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Gopi Nath Vs. Satish Chandra - Court Judgment

LegalCrystal Citation
SubjectCommercial;Limitation
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 243 of 1956
Judge
Reported inAIR1964All53
ActsPartnership Act, 1932 - Sections 46; Limitation Act, 1908 - Sections 6 and 7 - Article 106; Evidence Act, 1872 - Sections 101 and 157; Trusts Act, 1882 - Sections 88
AppellantGopi Nath
RespondentSatish Chandra
Appellant AdvocateJagdish Swarup and ;K.C. Saxena, Advs.
Respondent AdvocateS.N. Misra, Adv.
DispositionAppeal allowed
Excerpt:
family - surviving members - section 46 of partnership act,1932 - right to the assets of dissolved partnership to the surviving members of the family - after the death of karta of a joint hindu family who alone was partner of a firm - surviving members are entitled to file suit for rendition of account. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the.....k.b. asthana, j.1. this is a defendants's appeal against whom a preliminary decree directing him to render accounts of the firm ram ratan shyam manohar from the year 1928 has been passed.2. the plaintiff came to the court with the allegation that his father shyam manohar lal and his grandfather ram ratan lal were members of a joint hindu family and carried un sarafa business; that the defendant gopinath who was an experienced hand in the wholesale cloth business persuaded the plaintiff's father and his grandfather to start a firm in the name and style of ram ratan shyam. manohar dealing in cloth business; that the said firm was started in the year 1918 and gopinath defendant was taken in as a partner in the said firm.3. according to plaintiff's case the joint family of the plaintiff was.....
Judgment:

K.B. Asthana, J.

1. This is a defendants's appeal against whom a preliminary decree directing him to render accounts of the firm Ram Ratan Shyam Manohar from the year 1928 has been passed.

2. The plaintiff came to the Court with the allegation that his father Shyam Manohar Lal and his grandfather Ram Ratan Lal were members of a joint Hindu family and carried un Sarafa business; that the defendant Gopinath who was an experienced hand in the wholesale cloth business persuaded the plaintiff's father and his grandfather to start a firm in the name and style of Ram Ratan Shyam. Manohar dealing in cloth business; that the said firm was started in the year 1918 and Gopinath defendant was taken in as a partner in the said firm.

3. According to plaintiff's case the joint family of the plaintiff was to share the profits and losses to the extent of one half share and the defendant was to share the profits and losses to the extent of one half. It was further pleaded that the plaintiff's joint family was to finance the business and was to get interest at the rate of 10% per annum on their investment, while the defendant on account of his past experience was to manage the business and to remain in charge of the same and the duly of maintaining proper and regular account books of the business was that of the defendant and he was also under a duty lq explain the accounts of the business to the joint family whenever asked to do so. The plaintiff's case further was that a sum of Rs. 60,000/- was invested by the joint family in the said firm. It was further alleged that in the year 1928 Shyam Manohar plaintiff's father died when the plaintiff himself was a minor. It was also alleged that the grandfather of the plaintiff Ram Ratan Lal who has an old man was not interested in the affairs of the family and he being shocked by the death of his only son did not look after the interests of the family properly, thus giving Gopinath a free hand to deal with the joint family investment in the firm.

It was pleaded by the plaintiff that after the death of his grandfather Ram Ratan in 1934 his mother Smt. Phula Devi was appointed as his certificated guardian by the District Judge of Farrukhabad and she without understanding the proper accounts and on the persuasion of Mahesh Prasad, the maternal uncle of the plaintiff executed a deed of agreement in settlement of the final accounts of the partnership firm and as this agreement was brought about by fraud and undue influence it was not binding on the plaintiff. It was further pleaded that the agreement was against plaintiff's interest inasmuch as Smt. Phula Devi was persuaded to settle the accounts on payment of a very small sum. According to the plaintiff he attained majority on the 16th July 1948 and called upon the defendant to render and explain the accounts but he did not pay any heed. The plaintiff eventually was compelled to send a telegraphic notice and as well as a registered notice to the defendant for rendering to him the accounts and as the defendant failed to do the same, hence the suit. The plaintiff further alleged that the defendant utilised all the assets of the said firm in his own firm but this case seems to have been given up at the trial.

4. The defendant contested the claim of the plaintiff and in his written statement raised the following main pleas. It was pleaded by him that Shyam Manohar had entered into the partnership in his own right and not as a member of the joint Hindu family and the firm Ram Ratan Shyam Manohar was started in 1918 in which the defendant and Pt. Shyam Manohar were partners, shared, protits and losses to the extent of half and half each and on the investment made by any of the partner interest of -7/9/ per cent per month was to be paid; that the business of the partnership was carried on till sometime after two months of the death of Shyam Manohar Lal which occurred on 26th of August 1928 and the partnership stood dissolved from that date; that Pt. Ram Ratan, the grandfather of the plaintiff, did not like to continue the business and on various dates withdrew a sum amounting to about Rs. 21,000/- from the assets of the dissolved firm upto the year 1934 when he died; that Smt. Phula Devi, the certificated guardian of the plaintiff after fully understanding the accounts through her counsel and her brother Mahesh Prasad accepted a sum of Rs. 6948/12/9 in final payment of the share of the investments made by Shyam Manohar and further agreed that out of the unrealised debt she as guardian would be entitled to receive the share of the plaintiff whenever the said debts were realised by the defendant, and in this way further sums were paid by the defendant at various times to Smt Phula Devi.

It was denied by the defendant that the agreement which was executed by Smt Phula Devi in final settlement of the accounts of the dissolved partnership was brought about by undue influence or that any fraud was practised on her. It was pleaded that it was an intelligent act on her part; that after having taken the permission of the District Judge and having engaged a competent counsel for the purpose she got the account books which were in court inspected and the accounts were also checked from the Kachchi Rokar kept by Pt. Ram Ratan. It was further pleaded that the suit of the plaintiff was barred by limitation, estoppel and acquiescence. The defendant also denied the allegation of the plaintiff that the account books of the dissolved partnership were in his custody. On the other hand the defendant alleged that the account books of the dissolved partnership were with the plaintiff.

