CHOCKALINGA CHETTIAR Vs. MUTHUSWAMI CHETTIAR

JUDGEMENT

(1.) This Second Appeal by the defendant arises in connection with a preliminary decree passed by the District Munsif of Tanjore in a suit instituted by the plaintiff for the recovery of the amount found due to him on settlement of accounts on the ground that he has been an agent under the defendant in a trade which the latter had been carrying on, on the understanding that his remuneration was to be one- fourth of the total profits of each year. The suit was for the recovery of one-fourth share in the profits deducting out of it Rs. 488-3-6 due by the plaintiff to the defendant. The defendant-appellant, contended, amongst other things, that the plaintiff was not an agent, that as the plaintiff and one Natesa Chetty not a party to the suit had been trading in partnership business, that plaintiff was entitled to one-fourth share of the profits only on the footing of a partner, that he was bound to bear a proportionate share of the losses like any other partner and that the accounts should be examined on that basis.

(2.) The main issue for decision is whether the plaintiff is a partner along with the defendant and another as alleged by the defendant, or whether the plaintiff was only an agent as alleged by him in the plaint. The learned District Munsif, on an examination of the evidence, oral and documentary in the case, came to the conclusion that the plaintiff was a partner entitled to one-fourth share of the profits after bearing his due share of the losses of the firm and that the amount due to the plaintiff should be found out on an examination of the accounts of the firm on that Basis. In that view he passed a preliminary decree directing the appointment of a Commissioner to examine the accounts and settle the amounts due to the several partners.

(3.) On appeal the learned District Judge in a very short judgment came to the conclusion that the plaintiff was not a partner but only an agent of the firm and that the accounts should be examined on the basis that he as an agent was entitled to one-fourth share of the net profits. He, therefore, set aside the decree of the District Munsif and remanded the suit to the Lower Court for passing a final decree in accordance with his finding.