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Pentapati Venkataramana and ors. Vs. Pentapati Varahalu and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1940Mad308
AppellantPentapati Venkataramana and ors.
RespondentPentapati Varahalu and ors.
Cases Referred and Dasaratharama Reddi v. Narasa Redai
Excerpt:
- - 2. it is common ground that in the course of 1926, the parties deemed it best to dissolve the partnership in respect of kottu no. there was nothing like a formal reference and an award and there was no question of a joint family business as between all the parties but only of business carried on in partnership by certain persons who were members of certain joint families. the plaint asks for a decree jointly in favour of the plaintiff and defendants 24 to 27. in the english practice, the cestuique trust is permitted to insist upon his being allowed to use the name of the trustee when suing a debtor to the trust estate, in circumstances like the present. if this statement is admissible in evidence, there can be no doubt that it clearly proves the truth of the plaintiff's case. the.....varadachariar, j.1. this appeal arises out of a suit for the taking of the accounts of certain dissolved partnerships. the parties belong to the vysia community and are members of one family though belonging to different branches which had become divided many years ago. defendants 1, 2 and 3 are the oldest members in the group and they are the sons of one chinna venkanna. defendants 4 to 23 are the descendants of defendants 1 to 3. chinna venkanna had a second cousin venkanna who had two sons appayya and venkanna. the plaintiff and defendants 24 and 25 are the sons of appayya. defendant 28 is a grandson of venkanna, the brother of appayya. defendants 26, 27 and 29 are respectively the sons of defendants 24, 25 and 28. these families had admittedly been carrying on trade in vizianagaram;.....
Judgment:

Varadachariar, J.

1. This appeal arises out of a suit for the taking of the accounts of certain dissolved partnerships. The parties belong to the Vysia community and are members of one family though belonging to different branches which had become divided many years ago. Defendants 1, 2 and 3 are the oldest members in the group and they are the sons of one Chinna Venkanna. Defendants 4 to 23 are the descendants of defendants 1 to 3. Chinna Venkanna had a second cousin Venkanna who had two sons Appayya and Venkanna. The plaintiff and defendants 24 and 25 are the sons of Appayya. Defendant 28 is a grandson of Venkanna, the brother of Appayya. Defendants 26, 27 and 29 are respectively the sons of defendants 24, 25 and 28. These families had admittedly been carrying on trade in Vizianagaram; for the purposes of the present suit, it is necessary to deal with three businesses which are referred to in the record as Kottu No. 1, Kottu No. 2 and Kottu No. 3. Kottu Nos. 1 and 3 seem to have been carried on in the market and Kottu No. 2 in the house. Kottu Nos. 2 and 3 were carried on in the name of defendant 1 while Kottu No. 1 was carried on in the name of defendant 2. It is admitted that in Kottu No. 1 defendants 1, 2 and 3 had an 8 annas share as representing their family, defendants 24 and 25 had a 4 annas share as representing their joint family including the plaintiff, and defendant 28 had the remaining 4-annas share. It is also admitted that in Kottu No. 2, the family of defendants 1 to 3 had a 12-annas share, the family of defendants 24 and 25 had a 3-annas share and defendant 28 had a 1-anna share. As regards Kottu No. 3, plaintiff and defendants 24 and 25 contend that their branch was entitled to a 3-annas share in this also as in Kottu No. 2; but defendants 1 to 23 maintain that this kottu was their exclusive concern and that the branch of plaintiff and defendants 24 and 25 or the branch of defendant 28 had no interest in it.

