Skip to content


Lingamallu Seenayya Vs. Lingamalla Ramalingayya - Court Judgment

LegalCrystal Citation
SubjectContract
CourtChennai
Decided On
Reported inAIR1934Mad12; (1933)65MLJ789
AppellantLingamallu Seenayya
RespondentLingamalla Ramalingayya
Cases Referred and Yerukola v. Yerukola I.L.R.
Excerpt:
- - 4. the question resolves itself into this :is it necessary to place a strained interpretation on article 106 to bring a case like the present within it?.....of a firm, and the defendant was his sub-partner. the lower courts proceed on the footing that the main partnership was dissolved in 1921. this is disputed by mr. sitarama rao, the counsel for the plaintiff (respondent); but in the view i am taking, it is unnecessary to pursue this point. the accounts of the partnership were settled in august, 1925, and it was found that there having been a loss, the plaintiff had to bear his share of it. the plaintiff had paid in 1922 a major portion of what was found at the settlement to be due by him for his share. the suit was filed in august, 1925, apparently some days after the settlement, the question to be decided is, is the suit barred by limitation? the lower courts, being of the opinion that article 120 applies, have held that the suit was.....
Judgment:

Venkataramana Rao, J.

1. The plaintiff was a member of a firm, and the defendant was his sub-partner. The Lower Courts proceed on the footing that the main partnership was dissolved in 1921. This is disputed by Mr. Sitarama Rao, the Counsel for the plaintiff (respondent); but in the view I am taking, it is unnecessary to pursue this point. The accounts of the partnership were settled in August, 1925, and it was found that there having been a loss, the plaintiff had to bear his share of it. The plaintiff had paid in 1922 a major portion of what was found at the settlement to be due by him for his share. The suit was filed in August, 1925, apparently some days after the settlement, The question to be decided is, is the suit barred by limitation? The Lower Courts, being of the opinion that Article 120 applies, have held that the suit was filed within time.

2. Mr. Lakshmanna for the defendant argues that the suit is governed by Article 106 of the Limitation Act. That Article relates to a suit 'for an account and a share of the profits of a dissolved partnership'. Can it be said that a suit by a partner against his sub-partner relates either to 'an account' or 'a share of the profits of dissolved partnership'? I think not. What the plaintiff in such a suit claims is a share of his own share; with the profits of the main partnership as such, the suit has no concern. Moreover, the present action is not for a share of the profits at all. The principal partnership having resulted in a loss and the plaintiff having had to bear his share of it, he sued for the recovery of that portion which the defendant was bound to contribute under the special contract between the latter and the plaintiff. I find it very difficult to regard such a suit as being governed by the terms of Article 106. No case has been cited to show that this Article was ever held applicable to cases between a main partner and sub-partner. Mr. Lakshmanna contends that in fact there is a partnership within a partnership; but that is not the question with which I have to deal. Is this suit of the nature contemplated by Article 106 of the Limitation Act?-that is the point that has to be decided.

3. It is next contended that Section 31 of the. English Partnership Act gives the sub-partner a right to proceed for obtaining an account against not only the assigning partner but also against the remaining partners. It is then argued that this section shows that the rights of the partner and the sub-partner are alike and that there is no difference in their right to demand an account from the date of the dissolution. In the first place, that provision does not deal with a question of limitation and secondly, it is sufficient to say that the present suit is not by a sub-partner as against the main partner.

4. The question resolves itself into this : Is it necessary to place a strained interpretation on Article 106 to bring a case like the present within it? The Article seems intended to deal with suits between partners inter se and the words, construed in their plain and natural sense, do not seem to apply to actions between a principal partner and sub-partner.

5. In the Lower Courts it seems to have been argued that Article 61 applies. When a main partner pays his share of the loss, he cannot be deemed to be paying it for, or on behalf of, his sub-partner; he makes the payment on his own behalf and the fact that he can recover a proportion of what he has paid from the sub-partner is no reason for holding that he has paid the amount on the latter's behalf. See Kuppuswami Chetty v. Singaravelu Chetty : AIR1923Mad679 and Yerukola v. Yerukola I.L.R. (1922) 45 Mad. 648 : 42 M.L.J. 507.

6. We are thus left to fall back upon Article 120, the residuary Article. The next question is, what is the starting point? Mr. Sitarama Rao maintains that time must be computed from the payment by the main partner of his share of the loss or, in the alternative, from the date of the settlement of the accounts of the dissolved partnership. Mr. Lakshmanna on the other hand urges, that the starting point is the date of the dissolution of the partnership. It is unnecessary to decide this question, as in any event the suit is within time.

7. In the result, the second appeal is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //