Siluvaimuthu Mudaliar vs Muhammad Sahul and Others

Reilly, J.—The Subordinate Judge has found that the defendants 1 to 3 as a firm owed money to Ramaswami Mudaliar and Mahalinga

Mudaliar as a firm. Ramaswami Mudaliar and Mahalinga Mudaliar dissolved their partnership and divided between them the outstanding debt due

to them from the firm of defendants 1 to 3. After that Ramaswami Mudaliar assigned his share of the debt to plaintiff. Plaintiff, alleging that the

whole debt was Rs. 599-12-o, out of which Ramaswami''s share was Rs. 449-12-0, sued to recover the latter amount with interest. He presented

his plaint without impleading Mahalinga on 6th October, 1922. More than a year later, Mahalinga having died, meanwhile, he added Mahalinga''s

representative as defendant 4 on 1st December, 1923. By that date, it is admitted, the claim against the firm of defendants 1 to 3 would have been

barred by limitation. The Subordinate Judge holding that Mahalinga or his representative was a necessary party and that therefore the suit was not

properly instituted until 1st Decejmber, 1923, has found that the suit is barred by limitation. Plaintiff in this petition objects to that finding.

It appears that, when defendant 4 was added as Mahalinga''s representative, he stated that Mahalinga''s share of the debt, viz., Rs. 150, had

been paid to him. It is urged for plaintiff that in those circumstances he was competent tc.sue alone for the balance] of the debt. The answer to this

is that until Mahalinga''s representative was brought on record there was no suggestion that the suit was for the whole unpaid balance. Another

argument urged for plaintiff by Mr. Ananta Aiyar is that, even if this statement that Mahalinga received payment of his share must be disregarded

for the present purpose, under Rule 4 of Order 30, Civil Procedure Code, Ramaswami as surviving partner of his firm, and therefore plaintiff as

Ramaswami''s assignee, could sue alone for the whole debt and, if plaintiff chooses to sue for part of it only, the result is merely that he must be

treated under Rule 2 of Order 2, Civil Procedure Code, as having relinquished the remainder. In regard to this contention, it must be noticed that

Mahalinga did not die until after the period of limitation had expired and that apart from that, plaintiff sued as the assignee of part of the debt, not as

representing the firm of Ramaswami and Mahalinga. Mr. Ananta Aiyar further contends that Ramaswami and Mahalinga were entitled to split up

their claim and each sue separately for his own share. That is against the principle of Section 45 of the Contract Act. And it may be noticed that

even in Annapiirnamma v. Akkayya 24 M L J 333 (F B) in which the majority of the Full Bench decided that one joint promisee can by himself

give a valid discharge of the entire debt, it appears to have been assumed and was stated explicitly by Sankaran Nair, J., that, if a suit is brought to

recover a debt due to joint promisees, all of them must be impleaded and the, suit must be for the entire debt. Moreover, when two joint

promisees have divided as between themselves their claim to recover the debt due to them jointly, it is obvious that, if the first sues for his share

without impleading the second, the debtor cannot be protected from a second suit by the second promisee in which it may be denied that the first

promisee is entitled to so much out of the amount of the debt as he has claimed in his suit. In my opinion it is clear that in the present case

Mahalinga or his representative was a necessary party to the suit. As the representative was not brought on record until after the period of

limitation had expired, the whole suit was barred.

It is unnecessary to discuss the effect of not bringing defendants 2 and 3 on record in time. This petition is dismissed with costs.