(MANNA) VAZHMUNI MUDALI Vs. NATHUMUNI MUDALI

JUDGEMENT

(1.) The plaintiff instituted on 14 February 1921 a suit for taking of partnership accounts between him and defendants 1 and 2 and for the recovery of the amount to be found due to him on the taking of the accounts he only defence was that the partner ship ended in a loss and that there was nothing due to the appellants. A decree for Rs. 570 was passed in favour of the plaintiff on 9 April 1923 by the District Munsiff. The present defendant 1 preferred an appeal. On 19 February 1925, the learned Subordinate Judge reversed that decree and remanded the suit to the District Munsiff for a fresh trial, on the ground that the trial by the District Munsiff was irregular as no preliminary decree seemed to have been passed as should have been done in the case of partnership suits. While remanding the suit the learned Subordinate Judge suggested that the Court of first instance might at the re-trial consider a new ground pressed before the lower appellate Court by the defendant, viz., that the partnership was illegal. At the re-trial, defendant 1 put in an additional written statement on 31 July 1925 that the partnership in question was illegal, and opposed to public policy. The plaintiff then applied to have his plaint amended by alleging that he would be entitled to a decree for the money advanced by him in case the Court should hold that the partnership was illegal as was contended by the defendant. That amendment was allowed by the District Munsiff by his order dated 8 October 1925. Defendant 1 filed a further additional written statement on 20 October 1925 to the amended plaint. On 21 December 1925 the then District Munsiff, while finding all the issues raised in the case in favour of the plaintiff, dismissed the plaintiff's suit. His finding on issue 5 was that the contract of partnership was illegal and opposed to public policy. On plaintiff's appeal the learned District Judge on 6th December 1927 reversed the decision of the District Munsiff and passed a preliminary decree in favour of the plaintiff for the taking of accounts in the light of the findings of the District Munsiff on the other issues which were not disputed before the District Judge. Defendant 1 has accordingly preferred the present S.A. No. 467 of 1928 against the decision of the District Judge.

(2.) The main contention urged by the learned advocate for the appellant is that the agreement of partnership is illegal and that the suit was rightly dismissed by the District Munsiff. Defendant 1 held a license to sell toddy in a shop. According to him, he took the plaintiff as a partner in respect of the toddy business and that such agreement of partnership is prohibited by the Madras Abkari Act (1 of 1886). The license under which defendant 1 had the privilege of selling toddy has not been produced by defendant 1. The defendant's case was that the license was taken away by the plaintiff. This is what the learned District Judge said on this point. On one simple point I think the contention of defendant 1 must fail, He has not produced the license under which he had the privilege of selling the toddy. His explanation is the easily made one that the license has been taken away by the plaintiff. Even if he had not the original license, he could quite easily have got a copy of it from the Collector or have produced at any rate a copy of the license which was in force in 1918-1919, the year of the partnership. At the re-trial all that defendant produced was a license of the year 1921-1922. The learned District Munsiff refused to receive it. That license was taken back from the lower Court by the vakil for defendant 1, and in the course of the argument before me no form of license was produced, the defendant relying on the notification in the Fort St. George Gazette of the conditions of sale of Abkari privileges for the year 1918- 1919. After the argument had concluded, I waited.... The vakil for defendant then produced a license granted to a third party. But it was granted for 1919-1920, and not 1918-1919. I do not think that I should presume, in favour of a man who is making a case of the kind made by defendant 1, that the license for 1918-1919 was in identically the same terms as the license for the year 1919-1920... It must be taken then that there is no proof of the terms of the license which defendant 1 held.

(3.) After referring to certain decisions, the learned District Judge observed as follows: Following these decisions, I hold that, since the license relating to the year 1918- 1919 of the partnership has not been produced, there are no grounds for saying that the contract of partnership was illegal.