P M RAMAKRISHNA AIYAR Vs. PMUTHUSWAMI AIYAR

JUDGEMENT

(1.) Plaintiff and defendants 2 and 3 are the sons of the 1 defendant. They conducted a partnership business, at first in conjunction with the 4 defendant, and subsequently as a family partnership consisting of themselves alone. Misunderstandings arose in 1920 and plaintiff refused to continue in the business and finally expressed his determination to become separated in status and to dissolve the partnership. It has been found in the Lower Court that this separation in status and the dissolution of partnership took place on the 31 December, 1921, and this is not now disputed. The plaintiff's suit is for the recovery of his share in the family property and in the partnership assets. He has obtained a decree for one-fourth share in the partnership assets as they stood on the 31 December, 1921 and for one-fourth share of the immoveable and moveable properties belonging to the family. So far as his share of the partnership assets is concerned, he has been awarded interest at 6 per cent. on the amount due to him from the 31 December, 1921 till delivery.

(2.) The plaintiff now appeals and objects to the decree on the ground that he is entitled not only to interest on his share but also in the alternative to a share of the profits which have been obtained by the use of his share. It is not disputed that since 1921 defendants 1 to 3 have continued to carry on the same business as was carried on before that date by them in conjunction with the plaintiff. The plaintiff's claim to share in the profits earned since he left the business is based on Section 88 of the Trusts Act. Illustration (f) to that section runs as follows: A and B are partners. A dies. B instead of winding up the affairs of the partnership, retains all the assets in the business. B must account to A's legal representative for the profits arising from A's share of the capital.

(3.) In a case of this Court reported in Hajee Summar Sait V/s. Mahomed Husshun Sait (1916) 4 L.W. 521 a Divisional Bench held that this illustration went beyond the law in India, the main ground of this decision being that the surviving partners did not stand in a fiduciary relation to the retiring partner or his representative. No reference was made in that case to the decision of the Privy Council in a similar case (Bhagwandas V/s. Rivett-Carnac (1898) L.R. 26 I.A. 32 at 37 : I.L.R. 23 B. 544 (P.C)) where we find at page 550: It seems to their Lordships that the proper order will be to direct an account to be taken of the partnership dealings and transactions, to inquire what was due to the estate of Hemabai in respect of her share at the time of her death, and how the amount due to her estate has been dealt with, and, if it appears that such amount, or any part thereof, has been employed in the business continued by the surviving partners, to direct the accounts of such business to be taken.