jayangondan would bind, only himself and not the other partners of the firm. Eventually the Court passed a decree for the amount on the 7th defendant alone and held that the debt was not binding on the other defendants. (See Exs. XXXII and E.) On appeal the High Court held that Avadiappa Chetty was and continued to be a member of the firm at the date of the deposit and subsequently, and that defendants 2 and 3, being the sons of Avadiappa Chetty the 1st defendant, were liable to the extent of the family property in their hands. As regards the 4th defendant the High Court held that his retirement from the firm after selling his share to the 7th defendant would not absolve him from liability as the plaintiffs had no notice of his retirement. In its opinion the payment of interest was made in the usual course of business and as such bound the partnership. A decree was therefore passed by the High Court also against defendants 1 and 4 personally and to the extent of the family property in their hands against defendants 2 and 3 (the present plaintiffs 1 and 2) and against defendants 5 and 6, the sons of the 4th defendant (the present defendants 1 and 2). The decree of the lower Court was confirmed in other respects: that is, the suit against the legal representatives of S.A. Subramanya Chetty, who were defendants 8, 9 and 10 was dismissed. The 3rd defendant had not appealed from the lower Court's decree. So the result of the High Court's decree was that the suit debt was made liable on defendants 1 to 7 in the suit who, as already stated, were Avadiappa Chetty and his son and grandson, the present plaintiffs 1 and 2 (defendants 1, 2 and 3 in that suit), Jayangondan and his sons, the present defendants 1 and 1 (defendants 4, 5 and 6), and the 7th defendant, the present 3rd defendant (see Exs. XXXIII and F).
6. In execution of the decree Avadiappa Chetty's house was attached and his sons, the present plaintiffs 1 and 2 (defendants 2 and 3 in that suit) deposited the decree amount of Rs. 12,693-10-8 into Court on 26th June, 1923 (see Exhibit J). It was drawn by the decree-holder Palaniyappa Chetty and satisfaction of the decree was entered up on 12th July, 1923. As already stated, in the suit Out of which this appeal arises the plaintiffs claim Rs. 17,358 against the 3rd defendant alone or in the alternative, contribution from the defendants of their 14/20th share of the decree debt.
7. The plaintiffs' case is that the 3rd defendant alone is responsible for the suit debt. The liability of the 3rd defendant has been pressed on various grounds. It was contended that the V.R.M.A.S. firm was a subsidiary firm of the S.N.A. firm, that it had no independent business, that no loans were to be procured or obtained by it, that its liability was limited to its capital of 20,000 dollars, that the S.N.A. firm alone was responsible for all the losses over that amount, and that the 3rd defendant who now represents the S.N.A. firm was alone liable to discharge the decree debt. The plaintiffs also alleged that after the death of S.A. Subrahmanya Chetty in November, 1904, both S.N.A. and V.R.M.A.S. firms became dissolved and ceased to be going concerns, that the firms were afterwards only being wound up, that while so, Jayangondan had no power to borrow money on behalf of V.R.M.A.S. firm so as to bind the firm, that the loan borrowed by him would be binding only on the 3rd defendant whose agent alone Jayangondan was and not on Avadiappa Chetty; and that Ramanathan Chetty had no authority to pay the interest on behalf of the firm. The 3rd defendant's contention was that there was no such agreement as the one pleaded by the plaintiffs and that as a matter of fact both the firms continued working after the death of S.A. Subrahmanya Chetty, that Jayangondan had power to borrow money so as to bind the firm, and that the payment of interest made by Ramanathan Chetty would also be binding on the firm.
8. On all the above points the lower Court found against the plaintiffs' contentions and accepted the case of the 3rd defendant. It was therefore held that the 3rd defendant was not exclusively liable for the suit debt. With respect to the claim for contribution made by the plaintiffs the lower Court held that since the debt is a partnership debt and a suit for taking partnership accounts was barred, the claim for contribution also could not be sustained. In the result the plaintiffs' suit was dismissed.
9. In appeal each of the above findings has been contested by the learned Counsel for the appellants; but the main question argued was whether the V.R.M.A.S. firm continued as a going concern after the death of Subrahmanya Chetty with power to borrow loans, the contention being that it was being wound up and the agent had no power to borrow any loan in the circumstances and that the defendants are liable to contribution. We will now proceed to consider these points in order.
10. The first point is whether there was an agreement between the partners when the V.R.M.A.S. firm was started that it should not carry on independent business and that its liability should be restricted to its share capital of 20,000 dollars.
11. His Lordship discussed the evidence and concluded.
12. Taking the evidence as a whole we are inclined to hold that both the firms S.N.A. and V.R.M.A.S. were not dissolved after Subrahmanya Chetty's death in 1904, that these firms were continued as going concerns and were doing business at the time of the suit deposit, that this was known to Avadiappa, that he carried on correspondence with Jayangondan which shows his knowledge of the affairs, that he gave him advice with regard to the management of the business, that Jayangondan as a member of the V.R.M.A.S. firm had power to borrow from the M.A.S.M. firm so as to bind the partners and that the loan borrowed by Jayangondan is therefore binding not only on himself and the 3rd defendant but also on Avadiappa. Jayangondan's retirement and assignment of his liabilities to the S.N.A. firm will not also absolve him as no notice was given of his retirement. These are in the main the conclusions arrived at by the Subordinate Judge and were also the conclusions arrived at by the High Court on the previous occasion. In our opinion it has not been shown that the evidence does not warrant these conclusions.
13. Jayangondan after the loan was borrowed paid interest to the M.S.A.M. firm on the money every three months and when Ramanathan succeeded him he made one payment towards interest on 3rd September, 1909. Then came the suit O.S. No. 177 of 1912 already referred to. This suit instituted on 22nd July, 1912, though filed more than 3 years after the date of the loan was within three years of the date of payment made by Ramanathan. These payments of interest also bind the members of the V.R.M.A.S. firm. It is said that Ramanathan was appointed agent only by the 3rd defendant for the S.N.A. firm and that so far as Avadiappa was concerned he is not to be treated as his agent. This argument was not accepted before and cannot be accepted now in the light of the evidence adduced. It is true that Ramanathan was appointed agent for the S.N.A. firm by the 3rd defendant alone but the agent for the S.N.A. firm was also the agent for the V.R.M. A.S. firm. Avadiappa himself recognized him as agent of the firm in succession to Jayangondan. Exhibit XIX (1st October, 1908) a letter from Ramanathan to the 3rd defendant, shows that Avadiappa has written to him to send money. This was long after the deposit by the M.S.A.M. firm. Evidence shows that Ramanathan was accepted both by Jayangondan and Avadiappa as the agent of the firm. The payment of interest by him was in the course of business and must therefore bind the members of the firm. For the above reasons, we hold that it has not been proved on the evidence that the 3rd defendant is alone liable to discharge the debt borrowed by the V.R.M. A.S. firm which must be held to be a partnership debt binding on all the members and the payment of interest by Ramanathan kept the debt alive.
