FRANCIS JOSEPH REBELLOW Vs. OLIVIA JANE REBELLOW

JUDGEMENT

(1.) These First Appeals are directed against the decree passed by the Bombay City Civil Court dismissing the plaintiff's suit relating to accounts in respect of the partnership business etc. First Appeal No, 174 of 1980 is filed by the original plaintiff; whereas First Appeal No. 176 of 1980 is filed by original defendant No. 11. The interest of both of them are, however, identical except, perhaps, for the fact that the other defendants in the suit claim to have an additional defence against defendant No. 11 which defence is not relevant for the purpose of this appeal. Both the appeals are, therefore, being disposed of by this common judgment. The parties hereafter shall be referred to as the plaintiff and the defendants. When special reference is to be made to the case of original defendant No. 11 he will be specially referred to as defendant No. 11. Before stating the respective case of the parties I may refer to certain admitted facts of the case.

(2.) The plaintiff, defendant No. 11 and one Lawrence were three brothers. A partnership-deed dated 29th of Dec. 1952, came to be executed by the three brothers for carrying on the business of Restaurant and other business under the name and style of Jai Hind Shamrock Restaurant at Colaba, Though it was only a restaurant in the premises in question there were also a tailoring shop and certain stalls such as of Panwala etc., It is the contention of the plaintiff and defendant No. 11 that as per the partnership-deed, the plaintiff and defendant No, 11 each were having 25% share in the partnership, whereas their brother Lawrence was having 50% share in the same. According to the plaintiff, the partnership business was carried on or actively managed mainly by Lawrence and plaintiff and defendant No. 11 were getting their share of profit. Lawrence died on 1-12-1961. Defendant No. 1 is his widow and defendants Nos. 2 to 10 are the children of deceased Lawrence. The plaintiff admits that the partnership was a partnership at will. The plaintiff and defendant No. 11 contend that the partnership stood dissolved by virtue of and with effect from the death of Lawrence. But they have contended further as follows;

(3.) As stated above, defendant No. 11 sails in the same boat with the plaintiff. He filed his written statement and supported each of the plaintiff's contentions, The real contesting defendants were defendants Nos. 1 to 10. They filed their written statement and contended as follows :-- It was stoutly denied that there existed any partnership between deceased Lawrence on the one hand and the plaintiff and defendant No. 11 on the other at any time. It was, therefore, further contended that no question arose about the plaintiff and defendant No. 11 being entitled to any accounts for the period previous to the death of Lawrence or subsequent thereto. Moreover, it was contended that assuming that there existed any partnership amongst the three brothers and that the same stood dissolved on 1-12-1961. the suit for accounts filed on 15-9-1965 was barred by limitation.