VIRONICA Vs. PHILIP

JUDGEMENT

(1.) THIS is a plaintiff's appeal from a suit for partition of property and an account of its income which has been dismissed by the courts below on the ground of limitation.

(2.) JOSEPH (predecessor-in-interest of the plaintiffs and defendant 5), Thiyyo and defendants 1 to 4 entered into a partnership under an agreement which was registered as document No. 2416 of 1119 of the Kadungalloor sub-Registry. Thiyyo assigned his share to defendants 2 to 4 and thereafter they and JOSEPH continued the partnership. JOSEPH died on May 11, 196 0 when the partnership dissolved. The only asset of the firm is the land with a building scheduled to the plaint. The plaintiffs who were supported by the 5th defendant alleged that as a result of the dissolution of the firm, the property belongs to them and defendants 1 to 4 jointly as co-owners and that defendants 1 to 4 were collecting the profits from the property and either using the rooms in the building or renting them out. Since May 15,196 0 they had been misappropriating the entire profits, without sharing anything with the plaintiffs and defendant 5. The plaintiffs accordingly claimed a division by metes and bounds of the suit property and an account of its income.

(3.) IN the course of the arguments in he trial court the plaintiffs sought to raise an argument based on S. 37, Partnership Act on the footing that after 15-5-1960 defendants 1 to 4 were carrying on the business of the firm and as there has been no settlement of accounts they were liable to render account. The court however held that this approach was contrary to the plaint that the partnership had come to an end on 15-5-1960 and could not therefore be countenanced. There was an alternative contention that collection of usufructs and rent from the suit property of which partition was sought was also a business of the firm so as to attract S. 37; but the court found that this was borne out neither by the plaint nor by the evidence. The court nevertheless recorded its view that even if the plaintiffs' claim came within s. 37, still the suit which was brought 3 years after Joseph's death was barred by limitation. It finally held that the partnership stood dissolved on 15-5-1960, and that the suit which was brought only in 1966, was clearly out of time under Art. 106 of the Limitation Act (really it should have been Art. 5 of the Limitation Act of 1963 ). The suit was dismissed with costs.