RATHAN CHAND KUMAJI Vs. AMICHAND

JUDGEMENT

(1.) Defendants 1 to 3, one Jagarupchand Kumaji and certain others were carrying on a partnership business which admittedly came to an end in October 1925, on the death of Jagarup. The plaintiff claims to be an undivided brother of Jagarup and as such entitled to his share of the partnership assets. The present suit is framed in the alternative in view of what happened in a former suit, O.S. No. 62 of 1927 on the file of the City Civil Court. To elucidate the contentions raised before us, it is necessary to refer in some detail to the nature and course of that litigation. Samrathmull, the present defendant 3, was the plaintiff therein and he sued his partners and the present plaintiff who was impleaded as defendant 3. The plaint prayed that the usual partnership accounts be taken; the total amount of profits earned in the business be ascertained and the amount due to the plaintiff for his share of the profits be also ascertained.

(2.) Defendant 3, i.e., the present plaintiff, did not appear and there was some contest only between Samarathmull and defendants 1 and 2 as to the quantum of the former's share and certain minor matters. These questions were adjusted by a raji between them. The Court thereupon passed a preliminary decree directing accounts to be taken under the following heads : (1) An account of the credits, property and effects now belonging to the plaint partnership. (2) An account of the debts and liabilities of the said partnership. (3) An account of the profits and loss of the business of the partnership. The Commissioner in due course submitted a report to which plaintiff's counsel took objection that it did not determine the amounts due to the other partners in the firm. This objection was held to be valid as "those amounts must be specified in any final decree that may be passed." The Court accordingly referred the matter back to the Commissioner "requesting him to determine the amounts due to the various partners." In the amended report submitted by the Commissioner he stated that defendant 3 (present plaintiff) was entitled to Rs. 3,830-7-0 but he added that defendants 3, 4 and 6 in that suit had drawn further sums from the partnership firm subsequent to the close of the last partnership year. On receipt of this report, the Court passed judgment in the following terms: The Commissioner has now submitted an amended report. Defendants accept the report; plaintiff filed objections to it but has withdrawn his objections.

(3.) One of the questions argued before us relates to the effect of this portion of the judgment. The judgment then proceeds to say that there will be a declaration as prayed for in the plaint and a decree for Es, 1,380-14-1 in favour of the then plaintiff and against defendants 1 and 2 who were in possession of the assets of the firm. As the present plaintiff did not appear in the suit, he did not appear before the Commissioner or at the final judgment. It is admitted that on the above report of the Commissioner defendant 3 in that suit could, if ho so chose, have asked for a decree in his favour for the amount that may be found payable to him as representing his brother's share of the partnership assets. Unfortunately he did not do so. We cannot agree with the learned City Civil Judge that because the present plaintiff did not appear before the Commissioner or before the Court, he would not be bound by the result of the accounts taken by the Commissioner and accepted by the Court; nor can we concur in his further inference that the present plaintiff cannot claim to take advantage of what happened in that suit. He was certainly a party defendant to the action though ex parte and it has not been disputed that so far as it was necessary to take the accounts in that case for the purpose of giving a decree to the plaintiff for the amount found payable to him, the accounts-taking will be binding upon all the parties whether they appeared or not. It must also be remembered that the accounts of a partnership can only be taken and must be taken once for all in a suit to which all the partners or their representatives are parties, and the law does not contemplate successive suits for accounts-taking at the instance of the various partners. Indeed this is one of the very objections taken by defendant 1 in his written statement.