SIVAGNANATHAMMAL Vs. SVNALLAPERUMAL PILLAI

JUDGEMENT

(1.) These two appeals are appeals against the preliminary and final decrees in O.S. No. 53 of 1925, on the file of the Subordinate Judge's Court of Tuticorin. In both the appeals defendant 2 is the appellant. The suit was filed for the winding up of a partnership and for taking its accounts and for the recovery of such amount as may be found due to the plaintiff. The plaintiff estimates that the amount due to him would be approximately Rs. 22,000. It will now be convenient to state the history of the partnership whose winding up is sought. The plaintiff's father, defendant 2's husband and a third person originally carried on a partnership under the style of Section V. from the year 1904. The plaintiff's father died in the year 1905 and the third person retired from the business in the year 1911. So legally a new partnership consisting of the plaintiff and defendant 2's husband (Kailasam Pillai) began to work from the year 1911. The business of the partnership consisted of the manufacture of salt under licenses issued by the Government and under the rules of the salt department. In the year 1918 it was agreed that the capital of the partnership should be two lakhs of which the plaintiff contributed three-fourths, i.e., lakh and fifty and Kailasam Pillai contributed the remaining one-fourth. As a matter of fact this capital was contributed from out of the profits of the prior business. The capital itself was to bear no interest but interest at 1 per cent was to be charged on the drawings by the partners and on the sums standing to their credit.

(2.) The partnership possessed 1327 salt pans in Levynjipuram extension factory bearing licenses Nos. 102 and 155. Besides these there were also another set of 11 salt pans which were purchased in auction in the name of Kailasam Pillai. There was some dispute about the ownership of these salt pans at one time in the lower Court, but now they are also admitted to be the property of the partnership. Kailasam Pillai died on 27 June 1922. At the time of his death he had made considerable overdrawings from the partnership funds. There is no dispute about the amount of his overdrawings. By February 1922, this amount was Rs. 47,041. There was also a sum due from him under another account called market account. The account of the transactions between the firm and Kailasamo Pillai has been filed as an annexure to the plaint. It appears that there was a large stock of salt belonging to the partnership remaining to be sold and this amounted to 6,83,600 maunds. In para. 11 of the plaint the plaintiff alleges that on 28 January 1923 he fixed a reasonable price for the aforesaid salt heaps and took them to his own account, lie also took to his own account some of the outstandings due to the partnership and also the salt pans. He also took over the lands, houses, gardens and 6ther immovable properties belonging to the partnership at a certain price. The plaintiff states that so far as the salt is concerned he took it over for such price as he considered reasonable according to the then market and with reference to the superior or inferior quality of the goods. The salt consisted of several varieties and also of the stock of several years, i.e., some portion of it was old and belonged to the stock of prior years.

(3.) On the footing that the defendant raised no objection to this taking over of the properties of the partnership it was found that a sum of Rs. 25,506-6-4 was still duo to the plaintiff from the deceased Kailasam Pillai on 28 January 1923, Afterwards the parties got a rebate from the Government of duty, in which defendant 2's share which amounted to Rs. 4,075. Deducting this amount, at the time of the suit a sum of Rs. 21,431-6-4 would still be due according to the plaintiff from defendant 2, the widow of Kailasam Pillai. Defendant 1 is a brother of Kailasam Pillai. At one time he claimed all the properties left by the deceased Kailasam Pillai to be joint family properties and there was litigation between him and the widow (defendant 2). It is said on behalf of defendant 2 that the plaintiff set him up and helped him in that litigation. But it is unnecessary to determine whether this is correct or not. On the ground that there was a rival claimant to the estate of Kailasam Pillai his brother was impleaded as defendant 1, but now that it is decided in the other litigation that defendant 2 is the sole heir to Kailasam Pillai he has no further interest in the suit and he is not a party in the appeal. In para. 13 of the plaint the plaintiff alleges that besides the sum ;due from defendant 2 there are a number of other outstandings due to the partnership. These amount to about Rupees 37,600. On the plaint it was estimated that probably there would be a loss of Rs. 12,000 in respect of the outstandings and it was expected that the rest would be collected.