14. In view of the conclusions arrived at by us on the evidence which are the same as those arrived at by the High Court on the previous occasion, it is not necessary to consider the question argued by the learned Advocate-General that the findings of the High Court are res judicata and that we are therefore precluded from reconsidering the evidence afresh. In our opinion, this plea of res judicata cannot be upheld. The res judicata pleaded in the case is one between co-defendants. The 3rd defendant and the present plaintiffs and other defendants, were co-defendants in O.S. No. 177 of 1912. The 3rd defendant did not contest the suit. The other contesting defendants, that is, the present plaintiffs and others, pleaded that they were not liable on the suit claim. The plaintiff obtained the decree against the present 3rd defendant, Avadiappa, his son and grandson (the present plaintiffs), Jayangondan and his sons - the main contesting defendants. The question is, 'was there a real conflict of interest between the 3rd defendant and the present plaintiffs in that suit? Was it necessary to give relief to the plaintiff in the circumstances of the case to determine the rights and liabilities of the co-defendants in that suit? And was there such a determination of the relative rights and liabilities between the co-defendants?' In our opinion there was no conflict of interest between the 3rd defendant and the other defendants including the plaintiff in the suit of 1912. It is true that the 3rd defendant admitted his liability but the admission of his liability was not in any way affected by the question whether the co-defendants were liable to the plaintiff. Each would have been liable for the claim in full if the facts alleged in the case were substantiated. It would thus appear that there was no real conflict of interest between the co-defendants. The real contest in that suit was between the plaintiff and the defendants other than the present 3rd defendant. To decide this point it was not necessary to determine the rights and liabilities of the co-defendants inter se. The decision was only necessary to determine the contest between the plaintiff in that suit and the other defendants and further there was really no decision in the former suit as to the rights of the co-defendants. In these circumstances it is difficult to hold that the decision of the High Court in the previous suit operates as res judicata with regard to the conflict between the plaintiff and the contesting defendants in the present suit. The case under consideration falls strictly within the operation of the decision in Fakirchand Lallubhai v. Naginchand Kalidas I.L.R.(1915) 40 Bom. 210.
15. The plaintiffs having failed to prove for the reasons given above that the 3rd defendant alone was liable to discharge the partnership debt, it becomes necessary to consider their alternative case that they are entitled to claim contribution from the defendants with respect to the payment made by them in discharge of the debt. Their father's share in the partnership being 6/20ths, they claim that they are entitled to be reimbursed to the extent of 14/20ths of the amount paid by them from the other defendants. The contention of the defendants sought to be made liable is that the decree amount discharged by the plaintiffs being with respect to a partnership debt, their only remedy is by way of a suit for accounts of the partnership and not by way of a suit for contribution, and that as the suit for accounts of the partnership is admittedly barred by limitation the plaintiffs are not entitled to any contribution at all. The learned Judge upheld this contention on the strength of the decision in Gopala Chetty v. Vijayaraghavachariar . In that case the Privy Council held as follows:
If a partnership has been dissolved and accounts have been wound up, the mutual rights and obligations of the partners therein being discharged, and an asset which has been forgotten or treated as valueless afterwards falls in, it ought to be divided between the partners in proportion to their shares in the partnership. But if no account has been taken, the proper remedy of a partner in respect of an asset so received is to have an account taken; if his right to sue for an account is barred by limitation, he cannot sue the partner who has received the asset for a share of it.
16. It has been argued by the appellants' learned Counsel that the above decision does not apply to the present case for two reasons: (1) that the present suit is not one for an account or for dissolution by a member of the firm against the firm and that such a suit cannot be instituted by the plaintiffs who are only members of the family of Avadiappa, one of the partners; and (2) that the liability which is sought to be enforced is an amount made payable by the decree, that the debt thus gets transformed into purely a decree debt and that those who are made responsible to pay it by the decree must contribute towards its payment in proper proportions.
17. The point of law arising for decision on the facts found is not at all free from doubt and not one of the numerous cases cited before us directly bears on it, and so the question has to be decided on principle. It is clear from the facts as discussed above that the partnership which became legally dissolved by the death of S.A. Subrahmanya Chetty continued as a working concern in 1908, that the debt was contracted during the period of this continuing partnership by Jayangondan and that he paid the interest on it for some months. He retired in 1908. His retirement, strictly speaking, brought about the dissolution of this continuing partnership though it cannot absolve him from his liability as already pointed out. The payment of interest by Ramanathan kept the debt alive as against the entire firm. The liability of the V.R.M.A.S. firm to pay the debt cannot be disputed; and this was what was decided in O.S. No. 177 of 1912 to which the present plaintiffs, along with their father, the other partners and their sons, were parties. So far the facts are clear. It is also clear that the suit for dissolution of partnership and for the taking of accounts has already become barred. It is equally clear that the Privy Council decision does not directly bear on the question. In that case the contest was between partners of a firm, and that, with respect to a partnership debt; whereas in the present case the plaintiffs were not partners of the V.R.M.A.S. firm and the claim is made with respect to a liability. Further, that was not a suit for contribution. Bearing in mind these differences, we have to see whether that decision can be of any help in deciding the present case. In that case it was decided that as between partners the only remedy that is available is an action for an account; and if such an action is time-barred and if an asset has come into the hands of a partner, then the decision says that the other partners cannot sue him for a share of it. It seems to me that though it has not been decided by the Privy Council the same conclusion should follow if the claim arose with respect to a liability, as in the present case. (See A.S. No. 100 of 1923 and S.A. No. 392 of 1925 which will be referred to later.) It is argued, assume it is so, but what has that to do with the right of contribution claimed by the plaintiffs who were not partners of the firm? and this, I think, is the strongest point pressed by the appellants. To answer this it will be necessary to consider the nature of the liability incurred by the partners and in what relationship the plaintiffs stand to their father who was a partner of the firm with respect to that liability. The judgment of the High Court makes it clear that there is no distinction between the liability of the 3rd defendant and that of the 1st defendant and that the liability of the one with respect to this partnership debt stood on the same footing as the liability of the other. The liability of the sons of the 1st, 3rd and 4th defendants to pay their father's debts, not being illegal or immoral, arises on account of the pious obligation to save their fathers from sin. It is true that this liability is not a joint liability, nor is it a joint and several liability. It is also true that this liability is not one imposed upon the sons because they are the personal representatives of their father. It is said that in all strictness the liability of the sons has nothing to do with the contract or the partnership liability. All these may be conceded. But what do these all lead to? They do not, in my opinion, show that the liability of the sons is altogether an independent liability which has no connection with their father's liability. Suppose the plaintiffs' father Avadiappa filed a suit against the 3rd defendant's sons basing their liability on the ground of pious obligation. I take it they could raise all the defences which their father could raise. If the suit against the father is time-barred, the suit against the sons also must necessarily be barred otherwise a partner cannot proceed against another partner, but can proceed against his sons. This I think follows from the representative character of the father. In this connection attention may be drawn to the decision in Narayanan v. Veerappa : (1916)31MLJ386 . In that case the 1st defendant and his brother, the 3rd defendant were adjudicated bankrupts. The 2nd defend ant was the son of the 1st defendant and defendants 4 and 5 were the sons of the 3rd defendant. All the five were members of a joint Hindu family and had some family property. It was contended that the effect of the discharge of the father was only to release him from liability but that it does not affect the Hindu law of liability of the sons to pay the debts of the father and the creditor was entitled to sue the sons and recover the debt from out of their shares of the joint family property. Adverting to this argument the learned Judges, Ayling and Srinivasa Ayyangar, JJ., observed as follows: 'The matter may also be viewed in another way. The effect of the discharge was undoubtedly to release the defendants Nos. 1 and 3, and no suit could have been instituted against them. If, as already stated, no suit can be instituted against the sons alone, at any rate so long as the father is alive and the family undivided, even though the father's liability is subsisting the present suit against the sons alone must a fortiori be bad. This, we think, is the necessary result of the extinction of the liability of the father, for it is only so long as the liability of the father subsists that the pious obligation of the son lasts.' (The Italics are mine.) I am using this decision only to illustrate the proposition that the obligation imposed upon a Hindu son to pay his father's debt (in this case a partnership debt) is not to be treated as such an independent debt which in its nature has no connection with the liability of the father. True, it is not a liability in the nature of a partnership debt, with respect to the son because he was not a partner and did not contract the debt but as originating initially on account of the father the liability can last only so long as the liability of the father can last and if that liability ceases to exist or becomes unenforceable, then the liability of the son arising though it does on account of the pious obligation must also become unenforceable. If this is true, then the liabilities are inter-dependent and it is not right to treat the son's liability, though it is not, strictly speaking, a partnership liability, as having nothing to do with the father or his liability. It comes into existence on account of the father's liability and everything that a father can plead to resist that liability can be pleaded in my opinion by the son also. In short, the son's obligation is limited by the nature of the obligation of the father. In my opinion the fact that the debt has become a decree debt does not alter the situation. If the plaintiffs' father cannot enforce the right of contribution against the defendants, this, I think, follows from Gopala Chetty's case - then I think it must also follow that they cannot themselves enforce that right. In the circumstances I think it is difficult to treat the plaintiffs as strangers and the suit as a simple suit for contribution devoid of all its connection with the nature of the liability that is sought to be enforced, which in my opinion is essentially a partnership liability.