2. It is common ground that in the course of 1926, the parties deemed it best to dissolve the partnership in respect of Kottu No. 2 and that they agreed to its dissolution as from 28th June 1926 (see Ex. 10); but as the books of the business were at that time in the possession of the income-tax authorities, the settlement of accounts was postponed. It is also not disputed that on 2nd July 1927 the document (Ex. 4) was executed by defendants 1 to 3, 24, 25 and 28 purporting to be a settlement of accounts relating to Kottu No. 2. Kottu No. 1 was agreed to be dissolved as from 20th June 1927 and on 2nd July 1927 the arrangement evidenced by Ex. 5 was entered into in respect of this kottu. Lastly, it is admitted that there was no settlement of accounts in respect of Kottu No. 3 nor any attempt made to settle its accounts whatever the reason might be. The evidence makes it clear that though defendants 24, 25 and 28 signed Exs. 4 and 5, they did not receive the moneys payable to them in pursuance thereof and that they were not prepared to abide by them; but, instead of directly impeaching them, they put forward the plaintiff, who was a minor at the time, to send the notice (Ex. 39) dated 17th August 1927, which does not in terms refer to the settlements under Exs. 4 and 5 and attack them but merely suggests that defendants 1 to 3 had been putting off coming to a settlement and concocting false accounts in the meanwhile. Ex. 39 attempted to make out that not merely Kottu Nos. 1 to 3 but certain other businesses also including in particular a concern referred to as Ramalingeswaraswami Oil Press were the joint family concerns of the parties. This was replied to by Ex. 85 which denied the existence of any joint family business as alleged in Ex. 39 and admitting the existence of a partnership, so far as defendants 24, 25 and 28 were concerned, in Kottu Nos. 1 and 2, pleaded that the accounts of these concerns had been settled and that the amount payable to these three defendants as per those settlements had been deposited with one Dhara Veerabhadraswami (D.W. 8 in the case). About this item, attempts were made to ascertain whether defendants 24, 25 and 28 were prepared to draw the money which was said to have been deposited with D.W. 8, and as they were not willing to do so, D.W. 8 purported to report that fact to defendant 1 and to return the amount to him. The present suit was instituted on 7th January 1928 by the plaintiff who is the younger brother of defendants 24 and 25 and who happened to be a minor even on the date of the suit.

3. The plaint alleged that the businesses above referred to as Kottu Nos. 1, 2 and 3 were family businesses, that in Kottu No. 1 the plaintiff's branch was entitled to a four annas share and that in Kottu Nos. 2 and 3 that branch was entitled to a three annas share and that defendant 1 'as the eldest member of the family had been managing the three kottus and was in possession of all the accounts, cash balances and other assets relating to them. As regards the Ramalingeswaraswami Oil Press, the plaint mentioned that it was worked with capital borrowed from the assets of Kottus Nos. 1 and 2; the plaint accordingly claimed that in respect of Kottus Nos. 1 to 3, the plaintiff's branch was entitled to its share of the assets on the taking of accounts and that in respect of the oil press, it was entitled to a corresponding share in the interest payable on the capital borrowed therefor from Kottus Nos. 1 and 2. In paras. 5 to 8 of the plaint, reference was made to the settlement of accounts evidenced by Exs. 4 and 5 and various allegations were made against them. In para. 9 it was stated that defendants 1 to '3 had not paid even the amount admitted by them to be due to the plaintiff's branch. In the result the plaint prayed for the taking of the accounts of the three kottus and payment to the plaintiff's branch of a large sum of money which it was suggested would be due to that branch as representing its share, A decree was asked for in favour of the plaintiff or in favour of the plaintiff and defendants 24 to 27. Defendants 24 to 27 supported the plaintiff and it is stated by the learned Subordinate Judge that the suit was in fact conducted before him by defendants 24 and 28 on behalf of the plaintiff. Defendants 28 and 29 supported the plaintiff except for one point of difference, namely that in the 28th defendant's written statement Kottu No. 3 was stated to be an exclusive concern of defendants 1 to 23 and only interest was claimed in respect of advances taken for its working from Kottus Nos. 1 and 2. The contesting defendants were defendants 1 to 23. They objected to the maintainability of the suit as brought. They contended that the settlements evidenced by Ex. 4 and 5 were in the nature of awards and were binding till set aside. They also contended that the settlements were fair and reasonable and binding upon the plaintiff. On these contentions various issues were raised of which it is sufficient to refer at this stage to issues 3, 4, 5, 9 and 11. The issues relating to the existence of a joint family business and those arising out of the contention that there was an award rest upon a misapprehension and need not be noticed. There was nothing like a formal reference and an award and there was no question of a joint family business as between all the parties but only of business carried on in partnership by certain persons who were members of certain joint families.

