LAKSHMAN KUSHABA BAKRE Vs. BHIKCHAND RAICHAND MARWADI

JUDGEMENT

(1.) The appeal in this case is by defendants Nos. 2 to 4 against the original plaintiffs and defendant No. 1 from the preliminary decree passed by the trial Judge declaring that in the suit partnership the plaintiffs are entitled to a half share and defendants Nos. 1 to 4 to the other half, both being bound to hold one anna out of the profits for charity, and that the partnership shall be deemed to have been dissolved as from September 14, 1923. The decree also ordered accounts to be taken as follows :- (a) An account of the debts and liabilities of the said partnership on the aforesaid date. (b) An account of the credits, property and effects on the aforesaid date. (c) An account of all dealings and transactions between plaintiffs and defendants not disturbing any subsequent settled accounts except the adhawa, Exhibit 184, and any further item or items that may hereafter be found necessary to be excepted.

(2.) Then the decree proceeded : The claim for a specific sum alleged to have been fixed on settlement and promised to be paid is dismissed. Though this claim is dismissed the alternate prayer subsists, and it is decreed as above. Just as plaintiff has falsely set up the claim for a fixed sum, as also the defendants have set up absolutely false points of defence to escape the liabilities as partners and coparceners. Both the parties are equally guilty. It is just the same whether costs are thrown on parties themselves or they are ordered be some out of the partnership property the shares being equal, I, therefore, order that all costs shall come out of the estate.

(3.) It is necessary to see in the first place what precisely was the suit that the plaintiffs brought, and in this respect it will be found that the pleadings and the first issue are incorrectly stated in the judgment under appeal. If one looks to paragraph 1 of the plaint, it is clear that what is alleged is that the partnership between the plaintiffs and defendant No. 1 was effected for the shop named Bhikchand Chhaganmal at Nasik. This partnership is alleged to have lasted from March 27, 1914, to July 15, 1923, when it is alleged to have been dissolved. And then in paragraphs 3 and 4 it is pleaded in effect that the accounts were settled and the balance of Rs. 26,397-7-6 was agreed to be recovered by the plaintiffs from the defendant. Accordingly, the plaintiffs claim that specific sum.