Meenakshi Achi And Another v. P.S.M Subramanian Chettiar And Others.

1. This is an appeal preferred against the decree and judgment of the learned Subordinate Judge of Devakottai in O. S. No. 137 of 1951.

2. The facts are :-- Defendants 1 and 4 and the late Palaniappa Chettiar, husband of defendant 2 and the adoptive father of defendant 3, were carrying on a money-lending business in partnership under the name and style of P. S. SM. Firm in Burma. Palaniappa Chettiar died on 30-12-1932 surviving him his widow, who is defendant 2. It is the case for the plaintiff that the widow was taken in as a partner in the place of her deceased husband and that the firm continued to function with defendants 1 and 4 and defendants Meenakshi Achi as partners.

3. The plaintiff P. S. M. Subramanian Chet-tiar's moneys were in deposit with this firm through the Maral of V. V. of Ariyaludi, since dead. This depositing was in April 1928. It is the case for the plaintiff that the new firm assumed liability to pay the debt and consequently that he, the creditor, has agreed to accept the new firm as his debtor and to discharge the old partnership from its liability.

The new firm has been making payments now and then towards this deposit and by 13-4-1941 the plaintiff's money in deposit in this firm had amounted to Rs. 7813-6-6, the interest stipulated being the current rate of interest prevailing in Rangoon plus one anna. Towards the balance of the amount due under this deposit a kaiyeluthu letter, described as a promissory note, was executed under date 13-4-1941 (Ex. AD which is reproduced below :

"P. S. SM. Sitkwin Ariyakudi V. V. Maral Karalkudi PS. M. Subramanian Chettiar 1st Chitrai of Vishu year (13-4-1041) Executed by Muthukaruppan Chettiar The amount due from us in settlement of our previous accounts is Rs. 7.873-6-6. We have credited in your name the said Bum of rupees seven thousand eight hundred seventy-three annas six & pies six only with interest at Re. 0-1-0 over and above the Rangoon nadappu rate of interest. On the money being demanded we shall pay to your order the principal together with interest thereon and take return of this letter.

(Sd.) P. S. SM. Agent, Muthukaruppan Ohettiar." Payments have been made subsequently and those payments have been endorsed on the back of Ex. A1. These payments have the bar of limitation. Though the balance was demanded by a registered notice dated 20-10-1951 to defendants 1 to 4, they have been evading and no payments have been made.

(17) Bearing these factors in mind we have got to examine only the contentions of defendant 2 Meenakshi Achi in these appeals.

The contentions of Meenakshi Achi are as follows :

(1) The Maral has not been proved;

(2) The suit document is not a promissory note and the endorsements on its back are forgeries;

(3) Defendant 2 has never been a partner of this firm;

(4) Even if she is considered to be a partner during the interrugnum between her husband's death and before her adopted son defendant 3, was taken in as a partner (date unspecified), this debt is not binding on her because it has not been shown that the new partnership assumed the liability to pay the debt and secondly the creditor has not been shown to have agreed to accept the new firm as his debtor and to discharge the old partnership from its liability; and (5) The suit is, in any event, barred by limitation.

18. 'Point 1' : It is idle to contend that the Maral has not been proved. Two of the partners who were equally liable viz., Subramanian Chettiar (defendant 1) and Somasundaram Chettiar (defen-dant 4) admit the deposit. The telegram Ex. A34 dated 1-4-1928. the letter Ex. A35 dated 12-4-1928, the Vaddi Chittai Ex. A-36 and the Vaddi Chittai Ex. A-37 referring to the Kaiyeluthu letter relating to the Maral deposit, the letter Ex. A-18 dated 8-9-1932 referring to the Kaiyeluthu letter in the name of V. V. Maral P. S. M. Subramanian Chetti of Ariyakudi as having been delivered to the said person, the Vaddi Chitai Ex. A-38, Ex. A-19 the letter written by Meenakshi Achi calling for the particulars of Maral debts, the Vaddi Chittais Exs. A-39, and A-40 and the entry in the account book Ex. A-41 evidencing the suit transaction and the endorsements on the back of Ex. A-1, marked as Exs. A-2 to A-7. all elearlv show that the deposit pleaded by the plaintiff is true.

