1. This appeal is by defendants Nos. 3 to 8 in the suit from the judgment of the Subordinate Judge of Kumbakonam, who held the appellants liable on a deed of mortgage, marked as Exhibit A in the case, executed in favour of the plaintiffs-respondents, the South Indian Export Co., Ltd, by the defendants Nos. 1 and 2. The 1st defendant died during the pendency of the suit and defendants Nos. 9 to 15 are his representatives. No appeal has been preferred by them or by the 2nd defendant. The 6th defendant, the mother of defendants Nos. 1 to 5 and 7 and 8 died during the pendency of the appeal. The defendants Nos. 1 to 5 are the sons of one M. Allapichai Rowther (deceased), the 6th defendant is his widow and the defendants Nos. 7 and 8 are his daughters. The plaintiffs claim to recover the sum of Rs. 39,199-0-8 with interest, the amount advanced by them from time to time to defendants Nos. 1 and 2 on security of the properties mentioned in the schedules to the plaint and alleged to belong to and as being in possession and enjoyment of defendants Nos. 1 and 2 exclusively. The plaint seeks to make the defendants Nos. 3 to 8 liable on the ground that they are members of one family carrying on trade jointly and the debt in question was incurred for the joint trade. These defendants denied their liability under the bond and traversed the averment in the plaint that they and the defendants Nos. 1 and 2 as members of one family jointly carried on business and that the suit amount was borrowed from the plaintiffs for that trade. Their case is that the properties hypothecated lender Exhibit A did not belong to defendants Nos. 1 and 2 exclusively nor were they in their separate enjoyment, but that the properties belonged in common to them all as heirs of Allapichai Rowther and that the shares of defendants Nos. 1 and 2 alone in the properties are answerable for the debt. It is not disputed that the property in question belonged to Allapichai Rowther and that on his death all these defendants inherited the property in shares specified by the Muhammadan Law. The only issue in the case which need be considered in this appeal is the 5th issue which is in these words:- 'Whether defendants Nos. 3 to 8 were partners in the trade carried on by defendants Nos. 1 and 2 and whether the plaint debt is binding on them.' The learned Judge answers this issue in the affirmative and the question is whether he is right in so finding.
2. It appears that Allapichai Rowther used to trade in salt and also in skin. But the evidence is conflicting on the point as to whether the trade in skins was continued by him up to the time of his death. However that may be, the first document which marks the commencement of dealings between the plaintiff company and defendants Nos. 1 and 2, is Exhibit J described as memorandum of agreement entered into between the parties and executed on the 29th January 1896, by which the plaintiffs agreed to advance to M.A. Madrasa Rowther and Brothers of Dindigul a sum of Rs. 50,000 for the sole purpose of enabling them to carry on their business as tanners. M.A. Madrasa Rowther and Brothers were to ship all the skins tanned by them through the plaintiff company to Messrs. Declermont and Donner of London drawing against each shipment such sums as might be agreed upon between the parties. The plaintiffs were entitled to their commission on all shipments and M.A. Madarsa Rowther and Brothers would not be entitled to sell any skins or tanning materials to any one nor to ship the skins through any person other than the plaintiffs so long as any money advanced by them remained due. The company were to have lien on the stock-in-trade, the skins, hides and materials for their advances and would be entitled to take possession of them and the tannery any time they chose. The next document is the mortgage bond, dated the 17th May 1897. It is executed by M.A. Madarsa Rowther and Shaik Daewoo Rowther, the first two defendants in the suit and described in the deed as carrying on business at Dindigul under the name and style of M.A. Madarsa Rowther and Brothers. The bond is executed to secure a sum of Rs. 39,000 odd found due to the plaintiffs from the mortgagors on taking an account of the dealings between them. It purports to mortgage the properties, the subject-matter of this suit, which are stated to belong to and as being in possession and enjoyment of the mortgagors, who assign all their estate and interest in the property to the mortgagees, the South Indian Export Co. The deed winds up with the usual covenant of title. On