1. I review of Facts leading up to the Institution of the suit.
1. The facts out of this, litigation arise may be stated as follows. About the, end of the year 1900 there were living in Agra four brothers, named Anandi Lal, Narain Das, Ram Dayal and Sham Lal, After the death of their father in the preceding year there had been a separation, accompanied by a complete partition of the joint family assets, between the, brothers. This, again, was speedily followed by a business partnership between Anandi Lal and Ram Narain. No deed of partnership was ever drawn up, but the two brothers undoubtedly re-united in business, while maintaining their status as separated Hindus. Early in 1901 Anandi Lal fell into ill health; reading between the lines of the evidence it seems fairly clear that he was suffering from consumption, and knew it. On May 29th, 1901, he drew up his last Will and testament, which was presented for registration two days later at his residence in the City of Agra. It is admitted that this document (page A 23 of our record) was executed by Anandi Lal and that the following persons signed it as attesting witnesses: Narain Das and Ram Dayal (two of the brothers), also Dwarka Das, Damodar Das, Makhan Lal, Ghasi Ram and Badri Das. The document begins by reciting the existence of a business partnership between the executant and Narain Das in four specified shops, in which the interest of Anandi Lal is ten-sixteenths and that of Narain Das is six-sixteenths. It then declares that the heirs of the executant, both in respect of his interest in the aforesaid business and in all his other properties, are his wife, Musammat Chameli, and his son Faqira, now two months old. It then proceeds to create an elaborate trust for the benefit of the said 1+aqira, or Faqir Chand, appointing as trustees Narain Das (the brother) and four of the attesting witnesses, namely, Makhan Lal, Damodar Das ('who is my relative'), Dwarka Das and Ghasi Ram 'who is my old karinda and a very honest man in whom I have great confidence.' The trustees are to see to it that the partnership business is carried on until Faqira attains majority and elaborate instructions are laid down for their guidance. Provision is made for contingencies which never in fact occurred, such as the premature death of Faqira, the adoption by Musammat Chameli of another son, or the death of that lady herself. Musammat Chameli takes a monthly allowance of forty rupees, with a lump sum in the event of her desiring to go on pilgrimage; the remaining assets are to be held in trust wholly for the benefit of the minor son. In no event, not even if faqira should die and no son be adopted, in his place, shall Musammat Chameli 'have any power or right to interfere with my business in any way.' The executors or trustees may fill up vacancies in their own body caused by death. They are to see the business carried on 'with their advice, consultation and unanimity. They should watch and protect the whole of my property, and no such measure should be adopted as may lead to the waste of any part of my money or property.' Only in certain specified eventualities are they empowered to dissolve the business partnership. In the meantime, they 'should keep defraying the expenses incurred in maintaining Faqira, my minor son, and imparting education, etc., and also the proper expenses incurred in marriages, funerals, illness, etc.'
2. There has been some little controversy before us as to how far the persons who signed this document as attesting witnessed are affected with notice of its contents. I think I may dispose of this point briefly and at once. On the pleadings and the evidence, as well as in consideration of the manifest probabilities of the case, I have no doubt that the trustees or executors famed in the Will, when they attested this document, did so with will knowledge of the trust thereby created and of their own appointment as executors: also, that by signing it they intended to signify, and did in fact signify, their own acceptance of the trust. It is a more arguable point how far any of them, and more particularly Narain Das and Ghasi Ram, are bound, in virtue of their signatures, to an admission of any recitals ,in the deed regarding the nature and extent of the partnership business, or of Anandi Lal's share in the same. I note, however, that the more material points, such as the designation and location of the four shops and the specifications of the shares of Anandi Lal and Narain Das, are admitted in the pleadings. The question of the accuracy of Anandi Lal's assertion that his personal share in the partnership capital amounted to Rs. 58,000 on the date of the Will, does not arise at the stage which the litigation has now reached.
3. Anandi Lal died on the 13th October 1901. It is alleged by the defendants to this suit that, in the interval, namely, on the 27th June 1901, he and Narain Das executed, each in favour of the other, two unregistered documents (Exhibits A and B, pages 25 and 26R) which materially modified the conditions of the partnership. The defendants are put to proof of these documents and the question whether they have proved the same will be discussed in due course.
4. In the month of October 1905 Narain Das was on his death-bed, and he died on the 23rd of that month. Two days previously he executed three documents around which the controversy in this litigation largely hinges; they were presented for registration by Narain Das at his own residence in the City of Agra, on the 23rd October 1905, within about four hours of his death. They are marked Exhibits C, F and E and are re-produced at pages R 27 to R 37 of our record.
5. Two of these, viz., Exhibits F and E, are documents of which Narain Das is the sole executant, their execution is admitted, the controversy is as to their binding effect, if any, on the interests of Faqir Chand. Their main importance lies in the fact that their drafting, execution and registration formed part of the same transaction as resulted in the preparation and partial registration of the remaining document, Exhibit C. It will be convenient to examine the three documents at once. Exhibit E, executed by Narain Das alone, and duly registered in his name, recites that the executant is the owner of a half share in a certain building in the City of Agra, 'in the kothi of Mr. Campbell,' originally purchased by him jointly with his brother Anadi Lal. He relinquishes this moiety share to Faqira, minor son of Anandi Lal and owner of the other moiety, in lieu of a sum of Rs. 6,500 for which the executant has already received credit upon a settlement of partnership recounts between himself and the lawful guardians of the said minor. Exhibit F is the last Will and testament of Narain Das. It was undoubtedly executed by him and duly registered in his name under the circumstance already stated. It starts with the dissolution of the partnership between himself and Faqira, treated as an accomplished fact, the executant describing himself as the sole owner of the seven shops into which the partnership business appears to have now expanded. It recites that the executant leaves as his sole heirs his wife, Musammat Pisto, and his daughter, Musammat Munni: it appoints as executors to carry on the business for the, benifit of the said heirs three persons. One is Ghasi Ram, the faithful servant whom Anandi Lal had already chosen as one of the trustees under his Will, the other two are the surviving brothers, Ram Dayal and Sham Lal. Musammat Pisto is given authority to adopt a son after the testator's death. The executors are to carry on the business, the control of which is vested in Ram Dayal and Sham Lal; but minute directions are given in respect of a variety of matters, including the apportionment of the profits. It is laid down that the first charge on the net profits is to be a deduction of ten annas per cent in favour of the legatees; the balance is to be divided, one-fourth going to Ghasi Ram aid three-fourths to the executors for the benefit of the legatees. In one pirticular shop Dwarka Das and Ratan Lal are given an interest of a one-eighth share each in the profits, after the deduction of ten annas per cent.; while a similar interest to the extent of three-sixteenths of the profits is created in favour of a servant of the firm named Chhatar Mal. Provision is made for the remuneration of these three men by monthly salaries in the event of the shops in which they are concerned being carried on at a loss; but there is no similar provision in respect of Ghasi Ram. The provisions of the Will which purport to affect the minor Faqira are important enough to be worth quoting textually: 'I have to pay Rs. 44,439 to Faqira minor on account of the share of Anandi Lal in partnership business, and Rs. 2,000 belonging to Faqira minor which is with me for meeting the expenses, of a dharamsala and I shall pay the same. If I fail to do so the said executors shall have power to take out of the funds of my business Rs. 44,439 due to Faqira minor and purchase any property with the said amount. Lala Ram Dayal and Sham Lal aforesaid shall have power to keep the money in deposit with them so long as they do not acquire any property, to meet the expenses of Musammat Chameli, widow of Anandi Lal, and Faqira minor with the interest on the said money, to take a receipt from the executors of Anandi Lal when property is purchased and to look after the minor and the property, Lala Ram Dayal and Sham Lal shall keep in deposit with them Rs. 2,000 out of the fund, of my business and Rs. 2,000 due to Faqira minor aforesaid, in all Rs. 4,000, and shall continue to meet the expenses of the joint dharamsala of me the executant and Anandi Lal.'
6. I now come to the important document. Exhibit C. It purports to be a bilateral agreement for the dissolution of the partnership referred to in the Will of Anandi Lal, and to be executed by Narain Das on the one side and on the other by Makhan Lal, Damodar Das, Ghasi Ram and Dwarka Das, the four remaining trustees, on behalf of the minor Faqira, as well as by Musammat Chameli 'as the guardian of her minor son Faqira.' It begins with a statement of the partnership business, specifying the seven shops to which it had by this time extended, and speaking of the same as 'carried on in partnership with Anandi Lal, deceased, whose son is Faqira minor.' It then continues: 'The accounts of the said shops have now been examined and the partnership has been dissolved. Rupees 52,939 have, after allowing credit for the money for the construction of the dharamsala, been found due to Faqira, minor aforesaid son of Anandi Lal, and I, Lala Narain Das. I aforesaid, Second Party became the owner of the entire business of the said shops, money dealings and all kinds of goods and articles in the shops.' The remaining executants, described as the 'First party' purport to acknowledge the receipt of this sum of Rs. 52,939 in full discharge of all claims on the part of the minor in respect of his share in the partnership, according to the following detail:
(a) Rs. 6,500 is credited back to Narain Das as the price of a moiety share referred to in the agreement, Exhibit C.
(b) Rs. 2,000 are to be made over to Ram Dayal and Sham Lal on the understanding that they will pay interest on the same at 6 per cent, per annum and apply this interest to 'meeting the expenses of the dharamsala.'
(c) Rs. 44,439 Narain Das acknow, ledges to be in deposit with himself, and he says that he will 'purchase property' with the same within three months. Until this is done, however, this very considerable sum of money is to be deposited with Ram Dayal and Sham Lal, and the document continues: 'The interest of the said money shall continue to be accumulated and the expenses of Musammat Chameli and the minor aforesaid shall be met therefrom. Lala Ram Dayal and Sham Lal shall be liable to look after the property which exists at present or shall be purchased in future, the said minor and the business which may be carried on in future.' The result of these transactions, considered as a whole, on the position of Ram Dayal and Sham Lal is peculiar. Under the Will of Narain Das they become the de facto managers of the partnership business. Out of the assets of that business they are to take Rs. 44,439 plus Rs. 2,000 and use the same at their discretion, provided they keep up a certain dharamsala and take over from the trustees all responsibility for the maintenance of Musammat Chameli and her minor son. If ink and paper can do it, the trustees have divested themselves of all responsibility aid handed over their duties, along with the assets of the minor, to two brothers of Anandi Lal whom that gentleman, whatever may have been his reasons, had carefully excluded altogether from the provisions of his Will, Sham Lal tells us in his deposition (page 71R) that, as a matter of fact, he used the deposit of Rs. 44,439 to start a shop under the name of 'Chhatar Mal-Anandi Lal,' which was closed after carrying on business for eight or nine years. Out of the profits of this shop he supported the minor and Musammat Chameli, and he holds to the credit of Faqir Chand a balance now amounting to Rs. 47,000 and Rs. 48.000.