5. It is necessary to mention here that there was a departure from the pleadings when the parties actually went to trial of the suit. The plaintiff at the trial sought to make out a case that it was not the joint family of his grandfather and father who were the partners with the defendant in the firm Ram Ratan Shyam Manohar but it was Shyam Manohar in his individual capacity who was the partner; while the defendant's case became that it was the joint family consisting of Ram Ratan and his son Shyam Manohar who through Shyam Manohar had entered into partnership with the defendant in the said firm. The parties also filed statement of cases under Order XVIII which were more or less in further amplification of their pleadings and it appears to me what was a simple case was made complicated by introducing to a great extent matter which was prolix and unnecessary. On the pleadings of the parties and the statement of cases and their statements under Order X the learned Civil Judge struck as many as thirty issues, many of them, as they strike me, overlap each other. The judgment of the learned Judge also shows that in arriving at his findings he had to group various issues for consideration. However, the drawing up of issues in such great detail has not prejudiced any party but to my mind fewer well framed issues would have avoided some of the confusion which has arisen in the case as regards the discussion and sifting of evidence.

6. The learned Civil Judge on a consideration of the entire oral and documentary evidence on record came to the conclusion that Shyam Manohar had entered into partnership with the defendant Gopinath in the firm Ram Ratan Shyam Manohar as representing the joint family. He found in favour of the plaintiff that the joint family had invested a large amount of money in the partnership and shortly before its dissolution at least Rs. 48,000/- of the family were invested in the said business. He found that though Smt. Phula Devi executed the agreement dated 3rd August 1935 (exhibit A 6) intelligently but the said agreement was manifestly against the interest of the minor as she had compromised the matter on a very meagre amount although on that day the defendant was liable to pay a far greater amount to the plaintiff. The learned Judge however has not given a definite finding as to the amount invested by the joint family of the plaintiff in the said business nor a definite finding as to what was the amount of the joint family invested in the said business at the time of its dissolution. He has left it for the stage of the final decree for accounting.

The learned Judge repelled the plea of the defendant that the suit was barred by limitation. He held that although Ram Ratan could give a valid discharge to the defendant within the meaning of Section 7 of the Limitation Act yet his failure to do so could not bar the suit inasmuch as a fresh agreement came into existence between Ram Ratan and the defendant that there could not be any final accounting till all the outstandings of the dissolved firm were realised. He further held that the suit was brought by the plaintiff within three years of his attaining majority and he disbelieved the evidence filed on behalf of the defendant to prove that the plaintiff was actually born in 1924 and not in 1927 as alleged by him. On these findings the learned Civil Judge decreed the suit.

7. In appeal before me Sir Iqbal Ahmad, the learned counsel for the defendant appellant, has challenged all the findings of the learned Civil Judge which have been recorded against the defendant. It has been submitted by him that the suit of the plaintiff was manifestly barred by limitation and that in any view of the matter the plaintiff was not entitled to a decree for rendition of accounts inasmuch as Smt. Phula Devi, his certificated guardian, had after fully understanding the accounts and after a complete perusal of the account books made through her brother Mahesh Prasad and her lawyer Chaubey--Krishna Datta had satisfied herself by accepting rupees six thousand and odd in final settlement of the accounts of the dissolved firm and by further agreeing to receive the share out of the unrealised debts as and when they were realised. It is contended that the said agreement was in the interest of the minor and the plaintiff is bound by the same and is not entitled in law to reopen the matter against the defendant by calling upon him to render account fresh.

8. On behalf of the plaintiff respondent the learned counsel Pt. K.L. Misra has submitted that the findings of the learned Judge that the suit was not barred by limitation and that the agreement dated 3rd August 1935 was not binding on the plaintiff and the defendant was liable to render accounts are correct and could be the only findings arrived at on the evidence on record.

9. The two main points which fall for determination in this appeal are : (1) Whether the suit of the plaintiff was barred by limitation and (2) whether the suit of the plaintiff was not maintainable in view of the final settlement of the accounts by Smt. Phula Devi, the certificated guardian of the plaintiff which transaction is evidenced by the deed dated 3rd August 1935 (exhibit A. 6) on record. I shall take up the point of limitation first.

10. The plaintiff in his plaint in para 13 has pleaded that the cause of action accrued to the plaintiff on 16th of July 1948 when the plaintiff attained his majority and on 9th July 1951 when the reply of the defendant to the plaintiff's notice was received by the plaintiff. The suit was filed on 12th July 1951 within three years of the plaintiff attaining majority as alleged by him. The defendant denied the contents of para 13 of the plaint in his written statement. In para 15 of the additional pleas the defendant pleaded that the plaintiff had wrongly stated his age and date of birth and in fact he had attained majority long before July 1948 having become a major since 1944, that is, more than seven years before the filing of the suit. This plea was further elaborated in the statement of the case filed on behalf of the defendant under Order 18, C. P. C.

A further plea was raised in this statement to the effect that after the death of Shyam Manohar on 26th August 1928, the cause of action for rendition of accounts accrued to Pt. Ram Ratan and other members of the joint family and the time began to run against Ram Ratan and members of the joint family including the plaintiff from that date. From the above pleadings it becomes clear that the question of limitation can conveniently be divided into two heads : (1) Whether the time for filing the suit for rendition of accounts began to run against the plaintiff and Pt. Ram Ratan who could give a valid discharge within the meaning of Section 7 of the Limitation Act and the suit not having been brought by Pt. Ram Ratan within three years of the date of dissolution that is the date of death of Shyam Manohar is now barred and (2) Whether the plaintiff attained majority in 1944 and the suit brought by him in the year 1951, that is, after seven years of attaining majority, is barred.

11. In order to properly deal with the above questions it is necessary to mention that the finding of the learned Judge that Pt. Shyam Manohar constituted a joint family with his father, PL Ram Ratan, and that Pt. Shyam Manohar had entered into the disputed partnership with the defendant in a representative capacity and on behalf of the joint Hindu family has not been challenged before me in this appeal.

12. It has been submitted by the learned counsel for the appellant that the suit being one for rendition of accounts of a dissolved partnership would be governed by Article 106 of the Limitation Act and that after the death of Shyam Manohar which took place on 26th August 1928, the partnership in which Pt. Shyam Manohar had entered into on behalf of the joint family in representative capacity having stood dissolved, Pt. Ram Ratan, father of Pt. Shyam Manohar and the grandfather of the plaintiff being a major co-parcener was entitled to institute a suit for rendition of accounts against the defendant and was in a position to give a discharge of the liability of the defendant to render accounts, the time began to run against all the members of the co-parcenery including the plaintiff and the suit not having been filed by Pt. Ram Ratan within three years of the dissolution of the partnership the present suit was barred.