4. The learned Subordinate Judge dismissed the suit both on the ground that as framed the suit was not maintainable and also on the ground that the plaintiff was bound by the settlements evidenced by Exs. 4 and 5. He also found against the plea that these settlements were brought about by fraud, coercion and undue influence. As regards Kottu No. 3, he held that defendants 24, 25 and 28 had no interest in it. He also recorded a finding of estoppel which has not been seriously supported before us. Against this decree of dismissal, the plaintiff and defendants 24 to 27 have preferred this appeal. Dealing first with the question of the maintainability of the suit, we may observe that we are unable to concur in. the view of the lower Court that the suit as framed is not maintainable. It has not been disputed that the plaintiff is a member of a joint Hindu family with defendants 24 and 25 and that as between them the interest of defendants 24 and 25 in the partnerships now in question was held as joint family property. It is true that according to the decision of the Full Bench in Gangayya v. Venkataramiah (1918) 5 A.I.R. Mad. 37 a person in the position of the plaintiff cannot maintain a suit for the dissolution of a partnership in which the managing member of his family was a partner; but that judgment does not deal with the rights of such a person and the remedies open to him after a dissolution of the partnership has taken place. This aspect of the matter has been dealt with in Soopi v. Abaulla (1924) 11 A.I.R. Mad. 909 and Sambasiva Iyer v. Natesa Iyer (1938) 25 A.I.R. Mad. 388. Both these decisions recognize that where on a dissolution the managing member partner has entered into an arrangement prejudicial to the interests of his family, the junior coparceners in that family are not without a remedy and that it is open to them to take steps to protect the interests of their family and for the realization of what represents the share of their managing member in the assets of the dissolved partnership. When the managing member has placed himself in an embarrassing position in respect of the assertion or protection of the rights of his family, the junior members are not without a remedy. On the analogy of the right of beneficiaries in similar circumstances, they can maintain a suit not merely against their manager but also against persons who are in possession of their share of the assets Beningfield v. Baxter (1887) 12 A.C. 167 and Meldrum v. Scorer (1887) 56 L.T. 471 ; see also Sharpe v. San Paula Railway Co. (1874) 8 Ch. A. 597. The allegations in the plaint undoubtedly question the binding character of the settlements entered into by defendants 24 and 25 under Exs. 4 and 5. The plaint also complains that defendants 24 and 25 were not entitled to ignore the share of the family in Kottu No. 3. The suit certainly therefore falls within the class of cases where the plaintiff as a beneficiary will be entitled to maintain the suit not merely against defendants 24 and 25 but also against persons in possession of the assets in which the plaintiff's family is entitled to a share.

