C KRISHNASWAMI NAIDU Vs. KJAYALAKSHMI AMMAL

JUDGEMENT

(1.) The suit which gives rise to this appeal was filed by the widow of one Chengayya Naidu, who died in April, 1918, against her maternal uncle for an account of certain businesses which she alleged he had conducted as her agent. We are only concerned here with a rice mandi business which the defendant carried on from the time of Chengayya Naidu's death up to date of suit. The plaintiff's case was that since her husband did not dispose of this business by will, as he did of some other assets, it was hers by right of inheritance and that the defendant, who held her power of attorney, was only her agent. The defendant contended, on the other hand, that the mandi which Chengayya Naidu had been conducting was closed a few days before his death and that the subsequent business was the defendant's own, to a share in which the plaintiff had no title Nevertheless, in consideration of the facts that she had lost her husband, was his relative and was living with him, he had voluntarily given her a half share, which continued up to October, 1918, when the successive arrangements described in paragraph 12 of the written statement were made. He further alleged that accounts had been settled and the plaintiff had received the allowances under this arrangement up to the 1 February, 1926. The case was tried by Kumaraswami Sastri, J., who found that neither the plaintiff nor the defendant was speaking the truth and decided that each was jointly interested in the business and entitled to a half share. He accordingly gave a declaration to this effect and referred the suit to a Commissioner to take an account. This decision has been attacked before us on the ground that it is consistent neither with the plaintiff's nor the defendant's pleas, and that of course is true. It appears that there was no application to amend the plaint, nor indeed could there well have been one, because this was no example of an inadvertent misstatement of facts or legal position but, according to the learned Judge's finding, a deliberate falsification of the truth. A number of issues were framed, Nos. 1 and 4 relating particularly to the rice mandi business. No. 1 was framed in the terms of the pleadings to enquire whether the business belonged to the plaintiff and whether she entrusted it to the defendant for management, or whether it had been given to the defendant. No. 4 ran thus: Was there an agreement to give the plaintiff a share of the profits in the said business as stated in paragraph 12 of the written statement and, if so, what are the terms thereof.

(2.) There has been some discussion as to what the learned Judge's finding amounts to, whether it means that the parties were in partnership. Mr. K.S. Krishnaswami Aiyangar for the respondent has done his best to resist that conclusion for reasons which are not very difficult to surmise. It is true that the judgment contains no express reference to a partnership but it is further true that if the incidents of such a legal relationship appear to have been found by the Court a partnership must be inferred. The learned Judge expresses the view in the first place that the business was not transferred to the defendant and that he was not merely looking after it on plaintiff's account. He then gives grounds for adopting an intermediate view, involving some arrangement for carrying on the business; and says that all probabilities point to the conclusion that each was to get a half share, adding his finding that they were "jointly interested". For the respondent it is sought to add to these findings an averment of the defendant that the plaintiff, who was to get ex gratia a half share, was not to be liable for any losses, but the judgment makes no reference to this and we have no reason to suppose that this condition was held proved. Under Section 239 of the Contract Act, partnership is defined as "the relation which subsists between persons who have agreed to combine their property, labour or skill in "some business, and to share the profits thereof between them". We cannot find sufficient reason to doubt that this was the nature of the relationship between the parties which the learned Judge found, and not some other form of contract not specifically recognised or provided for by law, as Mr. K.S. Krishnaswami Aiyangar would suggest.

(3.) Thus the question is whether a suit by a principal against an agent can be converted into a suit by one partner against another. There can be no doubt that the two suits are essentially different in character and this circumstance, together with the consideration that the defendant may have been taken by surprise, are the two main grounds upon which decisions on this question have been based. The principles are thus stated in Ananda Chandra Chuckerbutty V/s. Braja Lal Singh (1922) I.L.R. 50 C. 292: he rule that the pleading and proof must correspond is intended to serve a double purpose; first, to apprise the defendant distinctly and specifically of the case he is called upon to answer ; and, secondly, to preserve an accurate record of the cause of action as a protection against a second proceeding upon the same allegations. The test is, whether the defendant will be taken by surprise if relief is granted on the facts established by the. evidence; or, as has sometimes been said, a variance between a pleading and what is proved is immaterial unless it hampers a defence or unless it relates to an integral part of the cause of action.