SIR MOHD AKBAR KHAN Vs. ATTAR SINGH

JUDGEMENT

(1.) These are three consolidated appeals from the Court of the Judicial Commissioner, North West Frontier Province. Appeal No.22 covers an appeal and cross appeal from a decree of the said Court dated 10 July 1939 which varied a decree passed by the Senior Subordinate Judge, Mardan, dated 18 November 1938. Appeal No. 16 is from a decree of the Court of the said Judicial Commissioner, dated 3 July 1941 which varied an order dated 18 September 1940 passed by the Senior Subordinate Judge, Mardan, in execution proceedings. Most of the controversy arises on Appeal No. 92 and it will be convenient to deal with that appeal first. On 1 January 1919 the appellant, Sir Mohammad Akbar Khan (herein-after called "the appellant"), and the original respondent 1 S. Attar Singh (hereinafter called "respondent 1"), entered into a deed of partnership for carrying on the business of money-lending. The appellant was to finance the business, and respondent 1 was to manage it. Under cl.(8), Hira Singh, the father of respondent 1, was to be liable as a surety for loss occasioned by the default of respondent 1. On 26 July 1929 the appellant instituted the suit out of which these appeals arise, for dissolution of the partnership and the taking of the necessary accounts. The defendants were respondent 1, his father Hira Singh, and respondent 1's sons. The plaint alleged that all the defendants constituted a Hindu joint family, and that respondent 1 had entered into the partnership with the plaintiff on behalf of such joint family. Hira Singh died before the hearing of the suit and two of his sons, the respondents-Ishar Singh and Wazir Singh - were brought on the record as his legal representatives with respondent 1. It may be mentioned that respondent 1 died in January 1911 and respondents 2,3 and 4 are his legal representatives.

(2.) The suit came on for hearing on 6 October 1930 before the Senior Subordinate Judge, Mardan, who by his judgment, dismissed the suit against all the defendants except respondent 1, and on 15 October 1930 a preliminary decree was passed declaring the partnership to have been dissolved as from 18 July 1929 and directing various partnership accounts. The appellant appealed from the said decree to the Court of the Judicial Commissioner, North-West Frontier Province, and on 1 August 1931 the Court gave judgment upholding the dismissal of the suit as against the sons of respondent 1 but holding that Ishar Singh and Wazir Singh, as legal representatives of Hira Singh, with respondent 1 were properly sued and should be restored to the record as defendants. In passing such order the Court noted that before the final decree it would be necessary for the Court to determine the extent, if any, to which Hira Singh's estate was liable under cl.8 of the partnership deed, and whether the liability was such as could properly fall upon his legal representatives whoever they might be. The Court further directed that the costs in the lower Court should follow the result.

(3.) On 3 May 1933 the Senior Subordinate Judge, on the application of the parties, directed that the decision of the whole case should be referred to the Hon'ble R.B. Lala Ram Saran Das as arbitrator. On 14th January 1933 the arbitrator made his report. After discussing very fully the contentions of the parties raised before him the arbitrator held that the contribution to the partnership capital of the appellant was Rs. 290,882-11-3, which sum, together with interest at annas 7 per cent, per month (the rate agreed in the partnership deed) up to 31 July 1929 came to Rupees 4,35,415-0-3 and that out of that sum the appellant had already withdrawn Rs. 93,843-12-0 on 11 July 1929 so that the balance due to him was Ra. 3,41,672- 3-0. After adding various sums which the arbitrator held that the appellant was entitled to, the arbitrator found the total sum due to the appellant as Rupees' 4,50,920-15-0 for which sum he purported to pass a decree in favour of the appellant against respondent 1. The arbitrator stated that he exonerated the legal representatives of the deceased surety Hira Singh, because of the fact that no liability in terms of the partnership deed had been incurred by the said surety. The arbitrator, as regards the costs of the suit, directed that the parties should bear their own costs because the issues involved were very complicated and both the parties had partly succeeded in respect of their allegations and pleadings.