5. We may in this connexion mention that a petition has been filed in this. Court praying that defendants 24 to 27 may be trans-posed as plaintiffs. A similar request seems to have been orally made in the Court below. As we have already mentioned, the Subordinate Judge states in terms that the suit was conducted on behalf of the plaintiff by defendant 24 and he makes defendants 24 to 29 liable for costs on the very ground that they were substantially the plaintiffs in the case. The plaint asks for a decree jointly in favour of the plaintiff and defendants 24 to 27. In the English practice, the cestuique trust is permitted to insist upon his being allowed to use the name of the trustee when suing a debtor to the trust estate, in circumstances like the present. When defendants 24 to 27 are themselves willing to be transposed as plaintiffs, it will merely be carrying out the principle above recognized to allow them to continue the suit. We accordingly order the transposition prayed for. Another petition filed in this Court may also be conveniently dealt with here. As we have said already, para. 9 of the plaint refers to the fact that even the amounts admittedly due as per Exs. 4 and 5 have not been paid and this is not disputed. In dealing with the general issue - issue 16 - the learned Judge observed that as defendant 24 was not a plaintiff, no decree could be given in his favour even for the admitted amount; and, as regards the plaintiff, he stated that no decree could be given to him because he was not a partner. We do (not think that this is a satisfactory way of dealing with the matter. We have already observed that though the plaintiff was not a partner, he was entitled to maintain the suit. It is true that in the plaint he asked for a much wider relief and also attacked Exs. 4 and 5; but that will not deprive him of the right to the more limited relief, namely the amount admittedly due under Exs. 4 and 5 : Bramanna Sastrulu v. Venkatasubba Rao (1913) 24 M.L.J. 361. As a precaution, the appellants have filed an application here for amendment of the plaint toy inserting a specific prayer to the effect that a decree may be passed in favour of the plaintiff and defendants 24 to 27 for the amount due at least as per the settlements Exs. 4 and 5. As we are of opinion that this relief could be granted even without the amendment, we see no harm in allowing the amendment to be made.

6. Proceeding now to the merits, we may first dispose of the case as regards Kottu No. 3. If it was the exclusive concern of defendants 1 to 3 as found by the learned Subordinate Judge, no further question will arise in respect of it in this suit. But if as the plaintiff maintains, it stood on the same footing as Kottu No. 2, the plaintiff for himself and as representing the other members of his branch would be entitled to a three-sixteenths share in the assets of that concern on the taking of accounts; because, it is the common case, as we have already pointed out, that the accounts of this kottu were not taken into consideration at all at the time of Exs. 4 and 5. It is proved by the admission of D.W. 18 and by the entries found in several pages in Ex. A series, the account books of Kottu No. 3, that during a period of more than a year defendant 24 had off and on written several pages in these accounts. The explanation given by D.W. 18 in respect of this circumstance is obviously absurd, namely that defendant 24 was there to train one of the witnesses' sons in the business because the witness's son referred to has long ago had his training in business.

7. The evidence of D.Ws. 2 and 3, whose reliability we see no reason to doubt, proves that for quite a long time defendant 24 had been working in Kottu No. 3 and the evidence of D.W. 2 is supported by the entries in the account book (Ex. 1) produced by him showing that moneys payable by the witness in respect of transactions between him and Kottu No. 3 has on many occasions been paid to defendant 24. No reason has been suggested why if defendant 24 had No. interest in this concern he should have been taking so much active part in its conduct. But all doubt on the matter is set at rest by the admission made in Ex. 69 by defendant 1 in whose name this business stood. It is a statement on oath made by him before the Income-tax Officer in October 1926. It deals with the various concerns in which the parties were interested and the accuracy of the statements there made in respect of Kottu No. 1 and Kottu No. 2, has not been disputed. Dealing with - Kottu No. 3 he said that it was a branch of the house (inti) shop, i.e., No. 2. He added 'the shares of the partners are the same as those of the main shop, i.e. the house shop (Kottu No. 2).' In a previous paragraph he had stated who the partners in Kottu No. 2 were and what their respective shares were. If this statement is admissible in evidence, there can be no doubt that it clearly proves the truth of the plaintiff's case.

