DAJI ABAJI KHARE Vs. GOVIND NARAYEN BAPAT

JUDGEMENT

(1.) By a decretal order of reference in this suit dated the 15 January 1903 it was inter alia referred to the Commissioner to take an account of the dealings and transaction. of the partnership in the pleadings from the time the factory started, namely 1893, to the 6th October, 1896. The accounts were taken by Mr. Modi, the Assistant Commissioner of this Court, whom I shall refer to hereafter for brevity's sake as the Com missioner. In 1907 he reported that the materials out of which the accounts had been prepared were incomplete and unreliable, Consequently it was impossible to take full and accurate accounts of the dealings and transaction of the partnership which the order of reference required him to do and that further directions were necessary. The defendants filed exceptions to this-report which were heard before me on the 13 June 1907. I directed the Commissioner that there were sufficient materials before him to frame an account and sent the case back to him. Against this order the plaintiff appealed, but his appeal was dismissed on the ground that I had done nothing more than given a direction in a matter of procedure not affecting the rights of the parties. The reference was reargued before the Commissioner and he has now made a report. He has again recorded his opinion that on the materials before him it was impossible for him to frame an account of the dealings and transactions of the partnership, and has reported that the plaintiff is entitled to recover the sum of Rs. 12,024, which it was decreed by the order of the 15 January 1903 should be taken as his contribution to the capital with interest at six per cent, from the 1 November 1893 to the 6 October 1896 and further interest on Rs. 14,137-15-l 1/2 from the 6 October 1896 till payment. The account books are now described as irregular as well as incomeplete and unreliable. The defendants have filed exceptions to this report, and these have been fully argued before me on the merits.

(2.) The partnership was originally founded in 1893 between Digamber Gopal, Vishnu Sakharam, and Vishnu Narayen to erect and work a ginning factory at Balam Takli in the Ahmednagar district. In 1895 Vishnu Sakharam transferred his interest to vasudev Sadashiv; in 1896 Digambar and Wasudev assigned their shares to the plaintiff and an indenture of the 21 February] 1896 was made between the plaintiff and Vishnu Narayen Ex. A in the case, under which the plaintiff purported to become a partner with Vishnu. The position of the plaintiff has been defined by the judgment of Tyabji J. who tried the case as follows: "The plaintiff was not a partner from the beginning but he was entitled to accounts as if he had been a partner since 1893 but the plaintiff was not the absolute owner of the two thirds share, he was the mortgagee of those two shares subject to certain right of Wasudeo which was not material to be determined between the plaintiff and defendant in this suit. Further the plaintiff was not a benamidar pure and simple but had to a certain limited extent beneficial interest vested in himself as appearing in the judgment,"

(3.) The Commissioner has all along dealt with the case as if the plaintiff were a partner, but here there is a clear finding that he is not. It is true that at Book I p. 90, the learned Judge in his judgment says : "By this agreement Mr. Khare became a partner and Vishnu has contracted with Mr. Khare " but this appears hardly consistent with the findings above quoted and the following two passages, at p. 89 : " Now in the plaint Mr. Khare sues as the absolute owner of these two thirds share from the year 1893. In the evidence before me however Mr. Khare admitted that his interest was merely that of a mortgagee to the extent of his actual claims, "I will therefore assume that as between him and Wasudev he is and sues on the footing not as a pure benamidar but as Wasudev's nominee with interest in the factory as a mortgagee." The Commissioner has, therefore, in the first place failed to recognize the true status of the plaintiff as defined in the judgment.