7. II.--Institution of the suit: Array of Parties: Their pleadings.
8. Faqir Chand must have attained his majority sometime in the month of March 1919. In May of that year he issued notices to his two surviving trustees, Makhan Lal and Ghasi Ram, and to Nanak Ram, son of Narain Das, in which he asked for an account of their dealings with the partnership business in which he claimed a (ten-sixteenths share in accordance with the provisions of his father's Will. He intimated, further, that he desired a dissolution of the partnership and separate possession over his own share in the accumulated assets. He received very guarded replies, drafted and forwarded under legal advice. The most significant passage in these replies is to be found in the second paragraph of that sent in by Ghasi Ram, which is to the following effect: 'All the accounts of Lala Faqir Chand were settled with Musammat Chameli, natural guardian and mother of the said Lala Fakir Chand, in the lifetime of Lala Narain Das, and she took all the accounts and the partnership Was dissolved. The whole amount including interest, etc., which was found due to Lala Faqir Chand was deposited with Lala Ram Dayal and Sham Lal, proprietors of the firm of Chhater Mai-Ram Dayal, and Faqir Chand and his another benefited by the said sum and set up even a separate business with it.' The result was the institution, on the 12th of July 1919, of the suit with which we are now concerned. Lala Faqir Chand, as plaintiff, impleads seven persons as defendants. The first three are Nanag Ram, described in the plaint as alleging himself to be the adopted son of Lala Narain Das, Musammat Pisto, widow of the said Narain Das, and Musammat Mohan Dei, his daughter, these three are impleaded as representing between them the entire estate of Narain Das. The fourth defendant is Ghasi Ram, impleaded as a trustee under the Will o Anandi Lal and also as a partner in the Arm. The next two defendants are Ram Dayal and Sham Lal, impleaded as the de facto managers of the partnership business, and also as persons into whose hands assets of that business in which the plaintiff claims a share have actually passed. The remaining defendant is Lala Makhan Lal, the other surviving trustee. It is an admitted fact that, besides Narain Das himself, two other trustees, namely, Dwarka Das and Damodar Das, had died prior to the institution of the suit. The plaint is a lengthy document and it does not seem to me surprising, under the circumstances, that the plaintiff should have spread his net wide and appealed to the Court in broad terms to give him such relief as might be found appropriate, after a complete investigation of the facts, and against such persons as upon the facts so ascertained might be found liable. Undoubtedly, the plaint as drafted is, first and foremost, a claim for dissolution of partnership and settlement of accounts between the plaintiff and the remaining partners. It is equally certain that the liability of Ghasi Ram, as trustee under the Will of Anandi Lal, is asserted and made part of the cause of action, while Makhan Lal is impleaded solely and entirely by reason of his liability as a surviving trustee. Ian further of opinion, though I do not regard the point as material, that as against the heirs of Narain Das the plaint is so drafted as to claim relief against the estate of Narain Das, both on the ground of partnership in the business, and on the ground of that gentleman's position as one of the trustees. The pleadings of the first three defendants raised a question which is certainly not before us now in appeal. Musammat Mohan Dei denied the adoption of Nanag Ram and apparently wished to have it put in issue at this trial. So far as we are now concerned, we take it as established, and not contested by any pleadings now before us, that Nanak Ram was validly adopted by Musammat Pisto, widow of Narain Das, and that he is in fact, as he has asserted himself to be throughout this litigation, the heir of Narain Das and the representative of his estate. In his written statement, as well as in that of Ghasi Ram, various pleas were taken of a more or less technical character. These defendants were obviously anxious to tie the plaintiff down to a suit for dissolution of partnership pure and simple, so that the suit might fail altogether in the event of the Court's finding that the partnership had ceased to exist, on some date in the year 1905. They made it a grievance that, if the plaintiff desired to enforce any liability against the trustees appointed in his father's Will, he should not have impleaded the heirs or legal representatives of the deceased trustees, Damodar Das and Dwarka Das. Nanag Ram distinctly pleaded that the partnership was dissolved by the agreement Exhibit C of the 21st of October 1905, insisting, on the fact that this agreement was entered into, not only with Musammat Chameli, but with all the trustees other than Narain Das himself. He contended that this dissolution of partnership was preceded by an honest and thorough examination of the accounts and that the plaintiff was given his full share in the partner--ship assets. In respect of that share it was pleaded that, although the original partnership between Anandi Lal and Narain Das had undoubtedly been entered into on the basis that the former held a share of ten-sixteenths and the latter one of six-sixteenths only, this arrangement had been modified by the o execution of the two documents, Exhibits A and B of the 27th of June 1901 already referred to, in accordance with which the shares of the partners had been fixed from that date at one moiety each. There was also a plea to the effect that the plaintiff had so benefited by the settlement embodied in the agreement of the 21st of October 1905, aid approbated the Same since he attained majority, that he was in some way estopped from attempting to go behind that settlement. The written statement of Ghasi Ram follows much the same lines. There has been some little argument before us as to whether Ghasi Ram did or did not admit himself to have been at any time a partner in the business referred to in the plaint. I do not think there can be any real doubt as to the position taken up by Ghasi Ram. He never admitted having been a partner of the plaintiffs at any time, his case being that the partnership in which the plaintiff was concerned came to an end in October 1905. But he did admit having become a partner in business with the heirs and successors of Narain Das from the date of that gentleman's death, and I might add that it is obvious that he did become a partner under the terms of the Will of Narain Das. In one particular, the written statemet filed by Nanag Ram goes beyond that of Ghasi Ram. The latter, in my opinion, distinctly pins himself down to the plea of a dissolution of partnership effected in the lifetime of Narain Das by the execution of the deed, Exhibit C. The former in Paragraph 32 of his defence, does put forward as a sort of alternative pleading the allegation that any partnership existing in the lifetime of Narain Das was, in any event, dissolved by that gentleman's death. Of the remaining defendants, Ram Dayal entered no appearance. Sham Lal, filed a brief written statement, in which he alleged that he, at any rate, had no concern in any business in which the plaintiff was ever a partner, that the plaint disclosed no cause of action as against him, that he had kept full accounts of all monies entrusted to him for the benefit of the plaintiff, and that he was ready at any moment to pay into Court any sum of money which the Court might direct. I think I may fairly add in this connection that, although Ram Dayal entered no formal appearance, there are a number of pleadings on the record which show that he practically made common cause with Sham Lal and the two fought the case together. At one stage of the trial in the Court below these defendants offered to pay into Court a substantial sum of money which they admitted themselves to be holding in deposit on the plaintiff's account. At the last moment, however, the Counsel representing these defendants insisted that his clients would make no such payment into Court, unless the plaintiff were prepared to accept the same as a full and complete discharge of their liability towards him. As the plaintiff, tot unnaturally, declined to accept any such condition, no deposit was ever made. The last defendant, Makhan Lal, was eventually exempted by the plaintiff from his claim. He went in to the witness-box on the plaintiff's behalf and gave evidence if considerable importance to which I shall have to refer later. There has been no little controversy as to the credibility of the evidence given by Makhan Lal, and it has been suggested that he has colluded with the plaintiff and made statement in the latter's favour, in return for the latter's exempting him from liability in respect of any misconduct or negligence in the performance of his duties as one of the trustees. On this point I think I might say at once that Makhan Lal, on his own showing, did so neglect his duties as a trustee that it would have been open to the plaintiff, as a matter of law, to hold him liable, in the last resort, for any loss which the plaintiff might prove that he had suffered in consequence of such neglect. On the other hand, it is obvious enough that Makhan Lal, from the plaintiff's point of view, is not worth powder and shot. There is no reason to doubt that the defendants Nanag Ram, Ghasi Ram, Ram Dayal and Shy am Lal are in a position between them to make good to the plaintiff any sum which may be found due to him, and the latter had no adequate motive for pressing his case against Makhan Lal.
9. What I have called the technical pleas sought to be raised by various defendants have no real force. As a matter of fact, in the conclusions at which I have arrived on the main issues of fact and of law, the plaintiff has made out his case for relief by way of a decree for dissolution of partnership and rendition of accounts; but in any case I think he was quite entitled, in one and the same suit, to claim relief either as a partner in a subsisting business, or in the alternative as against trustees who had played ducks and drakes with his interests durirg his minority. Nor was he bound to implead the legal representatives of the deceased trustees. Damodar Das and Dwarka Das. The liability of the trustees was joint and several and the defendant Nanag Ram was being impleaded principally on the allegation of a subsisting partnership, although his possible liability as an heir in possession of the assets of a defaulting trustee was also included. The position of the defendants, Ram Dayal and Sham Lal, was certainly peculiar; but it arose naturally and inevitably out of the responsibilities which they took upon themselves in connection with the Will of Narain Das and the transactions which followed thereupon. If the plaintiff succeeds in making out his case that there had never been any dissolution in law of the partnership which subsisted between himself and Narain Das the position of these two defendants seems to me clear enough. As executors under the Will of Narain Das they virtually took over the entire assets of the partnership business and made themselves responsible for its management. They chose to open certain books of account, according to which the greater part of the business was carried on as a business in which the partners were Ghasi Ram and the heirs of Narain Das three other employees of the firm being remunerated by way of a percentage on the profits, earned by particular branches of the business. One shop was carried on in the building at Agra referred to in the exhibits as the kothi of Mr. Campbell. This the defendants elected to treat as a separate business, carried on for the benefit, of Faqir Chand, alone, the capital of which was stated to be a specified sum and earmarked as the separate property of this particular person. The plaintiff, however, supposing that he makes good his plea as to there having been no legal dissolution of the partnership, is entitled to go behind this artificial division of the partnership assets and to have all the shops carried on under the management of Ram Dayal and Sham Lal, including the shop described as that of Chhater Mal, Anandi Lal in Mr. Campbell's kothi at Agra, treated as branches of one and the same partnership business. As the de facto managers of this business, Ram Dayal and Sham Lal are liable, along with Nanag Ram and Ghasi Ram, to render to the plaintiff true accounts of the same. As to any liability which might attach to these two defendants in the alternative, that is to say, in the event of its being found against the plaintiff that the previously existing partnership was dissolved, either on the 1st of October 1905 by the execution of the document, Exhibit C, or on the 23rd of October 1905 at the death of Narain Das, this question does not really arise in view of the findings I propose to record on the main issues in the case. I am, however, clearly of opinion that, on any possible view of the pleadings, these two defendants were admittedly liable to the plaintiff for a sum of money stated by Sham Lal himself in his deposition to be something between Rs. 4,000 and Rs. 48,000. This is the first cage I have ever come across in which two defendants against whom relief was undoubtedly sought (at least in the alternative) by way of a decree for money, who admit themselves to be liable to the plaintiff for a large sum of money, have had the entire suit against them dismissed, merely on the ground that they had offered to pay that money into Court, but had eventually declined to, do so except upon a condition which it was obviously impossible for the plaintiff to accept.
