NANNA VAZHMUMI MUDALI Vs. NATHAMUNI

JUDGEMENT

(1.) The plaintiff instituted on 14 February, 1921, a suit for taking of partnership accounts between him and defendants Nos. 1 and 2 and for the recovery of the amount to be found due to him on the taking of the accounts. The only defence was that the partnership 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 Munsif. The present 1 defendant preferred an appeal. On 19 February, 1925, the learned Subordinate Judge reversed that decree and remanded the suit to the District Munsif for a fresh trial, on the ground that the trial by the District Munsif 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 retrial consider a new ground pressed before the lower Appellate Court by the defendant, viz., that the partnership was illegal. At the re-trial, the 1 defendant 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 then contended by the defendant That amendment was allowed by the District Munsif by his order dated 8 October, 1925. The 1 defendant filed a further additional written statement on 20 October, 1925, to the amended plaint. On 21 December, 1925, the then District Munsif, while finding all the issues raised in the case in favour of the plaintiff dismissed the plaintiff's suit. His finding on the 5 issue was that the contract of partnership was illegal and opposed to public policy. On plaintiff's appeal the learned District Judge on 6 December, 1927, reversed the decision of the District Munsif and passed a preliminary decree in favour of the plaintiff for the taking of accounts in the light of the findings of the District Munsif on the other issues which were not disputed before the District Judge. The 1 defendant has accordingly preferred the present Second Appeal 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 Munsif, The 1 defendant 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 (I of 1886). The license under which the 1 defendant had the privilege of selling toddy has not been produced by the 1 defendant. 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 the 1 defendant must fail. He had 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 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 the 1 defendant produced was a license of the year 1921-1922, The learned District Munsif refused to receive it. That license was taken back from the lower Court by the Vakil for the 1 defendant and in the course of the argument before me no form of license was produced, the defendant relying on the notification in 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 the 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 the 1 defendant, 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 the 1 defendant held". 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." After discussing the terms of the partnership between the parties and after observing that there was no deed of partnership to evidence the agreement of the partnership, the lower Appellate Court in para. 5 of its judgment observed as follows: "It seems to me that there are no sufficient grounds for holding that the agreement between the 1 defendant and the other two (plaintiff and 2nd defendant) was contrary to law. As his Lordship the Chief Justice in O.S.A. No. 72 of 1925, a man who, like the 1st defendant sets up a case in which he attempts to take advantage of his own wrong, must prove his case to the hilt. I am clear that the respondent has not proved his case.

(3.) The appellant has produced before me a license granted to a third person for the year 1918-1919, and has sought to have the same admitted in evidence, I, however, do not think that at this stage, and in second appeal, I should allow him to do so. The plaint was filed on 14 February, 1921, and the additional written statement in which he took this new plea was filed by him on 31 July, 1925. The appeal was pending before the lower Appellate Court from 22nd June, 1926, till 6 December, 1927. The learned District Judge remarks that even after the arguments were heard on 21 September, 1927, and judgment reserved to get a copy of the High Court judgment in O.S.A. No. 72 of 1925, the 1 defendant's Vakil produced only a license granted to a third party for the year 1919 1920 and not any license granted for 1918- 1919. The 1 defendant had plenty of opportunities to prove his case, and I do not think that I should in the circumstances allow the 1 defendant to produce in second appeal additional evidence even, if there be no other legal objections in his way of doing so.