18. An unreported decision of this Court, A.S. No. 100 of 1923, supports the contention of the respondent. In that case the dissolution of the partnership took place in 1909. The partnership had by that time incurred a debt to a stranger. A suit was brought by him, O.S. No. 78 of 1915, against the partnership and a decree was passed on the 31st August, 1916. The plaintiff paid the decree amount on 16th February, 1917 and instituted a suit for contribution on the 17th January, 1921. It was held, on the strength of Gopala Chetty v. Vijayaraghavachariar that as the suit for a general account was barred by limitation the plaintiff's suit for contribution must also fail. No doubt the suit was by a partner against another partner, but that I think should not make any difference for the reason which I have already given. This decision was followed in S.A. No. 392 of 1925. It may be stated here that both these cases are authorities also for the position that the principles of the Privy Council case would apply if the claim arose out of debts paid, and one partner wants contribution from another arising out of the joint obligation to discharge the debts in proportion to their shares in the partnership. The Privy Council case is referred to and explained in another decision of this Court in Arunachalam Servai v. Nottam Beer Vavu Rowther (1928) 27 L.W. 597. Inferentially it lends some support to the respondent's contention. In that case, after the dissolution of partnership the two partners who once constituted the firm borrowed moneys on a promissory note for discharging partnership debt. On that promissory note the creditor obtained a decree against both the partners and realized the amount by executing it against one of the partners after the expiry of the period of limitation for taking accounts of a dissolved partnership. The partner who had paid the whole of the decree amount sued the other partner for contribution. It was held that he could recover from the other partner. The decision proceeded upon the ground that the debt was not a partnership debt. If the debt was a partnership debt the learned Judges would probably have held that the plaintiff could not recover from the other partner. However, this and the other cases noted above are cases where one partner sued another for contribution. The decisions in Arunachalam Servai v. Nottam Beer Vavu Rowther (1928) 27 L.W. 597 and Ramaswami Pillai v. Muthukaruppan Chetty (1924) 48 M.L.J. 444 do not advance the case of the respondent very much. As already stated, none of the cases cited directly bears on the question we have to decide in this case. Though the plaintiffs are not partners, the debt out of which the rights and liabilities arose being a partnership debt, and the plaintiffs' liability to pay the same arising through and on account of the father's liability, I think the rule of the partnership law must apply and it must therefore be held in the circumstances of this case that the plaintiffs' suit for contribution must fail. I would therefore agree with the lower Court and dismiss the appeal with costs.
19. Save on the question of contribution I agree that the appeal should be dismissed. On the question of contribution I am of the opinion that the plaintiffs are entitled to contribution. The reason why I am of the opinion that the plaintiffs should have contribution is due to the fact that in my opinion, in the circumstance here present, the plaintiffs never were in the position of partners or in the shoes of a partner and consequently the law relating to partnership has no application to their rights. To make the point clear, it is necessary to state a few facts. Before the year 1904, there was a Nattukottai Chetti firm operating under the vilasam of S.N.A. and having large resources. S.N.A. is the name of a vilasam made up of two individuals whom I will refer to as S.N. and S.A. There was also another firm, a smaller Nattukottai Chetti firm, operating under the vilasam of V.R.M.A.S. V.R.M.A. stands for a person that I will refer to as A., and Section stands for a person I will refer to as Jayangondan or J. V.R.M.A.S. firm however comprised not only Jayangondan and A. but also S.N.A., and the shares were divided as follows: S.N.A.-10/20ths, A-6/20ths, J-4/20ths. It is common ground that the firm S.N.A. cannot be regarded as juridical person and thus a partner, but must be split up into its constituent two parts S.N. and S.A. when considering the constitution of V.R.M.A.S., so that there emerges four partners in V.R.M.A.S.; S.N.-5/20th, S.A.-5/20th, A-6/20th, J-4/20ths.
20. Now A is the father of the plaintiffs who were at all material times minors. Being minors it will be observed that they could not have been made partners so as to be responsible for any partnership liability; in other words, qua partners had they been received into the firm, they could not, being minors, have been made liable for the partnership debts. They have in fact been made liable for the partnership debts and accordingly such liability cannot arise out of partnership. That indeed is not disputed, for it is nobody's case that they were ever partners.
21. In 1904 S.A. died, whereupon the firm, hitherto operating under the vilasam of V.R.M.A.S., suffered a dissolution by death. It is a matter of dispute as to whether the small amount of business that was thereafter done by V.R.M.A.S. was incidental to the winding up of the partnership or was such as to justify the inference that the surviving partners S.N., A. and J. or some of them had agreed to carry on a new partnership. I am assuming for the purpose of the present discussion, which I am restricting to the contribution point, that there was such an agreement, that there was a new partnership, and that A was a member of that partnership. The dissolution of the old firm having taken place in 1904, under Article 106 of the Limitation Act the action for partnership accounts as regards that firm was time-barred in 1907.
22. In 1908, J., admittedly acting on behalf of S.N., - that is to say, it is admitted by S.N. that J. in this transaction was acting on S.N.'s authority - contracted a debt, and the debt if contracted by a partner is of a kind that would be binding on the partnership assuming that that partnership is a going concern and not merely in the state of winding up. I am assuming for the purpose of this discussion that the debt was contracted on behalf of the new partnership. Later, in the year 1908, that new partnership was dissolved by the retirement of J. Under Article 106 of the Limitation Act a suit for an account as regards the accounts of that new partnership would be time-barred before the end of 1911. From time to time after 1908 the loan was kept on foot by payments made. These payments were made by one R. who was the agent appointed by S.N.A. then in process of winding up. As a consequence of these payments the right of action by the creditor when he eventually filed his suit was not time-barred. A question was raised as to whether those payments were binding upon A., it being said he was not a partner, and did not expressly authorize. I am assuming for the purpose of this discussion that they were binding upon A. I am also assuming that the learned Judges who eventually disposed of the suit that the creditor brought against the partnership, or rather against the individuals who comprised the partnership, together with the sons of A. and the sons of J., rightly decided that all the partners and the sons of A. and the sons of J. were liable.
23. In my view such a decision involves the finding that in 1908 a new partnership was in existence composed of S.N., A. and J. and that J. was acting within his powers as a partner in contracting the debt and that he thereby bound the members of the partnership. The part of the case may be regarded as concerned with the obligations of a partner as such and the powers of a partner as such, and those individuals when joined in that action may be regarded as being sued as members of a firm. But when one comes to the position of the sons of those persons, this not being a case of joint family business or introducing any sort of complexity of that kind but being a case of a common law partnership simpliciter, it is to my mind obvious that before the sons can be held to be liable in respect of that contract one has got to look to some branch of the law other than the law of partnership.
24. One finds the appropriate branch of law in those texts that lay down the obligation imposed upon the sons of a Hindu to pay their father's debts where such debts are neither illegal nor immoral.