13. It has not been disputed before me that the partnership in question stood dissolved on 26th August 1928 when Pt. Shyam Manohar died. At that time Pt. Ram Ratan was alive and so was the plaintiff who was then a minor. Pt. Ram Ratan died almost six years later, that is, in 1934. The learned trial judge on the evidence on record arrived at a finding that when Shyam Manohar died Pt. Ram Ratan was in his full senses and used to manage the family property and its affairs like a prudent and experienced man and has disbelieved the case of the plaintiff that Ram Ratan was disinterested, unfit and incapable of looking after the family affairs. The learned Judge further arrived at a finding that Pt. Ram Ratan as senior member of the family or as Karta could certainly give a discharge within the meaning of Section 7 of the Indian Limitation Act on behalf of the plaintiff minor. But he repelled the argument that the suit would become barred on that account on the ground that a mutual agreement was arrived at between the defendant and Ram Ratan as the manager of the joint family postponing final accounting for future till the realisation of all the outstandings of the dissolved partnership and since Ram Ratan died in 1934 before all the outstandings were realised no question of filing any suit for rendition of accounts arose and Article 106 of the Limitation Act was not attracted.

14. The learned counsel for the defendant appellant has characterised this part of the reasoning of the learned Judge as spinning out a hew case on behalf of the plaintiff which was never pleaded. The learned Judge has put reliance on a part of the contents of para 8 of the additional pleas of the written statement of the defendant and on another part of the contents of para 9 of the statement of the case filed by the defendant under Order 18, C. P. C. in coming to the conclusion that there was an agreement entered into between Ram Ratan and the defendant that the final accounting shall be postponed till all the outstandings and debts owed to the dissolved firm had been realised. The relevant contents of the above said pleadings have been placed before me. In para 8 of the additional pleas in the written statement what the defendant has said is that he was ever ready to finalise and finish the accounts of the dissolved firm but Pt. Ram Ratan was of the opinion that the account should be finalised when all the debts had been realised and since before that could be done Pt. Ram Ratan died, therefore the defendant despite his keen desire to finalise the accounts could not do the same.

Then in that paragraph the defendant refers to what happened in 1934 and onwards in regard to the accounts of the dissolved firm when Smt. Phula. Devi became the certificated guardian of the plaintiff. In para 9 of the statement of case referred to above the defendant has stated the same thing in other words. It is stated that by April 1930 the winding of the dissolved firm was practically completed but only some outstandings, mostly in form of bad debts remained unrealised when Pt. Ram Ratan agreed that the balance representing his capital covered by the said bad debts be paid after the same were realised and then final settlement will be made. It would be seen that the said statements of the defendant only show that the defendant on his part was ever ready to finalise the accounts but Pt. Ram Ratan was not prepared to finally settle the same and preferred to postpone the settlement of the accounts all the time.

It is difficult to infer from this any intention or volition on the part of Pt. Ram Ratan not to call for accounts from the defendant till the happening of a certain contingency. I am of the view that far from showing any intention on the part of Pt. Ram Ratan not to call for the accounts from the defendant, these statements show that Pt. Ram Ratan did enter into some sort of accounting but was not prepared to give a final discharge to the defendant till all the debts and outstandings owed to the firm had been realised and accounted for. Neither in my opinion this would incapacitate Pt. Ram Ratan to file a suit for rendition of accounts, of the dissolved partnership nor will that prevent the running of time against Pt. Ram Ratan and other members of the joint family. Indeed the learned counsel for the respondent has not seriously supported the findings of the learned Judge on this ground.

From the abovesaid pleadings it is not possible to spell out a case of any agreement giving rise to a fresh contract between the parties. Even if it be assumed that there was a fresh contract then, the present suit not having been filed on the basis of the so called contract but for the rendition of accounts of the dissolved partnership would be governed by Article 106 of the Limitation Act. If, of course. Ram Ratan could give a valid discharge within the meaning of Section 7 of the Limitation Act, time will begin to run against Ram Ratan and the plaintiff and the agreement if any would not in law stop the running of time.

15. The learned counsel for the respondent has urged that as partnership is essentially a creature of contract so as far as the partnership was concerned Shym Manohar must be taken to be a partner as an individual and the right to file a suit for rendition of accounts would accrue to his natural heir and legal representative under the Partnership Act and not to Pt. Ram Ratan as Karta or head of the joint family of which Shyam Manohar was a member even though the assets of the joint family were invested by Shyam Manohar in the partnership and therefore Ram Ratan could not give a valid discharge within the meaning of Section 7 of the Limitation Act. Reliance has been placed by the learned counsel on certain observations made by their Lordships of the Supreme Court in the case of Commr. of Income-tax Bombay v. Nandlal Ganda Lal : [1960]40ITR1(SC) wherein it is observed as follows :

'The position in Hindu Law with regard to a co-parcener, even when he is the Karta, entering into partnership with others in carrying on a business is equally well settled. The partnership that is created is a contractual partnership and will be governed by the provisions of the Indian Partnership Act, 1932. The partnership is not between the family and the other partners; it is a partnership between the co-parcener individually and his other partners...... the co-parcener is undoubtedly accountable to the family for the income received, but the partnership is exclusively one between the contracting members, including the individual co-parceners and the strangers to the family. On the death of the coparcener the surviving members of the family cannot claim to continue as partners with strangers nor can they institute a suit for dissolution of partnership; nor can the stranger partners sue the surviving members as partners for the co-parcener's share of the loss. Therefore, so far as the partnership is concerned, both under Partnership law and under Hindu law, the control and management is in the hands of the individual co-parcener who is the partner and not in the family.'

16. The above exposition of the legal position is not disputed by the learned counsel for the appellant but he urges that the argument of the learned counsel for the respondent that Ram Ratan as the head of the family could not have filed a suit for rendition of accounts of the dissolved partnership against the defendant is not supported bythe above said observations of their Lordships of the Supreme Court The learned counsel for the respondent further submits that a suit for rendition of accounts of a dissolved partnership will be governed by the provisions of the Indian Partnership Act 1932, and since other co-parceners of Shyam Manohar could not be, in law, the partners of the dissolved firm, and they being strangers had no right to file a suit for the rendition of accountsof the dissolved partnership. It is urged that a suit for accounting against a partner is based on a contractual liability and since Ram Ratan was not a partner and there being no contractual relationship between him and the defendant, Ram Ratan could not have brought a suit for accounting.

