MULUMEDI JAGANNADHIAH Vs. PEDURI NARASIMHAM SETTY

JUDGEMENT

(1.) The essential facts in this case which are not disputed are that plaintiff and defendants 1 to 6 were carrying on a partnership trade from 1911 to 1918. In 1915 defendant 1 executed an anthakam for certain moneys which he had borrowed from the firm and later on executed a mortgage deed Ex. B over property which is not the property of the firm for the sum then due by him. In 1918 the partnership was dissolved, and some time before 5 July 1920 a settlement of the accounts-was come to, in which it was arranged that the plaintiff should have the mortgage as his share of the profits due to him. Plaintiff filed the present suit on the mortgage. Defendant 1 contested it until defendant 8 who had purchased the mortgage in execution of a decree obtained by him against defendant 1 came on the record and took up the defence.

(2.) Various lines of defence were put for-ward, but in this appeal I am concerned only with two, one of which has not been put forward until in this Court. The latter is that the mortgage deed is inoperative in law as being a contract by defendant 1 with himself, he being a member of the firm in whose favour it is executed. The other defence is that without an assignment in writing of the mortgage the plaintiff has no title to sue

(3.) Beyond the above facts it is necessary to set out a few more which have been found by the lower Courts which concur in their judgments. The following are of some importance, namely, first that although the actual partners of the firm., differed from time to time between 1911 to 1918 the firm remained the same, (that is admitted by defendant 1 himself in his written statement), and secondly, that the settlement of accounts, by which evidently the lower Courts include also the distribution of assets, was in the presence of all the partners. Since defendant 1 has on this point never pleaded that he did not consent to the made of distribution and never went into the witness box to deny it but contented himself with a general denial that there was any final settlement of accounts at all, which has been found to be a false story, I take it that defendant 1 at the final settlement of accounts agreed to the mortgage deed being handed over to the plaintiff as his share of the profits due to him. On these facts the two points of law arise noted above which have been argued before me.