the same date, another agreement was entered into between the 1st and 2nd defendants and the South Indian Export Co., by which the former agreed that the tannery belonging to them and situated at Dindigul and mortgaged to the company by the deed of that date should be under the direct management of the company through their men and that the latter should advance such monies as might be required from time to time for the purchase of hides and skins and for the expenses of tanning and that the defendants Nos. 1 and 2 would see that the goods were well tanned and sent to the company's office in Madras and to nobody else and that on no account should the goods of any other party or belonging to defendants Nos. 1 and 2 be brought into the said tannery except for the purpose of being sent to the South Indian Export Co., Ltd. or to their order. It is further agreed that a separate account should be kept by the plaintiffs in respect of the monies to be advanced and spent and of the sale proceeds of the goods and the accounts should be closed every year and the profit realised by such sale should be credited to the account of the 1st and 2nd defendants in discharge of the mortgage. It is also agreed that the plaintiffs should pay to the defendants Rs. 10,000 to be advanced to their various constituents and that the plaintiffs should invest in the said tannery business a sum not exceeding Rs. 30,000 besides the Rs. 10,000, already mentioned. The last clause in this agreement is that it should remain in force for 5 years or until the debt due by the 1st and 2nd defendants is fully discharged and that in the event of the working of the tannery showing no profits, it would be at the option of the plaintiff company to stop the business completely or for such time as they might see fit. The next document which requires notice is Exhibit L, and agreement between the plaintiffs and defendants Nos. 1 and 2 made on the 29th March 1900. There the defendants Nos. 1 and 2 are described as the tanners and it is stated that they have been carrying on their business under the name and style, of M.A Madarsa Rowther and Brothers with the money advanced to them by the Company under the previous agreements and it goes on to say that the business of the tannery belonging to the first two defendants is carried on tinder the supervision of the company who have put up their own sign-board near the premises with their consent and that in addition to the Rs. 39,000 and odd due under the mortgage deed, the further sum of Rs. 63,925-8-8 is due to the company by the defendants Nos. 1 and 2 on settlement of accounts and that the defendants Nos. 1 and 2 have applied to the said company for the payment of Rs. 5,000. Then it is recited that the sum of Rs. 5,000 has been advanced by the company to the defendants Nos. 1 and 2 and a second mortgage is created for the Rs. 5,000 on the properties involved in the suit and a charge is created on the tannery at Dindigul and also on the stock-in-trade for Rs. 68,925-8-8 and other monies that may become due to the company on account of advances made to the 1st and 2nd defendants under this agreement. The tannery and the business belonging to the 1st and 2nd defendants as well as the stock-in-trade are to be in charge of the plaintiff company. Another term of this agreement as well as of the agreement of 1897 is that the defendants Nos. 1 and 2 shall not either, by themselves or in partnership with any other person sell or ship their goods to any person other than the plaintiffs.
3. In January 1902, the plaintiffs instituted a suit on the Original Side of this Court, No. 57 of 1902, in which they sought and obtained a decree against defendants Nos. 1 and 2 for the sum of Rs. 24,000 odd. The plaint in that suit, Exhibit I, describes the defendants as merchants and tanners carrying on business under the name and style of M.A. Madarsa Rowther and Shaik Dawood Rowther, and after reciting the three agreements of 1896, 1897 and 1900 states that on the last settlement of accounts, made on the 30th June 1900 the sum of Rs. 47,000 odd was found due and that since the date of such settlement of accounts the amount sued for, i.e., Rs. 24,000 odd, was advanced to defendants Nos. 1 and 2. In the 9th paragraph of the plaint it is stated that the plaintiffs have had other dealings with defendants Nos. 1 and 2 in respect of which the Company holds certain securities, meaning the mortgage of 1897, and the plaintiffs ask for leave to reserve their right to proceed against such security as and when they may be advised.
