R N SAMUVIER Vs. RNRAMASUBBIER

JUDGEMENT

(1.) The plaintiff, who appeals, brought this suit against his brother for a sum of Rs. 18,800-3-1. The learned Subordinate Judge has narrated in full the circumstances leading up to the claim. To understand how it arose, it is only necessary to explain that there were two firms in which both parties were partners. One of these firms worked under the Vilasam V.S.R.S., and in it one Sankaranarayana Ayyar had a half share while the two brothers had the other half share. It was a money-lending business, and it also ran a chit fund. The other firm was known to the R. S. Firm; it was also engaged in money-lending, and the plaintiff and defendant were the partners. The two firms had dealings each with the other. In 1923 disagreements arose between the brothers, and they decided to dissever their interests. By an agreement Ex. K, dated the 4 June of that year, the plaintiff purported to take over all the defendant's interests in the V. S. R. S. Firm, while those of the plaintiff in the R. S. Firm were assigned to the defendant. The latter at the same time accepted liability for a sum of Rs. 13,000 and odd due by the R. S. to the V. S. R. S. Firm. Later, in February in 1925, Sankaranarayana Ayyar and the plaintiff dissolved their partnership in the V. S. R. S. Firm, and it was arranged that the debt due from the R. S. Firm, which by that time amounted to Rs. 18,340-6-1, should be taken over by the plaintiff. It is this sum that formed the subject-matter of the suit.

(2.) The defendant raised a number of legal objections to the claim and it is with these that we are concerned. The first part of the argument is based upon the circumstance that the agreement, Ex. K, between the parties was not registered. It purported, as we have seen, to dissolve two partnerships, and since each partnership involved immovable property, title to which necessarily, it is contended, underwent modification, the whole document is subject to the disqualifications imposed by Section 49 of the Registration Act, it can neither affect the property nor be received as evidence of any transaction affecting it. Several replies have been attempted to this objection. In the first place the actual transaction is assigned to an anterior date, when, the document would be no more than a record of an earlier oral agreement, and not itself the embodiment and sole repository of the contract. But supposing this contention to fail, it is urged that the objection with regard to registration does not apply where a partnership involving immovable property is dissolved; or if, again, this position is not maintainable, some parts of the transaction, and in particular that part which gives rise to the present claim are not affected. A further line of defence resorted to by the defendant is that the plaintiff has not acquired the right to sue by a valid assignment of the actionable claim.

(3.) There can be no doubt, in ray view, that the agreement of 4 June, 1923, was, and was intended by the parties to be, the instrument of dissolution. It was not the less so merely because the operations thereby involved could not all be executed upon the day upon which the document was signed, but some came into force earlier and some were left to be done later. Thus it may be, as the plaint recites, that from some day in May the parties began to open separate accounts, but the document itself recognises the necessity for registered conveyances, and provides that they should be subsequently executed. The document is formal in design, and opens with the words "agreement entered into on 4 June, 1923." The plaint (para. 4) gives its date as the date up to which the parties carried on their transactions as joint partners. In paragraph 11 it is referred to as having been "confirmed and brought into force," and other similar expressions occur elsewhere. Allusion to earlier dates on which certain changes involved in the two dissolutions were introduced does not, in my view, go far to show that what was clearly drafted as a written agreement should be discarded in favour of a prior oral one. There are indications in the evidence that it was not until trouble was apprehended from this source that such a theory took shape. Thus the plaintiff, when examined on 11 February, 1928, said that when division was effected on 24 May, 1923, "it was decided that an agreement should be drawn up and executed in duplicate and each should keep one as a voucher to evidence the arrangements come to." On the 16 February he made the incompatible assertion that "at the time of the division of the assets there was no intention to reduce to writing the arrangements come to," and went on to say that Ex. K was drawn up merely as a record of an already completed division. Another contradiction of this construction is to be found in his lawyer's notice to the defendant, Ex. VI. I have no doubt that the written agreement was, in the words of Couch, C.J., quoted by their Lordships of the Privy Council in Subramonian V/s. Lutchman (1922) L.R. 50 I.A. 77 : I.L.R. 50 C. 338 : 44 M.L.J. 602 (P.C.), "what the parties considered to be the only repository and appropriate evidence of their agreement" and under Section 91 of the Evidence Act, can alone be looked at for the terms of it.