PALEPU NARAYANAMURTHY Vs. MALLAPUDI SUBRAHMANYAM

JUDGEMENT

(1.) Second Appeals Nos. 751 and 885 of 1925 are cross-appeals in Original Suit No. 186 of 1923 on the District Munsif's file. It is not disputed before me that the plaintiff Narayanamurthy, and the defendant Subrahmanyam, in that suit and Achanta Satyanarayana and Kamali Chandrayya were partners in a firm formed for the purpose of selling toddy. It is contended for the plaintiff that that partner-sip was illegal. But the cases relied on Marudamuthu Pillai V/s. Rangasarni Moopan 24 M. 401, Thithi Pakurudasu V/s. Bheemudu 26 M. 430 and Ganapathi Brahmayya V/s. Kurella Ramiah 54 Ind. Cas. 45 : 43 M. 141 : 10 L.W. 476 : 38 M.L.J. 123 though they lay down that a partnership entered into in contravention of a license or of any rule under the Abkari Act is void and that a licensee of a toddy or arrack shop cannot legally take a partner without sanction, do not go so far as to lay down that it is illegal for persons to enter into a partnership for the purpose of carrying on a toddy shop business, for which they hope at a future date to obtain a license. There is indeed nothing in the Act to prevent a license to conduct a toddy shop being issued to several persons, and there is nothing to make it illegal for several persons to enter into a partner-hip for the purposes of binding at a toddy hop auction and, if successful in the auction, of obtaining a license and of carrying on a toddy shop busine Secs.At the date of the promissory note, Ex. A, that is, in August, 1918, there was nothing illegal in the partnership of the four persons mentioned. It is urged for the plaintiff that this suit was conducted in the lower Courts on the basis that the whole partnership was illegal; but it does not appear that the defendant made any admission to that effect, and he is not precluded on that ground from contesting the question here. Then it is urged that Original Suit No. 461 of 1920 on the District Munsif's file, a suit by Narayanamurthy for dissolution of the partnership, was dismissed on the finding that the partnership was illegal. But it appears that, though Achanta Satyanarayana raised that plea in that suit, the present defendant, Subrahmanyam, did not do so. In Original Suit No. 462 of 1920 on the District Munsif's file, a similar suit for dissolution of a similar partnership in respect of a subsequent year, Subrahmanayam did raise that plea successfully. But that does not make the question res judicata between him and Narayanamurthy in respect of the earlier partnership, with which we are now concerned. It is also urged for the plaintiff that Achanta Satyanarayana being, one of the partners, should not have been allowed to prosecute a separate suit on the promissory note, Ex. A, for an advance made for the partnership busine Secs.That may be; but he was allowed to sue, and he got a decree. I do not think that Narayanamurthy is entitled to any declaration such as he has prayed for in respect of the mortgage-deed, Ex. G. Second Appeal No. 751 of 1925 is, therefore, dismissed, and Second Appeal No. 885 of 1925 is allowed. Original Suit No. 186 of 1923 is dismissed. The plaintiff will, of course, be entitled to make use in future of Narayauamurthy's admission that the Rs. 237 mentioned in Ex. G was never advanced by him.

(2.) Second Appeals Nos. 884 and 886 of 1925 are two appeals by Subrahmanyam against the dismissal of his suit, Original Suit No. 340 of 1922, against Narayanamurthy. The District Munsif dismissed Original Suit No. 340 of 1922, except to the extent of Rs. 100-13 10. The Subordinate Judge dismissed it completely. Rs. 294 in Ex. G represents part of the amount of the decree obtained by Achanta Satyanarayana against Subrahmanyam (plaintiff in Original Suit No. 340 of 1922 and defendant in Original Suit No. 186 of 1923) on Ex. A. The District Munsif has allowed Rs. 100 13-10 as the third share of the additional sum which had to be paid by way of interest accumulated on that decree through delay in payment. But, as Subrahmanyam's evidence shows, Narayanamurthy was not responsible for that delay. The claim for Rs. 283-5-4 in Original Suit No. 340 of 1922 cannot be pursued now, as it is barred by a finding of fact. The other two claims for damages cannot be allowed. The dismissal of Original Suit No. 340 of 1922 was, therefore, right. Second Appeals Nos. 884 and 886 of 1925 are both dismissed.

(3.) In the circumstances of this curious litigation each party will bear his own costs in these appeals in this Court.