GULABSINGH Vs. GATTULAL

JUDGEMENT

(1.) THIS is an appeal from a judgment of the III Additional District Judge, Jabalpur, pronounced on 27th March 1969, dismissing a suit brought by the appellants for a declaration of their alleged share in the profits of a partnership, for its dissolution and accounts.

(2.) SHORTLY stated, the facts are these. The respondent Gattulal along with one Babu Jagdeosingh had taken on lease the malguzari forest at Hathibhar from Thakur Lallusingh, the ex-Malguzar of Majhagawan, for a term of five years w. e.f. 28th June 1943, and formed a partnership for that venture which was to expire with the lease. After sometime Jagdeosingh assumed exclusive control of the forest and excluded the respondent from benefits of the partnership. As a result of this, the respondent by a registered instrument dated 13th July 1944, created the lessor Lallusingh's son Thakur Gulabsingh, the appellant No. 1 herein, to be a sub-partner so far as his share in that partnership was concerned as from that date, presumably with a view to retrieve the forest from the clutches of Jagdeosingh. The instrument of sub-partnership provided, inter alia, for two different contingencies under which the rights of the parties had to be worked out. In the first place, in the event of possession of the forest being secured from Jagdeosingh, the parties were to exploit the same in partnership under the name and style of M/s. Gulabsingh Gattulal, the profits and losses whereof were to be equally shared by them. Gulabsingh was to be the financial partner and ii there was a failure on his part to provide the necessary funds, Gulabsingh would have a right to terminate the partnership (Clause 2). On the other hand, if there was litigation with Jagdeosingh, then, Gulabsingh was to have met the costs of such litigation which were to be settled and borne equally at the final settlement of accounts of their firm M/s. Gulabsign Gattulal (Clause 3). The terms of partnership also provided for a term of five years whereafter the business of the firm was to be continued as before, subject to the same conditions, with the consent of the parties (Clause 4).

(3.) THE questions in this appeal are, firstly a question of law, as to whether the appellants' suit was barred by limitation; and secondly, a question of fact, as to whether the contract of partnership was un-enforceable on the ground of fraud or alternatively, on the ground that the appellant No. 1 had abandoned his rights under the contract.