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Dharam Chand Manroop Chand Vs. Firm Mool Chand Anraj and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 291 of 1954
Judge
Reported inAIR1959Raj94
ActsLimitation Act, 1908 - Schedule - Article 106; Partnership Act, 1932 - Sections 42
AppellantDharam Chand Manroop Chand
RespondentFirm Mool Chand Anraj and anr.
Appellant Advocate Kishan Mal, Adv.
Respondent Advocate Kishore Singh, Adv.
DispositionAppeal dismissed
Cases Referred and Samuel Nadar v. Thangayya Nadar
Excerpt:
- .....1994 (corresponding to 6-4-38), the suit was barred by limitation, because it was governed by the sirohi limitation act, 1992, which brought into application the indian act, and article 106 of the indian limitation act provided a period of three years' limitation for this kind of suit. the sirohi act had allowed two years' grace in respect of suits where the period of limitation had been reduced as compared to the earlier act of 1924, but even that period would be over in 1944.6. a perusal of the record shows that the plaintiff had alleged the business to continue till 8-7-44, and if this was true, the suit, which was instituted on 8-7-47 was within limitation. learned counsel relied on that portion of the statement of the plaintiff, where he mentioned that the purchase of the tins.....
Judgment:

K.L. Bapna, Ag. C.J.

1. This is a second appeal by the defendant in a suit for rendition of accounts.

2. The case of the plaintiff, whose representative in interest is now the respondent is that he entered into a partnership in one adventure with Manroop Chand, and that in that adventure the plaintiff and the said Manroop Chand had purchased 36 tins of ghee on Chait Budi 6, Sambat 1994, to be sold for profit. Some of these tins were sent by the plaintiff to Kanaji Kistoor Chand from Sirohi and 15 tins were sent by the defendants from Sirohi to Dhulaji Gomaji at Shivganj, while one tin was sold at Pindwara. The plaintiff alleged that the partnership continued till 8-7-44, and the suit was instituted on 8-7-47.

3. Manroop had died, and his legal representative Dharam Chand denied the partnership, and raised a plea of limitation.

4. The trial Court held the suit within time, also that the partnership had been proved, and that the goods had been sold, and accounts were to be made up. A preliminary decree was accordingly granted on 31-7-1949. On appeal, the learned District Judge of Pali affirmed the decision. On the question of limitation the trial Court had held that the business continued till 8-7-44. The appellate Court was of opinion that the business continued till Chait Sudi 6, Sambat 1994 (corresponding to 6-4-38), but did not apply the Indian Law of Limitation on the ground that the Sirohi law was applicable, and that law had not been produced. The defendant has come in appeal.

5. It was argued by learned counsel for the appellant that if the business of the partnership came to an end on Chait Sudi 6, Sambat 1994 (corresponding to 6-4-38), the suit was barred by limitation, because it was governed by the Sirohi Limitation Act, 1992, which brought into application the Indian Act, and Article 106 of the Indian Limitation Act provided a period of three years' limitation for this kind of suit. The Sirohi Act had allowed two years' grace in respect of suits where the period of limitation had been reduced as compared to the earlier Act of 1924, but even that period would be over in 1944.

6. A perusal of the record shows that the plaintiff had alleged the business to continue till 8-7-44, and if this was true, the suit, which was instituted on 8-7-47 was within limitation. Learned counsel relied on that portion of the statement of the plaintiff, where he mentioned that the purchase of the tins completed by Chait Sudi 6, Sambat 1994. He, however, said further in cross-examination that he did not know when these tins were sold. The lower Court was wrong in taking the date of despatch of the tins to Shivganj as the date of the completion of the business. The business was of the purchase and sale of tins, and unless the tins had been sold, the partnership business did not come to an end.

The plaintiff had said in his plaint as to when that business had come to an end. If the defendant had information that it ended earlier, the burden of proof lay upon him to plead and prove when it so ended. See Mani Singh v. Dial Singh, AIR 1917 Lah 459, Din Muhammad v. Kanshi Ram, AIR 1930 Lah 378, and Samuel Nadar v. Thangayya Nadar, AIR 1942 Mad 104. As it happened, the defendant was on the horns of a dilemma because he had denied the partnership. He has therefore, precluded himself from showing as to when the partnership had ended. No other point was argued.

7. There is no force in this appeal. It is accordingly dismissed with costs.


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