JUDGMENT

(Delivered by Varadachariar, J.)

Appeal No. 267 of 1934.

This appeal arises out of a suit for partition. The 1st plaintiff and the 1st defendant are brothers. The other plaintiffs and the other defendants are their sons and grandsons. Till 1915, the two branches constituted an undivided Hindu family which was possessed of extensive properties, moveable and immoveable. They had also a family business. In 1915 partition between the two branches began and the parties have gone on dividing portions of the properties, from time to time, sometimes by arrangement between themselves and sometimes through arbitrators. Some movables, some immovables and various outstandings remained undivided even at the date of the plaint in this suit which was filed in 1931. After the division began in 1915, the family trade continued to be carried on till 1922, though it appears that from 1920 the defendants began to do business on their own account as well. After 1922 it is admitted that no further business was carried on in common. On the other hand, the plaintiff's branch also began to do business on its own account from 1922. Between 1922 and the date of the institution of this suit, the outstandings due to the family were being collected by the 1st plaintiff or the 1st defendant according to convenience; such collections have sometimes been divided between them as and when they were made but on other occasions the parties seemed to have retained in their own hands the amounts respectively collected by them. This suit was accordingly instituted by the plaintiff's branch, for a partition of the immovable properties still remaining undivided, for a division of the outstandings remaining uncollected and for the appointment of a commissioner to take accounts of the collections respectively made by the two branches with a view to direct one party or the other to pay the other's share of excess collected by such party. The plaint refers to the properties still remaining undivided as “coparcenary” property. This is not an accurate description; and the arguments both in the Courts below and before us have proceeded on the footing that in 1915 the parties must be regarded as having become divided in status; but, according to the plaintiff's case, there can be no doubt that the suit properties are properties belonging in common to a family which had become divided in status.

As regards the immoveable properties of which partition was claimed, there was little or no dispute. As regards items 31 to 83 of the plaint schedule, the defendants contended that the properties themselves must be held to belong exclusively to the defendants' branch, the plaintiffs being at best only entitled to a share of the amount due under the decree in O.S No. 57 of 1919 in execution of which these properties were purchased by the 1st defendant. In answer to prayer for the division of outstandings and for the appointment of a commissioner to take an account of the collections made by each party, the defendants raised a plea of limitation, contending that after 1915 the 1st plaintiff and the 1st defendant must be deemed to have carried on the business only as partners, that the partnership was dissolved in 1922 and that any claim for the taking of the accounts thereof must therefore be deemed to be governed by Art. 106 of the Limitation Act. A further defence to the claim for the taking of accounts was raised with reference to the order passed in E.P No. 26 of 1927 in O.S No. 27 of 1925 on the file of the Sub-Court. A prayer made by the present defendant as decree-holders in that suit for the taking of accounts had been disallowed by the executing Court. Hence it was said that the matter must be taken to have been concluded by that order. These three pleas were overruled by the lower Court and a preliminary decree for partition and for the taking of the necessary account was passed; hence this appeal by the defendant.

It may be convenient to deal at the outset with the question of limitation, because in one view that plea will also bear upon the plaintiffs' claim in respect of the debt which formed the subject-matter of O.S No. 57 of 1918 which led to the purchase of items 31 to 83. Relying upon the observations of the Judicial Committee in Mst. Jatti v. Banwarilal and Babu v. The Official Assignee of Madras, Mr. Krishnaswami Iyengar, on behalf of the appellants contended that the Court below was not right in holding that the relationship between the parties was only that of tenants-in-common and that the proper view was that so far as the family business was concerned their relationship after 1915 was that of partners. As pointed out by the learned District Judge the facts of the cases before the Privy Council were different from the facts of the present case. Where all the property belonging to a joint Hindu family has formed the subject of partition, it is reasonable to presume that any further conduct of business by some or all of the members of the original joint family must be the result of a contract between them; and such contract will in law be regarded as one in the nature of a partnership. But where, as in the present case, it is clear that only some properties of the family were divided and other properties belonging to the family including the family trade were not brought into the division at all, the mere fact that even such partial division will in law amount to a division of status between the parties will not justify the view that the mutual relationship of the members to and in respect of the family business which theretofore rested upon status or birth must thereafter be treated as one resting on contract, so as to involve the notion of a partnership. S. 5 of the Partnership Act clearly recognise this antithesis. The present suit is in form and in substance one for a division of property which admittedly had not heretofore been divided between the parties and a prayer for the taking of the account of the assets including the outstandings due to that business is as reasonably incidental to a suit for partition as to a suit for dissolution of partnership. We would be importing an unnecessary fiction in the present case if we should hold that in 1915 the parties intended to substitute a contractual relationship between themselves in respect of the family business in place of the old relationship founded on status. That that status became one of tenancy-in-common in place of the old coparcenary status does not attract the further result that status must be held to have so far changed as to give rise to a relationship by contract. There is in this case the further fact that even in 1915, there were major sons of the 1st plaintiff and major sons of the 1st defendant who equally with the 1st defendant and the 1st plaintiff were interested in the assets of the trade as well as in the other properties belonging to the family. It is not seggested that these sons were partners in any sense known to the law; if so, their relation in respect of the trade and its assets must be only that of co-owners. There is no justification for implying that they authorised the 1st plaintiff and the 1st defendant to enter into a partnership on their behalf as well.

