GOPALA CHETTY Vs. VIJAYARAGHAVACHARIAR

JUDGEMENT

(1.) About the year 1908 a partnership was formed between Narasimhachariar, the respondent, Vijayaraghavachariar, the appellant, Gopala now deceased and the appellant Ethirajulu, who for the purposes of this appeal also represents the first appellant. Narasimhachariar having died in 1911, a suit was filed on November 15, 1913, in the High Court at Madras by his adopted son against the respondent and the two appellants, praying for partnership accounts, and payment to him of his adopted father's share, The plaintiff in this suit was, in some manner not now important to consider, settled with, and retired from the suit and by an order of the High Court the respondent was transposed from his position as defendant and became plaintiff, continuing the suit against the other defendants, the present appellants.

(2.) The suit came on for bearing before a Judge of the High Court on February 26, 1915, when it was found that the partnership had been dissolved before the death of Narasimhachariar, namely in April 1910, and that therefore the suit was barred by Art. 106 of Schedule I of the Indian Limitation Act, 1908, which provides that a suit for accounts and a share of the profits of a dissolved partnership must be brought within three years of the date of dissolution. The respondent did not appeal. But on April 30 of the same year he launched a second suit against the present appellants, which is now in question before their Lordships.

(3.) In this suit, after setting out the proceedings in the previous suit and admitting that he had become disentitled to claim a general account and the payment to him of what might be found due and payable on the taking of a general account, he said that the sum of Rs. 18,842 had been received by the appellants in various payments on various dates from debtors to the old firm, and he claimed his quarter share in this tota sum. The appellants put in a written statement in which they denied that they had received any assets of the firm, said that if the accounts were to be taken the respondent would be found to be indebted to the firm, pleaded the Indian Limitation Act, and that the suit was barred by res judicata and certain other defences. The suit was tried before Kumaraswami Sastriar J. who gave judgment on March 27, 1916, deciding the bulk of the issues in favour of the plaintiff, now respondent, and giving him a declaration that he was entitled to a quarter share of the amount claimed and ordering an account to be taken with a view to showing whether there was any set-off in respect of sums which might be due from the respondent to the appellants. By the schedule of the decree it appeared that approximately Rs. 11,000 of the sum claimed had been received before the institution of the first suit, and the whole of the balance before the decree in the first suit. The learned Judge held that though a general partnership account was barred by the Indian Limitation Act and by the decision in the first suit, there was nevertheless a right in a partner to sue his other partners for his share of the assets of the partnership, for which the period of limitation would be six years and not three; and that therefore, the second suit had been brought in time. The learned Judge came to this conclusion on the authority of certain cases decided in the High Court of Madras, following earlier decisions in the High Court of Bombay.