On the other hand my attention has been drawn by the learned counsel for the appellant to the case of firm Bhagat Ram Mohan Lal v. E.P.T. Commr : [1956]29ITR521(SC) . of the report it has been observed as follows :

'It is well settled that when the Karta of a joint Hindu family enters into a partnership with strangers, the members of the family do not 'ipso facto' become partners in that firm. They have no right to take part in its management or to sue for its dissolution. The creditors of the firm would no doubt be entitled to proceed against the joint family assets including the shares of the non-partner co-parceners for realisation of their debts. But that is because under the Hindu Law the Karta has the right when properly carrying on business to pledge the credits of the joint family to the extent of its assets, and not because the junior members become partners in the business. In short, the liability of the latter arises by reason of their status as co-parceners and not by reason of any contract of partnership by them.'

17. On the basis of the above observation it is urged that if the creditors of the dissolved firm in such circumstances can realise their debts by filing a suit against the surviving members of the joint family it is equally open to the members of the joint family to recover the assets of the joint family which were invested in a partnership business from the partners after that partnership stands dissolved and in which the Karta of their joint family was a partner having pledged the credit of the joint family. It would be noticed that neither in the case of firm Bhagat Ram : [1956]29ITR521(SC) nor in the case of Commr. of Income-tax v. Nandlal Ganda Lal AIR I960 SC 1147 referred to above, have their Lordships of the Supreme Court expressed any opinion with regard to the right of the surviving co-parceners to file a suitfor rendition of accounts against the survivingmembers of the partnership in which the Karta oftheir family was a partner and the partnershipstood dissolved as a consequence of the death ofthe said Karta. What their Lordships of theSupreme Court have laid down is that the membersof the joint family in such a case cannot take partin the management of the partnership and theycannot file a suit for dissolution of the partnership.

Under Section 46 of the Indian PartnershipAct of 1932 on the dissolution of a firm everypartner or his representative is entitled as againstall other partners or their representatives to havethe surplus distributed amongst the partners or theirrepresentatives according to their rights. It isobvious that the surplus, if any, can only be foundout after accounting has been taken from themanaging partner or the partner or partners inwhose possession the assets of the partnershipremain after it has been dissolved for distribution, according to their rights. The representative of Shyam Manohar had a right in law to have the surplus assets of the dissolved partnership in the hands of the defendant distributed according to the share of Shyam Manohar in the partnership and to trace the same, in my opinion, the representatives' of Shyam Manohar were entitled to tile a suit against the defendant for rendition of the accounts of the dissolved partnership. The problem therefore reduces itself to this : whether Pt. Ram Ratan and the plaintiff as the surviving co-parceners in the joint family could be said to be the representatives of Pt. Shyam Manohar, under Section 46 of the Indian Partnership Act.

18. It cannot be disputed that after the death of one co-parcener of a joint Hindu family the surviving co-parceners get the property by right of survivorship and they would be the legal representatives of the deceased co-parcener within the meanins of Section 2 Sub-section (II), C. P. C. See Gyan Datt v. Sadanand Lal : AIR1938All163 . In the case of Babu v. Official Assignee Madras their Lordships of the Board have explained the right of the representatives of the deceased partner to the assets of the partnership as one of property and not merely resting on contract and have held that the surviving partners who have the right and duty to realise the partnership property, hold a fiduciary relationship towards the deceased partner's representatives as regards his interest in the partnership property though the latter have no such right in any individual asset of the partnership property as will entitle them to interfere with the surviving partners rights to deal and dispose of any such asset for the purpose of realisation.

It would follow from this that Pt. Ram Ratan and the plaintiff as surviving co-parceners being the representatives of Pt. Shyam Manohar their right to the assets of the dissolved partnership after the death of Shyam Manohar was one of property and even though there was no contractual relationship between them and the defendant the surviving partner, Ram Ratan as representing the joint family could have filed a suit for rendition of accounts and obtain from the defendant the assets of the dissolved partnership in proportion to the share of Shyam Manohar in the profits if any, which could only be determined on accounting. I do not agree with the contention of the learned counsel for the respondent that Ram Ratan had no right to file a suit for accounting against the defendant.

In the case of Sambasiva Ayyar v. Natesa Ayyar, AIR 1938 Mad 388 a Bench of the Madras High Court has held that when the assets of a joint Hindu family are in the hands of a stranger on the dissolution of a partnership in which the family was a partner, any member of the family who is entitled to a share in the assets has a right to Recover his share of the assets and if it is necessary for the purpose of ascertaining such share to take an account such account has to be taken by the Court at the instance of the plaintiff. I have no doubt in my mind that the true position in law is that Pt. Ram Ratan had a right to recover the assets of the joint family invested by Shyam Manohar in the dissolved partnership as representing the joint family and for ascertaining those assets a suit by him for rendition of accounts against the defendant could have been legally maintainable.

19. It is then urged by the learned counsel for the respondent that even if Ram Ratan could file such a suit, he had no joint right with Satish Chandra, the plaintiff, hence Section 7 of the Limitation Act in terms would not apply to the circumstances of the present case. It is difficult for me to agree with this submission of the learned counsel. Pt. Ram Ratan after the death of Pt. Shyam Manohar was the only adult male member surviving. The plaintiff himself was a minor. The learned Judge of the Court below has further found that it was Pt. Ram Ratan who managed the affairs of the joint family intelligently and prudently after the, death of Shyam Manohar. Ram Ratan was thus an active head of the family and was in a position to look after the- interest of the minor coparcener. It has not been disputed by the learned counsel for the respondent that had the 'plaintiff been a major at that time he could also have filed a suit for rendition of accounts if Pt. Ram Ratan as the managing member of the joint Hindu family had not done so. In these circumstances since Ram Ratan and the plaintiff Satish Chandra were entitled to the assets in the dissolved partnership representing the shares of the profits of Pt. Shyam Manohar by right of survivorship they both would, to my mind, be covered by the expression 'persons jointly entitled to sue' used in. Section 7 as both would have mutual rights in the assets of the dissolved partnership by right of survivorship.