4. From these documents and proceedings it is abundantly clear that from 1896 until 1902 the plaintiffs dealt with the defendants Nos. 1 and 2 alone as the sole partners in the tannery business and the agreements recited above show that the entire business was financed by the plaintiffs and in fact carried on under their direct supervision. The security, Exhibit A, was taken from defendants Nos. 1 and 2 alone, who are alleged in the deed to be the sole owners of the properties mortgaged thereby. Even at the date of the suit of 1902, it did not occur to the plaintiffs that any persons other than the 1st and 2nd defendants had any interest in the business or were liable for the money advanced by them. It is, nevertheless, open to the plaintiffs to show that in fact defendants Nos. 3 to 8 were partners in the business carried on by defendants Nos. 1 and 2 and are, therefore, liable for monies advanced for the purpose of that business. There is, however, absolutely no evidence in the case from which it may be fairly inferred that the appellants shared in the profits of the tannery or that they authorized defendants Nos. 1 and 2 to carry on the business on their behalf. And in the circumstances of the case it may be fairly presumed that if, in fact, the appellants were partners of defendants Nos. 1 and 2, the plaintiffs would have known of it. The learned counsel for the plaintiffs has relied upon some evidence which goes to show that the defendants Nos. 3, 4 and 5, specially the 4th defendant, took some part in the conduct of the business. They were seen at the place of business on different occasions and the 4th defendant also wrote a number of pro-notes for monies borrowed by M.A. Madarsa Rowther and Brothers, and signed the name of the firm. The 4th defendant similarly wrote and signed some letters. But he did not sign these pro-notes or letters in his own name for the firm; he simply signed the name of the firm. This would, no doubt, be some evidence bearing on the question of partnership, but the difficulty in regarding these acts as evidence to show that defendants Nos. 3, 4 and 5 were partners in the tannery arises from the fact that if the Dubash of the plaintiff company, who was examined as their 8th witness, knew all these facts before the institution of the suit in the Original Side of this Court as he says he did, it is difficult to conceive that the defendants Nos. 3 to 8 should have been omitted from the previous suit. The 4th defendant who gave evidence in the case says that he was, as a matter of fact, learning business at the tannery of defendants Nos. 1 and 2 and in this way seeks to explain the part he took in the conduct of the business. The learned Subordinate Judge rejects this explanation as altogether untenable. On the other hand, he does not try to meet the difficulty which arises from, the omission of the plaintiffs to make the appellants parties to the previous suit. In these circumstances we cannot agree with the lower Court that the explanation given by the 4th defendant should be treated as incredible.
5. The learned Subordinate Judge has also relied upon the proceedings in certain previous suits and transactions in which the appellants were parties. The first document in this connection is a razinamah decree in O.S. No. 7 of 1980. In that suit, the plaintiffs sued the defendants Nos. 1 to 8 and others for recovery of Rs. 39,000 odd on a registered hypothecation bond executed by the 1st defendant Madarsa Rowther . for money borrowed for the purposes of trade carried on by all the defendants. The business mentioned therein is the sale of salt conducted in accordance with certain agreements entered into by the defendants inter se. This document does not show that the defendants Nos. 3 to 8 had any connection whatever with the tannery for the conduct of which the present plaintiffs advanced their money. Reliance has also been placed on a deed of sale executed on the 2nd April 1903 by these defendants in which there is a recital that the properties sold were hypothecated by the 1st defendant in the present suit to the vendor for a certain sum of money for which all of them admitted their liability. That does not throw any light on the question we have got to decide in this suit. Reliance is further placed on the proceedings in a suit instituted by the Bank of Madras against these defendants and some other persons to recover certain moneys advanced on two mortgages executed by Allapichai Rowther and defendants Nos. 1 and 2 and another person. There the defendants Nos. 3 to 8 were sought to be made liable on the ground that they were heirs and representatives of Allapichai Rowther. It was further alleged that the moneys advanced were used and employed in the trade and business of the defendant's joint family and for other joint family purposes. The suit was compromised, a decree being passed in terms of the razinamah. As the money sought to be recovered in that suit was borrowed by Allapichai Rowther jointly with others his heirs would be clearly liable to the extent of his assets in their hands. As regards the allusion to the joint family business in the plaint the plaintiffs cannot make much use of it considering that we do not know what the nature of the business was and there is certainly nothing in that plaint or the decree in that suit to show that defendants Nos. 3 to 8 carried on the tannery in question with defendants Nos. 1 and 2 in partnership. As we have said the evidence is not very clear as to the nature of the skin business carried on by Allapichai Rowther. But whatever business he did carry on in his life-time either by himself or in partnership with others his heirs would not become partners in that business after his death unless they agreed to continue the business or authorized one of them to conduct it on behalf of all [see Abdul Khader v. Chidambaram Chettyar 32 M. 276 : 5 M.L.T.201 : 3 Ind. Cas.876]. The agreements to which we have referred further show that even if there was any business in the shape of tannery in which Allapichai Rowther was interested the nature of the business must have been considerably altered by these agreements and if defendants Nos. 3 to 8 were partners in the tannery it is difficult to conceive, as we have pointed out, that the plaintiff company would not have known of it considering that the tannery was carried on under their immediate supervision and control. They dealt throughout with the defendants Nos. 1 and 2 on the footing that the business belonged to the latter and to them alone and that they were owners of the property hypothecated under Exhibit A.
