N.U. Beg, J.
1. This appeal has been filed by Bharat Prasad who was the plaintiff in the trial Court. Bharat Prasad brought the suit out of which this appeal arises for recovery of Rs. 1,591/9/3. The plaintiff's case was that he and defendant No- 4 carried on partnership business of sugar manufacture in 1360 Fasli. Hardeo Singh,. father of defendants 1 and 2 and husband of defendant No. 3, was given Rs. 1,500/- by the partnership in lieu of his promise to supply 2500 maunds of sugarcane juice during the season at the prevalent rate to the partnership. It was further agreed that Hardeo Singh would pay damages at the rate of one anna per maund in respect of short supply, if any. Hardeo Singh supplied only 217 maunds 27 seers juice which was worth Rs. 217/10/9.
In a division of the assets of partnership, this particular debt was allotted to the plaintiff. Hence-he brought the present suit for recovery ot Rs. 1,282/5/3 as excess amount paid by the partnership to Hardeo Singh, Rs. 142/10/- as damages for short supply and Rs. 166/10/- as interest. The suit was resisted by defendants 1, 2 and 3 on the ground that the amount due from Hardeo Singh had been paid off by him, and that the present suit was barred by Section 69 of the Partnership-Act as well as Section, 130 of the Transfer of Property Act.
2. The trial Court repelled all the three pleas-of the defendants, and decreed the suit of the plaintiff for Rs. 1,448/15/3 with costs against the assets of Hardeo Singh in the hands of defendants 1 to 3. The lower appellate Court reversed the judgment and decree of the trial Court and dismissed the suit. Dissatisfied with the said judgment the plaintiff filed a second appeal.
3. So far as the plea of payment is concerned, the defendants mainly relied on an admission made by Hardeo Singh about his liability to pay during his illness before his death. On this aspect of the case the defendants adduced evidence to the effect that Bharat Prasad had visited Hardeo Singh when the latter was ill. At that time Hardeo Singh had told Bharat Prasad that the amount which was due from him to Bharat Prasad had been paid up, and that the latter should return the bond to his wife.
In reply Bharat Prasad had said that the entire amount had been paid up, and he would return the said bond. In support of this admission the defendants produced Srimati Himanchali, widow of Hardeo Singh, and three other witnesses, viz. Loney Singh, Girdhari and Chinta. As, in my opinion, the admission was not quite clear and unambiguous, I framed an issue to that effect, and remanded it to the lower appellate Court. Thelower appellate Court, after giving an opportunity to the parties to adduce evidence in support of their respective cases, has given its finding to the effect that the defendants have failed to prove their case that the plaintiff had made an admission to Hardep Singh as alleged on behalf of the defendants.
4. The findings given by the lower appellate Court are criticised by the learned counsel on behalf of the appellant. I have read the report of the lower appellate Court, and find myself in agreement with the line of reasoning adopted by it. In evidence Srimati Himanchali, widow of Hardeo Singh stated that the amount of Rs. 1,500/ had been paid by her husband in full satisfaction of the claim to Bharat Prasad in her presence, This fact was not disclosed by her either in the written statement or even in the evidence given by her in the trial Court. On the other hand, in the trial Court she had stated that her husband had not made any payment in her presence.
It is also very unlikely that Hardeo Singh would make payment of this big amount to Bharat Prasad without obtaining any receipt from him. The story given by the witnesses produced in support of her version is, therefore, an improbable one. She also admitted that two of the witnesses produced by her, viz. Girdhari and Hardeo were her tenants before the abolition of zamin-dari. They were, therefore, interested persons.
5. On the other hand, the case of Bharat Prasad was supported by his own evidence. It was also corroborated by Baldeo Prasad who belonged to the village of defendants 1 to 3. Both these witnesses appear to be credible and trustworthy. I have therefore, no hesitation in agreeing with the findings given by the lower appellate Court. I am, accordingly, of the opinion that the defendants have failed to prove any admission by the plaintiff Bharat Prasad. On behalf of the respondents the learned counsel did not rely on any other evidence before me. In this view of the matter the finding of fact given by the lower appellate Court has to be set aside.
6. The next point argued by the learned counsel for the respondents was that the present suit was barred by Section 69(1) of the Partnership Act. This argument seems to ignore the provisions of Section 69(3) of the Indian Parntership Act. Sub-section (3) of Section 69 provides that the provisions of sub-sections (1) and (2) of Section 69 shall not apply to enforce any right to realise the property of a dissolved firm.
In the present case the plaintiff alleged that there was a partition of the assets of the firm. Defendant No. 4 who was a co-partner also admitted this fact. The division of property of the firm can only take place after the dissolution of the partnership. The plaintiff's case that there was a division of the partnership property has not been seriously challenged at any stage in view of the admission made by defendant No. 4. Under the circumstances the present suit will not be barred by Section 69(1) of the Indian Partnership Act. Further, the firm having been dissolved the present suit cannot be said to have been filed by I or on behalf of the firm. It is, therefore, maintainable.
7. Section 130 of the Transfer of PropertyAct also does not bar the present suit, as it appliesonly to a case of a transfer of an actionableclaim. In the present case there was no transferof any actionable claim. It was only an assignment of a part of the assets of the firm to one of the partners, who already owned a share in the said assets. The debt was assigned to him in lieu of his pre-existing right as a partner. Such a transaction is not hit by the provisions of Section 130 of the Transfer of Property Act. Reference in this connection may be made to the case of Shanmugha Mudaliar v. P. V. Rathina Mudaliar 1947-2 Mad LJ 241 : (AIR 1948 Mad 187).
8. For the above reasons, I am of the opinion that this appeal should be allowed and the judgment and decree of the lower appellate Court set aside. I accordingly allow this appeal, set aside the judgment and decree of the lower appellate Court, and restore the judgment and decree passed by the trial Court. The appellant will be entitled to his costs against respondents 1 to 3.