One of the partners could sue for contribution despite compelled to discharge a joint and several liability.

This appeal has arisen out of the decree and judgment of the learned First Additional City Civil Judge in O.S. No.767 of 1949 on the file of that Court wherein the plaintiff sought to recover a sum of Rs.4,169-1-0 from the defendants. in the following circumstances.

One Annamalai Chetty, the uncle of defendants 2 to 4, defendants 1, 5 and One late Ellappa Chetty, did partnership business in the name and style of “T.K. M.A. Rajabather Chetty, Palani Chetty & Co.” Annamalai Chetty died in February, 1935, and, in his place, Parthasarathy Chetty was substituted and the business was continued in the name of “T.K.M.P. Rajabather Chetty, Palani Chetty & Co.” The business was carried on at Vellore and at Madras. The partnership business, however, came to an end, but the accounts were not settled. Parthasarathy Chetty, who took the place of Annamalai Chetty, also died in 1938. Subramania Chetty, son of Annamalai Chetty, filed O.S. No.41 of 1937 on the file of the Sub-Court, Vellore, against his uncle, Parthasarathy Chetty and his sons, defendants 2 to 4 for partition. The partners of the firm referred to above were also made parties to that suit. A preliminary decree in the suit was passed on the 27th November, 1939 and the assets were directed to be looked into by a Commissioner and a final decree was passed on the 12th March, 1945. According to the final decree, the plaintiff in the present suit, defendants 1 to 5 and Ellappa Chetty was directed to pay Subramaniam Chetty, the plaintiff, in the suit, a sum of Rs.3,153-4-9. In O.S. No.41 of 1937, as could be gathered from the judgment in that suit Exhibit B.1, a specific issue was raised in these terms:

“As against defendants 13 to 15, has the plaintiff a remedy or is he entitled to have recourse against only first defendant in respect of the partnership they are concerned with?”.

On this issue, the learned Subordinate Judge held that the partnership became dissolved by the death of Annamalai Chetty, that those who took over the assets and liabilities of the concern must hold themselves liable to the plaintiff and that those persons were the first defendant, Parthasarathi (represented now by defendants 2 to 4) and defendants 6 and 13 to 15. He further held that, as things were, it could not be said that, because defendants 13 to 15 placed Annamalai’s share in the first defendant’s hands, they were not liable to the person who lawfully represented Annamalai’s estate, the plaintiff, in that suit. The finding on that issue was therefore that the plaintiff could have recourse against defendants 13 to 15 in respect of the partnership they were concerned with. The learned Subordinate Judge also found that it was unnecessary to decide in that suit the liability of defendants 2 to 4, 6 and 13 to 15 inter se in respect of the payment to be made to the plaintiff and the question was left open. It may be noted that the final decree was passed in accordance with- the razinama which was to the following effect:

“That defendants 2 to 4 from out of their family properties and defendants 6 and 13 to 15 personally should pay to the plaintiff Rs.3,153-4-9 with interest at 6 per cent. per annum from the date of the preliminary decree”.

This decree was executed by Annamalai Chetty’s son, Subramania Chetty, and the entire sum of Rs.4,710-12-0 as found in the execution petition had to be paid by the plaintiff in the present suit in execution of the said decree on 22nd July, 1946. He, therefore, claimed as against defendants 1 and 5 for themselves and defendants 2 to 4 representing the estate of their father, Parthasarathi, that they were bound to reimburse him to the extent of Rs.3,533-1-0 being 3/4ths of the amount paid by him and interest on it at six per cent. per annum. Defendants 1 to 4 contested the suit. The main ground of attack was that a suit for contribution in respect of the suit item without determination of the rights and liabilities of the plaintiff and the defendants inter se and without d