8. It was contended on behalf of the contesting defendants that the statement Ex. 69 was not admissible in evidence, and this contention was accepted by the lower Court. We are unable to accede to this contention. The objection is based on Section 54, Income-tax Act of 1922. There can be no doubt that this provision is stricter and wider in scope than the corresponding provision in the Act of 1886 and decisions like those in Jadobram Dey v. Bulloram Dey (1899) 26 Cal. 281 and Venkatachala Chettiar v. Sampathu Chettiar (1909) 32 Mad. 62 may not be good under this Section. But the question for decision in the present case is not whether the Court can compel any public servant to produce before it any document of the kind mentioned in Section 54, but whether the Court is precluded from admitting in evidence a certified copy which has been given to one of the partners by the income-tax authorities, even when such a statement is otherwise relevant under the provisions of the Evidence Act. Clause (1) of Section 54 first declares that all particulars contained in certain documents 'shall be treated as confidential' and it then proceeds to direct that no Court shall insist on their production by a public officer. Clause (2) enacts a penalty in respect of the disclosure of such particulars by any public servant. It has been maintained before us that the declaration in the earlier part of Clause (1) has a wider effect than the direction in the latter part of the clause and prevents the admissibility of the copy in evidence even though it is available before the Court without any summons to a public officer. Reliance has been placed in this connexion upon two decisions of the Rangoon High Court reported in Anwar Ali v. Tafozal Ahmed (1925) 12 A.I.R. Rang. 84 and Ma Hla Mra Khine v. Ma Hla Kra Pru (1938) 25 A.I.R. Rang. 276. The actual decision in the latter case has little bearing on the question now before us, because the aid of the Court was there sought to obtain the information; only, instead of asking the Court to send a summons to the income-tax authorities the defendant attempted to circumvent the prohibition in Section 54 by requesting the Court to compel the plaintiff to obtain and produce certified copies of the return made by the plaintiff and of a statement made by the plaintiff's agent before the Income-tax Officer.

9. In Anwar Ali v. Tafozal Ahmed (1925) 12 A.I.R. Rang. 84, a certified copy of art income-tax return made by the plaintiff had been obtained by the defendant and was produced by him, the learned Judge held it was to be inadmissible, on the ground that the Evidence Act did not make admissible copies which have been unlawfully issued and certified. We do not wish to be-understood as accepting the reasoning in this judgment; it is unnecessary for the purpose of this case to express a definite opinion on the point then before the learned Judge. That case had to be dealt with under Clause (f) of Section 65, Evidence Act, which is restricted to cases in which the original is a document of which certified copy is permitted by that Act or by any other law to. be given in evidence; because the copy there produced was of an income-tax return which cannot itself be said to be a 'public' document : see Devidutt v. Shriram (1982) 19 A.I.R. Bom. 291. In the case before us, the original was itself a 'public document' because it was a statement recorded by the Income-tax Officer; we have only got to see whether what is produced before us is secondary evidence. A certified copy is certainly secondary evidence of a 'public' document. Section 76, Evidence Act, to which reference has been made in Anwar Ali v. Tafozal Ahmed (1925) 12 A.I.R. Rang. 84 and Devidutt v. Shriram (1982) 19 A.I.R. Bom. 291 is, in our opinion, only an enabling Section as regards the issue of certified copies. We are not, as at present advised,; prepared to read it as an exhaustive provision, much less as a provision declaring the grant of copies illegal in any particular case.

10. In Devidutt v. Shriram (1982) 19 A.I.R. Bom. 291 the learned Judges were apparently inclined to think that Section 54, Income-tax Act did not preclude 'proper' secondary evidence being given of the contents of documents of the kind referred to in that Section but they held that the 'certified' copies were not admissible. Assuming that this view could be maintained as regards copies of the return, we, are with all respect, unable to agree that a cetified copy even of the order of assessment, granted to the assessee, will be inadmissible. In holding that even the assessee is not entitled to obtain a certified copy of the assessment, the learned Judges seem to have lost sight of the fact that in the rules made under the Income-tax Act, there is an express provision for a copy of the order being granted to the assessee. (See Rule 99). There is however, no express provision either enabling or prohibiting the grant of copies of sworn statements even to the assessee.