10. The case went to trial in the Court below upon a multitude of issues, loosely framed and overlapping one another to such an extent that seven out of the thirteen issues were finally lumped together by the Trial Court when it came to write its judgment. In substance, the learned Subordinate Judge has found that the agreement, Exhibit A and Exhibit B, of the 27th of June 1901, are proved, so that from this date Anandi Lal and Narain Das became owners of the partnership business in equal shares. He has found that the agreement, Exhibit C, of the 21st of October 1905, was duly executed by all the persons who purport to have executed it, that it is binding on the plaintiff, that it operated as a dissolution of the previously existing partnership and as a complete discharge, in favour of Narain Das and his heirs after him, in respect of all liabilities in connection with the said partnership. Curiously enough, as it seems to me, this finding has nevertheless been qualified. The learned Subordinate Judge has held that the settlement of accounts effected on the 21st of October 1905 was incomplete, in that it failed to take into account the profits for the last year of the partnership. He has held that the heirs of Narain Das (from the use of this word in the plural I presume that he means defendants Nos. 1, 2 and 3) are liable to render an account to the plaintiff from a date somewhat vaguely specified in the decree up to either the 21st or the 23rd of October 1905, the period indicated being apparently the last of the partnership. The Trial Court has further-found, in the alternative, that if the previously subsisting partnership was not dissolved on the 21st of October 1905, it came to an end two days later (October 23rd, 1905), on the death of Narain Das, be' operation of the principle of law embodied in Section 353, Clause (10), of the Indian Contract Act, IX of 1872. He has held that all the defendants, other than the heirs of Narain Das, are exempt from liability so far as this suit is concerned, because the suit could only be treated as one for dissolution of partnership and rendition of accounts, and could succeed if at all on that basis alone. Against the decree framed in accord wee with these findings the plaintiff has filed First Appeal No. 239 of 1920. The memorandum of appeal is unnecessarily prolix and argumentative. Some of the paragraphs are merely general pleas, to the effect that the conclusions arrived at by the Court below are wrong. A number of others are directed against details in the procedure followed in the Trial Court: none of these seemed to me of any particular consequence, or to be seriously pressed upon us in the course of argument. A large number of pleas, argumentative in form, attack the finding of the Trial Court as to the execution of the deed, Exhibit C, of the 21st of October 1905 by the trustees other than Narain Das and Ghasi Ram, and as to its validity against the plaintiff, either by reason of its execution by Musammat Chameli, or in the event of its execution by, the whole body of trustees being proved. Along with this question it will be necessary to take the question whether the two unregistered deeds, Exhibits A and B, of the 27th of June 1901, are genuine and valid. For one thing, the settlement of the 21st of October 1905 avowedly proceeds upon the basis that Anandi Lal and Narain Das were partners in equal shares on the date of Anandi Lal's death: it being admitted that the partnership was constituted on the basis that Anandi Lal held a ten-sixteenths and Narain Das a six-sixteenths share, the agreement of the 21st of October 1905 fails; independently of any other considerations unless the contesting defendants can prove affirmatively that Anandi Lal had agreed before his death to an arrangement which reduced his share in the divisible profits to half. Moreover, it so happens that a signature purporting to be that of the trustee Damodar Das who is a brother of Musammat Cameli, the widow of Anandi Lal, appears as an attesting witness both to Exhibit A (Anandi Lal's agreement of the 27th of June 1901) and as an executant of Exhibit C (the agreement of the 21st October of 1905). It was a matter of particular importance for the defendants to prove that Damodar Das had signed both these documents, and the result is that a mass of evidence has been produced on this point which must, in my opinion, either be accepted as proving the signature of Damodar Das to both documents, or must be held insufficient to prove his signature to either. Of the remaining pleas in the plaintiff's memorandum of appeal there are only two which seem to require notice. One is against the Trial Court's finding by which Ghasi Ram is exempted from all liability to render accounts and awarded his full costs: the other relates to the entire dismissal of the suit as against the defendants Ram Dayal and Sham Lal. We have also before us a petition of objections by the defendant-respondent, Sham Lal, to the effect that the Trial Court ought to have awarded him his costs. Finally, a separate, appeal, First Appeal No. 347 of 1921, has been filed by the defendant, Nanag Ram. This defendant not unnaturally as it seems to me, contends that the Court below, on its own findings, was clearly mistaken in passing any decree whatever against him. If the agreement, Exhibit C, of the 21st of October 1905, is a duly executed document and binding on the plaintiff, it must operate as a full discharge of Narain Das from all liability in respect of the partnership account other than the liability stated in the agreement itself. It has been conceded before us in argument that, if this Court on the plaintiff's appeal; arrives at the conclusion either that the deed, Exhibit C, is no proved to have been executed by all the trustees under the Will of Anandi Lal, o that this document even if so executed not binding on the plaintiff, or does no operate as a full discharge in favour Narain Das, then there is nothing in this appeal which can be pressed.
III.--Two Main Issues of Fact.
11. I now take up the two main issues o fact in the case, which (for reasons already stated) I think must be considered to-gether.
12. Is it proved that Anandi Lal executed the agreement, Exhibit A, of June 27th, 1901?
13. It is proved that Makhan Lal, Damodar Das and Dwarka Das, that is to say, the trustees other than Narain Das and Ghasi Ram, executed the agreement. Exhibit C, of October 21st, 1905?
14. I have come to the conclusion that the finding on both these issues must be in the negative, and that it is, therefore, unnecessary to consider the further questions of law which could only arise in the event of an affirmative finding on the question of execution.
15. The plaintiff probably did himself harm in the Court below by overstating his case on these issues. He denounced Exhibit A, as also the corresponding document, Exhibit B of the same date, purporting to be executed by Narain Das, as forgeries concocted for the purposes of the present suit. In doing this he laid much stress on certain details apparent on the face of the documents themselves. There is an obvious erasure, unattested, in the middle of Exhibit A; while the companion document not merely shows a long erasure, purporting to be attested by the signature of Narain Das, but the scribe has made a curious blunder In the dating. He obviously wrote, in the first instance, 'July 27th and then altered the name of the month clumsily tO read like 'Tune' it was on this last detail that the plaintiff particularly insisted as suggestive of a forgery perpetrated in the month of July 1919, just after this suit was launched. These points seem to me of little weight and susceptible of being argued both ways. The two documents embody an agreement such as Anandi Lal and Narain Das might very naturally have come to under the circumstances in which they were placed, in view of the serious illness and anticipated decease of Anandi Lal. A perfectly conceivable theory would be that the two brothers had in fact discussed some such arrangement, but had never reduced it to writing, and that Narain Das actually executed Exhibit B and forged his brothers signature to Exhibit A, shortly after the latter's death. My main point, however is that it is not for the plaintiff to prove a forgery The defendants produced these documents; they are not thirty years old and can scarcely be said to have been produced from proper custody, for Exhibit B ought, strictly speaking, to have been made over to the executors of Anandi Lal's Will, if not to Anandi Lal in his life-time. There is also a certain probability that the brothers, if they intended to enter into a transaction so important, would have taken the precaution to register the documents. I should attach less importance to this agreement, If I were satisfied that Damodar Das, the brother of Musammat Chameli and one of the trustees under Anandi Lal's Will, actually signed both documents as an attesting witness Here however, I am in danger of arguing in a circle; for if I were satisfied as to the signature of Damodar Das. I should hold tie two exhibits to be proved. Before however, I turn to the direct evidence I must mention one other argument from probability. Much stree was laid on behalf of the defendants on the fact that the partnership accounts from the death of Anandi Lal to that of Narain Das were kept on the basis of an equal division of profits between. Narain Das and Faqir Chand The argument has no great force in itself unless it could be shown that Damodar Das or some other trustee (not Narain Das or Ghasi Ram) troubled himself to exercise some elective supervision over the accounts; but it is open to a most powerful rejoinder. The agreement embodied in Exhibits A and B does not merely effect a re-apportionment of the shares in the partnership; it also defines the partnership capital, and provides that Anandi Lal shall be entitled to charge interest upon all capital in excess of Rs. 40,000 which he may invest in the business. The accounts which have been submitted to us show that Anandi Lal's capital was in excess of this sum and that he was not credited with interest.
16. I return now to the plain issue: 'Have the defendants proved, by such evidence as the Court, in view of all the circumstances, may fairly accept and act upon, that Anandi Lal signed Exhibit A?'