6. As for the oral evidence all that it establishes is that the defendants Nos. 3, 4 and 5 took some part in the conduct of the business and so far at least as the 4th defendant is concerned this evidence is corroborated by documentary evidence. But in the circumstances of the case, as already pointed out, we are unable to say that such evidence is sufficient to prove the existence of a partnership in the business for which the plaintiffs advanced their money. As against the other defendants, there is no evidence whatever connecting them with the business. We have already pointed out that we cannot act upon the statement of the plaintiffs' Dabash that he knew all along that all the defendants were partners in the business and, as for the evidence of the other witnesses for the plaintiffs on this point, it is not of much value as it is clear that they had no knowledge as to whether the contesting defendants had any interest in the business or not and they really speak only of their general impression.
7. The learned Subordinate Judge relies upon two classes of rulings in support of his conclusion. The decisions in Juggeewundas Keeka Shah v. Brijbookundas 2 M.I.A. 487 : 6 W.R. 10 and Chinna Ramanuja Ayyangar v. Padmanabha Pillayan 19 M. 471, can have no application as we find that the plaintiffs have failed to prove that the contesting defendants were partners in the business carried on by the defendants Nos. 1 and 2. The other class of cases to which he refers, viz., Johurra Bibee v. Sreegopal Misser 19 M. 471; Daulat Ram v. Mehr Chand 15 C. 70 : 14 I.A. 187, send Nunna Setti v. Chidara Boyina 26 M. 214 arose in connection with the family business of a joint Hindu trading family. These cases can have no application to the present case where two Muhammadans borrowed money on a bond in course of a business carried on by them and it is not proved that their brothers, sisters and mother who are sought to be made liable had any interest in the business. The mere fact of their relationship or even the fact, if proved, that all the defendants lived together--and we may point out that the evidence shows that they in fact, lived separately --would not make them members of a joint family in the sense of the Hindu Law. The membership of a joint Hindu family involves a certain legal status which is unknown to the Muhammadan Law and unless this is borne in mind in dealing with a case like the present one is apt to fall into error. The law governing questions of this class is well-established as we pointed out recently in Abdul Khader v. Chidambaram Chettyar 32 M. 276 : 5 M.L.T. 201 : 3 Ind. Cas. 876 and Mr. Odgers who appeared for the respondents very properly did not contend otherwise.
8. This appeal must, therefore be, allowed and the suit dismissed with costs throughout as against the defendants Nos. 3 to 8.
9. The appeal of the 6th defendant abated inasmuch as her legal representatives who are the defendants Nos. 2 to 5 and 7 and 8 were not brought on the record within the time specified in the new Code but a substantive application has been made for the delay being excused. In the circumstances mentioned in the affidavit we think there is sufficient ground for excusing the delay and we, therefore, order that the 2nd, 3rd, 4th, 5th 7th and 8th defendants be brought on the record as the legal representatives of the deceased 6th defendant.