In fact it is not the case for this Meenakshi Achi that there was no depositing and improving of the amount of the plaintiff but her case is only that defendant I was managing and she knows nothing, which is found to be false, and she is putting the plaintiff to strict proof. The depositing was spoken to during the trial by the plaintiff Subramanian Chettiar as well as by defendant 1 Subramanian Chettiar. Their evidence stood unshaken in cross-examination and has been accepted by the learned Subordinate Judge. This plaintiff has given a registered lawyer's notice preceding the suit under Ex. A-12 and it is significant that there has been no denial of liability by defendant 2.

It is in evidence that this Meenakshi Achi was receiving throughout the balance-sheets etc., from the suit firm showing thereby that she could not have been ignorant of the suit transaction, as pretended to by her now. Therefore the learned Subordinate Judge who had an opportunity of seeing this Meenakshi Achi in the box as D. W. 1 has rightly disbelieved her evidence and this is a circum-stance entitled to weight. On point (1) we therefore find that the depositing of the amount for improvement as pleaded by the plaintiff is true.

19. 'Point 2' : That the suit document Is not a promissory note has not been raised in the lower Court and both parties have proceeded only on the footing that it was a promissory note. But even assuming for the sake of arguments that it is not a promissory note, the plaintiff cannot be straightaway non-suited because the suit has been tried as one based upon the depositing of the amount, it was being treated as such and utilised as such by the Sitkwin firm and payments were being made thereunder as such and the suit was filed setting out all these facts for recovery of the money due under that original debt.

This suit also has not been disposed of under presumptions arising under the Negotiable Instruments Act. In fact it was the plaintiff and his witness who first got into the witness-box and filed all the relevant documentary evidence and defendant 2 then got Into the box and filed her documentary evidence. There is no question of any bar of limitation by this suit not being treated as a suit on a promissory note, because it is common ground that the demand for the return of the deposit amount was well within the period of limitation prescribed.

The only two points of substance urged in this connection are that the suit document has been signed by P.S.SM. Agent Muthukaruppan Chettiar and secondly, that the endorsements on the back of Ex. A-1 appear to have been written at a stretch. In regard to the first point we have the evidence of the plaintiff and we are unable to see why the agent of the firm should not sign the promissory note on behalf of the firm.

Secondly, though some of the endorsements on the back of the promissory note look like having been made with same ink it is significant that not a single question was put to the plaintiff or defendant 1 in the lower Court about this. The trial has gone on on the footing that these endorsements had been made on different dates and not at one stretch. Otherwise it stands to common sense that when defendant 2 was straining to disown her liability, she would not have neglected this aspect of the matter.

In addition some of the endorsements in the middle appear to be in different inks. There are also corresponding entries in the account books of the firm in regard to the payments made under these endorsements and they arc not denounced as non-genuine. Therefore point (2) also fails.

20. 'Point 3' : A partnership is defined by 6. 4 replacing the repealed Section 239 Contract Act & widening it (Birdichand v. Harakchand. AIR 1940 Nag 211 (A)) as

"the relation subsisting between persons who have agreed to share the profits of a business, carried on by all or any of them acting for all"

.

As the definition shows, a partnership consists of three essential elements: (i) it must be the result of an agreement between several persons, (ii) the agreement must be to share the profits of a business and (Hi) the business must be carried on by all or any of them acting for all. All the three above essentials must exist before a partnership can come into existence; and there must be an intention to become partners: per Lord Esher Sutton & Co. v. Grey, (1894) 1 Q. B. 285(B).

As to (i) we have to remember that a partnership cannot be the result of status but only of a contractual agreement between the various parties. (See 40 Am. Jur. 145 -- Tests of Judicia of Partnership), it is pointed out by Section 5 which further goes on to say that the members of an undivided Hindu family carrying on a joint family business are not necessarily partners. Of course this does not mean that there can be no partnership between the members of a joint Hindu family to carry on a family business in partnership; Jamunadhar v. Jamunaram, AIR 1944 Cal 138 : 48 Cal WN 203CC). But this is not the case here.

Partnerships are of two kinds, namely, (i) partnerships at will and (ii) partnerships for a fixed period. (see Section 7).

On the death of a partner in the absence of a contract, express or implied, to the contrary, a firm is dissolved : see Section 42(c), even though the partnership be for a definite number of years.

In the absence of a contract to the contrary, no person shall be introduced as a new partner into a firm without the consent of all the existing partners: see Section 31(1). The general idea is that the consent of all the existing partners is required to the introduction of a new partner so that the firm may work harmoniously. Lindley, pp. 435-436; Love-grove v. Nelson, (1834) 1 My & K 1 (20) (D); Byrne v. Reid. (1902) 2 Ch. 735 (E).