17. The document purports to be attested by Ghasi Ram (defendant No. 4) by Chhatar Mal (an old servant of the firm, in whose favour there is a provision in the Will of Narain Das) and by Damodar Das. It also purports to have been written 'by the pen of Mirza Wazir Beg, scribe, Agra'
18. Ghasi Ram went into the witness-box and deposed to the due execution of Exhibits A and B and their attestation by the marginal witnesses. In cross-examination he stated that both brothers had intended to register the two agreements and that he did not know why they abandoned that intention. He offered no explanation of the fact that both documents 'remained in the shop' and that Exhibit B was never made over to Anandi Lal, or to the executors of his Will. His attention was drawn to one peculiar feature about the attestation of both documents: over the signatures of Ghasi Ram and Chhatar Mal, the scribe has written out their names and parentage in the Urdu character, adding in the case of Chhatar Mal his caste and residence. On each document the signature of Damodar Das bears every appearance of having been added after the attestation was otherwise complete; it is an all but illegible scrawl in the Mahajani or Sarafi character, underneath a simple line, with no specification of the witness in the Urdu handwriting of the scribe. All that Ghasi Ram could say was that the scribe was certainly present when Damodar Das signed; that all three attesting witnesses affixed their signatures in succession at one and the same time, and that he could suggest no explanation of the pecularity to which his attention had been drawn. He was positive also (and the importance of this point will appear presently) that the scribe of Exhibits A and B was the same 'Wazir Beg' wlo had written out the Will of Anandi Lal.
19. The signature of the attesting witness Chhatar Mal, who died in 1906 or 1507, was identified by his grandson, Lachhman Das. I attach little importance to this: Chhatar Mal was an old Servant of the firm; his position and prospects were improved by the will of Narain Das and he might well have consented to sign his name in the margin of any document handed over to him by Narain Das, without; inquiring too scrupulously what the paper contained.
20. To prove the really critical signature of Damodar Das, the defendants called one Mahendra Nath, whose paternal grandfather's sister was the mother of Damodar Das. He professed to identify with certainty the signature's of Damodar Das to Exhibits A and B, as well as to the even more important document, Exhibit C. Now, if there were nothing else in the case, I should not feel tie faintest hesitation in holding that the evidence of this witness is utterly worthless. His relationship to Damodar Das is a distant one; his cross-examination showed; that the intercourse, between the two was slight. Damodar Das admittedly wrote both tie Urdu (Persian) and the Nagri (Hindi) character it is a controverted point whether he ever used the Mahajani or Sarrafi character at all. I shall have to refer to this point again; but, for tie present it is quite enough to say that I am abundantly satisfied that this young man was not in a position honestly to identify the words 'Gawahi Damodar Das ki' written in the Mahajani chraracter, as being in the hand-writing of Damodar Das, tie brother-in-law of Anandi Lal. Moreover, these words, as they appear at the bottom of the right-hand 'margin of Exhibits A and B, are such an intolerable scrawl that I should find it difficult to believe any witness who swore to positive and un-hesitating recognition the hand-writing. I do not understand the learned Subordinate Judge himself to have placed any reliance on the testimony of this, witness.
21. So far, I have reached the conclusion that the evidence to prove Exhibit A is distinctly thin, it is stretching a point to hold an important document like this proved by the all but uncorroborated testimony of an interested party like the defendant Ghasi Ram. The question of the credit to be attached to this man's evidence I propose finally to re-consider after have reviewed the whole evidence beating on the execution of the still more important Exhibit C. For the present I am concerned to note that the defendants certainly did not improve their position by the attempt they made to put in the witness box the scribe of the document, The Will of Anandi Lal purports to have been written 'by the pen of Mirza Inayat Ali Beg, sect Moghal, ascribe by profession, resident of Mohalla, Moti Katra, Agra' Exhibits A and B are marked as 'by the pen of Mirza Wazir Beg, scribe, Agra.' The Interval in date between the two documents is rather less than one month, it seems fair matter of inference that, if Exhibits A and B were genuine documents, actually executed on June 27th, 1901, the same 'Wazir Beg' would be employed to write them who had already written the Will, while Ghasi Ram was under cross-examination an April 7th, 1920, he deposed as follows: 'I have not caused Wazir Beg to be summoned. The scribe of these documents (A and B) was the same Wazir Beg who wrote Anandi Lal's Will. I do not know if Wazir Beg was implicated is a forgery case and absconded.' On April 9th, 1920, there appeared in the witness box, as a witness called by the defendants, Nanak Ram and Ghasi Ram, a man who gave his name as Wazir Beg, son of Amit Beg, Moghal, resident of Hing-ul-Mandavi, Agra, City. He had apparently been sum-money to bring with him any registers or account-books kept by him in the regular course of business which would show the dates on which he had written particular documents. He deposed that he kept no such books and that his entire income from document writing was not more than thirty rupees a year. On looking at the Will of Anandi Lal and at the agreements Exhibits A and B, he deposed that these were not in his hand-writing, He added that, while he knew Ghasi Ram by face, he had no recollection of Narain Das, Anandi Lal or their father. On this Ghasi Ram put in a petition supported by affidavit, asserting positively that the witness in the box was the very man who had written all three documents and asking leave to cross-examine him, Leave having been granted, the defendants, put the witness through a feeble and inefficient cross-examination. The most favourable answer they got out of him was that 'Hing-ki-Mandavi,' where he resides might be regarded as a sub-division of 'Mohalla Moti katra.' He insisted that his own father was Amir Beg, denied that he was ever known by any other name and gave details of documnets in which he had signed himself as 'Wazir Beg, son of Amir Beg.' He gave the names of his father's brothers, and added: 'Inayat Beg was no relation of mine.' The defendants refrained from asking him plainly whether he knew of any Inayat Beg, or Inayat Ali Beg, who had a son called Wazir All Beg; the plaintiff put the question and evidently added some details as, to the personal appearance of this other, man, but the witness merely replied that he knew of no scribe of that name, parentage and> description. He admitted that he was himself carrying on the business-of a scribe in the year 1901. When questioned by the defendants about the summons in obedience to which he had come to Court, he replied that he had received a summons that very day addressed to a Wazir Beg of parentage in-specified.
22. On this, last point the record reveals a state of fact which I can only describe as surprising. On September 16th, 1919, the defendant Nanak Ram put in a list of the witnesses he desired to have sum moned for a hearing fixed for September 18th, 1919. On this list appears the name of 'Mirza Wazir Beg, son of Mirza Inayat Ali Beg, Moghal, resident of Moti Katra, Agra, with his register containing tie drafts of the sale-deeds for, 1901, 'the summons then issued is on the record, endorsed as having been received by some. Wazir Beg of unspecified parentage. The case was not heard on September 18th, 1919: we do not know if any Wazir Beg attended the Court, and when Wazir Beg, son of Amir Beg, was in the witness-box this summons was never put to him. Or April 8th, 1920, the defendants (the record at page 99 does not show which) caused process to issue against four witnesses for the day following. One of these is 'Mirza Wazir Beg, father's name not known, a Moghal by race, resident of Hing-ki-Mandavi, Agra.' This is the summons on the strength of which the witness attended the Court on April 9th, 1920.
23. The learned Subordinate Judge has discussed this issue at length. He thinks the hand-writing of the body of the documents Exhibits A and B, does not, at first sight, resemble that of Anandi Lal's Will, but suggests, that the scribe was writing out the Will in his best 'copper-plate' hand, while he wrote the agreements Exhibits A and B more freely and rapidly. In the margin of the Will the names of the witnesses are written 'in an offhand manner,' and there the learned Subordinate Judge thinks the hand-writing corresponds with that of Exhibits A and B. He is, therefore, of opinion, that the three documents were written out by one and the same person. He believes the witness Wazir Beg when the latter asserts that he did not write any of them; As he also believes Ghasi Ram to be a witness of truth he is driven to the conclusion that Ghasi Ram must be making a bona fide mistake when he asserts that the witness Wazir Beg in fact wrote all three of them.
24. I can only say that this suggestion seems to me too improbable to be seriously entertained, either the witness Wazir Beg is a shameless liar, who has been won over by the plaintiff, or Ghasi Ram is trying to mislead the Court by swearing to something which he knows to be untrue. In argument before us it was the former theory which we were urged on behalf of the respondents to adopt.
25. It cannot be denied that we have to deal with a peculiar and somewhat complicated problem of evidence. It would be quite sufficient for my purpose to hold that I am not prepared to believe Ghasi Ram where he is flatly contradicted by other evidence, and that I cannot accept the charitable theory of the learned Subordinate Judge as to a mistake on his part. It is, however, fairer to the parties that I should set down what seem to me, on the whole, the most reasonable inferences of fact to draw from the evidence. I am far from satisfied that either the defendant, Ghasi Ram, or the witness, Wazir Beg, has been perfectly can did with the Court. The respondents, at any rate, cannot complain of my not entirely trusting the latter. I approach the question by laying firm hold on the initial facts as to which there seems no room for doubt. The Will of Anandi Lal is a genuine document; there, was no reason why its scribe should mis-describe himself. There was, therefore, in May 1901, a scribe named Wazir Ali Beg son of Inayat Ali Beg, living in the City of Agra. I agree with the learned Subordinate Judge that the witness, Wazir Beg son of Amir Beg, cannot be that man. The inference I draw is that on some date, as to which I formulate no theory except that it was subsequent to the death of Anandi Lal, certain parties found it expedient to bring into existence the documents Exhibits A and B. They realised the importance of at least leaving open the possibilty of representing these as being from the same pen as the Will of Anandi Lal. They found out the existence of Wazir Beg son of Amir Beg, and induced him to draft the documents, antedating them to the 27th June 1901. When this case came into Court they applied for a summons in the name of Wazir Ali Beg son of Inayat Ali Beg, and got it served upon Wazir Beg, son of Amir Beg. At this point there was a hitch. My conjecture is that the witness cried of 'when he found that he was not merely expected to admit having written Exhibits A and B and give some pre-arranged account of the circumstances under which he had done so, but that it was proposed to put him forward as Wazir Ali Beg, son of Inayat Ali Beg, and the scribe of a document which on the face of it, did not look at all like any hand-writing which he could produce. He may have known that the legal advisers of the plaintiff were prepared to confront him with documents which he had signed as Wazir Beg, son of Amir Beg, and to challenge him to produce, in the presence of the Court, the highly trained hand-writing of the Will. The defendants made an at tempt, to get out of the difficulty. They took out a second summons for a Wazir Beg of unknown parentage, living in a quarter of Agra so restricted that the summons could scarcely fail to find the only available Wazir Beg, the son of Amir Beg. With their man in the witness-box they may have hoped to force him to go the whole way with them; at worst, they could appeal to the Court to treat him as a rascal who had been bought over. The witness decided not to put his own neck in the noose to please anybody, and so adopted what was, from his point of view, the safe course of denying having written any one of the Exhibits.'