11. In the present case, Ex. 69 appears to have been obtained by one of the assessees because assessment was imposed upon all the members of the firm, though the statement was made by only one of them, namely defendant 1. Even assuming that the strict view taken in Anwar Ali v. Tafozal Ahmed (1925) 12 A.I.R. Rang. 84 is correct, it is difficult to see anything illegal in the grant of copies of such documents to the assessee himself. The use of the word 'disclosure' in Clause (2) of Section 54, Income-tax Act implies that the disclosure must be to a stranger and not to the party who made the statement. Where one partner makes a statement on behalf of the partnership, we do not think it reasonable to hold that the grant of copies of that statement to other members of the partnership is illegal. It is not clear whether the declaration of the confidential character of such statements under Section 54 was intended to have a wider scope than the enactment in the latter part of the provision. But even so, it will be meaningless to talk of a statement as confidential in respect of the very person who made the statement. If one is to have regard to the general policy of the Legislature in matters of this kind, we may point out that in the penultimate proviso to Section 54| Income-tax Act an exemption has been made in respect of documents etc., relating to a procedure under Section 26-A of the Act. That Section relates to proceedings taken for the registration of partnerships for the purpose of the Act and the proviso to Section 54 distinctly contemplates that an Income-tax Officer may even be compelled to produce documents which will show the precise relationship between partners. Though Ex. 69 was not made in proceedings under Section 26-A of the Act, the above provision is some indication that it was not the policy of the Legislature to preclude from the cognisance of the Court information of the kind now sought to be obtained from Ex. 69. We accordingly hold that Ex. 69 is admissible in evidence and that it establishes the truth of the plaintiff's claim that the plaintiff's branch was entitled to a three-sixteenths-share in Kottu No. 3.

12. By way of leading to a contrary infer-ence, reliance was placed by the learned Counsel for the respondents upon the conduct of defendant 24 at the time when the accounts relating to Kottu No. 2 were settled.**** As regards Kottu No. 2, the story put forward by defendant 24 is unfortunately far from truth.**** We accordingly hold that there is no reason to disturb the settlement under Ex. 4 so far as Kottu No. 2 was concerned.

13. Before proceeding to deal with Kottu No. 1, we may dispose of one other claim made on behalf of the appellants. The accounts show that large sums have been advanced from the admitted partnership concern to the Ramalingeswaraswami Oil Press. On the basis of these entries, it was contended for the appellants that in taking the accounts of the partnership, the contesting defendants as owners of the oil press-should be debited with a reasonable rate of interest. The case was put as one in which a partner had made profits by the use of partnership money and reliance was placed in this connexion on Dean v. Macdowell (1878) 8 Ch. D. 845 and Gokul v. Sasimukki (1912) 15 C.L.J. 204. We do not think that this is really a case of a partner making profits by the use of partnership money. The account books treat the transaction only as one of loan by the partnership to the press and the plaint itself proceeds on the footing that this was a case of money lent. Under the law as it stood at the time that these transactions were entered into there was nothing to prevent a partner carrying on another business with the knowledge or consent of his co-partners : (see Section 259, Contract Act); and if with such knowledge the partners agree to one partner drawing moneys from the partnership for the benefit of such separate business and the moneys so drawn are shown in the partnership books as moneys lent to that business, there is no justification for claiming the profits of that business for the benefit of the partnership. On the basis of the relationship being one of creditor and debtor, the claim for interest can be substantiated only if it could be based either on contract or on the course of business. In the present case, the account books do not show that interest was at any time charged or paid; and as for agreement, defendant 24 candidly admitted that there was no arrangement that interest should be charged or paid. This claim must therefore fail.

14. It remains to deal with the plaintiff's claim in respect of Kottu No. 1. The settlement relating to it is evidenced by Ex. 5. As we have negatived the suggestion of collusion, undue influence, etc. in connexion with these settlements, the binding character of the settlement as against the plaintiff has to be determined in the light of a few undisputed facts. The accounts relating to this kottu are not before the Court. But D.W. 18 has produced Ex. 21 as being a copy made from a statement prepared by defendant 24 from the accounts then available of Kottu No. 1 preparatory to the settlement under Ex. 5. The answers of defendant 24 as regards Ex. 21 are very evasive, and we think that there is no reason to reject the story of defendant 1 in respect of Ex. 21. According to this document, Kottu No. 1 had the following assets at the time of the settlement, about Rs. 55,000 of outstandings which were considered good, about Rs. 10,000 of outstandings which were considered bad and stock on hand valued at Rs. 13,000. As against this, a sum of about Rs. 17,000 odd is shown as liabilities. We may roughly take it that excluding the bad debts, the net assets of the concern at the time it was closed were about Rs. 51,000. Ex. 5 refers to some mill shares, bull, cart, etc. connected with the shop. Ex. 21 does not refer to them and the evidence does not enable us to say what the value of these items was. The arrangement under Ex. 5 was that defendants 2 and 3 should take over the half share of the branches of defendants 24 and 28 in this kottu for a sum of Rs. 18,000.