The subsequent conduct of the parties, as noticed in the judgment of the learned District Judge is also more consistent with the hypothesis that they regarded themselves as co-owners who went on dividing from stage to stage various items of properties movable and immovable as and when they found convenient to divide them. With reference to the trade assets, it appears that they divided various outstandings as and when they were collected. Similarly, with reference to the trade liabilities, they renewed their debts to strangers by executing separate documents for their respective shares as and when occasion arose. What is spoken of in the evidence as the taking over by the new business of the assets and liabilities of the old seems only to refer to the way the accounts were made up. In this state of the evidence we do not see any reason for implying a contractual relationship between some of the members of the family in respect of what was admittedly a portion of the family assets. It is not contended that a business cannot be carried on by certain members as co-owners (not being partners). Such a conception is well known in respect of family businesses carried on by Dayabhaga families. The division of status in 1915 only put an end to the right of survivorship between the two branches and involved no other legal consequence. Mr. Krishnaswami Aiyangar contended that the admitted fact of the family business having been carried on since 1915 in the joint names of the 1st plaintiff and the 1st defendant was a clear indication that the parties meant it to be different from the old business which was carried on in the sole name of the 1st defendant. The change of name is sufficiently accounted for by the division in status because, from that date the first defendant ceased to be legally entitled to be in sole charge of the business as he was during the joint stage and the change of name was effected with a view to make it clear that both the brothers were in joint management. It will be begging the question to import a legal distinction merely by using the words ‘do’ and ‘new’ as if they were two different concerns. We are accordingly of opinion that the lower Court rightly applied Art. 120 of the Limitation Act to the case and rejected the defendant's contention that Art. 106 should be held to be applicable.

We may add that even if it should be assumed that in 1915 the relationship of partners came into existence between the 1st plaintiff and the 1st defendant, the present suit would not be barred unless the defendants also make out that there has been a dissolution of the partnership more than 3 years prior to the institution of the suit. The onus of making out such a dissolution is on the defendants; and it is well established that the mere fact that after a particular date no further business was done will not amount to a dissolution of the partnership: See Haramdhar Peddar v. Sundaram Peddar, Sathappa Chetty v. Subramania Chetty, Din Muhammad v. Kanski Ram and Srinivasalu v. Ramakrishna Naidu(4). There has been in this case no death or bankruptcy or any other event which of itself works a dissolution as a matter of law. All that is contended for on behalf of the defendants is that the conduct of the parties subsequent to 1922 must be held to give rise to an inference of dissolution by common consent. We have already stated that the mere discontinuance of the business does not lead to this inference. It is said that the starting of separate businesses by the parties is a factor to be considered but its significance cannot be very much in this case because as already stated, the defendants' branch began a separate business even in 1920 and it is nobody's suggestion that the joint business was dissolved then.

It was next said that certain dispute between the parties was referred to arbitration in 1924 and it was contended that as that reference comprised some of the items relating to the trade, such a reference could have been made only on the footing that the partnership had been dissolved. We do not think the evidence justifies this conclusion. Some of the items referred to the arbitrators related to claims inter se between the joint business and the separate business carried on by the defendants' branch. Other items of the reference related to particular outstandings which had been collected by one party or the other or were claimed by one party or the other. There is nothing to show that all matters relating to the business ever formed the subject either of reference to arbitration or of any arrangement between the parties. It therefore seems to us that even if Art. 106 should beheld to be applicable to this case, the suit would not be barred, because it has not been shown that there was a dissolution more than three years prior to the date of the suit.

