Veerappa Chettiar vs Ramaswami Aiyar

The Plaintiff brought this suit against the first Defendant and two other partners for dissolution of partnership and for winding it up. After making

a reference to arbitration and receipt of an award, a decree was passed dissolving the partnership, and ordering the first Defendant to pay a

definite sum of money to the Plaintiff. Before the decree was executed by the Plaintiff the first Defendant died and the Plaintiff now seeks to

execute the decree u/s 234, Code of Civil Procedure, against the widow and undivided brother of the first Defendant. The District Judge has

joined the widow and brother as Defendants Nos. 4 and 5 and has allowed execution to proceed against them in respect of such property as has

come into their possession, evidently meaning to include not only the separate property, if any, of the deceased, but also the partnership property

which had been in the hands of the first Defendant and which, after the first Defendant''s death, had come into the hands of the fifth Defendant. We

are unable to uphold the order of the District Judge as it stands.

The principal question which has been argued before us in support of the order is that the decree against the first Defendant was a decree

against him as managing member of the family in respect of the trade which he carried on in partnership with the Plaintiff and the second and third

Defendants, and that the decree can be executed after his death against the surviving member of the family, viz., the fifth Defendant, just as if he

had been a party to the suit.

The decree against the first Defendant which is sought to be executed is not a decree against any property represented by the first Defendant,

nor is it a decree winding up the affairs of the partnership providing for payment of its debts and distributing the surplus according to the shares of

the partners (vide Section 265, Indian Contract Act); but it is purely a decree in personam against him.

We may also add that there is nothing on the record to show that the first Defendant was sued in his representative capacity as managing

member of the family nor is the trade in respect of which the suit was brought one that is necessarily a family business and not the first Defendant''s

individual trade. That being so, we are clearly of opinion, following the Full Bench decisions of this Court in Karnataka Hanumantha v. Andukuri

Hanumayya ILR 5 Mad. 232, Karpakambal Ammal v. Ganapathi Subbayyan ILR 5 Mad. 234, and Muttia v. Virammal ILR 10 Mad. 288 that

the decree cannot be executed against the fifth Defendant by attaching and bringing to sale joint family property which ha3 come to him by

survivorship whether it is ordinary family property, or property acquired for the family by the partnership trade.

The other question argued before us on behalf of the Appellant is that execution should proceed only against the widow who alone is the legal

representative of the first Defendant, and that execution cannot proceed against the fifth Defendant even if he be in possession of any portion of the

first Defendant''s assets that was his separate property.

We think that this contention is well founded. The name of the fifth Defendant should be struck off the record and execution should be granted

u/s 234 against the widow as the legal representative of the deceased first Defendant. If the latter has left any separate property the same may be

attached, even in the hands of the fifth Defendant, just as it might be attached if it were found in the hands of any stranger.

In the result we allow the appeal with costs and setting aside the order of the District Judge we direct him to restore the petition to his file and to

dispose of it afresh according to law.