UTTAMCHAND Vs. MOHANDAS

JUDGEMENT

(1.) THIS is a defendant's second appeal against the judgment and decree of the senior Civil Judge, Jaipur City dated 25th October, 1962 affirming the judgment and decree of the Munsif, Jaipur City East dated 28th February, 1962.

(2.) THE respondent who is a minor filed the present suit through his next friend on 9th March, 1961 for dissolution of partnership and rendition of accounts and injunction against the appellant on the basis of an agreement of partnership dated 31st January, 1959. The plaintiff in the suit also claimed delivery of possession of the shop in which the business of partnership according to him, was being carried on. It was alleged in paragraph 1 of the plaint that the plaintiff was owner of shop No. 166 situate in Bapu Bazar, Jaipur. It was then alleged that the guardian of the plain-tiff entered into an agreement of partnership for carrying on the business of manufacturing Uttam Sewing Machines with the defendant on 31st January, 1959 and a deed of partnership was executed between the parties on the same day. According to the terms of the agreement of partner-ship the partnership was to be for a period of two years i. e. , upto 31st January, 1961, the plaintiff contributed Rs. 2000/- for his share in the capital by way of furniture and fittings in the above shop where the business was to be carried on, the defendant was also to invest rs. 2000/-, that the plaintiff was entitled to -/4/-share In the profit of the business and the defendant was to pay Rs. 55/-p. m. to the plaintiff out of the profits of the business for the up-keep and maintenance of the plaintiff which he was not bound to refund even if there were losses in the business, that the defendant was bound to deliver vacant possession of the shop to the plaintiff on 31st January, 1961 after the expiry of the term of partnership along with the furniture and that the defendant was not to let out the shop to any one else during the term of partnership. It was alleged that the term of partnership had come to an end on 31st January 1961 and the defendant had not rendered accounts of partnership business to the plaintiff nor had he delivered vacant possession of the shop to him and was intending to transfer its possession to a third person. It was claimed that the plaintiff's suit for dissolution of partnership and rendition of accounts be decreed against the defendant and he be directed to deliver vacant possession of the shop to him.

(3.) THE suit was resisted by the defendant. He admitted the execution of the deed of partnership but stated that the real intention of the parties was to lease out the shop to the defendant on a monthly rental of Rs. 55/-which the plaintiff had been receiving regularly from him. In paragraph 3 of the written statement it was stated that the agreement of partnership being with a minor and this being void the plaintiff was not entitled to get a decree for rendition of accounts oh its basis. He denied that plan-tiff had fixed any furniture in the shop. He further denied the plaintiff's right to get his shop vacated from him. It was also stated that the shop in dispute had been in possession of Small Industries Co-operative Society from the beginning and the defendant had been paying rent of the shop to the plaintiff through that Society. In the end it was stated that the plaintiff's suit was not maintainable because prima facie the alleged partnership was illegal.