25. This obligation is placed upon sons by the sacred texts. It has nothing to do with contract or with partnership. It is not an obligation imposed upon them because they are the personal representatives of their father or because they have succeeded to their father's property. A Hindu son, when his father dies, does not succeed to his father's property. The death of the father simply causes a coparcener to drop out and to bring by way of survivorship to the surviving coparceners a share in the ancestral property that is larger than it was before the father's death.
26. Now the present point can be expressed thus: After the creditor who had sued S.N., A. and A.'s sons, and J. and J.'s sons (together with S.A. and S.A.'s sons who were found to be not liable S.A. having died before the critical date 1908), had recovered his decree, which was a decree against all, the sons being made liable to the extent of the ancestral property in their hands, he did what he was entitled to do: he picked out two of his judgment-debtors as the persons to execute the decree against, and the two he picked out were the sons of A. who, during the course of the litigation and before the time of execution had arrived, had died. Execution was effected, the ancestral property to the suit amount was sold. The result is this: - that in respect of a debt incurred by J., a stranger, partner in a firm of which A. was, by hypothesis, a member, two minors, strangers to the firm and in no way connected with J. either directly or otherwise and only connected with A. in that they were A.'s sons, have paid this partnership debt and none of the partners has paid a rupee.
27. I again observe that had the minors been partners they could not have been made liable as partners. But although not partners, they have been made solely liable. On the face of it that does not appear to be the right result.
28. They now sue the other defendants for contribution; that is to say, A. having died they sue S.N.J, and J.'s sons. They also include S.A.'s sons. Admittedly the latter cannot be made liable for S.A. had no share whatever in the original liability for the reasons stated. The reason why it is said that this right to contribution does not exist can be expressed as follows: - I hope I do not misstate the learned Advocate-General's argument which on this critical point never appeared to me to be entirely clear.
29. The Privy Council in Gopala Chetty v. Vijayaraghavachariar has decided that as between partners the only remedy that is available is an action for an account. If therefore the action for an account is time-barred, and no accounts have been settled, and an asset comes into the hands of one of the partners, the other partners cannot claim a share in that asset. And it is said that the same reasoning applies to a case of a liability. Thus, where it appears that the liability arose in 1908 and the firm dissolved in 1908 as the right to an account was barred by 1911 if a partner is made liable by a decree passed in 1919 for the whole of the debt he has no right to claim, from his other partners and co-defendants to the suit, a contribution. I am by no means persuaded that their Lordships of the Privy Council have so decided. I shall later endeavour to state what I understand to have been decided in Gopala Chetty's case as regards this point. But for the moment I content myself with saying that, assuming that case decides all that the Advocate-General says it decides, I still fail to see what it has to do with the right of contribution claimed in this case. In this case the persons claiming the right of contribution are not and never were partners. They never had at any time up to the filing of the claim in the creditors' action in 1912 any locus standi in any suit for partnership account, their father being the partner and being alive. They thus never had any such locus standi until such right of action was barred. I observe that under the pious obligation rule a son born in 1912 to A. could have been joined as co-defendant in the action that was brought in 1912 by the creditor whose loan was made in 1908 by a partnership which dissolved in 1908 and in respect of which the right for an account was barred in 1911. Can it be the law that such a person born after the right to an account was time-barred, can have his property taken from him because of a debt incurred by a father before his birth and remain without redress because the only possible redress that he has is contribution and that right of action is lost because he is to be regarded as a partner, which he is not, and therefore limited to a claim for an account which he never had and which was time-barred before he was born? I think not. I am satisfied that their Lordships of the Privy Council never laid down any proposition that would be capable of being stretched to such lengths.
30. In my opinion what Gopala Chetty's case decides is this : - though I do not think that it is possible to state what it decides more aptly and more lucidly than in the words the Judicial Committee itself has used, I only express ray own view as to what it decides in order to look at it from perhaps a slightly different angle. If partners purport by agreement to settle their accounts and by an oversight omit this item or that and at a later date the oversight is discovered and the item is found in the hands of a partner, then the partners, despite the fact that the action for an account has long since become time-barred, will not be limited to the action for an account but will be given a right to claim their share in the asset brought to light. But if partners do not attempt to settle accounts but allow the time in which to sue for an account to elapse without anything being done and then an asset is discovered which, had there been an accounting, would have been taken into account, no one of the partners will be able to claim that asset which will accordingly be retained by the partner that is fortunate enough to have reduced it to possession, the reason being that in such a state of facts it will be assumed that accounts have been taken, completely taken. It will, in other words, be presumed that there are no oversights, and therefore wherever the assets are, it will be assumed that there they ought to be. I should myself doubt whether that principle could apply to an asset which first came into existence after the accounting period. Such an asset would, in my opinion, belong to a new accounting period. Thus, for example, an asset which first came into existence after the date of dissolution could surely be claimed by a partner even though he had not within three years after dissolution claimed the taking of partnership accounts, that is, the taking of accounts up to the date of dissolution. Such a case I apprehend could arise in the course of winding up. The kind of asset that he could not claim, having failed to claim an account or to settle an account would be an asset which would have been taken into account had he claimed an account, that is a pre-dissolution asset, though one that is only subsequently discovered. It does not in my opinion relate to an asset which subsequently came into existence for the first time and not merely as a consequence of the conversion or alteration of some of the existing assets.
31. I do not however base my conclusion on this because it might well be (I say nothing as to this) that the debt of record created by the decree in the suit brought by the creditor relates to a liability that had been in existence ever since the original debt was contracted in 1908 and therefore to a liability that was in existence prior to the dissolution in 1908 and thus to a liability (though it must be noted the liability is owed to a stranger and not to a partner) that would have been taken into account had there been a taking of partnership accounts as up to the date of that dissolution, the right to claim which was time-barred by the end of 1911. Nor do I consider it necessary to decide in this case whether the principle in Gopala Chetty's case applies to a case of later discovered liabilities as it applies to the case of later discovered assets. It is not necessary in my opinion to decide either point. It is the policy of the law not to permit partners to litigate separately the various claims which one partner may have against another (not, I observe, the same thing as claims which a stranger has against the partnership) but to require them to settle their mutual claims by way of a mutual accounting by methods (which the Chancery Courts in England have worked out with great precision) that enable various claims between partners to be fairly and completely settled in one litigation instead of requiring a multiplicity of actions, it may be in various Courts, between this partner and that. That they ought to do and they cannot litigate about matters which would have found a place in such accounts if taken. It does not follow that they cannot litigate about matters which would not have found a place in such accounts.
32. But this reason has no weight when one is considering the position of strangers to the partnership. They are not limited to any particular form of action and, indeed, this form of action for the taking of partnership accounts is not open to them.
33. In my opinion it is quite fallacious to regard these minors as standing in their father's shoes so as to possess like him the character of partner. They are not made liable because they are the personal representatives of their father; they are not made liable because they have got their father's property. They are made liable expressly because they are the sons of their father upon whom is imposed a pious obligation, and not because they are to be deemed to stand in the shoes of the father - if the latter were the ground of liability pious obligation would be unnecessary and the exclusion of illegal and immoral (but legally binding) debts would be illogical - they would be as liable as their father was liable because by a fiction they would be deemed to stand in the shoes of their father. Once it is clear that they are not to be regarded as being made liable because they are to be deemed by a fiction as standing in the position of their father, the last fragment of partnership law connecting the creditors' claim with them and them with their co-defendants disappears and the last shred of reason for withholding the equitable remedy of contribution from them also disappears in my opinion.
34. This, in my opinion, distinguishes this case from the unreported decision in Second Appeal No. 392 of 1925 as to which therefore I say nothing except that on the facts of that case it is a matter for consideration whether the accounts of the partnership if taken in a partnership action brought within the period of limitation after dissolution could have included however perfectly taken an item of claim by one partner on the other which had not then come into existence and did not therefore fall to be included in such accounts.
