THIRUVENGADA MUDALIAR Vs. SSADAGOPA MUDALAIR

JUDGEMENT

(1.) The main question argued in this appeal was whether a partner, whose remedy against his co-partner for a general account is barred, can recover his share of a particular item of the partnership assets which the co-partner received after the dissolution of the partnership. Mr. K. Sirnivasa, Iyengar, who discussed the general principles relating to suits between partners at considerable length, was unable to cite any authority in support of his contention that such a suit cannot be maintained. He failed to convince us that there is anything in reason or in the principles which ordinarily guide the Court in actions between co-partners which should deter a Court from entertaining a suit like the present, if it be open to the defendant copartner to ask the Court to take accounts with a view to show that the plaintiff had received more than his share in the partnership assets. This is the view of the law taken in Sokkanadha Vanni Mundar V/s. Sokkanadha Vannimular 28 M. 344 following Merwanji Hormusji V/s. Rustomji Burjorji 6 B. 628 and Dayal Jairaj V/s. Khatav Ladha 12 B.H.C.R. 97. and is supported by the observations of more than one member of the House of Lords, who delivered judgments in Knox V/s. Gye L.R. 5 H.L. 656 : 42 L.J. Ch. 423. It is not necessary for us to discuss the question at length as we generally agree with what is said on the subject in those cases. The plaintiff is, in our opinion, entitled to the half of Rs. 3,849-8-5 which was received by the defendant on the 2nd of February 1903. This sum is part of a sum of Rs. 4,000 which was deposited with the proprietor of the villages of which the plaintiff and the defendant took a lease in partnership. It was the case of the plaintiff that he had paid in the entire amount of Rs. 4,000, but even so he would be entitled in a suit like this to only half of that amount in accordance with his interest in the partnership. And this his learned Vakil has not disputed before us. But, if it were necessary for us to decide the question, we would be inclined to hold upon the evidence that the result of what happened between the partners was that the Rs. 4,000 deposited With the landlord, consisted of Rs. 1,500 of the plaintiff's money and the balance, the defendant s. The entire sum of Rs. 4,000 was originally paid by the defendant, then the plaintiff paid the defendant Rs. 3,500 on this account and the defendant afterwards gave a cheque for Rs. 2,000 to the plaintiff's agent, but the common banker of both the plaintiff and the defendant to whom the plaintiff sent the cheque, instead of crediting the amount to the plaintiff's account credited it to the defendant's account. The mistake of the plaintiff's Banker cannot affect the payment made by the defendant.

(2.) The plaintiff is, therefore, entitled to a decree for the half of Rs. 3,849-8-5 and we do not think he is not entitled to any interest on the sum due to him from the 2 February, 1903, the date on which the defendant received the amount from the landlord to the date of the institution of the suit. The decree will be modified accordingly. Subject to this modification, the appeal will be dismissed. As regards costs in the Court of the first instance, the parties will pay and receive proportionate costs.

(3.) In this Court, they will bear their own costs.