Madras High CourtSubba Naicker vs Minor Subbaraman Naicker By Mother And ... on 16 November, 1948Equivalent citations: (1949)1MLJ185, AIR 1949 MADRAS 876JUDGMENT
 

Subba Rao, J.1. This is a Civil Miscellaneous Second Appeal against the order and judgment of the Subordinate Judge of Tuticorin dismissing the appeal against the order and judgment of the District Munsiff of Koilpatti allowing an application under Section 47, Civil Procedure Code.2. The plaintiff has been carrying on for a long time a grocery shop and a piece-goods shop in Masarapatti village. The first defendant was having dealings with him in both the shops. In 1936, there was a partition between the father, i.e., the first defendant and his son, the third defendant, in and by which all the properties of the family were allotted to the third defendant and the first defendant was given a sum of Rs. 10,000. Even after the partition the first defendant continued to have dealings with the plaintiff and the accounts filed in this case show that they were running accounts. In regard to the piece goods shop the accounts filed show that a sum of Rs. 200 was due to the plaintiff being the balance and under that item the first defendant had signed on a stamped endorsement to the effect " I shall pay the sum of Rs. 200 with interest at Rs. 0-8-0 per cent, per mensem to you or your older on demand." The account continued even thereafter. In regard to the grocery shop the first defendant continued to have dealings with the plaintiff even after the alleged partition and on 6th November, 1938, a sum of Rs. 300 was shown as the balance of the amount due to the plaintiff and the first defendant again signed on a stamped endorsement to the effect " I shall pay this sum of Rs. 300 with interest at Rs. 0-8-0 per cent, per mensem to you or to your order on demand." The account continued thereafter in the same manner. The plaintiff appellant instituted S.C.S. No. 272 of 1941 on the file of the Court of the Subordinate Judge of Tuticorin, against the father, the first defendant, the son, the third defendant and the wife, the second defendant. During the pendency of the suit the first defendant died and the second and third defendants were recorded as his legal representatives. The suit was filed on the basis of the accounts and for the amount due to the plaintiff. In paragraph 12 of the plaint it was stated that the cause of action for the suit arose on 16th November, 1938. Though the fact that the first defendant signed in the two accounts was mentioned in the plaint, the suit was not on the basis of the promissory note. Indeed nowhere in the plaint the fact of the execution of the promissory note was mentioned. After the written statements were filed there was a compromise decree and the decree reads as follows:Plaintiff will have a decree for this suit amount and coasts and future interest at six per cent, per annum against the properties and assets if any of the first defendant in the hands of defendants a and 3 and the question whether the partition arrangement of l2th August, 1936, referred to by defendants 2 and 3 in their written statement is true and valid and the family became divided and the question whether the said arrangement was given effect to and the family continued joint are left open.The plaintiff sought to execute the decree against the assets in the hands of the third defendant and he filed the present application under Section 47, Civil Procedure Code.3. Two points were raised by the appellant in the lower Court: (1) that the alleged partition between the first defendant and the third defendant was not a real transaction and (2) that he would be entitled to execute the decree against the family assets in the hands of the third defendant as the decree debt was a pre-partition debt. On the first point both the Courts concurrently found that the partition was a bona fide transaction and that by virtue of the terms of the release deed the father and the son became divided from each other. This is essentially a question of fact and there are concurrent findings on that question. No permissible grounds were advanced to disturb the said findings. I accept the finding of the lower Courts and hold that the arrangement was a real and bona fide transaction. As regards the second question the learned Counsel for the appellant argued that to the extent of a sum of Rs. 163-14-11 and a sum of Rs. 265-15-2, they are pre-partition debts and therefore he would be entitled to execute the decree to that extent against the joint family assets in the hands of the third defendant. The law on the subject is well settled. In Subramania Iyer v. Sabapathi Iyer (1927) 54, M.L.J. 726 : I.L.R. 51 Mad. 361 (F.B.), it was held by the Full Bench that a. simple creditor of a father in a joint Hindu family is entitled to recover the debt from the shares of the sons after a bona fide partition between the father and the sons. A passage from the judgment of Ananthakrishna Aiyar, J., may usefully be quoted,
  And finally if the cause of action for the suit be not the original debt incurred before the partition but a promissory note executed by the father alone after partition though in renewal of a promissory note executed by him before partition, the sons are not liable to any extent if the suit be based on the renewed promissory note only.Property got by a son in partition is liable for a pre-partition debt of the father. If the pre-partition debt loses its identity and merges in a new cause of action that arose after the partition there would be no pre-partition debt at all and therefore the family property in the hands of the son could not be made liable for the debt.4. In this case there was a running account and at a particular point of time when the amounts due were ascertained the debtor's signature was taken. Whether it is treated as an acknowledgment or even as a collateral security it does not matter. The pre-existing pre-partition liability based on the running account did not lose its identity or merge in any new cause of action arising after the partition. The suit was based on the accounts though the fact that the debtor signed on the ascertainment of the amount due on a particular date was mentioned. I therefore, hold that to the extent of a sum of Rs. 163-14-11 and a sum of Rs. 265-15-2 under the different kathas together with interest on the said amounts at the rate mentioned in the decree the plaintiff would be entitled to recover the same from and out of the family property that fell to the share of the third defendant at the partition that was effected between the third defendant and the first defendant. The orders of the lower Court are accordingly modified.5. The appeal is allowed in part. Both the parties will bear their own costs here and in the Courts below. Leave refused.