LINGAMALLU SEENAYYA Vs. LINGAMALLA RAMALINGAYYA

JUDGEMENT

(1.) The plaintiff was a member of a firm, and the defendant was his sub-partner. The Lower Courts proceed on the footing that the main partnership was dissolved in 1921. This is disputed by Mr. Sitarama Rao, the Counsel for the plaintiff (respondent); but in the view I am taking, it is unnecessary to pursue this point. The accounts of the partnership were settled in August, 1925, and it was found that there having been a loss, the plaintiff had to bear his share of it. The plaintiff had paid in 1922 a major portion of what was found at the settlement to be due by him for his share. The suit was filed in August, 1925, apparently some days after the settlement, The question to be decided is, is the suit barred by limitation? The Lower Courts, being of the opinion that Art. 120 applies, have held that the suit was filed within time.

(2.) Mr. Lakshmanna for the defendant argues that the suit is governed by Article 106 of the Limitation Act. That Art. relates to a suit "for an account and a share of the profits of a dissolved partnership". Can it be said that a suit by a partner against his sub-partner relates either to "an account" or "a share of the profits of dissolved partnership"? I think not. What the plaintiff in such a suit claims is a share of his own share; with the profits of the main partnership as such, the suit has no concern. Moreover, the present action is not for a share of the profits at all. The principal partnership having resulted in a loss and the plaintiff having had to bear his share of it, he sued for the recovery of that portion which the defendant was bound to contribute under the special contract between the latter and the plaintiff. I find it very difficult to regard such a suit as being governed by the terms of Art. 106. No case has been cited to show that this Art. was ever held applicable to cases between a main partner and sub-partner. Mr. Lakshmanna contends that in fact there is a partnership within a partnership; but that is not the question with which I have to deal. Is this suit of the nature contemplated by Art. 106 of the Limitation Act?-that is the point that has to be decided.

(3.) It is next contended that Section 31 of the. English Partnership Act gives the sub-partner a right to proceed for obtaining an account against not only the assigning partner but also against the remaining partners. It is then argued that this section shows that the rights of the partner and the sub-partner are alike and that there is no difference in their right to demand an account from the date of the dissolution. In the first place, that provision does not deal with a question of limitation and secondly, it is sufficient to say that the present suit is not by a sub- partner as against the main partner.