35. If the item whether asset or liability belongs to a post-dissolution period different considerations appear to apply. It is different, I think, from the case where the asset or liability belongs to the accounting period in question (that is, a period terminating with dissolution) though the asset or liability is discovered at a later period.
36. S.A. No. 392 of 1925 cites with approval First Appeal No. 100 of 1923 in which case the decision of the Subordinate Judge was upheld. That case is distinguishable, in my opinion, on the same ground. That was a case where the dissolution was in 1909. The partnership had, before that date, incurred a debt to a stranger. That stranger sued on that debt the partners. A decree was passed and was paid by one of the partners in 1917. There had been no account taken and the suit for an account was barred. It was held that the principle in Gopala Chetty's case applied. It was, in other words, a case of a partner suing a partner for contribution in respect of what was held to be a payment in respect of a pre-dissolution debt.
37. I do not think the matter is carried any further by Damodara Shanabhaga v. Subraya Pai : AIR1918Mad387 which decided that the assignee of an alleged right to contribution cannot claim if, for any reason, the assignor could not have claimed. Ramaswami Pillai v. Muthukaruppan Chetti (1924) 48 M.L.J. 444 does not advance the respondent's argument. On the contrary it, in my opinion, weakens it for this is certainly a claim 'unconnected with the partnership business or only very remotely connected therewith.'
38. In my opinion no English case can assist on a point like the present. Two were cited Powell v. Dale and Hood (1911) 105 L.T. 291 and Meyer & Co. v. Faber (1923) 2 Ch. 421. Those cases were concerned with the relationship of partners inter se. The reason no English case could be very helpful is that by no possibility could these minors have been made liable were English law applicable and so no English case could deal with the kind of question here at issue or even with the branch of law applicable which branch is, I repeat, not partnership law, but the law which imposes a pious obligation upon a Hindu son.
39. It was urged in argument that a Hindu son could never be more liable than his father when sued under the pious obligation rule and that therefore J.'s sons could not in this action be asked to contribute by A.'s sons because J. could not be asked to contribute by A. But in my opinion, whatever may be the position had A. sued, when A.'s sons sue they sue the son's of J. not as a son of a partner but as co-defendants in an action wherein a decree, creating a debt of record has been passed against the present plaintiffs and the present defendants (that is, S.N., J. and J.'s sons) which debt should have been paid by all has, in fact, on the compulsion of the-decree-holder, been paid wholly by the plaintiffs. Whereupon the equity arises which gives the right to claim contribution. This distinguishes this case from Narayanan v. Veerappa : (1916)31MLJ386 . The plaintiff there was like the plaintiff in the former suit in which the decree was given, in satisfaction of which the present plaintiff's properties were attached. The plaintiffs here, are in my opinion in an entirely different position and the defendants J.'s sons are in an entirely different position. They are liable not qua sons but as persons against whom a decree has been passed. Further as S.N. vis-a-vis J. and J.'s sons admits liability this point does not arise in any but an academic form in my opinion.
40. In my opinion therefore the appeal succeeds so far as relates to contribution with proportionate costs throughout except as against defendants 4 and 5. Further the 3rd defendant accepts liability as regards 1st and 2nd defendants and the decree should accordingly be against him only in the first place with liberty to proceed in execution against the 1st and 2nd defendants only after exhausting all remedies against the 3rd defendant.
41. As we differ on the plaintiff's right to contribution against the defendants 1 to 3 we refer under Clause 36 of the Letters Patent to a 3rd Judge or Judges the following point: 'whether in the circumstances found by us on which we agree the plaintiffs are entitled to contribution against the defendants 1 to 3'. After the decision of the point by the 3rd Judge or Judges the case will again be posted before a Bench for final disposal.
42. On this reference the appeal came up before Pandrang Row, J.
43. This appeal comes before me on a reference made by the Bench which heard the appeal as the result of a difference of opinion on the question of the plaintiffs' right to contribution that was sought to be enforced as against defendants 1 to 3. The question referred under Clause 36 of the Letters Patent is as follows:
Whether in the circumstances found by us on which we agree the plaintiffs are entitled to contribution against the defendants 1 to 3.
44. A brief statement of the facts is necessary for the purpose of dealing with this question. One Avadiappa Chetty, the father of the 1st plaintiff and the grandfather of the 2nd plaintiff, was a partner in a certain firm which was dissolved by the retirement of one of the partners, Jayangondan, in November, 1908. In February, 1908, this partner Jayangondan who was also the agent of another firm lent 3,000 dollars of that firm to the firm in which he and Avadiappa Chetty were partners. One Meyappa Chetty of the lending firm and his son instituted a suit in 1912 against all the partners, including Avadiappa Chetty as well as his son and grandson (the plaintiffs in the present suit) and obtained a decree in 1919 against all the partners and also as against the plaintiffs in the present suit to the extent of their shares in the joint family estate of themselves and their father who was one of the partners. In execution of that decree the plaintiffs' family house was attached, and Avadiappa Chetty having died in the interval, the plaintiffs were compelled to deposit the whole decree amount in June, 1923. The result was that the entire decree was satisfied by the present plaintiffs alone and they claimed to recover the share of the defendants in the decree debt.
45. The difference of opinion relates really to two points, namely, (1) the scope and effect of the decision of the Judicial Committee in Gopala Chetty v. Vijayaraghavachariar and (2) the applicability of the law of partnership to the claim of the plaintiffs in the present suit. As regards the first point it was held by Madhavan Nair, J., that it follows from the Privy Council decision that the plaintiffs' father, if he were alive, could not enforce the present claim to contribution against the defendants, whereas the other learned Judge was of opinion that the Privy Council decision did not go to this length and did not lead to this conclusion. On the other point, Madhavan Nair, J., held that though the plaintiffs were not partners themselves, nevertheless they cannot be treated as complete strangers to the partnership and the suit by them for contribution cannot be regarded as being devoid of all connection with the nature of the liability that is sought to be enforced which is essentially a partnership liability. The other learned Judge was of the contrary opinion and held that the ordinary law of partnership had nothing to do with the right claimed by the plaintiffs in the present suit and that there was no reason for withholding the equitable remedy of contribution from them.
46. Before dealing with these points, it seems desirable to consider the nature of the right to contribution generally and also as between persons bound to one another by reason of a special relationship such as is created between them by a contract of partnership. In dealing with this matter the difference that lies between the substantive right to contribution and the procedure whereby such right is enforced has to be clearly borne in mind, as different considerations would apply to a right to contribution and to an action for enforcing the right of contribution. The right to contribution as between partners is not essentially different from the right to contribution as between persons who are jointly liable in respect of a debt. The partner's action for contribution is conditioned, however, by the special law of partnership. The general law relating to contribution is based on the principle which prescribes equality of burden and benefit. As stated by Lord Eyre, C.B., in Dering v. Earl of Winchelsea (p. 488 White and Tudor II) the right of contribution:
is bottomed and fixed on general principles of justice; in aequali jure the law requires equality ; one shall not bear the burthen in case of the rest, and the law is grounded in great equity.
47. The reference made in that case to the right of the King on the prisage of wine has some bearing on the facts of the present case. The King is entitled to one tun of wine before the mast, and one tun behind. It was held that a right to contribution accrues, for the King may take by his prerogative any two tuns of wine he thinks fit, by which one man might suffer solely. In the present case it is the creditor who has exercised the prerogative of selecting some particular debtors from among several co-judgment-debtors for the purpose of recovering the decree amount, and in such a case also a right of contribution will accrue. As among partners, there is no doubt the liability of the partners to contribute rateably to their shares towards the debts of the partnership. This liability to contribute, however, is not absolute and without reference to their special relationship as partners, and this is what is meant by the following passage in Halsbury, Vol. 7, Section 378 which was quoted at the bar, namely:
Where partners are under a joint liability in respect of a particular transaction arising out of and connected with the partnership, and one of them is compelled to pay more than his share of such joint liability, the Court will not enforce his right of contribution in respect thereof against his co-partners, except in an action for a general partnership account.
