RAM DAS Vs. DWARKA DAS

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for recovery of Rs. 7,000 odd comprised of several items. The claim was disputed, but has been decreed in part. The defendant has accordingly appealed, but the plaintiff has submitted to the decree so far as it dismissed a part of his claim. It will be convenient to take up each of the items separately. The first item claimed was the balance of Rs. 1,575 out of Rs. 5,100 which had been fixed as the value of the share of the plaintiffs deceased father in a certain partnership business. After the dissolution of the partnership, written agreements were executed by the deceased and the defendant and they are to be found at pages 58 and 59 of the paper-book. There cannot be the least doubt that the deceased transferred his entire interest in this partnership in lieu of Rs. 5,100 and ceased to have any further concern with this business. The defendant has taken the plea that there was some sort of an oral understanding that the defendant would be liable to pay this amount only if the valuation of the assets had been correctly made. No such contemporaneous oral agreement can be pleaded when the agreement between the parties was reduced to writing. We are satisfied that the defendant was bound to pay Rs. 5,100, it being wholly immaterial what the real value of the assets of the partnership turned out to be.

(2.) The second item was of Rs. 4,000 which represented debts due to the deceased personally from his debtors which were transferred by him to the defendant for a sum of Rs. 4,000, the face value of the debts being over Rs. 6,000. The agreements referred to above leave no doubt that the defendant agreed to pay a consolidated sum of Rs. 4,000, irrespective of the amount which he was actually able to recover from the various debtors. The pleas taken with regard to this item on behalf of the defendant were (1) that the debt of Rs. 600 had really become barred by time, (2) that Rs. 3,000 had been realized by the deceased alter the transfer and (3) that the debts included a simple mortgage debt which had not been formally sold to him with the result that he could not sue upon it.

(3.) In support of his contention the defendant produced a certified copy of the judgment in a previous suit, brought by him both for himself and on behalf of the present plaintiff's guardian against the said debtor, which was ultimately dismissed. The learned Subordinate Judge in the present case has held that that judgment is not relevant in this case, because although the suit had been brought nominally in the name of the present plaintiff as well, he was a minor, and his mother had no knowledge of the suit, and the defendant who was her general attorney had taken advantage of that circumstance and included the minor's name in the plaint. It does appear that after the disposal of the suit, when the present defendant appealed to the District Judge the present plaintiff's mother applied to him stating that the suit as well as the appeal had been filed without her knowledge and that she had not authorized Ram Das to file them. There is no evidence on the present record to show that the minor's mother had any real knowledge of this litigation. The plaint shows that it was signed by Ram Das himself both on his own behalf and for the minor's guardian, professedly as her authorized agent. We are satisfied that the present plaintiff was not fully represented in that case and the judgment, therefore, cannot be conclusive as against him.