TARAK NATH SAHA Vs. RAJANI KANTA SAHA

JUDGEMENT

(1.) This appeal is on behalf of the plaintiffs. The admitted facts of the case are that the predecessors in interest of the plaintiffs and the defendants had a joint business which was wound up in 1317 B.S. The accounts were adjusted and a sum of Rs. 3,001-9-0 was found to be the balance due as capital. Out of this sum Rs. 2,500 was deposited with the defendant's predecessor on the conditions set forth in an ekrarnama, dated 18 Magh-1317, marked Ex. 1 in this case. The material term in the ekrarnama with which we are concerned is contained in Clause 4. That clause provides that the sum of Rs. 2,500 would carry interest at the rate of 5 1/4% which would come upto Rs. 131-4-0 per annum. To this sum, the defendant's predecessor was to contribute out of his own pocket a sum of Rs. 118-12-0, making in the aggregate a sum of Rs. 250 which was to be spent in the performance of Durgapujah. The ekrarnama also provides that if the defendants predecessor, or the defendants are unable to perform the pujah as agreed upon, the parties would divide the sum of Rs. 2,500 amongst themselves in certain proportions.

(2.) The plaintiffs claimed the sum on the basis of the terms of the ekrarnama on an allegation that the defendants predecessor refused to perform the pujah in 1330 B.S. and on such refusal plaintiffs 1 to 5 are entitled to recover 5 annas odd ganda share with interest thereon, and plaintiffs 6 to 10 are claiming 4 annas odd ganda share on the aforesaid sum with interest thereon.

(3.) To these claims a plea of limitation was raised by the contesting defendants. This plea has found favour with the Courts below. In the lower appellate Court, the plaintiffs relied on Section 10, Limitation Act, and Art. 49 or Art. 115, Limitation Act. The lower appellate Court, for reasons of its own, has repelled the plaintiffs, contention in this behalf and dismissed the plaintiffs suit.