With reference to the plaintiffs' claim to items 31 to 83, of the plaint schedule, the material facts are not in dispute. The debt in respect of which O.S No. 57 of 1918 was instituted was undoubtedly a debt due to the family. The suit was instituted in the 1st defendant's sole name, because the accounts of the period, when the debt became due, stood in the 1st defendant's name as he was at that time the sole manager of the undivided family. The evidence of P.W 1 shows that the expenses relating to that suit have been debited to the joint account and it also appears from his evidence as well as from the entries in the accounts that when some accounts were realised from the judgment-debtor, after the passing of that decree, the amounts so realised were shared equally by the plaintiffs' branch and by the defendants' branch. There can thus be no doubt that the debt was a common debt and that in instituting the suit and even after obtaining the decree, the 1st defendant regarded himself as entitled to that amount for himself and for the plaintiffs' branch. He must be therefore held to have throughout acted in a representative capacity and a purchase made in satisfaction of a claim of that kind must in law be regarded as a purchase made by him in his representative character, at any rate in the absence of clear evidence either that he repudiated that character or that the plaintiffs' branch repudiated the benefit of the bargain. (See S. 90 of the Trusts Act, Bandu Ram v. Chintaman Singh, Gangu Sahai v. Kesri, Dwarka Prasad v. Mahadeo Prasad and Lal Singh v. Mt. Chotey Beti. It was suggested that Ex. V, a notice given by the 1st plaintiff to the 1st defendant in 1929, had the effect of limiting the plaintiffs' claim to the money and deprived them of any right to contend that the 1st defendant thereafter acted in representative capacity. We find nothing in Ex. V to support this contention. It merely asserts that the amount due under the decree in O.S No. 57 of 1918 was a common debt and that if the 1st defendant should realise the same he must pay the writer his share thereof. No reference could have been made at that time to any purchase of property in satisfaction of the said debt and much less could there have been repudiation by the plaintiff of his interest in such property, because the purchase came to be made only 17 months after the date of Ex. V. It is not suggested that the 1st defendant gave any reply to Ex. V. There is accordingly no basis for the argument that the 1st defendant put forward any exclusive claim to the amount or repudiated his representative character in respect of the decree amount. The plaintiffs' branch will of course be bound to repay the defendants' branch all expenses properly incurred by the latter in connection with the acquisition of these properties to the extent of the half share of the plaintiffs' branch. But as against that liability the plaintiffs will also be entitled to an account of the income derived by the defendants' branch from these properties. The parties are not able to say whether such expenses and income have been brought into the joint account or not. If they have not been so brought, the commissioner will also take accounts in respect of the same and incorporate its result in his report.

In answer to the argument founded upon the order in E.P No. 26 of 1927, it is sufficient to say that there is nothing in the terms of that order to preclude the present claim of the plaintiffs for an account. All that they then contended and all that the Court then held was that there was nothing in the decree then under execution to warrant the taking of accounts in execution. As we have already stated in another connection, that decree was passed merely on an award made by arbitrators in respect of certain specific items and as all the accounts necessary for that purpose had been looked into by the arbitrators themselves, the learned Judge who dealt with that application held that there was no further account taking to be done in the execution department. The present suit does not relate to the items covered by that decree. This plea of bar by that order was not seriously pressed before us.

The appeal therefore fails and is dismissed with costs.

A memorandum of objections has been filed on behalf of the plaintiffs in respect of certain items in the accounts totalling Rs. 2,310. It appears from the commissioner's report that evidence was adduced before him in respect of the various items of family assets collected by the 1st plaintiff on the one side and by the 1st defendant on the other, and he embodied his findings in respect of such collections in the report which he made to the Court. In that connection, he was of opinion that along with other collections admitted by the defendants' branch to have been made by them a further sum of Rs. 2,310 had been collected by the defendants' branch. When the case came on before the Court, the Court was not prepared at that stage to deal with the evidence relating to the collections so far as such collection was not admitted by the parties concerned. The result was that in the preliminary decree, the lower Court empowered the commissioner to examine the account and take evidence, if necessary, with a view to decide what amounts have been by one party or the other beyond the amount admitted by them to have been so collected. In this view, it is quite natural that the learned District Judge, expressed no opinion of his own on the question whether the defendants' branch had in fact collected this additional sum of Rs. 2,310. We are informed that when the matter went before the commissioner again, he was inclined to take the view that the sum of Rs. 2,310 must be deemed to have been disallowed by the Court itself and that it was no longer open to him to deal with the item making up this aggregate. We do not think that this is a correct view. It is obvious that the lower Court has not so far dealt with the question of disputed collections. It therefore seems to us sufficient to say that it will be for the commissioner to enquire into and decide the question of the truth or otherwise of the plaintiffs' story that this amount has also been collected by the defendants' branch. We do not think any further order is necessary on the merits.

C.M.A No. 548 of 1934.

This arises out of an order made in the course of the proceedings in execution of the decree passed in O.S No. 27 of 1925. The award on which that decree was passed as well as the decree declared that the elder branch was entitled to certain amounts as against the younger branch but the lower Court has construed the direction relating thereto as only entitling the elder branch to credit in respect of those sums in taking the account of the family assets and liabilities and not entitling the decree-holders to claim cash payment of the same from the younger branch. The lower Court has also pointed out that the elder branch has been given credit in respect of these items in the account directed to be taken in the main partition suit between the two branches. As we have confirmed the decree of the lower Court in the main partition suit, no further orders are necessary in this C.M.A which is accordingly dismissed with costs.

N.R.RAppeals dismissed.