M.MANIAPPA PILLAI Vs. I.ANTHONISAMI MUDALIAR

JUDGEMENT

(1.) THE plaintiff appeals against the decree and judgment of the Subordinate Judge of Madura dismissing the suit filed by him on the following allegations. The plaintiff -appellant and defendants 1 and 2, who are respondents 1 and 2, were trading in partnership from 1941, under the name and style of C. Innasimuthu Mudaliar Sons, Madura. The partnership was dealing in mill piecegoods, yarn, bandloom goods, towels, bedsheets, carpets and other textiles. They were also exporting such goods to Ceylon. In this partnership the plaintiff was entitled to a six annas share, defendant 1, to 8 annas share, and defendant 2, to two annas share. On 14th April 1943, these three persons entered into a formal deed of partnership in which it was recited that the partnership had commenced from 7th June 1942. The partnership continued in pursuance of the terms set out in this deed till 15th June 1944. On that date a deed of dissolution was executed by and between them and it was duly registered on 27th June 1944.

(2.) DEFENDANT 1 was the main contesting defendant. In his written statement the plea put forward by him was in short fraud, undue influence and coercion. He alleged that there was no partnership at any time between the plaintiff and defendants 1 and 2. They were only working as employees of the firm. Taking advantage of the young age and want of experience of defendant l, the proprietor of the firm, the plaintiff brought about the deed of dissolution dated 15th June 1944 by fraud, undue influence and coercion. There was also a plea that the clause relied on by the plaintiff was without consideration, illegal and against public -policy. The Export Trade Controller's rejection of the plaintiff's claim was quite proper. The plaintiff was not therefore entitled to any relief. Defendant 2 adopted the written statement of defendant 1. Defendants 3 to 5 and 6 filed written statements setting up the case that all the properties, rights and assets of the firm belong to the family of C. Innasimuthu Mudaliar which was represented after his death by defendant l, his eldest son. The only partners of the firm are the members of the family. They pleaded that defendant 1 had no authority to enter into a partnership or to agree to the terms set out in the deed of dissolution. The so -called deed of partnership was ante -dated and brought about with the sole view of creating some right in the plaintiff to the quota of the firm. The other defences raised by them are not very material. The plaintiff filed a reply statement denying the allegations made by the defendants in their written statements.

(3.) BEFORE us Mr. T.M. Krishnaswami Aiyar appearing for the contesting respondent did not challenge the finding that the deed of dissolution (EX. P 2) was not brought about by fraud or undue influence or coercion which was the main case of defendant 1 in his written statement. He tried to build up a case that the deed of partnership was never intended to be acted upon and it was only executed to help the plaintiff to secure a share of the quota allotted to the firm by inducing the Export Trade Controller to grant to the plaintiff a share. It was not executed on the date it bears but was executed in or about December 1943. The deed of dissolution was also executed for the same ulterior purpose. This certainly was not the specific case set up by defendant l in his written statement. We cannot permit him to put forward this plea now. Further, we find it impossible for defendant l to sustain this plea without examining himself. He never went into the box and the only evidence adduced by him was that of his clerk who does not support this case. We do not agree with respondent's counsel that it was for the plaintiff to explain why the deed of partnership Ex. P - l was ante -dated. Mr. Krishnaswami Iyer was unable to explain away the documentary evidence on which the learned trial Judge based his finding that from 7th June 1942 the plaintiff was a partner of the firm.