SAYYAD ABDUL HAWK Vs. TUMULURY VAIKUNTAM

JUDGEMENT

(1.) This second appeal arises out of a partnership transaction. The facts may be thus steated. The 1 defendant, T. Vaikuntam, a resident of Tuni in the Godavary District, the 1 plaintiff, Sayyed Abdul Hawk, a merchant of Anakapalli, Vizagapatam District, and a third person named Meru Khan, who belongs to a place called Kohibara somewhere in Northern India, entered into a partnership in 1904 for the purpose of dealing in assafoetida. Rs. 6,000 was contributed as capital by the defendant and Rs. 3,000 by Meru Khan, and the 1 plaintiff and the defendant were the working partners. The Whole stock of assafcetida was purchased and it had to be sold gradully and money realized by the sales. In 1906 Meru Khan died. Immediately after the death of Meru Khan, his father Hajee Mulla Ramzan came down and obtained Ex. A from the defendant. It is dated 15 August 1906. The date of this document as given in the chronological list of the Subordinate Judge's judgment and as printed in the papers is wrong. It is neither 18 August nor 13 August but the 15 August. This document was executed by the defendant. In this the facts were first narrated. It then winds up saying: Hajee Mulla Ramzan Saheb, resident of Kohibara, examined this day the receipts and expenses as per my chitta and arrived at the (sum) as mentioned above. It is written in this manner. Henceforth, you have nothing to do in case I give to others except yourself, the sum relating to the credits and debits.

(2.) Ramzan died in 1913 or 1914 and the present suit was filed on the 26 April 1920 by three plaintiffs. The 1 plaintiff was Hawk as already mentioned, the 2nd plaintiff, a son of Meru Khan, and the third plaintiff, a son of Ramzan. It is admitted that the 3 plaintiff's mother was living at the time of the suit, but she is not a party to the suit. The Subordinate Judge decreed the suit. The District Judge reversed it and dismissed it without costs. In the plaint the plaintiffs alleged in paragraph 3: He also wrote in the same entry the terms of the joint business agreed upon before that and agreed to treat as partner in the place of Meru Khan the said father Hajee Mulla Ramzan and wrote all the above terms in the said entry in the handwriting of the defendant himself.

(3.) The plaintiff's case therefore is that by Ex. A a fresh partnership was constituted. On this plea the defendant raised the contention that not only there is no new partnership or continuance of original partnership, but also the plea that the suit is bad for nonjoinder on account of want of all the heirs of Ramzan. The Subordinate Judge found on the 2nd issue that there was a new partnership constituted by Ex. A; on the 5 issue that the suit was not bad for nonjoinder; on the 4 issue that the suit was not barred. His ground for so finding is that the whole stock was not yet sold, and until the whole stock was sold, it must be taken that the original partnership is continuing. He says: Thus there is the express agreement that no settlement could be asked for until the stock is exhausted. In a transaction like this an agreement may also be presumed that the partnership , was not to be dissolved until after the whole business was concluded by selling out the entire stock.