S MOHINDER SINGH Vs. SHIV DES SINGH

JUDGEMENT

(1.) THIS second appeal raises a question about the abatement of a suit for dissolution of partnership and rendition of accounts. To appreciate the point involved, it is necessary to state a few facts hereunder.

(2.) MOHINDER Singh plaintiff filed a suit on 23rd, March, 1957, on the allegation that he had entered into partnership with Shivdev Singh defendant-respondent 1 in the year 1950. It was further alleged that the plaintiff was serving in the Army as Subedar Major and that he had been sending money from there to the defendant-respondent Shivdev Singh to carry on partnership business. It was an oral partnership. On 15th October, 1955 another partnership was constituted between the plaintiff as one party, Shivdev Singh defendant respondent as second party and Chanan Singh who has since died as third party. In the plaint the averment is that Chanan Singh deceased was admitted into the partnership deed, Exhibit P. 1 as executed on 19th, November, 1955, though the new partnership has started working earlier. The first partnership was dissolved by a notice before the second was formed. In the present suit settlement of accounts in respect of both the partnerships was asked for making defendant 1 liable in regard to first and both the defendants in respect of the second. The suit was filed by the plaintiff in his own name against the two defendants in their individual capacity and no reference was made to the name of te firm in the title of the plaint. There can be no dispute with the proposition that in a suit for rendition of accounts, every partner is practically speaking, in the position of a plaintiff or a defendant and each one of them is liable to render accounts and pay the amount found due from him. Both the defendants filed written statements and it was pleaded by them that the second partnership was only a sham transaction entered into for the purposes of income tax. They also pleaded that the suit was bad for misjoinder of causes of action inasmuch as the two partnerships being quite distinct and separate, a claim for rendition of accounts in respect of both could not be joined in one suit, Chanan Singh defendant died during pendency of the suit and his legal representatives were not brought on the record within the prescribed time. An application was made to implead them and set aside the abatement but the same was rejected. A question then arose as to whether the suit had abated as against Chanan Singh only or in its entirety. An issue was framed in the following terms: "what is the effect of the death of Chanan Singh defendant No. 2 on the suit?" It was contended on behalf of the plaintiff that the abatement was not in toto and could be only so far as defendant 2 was concerned and that the plaintiff was entitled to get rendition of accounts with regard to the first partnership which carried on its business for the period from 1st December, 1950 to 14th, October, 1955, before the second partnership came into existence by adding a third partner. The argument was that the deceased defendant could not be made liable for rendering accounts for the first period and his death affected the suit regarding the second partnership only. The trial Court repelled this contention and dismissed the suit holding that it could not proceed against defendant 1 as well in respect of the period prior to the date when the deceased defendant Chanan Singh became a partner.

(3.) THE plaintiff took an appeal to the Additional District Judge, Ludhiana but it met with no success. He has therefore, come to this Court in second appeal.