26. Before passing on to the question of the execution of Exhibit C, I think it worthwhile to add that I have taken no notice of the stamp-vendor's endorsements which appear on the back of the Exhibits A and B. Those endorsements do not prove themselves. There is no evidence on the record that there was in Agra, in May 1901, a stamp-vendor named Ganeshi Lal, much less that the man, if he ever existed, is now dead, or that the endorsements can be recognised as in his handwriting. If these facts were proved I do not think they would have affected my conclusion, but I decline to discuss allegations of fact unsupported by any evidence whatever.
27. I now pass on to Exhibit C, the bilateral agreement of October 21st, 1905. The document is written by a professional scribe of the name of Kashi Nath, who died in the autumn of 1912. His hand-writing is proved by his brother Kedar Nath at page R9. One of the details which leave an unpleasent taste in my mouth when I review the transaction as a whole is that this Kashi Nath was not merely put forward to identify Musammat Chameli when Exhibit C was registered at the house of Narain Das on October 23rd, 1905, but was a described to the Sub-Registrar as 'uncle of the Musammat.' we have it from 'Kedar Nath that his father's sister was the paternal grandmother of Damodar Das, and thus of Musammat Chameli. Kashi Nath was, therefore, a cousin of that lady's father. It looks to me as if his relationship was over-stated in the registration endorsement, just as the defendant. Ram Dayal, was carefully specified to be the brother of Musammat Chameli's deceased husband, in order to create a general impression that the lady was surrounded by relatives to whom she could turn for disinterested advice. One of the numerous details on which I quite definitely disbelieve the evidence of the defendant Ghasi Ram, where he asserts that Damoaar Das was present when the Sub-Registrar came to the house of Narain Das. Had Damodar Das been present we may be certain that he would have been put forward to identify Musammat Chameli, and not this 'cousin-uncle' of a professional scribe, or the adversely interested brother-in-law, Ram Dayal.
28. The evidence of Musammat Chameli was taken on Commission. She does not deny her thumb-impression on Exhibit C or on the registration endorsement; but she is positive she never gave her assent to any such document with knowledge of its contents. Her story is that when she went to see Narain Das on his death-bed she was asked to put her thumb-impression to a paper, about which she was told that its effect was to appoint Panches (she uses this word to describe the executors or trustees under Anandi Lal's Will) who would look after the interest of her son when Narain Das was dead. Incidentally, she denied that Kashi Nath, the scribe, or his brother Kedar Nath, were relations of hers at all. She was subjected to the sort of intolerably lengthy, bullying and yet futile, cross-examination that we come across in cases when some third rate legal practitioner, at once unscruplous and incompetent, takes the bit between his teeth in the presence of a Commissioner who is unable to exercise the slighest control over the proceedings. I must frankly confess that I have not had the patience to read the record of this cross-examination completely through if I happen in consequence to have missed any point of real importance, the blame must rest on the legal gentleman who inflicted this outrage on the witness and on the Court. So far as I can judge, the witness was not shaken in cross-examination: the defendants certainly never got to close quarters with her on the one point that really mattered, namely, her admission of execution in the presence of the Sub-Registrar. That officer has certified that the contents of the document 'were explained to the Mussammat': he does not say that he himself explained them. He was not called as a witness, and there is nothing on the record to show whether he is alive or dead. Of course, from one point of view it matters little how much Musammat Chameli understood or did not understand of the document which she joined in executing. It is all very well for the defendants to speak of her as the 'natural guardian' of her minor son; the latter was under the guardianship of the trustees appointed by his father's Will and Musammat Chameli had been excluded by the terms of the Will from any effective control over, or responsibility for, the affairs of the minor, indeed, the manner in which this illiterate pardanashinlady was involved in the transactions of October the 21st and October the 23rd 1905, and the manner in which she has been put forward by the defendants, Nanak Ram and Ghasi Ram, both in the replies returned to the notices issued by the plaintiff and in their pleadings in the suit itself, serve only to accentuate my suspicion that there is something wrong about the execution of the agreement, Exhibit C on the part of the remaining trustees. If the defendant, Ghasi Ram, who is fully acquainted with all the facts, were really confident that a valid agreement for dissolution of partnership and final settlement of accounts had been entered into between Narain Das and the remaining trustees, I do not believe he would have put forward Musammat Chameli, in the way he has attempted to do as the natural guardian of the plaintiff during the latter's minority. From another point of view, however, the evidence of Musammat Chameli is of real importance. If she is telling anything like the truth, then Ghasi Ram, has told a series of falsehoods about the transactions of October the 21st and 23rd 1905 and is not entitled to be believed when he deposes that the document Exhibit, C, was executed in his presence by the trustees, Dwarka Das, Damodar Das and Makhan Lal.
29. The only surviving trustee other than Ghasi Ram himself is Makhan Lal, whose position in this litigation has already been indicated. This man went into the witness-box on the 13th of April 1920, after the examination of Ghasi Ram, and gave evidence in support of the plaintiff's case. We were asked in argument to Regard his statement as shifty and disingenuous. The impression left on my mind by a perusal of the record of that evidence is that we have to deal with a somewhat puzzle-headed man, distinctly uneasy in his own mind with respect to his own neglect of his duties as one of the trustees under the Will of Anandi Lal, but that he was trying to tell the truth to the best of his recollection and belief. The one thing he was quite positive about was that he had never executed any such document as the agreement Exhibit C; he contradicted Ghasi Ram by asserting that no partnership accounts had ever been gone into with him, or with Musammat Chameli in his presence; nor had Musammat Chameli ever affixed her mark or thumb-impression to any document in his presence. When shown the signature on Exhibit C which purports to be his, he admitted that the hand-writing was very like his own and that it was only in the formation of the letter dal (the abbreviation for the word dastkhat, which precedes the signature) that he could detect any definite divergence in the form of the letter from his usual hand-writing. He added that he had no recollection whatever of having made this signature. I do not think this statement was intended in any way to qualify the witnesses' assertion that he had never executed any such document as Exhibit C. He went on to add that no such document had ever been presented in his presence for registration, either by Narain Das or by Musammat Chameli. In cross-examination he was put to what I have always considered a somewhat un-fair test. The disputed signature along with a number of others (genuine signatures of the witness) was shown to him in such a manner that no portion of the paper was visible to him apart from the signatures themselves. I have always maintained that, if I myself were subjected to such a test in the witness-box, I would begin by protesting that I did not profess to be able to distinguish a genuine signature of my own from a tracing for a really clever forgery, if I were shown nothing but the signature of signatures and debarred from refreshing my memory by inspection of the documents to which they purported to be appended. However, the witness Makhan Lal emerged from this test more creditably than I should have expected to do myself. Out of all the signatures shown to him he picked out the disputed signature, that is to say, the one which is alleged to evidence his execution of the document, Exhibit C and deposed, 'This signature looks to be uncertain.' He was not pressed further on the point; I under-stand him to mean that out of all the signatures in question this was the one which struck him as at any rate unlike his ordinary style of writing. Another remarkable point about the evidence of this witness is that his name appears in the stamp-vendor's endorsement on the paper Exhibit C as that of the man to whom the stamp-paper was sold 'for purposes of dissolution of partnership.' He denied emphatically having purchased the stamp paper in question. I am bound to say that I believe his denial. It seems to me that if everything were straight-forward and above-board about the transaction embodied in Exhibit C, the stamp-paper would have been purchased by Ghasi Ram, or by some other person indirectly concerned it the management of the partnership firm; if, on the other hand, Narain Das and Ghasi Ram were engaged on a transaction which would not bear examination, the purchase of the stamp-paper in the name of one of the other trustees would be an exceedingly likely step for them to take by way of a preliminary precaution. I do not know that the defendants got anything particular out of this witness in cross-examination over and above the points already noticed. The witness was undoubtedly reluctant to admit that he had ever definitely accepted the position of a trustee under Anandi Lal's Will. He seems to me to have told the truth on this point in the first part of his cross-examinatio, but to have tried, not over ingeriously, to modify the effect of the admissions previously made by him when he was further cross-examined on the day following. He was ready to give everybody a good character, including the scribe Kashi Nath and another witness for the defendants, presently to be noticed, who may converiently be referred to as Narain Das the second.
30. For the present I record my conclusion, to the effect that the credibility of the evidence given by the defendant, Ghasi Ram, is, to my mind, seriously shaken by the depositions of Makhan Lal and Musamma Chzmeli; where these two contradict Ghasi Rami am certainly disposed to believe them.
31. I how pass on to consider the evidence by which it has been sought to prove this document, or rather to prove the disputed signatures on the said document of Makhan Lal, Damodar Das and Dwarka Das Of course, the document was executed by Narain Das, who presented it for registration, and I have no doubt it was executed by Ghasi Ram, who stood to gain by the arrangement made under the Will of Narain Das, an arrangement only possible if the existing partnership had been dissolved in the lifetime of Narain Das by the execution of the agreement, Exhibit C. There are four marginal witnesses to this document; two of them are the defendants, Ram Dayal and Sham Lal. They were not called as witnesses and when Sham Lal was examined by the Court at a late stage of the proceedings the document, Exhibit C, was not put to him and he was not asked if he admitted ordered his signature to the same. I do not think the defedants can be permitted to evade responsibility for the non-production of Ram Dayal and Sham Lal as witnesses to prove the complete execution of Exhibit C, merely because of their contention that these two defendants were colluding with the plaintiff. I am by no means satisfied that any such collusion is made out by the evidence, and in any case it seems to me a serious matter for defendants who are put to proof of an important document, vital to their case, deliberately to refrain from putting it to the witness-box two attesting witnesses who are alive and available for examination. The remaining two marginal witnesses are Bansi Dhar and Ratan Lal. A summons is to be found on the record issued to the former at the instance of the defendants, in accordance with the description and address appearing above his signature on Exhibit C: this summons has been returned with an endorsement that the witness could not be found. There is no further information available on the record concerning Bansi Dhar. We do not know whether he is alive or dead. The name of Ratan Lal, with a description of his parentage and residence apparently identical with that appearing above his signature on the disputed document, is to be found in the list of witnesses whom the defendants applied on the 16th of September 1919 to hate summoned-for the hearing fixed for the 18th of September 1919. Nothing more is known about the witness, so far as can be ascertained from this record. I am bound to say that I do not remember having come across any other-case of equal importance with the present, in which a litigant who had been put to proof of a document vital to his case succeeded in obtaining from the Trial Court a finding in his favour, when he had neither produced a single one of four attesting witnesses, nor offered a word of explanation respecting his failure to do so. The defandants called a witness, Mansukh Das, who deposed that the trustee, Dwarka Das, was his father and that he could identify the signature of Dwarka Das as that of one of the executants to Exhibit C. In cross-examination he admitted that his father was formerly in the service of the partnership business and that he himself was still in the service of the defendants, Nanag Ram and Ghasi Ram, on a small monthly salary. He made the curious admission that he did not know whether his father and mother had ever been married; This makes me inclined to believe a witness named Har Bilas, who was called by the plaintiffs to prove that he was himself related to Dwarka Das and that Dwarka Das was never married at all. I am not satisfied, under the circumstances, that the Court should accept the evidence of Mansukh Das as sufficient to prove execution by Dwarka Das of Exhibit C. I do not know that the point is one of great importance. Dwarka Das was one of the servants of the firm, whose position was improved, by the provisions of the Will of Narain Das, though not to the same extent as that of Ghasi Ram. He might conceivably have join' with Ghasi Ram' in any fraud that was perpetrated in connection with Exhibit C. However, on the available evidence and in view of the failure of the defendant to call any of the marginal wit(sic.) . decline to accept the evidence of Mansukh Das as proving execution by Dwarka Das of Exhibit C.
