SURAJ BAHADUR Vs. MAHADEO

JUDGEMENT

(1.) THIS is a civil regular second appeal by the defendant Suraj Bahadur against a preliminary decree in a suit for dissolution of partnership and rendition of accounts.

(2.) THE plaintiff's case was that on the 27th April, 1946, he, the defendant and a third person named Anant Dattatray Ratna Parkhe had entered into a partnership for the purpose of working mica mines at village Para, Tehsil Kekri, and for carrying on business in that commodity by a partnership deed Ex. 3 which was executed at Ajmer and registered there. It was decided between the parties to carry on the business in the name of Malla and Company. This partnership continued for some time when Ratna Parkhe withdrew from it on the 18th May, 1949, and executed a deed of relinquishment to witness this, while the plaintiff and the defendant continued the partnership under a new deed of partnership (Ex. 1) dated the 18th May, 1949, which was registered at Kekri. Under this new deed, the shares of the partners were fixed as ten annas for the plaintiff and six annas for the defendant in a rupee from the 1st January 1949. It was further agreed between the parties that the earlier partnership had resulted in loss to the tune of rs. 33704/8/9 upto the 31st December, 1948, and that this would be first recouped from the profits, if any, of the business of the partnership from the 1st january, 1949, and that none of the parties would be entitled to take anything out of the profits of the partnership until the same was recouped, whereafter they would be entitled to earn profits in the proportion of ten annas and six annas in a rupee and would also be liable to pay losses in the same proportion. It was further stipulated between the parties that the plaintiff who was staying in Para would look after and manage the affairs of the partnership and as such entitled to receive a remuneration of Rs. 100/-per mensem out of the partnership funds, and similarly the defendant would be paid at the rate of Rs. 100/- per mensem during his stay at Para in connection with the partnership business. And apart from a certain provision which was made in connection with two other persons Ganesh mahadev Ratrekar and Vinayak Mahadev Ratrekar who were stated to "be employed in the partnership with which provision in the deed we are not concerned for the purposes of the present appeal, the only other condition which it is necessary to mention is that the parties agreed that they shall be bound by the conditions stated in the partnership deed dated the 27th April, 1946, already referred to as Ex. 3, obviously meaning thereby that those conditions would govern the relationship of the parties in so far as no provision was made to the contrary in the new deed of partnership. The plaintiff's case was that in accordance with the terms of the original partnership, he alone had been the financing partner with the result that he had invested a sum of Rs. 1,20,000/approximately in the business of the partnership. According to the plaintiff, however, in spite of his best efforts to make the business of the partnership a prospering one, it did not succeed and continued to run at a loss throughout. Confronted with this situation, his case is that he made an offer to the defendant that the latter might take it entirely on himself but the defendant did not agree. Thereafter the plaintiff also alleges to have suggested to the defendant that the partnership business might be sold to a third party who was prepared to purchase it but the defendant did not agree to this either. Consequently, the plaintiff brought the suit, out of which this appeal arises, for dissolution of the partnership business and for rendition of its accounts. This suit was filed on the 20th January, 1951, in the Court of the Sub-Judge, First Class, Kekri.

(3.) THE defendant resisted the suit. His case was that the original deed of partnership Ex. 3 was inadmissible in evidence as the Sub-Registrar, Ajmer, had no jurisdiction to register the same. The defendant admitted his signatures on this document but his contention was that as it was not validly registered, it could not be acted upon. As regards the second document Ex. 1, the defendant also admitted his signatures on this document but contended that it was riot duly attested, and, therefore, it had no legal effect. As for the remaining allegations made by the plaintiff, the defendant did not accept them and put him to proof thereof.