48. This rule has, however, no application
Where two or more persons engage in a particular transaction which is distinct and separate from their partnership business; in such case the right of contribution will be enforced.
49. It would thus appear that the contract of partnership does not really affect the right to contribution but only the method of enforcing it. So long as the partnership continues or subsists and it is to be remembered in this connection that even after dissolution of partnership the rights and obligations of the partners continue in all things necessary for winding up the business of the partnership (Section 263, Indian Contract Act) no separate action for contribution will lie and the right to contribution can be enforced only as part of a general suit for accounts of the partnership, the reason being that the right of contribution is subject to the special rights and obligations created by the contract of partnership. This special contract of partnership has the effect of preventing a partner either from suing for his share of any particular asset belonging to the partnership or for contribution in respect of any particular partnership transaction, because the contract of partnership implies that all individual claims of one partner against the others must be the subject of a single action for accounts and also because of the rule of law which discourages multiplicity of actions. It does not however follow that an action for contribution will not lie even in respect of a transaction or debt which does not or cannot form an item in the general partnership account, because the transaction or debt is not a partnership transaction or debt at all. As observed by Bramwell, B., in Sedgwick v. Daniell (1857) 157 E.R. 132 :
if a partner advances money on account of the partnership, he cannot recover it in an action against his co-partners, for the law will not imply a promise to pay it; and why? because at the time he made the advance he impliedly undertook that it should remain until an account was taken.
50. The same reason would apply in the case of an action for contribution and such an action would not lie because the contract of partnership implies an undertaking that the right to contribution should be claimed only when an account is taken. The reason for the general rule that no action for contribution by a partner against his co-partners will lie applies however only when the contract of partnership subsists, and only to cases where the action for contribution is brought by a partner as such against his co-partner as such. The rule of prohibition in such actions is necessitated by the peculiar obligations, rights and duties existing as between partners inter se which attract the maxim 'frustra peteret quod mox restiturus esset.' Where the partnership relation no longer exists, and where there is no likelihood of any restitution being necessary there is no reason in my opinion to apply the rule prohibiting actions for contribution as between persons who were once partners but have ceased to be such. When the reason for the rule does not apply, the rule itself does not apply. There can be no doubt that between partners as such the right to contribution itself is dependent on the state of account between partners. In this connection I may refer to the following observations of their Lordships of the Judicial Committee in the recent case Arunachalam Chettiar v. Commissioner of Income-tax, Madras :
Questions may arise, regardless of whether the firm has otherwise made a profit or loss, as to the firm's right to be indemnified by a partner for loss caused to it by his wilful neglect. Between partners any right of contribution has reference, prima facie at least, to the ultimate balance appearing as the result of a general account.
51. Coming to the right of contribution as between co-judgment-debtors, there is, in my opinion, no reason why the right to sue for contribution which accrues to a co-judgment-debtor as such should be denied or made subject to any equities arising out of a contract of partnership many years after the partnership became dissolved and a suit for general account became barred and the relation of partnership came to an end. This right to sue for contribution as between co-judgment-debtors is not given by any special enactment. It arises out of equity, an equity all the more stringent in view of the provisions of Section 43 of the Indian Contract Act, which permits the promisee to compel any of several joint promisors to perform the whole of the promise. Section 43 of the Contract Act has thus taken away the benefit of the plea of abatement known to the English law, and also the old 'beneficium divisionis' that was given by Roman Law whereby 'correidebendi' could compel the creditor to sue them only for their proportionate share of the debt. The equity of contribution as between co-judgment-debtors has always been recognised as part of the general equity which requires that one shall not bear the whole burden in case of the rest and this right to contribution between co-judgment-debtors comes into existence only when the common burden is discharged and not before, for it is only on the discharge of the common burden that the rest are eased of that burden, and become subject to the liability to bear their share of the burden. It is sufficient on this point to refer to Narayanamurthi Aiyar v. Marimuthu Pillai I.L.R.(1902) Mad. 322 and Abraham Servai v. Raphial Muthirian : AIR1915Mad675 . The right to contribution claimed in the present suit is one that came into existence only when the joint decree was satisfied by the plaintiffs alone in June 1923, that is to say, nearly 12 years after a suit for accounts as between the partners had become barred and the partnership relation had come to an end for all purposes. If the whole decree had been satisfied by Avadiappa Chetty himself in 1923, can it be said that he would have had no right to sue the defendants 1 to 3 for contribution, merely because the decree debt itself was in respect of a partnership debt? In such a suit he would not be agitating any of his rights as partner but only his right as a co-judgment-debtor who had paid off entirely a decree debt which was binding on the defendants also. I fail to see how his action for contribution could be regarded as an action for contribution by a partner against his co-partners. His right would not be based to any extent on his right as a partner, and the partnership having come to an end long before, it is difficult to see why his right to contribution as a co-judgment-debtor should be held to be so intimately bound up with the extinct contract of partnership that it could only be exercised along with his right to take an account of the partnership.
52. Several English cases have been quoted in the course of the argument before me, but they do not throw much light on the question for decision. It is therefore enough for me to make a brief reference to them. For instance Dale v. Powell (1911) 105 L.T. 291 was a case in which a partnership action was pending when the payment was made by one of the partners as a co-judgment-debtor. Sadler v. Nixon (1834) 110 E.R. 1038 was a case in which the partnership was existing at the time and it was an action for contribution in respect of money paid on account of the firm by one of the partners. Batard v. Hawes (1853) 2 E. & B. 287 : 118 E.R. 775 and Boulter v. Peplowe are cases in which the parties concerned were 'provisional committee men' who, it had been decided, are not partners. The latter case was, moreover, one in which a contract could be implied at the time when the original debt was contracted that the one who pays the whole of the debt should be reimbursed in their respective proportions by the other two. In other words, it was a case in which an implied special contract to make contribution existed and contribution was sought on the basis of this contract. Sedgwick v. Daniell (1857) 157 E.R. 132 was a case in which some, but not all, partners executed a promissory note for securing a debt of the firm. One of the makers was compelled to pay the whole of the amount and he was held to be entitled to contribution from the other makers of the note, because the right to contribution was in respect of a matter not involved in the general account and did not depend on the fact that the makers of the note were partners. This case is of some importance as it has some bearing on the present question, because in the present case also the right to contribution claimed does not depend on the fact that the plaintiffs and the defendants were partners. Another English case, which has some bearing on the present question, is Osborne and Anr. v. Harper (1804) 5 East. 225 : 102 E.R. 1056 ; the facts are somewhat similar. That was a case in which the original debt had been contracted in 1802, that is to say, nearly six years after the dissolution of the partnership in 1796, by one of the partners, namely, Harper signing certain bills of exchange for the firm, and the creditor had no notice of the dissolution of the firm before the bills were given. A decree being obtained by the creditor, and being satisfied by-the other partners, namely, Osborne and another, the latter were held entitled to recover contribution from Harper. There was no controversy about the right to contribution in that case, but only about the point whether a single action by the two plaintiffs was maintainable.
