ANNAYYA JANAKIRAMA BHAGAVATHAR Vs. ANNAYYA NARASIMHA BHAGAVATHAR

JUDGEMENT

(1.) This second appeal raises a question of limitation. The suit is one for an account of moneys due it respect of the business which was earned on in partnership between plaintiff No. 1 and defendant No. 1. The case of the plaintiffs is that plaintiff No. 1, defendant No. 1 and one Hanumantha Bhagavathar carried on business in partnership till 1919, that Hanumantha Bhagavathar left the business and thereafter the business was continued by plaintiff No. 1 and defendant No. 1, that 1 he business terminated about three years before the suit was filed on December 1, 1927, and that even if the partnership was dissolved more than three years before suit, there was an acknowledgment of liability under Ex. A which was an agreement to have certain matters set-lied by panchayaldars executed by plaintiff No. 1 and defendant No. 1. The plaint is not very happily worded. It recites the partnership and also the agreement under Ex. A, and the prayer in the plaint is that the Court should direct the defendants to pay plaintiff No. 1 the amount due to him, as mentioned in para. 11 after looking into the accounts, of the suit partnership. I understand that paragraph to mean that the plaintiff desired an account of the partnership business in accordance with the arrangement that they entered into and was embodied in Ex. A. The District Munsif gave a decree in favour of the plaintiffs and tie learned Subordinate Judge dismissed the suit en the ground that it was barred by limitation and that Ex. A did not operate as an acknowledgment. Exhibit A is as follows: Re: the account of partneiship business carried on by us: Annayya Janakirama bhagavathar and Naiayanaswami Bhagavathar of us admitted before you to the effect that interest should be charged for the capital invested by them and for their drawings and that they should have no right to the profits or loss of the said business Acccrdingly we have appointed you three as panchayaldars to look into the accounts of the said Janakirama Bhagavathar and Narayanaswami Bhagavathar from the said business accounts and to settle accounts by charging interest on them and for their drawings at he. 1 per cent, ter mensem. So, if you look into those accounts, charge interest as aforesaid and settle the accounts, we three agree to abide by your decision; and so we have given full powers to you throe in connection therewith. Agreeing to this effect we have executed this agreement.

(2.) The view of the lower Court is that Ex A operates only as a condition il acknowledgment and that therefore it cannot save bar of the limitation. This view is untenable The learned Judge has not appreciated the distinction between an acknowledgment of a right to an account and an acknowledgment of a debt. For an acknowledgment of a right to an account there need not be an acknowledgment that a debt or even a specified amount thereof is actually due. As I understand Ex. A, what the parties in effect state is this: There is a right to a pending account between us and each has got a claim to recover the balance which may be found due upon the taking of the accounts and each agrees to pay the other the balance so found due.

(3.) This will amount to are unconditional admission of liability. As observed by Wood, V.O. in Prance, V/s. Sympson Kay (1855) 1 Kay 677 : K Jur. 929 : 101 R.R. 811 at p. 681 Page of (1855) 1 Kay.--[Ed.]: It is not necessary for the purpose of a suit for an account to have an acknowledgment that a debt is actually due; but it is enough that there is an acknowledgment that an account is pending, and that the defendant promises to pay the balance if any due from him upon such account; because it may be that the precise result of the account and on which side the balance will be, cannot be known beforehand.