Case: Govindoss Krishnadoss Vs The Official Assignee of Madras. High Court of Bombay (India)
| Judges | John Wallis, Salvesen and Thankerton, JJ. |
| Issue | Contract Act |
| Citation | 1934 (36) BomLR 858 |
| Judgement Date | May 08, 1934 |
| Court | High Court of Bombay (India) |
Judgment:
Thankerton, J.
1. These are six consolidated appeals from six decrees all dated April 1, 1931, made by the High Court of Judicature at Madras in its civil appellate jurisdiction, which reversed six decrees of different dates made by the same Court in its ordinary original civil jurisdiction. As will be seen later, a decision in the leading appeal (No. 101 of 1932) will, in effect, apply equally in the remaining appeals.
2. Babu alias Govindoss Krishnadoss, who is appellant in all the appeals, was plaintiff in the principal suit (C. Section No. 622 of 1923), which was filed through his next friend Laldoss, his uncle, on account of his then minority, on August 30, 1923, and is the subject of the leading appeal. The appellant's father, Krishnadoss, died on August 13, 1908, and the main question is whether his father's interest in the business carried on under the name of Muralidoss Ramdoss & Co., was that of a partner or of a member of an undivided Hindu family. If the latter be the correct view, the appeals admittedly fail; if the business was a partnership, a question arises whether the interest of the appellant's father is affected by debts, secured and unsecured, contracted by the firm some years after the date of his father's death, and, if so, to what extent?
3. The trial Court held that the firm at the time of the death of the appellant's father was an ordinary partnership and that the debts subsequently contracted by the firm did not affect his interest in the firm. On appeal the High Court held that the firm was a joint Hindu family firm; they, further held that, even if it was a partnership firm, the interest: of the appellant's father in the firm was liable for the debts subsequently contracted.
4. The following pedigree shows the relationship of the appellant in the family in question and the parties to the principal suit, so far as they are members of the family:
5. The following facts may be taken as beyond controversy in the appeal. The appellant's ancestor, Ramdoss Ghanshamdoss, came to Madras and carried on a business in cloth, money-lending and yarn, and acquired landed properties, houses and gold and silver. He died in 1879, leaving five sons, of whom two-- Murali and Govardan-- were then major. These two sons carried on the business as the managers of a joint Hindu family business until 1890, by which time their younger brothers Balmukun and Bhagwan had become major, while Subbaraya was still minor. In 1890, as the result of a demand by Balmukun and Bhagwan and their mother, Kamalabai Amma, as guardian of Subbaraya, and submissions by the parties, a panchayat award, dated September 27, 1890, was made, under which admittedly a partition was effected of the shares of the three younger brothers, and the family business was allotted to the shares of the two elder brothers, Murali and Govardan, the younger brothers ceasing to have any interest therein.
6. The principal matter of controversy is whether this award left Murali and Govardan as undivided co-parceners or as partners in the business, and, if they were partners, whether there was a subsequent re-union between them. But, without prejudice to these questions, it is the fact that they carried on the business until 1906 when their respective sons, Krishna and Gokul, were assumed into active management, and thereafter it was carried on by them and the survivors until about 1919, or later when the business began to get into difficulties and, ultimately, on November 28, 1924, Gokul and Dwarka were adjudicated insolvents. Throughout the whole period from 1879 to this date the business was carried on under the style of Muralidoss Ramdoss & Co.
7. In the opinion of their Lordships, the first question to be determined is whether the award of 1890 effected a partition between the shares of Murali and Govardan, and that depends on the construction of the award, in regard to which the subsequent actings of the parties is not relevant. Their Lordships agree with the view of this matter taken by the trial Judge and they are unable to agree with the view expressed by Rame-sam J., in which Stone J. concurred. The award itself appears to contain a narrative of every material surrounding circumstance, and it divides the properties into five shares, equal in value but varying in character, and has appended to it receipts for the shares. Their Lordships are clearly of opinion that the award effected a complete partition between each of the five brothers, and they agree with the reasons given by the learned trial Judge. It follows that Murali and Govardan were left by the award as partners in the business, the interest of each partner being one-half, and the burden of proving that there was a subsequent re-union rests upon the respondents. It may be observed that there is nothing unusual in this...
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