20. The next argument which has been advanced on behalf of the respondent is that assuming Ram Ratan could give a valid discharge then he had a right to postpone the accounting and agree to a final settlement on the happening of certain contingency and since he did so he was not in a position to give a valid discharge unless that contingency happened and the time would not run against him. The learned counsel relies on the words 'but where no such discharge can be given time will not run as against any of them', occurring in Section 7 of the Limitation Act and submits that the language used is intended to include any kind of inability on the part of any person to give a valid discharge and time will not run. If I understand this line of argument correctly what is meant is that the language visualises not only the legal capacity or incapacity to give a discharge but also physical capacity or incapacity or capacity or incapacity arising out of other circumstances such as brought about by contract or other kind of Volition on the part of any party.

No authority has been cited before me in support of this proposition. In fact this is the same argument on the basis of which the learned Judge repelled the contention of the defendant under this head but put in another form. To my mind under the said Section 7 the capacity or incapacity to give a discharge is intended to relate to legal capacity or incapacity. If there is any physical circumstance which the law takes into consideration as involving legal incapacity, then certainly it is contemplated under this section, for instance, lunacy, minority or some such thing. These are well recognised legal incapacities which disable a person from entering into a contract, agreement or any transaction. It is not the case of the plaintiff respondent that Pt. Ram Ratan was under some legal incapacity and could not have given a valid discharge. Even if it be held that Pt. Ram Ratan entered into an agreement postponing the accounting it will not have the effect of derogating from his legal capacity to give a valid discharge. If he did so he did it at his own risk and the running of time, to my mind, cannot stop against the plaintiff appellant for that reason alone.

A reference may be made in this connection to Section 9 of the Limitation Act which prescribes, that once time has begun to run, no subsequent disability or inability to sue stops it. I, therefore, do not agree with the contention of the learned counsel for the respondent that on account of the so called mutual agreement between Ram Ratan and the defendant postponing the final Settlement of accounts time would not run against 'Ram Ratan and the plaintiff and the cause of action for filing a suit for rendition of account Could accrue to the plaintiff only after the death of Pt. Ram Ratan.

21. As regards the question whether the suit was filed within three years of the plaintiff attaining majority it has to be borne in mind that it is for the plaintiff to show that the suit is within limitation and it is the allegation in the plaint which will govern limitation. The plaintiff, therefore, has to prove that he' attained majority within three years of the filing of the suit as alleged in the plaint. The case of the plaintiff is that he was born on 16th July, 1927. Therefore, it has to be seen whether the plaintiff has proved by cogent evidence on record that he was born on 16th July 1927 as alleged by him. The learned Judge of the lower court has considered this question in issue No. 6 along with issues Nos. 15 and 16 which related to the question of limitation. On a consideration of the entire evidence on record relating to the date of birth of the plaintiff the learned Judge came to the conclusion that the plaintiff was born in Farrukhabad city on 16th July 1927 and that he attained the age of twenty-one years on 16th July 1948.

22. The learned counsel for the appellant has challenged the above finding of fact and has urged that the conclusions drawn by the learned Judge are based on incorrect and unwarranted considerations. It has been submitted that the onus that the suit was within Limitation being always on the plaintiff if the evidence on record conclusively does not establish the date of birth of the plaintiff and the evidence is conflicting it should be held that the plaintiff has failed to discharge the burden and the defendant is not required to establish conclusively that the plaintiff was not born on 16th July 1927 but was born sometime in 1924. I think this submission of the learned counsel has some force and although when the evidence has been led by parties which is on record, the question of onus remains hardly material yet the evidence on record has to be scrutinised and weighed in order to judge whether it is of such a nature that it conclusively establishes the plaintiffs case.

23-29. The plaintiff's case on this point was that his father Pt. Shyam Manohar had only two issues from his mother Smt. Phula Devi, the first child being a daughter born in 1925 and the second child being the plaintiff born on 16th July 1927 in Farrukhabad city. The defendant's case on the other hand was that Pt. Shyam Manohar had three children through Smt, Phula Devi, the eldest being the plaintiff and the latter two being daughters, the last of whom was born on 16th July 1927 and died later on. Thus it would be seen, that it is the common case of the parties that a child was born to Pt. Shyam Manohar through Smt. Phula Devi on 16th July 1927. (His Lordship considered documentary evidence on 'his question and proceeded :)

Further in support of the date of birth as alleged by the plaintiff reliance has been placed on the application exhibit 12 which was made for appointment of Smt. Phula Devi as guardian of the plaintiffs in which the plaintiffs date of birth is entered as 16th July 1927 and it has been submitted that that application having been made in 1934, there was no motive then for giving a false date of birth and it would be good evidence of the date of plaintiff's birth being admissible under Section 157 of the Evidence Act.

Reliance in this connection has been placed on the case of Har Chand v. Dewan Singh : AIR1929All550 wherein it has been held that a verified application formerly made by a guardian, containing his ward's date of birth, is admissible under Section 157 of the Evidence Act and the guardian is entitled to refresh his memory from that document. I do not think that merely because the verified application for appointment of guardian is admissible under Section 157 of the Evidence Act that by itself would afford an evidence in proof of the age or the date of birth mentioned therein. Such an application would be of some use only for corroborating the testimony of the guardian who verified the same. It follows, therefore, that this application cannot have any evidentiary value independent of the evidence of Smt. Phula Devi who was the guardian on the question of the date of birth of the plaintiff. (And after a further consideration of evidence his Lordship concluded :) As a result of the discussion given above I hold that the plaintiff's evidence falls far short of proving that he was born on 16th of July 1927 as alleged by him and on the other hand circumstances show that he had become a major at least by the year 1944.

30. The last argument advanced by the learned counsel for the respondent in regard to the question of limitation is that by virtue of Section 88 of the Trusts Act (No. 2 of 1882) the assets in the hands of the defendant representing the share of Shyam Manohar in the profits were held by the defendant in a fiduciary capacity on behalf of the plaintiff and further that as there is evidence on record that the defendant earned pecuniary gain by selling after the death of Shyam Manohar a large quantity of cloth purchased from partnership funds the suit to recover those assets could not be a suit for rendition of accounts of a dissolved partnership but would be a suit to recover the benefit accrued to the plaintiff and would not be governed by Article 106 of the Limitation Act but would be governed by Article 120 of the Limitation Act This argument should not detain me long. Firstly even assuming that Article 120 were applicable the plaintiff ought to have proved that he filed the suit within six years of his attaining majority and I have already held that on the material on record the plaintiff had attained majority sometime by the year 1944.