53. Reference has been made to several Indian cases also at the hearing, namely, Subbarayudu v. Adinarayudu I.L.R.(1894) Mad. 134 Durga Prosonno Bose v. Raghu Nath Dass I.L.R.(1898) Cal. 254 Karri Venkata Reddi v. Kollu Narasayya (1908) 19 M.L.J. 10 : I.L.R.1908 Mad. 76, Sadhu Narayana Aiyangar v. Ramaswami Aiyangar I.L.R.(1908) Mad. 203 and Laban Sardar v. Choyen Mallik 19 C.W.N. 768 besides some other cases which are all prior in date to the Privy Council decision in Gopala Chetty v. Vijayaraghavachariar . The cases subsequent to the Privy Council decision are Palepu Narayanamurthi v. Komali Chandrayya : AIR1927Mad790 , Arunachalam Servai v. Nottam Beer Vavu Rowther (1928) 27 L.W. 597 and Ellappa Mudaliar v. Swaminatha Mudaliar (1933) 38 L.W. 316 besides the two unreported cases which have been considered in the order of reference. It does not appear that in Subbarayudu v. Adinarayudu I.L.R.(1894) Mad. 134 the partnership had been dissolved or the action for accounts had become barred. Reliance was placed on Sedgwick v. Daniell (1857) 157 E.R. 132 and apparently it was a case in which the suit transaction was not regarded as a partnership transaction. The correctness of the decision in Subbarayudu v. Adinarayudu I.L.R.(1894) Mad. 134 has been doubted in Sadhu Narayana Aiyangar v. Ramaswami Aiyangar I.L.R.(1908) Mad. 203 on the ground that the English cases relied upon had no application. Karri Venkata Reddi v. Kollu Narasayya (1908) 19 M.L.J. 10 : I.L.R.1908 Mad. 76 does not deal with the point now in issue. It relates more to the question whether an action for partial account would lie, a question similar to the question referred to by their Lordships of the Judicial Committee in Arunachalam Chettiar v. Commissioner of Income-tax, Madras namely:
Whether the old rule as stated by Lord Tottenham in Richardson v. The Bank of England (1838) 4 My. and Cri. 165 : 41 E.R. 65 that 'pending a partnership, equity will not interfere to set right the balance between the partners' is still to be adhered to rigidly or not.
54. Sadhu Narayana Aiyangar v. Ramaswami Aiyangar I.L.R.(1908) Mad. 203 has been considered in the later case reported in Arunachalam Servai v. Nottam Beer Vavu Rowther (1928) 27 L.W. 597 to have been overruled by the Privy Council decision in Gopala Chetty v. Vijayaraghavachariar as it relies on Sokkanadha Vannimundar v. Sokkanadha Vannimundar I.L.R.(1904) Mad. 344 which was expressly overruled by the Privy Council. Laban Sardar v. Choyen Mallik (1914) 19 C.W.W. 768 to some extent relies on Subbarayudu v. Adinarayudu I.L.R.(1894) mad. 134 and Sadhu Narayana Aiyangar v. Ramaswami Aiyangar I.L.R.(1908) Mad. 203. I am unable to say, aftera careful consideration of all these cases, that the point has been decided beyond doubt one way or the other. Even in Arunachalam Servai v. Nottam Beer Vavu Rowther (1928) 27 L.W. 597 which was the case most relied upon .on the side of the plaintiffs the facts appear to be similar to Sedgwick v. Daniell (1857) 157 E.R. 132 and the original debt was found to be not a partnership debt. The general observations at page 600 appear thus to be mere obiter dicta though no doubt they were followed in Ellappa Mudaliar v. Swaminatha Mudaliar (1933) 38 L.W. 316 by Ramesam, J. The unreported cases already referred to are however against the plaintiffs' contention. My own opinion on the question is that as a partner suing as such and claiming a share out of the partnership assets as such, or claiming contribution as a partner has no absolute or independent right against his co-partners, those rights can only be agitated as part of his general right to have an account taken of the partnership, and, if that action is barred, any right which he can claim only as partner must be held to be lost, for, such a right cannot be agitated by itself, and this I take to be the real scope of the Privy Council decision in Gopala Chetty v. Vijayaraghavachariar . That was a case which related to a claim to a share in certain partnership assets, and that claim was based only on the plaintiff's right as partner, because except as partner he could lay no claim whatever to share in the partnership assets. His right as partner however was not a right to share in particular partnership assets, but only a right to his proportion of the partnership assets after they have been realised and converted into money, and all the partnership liabilities have been paid and discharged, in other words, only after the due taking of accounts. That is really the ratio decidendi in Gopala Chetty v. Vijayaraghavachariar namely, that the plaintiff could not make his claim good to the assets without showing that he would be entitled to a share therein upon the due taking of accounts as would be seen from the following passage at page 390:
If, on the other hand, no accounts have been taken and there is no constat that the partners have squared up, then the proper remedy when such an item falls in is to have the accounts of the partnership taken; and if it is too late to have recourse to that remedy, then it is also too late to claim a share in an item as part of the partnership assets, and the plaintiff does not prove, and cannot prove that upon the due taking of the accounts he would be entitled to that share. It might well be the case that one of the reasons why no final balancing of accounts took place was that A owed the partnership so much money that it was anticipated that B would hereafter receive a particutar item which would operate substantially to balance the claim.
55. The same reasoning would apply to a right of contribution which is based on the plaintiff's right as partner to receive contribution because such right also would be subject to the prepayment of debts due by the partnership to the reciprocal rights possessed by the other partners which could be determined only in a suit for general accounts, no contribution being allowed by reason of the contract of partnership in respect of individual transactions ignoring the other partnership transactions. The reasoning however does not in my opinion apply to the right to contribution sought to be enforced in the present case, for that has nothing to do, in my opinion with any right claimed as partner, and this would have been the case even if the original partner (Avadiappa) himself had been the plaintiff in the suit. His right of contribution would and could have been based, not on any right of his as a partner arising out of or subject to the contract of partnership, but on something which was independent of the partnership, namely, the payment of a joint decree debt by one of several co-judgment-debtors. So far as his cause of action was concerned, it would not have been governed by the law of partnership. It is the defendants who seek to rely upon their rights as partners as a defence to the action for contribution. Whether such a defence is open to them or not, namely, whether they can insist upon an account being taken even when an action for accounts would be barred, does not arise for decision by me, as that point is not included in the question referred to me. As in Palmer v. Wick and Pulteneytown Steam Shipping Co. Limited (1894) A.C. 318 this is a case in which the foundation of the claim rests on a decree which created a civil debt. If any one wants to go behind that decree it is not the plaintiffs but the defendants. That was no doubt a case in which the original liability arose out of a tort whereas here it arose out of a partnership debt, but in this case as well as in the other it is not the plaintiffs who have to allege or prove either the tort or the partnership, as the case may be, as the foundation of their claim which rests upon a decree constituting a civil debt jointly against the plaintiffs and the defendants. As observed by Lord Watson at page 332:
The respondent company (the plaintiff) do not require to allege and prove either delict or quasi delict as the foundation of their claim, which rests upon a decree constituting a civil debt against the appellant as well as against themselves. There might be some principle in a court of Law refusing to permit a suitor to aver and prove his own crime or moral delinquency as the medium of recovering from one whom he alleges to have been a co-delinquent. But the case is very different where the injured party's claim of damage is liquidated by a joint and several decree against all the delinquents. In that case - which is the present case--the sum decreed is simply a civil debt, and the meaning which the law attaches to a decree constituting a debt in these terms is, that each debtor under the decree is liable in soliduwi to the pursuer, and that inter se each is liable only pro rata or in other words, for an equal share with the rest. In this case it is the appellant who seeks to escape from the natural import of the decree, by going behind it in order to establish his own co-delinquency. It was urged for the appellant that, seeing it is impossible to determine the exact proportion of the total damage attributable to the fault of each debtor, the whole loss must fall upon the debtor against whom the creditor chooses to enforce the decree, otherwise contributors might have to pay in excess of their real share. I cannot appreciate the force of that reasoning. The creditor is not bound to recover the whole from one, he may take it from all in what proportions he chooses; but that right of selection is not given to him in order that he may assess the damage due by each, but for his own convenience and in order that he may get in his money with the least possible trouble. And I fail to see how any inequality in contribution, such as the appellant suggested, could be redressed by the adoption of a rule which would practically leave it to the creditor to determine whether his damages should be borne by one or more or all of the debtors, and if by all in what proportions. The result of the rule, in many cases, would be that the whole loss would fall upon the debtor who had the least share in causing the injury.
