SHANMUGHA MUDALIAR Vs. PVRATHINA MUDALIAR

JUDGEMENT

(1.) This second appeal was referred to a Division Bench by Rajamannar, J., by reason of a conflict between the decision of Bell, J., in Ponnappa Chettiar v. Bodappa Chettiar (1944) 2 M.L.J. 406 and the opinion of Sir John Beaumont, G.J., in Appayya Nijlingappa V/s. Subrao Babaji I.L.R. (1938) Bom. 102, Rajamannar, J., preferring the opinion of Sir John Beaumont, G.J., to that of Bell, J., made the reference as above stated.

(2.) The facts are as follows : From the 2nd March, 1940, until the 31 March, 1942, the plaintiff and the deceased husband of the second defendant carried on business in partnership. During that period dealings and transactions took place with the first defendant. As a result, his indebtedness to the partnership amounted to a sum of Rs. 819-14-0, and, by the date of suit, that amount was increased by a sum of Rs. 94-4-0 to a sum of Rs. 914-2-0, the amount for which the suit was instituted. It is alleged, and, so far as the matters relevant to this appeal are concerned, it is not in dispute, that there was some arrangement by which the plaintiff became entitled to the whole of the monies alleged to be recoverable from the first defendant. Hence the suit was brought, by the plaintiff alone but since the second defendant's husband had died before the suit the second defendant was joined by way of abundant caution. The only other material fact to be recorded is that the partnership was never registered as required by Section 58 of the Indian Partnership Act.

(3.) The suit was instituted in the Court of the Additional District Munsiff of Ami. By his written statement the first defendant made a number of pleas one of which was that the suit was not maintainable by reason of the provisions of Section 69 of the Partnership Act, particularly Sub-section 2 which provides that a suit to enforce a right arising from a contract is not enforceable when the suit is instituted by an unregistered partnership firm. That was the only issue which the learned District Munsiff tried, and, following the decision of Bell, J., to which reference was made above, the suit was dismissed. An appeal by the plaintiff to the learned District Judge, of Vellore was unsuccessful. The learned District Judge, expressing himself to be bound by the decision of Bell, J., as indeed he was, as also was the learned District Munsiff in the lower Court, followed that decision and the appeal failed.