ABDUL JAFFAR SAHIB Vs. KVENUGOPAL CHETTIAR

JUDGEMENT

(1.) IN this case the plaintiff brought a suit for dissolution of partnership, for the taking of accounts and for recovery of money due to him as profits. It would appear that the plaintiff, the 2nd, 3 and 4 defendants and the 1 defendant's father had a partnership, in bamboo trade from 1912 to 1913. The 1 defendant's father died in that year and that of course in law amounted to a dissolution of the partnership. Nevertheless the same bamboo trade was carried on by the 2nd and 3 defendants along with 1 defendant who was the son of the deceased man and plaintiff was also added as a partner. It is a question in this case whether the plaintiff came in as a partner or only as a sub-partner of defendants 1 and 3 alone. The Subordinate Judge has found that in taking the plaintiff into the firm of defendants 1 to 3, the defendants 1 and 3 who alone entered into the contract with the plaintiff under Ex. A really acted on behalf of the firm including the 2nd defendant, and I think I must accept that finding as a finding of fact and hold that the plaintiff became not a sub-partner but a partner in the second partnership which continued till 1917. The plaintiff is now suing for the accounts to be taken not only of the trade from 1913 to 1917 but also of the trade in 1912-1913. It is contended before use that the claim to take accounts of 1912-13 partnership is barred by limitation and those accounts should be excluded from the decree. No doubt when a partner dies, the partnership comes to an end under the Contract Act. But nevertheless as was held in the case in Ahinsa Bibi V/s. Abdul Kader Sahib [1901] 25 Mad. 26 if the remaining partners continue the business, for the purpose of ascertaining what shares those remaining partners brought into the new partnership an account may have to be taken of the old partnership and there will be no question of limitation at all in such a case as that, for the account of the old partnership is taken not for the purpose of enforcing the claim to the money due as profits in that partnership but for the purpose of ascertaining what the capital supplied by the continuing partners was to the new partnership. IN that view there will be no question of limitation preventing the accounts of the old partnership being taken. I think that principle applies to this case. No doubt here one of the partners, 1 defendant in the second partnership, is a newly added partner. Nevertheless he was the son of his father who was the previous partner, and apparently the father's share was treated as the son's in the new partnership. The father's other heirs if any are now barred from claiming any share in the profits of 1912-13 trade and the 4 defendant also, who went out from the partnership in 1913, will be barred from claiming a share in the trade; but as between the various persons who are now members of the new partnership, there will be no bar of limitation for the purpose of taking accounts of 1912-13 partnership. As regards the share itself of the plaintiff, the agreement under Ex. A was that he should be given a two-annas share in the rupee of the profits. It is contended by the learned Advocate for the appellants that it means a two-annas share only in the profits of defendants 1 and 3 and as they are getting only an eight-annas share, it means only one-anna share in the whole of the profits. T do not think that that contention is right, more especially as I find that the plaintiff became really a partner of the firm including the 2nd defendant and as it is clear that what was intended was that out of the total share of the profits the plaintiff should have a two annas fraction, and when accounts are taken, and the profits are ascertained the plaintiff will be given that share as decreed by the lower Appellate Court.

(2.) IT is also contended that there is no finding that the accounts of the previous partnership of 1912-13 was not taken and settled and therefore I should call for a finding on that point before I decide that the case in Ahinsa Bibi V/s. Abdul Kadir Saheb [1901] 25 Mad. 26 quoted above applies. I do not think that that is correct, for the Subordinate Judge says expressly in paragraph 3 of his judgment that the plaintiff alleges in his plaint a continuance of the same business and that he and his witnesses prove that plaintiff's accounts of such business were no settled. That, I think, is a clear finding on the point, and it will be erroneous to call for a fresh finding on a point like that. All the points taken in Second Appeal failing, the Second Appeal fails and is dismissed with costs.