JALAL MOHAMMED IBRAHIM Vs. KAKKA MOHAMMED GHOUSE SAHIB

JUDGEMENT

(1.) THE plaintiff is the appellant. The suit was filed by him for a declaration that the decree dated 25-3-1952 in C. S. No. 173 of 1950 on the file of this court was void as far as the plaintiff was concerned on the ground that the said decree had been obtained by fraud and suppression of the unregistered partnership agreement between the defendants and for restraining the first defendants and for restraining the first defendant from executing the said decree. or in the alternative for declaring the transfers of the funds of the second defendant made by the first defendant in his accounts as void and directing the first defendant to adjust the decree amount from the moneys standing to the credit of the second defendant and his wife with the firm of Kaka Mohammed Ghouse and company. The plaintiff also prayed for a decree for enforcement of the indemnity clause in the agreement executed by the second defendant in favour of the plaintiff and for costs.

(2.) THE case of the plaintiff as set out in the plaint is as follows. The plaintiff the 22nd defendant and one Abdul Ahmad were carrying on business in partnership, under the name and style of Roshan N. M. A. Carim Oomer and Co. (hereinafter called Rosham and co.) The first defendant, who is the son-in-law of the second defendant, had been carrying on business in partnership; with the second defendant, since April 1945 under an unregistered agreement dated 27-4-1945 in the name and style of Kaka Mohammed Ghouse Sahib and Co. (here-in after called ghouse Sahib and Co.) and the second defendant had invested large sums of money in that business in his own name and in the name of his wife Safura Bi. With a view to overreach the plaintiff and obtain an undue advantage to himself the second defendant instigated the first defendant to file a suit. S. C. , 173 of 1950 on the file of this court as the sole proprietor of Ghouse and co. , against Roshan and Co. , represented by its three partners and impleading also the receivers who were in charge of the properties of Roshan and Co. for the recovery of a sum of rs. 57, 876-11-11. The defendants had colluded together and suppressed the fact of the partnership and wilfully and deliberately made a false and fraudulent statement that the first defendant was the sole proprietor of the firm Ghouse and co. As the plaintiff was not aware of the partnership between the first and second defendants. he did not contest and an ex parte decree came to be passed on 25-31952 in C. S 173 of 1950. When the suit was pending, certain creditors of the plaintiff filed I. P. No. 79 of 1952 for adjudicating them insolvents. When these insolvency proceedings were pending, and finding that the adjudication of the second defendant might involve Ghouse and Co. , the first defendant obtained a fraudulent release from the second defendant of all his rights and claims in the partnership of Ghouse and Co. , for a nominal sum of Rs. 10,000. Regarding the amounts standing to the credit of the second defendant and his wife in Ghouse and Co. , with a view to screen them from the creditors the defendants got them fraudulently transferred in the name of the second defendant's daughter. who is the wife of the first defendant. This release and the transfer of entries were bogus and were never intended to be acted upon.

(3.) AS the affairs of Roshan and Co. were getting worse and more involved, to compose the differences between the partners, the plaintiff and the second defendant entered into an agreement a dated 28-2-1953, whereby the plaintiff was to release all his rights to the assets of Roshan and Co. , in favour of the second defendant and the second defendant had to discharge all the debts of roshan and Co. , and release the plaintiff from his liability and keep him indemnified against any claim by the creditors of the firm. The second defendant in pursuance of the agreement paid several creditors and adjusted with some others but could not come to an arrangement with regard to certain others. A list of creditors, whose claims were so disputed and could not be settled by the second defendant, was set out in Schedule C to the affidavit filed by the second defendant on 1-3-1954 in I. P. 79 of 1952. Item 4 of Schedule C to this affidavit is the decree amount in this decree the second defendant had stated in his affidavit that he was a partner with the first defendant in Ghouse and Co. , that he had contributed a sum of Rs. 44,000 towards the capital that C. S. No. 173 of 1950 was filed at the instance of the second defendant, that the second defendant had subsequently passed a letter to the first defendant authorising and directing him to appropriate towards the decree amount the sum of Rs. 47,446-1-1 and Rs. 47000 standing to the credit of himself and his wife respectively and that if accounts were taken of the said partnership the first defendant would have to pay him substantial sums.