In addition, a new partnership may be by an oral agreement or in writing. Again, it may be express or implied. It neeci not be express and can arise out of mutual understanding evidenced by a consistent course of conduct and by express admission of the parties concerned. Tajammal Hussain v. Ahmad Ali, AIR 1937 Oudh 438 (F); In re K. Narasayya, (G); Jakiuddin v. Vithoba, AIR 1939 Nag 301 (H): Chotte Lal v. Raj Mal, AIR 1951 Nag 448 (I); Haji Isa Haji Noor Finn v. Saru Bai', AIR 1938 Nag 324(J). See Lindley p. 105.

21. In determining whether a particular group of persons constitutes a partnership regard is to be had to the real relation between the parties as shown by all relevant facts taken together. The question whether a particular group of persons constitutes a partnership or not, is often a difficult one to decide.

No general rule can be laid down in this connection. No doubt sharing of profits will be an important criterion but as laid down by the House Of Lords in Cox v. Hickman, (1860) 8 HLC 268 (K), it is not conclusive. Taking part in the conduct of the business is another important element to be considered, though with a similar qualification. This can be shown by books of account, by testimony of clerks, agents and other persons, and letters and admissions and in short by any of the modes by which facts can be established.

The books of account will usually give a good indication as to whether the parties are partners or not. The reason is that partnership accounts are generally maintained in a different way than is the case where one or more of the parties are lenders. Even this however is not an infallible guide.

As Section 6 says all the relevant facts must be scrutinised in each case in order to determine whether a particular set of persons are partners or not. AIR 1937 Oudh 438(P); Commr. of I. T. v. Kikabhai, (1930) 4 ITC 178: (AIR 1930 Nag 6) (L); British Cotton Growers Association v. Commr. of I. T., (1937) 5 ITR 279 : (AIR 1937 Lah 338) (M); Debt Parshad v. Jai Ram Das, (N) ; Madho Prasad v. Gouri Dutt, AIR 1939 Pat 323 (O); Chimanrani Motilal v. Jayantilal, AIR 1939 Bom 410(P); Raghumall v. O. A. Calcutta, AlR 1924 Cal 424 (Q); Hakam Rai v. Ganga Ram, AIR 192G Lah 340 (R); Chokalinga v. Muthuswami, AIR 1925 Mad 768 (S); English Cases: Davis v. Davis (1894) 1 Ch 393 (T); In re Young Ex parte Jones, (1896) 2 QB 484 (U); Walker v. Hirsch, (1884) 27 Ch. D. 460 (V); Adam v. Newkiggins. (1888) 13 AC 308 at p. 315 (W). For detailed discussion and cases, see Lindley, pp. 105 et seq.).

22. Once admitted as partner, the rules as to relations of partners with third persons are contained in sections 18 to 30. section 18 lays down the fundamental rule of the law of partnership via., that subject to the provisions of the Act, a partner is the agent of the firm for all purposes of the business of the firm. The authority of a partner is defined in Sections 19 to 22 and the effect of admission by a partner in Section 23 and the effect of notice to a partner in Section 24.

Sections 25 to 27 deal with the question of the firm's Jiabiiity for (i) contract (ii) for torts and (iii) for misappropriation of third person's property by a partner. As regards the contractual liability, Section 25 provides that every partner is jointly and severally liable for all acts of the firm while he was a partner.

Every partner is liable to the utmost farthing of his property for the debts and the engagements of the firm and the decree-holder is under no obligation to levy execution against the property of the firm before having recourse to the separate property of the partner; nor is he under any obligation to levy execution against the partners rateably; but he may select any one or more of them to levy execution against him or them until the decree is satisfied leaving all questions of contribution to the partners themselves. Lindley, pp. 260-61; Sections 11, 49 and 50 of Order 21, Civil P. C. No device or contrivance will enable a partner to escape from his or her liability under the partnership.

As stated in the Report of the Special Committee making a departure from the english act of 1890 this section makes the liability of partners joint and several in accordance with Section 43, Indian Contract Act: See Lukmldas Khimji v. Purshotam Hari, 6 Bom 700 (X) ; Motilal v. Gellabhai, 17 Bom 6 (Y); Narayana Chetti v. Lakshmana Chetti, 21 Mad 256 (Z); Md. Askari v. Radhe Ram Singh (1900) 22 All 307 (Z-1); Hemendra Coomar v. Rajendra Lall, 8 Cal 35-3 (73.).