32. The controversy regarding the signatur of Damodar Das is connected, as I have previously remarked, with the question of this man's signature which purpose to appear on the margin of Exhibits A, B. All three signatures purport to in the Mahajani or Sarrafi character so happens that the paper of Exhibit as it now appears on the record, has bee torn, or more probably perforated in the course of binding, just in the middle o this contested signature. I cannot tell what was the condition of the paper where the signature was inspected by the witnesses in the Court below. It is some what better written than the two preposterous scrawls which are supposed, t represent the signatures of Damodar Das in the margins of Exhibits A and B. As suming that it had not been mutilated at the time of the trial in the Court below, I should regard it as a signature susceptible of identification by any one who was really acquainted with the hand-writing of Damodar Das when the latter was using that Sarrafi, character. The defendants have sought to prove it by the evidence of Mahinder Nath on which I have already commented. They also put in the witness-box an aged man, whom I have referred to as Narain Das the second. He deposed that he remembered being sent for by Narain Das when the latter was on his death-bed. He remembered that when he came to the house three documents had already been drafted for signature. Damodar Das was present and Musammat Chameli was sitting there beside Narain Das. He heard some conversation about the necessity of settling the affairs of Anandi Lal's son and he professed to remember certain details regarding the arrangements arrived at about Fakir Chand's half share in the shop in Mr. Campbell's kothi and about the Rs. 4,000 'which were to be set apart for the expenses of the dharamsala. No account-books were gone into in his presence, but Mahindar Das told him that the accounts credit been examined. He was present again two days later when the Sub-Registrar came to the house of Narain Das to see about the registration of the three documents. He identified Narain Das as executant of his Will and also as executant of the agreement about the transfer of the half share in the house for a consideration of Rs. 6,500, but he did not identify Narayan Das as the executant of the distracted document, Exhibit C, This document was never put to him in examination and in cross-examination, and I do not understand him to depose that Exhibit C was either executed, or attested, or presented for registration in his presence.
33. This is the case for the defendants regarding the execution of this document plus the evidence of Ghasi Ram, who asserts that all the signatures, including those of Damodar Das, Makhan Lal and Dwarka Das, were affixed in his presence. The plaintiff seems to have fatally prejudiced his case in the Court below by asserting, and attempting to prove, that Damodar Das never used the Sarrafi character and was in fact totally unacquainted with that character. It was over this matter that a prolonged and complicate controversy took place in the Court below The plaintiff called Kishun Lal, an own brother of Damodar Das, and he gave evidence to this effect. On the other side the defendants produced a registration copy of a document purporting to have been executed by Damodar Das in the year 1915, on which there appears a note to the effect that the signature of Damodar Das is in Sarrafi. There was considerable controversy as to whether the defendants had sufficiently accounted for the non-production of the original and also as to the evidential value of this note by-some copyist regarding the character of a signature which he presumably could not read. Over and above this, the defendants called Kanhaiya Lal, the peon of a certain Girls' School in the City of Agra. He produced two books which it had been his duty to circulate when taking round notices of meetings of the Committee of Management, or-collecting Sub-sections. We have spent a great deal of time, which might I think have been better employed, over examining the entries in these two dilapidated volumes. Damodar Das undoubtedly knew both the Urdu and the Nagri character. His signature as a witness to the Will of Anandi Lal is in the former, while he admittedly signed his name in the Nagri character on a number of occasions. The whole question is complicated by the fact that there were at least two men of the name of Damodar Das connected with the affairs of this Girls' School. The gentleman with whom we ate concerned was no doubt distinguished in the notices circulated by the hand of the witness Kanhaiya Lal, by being described either as Damodar Das the physician (Hakim) or Damodar Das the druggist (Attar). Opposite his name where it appears in these books there are signatures purporting to be his, frequently written in the Nagri character and about as frequently in Sarrafi. There are also several pages in the books where the name of Damodar Das, Hakim or Attar, appears with a blank space on the line opposite to it; presumably on those occasions the peon had failed to find Damodar Das. The learned Subordinate Judge has come to the conclusion that on these, materials it is established beyond doubt that Damodar Das was acquainted with the Sarrafi character and occasionally signed his name in that character. He says that, as the plaintiff has committed himself to the attempt to prove the contrary, the Court must accept the evidence of; Ghasi Ram as sufficient to prove that the disputed signature on Exhibit C is in fact that of Damodar Das. I am wholly unable to accept this view of the case. After a minute examination of the two peon books, I am not prepared to hold that the entries therein prove affirmatively, beyond reasonable doubt, that Damodar Das, the physician or druggist, was in the habit of signing his name in the Sarrafi character. I do not profess to be an expert in the reading of that character; but there are beyond question extraordinary dissimilarities between the various writings in Sarrafi which purport to represent the signature of Damodar Das, whereas the Nagri signatures seem to me to be fairly uniform in character. In view of the condition of the books and the undoubted presence of blank spaces opposite the name of Hakim Damodar Das on some of the pages, I can of exclude the possibility that these books may have been got at, since the institution of the suit, and the name of Damodar Das jotted down in the Sarrafi character in various places where a convenient space presented itself. I quite agree that the plaintiff attempted to prove too much, and I do not consider that he has succeeded in proving the universal negative to which he committed himself, that is to say entire ignorance of the Sarrafi character on the part of Damodar Das and inability to make use of the same if he wanted to set down his own name in a hurry. The fact remains that it was on the defendants to prove that the contested signature on Exhibit C is that of Damodar Das, the late brother of Musammat Chameli. It seems to me that I have already given abundant reasons for declining to hold that signature to be proved on the evidence of the defendant, Ghasi Ram, and of the one witness, Mahindra Nath. I ought perhaps to have mentioned that this man was a marginal witness to the document of 1915 which Damador Das is said to have executed by signing his name in the Sarrafi character. He says that he remembers that Damodar Das did employ that character when signing his name on that occasion, and my only comment on the point is that I do not believe that he in good faith retains any recollection on the point.
34. There are two other matters yet to be considered. I think I have already made it clear that Exhibit C was registered only in respect of its execution by Narain Das and Musammat Chameli. The remaining four executants, including Ghasi Ram himself, never presented themselves before he Sub-Registrar during the prescribed period of four months, and on the 22nd of February 1906 that officer recorded formal order that registration was refused in respect of Makhan Lal, Damodar Das, Shasi Ram and Dwarka Das. No attempt was ever made by any person interested in the propounding of this document to make use of the procedure provided by the Indian Registration Act and the rules made there under to compel registration in respect of these recalcitrant or negligent executants. Ghasi Ram asks us to believe that the whole four of them were actually present when the Sub-Registrar came to the house of Narain Das on October the 23rd 1905, that they offered to admit execution and attest their signatures then and there, but that the Sub-Registrar, said that under the rules he had no authority to register the fact of their execution unless they presented themselves at his office Ghasi Ram adds that some days later, he and Dwarka Das deed go to the Sub-Registrar's office in order effect registration, but that officer replied that he was unable to proceed with the matter unless the four remaining executants came there together. I frankly disbelieve this assertion. I can understand that the Sub-Registrar, standing upon a somewhat technical and pedantic view of his duties under the Registration Manual, might have refused to accept the attestation of the document at the house of Narain Das by any executants other than Narain Das himself and Musammat Chameli, in respect of whom formal applications had been made for their attestations to be taken at the residence of Narain Das. I do not believe that he either would or could have refused to accept the attestations of Ghasi Ram and Dwarka Das, if the two had presented themselves at his office on some later date. His certificate of non-registration when read in connection with the rules under which it was made, distinctly implies that no one of the four executants, Makhan Lal, Damodar Das, Ghasi Ram and Dwarka Das, had put in an appearance in the course of the four months which had elapsed since the execution of the document on the 21st of October 1905. Moreover, I have already recorded my conclusion, arrived at on other grounds, that Damodar Das was not present when the Sub-Registrar took the attestation of Musammat Chameli to the document at the house of Narayan Das.
35. While I am on this question of registration, there is a point of law on which it is perhaps expedient that I should express an opinion, namely, the effect of the non-registration of this document on behalf of four of the executants, Makhan Lal, Damodar Das, Ghasi Ram and Dwarka Das. It is not a question whether the partnership business purporting to be thereby dissolved did, or did not, in the month of October 1905, possess immoveable property of the value of Rs. 100, and upwards. The document itself avoids making any statement o the subject, taking refuge in an 'etcetra', just where one would have expected a reference to such immoveable property. When, however, the executants come to specify what is being done about the sum of Rs. 52,939 which it presents the share of Faqir Chand in the partnership assets, it does distinctly state that Rs. 6,500 of the above are written off in consideration of the transfer by Narain Das of his moiety share 'in godown No. 1564 in the kothi of Mr. Campbell, Belanganj, Agra.' In my opinion this provision does make the document in question an instrument which acknowledges the receipt of payment of consideration on account of the assignment or extinction of a right, title or interest in immoveable property of the value of more than Rs. 100, within the meaning of these words as they appear in Section 17(1) of the Indian Registration Act, XVI of 1908. Apart, therefore, from other considerations, the non-registration of this document makes it inoperative in so far as it purports to affect those of the executants in respect of whom it was never registered.
