1. The plaintiff in this case claims, as assignee of the executrix and executor of Ruttonji Nowroji, deceased, to be entitled to a one-anna share in the business carried on by the defendants under the name of Nowroji Cursetji & Co., of which firm the deceased Ruttonji was a partner.
2. The facts on which the plaintiff relies are set out in the fourth paragraph of the plaint, as follows: 'The accounts of the said partnership had remained unadjusted for many years prior to the death of the said Ruttonji * * * The defendants were anxious to obtain the signature of the said Ruttonji to some release or adjustment. After his said death the said defendants were anxious to obtain such release from the said executor and executrix * * * Ultimately it was agreed between them as follows:that the said executor and executrix should accept a lump sum offered by the defendants as the amount due to the estate of the said Ruttonji, without further examination of the past accounts of the firm, and should pass a release in respect thereof, and that the interest of the said executor and executrix as representing the estate of the said Ruttonji should be continued as a one-anna share.'
3. It was contended that the plaint in this paragraph set up two agreements: one that a lump sum should be taken in satisfaction of past claims, concerning which a written release was passed; another that a new partnership, consisting of a one-anna share, should be given to Ruttonji's heirs, which separate agreement was not in writing. As regards the nature of that separate agreement, we have the evidence of Mr. Wadia and the accountant. Mr. Wadia told us that when he advised Bapuji against the insertion of the sentence in the release about the examination of the books, Bapuji said 'they had made some arrangement, and this insertion would settle the matter.'
4. The independent and trustworthy evidence of the accountant shows what the arrangement was. He says that Bapuji and Burjorji settled, in his presence, 'the accounts of the old partnership were to be finally adjusted, and a new one-anna partnership was to be made for the heirs,' Soon after this the release was made. It appeared to me from the accountant's evidence and still more clearly from the evidence of the plaintiff and the others who appeared on his side, that the adjustment of the accounts, without further examination, was the real consideration for this alleged new partnership. The Words in the plaint, 'as representing the estate of the said Ruttonji', seem also to set up this case. The first question that arises is, whether this evidence is admissible under Section 92 of the Evidence Act I of 1872.
5. The operative words of the release are as follows: 'In consideration of the payment of Rs. 8,000, they, the said Pirozbai and Bapuji, as such executrix and executor, do hereby release the parties from the share and interest of Ruttonji in the said firm.' Together with these words must be read the recital that the sum of Rs. 8,395 was arrived at after examination of the books. Is the alleged oral agreement inconsistent with this written agreement, and excluded by the rule of law, that parol evidence cannot be tendered for the purpose of altering the terms of a written contract? I admitted evidence of the alleged oral agreement-not that I was satisfied on this point, but because I wished to know the precise terms of the agreement before I came to a decision. Now that I find all the plaintiffs witnesses concurring in saying that the one-anna share was agreed to be given in consideration of the accounts not being examined, this agreement seems to me inconsistent with the writing whereby the representatives of Ruttonji released the partners from all claims whatever in respect of Ruttonji's share and interest. It seems to me impossible to hold that this new agreement did not arise out of Ruttonji's share and interest.
6. The case, then, stands thus: The consideration in the writing for the determination of that interest, is the payment of a lump sum. The sum was paid and, under the writing, all claims arising out of the old partnership ceased and determined. The oral agreement adds another term as the consideration of waiving all claims on the past accounts-to wit, the continuance of a one-anna share in the partnership. Under Section 92 of the Indian Evidence Act I of 1872, I feel bound to exclude this oral agreement. It is not a purely collateral or additional agreement. It constitutes an addition to the terms of a contract that had been reduced into writing, and is inconsistent with those terms.
7. It may be useful to add my opinion, that the plaintiff would fail On another and less technical ground. It is one of the fundamental principles of partnership law that no person can be introduced as a partner without the consent of all those who, for the time being, are members of the firm. An exception to this rule might be found in India, as regards deceased partners' sons, in a strictly family partnership. But there is no sufficient evidence that this firm bore that hereditary character. Sons of other partners had been admitted, but as working partners, and not always in the same share. It was not shown that they came in as of right. Moreover, the release distinctly states that Ruttonji's share ceased from the date of his death. The consent to this new one-anna share was given, according to the most trustworthy witness, the accountant, by Burjorji only a few days before the release. I do not think the alleged agreement of July is proved satisfactorily. The oral evidence on the point is contradictory, and the correspondence negatives any distinct arrangement such as that now set up. I am of opinion, on the evidence, there were negotiations, but nothing more. It is not proved to my satisfaction that the others consented to this new partnership, nor that Burjorji had authority to act for all. If, then, Burjorji alone consented, his consent would not bind the rest of the partners, especially Jamsetji, whose interest equalled that of Burjorji, and who denies consent altogether. I may add, that, even if Burjorji had the power to act for others, it is doubtful whether this agreement would not be without consideration; the claim on behalf of Ruttonji was released, and his representatives had no claim of their own. The sons did not work for the firm, and their money in the firm bore interest. But I do not think it necessary to decide that point. Although I agree with Mr. Farran that there probably was some arrangement made, I think the plaintiff's assignors put themselves legally, if not morally, out of Court, first by their signatures to the release; and secondly, by their neglect to obtain the consent of all the partners.