23. Under Section 32 a partner may retire (i) with the consent of all the partners; (ii) by virtue of an express agreement between the partners and (iii) in case of a partnership at will, by giving notice in writing to all other partners of his intention to retire. Such a partner, however, continues to be liable to third parties for acts of the firm, after his retirement, until public notice of his retirement as required by Section 72 has been given, either by himself or by the other partners (Clauses (3) and (4) of section 32).

As regards liability for acts of the firm done before retirement, the retiring partner remains liable for the same, unless, as Section 32(2) provides. On the words of Underbill (p. 79) a tripartite agreement is made by him with the third parties concerned and the partners of the reconstituted firm, discharge him from such liability.

Even where partners agree amongst themselves that the continuing partners shall be liable for the obligation of a retiring partner, such an agreement cannot per se affect the rights of the creditors being res inter alios acta. Such agreement may be either express or may be implied by a course of dealing between the third parties and the new firm, after knowledge of his retirement. But it will not be presumed and if it exists will have to be strictly proved. Eenson v. Hadfield, (1844) 4 Hare 32 (37) (Z3). This refers to the subject of "novation" for which Section 62, Contract Act provides. Scarf v. Jardine, (1882) 7 AC 345 at p. 350 (Z4). Retirement is not the same as dissolution. On retirement of a part-ner, the firm continues to exist as such, which is not the case when a partnership is dissolved.

24. Bearing these principles in mind, if we examine the facts of this case, we find that on the death of Palaniappa, the partnership at will stood automatically dissolved. Thereupon two of the remaining partners have taken in this Meenakshi Achi as a partner and the old business has been run under a different style and vilasam. It will be remembered that at that stage Meenakshi Achi had not adopted defendant 3 and it was only in 1937 that she did so.

That this Meenakshi Acht thus became a partner of the new firm is evidenced by the following facts. She gives her own version as to how she became a partner in the agreement of 1941. The correspondence which has been filed in this case, in the shape of letters written by this Meenakshi Achi, shows that she was taking an active interest in the management of the business of this firm as a partner.

It is also clear that balance-sheets etc., were being sent to her and she was scrutinising them. In fact she has appointed one of her own nominees as an agent in Burma in order to improve the conduct of the business there realize the outsandings and discharge the liabilities.

It is also the admitted case of this Meenakshi Achi, and in fact it is on that footing that she filed her suit on the two deposit letters, O. S. No. 22 of 1950, that she became a partner in the Kha-jang firm and had an eight anna share therein. There is no reason why when she admittedly became a partner of the Khajang firm, she should not have become a partner of the Sitkwin firm. The partnership of this Meenakshi Achi in the Sitkwin firm is in addition spoken to by the plaintiff and defendant 1 arid nothing has been elicited in their cross-examination to discredit their testimony.

It is unnecessary to multiply these details to show that this Meenakshi Acni was admitted as a partner in the Sitkwin firm after the death of her husband and when the new firm was constituted that she actively participated in the management of the business as a partner and that she had net retired from that partnership in accordance with the provisions of the Indian Partnership Act. It need not be pointed out that this Meenakshi Achi could not have occupied herself legally the dual role of guardian and a partner.

There can be no partnership between the same individual acting on the one hand as the guardian of the minor and on the other as a partner in his or her individual capacity. In re Mohan Lal, (1942) 10 ITR 219 (Z5). See also Lachman Das v. Commr. of I. T., (1948) 16 ITR 35: (AIR 1948 PC 8) (Z6). The only point of substance urged in favour of the contention that Meenakshi Achi was not a partner is two-fold viz., that in the other suits filed against Meenakshi Achi as well as in the present suit allegations have been made suggesting as if Meenakshi Achi was not a partner but only the guardian of her minor adopted son, the present defendant 3.

Secondly, in O. S. No. 131 of 1944 the three partners who were found entitled to shares were held to be Somasundara, Subramania and Meyyappa. In regard to the former, the plain provisions of the partnership act can only be displaced by contracts to the contrary and the alleged custom of the Nattukottai Chettys is neither here nor there.

In regard to the suit O. S. No. 131 of 1944, it will be remembered that the present plaintiff was not a party to that suit and he will not be bound by what the three persons alleged as between themselves adjudicated and got.