36. Returning from this digression to the question of the execution of the document, there is one last argument from, probability which I ought perhaps to notice before recording my conclusion. It has been strongly pressed upon us on behalf of the respondents that the arrangements made in this document were in fact acted upon from the date of its execution, and must have been so acted upon to the knowledge of the trustees under the Will of Anandi Lal, and more particularly of Makhan Lal and Damodor das. The suggestion is, that these two men at any rate, if they had not actually joined in the execution of Exhibit C at the time, must have seen from the way in which the business was being carried on that a dissolution of the partnership had actually taken place, must have been put upon enquiry arid must, therefore, have come to know of the existence of Exhibit C and have denounced it as a forgery long before the institution of the present suit. This argument Wounds plausible and is not without real force, though I very much doubt whether a mere argument from probability could, under the circumstances of this case, be used to supplement the failure of the defendants to prove the execution of the document by the best available evidence. I have come to the conclusion, however, that the whole force of the argument is gravely discounted when we come to consider the evidence given by the defendants. Ghasi Ram and Sham Lal, as to what was actually done after the death of Narain Das. Under the terms of that gentleman's Will the where management of what had previously been the partnership business passed into the hands of Ram Dayal, Sham Lal and Ghasi Ram, the two first named being the responsible managers. There had previously been one of the shops belonging to the partnership firm carried on in the building in Mr. Campbell's ko hi, and this was treated as the head-office of the firm. After the death of Narain Das this head-office was removed to another location in the City of Agra. I am by no means clear on the evidence whether there as any real interval between this removal of the head-office and what the defendants call the re-starting of the new shop in the very same building, for the sole and separate. benefit of the minor Faqir Chand. In any case, the interval was one of a few months only. A trustee of the minor, who was not scrupulously interesting himself in the discharge of his duties, would only see, at most, that there tad been a change in the disposition or arrangement of the shops belonging to the partnership; but that (it may be after some brief interval) a shop of the same description as had existed previously was being carried on in the same locality, by the same persons who were the de facto managers of the entire partnership business. I do not consider that anything happened which was likely, on the face of it, to arouse the suspicions of Makhan Lal or Damodar Das and to put them upon enquiry. A careful examination of the partnership accounts and of the accounts maintained by Sham Lal and Ram Dayal in respect of the shop in Mr. Campbell's kothi might no doubt have suggested the necessity for' enquiry in the interests of the minor; but I find nothing incredible in the evidence given by Makhan Lal as to his failure to make such an enquiry or seriously improbable in the suggestion that Damodar Das was equally negligent. So long as Musammat Chameli and her minor son were being kept in reasonable comfort, and so long as such matters as the marraige of the minor were properly arranged for in due course and the necessary funds supplied by Sham Lal and Ram Dayal, Musammat Chameli was not likely to make any complaint, or to appeal to the executors of her husband's Will to look into the condition of the partnership accounts. I am of opinion, therefore, that no valid inference in favour of the defendants can be drawn from the fact that neither Makhan Lal nor Damodar das ever denounced this document, Exhibit C, as a forgery at any time prior to the institution of the present suit.
37. My finding, therefore, on the issue now under consideration is that it is not proved that Anandi Lal executed the agreement, Exhibit A, of the 27th of June 1901; and it is not proved that Makhan Lal, Damodar Das and Dwarka Das executed the agreement, Exhibit C, of October the 21st 1905.
IV.--Two Subsidiary questions of Law.
38. I now pass on to consider two questions of law which are not concluded by the findings of fact hitherto recorded.
39. The first or these is, whether the previously subsisting partnership was dissolved by the death of Narain Das on the 23rd of October 1903. The law on the subject is contained in Section 253(10) of the Indian Contract Act, IX of 1872. The law itself is simple enough: whether the partnership be regarded as one entered into for the term of the minority of Faqir Chand, or whether it be not so regarded, the death of Narain Das dissolved the partnership 'in the absence of any contract to the contrary.' In a country where the terms of a partnership are usually embodied in a regular instrument such a provision is not difficult of application. In this country partnerships amongst members of one and the same family are very commonly entered into without any formal partnership deed, and in the case now before us no such deed was ever drawn up as between Anandi Lal and Narain Das. The question we have to consider is whether a stipulation that this partnership would not be dissolved by the death of either or both of the partners, but would continue on the lines of a joint family business, at least until Faqir Chand exercised an option one way or the other on attaining his majority, can be fairly inferred from the established facts and the circumstances of the case generally. The Courts in this country have frequently held that, in the case of a partnership between members of a joint undivided Hindu family, a stipulation that the partnership will not be dissolved by the death of any one partner is ordinarily to be inferred. The only case to which we were referred in argument, of which the facts present any real analogy to those now before us, is that of Muhammad, Kamil v. Haji Hedayaiulla 64 Ind. Cas. 861 : 48 C. 906 : 33 C.L.J. 411 : 26 C.W.N. 463 : (1922) A.I.R.(C) 122. On the principles there laid down the partnership between Anandi Lal and Narayan Das would ordinarily have been dissolved by the death of Anandi Lal that, it seems to me, we are on absolutely firm ground in holding that that partnership was not then dissolved by reason of a contract to the contrary, perfectly understood by both the parties and assented to by Narain Das when he signed the Will of Anandi Lal as an attesting witness. In the course of argument before us, as the importance of this point became obvious, the learned Counsel who was arguing the case for the respondents contended, or at least suggested, that we ought to hold that the original partnership of Anandi Lal and Narain Das was dissolved by the death of the former and that we are dealing with a new partnership entered into by Narain Das on the one hand and his minor nephew Faqir Chand(as represented by the trustees or executors named in the Will of Anandi Lal) on the other. There is not a trace of any such contention to be found in the pleadings of the defendants, or in any part of the record as it stood up to the conclusion of the trial in the Court below. Even if the defendants had raised the point, I think it must have been decided against them. I have already recorded my opinion that when Narain Das signed the Will of Anandi Lal as an attesting witness, he did so with a full knowledge of its contents 'and he intended by his signature to certify both his knowledge of the contents and his acceptance of the trusteeship I am satisfied, therefore, that Anandi Lal and Narain Das agreed amongst themselves that their partnership would not be dissolved by the death of the former (as event which was clearly anticipated as inevitable before long), but should continue as a partnership between Narain Das and the minor Faqir Chand. I am not prepared to say that it seems to me equally obvious that it was part of the agreement that neither upon the death of Narain Das should the partnership be dissolved; but there are two or three considerations which strike me as weighty, and indeed decisive, (a) The partnership between Anandi Lal and Narain Das was not precisely a partnership between members of a joint undivided Hindu family. The two brothers had separated after their father's death and they certainly did not re-unite for all purp6ses. Each of them obviously regarded his interest in the partnership business as his own separate property, over which he retained full power of testamentary disposal and which would descend, in the absence of such disposal, to his own heirs, instead of devolving upon the other by right of survivorship. The fact remains, however, that it was a partnership between two brothers, and there is nothing surprising or abnormal in the suggestion that the partners, as between themselves, regarded it as subject to the oridinary incidents of a joint family partnership, i.e., as an arrangement which would continue between their heirs after them until formably dissolved at the instance of one or other member of the partnership, (b) It seems to me that it would be altogether anomalous if hold that A and B entered into a contract of partnership which would not be dissolved upon the death of A, but would be dissolved upon the death of B.(c) I am further greatly impressed with the conduct of Narain Das on the 21st of October 1905, It seems to me a matter of clear inference from his conduct on that date that Narain Das himself did not regard the partnership as one which would be automatically dissolved by his own death. He drew up the three documents Exhibits C, E and E in imminent expectation of death, and he actually died within a few hours of their presentation to the Registration Officer. It would have been easy for him to draw 'Up a Will based upon the assertion that the partnership would be automatically dissolved by his own death and making suitable provision for that contingency. The force of this argument is no doubt somewhat weakened by my finding against the genuineness of Exhibit C; but the Will of Narain Das itself proceeds upon the assumption of a partnership already dissolved by previous arrangement. It seems to me a matter for fair inference' that Narain Das himself did not regard the partnership as one which would be automatically dissolved by his death.
40. For these reasons I am of opinion that ft contract to the contrary, within the meaning of that expression in Section 253(10) of the Indian Contract Act, may fairly be inferred from the established facts of the present case and that the partnership did not come to an end under the provisions of Clause (10) of that section when Narain Das breathed his last.
41. The next question of law is as to the alleged ratification by the plaintiff of the agreement of October the 21st 1905 after he attained majority. The learned Sub-ordinate Judge framed an issue on this point, but he was not really decided it He takes note of the fact that the plaintiff had actually been maintained during his minority, all the expenses of his marriage met, and so forth, out of funds in the hands of the defendants, Ram Dayal and Sham Lal, which they purport to provide from the profits of a shop which they were carrying on as the separate business of the minor plaintiff. He does not appear, to me, however, to have recorded any definite finding as to whether this circumstance, or any action taken by the plaintiff after he attained majority, would serve to estop the latter from claiming any of the reliefs sought in the present suit. On the findings at which I have arrived the plaintiff is obviously entitled to treat the business carried on by Ram Dayal and Sham Lal at the shop in Mr. Campbell's kothi as part and parcel of partenership business, and the fact that money derived from the profits of that shop was applied for his benefit during his minority in no way affects the present suit, except in so far as the defendants may claim credit for the said expenditure upon a fair settlement of accounts. The action taken by the plaintiff since he attained majority, which has been suggested as amounting to a ratification of the agreement of October, the 21st 1905, cannot possibly have any such effect. It appears that Ram Dayal and Sham Lal had invested a portion of the funds which they held to the credit of the plaintiff by lending the money out on mortgage. They had brought a suit upon the mortgage and obtained a decree. When the plaintiff attained majority he adopted this transaction, to the extent of executing the decree and obtaining payment. He was obviosuly entitled to do this without prejudice to any claim which he might have against Ram Dayal and Sham Lal or against any other of the defendants, for money due to him upon a complete settlement of accounts. Indeed, the proceedings in execution of the decree could scarcely have been continued after Faqir Chand attained majority by any one but Faqir Chand himself, and the money would have been lost altogether if the plaintiff had not taken action. The money thus realised by him will have to be taken into account upon a final settlement between the parties, but there is nothing about the plaintiff's conduct in this matter to debar him from maintaining the present suit.