Secondly, the question of limitation is governed by the allegations in the plaint and as the plaintiff came to the Court for a relief for rendition of accounts of the dissolved partnership and specifically pleaded that he attained majority in July 1948 and the suit was filed within time, he cannot be allowed to change his case. To say now that the plaintiff is entitled to call upon the defendant to render accounts of the sale transactions after the death of Shyam Manohar that is for the business carried on by defendant after the partnership stood dissolved is to change the entire nature of the suit and the claim.

31. But the main difficulty which I find in this argument of the learned counsel for the respondent is that it is based on an incorrect appreciation of the true legal position. In which I have already noticed above, their Lordships of the Privy Council have emphasised that the partners of a firm hold a fiduciary relationship towards their deceased partner's representatives as regards his interest in the partnership property. Section 88, to my mind, only gives a statutory recognition to this principle. If the properties or assets or the pecuniary advantage or gain are known, then the suit to recover the same would be a simple suit for money and would be governed by the relevant articles of the Limitation Act. If, however, the profits, or the pecuniary advantage or gain can only be determined after taking the account of the dissolved partnership, then the suit for rendition of account would be governed by Article 106 of the Limitation Act. By applying the provisions of Section 88 of the Trusts Act, I do not see how the nature of the suit would change.

Article 106 of the Limitation Act prescribes the limitation for any suit for rendition of accounts of a dissolved partnership and it will govern a suit even by a representative of a deceased partner against the surviving partners who hold the assets in a fiduciary capacity. A reference in this connection may be made to the case of Peeran Sahib v. Pedda Jamaluddin Sahib AIR 1958 Andh 48 and to the case of Kashi Ram v. Kundan Lal : AIR1956All660 . The ratio of the decision in the said two cases, to my mind, completely negatives the contention of the learned counsel for the respondent. For all the reasons given above I hold that the plaintiff's suit is barred by limitation.

32. Now I come to the second point regarding the binding nature on the plaintiff of the deed dated 3rd August 1945, exhibit A. 6, on record. Since I have held that the suit of the plaintiff as barred by limitation, it is hardly necessary for me to record my findings on this point. However, as the arguments at the bar have been addressed to me by the learned counsel for the parties at great length on this question and my judgment is appealable, I think in fairness to the parties I should record my findings on this question also.

33. Shyam Manohar, father of the plaintiff, died on 26th August 1928. It has been found by the learned Judge and this has not been disputed before me, that after the death of Shyam Manohar, plaintiff's grandfather, Rain Rattan managed the affairs of the joint family. Ram Ratan also died in July 1934. Soon after the death of Ram Ratan, Smt. Phula Devi the mother of the plaintiff was appointed the guardian of the person and property of Satish Chandra plaintiff by the District Judge of Farrukhabad. As a certificated guardian Smt. Phula Devi applied to the learned District Judge for the settlement of the accounts of the dissolved firm Ram Ratan Shyam Manohar. The learned District Judge made an order on 27-7-1935 that the guardian should do her duty and should understand the accounts. This order was passed by the learned District Judge after a report on the application of Smt. Phula Devi had been put up before him. A copy of the order is exhibit A. 30 on record:

It further appears that Smt. Phula Devi engaged Chaubey Krishna Datt, a legal practitioner and instructed him specifically to examine the accounts, Mahesh Prasad, maternal-uncle of the plaintiff, was all along advising Smt. Phula Devi in the matter. Then on 3rd August 1935 Smt. Phula Devi as guardian of the plaintiff executed a document which is in the nature of a deed of discharge and is exhibit A. 6 on record. This document was drawn up alt the residence of Smt, Phula Devi and was written by Suraj Prasad, a document writer of Farrukhabad. It also bears the signatures of Chaubey Krishna Datt Vakil, Mahesh Prasad, Chhannu Lal, Ram Dulare, Ram Swarup and Ganga Saran as witnesses. Out of the above said witnesses to this document Chhannu Lal and Ram Swarup are dead. Chaubey Krishna Datt and Mahesh Prasad have appeared as witnesses on behalf of the plaintiff and they admitted their signatures on this document, while Ram Dulare and Ganga Saran have appeared as witnesses on behalf of the defendant and admitted their signatures. The scribe of this document Suraj Prasad is also dead. The defendant examined one Raj Kumar who was art apprentice of the said Suraj Prasad at the time when this document was executed. Smt. Phula Devi has also admitted her signatures on this document. The defendant also examined Sri Krishna Lal, who was the Sub-Registrar bf Farrukhabad at the time to prove the due execution of the document.

34. The relevant recitals in the above said deed show that a sum of Rs. 5629/8/9 towards the principal and Rs. 851/4/6 by way of interest till that day in respect of the accounts of the Firm Ram Ratan Lal Shyam Manohar Lal were found due from Lala Gopinath to the minor and a further sum of Rs. 410/12/6 due to the minor were in deposit in the firm owned by Lala Gopinath, known as Damodardas Gopinath and Rs. 57/3- was the interest on that amount and as such Satish Chandra, minor, was entitled to get a sum of Rs. 467/15/6 from Damodardas Gopinath firm as well and the minor was in that way entitled to get in all a sum of Rs. 6948/12/9 from Laia Gopinath aforesaid. It is further recited in the said deed that the executant had got the account books inspected through her Vakil Chaubey Krishna Datt and she too had fully understood the accounts and had got herself fully satisfied through her brother Mahesh Prasad and that no claim in respect of accounting then remained.

Then it is recited that besides the above sum and certain other debts due by the firm Ram Ratan Shyam Manohar from certain other persons whose list was given in the deed no other amount was due to the minor from Gopinath and out of the debts detailed below due from others if and when any amount were to be realised, then Satish Chandra minor shall be entitled to receive half the amount. The executant then recites that she had therefore while in a sound state of body and mind, and while in her proper senses, after receipt of the sum of Rs. 6948/12/9, the entire amount found payable after the account of the accounts (of ?) firm Ram Ratan Shyam Manohar Lal and the amount in deposit with the firm Damodardas Gopinath with interest upto-date in cash by means of a cheque No. 49487 of date, drawn on the Imperial Bank Farrukhabad, from Lala Gopinath aforesaid, at the time of registration, dissolved the partnership of the firm Ram Ratan Lal Shyam Manohar Lal. Now not a shell remained due to the minor from Gopinath. It was stipulated that when the whole or any portion of the debt or debts detailed below was realised by Lala Gopinath or the heirs of Lala Gopinath, Satish Chandra, minor, shall be entitled to get half of that amount. The last recital is that the executant had therefore executed the deed of Farkhati so that it may serve as evidence and be of use at the time of need.

