PARASHRAM Vs. SHRIRAM

JUDGEMENT

(1.) THE facts leading to this first appeal are briefly these. In the year 1904 a partnership was formed between the parties to start a factory at mouza Hiwarkhed in the Akola district-known as "Narayandas, Parashram Ginsning factory". The several partners had varying shares in this conuern, the plaintiffs having Rs. 0-9-3 and the defendants Rs. 0-6-9. It is admitted that plaintiff. 1 had authority for plaintiff 2 to act for him in this partnership concern while defendant 1 had similar authority from the other two defendants. The case for the plaintiffs was that on 4th October 1923 an agreement was arrived at between the firm of plaintiff 1 which was then represented by one Sonabai as owner thereof and defendant 1, that the partnership be dissolved, that defendant 1 should purchase the concern for Rs. 41,000 and after payment of partnership debts out of the consideration distribute the balance between the several partners according to their shares. As defendant 1 failed to carry out this contract the present suit was brought by the plaintiffs to have the agreement specifically enforced or in the alternative for a decree for dissolution of partnership and for recovery of the amount of assets due to them.

(2.) DEFENDANT 1 alone contested the claim, the other defendants remained ex parte-Defendant I admitted the contract of sale but alleged that as he was doubtful of the capacity of Sonabai--who was a Hindu widow with limited powers--to enter into the bargain he had asked for and secured a guarantee from one Bal-kisahdas, the uncle-in-law of the lady, to stand surety for the bargain. It was stated that on the strength of this assurance of suretyship the defendant made the agreement on 1st November 1923 and had even gone to the length of purchasing the necessary stamps for conveyance-The defendant, however, alleged that Balkisandaa later on refused to stand surety and plaintiff 1 served him (defendant 1) with a notice dated 17th June 1924 whereby she cancelled the contract to which defendant 1 agreed-The right of Hirabai to represent the firm of plaintiff 1 in this suit was challenged on the ground that she had adopted a son who alone could have a right of suit-The alternative claim for dissolution and rendition of accounts was not resisted but it was alleged that the accounts were made up till 3rd November 1923. In reply the plaintiffs asserted that Fattelal, who was the original owner of the firm of plaintiff 1, had by his will made the two widows successively owners of the firm and that the natural father of 'the boy adopted by Hirabai having given an agreement in her favour constituting her the owner of the property for her lifetime, she alone and not the adopted son had the right to institute the present suit.

(3.) THE learned Additional District Judge who tried the case, in an elaborate judgment, decided the several issues in plaintiffs' favour and decreed the claim for specific performance of the agreement. Defendant 1 alone has filed the present appeal.