42. V.--FORM OF DECREE TO BE PASSED ON, THE PLAINTIFF'S APPEAL.
43. From the findings which have now. been recorded it is obvious that the appeal of Nanag Ram, First Appeal No. 347 of 1921, must fail and there is nothing for us to do but to dismiss the same with costs, including fees on the higher scale. Similarly, the cross-objections taken by the respondent Sham Lal in First Appeal No. 239 of 1920 also fail and must be dismissed with costs.
44. The form of decree which requires to be substituted for the very inadequate decree passed in favour of the plaintiff by the Trial Court requires careful and detailed consideration. To begin with, the plaintiff has substantially succeeded in his appeal and, whatever else may happen; he is entitled to the costs of this appeal, including fees on the higher scale. I would award him these costs jointly and severally against the defendants-respondents Nanag Ram, Ghasi Ram, Ram Dial and Sham Lal.
45. Secondly, the plaintiff is clearly entitled to a preliminary decree for dissolution of partnership and settlement of accounts as against the same four defendants. Strictly speaking, the decree for dissolution of partnership must be against Nanag Ram and Ghasi Ram alone; but I would include the defendants. Ram Dayal and Sham Lal, in the decree for rendition of accounts, on the ground that they are the de facto managers of the partnership business.
46. The account must begin with an ascertainment of the capital to the credit of Anandi Lal on the date of that gentleman's death. I do not think that the defendants, or any of them, should be held to be bound by the recital in the Will of Anandi Lal by which this capital is stated at Rs. 58,000. There is force in the contention raised by Ghasi Ram that this is no more than a rough estimate on Anandi Lal's part, and that it includes profits which Anandi Lal expected to make by the end of the year then current. The accounts will have to be examined up to the date of Anandi Lal's death and, amongst other things the defendants should be permitted to prove, if they are able to do so, that Anandi Lal in his lifetime gave directions for a sum of Rs. 5,000 to be contributed out of his share of partnership capital towards the construction of a dharamsala, The alleged agreement by which a further sum of Rs. 4,000 was to be contributed in equal shares by the two members of the partnership, to provide for the maintenance 'and expenses of the dharamsala must also be gone into. From the date of Anandi Lal's death, after the amount due to him as his share of partnership capital on that date has been ascertained, the accounts of all the shops carried on as part of the partnership business must be gone into, and the annual profits divided in the proportion of five-eighths assigned to the plaintiff and three-eighths to the defendants. The Court need not concern itself with the apportionment of this share of three-eighiths as amongst the defendants, unless this point is expressly raised by the defendants, Nanag Ram and Ghasi Ram. If it should be so raised, I think our decree must leave it open to the Court below to exercise its discretion in the matter. In this settlement of account the profits of the shop carried on by Ram Dayal and Sham Lal in the building known as Mr. Campbell's kothi must be treated as part of and parcel of the partnership profits and divided between the par-ties in the ratio already stated.
47. The defendants will be entitled to debit against the plaintiff, from year to year all money expended on his behalf or for his benefit or for that of his mother provided the expenditure be such as is warranted by the terms of Anandi Lal's Will. The money actually realised by the plaintiff since he attained majority under the mortgage-decree already referred to must be brought into account as part payment of the amount due to him. I find it a little difficult to decide as to the proper directions to be given regarding certain items of immoveable property, referred to in detail in the course of the cross-examination of Ghasi Ram, which the plaintiff alleges to have been acquired out of partnership funds. I think our decree must leave it open to the plaintiff to raise this question and to the Court below to adjudicate upon it in such manner as it may determine to be just after the facts have been fully gone into.
48. Any money found due to the plaintiff must be recoverable, in the first instance, out of the assets of the partnership business in the hands of the various defendants. I am not sure that we are called upon to provide for the contingency of such assets being found insufficient to meet the plaintiff's claim. In case of such insufficiency Ghasi Ram, as a defaulting trustee, would certainly be liable to make it good. Nanag Ram, as the heir of another trustee, would also hi liable to the extent of any monies which might have passed into his hands by reason of any breach of duty on his father's part. Ram Dayal and Sham Lal would not, I think, be liable, except to the extent of partnership funds in their hands. In this connection, however, I think there is one point of considerable practical importance to be dealt with at once. On the admission of Sham Lai himself, these two defendants are in possession of a sum of from Rs. 47,000 to Rs. 48,000 which, is due to the plaintiff and which they held to his credit. They represent it as coming out of the accumulated profits of the shop which they carried on for the benefit of, the plaintiff in Mr. Campbell's kothi at Agrar on our findings the money represents simply a portion of what is due to the plaintiff on a fair division of partnership assets. It is admittedly in the hands of these two defendants and I can see no reason why they should not be made to hand it over at once. Some time must yet pass before a final decree can be worked out on the basis of the decision at which, we have arrived it would be clearly unfair to the plaintiff that he should be left in, difficulties for ready money while this large sum was o lying to his credit in the hands of the two a defendants.' I think, therefore that we ought to include in our decree a direction t requiring them to fulfill their own under taking by paying the money into Court a within a period to be limited by the decree the said money to be taken into acv count hereafter in the final decree, in partial discharge of the plaintiff's claim and in liquidation of any sum which may be found due to the plaintiff from these particular defendants.
49. I have read my brother's judgment, and agree. There seems to me to be a great deal in the learned Subordinate Judge's interlocutory proceedings in the case, and in his final judgment, which is open to criticism. Once the conclusion f is reached that the re-distribution of shares in the partnership sought to be effected by the deed of June 1901 was not executed by Anandi Lal, it stands as a piece of sheer robbery of the minor by Narain Das, of which his trusted karinda must have been cognisant, and colours the whole of the subsequent proceedings. For example, a point to which my brother has not referred, the assignment to the minor as part of his share, of the half kothi, for Rs. 6,500, the amount originally paid, for the whole, and that without any pretence at a valuation, was a transaction which could not possibly stand, in any view of the case, and was plainly a fraud upon the infant.
50. Subsequently to the death of Narain, the defendant, Ghasi, was the moving spirit in the business, and he has been throughout this suit the pillar of the defence. It is sufficient to say that, in my opinion, he was a witness unworthy of credit, and is contradicted by most of the other witnesses, against many of whom nothing can be suggested. He appears to have failed to grasp the essential difference between his duty as a trustee, and his interest as a partner, or if he realised it, to have deliberately neglected the one for the benefit of the other, and then to have resorted to a method of defending his conduct, which is, unfortunately, only too common in these Courts, namely, that of setting up in Court the supposed consent, of an ignorant and helpless mother to the abandonment of the legal rights of her; still more helpless child. I am satisfied hat, even if the document had been satisfactorily established in fact by proof, the alleged dissolution was a sham, not understood by the trustees, except those who were to profit by it, and that it was not binding on the minor whose consent could only be lawfully given by them.
(1) First Appeal No. 347 of 1921 is dismissed with costs, including fees on the higher scale.
(2) In First Appeal No. 239 pf 1920 was set aside the decree of the Court below, and in lieu thereof we decree the plaintiff's claim as fallows
(a) We grant him a preliminary decree or dissolution of partnerships and rendition of accounts as against the defendants, Nanag Ram, Ghasi Ram, Ram Dayal and Sham Lal.
(b) There will be an ascertainment of the capital representing Anandi Lal's share in the partnership business on the date of that gentleman's death, subject to the directions given in the earlier part of the judgment of this Court.
(c) Thereafter, an account will be taken of the net profits which accrued year by year on each of the shops constituting the partnership business including the seven shops referred to in the Will of Narain Das and the shop started by the defendants, Ram Dayal and Sham Lal, (ostensibly as a separate business for the bereft of the plaintiff alone) in the building known as Mr. Campbell's kothi in the City of Agra: in the profits thus ascertained the plaintiff's share will be ten-sixteenths and that of the defendants six-sixteenths. The Court will have discretion to apportion the shares of the defendants amongst themselves if they move it to no so.
(d) The Court will enquire whether any immoveable property now belongs to the partnership firm, or has been acquired out of partnership funds, and will pass such orders regarding the same as appear just.
(e) The defendants will be entitled to charge against the plaintiff all money expended on his behalf, or for his benefit or for that of his mother, provided the Expenditure be such as is warranted by the terms of Anandi Lal's Will. They will also be allowed credit for the money realised by the plaintiff on the mortgage-decree referred to in the earlier part of this judgment.
(f) Any money found due to the plaintiff will be recoverable, in the first instance, out of the assets of the partnership business in the hands of the defendants, Nanak Ram, Ghasi Ram, Ram Dayal and Sham Lal. In the event of the entire amount not being realised, the balance will be recoverable from Ghasi Ram personally and from Nanag Ram to the extent of any money which the Court may find to have passed into his hands by reason of any breach on the part of Narain Das of his duties as a trustee and executor under the Will of Anandi Lal.
3. The defendants, Ram Dayal and Sham Lal, will pay into Court within two months from the date of this decree, the sum of Rs. 47,500 to the credit, of the plaintiff, who will be permitted to withdraw the same unconditionally. The defendants will be allowed credit for this payment against any sum found due to the plaintiff of the final settlement of accounts.
4. The suit as against the defendants, Musammatt Pisto, Musammat Mohan Dei and Makhan Lal, will stand dismissed, but these defendants will bear their own costs.
5. The plaintiff will get his costs of this appeal against the defendants, Nana Ram, Ghasi Ram, Ram Dayal and Sham Lal Jointly and severally including fees of the higher scale. The Court below will pass suitable orders respecting all costs in that Court when it comes to pass its final decree.
6. The cross-objections of the defendant, Sham Lal, are dismissed with costs including fees on the higher scale.