35. From the description of the relevant recitals in the above said deed it would appear that Smt. Phula Devi had with the assistance of her Vakil Chaubey Krishna Datt and her brother Mahesh Prasad understood the accounts, and then executed the deed after receiving the amount found due from Lala Gopinath by means of a cheque in full discharge of the liability of Lala Gopinath representing the share of profits of Shyam Manohar in the dissolved firm. The tenor of the deed shows that the accounts had been gone into in detail and the mention of the detailed list of the debts due by other persons to the firm which formed a part of the recital of the deed further confirms the circumstance that the account books of the firm must have been examined before drawing of the list of debts. This suit questioning the transaction evidenced by the said deed has been filed about sixteen years after its execution and by the time the parties led evidence in respect of its preparation and execution another four years had passed. In these circumstances I think I would be justified in approaching the matter with this point of view that the recitals in the deed in question assumed greater importance and cannot lightly be set aside and the relevant recitals referred to above should be accepted as evidence embodying a correct statement of facts if they are found to be consistent with the probability and circumstances of the case. In my opinion, therefore, cogent and clear evidence is required to hold that the said instrument is not what it purports to be. It is obvious that the plaintiff cannot call upon the defendant to render accounts afresh of the dissolved partnership if this document operates as a good and valid discharge of the liability of the defendant.

36. The plaintiff's case originally in the plaint was that Smt. Phula Devi who was a Pardanashin lady was made to execute this document and give a discharge to the defendant on account of fraud played upon her by Mahesh Prasad and the defendant and on account of undue influence brought to bear upon her by Mahesh Prasad. Later on, however, the plaintiff applied for the amendment of the plaint which was allowed and it was pleaded that Smt. Phula Devi did not understand the accounts properly and executed the deed carelessly and negligently and the transaction not being for the benefit of the minor was not binding on the plaintiff. All these allegations in respect of fraud, undue Influence, negligence and carelessness were denied by the defendant and it was pleaded that the deed was executed after a proper and careful examination of the accounts and was for the benefit of the minor. At the trial the case based upon fraud and undue influence was given up by the plaintiff and his case remained confined to the alleged negligence on the part of the guardian and that the transaction was not for the benefit of the minor. The learned Judge of the Court below found in favour of the plaintiff and being of the view that Smt. Phula Devi in giving the discharge by executing the disputed deed of 3rd August 1935 acted with gross criminal negligence to the detriment of her minor ward held that in those circumstances the plaintiff was entitled to get disputed settlement set aside and that the transaction was not at all binding upon the plaintiff.

37. The learned counsel for the appellant has challenged the above findings of the learned Judge and has characterised them as being based on mere conjectures and vitiated by an erroneous approach, while the learned, counsel for the respondent with equal vehemence has submitted that these could be the only findings arrived at on the evidence on record. The plaintiff's case in this respect is that a sum up to the extent of about rupees sixty thousand was invested by the joint family in the partnership Ram Ratan Lal Shyam Manohar Lal and at the time when Shyam Manohar died in July 1928 a sum of more than rupees forty thousand was Invested and since Smt. Phula Devi, his certificated guardian, settled the accounts by accepting a very small amount from the defendant in the final discharge of his liability, the transaction was against the interest of the minor having been entered into negligently and carelessly.

38. The learned Judge of the Court below has found that the act of execution of the document in question was an intelligent act on the part of Smt. Phula Devi but then he observed that to bind the minor ward by the act or deed of certificated guardian mere proof of intelligent execution of the deed by the guardian is of no consequence, it must further be proved that the disputed transaction was for the benefit of the minor or minor's properties. Then the learned Judge has gone on to observe that if it is proved in the case or a reasonable doubt is created that a very large amount was due to the minor then Smt. Phula Devi's act in giving discharge by accepting only a nominal sum and giving up the balance can by no process of reasoning be held to be binding on the minor plaintiff.

39. It has been urged on behalf of the appellant that the approach of the learned Judge in considering the binding nature of the transaction in dispute is legally erroneous. It is submitted that merely on probabilities that a far larger amount was due, the transaction in question cannot be avoided. What has to be proved by cogent evidence is that there was a far larger amount due and the burden lay on the plaintiff who seeks to avoid the transaction and reopen the accounting to establish a positive case that the transaction entered into by the certificated guardian was unconscionable and was not for his benefit. It has been further urged that the learned Judge having found that the execution was an intelligent act on the part of the guardian and she understood the contents of the document, it is implied that the discharge was given to the defendant in full settlement of the accounts by the certificated guardian after fully satisfying herself as to the correct position. The learned counsel for the respondent has submitted that it is for the defendant appellant who relies on the transaction which was entered into by a Purdahnashin lady to prove that the transaction was for the benefit of the minor and If on the evidence on record and under the circumstances of the case even it be established that there was a probability that a larger amount was due then the defendant should be held to have failed to discharge the heavy onus which lay on him.

40. It was conceded on behalf of the defendant in the Court below that Smt. Phula Devi was a Purdahnashin lady. The defendant was dealing with Purdahnashin lady when he entered into the transaction in question in the year 1935 and obtained a full discharge as regards his liability. The defendant is relying on the document evidencing the said transaction. The legal position in respect of documents executed by a Purdahnashin lady has been clearly and lucidly enunciated in the case of Mt. Abbasunnisa v. Mt. Nisar Fatma, : AIR1946All121 , wherein Malik. J. has summarised the law as follows :

41. Whenever a document executed by a Purdahnashin woman is relied upon in a Court of law, it is necessary for the plaintiff to prove not only its execution by her but that the document was executed by her after having fully understood its contents. The simpler and more straightforward a transaction and the language of the deed, the lighter is the burden on the person relying on the same. The more complex the transaction or more obscure the language or more complicated the rights affected by the transaction the heavier would he the burden to prove that a Purdahnashin woman knew what she was about and fully understood the nature of the transaction and the rights affected thereby. In the case of a document executed by a person other than a Purdahnashin woman all that a person relying on the deed has to do is to prove its due execution and it would then be for the executant to prove the circumstances which would make the document invalid or not binding on him, by reason of the fact that his consent was obtained by fraud, undue influence or under duress or on any other ground. In the case of document executed by a Purdahnashin woman it is not enough to prove mere execution by her but it is further necessary to prove that she understood what she was doing. In the off-quoted words of the Privy Council it should be not only her physical act but her mental act as well. The quantum of proof required would vary from case to case according to the nature of the document relied upon, the language in which it was couched and the proof of the capacity of the woman to understand its contents.