56. Reference may also be made to the following observation of Lord Herschell, L.C., at pages 323 and 324:
It was urged that the person seeking relief might be the more culpable of the delinquents ; but it is just as likely that he should be the less culpable. In selecting from which of his co-debtors he will obtain payment, the creditor would be guided usually by considerations wholly independent of the relative culpability of those from whom he may recover it.
57. In the present case also, when the creditor chose to proceed against the plaintiffs' joint family property it cannot be said that he selected that judgment-debtor who in his opinion was in debt with the partnership. It may have been any other reason which led him to select the plaintiffs as the persons from whom the whole decree debt was to be recovered. His choice certainly does not decide the question of the rights of the co-judgment-debtors inter se. After careful consideration I am of the opinion that if the present suit for contribution had been brought by Avadiappa himself it would have been maintainable and that the Privy Council decision in Gopala Chetty v. Vijayaraghavachariar would not have stood in his way.
58. The other point may be dealt with far more briefly for on this question I generally agree with the views expressed in the judgment of Stone, J. Both the learned Judges are agreed that the plaintiffs themselves were not partners, and it is not seriously contended that they were partners in any sense of the term. The judgment of their Lordships of the Privy Council reported in Pichappa Chettiar v. Chockalingam Pillai (1934) 67 M.L.J. 366 (P.C.) approving the following passage in Mayne's Hindu Law puts the matter beyond doubt:
Where a managing member of a joint family enters into a partnership with a stranger, the other members of the family do not ipso facto become partners in the business so as to clothe them with all the rights and obligations of a partner as defined by the Indian Contract Act. In such a case, the family as a unit does not become a partner, but only such of its members as in fact enter into a contractual relation with the stranger; the partnership will be governed by the act.
59. In this case the 1st plaintiff as well as the 2nd plaintiff were minors even when the decree was obtained by the creditor. They are shown in the plaint in the suit of 1912 as being aged 6 and 3 years respectively. It is also admitted that it was Avadiappa who joined the firm as a partner; the plaintiffs were never in any sense of the term, and could never have been in any sense of the term, partners. The argument seems to be that though the plaintiffs never were partners, still they must be 'deemed to stand in the shoes of their father', Avadiappa who was a partner and therefore be subject to all the disabilities as partner to which Avadiappa was subject. This metaphor of the son standing in the shoes of the father is a dangerous metaphor because it is misleading, and instead of shedding light on the subject merely darkens counsel. As a matter of law, the son does not 'stand in the shoes' of his father even as regards debts not illegal or immoral incurred by the father. The doctrine of pious obligation which imposes the liability does not make the son personally liable nor the son's separate property liable. It only makes liable the joint family property of the father and the son. It is enough in this connection to refer to the observations of the Privy Council in Sat Narain v. Sri Kishen Das (1936) 71 M.L.J. 812 : L.R. 63 IndAp 384 : 1936 I.L.R. 17 Lah. 644 (P.C.) which follows the decision in Brij Narain v. Mangal Prasad :
The doctrine (of pious obligation) was not based on any necessity for the protection of third parties but was based, on the pious obligation of the sons to see their father's debts paid, and also that it was immaterial to the liability of the family estate whether the father was alive or dead. There can be no doubt that it is a liability of the joint estate.
60. No doubt the pious obligation of the son, which has become a legal obligation, is to see that the father's debt is paid, but the debt is nevertheless the father's debt; it does not become the debt of the son also because of this obligation though it is no doubt binding on the joint family estate. It can in no way be regarded as a debt due by the son himself. The doctrine really means nothing more than this, that while the managing member of a joint Hindu family who is not the father, can incur debts binding on the joint family property only for justifying necessity or benefit or where there is a bona fide belief by the lender after proper inquiry in the existence of such necessity or benefit, the father, who is the managing member of the family, can bind the joint family property in respect of all debts which are not illegal or immoral. The pious obligation of the sons in the latter case prevents them from denying the liability of the joint family estate. The effect of the doctrine is certainly not to make the sons debtors themselves or to make them stand in the shoes of the debtor-father. In this case moreover there is no question of enforcing or applying the doctrine of pious obligation. The pious obligation applies only to debts incurred by the father. In the present case, no doubt the original debt incurred in February, 1908, being a debt due by the partnership, was due also by one of the partners, namely, Avadiappa. So far as the creditor therefore was concerned, that debt was a debt in respect of which the pious obligation could attach, and he could enforce that obligation. But that is the position only vis a vis the creditor. But the other co-debtors (partners) cannot possibly rely on the pious obligation of the son of one of the co-debtors unless and until there is a debt due by that co-debtor, Avadiappa to them, and except in connection with such a debt. The mere incurring of a debt by one of the partners does not make it a debt due by any one partner to the other partners. Whether it results in any debt due by any one partner to the other partners will depend on the taking of accounts and not till then, because until the account is ascertained it is not possible to say whether any particular partner's account will show credit or debit. At no time were the accounts taken, and it is impossible to say whether Avadiappa, the father of the first plaintiff, ever owed any debt to the other partners. What the defendants are really trying to do is not to enforce any debt due to them by the father against the son, but to enforce what they claim to be an equity in their favour and available against the father as against the son. But the doctrine of pious obligation does not go to this length-i-that the same defence is available against the son as may be available against the father even in the absence of any debt due by the father to the defendants. There is in my opinion no warrant for such an extension of the doctrine of pious obligation. I therefore agree with my learned brother Stone, J., that the doctrine of pious obligation does not stand in the way of the plaintiffs' claim to contribution in the present suit. It follows therefore that the question referred to me must be answered in the affirmative and I answer it accordingly.
61. After the above expression of opinion the appeal came up before their Lordships Madhavan Nair and King, JJ., who delivered the following
62. It is now sought to be argued by the learned Advocate-General that we should order that an account should be taken of what is due to the plaintiff though the suit for accounts is admittedly barred. It is admitted by the learned Counsel that the point was not argued before the Bench that referred the question of Law to the third Judge, but he now says on the reasoning of the decision of the learned Judge Pandrang Row in his judgment he is entitled to argue the question. In our opinion this argument tries to get round the point which has now been decided against him and seeks to open up the whole for a decision on the merits. We think this should not be permitted to be done. As the point was not argued before the Bench we disallow it from being raised now.
63. The result is that the lower Court's judgment is reversed so far as defendants 1, 2 and 3 are concerned and the plaintiff will get a decree for 14/20 of the plaint amount as against the 3rd defendant in the first instance with liberty to proceed against defendants 1 and 2 after exhausting all remedies against the 3rd defendant. The plaintiff will get subsequent interest on the amount allowed in his favour at 6 per cent; from the date of the decree. The interest up to the date of the decree will be 12 per cent. The appeal as against defendants 4 and 5 is dismissed without costs. The plaintiff will get proportionate costs as against defendants 1 to 3 in both the Courts; on the disallowed portion the 3rd defendant will get proportionate costs from the plaintiff in both the Courts.
64. This case having been set down to be spoken to this day, the Court delivered the following
65. The decree as against defendants 1 and 2 and the legal representative of the 3rd defendant will be limited to the respective family assets in their hands except as to costs for which they will be personally liable.
66.In the latter portion of the judgment where it is stated that the 'plaintiff' will get a decree the word 'plaintiffs' will be substituted for the word 'plaintiff' and the same alteration will be made in the judgment wherever necessary.