25. Therefore, on point (3) it has to be held that defendant 2 Meenakshi Achi continued throughout as a partner of the Sitkwin firm and is therefore liable for the suit debt both out of the assets of the firm and also personally.

26. Point (4) : When a person has been introduced as a partner into an existing firm, as in the case of Meenakshi Achi, she does not thereby become liable for any act of the firm done, i.e., any obligation of the firm incurred, before she became a partner : see Section 31(2). This rule, however, does not apply where a minor admitted to the benefits of partnership of a firm elects to become a partner therein on attaining majority or ipso facto becomes so on the expiration of six months from the date of his attaining majority, under the provisions of Section 30: see Section 31(2).

27. Though the mere fact that a certain per-son has been introduced as a partner into a firm does not make him liable for the obligations incurred by the firm before he was so introduced, he may, by agreement between the partners, become liable for such obligations. But to determine whether an incoming partner becomes liable to an existing creditor of the firm, two questions have to be answered :

Firstly, whether the new firm has assumed the liability to pay the debt;

Secondly, whether the creditor has agreed to accept the new firm as his debtor and to discharge the old partnership from its liability. A creditor cannot rely merely on agreement between the partners inter se such as that the new partner would be liable for antecedent debts. He must prove novation of contract, that is to say, he must prove both the conditions stated above in order to hold the new firm liable for his debts. Rolfe v. Flower Salting & Co., (1865) 35 LJPC 13 at p. 38: 146 RR 96 at p. 104 (Z1); B. D. Sharma v. Phanindra Nath, 35 Cal WN 593 (Z8); Russa Engineering Works v. Kanara Transport Co. 49 Mad 930 (Z9); AIR 1939 Pat 323 (O).

28. In regard to proof of such agreement between the old partners and the incoming partner Lindley observes :

"The Courts, it has been said, lean in favour of such an agreement, and are ready to infer it from slight circumstances; and they seem formerly to have inferred it whenever the incoming partner agreed with the other partners to treat such debts as those of the new firm. But this certainly is not enough for the agreement to be proved is an agreement with the creditor; and of such an agreement an agreement between the partners is of itself no evidence."

The American Law is also the same. Whether an an incoming partner assumed liability expressly or impliedly as can be deduced from the facts and circumstances attendant upon his entry is a question of fact and circumstances indicating assumption or non-assumption have to be gathered from the treatment of the existing debts by the firm to the knowledge of the incoming partner as the debts of the new firm or from other facts and circumstances which justly raise an implication and its assumption (40 AM. Jur Section 219 et seq.).

The result of the Indian authorities on the subject also appears to be that there must be evidence which, though not much, must be sufficient to establish privity between the newly constituted firm and the creditor if an incoming partner is to be held liable for any old debt of the firm. (1865) LR 1 PC 27 (Z7); 35 Cal WN 593 CZ8); Jagan Nath and Co v. Cresswell. ILR 40 Cal 814 (Z10); ILR 49 Mad 930: (AIR 1926 Mad 1138) (Z9);- Shewak Mahtom v. Saint Joseph, 9 Cal LR 21 (Z11); Ex. P. Whitmore, (1838) 3 Deac. 365 (Z12); British Homes Assurance Corpn. Ltd. v. Paterson, (1902) 2 Ch 404 (Z13); Crau-furd v. Cocks, 6 Ex. 287 (Z14); Panduranga Bhatta v. Krishna Nayak & Sons, AIR 1027 Mad 889 (Z15); Smith v. Patrick, (1901) AC 282 (Z16).

29. In this case Meenakshi Achi after she has been admitted as a new partner and the firm has been reconstituted, has assumed the liability to pay the plaintiff's debt. It is unnecessary to repeat the evidence already set out above as to how the balance-sheets were drawn, how the account entries have been made and how Vaddi chittais have been sent.

Then in the agreement of 1941 there is a narration of this Meenakshi Achi as to how the new business assumed the liabilities of the old business and how Meenakshi Achi was a consenting party thereto and how the business was continued. The correspondence of Meenakshi Achi shows that she was fully aware of these Maral debts and how she as sumcd liability for the same and at no time thought of repudiating them. It is clear in the circumstances of this case that the new firm has assumed the liability to pay the plaintiff his debt.