15. The point for consideration is, whether this is a prudent and beneficial arrangement binding upon the plaintiff or an arrangement which sacrifices the interests of the joint family. It is important, in this connexion, to bear in mind that in respect of what we have taken as the net assets, there is no suggestion that any part of them could not be, or has not been, realised. As we have already stated, items amounting to Rs. 10,000 enumerated in detail in Ex. 21 have been excluded as bad debts. Defendant 3 who has given evidence as D.W. 19 has referred in general terms to the difficulty in collecting these assets but he has not stated that he was unable to collect any of them. It is true that some time after he had taken over Kottu No. 3 under this arrangement, there was a fire in the kottu and considerable loss was caused to him thereby, but that cannot affect the question of the value of the assets at the date of the settlement. It appears from Ex. 88-a, the partition list entered into between defendants 1 to 3 almost contemporaneously with the settlement, that for the purpose of that division, Kottu No. 1 was taken at the valuation of Rs. 50,000. We must, in these circumstances, hold that there was no justification for defendant 24 agreeing to accept a sum of Rs. 9000 as representing the fourth share of his branch any assets which were clearly worth more than Rs. 50,000. The principle applicable to this class of cases is stated in Gopalaswami Iyer v. Kalyana Rangappa (1925) 12 A.I.R. Mad. 848 and Dasaratharama Reddi v. Narasa Redai (1928) 15 A.I.R. Mad. 601. This is not a case in which it can be stated that the settlement is binding on defendants 23 and 25 but not binding on the plaintiff. It must be held to be not binding on the plaintiff and on defendants 24 to 27. But there is no reason in the circumstances to direct any fresh taking of accounts in respect of Kottu No. 1; because there is nothing to suggest that Ex. 21 does not correctly represent the state of the assets and liabilities of that concern. In view of the admitted fact of the fire in the kottu it is not easy to say which party is speaking the truth as to the existence or destruction of the material account books. It seems to us sufficient to direct that in addition to the amount provided for in Ex. 5, defendants 1 to 3 should make good to the plaintiff's branch the sum of Rs. 3500 which that branch would have obtained if the net assets as per Ex. 21 had been properly divided.

16. The learned Subordinate Judge has declined to give to plaintiff and defendants 24 to 27 a decree even for the amounts due as per the terms of Exs. 4 and 5. We have already indicated that he was not justified in so doing. The result is that the plaintiff for himself and for defendants 24 to 27, who have now been transposed as co-plaintiffs, will be entitled to recover the amounts due to their branch as per the terms of Exs. 4 and 5 and the additional amount of Rs. 3500 we have referred to above. They will also be entitled to whatever may be found to be payable in respect of the three-sixteenths share of this branch on the taking of accounts relating to Kottu No. 3. So far as the amounts payable under Exs. 4 and 5 are concerned, the amounts were tendered but not accepted by defendant 24. There is accordingly no justification for allowing any interest in respect of those amounts; but in respect of the additional amount of Rs. 3500 allowed by us, the plaintiff will be entitled to interest at 6 per cent, from date of plaint till date of payment. The amounts due under Exs. 4 and 5 will carry interest at 6 per cent, from the date of the lower Court's decree.

* * * *

17. The plaintiff has succeeded in part and failed as to the remainder; neither party has spoken the whole truth. In the circumstances of the case, we direct the parties to bear their respective costs both here and in the Court below.


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