42. The above exposition of law was quoted with approval by a Division Bench of the High Court in the case of Fatima Sughra Bibi v. Mt. Anwar Fatima Bibi, 1954 All LJ 488 at p. 491. It becomes, therefore, clear that it was for the defendant to establish that the document in question was not only duly executed by Smt Phula Devi but it was her mental act, that is, she executed it with a full understanding as to its contents and legal effect. I have summarised above the relevant recital of the deed in question. The language used is clear and there is no ambiguity or complexity. The transaction which it evidenced has no complexity and it was a simple matter of settling the accounts and giving a final discharge to the defendant. The language of the deed itself shows that 'Smt. Phula Devi received independent advice in the matter, namely, that of her Vakil Chaubey Krishna Datt and her brother Mahesh Prasad. The learned Judge of the Court below has recorded a finding that on a consideration of all the material on record it was an intelligent act on the part of Smt Phula Devi. This finding has not been challenged before me. That learned Judge of the Court below has further observed that Smt. Phula Devi impressed him in her statement before the Court as an intelligent lady having sufficient knowledge of human affairs and transactions. The plaintiff had given up his case that any undue influence was brought to bear upon her or any fraud was played. In these circumstances I have no hesitation in holding that the defendant has discharged his onus satisfactorily, that Smt. Phula Devi had intelligently executed the document after understanding its full legal effect and the legal implication involved.

43. I am unable to agree with the contention of the learned counsel for the respondent that onus was also on the defendant to prove that the transaction entered into was for the benefit of the minor and did not suffer from any of the legal defects which would affect or destroy its binding nature. I To my mind, once the due execution of the document as being the intelligent act of Smt. Phula Devi is established the onus would be on the plaintiff to establish all those circumstances which would destroy its binding nature on the plaintiff before he can ask the Court to ignore it. In the case of Baboo Lekh Raj Roy v. Baboo Mahtab Chand, 14 Moor Ind App 393 (PC) where a compromise entered into by a guardian on behalf of the minor was challenged on the ground that the suit in which that compromise was entered into was a fictitious one being in respect of a debt which actually did not exist, their Lordships of the Privy Council have observed as follows :

'In this case, however, they are of opinion, that the Judge of the Zillah Court fell into an error in point of law, in assuming that the burden of proof of the debt lay upon the defendant The burden of proving his allegations that the suit was fictitious and the compromise fraudulent and coercive lay upon the plaintiff; and an element in that proof, without which his case amounted to nothing, was the non-existence of a debt. It rested, therefore, with him to give, at all events some prima facie evidence of this before the burden of proof was shifted to the defendant.'

44-49. In the present case before me one of the elements on which negligence has been attributed on the part of Smt. Phula Devi is based on the assertion by the plaintiff that a far larger amount almost to the extent of more than forty thousand was due by the defendant on the date when Shyam Manohar died and inasmuch Smt. Phula Devi as guardian settled the same for a pittance the transaction was to the detriment of the minor. It becomes necessary, therefore, to consider the case of the plaintiff whether he has at all events prima facie established that a large sum was due. (After considering the material on record his Lordship concluded); For all these reasons I would hold that even if it were established as a fact that a larger amount was due then the amount at which Smt. Phula Devi as a guardian gave the discharge, the transaction itself would not be a mala fide act on her part and I do not agree with the view of the learned Judge in characterising Smt. Phula Devi's conduct in this connection as one of criminal negligence. I think the learned Judge has unnecessarily used strong language. From the evidence on record and the circumstances of the case any inference that Smt. Phula Devi was negligent, is unwarranted.

In the 'case of Subbareddi v. Kotamma, 14 Mad LJ 442 this principle has been enunciated that when a state of facts is accepted as a basis of compromise, parties cannot be afterwards allowed to say the real state of things was otherwise. In that case it appears that an arrangement was arrived at by the guardian compromising the matter by obtaining a part of the estate for the minor but it was later on found that the minor was entitled to the whole property and when the minor as the plaintiff challenged the arrangement arrived at by the guardian on that ground, it was repelled. The question, therefore, to be considered in such matters always is to find out as to what were the circumstances prevailing at the time when the guardian entered into a compromise or arrangement and if these circumstances are of such a nature which would not throw any doubt on the bona fides of the guardian then merely because afterwards it could be established by the minor that the real state of things was otherwise be is not entitled to avoid the arrangement.

50. I am, therefore, of the opinion that the deed of discharge exhibit A.6 executed by Smt. Phula Devi on 3.8/35 is binding on the plaintiff and the present suit for rendition of accounts, is not maintainable.

51. The learned counsel for the appellant has further sought to argue that after giving notice to the defendant as the plaintiff accepted a cheque of Rs. 720/13/- from the defendant representing his share in the realisations of the debt owed to the partnership in accordance with the terms of the deed exhibit A.6 without any protest the plaintiff for that reason is estopped from filing the present suit. I do not agree with this contention of the learned counsel. This circumstance does not, to my mind, operate in any way to have brought, about any prejudicial change in the position of the defendant on the basis of any representation or conduct of the plaintiff. The defendant was under a duty to pay the sum in accordance with the terms of the deed executed by Smt. Phula Devi on 3-8-1936. If the plaintiff accepted the same without any further representation or any such conduct on his part which went to show that he was accepting it in accordance with the terms of the arrangement arrived at by his guardian, it would be deemed in the circumstances that the plaintiff accepted the amount as a part of the amount to which he was legally entitled representing the shares of profits of his father Shyam Manohar in the assets of the dissolved partnership. This acceptance on the part of the plaintiff, to my mind, does not bring about any change in the circumstances to the disadvantage of the defendant. I, therefore, hold that the claim of the plaintiff is not barred by estoppel.

52. The result, therefore, is that this appeal succeeds. The judgment and the decree of the Court below are set aside and the plaintiff's suit is dismissed with costs throughout.


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