30. That the creditor had agreed to accept the new firm as his debtor and to discharge the old partnership from its liability is evident from this plaintiff receiving payments and Vaddi Chittais and his continuing the deposit without making any demand for its return. The option is that of the plaintiff on the. constitution of the new firm to either continue the deposit or not. Therefore, it has been proved in this case that the creditor had agreed to accept the new firm as his debtor and to discharge the old partnership from its liability and which can be safely deduced from the circumstances of this case.

31. Before closing this aspect of the case, we must briefly refer to the position of defendant 3 who has not, as we have already stated, disputed through his learned Advocate Mr. Kesava Ayyangar, his liability for the. suit debt and the decree passed against him. This position is understandable both in view of the fact that the mother and the son are sailing together and it suits defendant 3's purpose to make out that he alone is liable and not his adoptive mother for this partnership debt.

Secondly, though defendant 3 has been taking up inconsistent positions, the substance of his claim seems to be that he was admitted to the benefits of the partnership when he was a minor and in fact, as set out by his adoptive mother in the 1950 suit, after he attained majority he became a partner and gave notice in 1941 that nothing should be done without consultation with him and that it was on that foot that the 1944 suit filed by Soma. sundaram Chettiar has been decreed making him a partner in regard to an one-third of the partnership business of the P. S. SM. firm.

Therefore, this Meyyappa Chettiar, in any event, under Section 28, Partnership Act, can be construed as holding out as a partner and the two essential elements emphasised under Section 28 viz., (i) that there must be a representation and (ii) credit must be given to the firm on the faith of such representation, have been made out. That Meyyappa Chettiar has been making representations to all and sundry, including this plaintiff who is a close relative and living in the vicinity has been made out.

That on the faith of such representation the, present plaintiff has given credit to the firm in the sense that he has not withdrawn the deposit and allowed the firm to make use of that money and enjoy that credit has also been made out. This Meyyappa Chettiar by reason of his adoption also has become entitled to the right, title and interest of his adoptive father in the firm. Therefore, apart from the fact that Meyyappa Chettiar has not been opposing here the decree passed against him, it is obvious that he has been rightly made liable with Meenakshi Achi.

32. Point (5) : The suit is not barred by limitation for the reasons set out by the learned Sub-ordinate Judge in para 38 of his judgment. The acknowledgment by one partner is good as against the other partners and saves limitation against all Veeranna v. Veerabhadraswami, ILR 41 Mad 427. (AIR 1919 Mad 1140) (PB) (Z17); Mahadeva Iyer v. Ramakrishna Reddiar, 50 Mad LJ 67 : (AIR 1926 Mad 114) (7,18); Chegamul v. Govindaswami, AIR 1928 Mad 972 (Z19).

33. In this connection an attempt was made both in the lower Court and here to show that the acknowledging partner did so not as a partner but in his individual capacity and only initialled the endorsements. But an investigation shows that this contention is nothing more than the proverbial mare's nest and the first defendant has given an explanation regarding the mode of his signing. He has stated :

There can be no difference as to the binding nature or legality of the endorsements merely because they bear the initials instead of full signature. Rajah of Tarla v. Guduru Ramana Rao, (1942) 2 Mad LJ 242: (AIR 1942 Mad 680) (Z20), The fact that the acknowledgments were made when no active money-lending was carried on would not make any difference because even if no fresh business is done, unless the premises of the shop are surrendered to the landlord and no business is actually carried on the dissolution of the partnership, the partnership I would not stand dissolved. Therefore, the suit, look-ed at from any point of view, is not barred by limitation.

34. The Jurisdiction of the Devakottai Sub-Court is the last point for determination and this has been effectively dealt with by the learned Subordinate Judge in para 41 of his judgment. There can be no doubt that under Section 20, Civil P. C., the suit could be filed in the Devakottai Sub-Court.

35. In the result, the decree and judgment of the lower Court are affirmed subject to the modification that the plaintiff will be entitled to recover one-third of the decree amount from defendant 1, another one-third from defendants 2 and 3, and the remaining one-third from defendant 4 and that only in the event of the one-tnird of the amount not being recovered, after all legitimate steps have been taken, from defendant 4, that that one-third will be recoverable from defendants 2 and 3 and from defendant 1 in moieties, as conceded by the learned advocate for the plaintiff Mr. R. Gopalaswami Ayyangar. This appeal is dismiss-ed with 1/2 costs.

36. On these findings it follows that the plaintiff was fully justified in attaching the decree and the amount in deposit in O. S. No. 22 of 1950. Therefore, there are no merits in the C. M. As. and they are also dismissed with 1/2 costs.