K.S. Venkataraman, J.
1. This appeal has been filed by the plaintiff in O.S. No. 16 of 1957 on the file of the Subordinate Judge's Court, Devakottai, against the judgment and decree dismissing his suit. The suit is for taking accounts of a dissolved partnership and is directed against the first defendant Karuppiah Ambalam. The suit has been dismissed on two preliminary grounds : (i) that in part it involved the determination of title to immovable property situate in Malaya, a foreign territory; and (ii) limitation.
2. The following geneological tree will show the relationship of the parties:
Solayappa (died on 19-1-1946)
Ayyachamy (died on 30-3-50) Periannan alias Muthukannu
Married Visalakshi (died on 14-5-50). Married
(2nd defendant) Ponnalagi (3rd defendant).
Minor Dorairaj (Plaintiff) |
(4th defendant). (5th defendant).
The plaintiff's grandfather Solayappa and the first defendant Karuppiah Ambalam were sons of sisters. They carried on a partnership business in Malaya under the name and style of KR. PR. Mantin. Originally the business was at Mantin and later it was in Siramban. This partnership is admitted. It is also common ground that Solayappa had 3/4 share and the first defendant 1/4. share. Solayappa died on 19th January, 1946. Section 42 of the Partnership Act says, ' Subject to contract between the partners, a firm is dissolved by the death of a partner.' As pointed out by their Lordships of the Supreme Court in Commissioner of Income-tax v. Govindram Sugar Mills : 57ITR510(SC) , a firm of two partners necessarily gets dissolved on the death of one of the partners and to such a partnership the phrase, 'subject to contract between the partners ' cannot apply, because a partnership necessarily involves a minimum of two partners. Even where the legal representatives of the deceased partner take his place and carry on the business with the other partner, it will only be a new partnership. The plaint, however, states inaccurately that there was a contract between Solayappa and the first defendant that the partnership should continue without dissolution even in the event of the death of one of the partners, by the legal representatives taking his place. But, in substance, the case in the plaint is that a new partnership came into existence on the death of Solayappa, between his sons Ayyachami and Periannan on the one hand, and the first defendant on the other. Paragraph 13 of the plaint alleges:
He (first defendant) has caused the partnership business KR. BR to be continued at Seramban without break and without bringing about dissolution and treating Ayyachamy and Periannan as partners of the continuing business in the place of their deceased grandfather. (In the plaint Solayappa is throughout referred to as the grandfather). He caused the continuity of the firm to be recognised and registered according to the requirements of the law of Malaya by introducing their names and carried on the firm under his exclusive directions and management.
This is also made clear in the other paragraphs, like paragraphs 7 and 14.
3. The plaint further states that Ayyachamy and Periannan were given to drinking and other bad habits and, therefore, Ponnalagi, the wife of Periannan, acting as the next friend of her minor sons, Solamalai and Ramasami, instituted a suit, O.S. No. 33 of 1948, on the file of the Subordinate Judge's Court, Devakottai, on 3rd November, 1947, for partition. In that suit Ayyachamy was the first defendant, Periannan alias Muthukannu was the second defendant and Karuppiah Ambalam, the first defendant in the present suit (O.S. No. 16 of 1957) was the third defendant. Two other persons, with whom we are not now concerned, were impleaded as alienees. It will be seen that Ponnalagi and her sons Solamalai and Ramasami are respectively defendants 3 to 5 is the present suit. In that suit the assets of the partnership KR. PR. in Malaya were described in the ' C ' Schedule to the plaint. That suit was compromised on 5th April, 1949. Exhibit A-5 is the certified copy of the compromise. Its terms are very important, particularly Clause (1). We shall set out Clause (1) in original and also give a free translation of all the clauses:
'Regarding the shop set out in the C Schedule of the plaint, we have compromised as follows:
1. The above shop at Siramban was carried on for a long time between Solayan Ambalam, the father of defendants 1 and 2 with three shares, and the third defendant (Karuppiah Ambalam, the present first defendant) with one share. After the death of the said Solayan Ambalam, the above partnership is being carried on without a break as a partnership between defendants 1, 2 and 3 with the shares as before.
2. The remittance of $ 2,000 sent recently from the above shop by the third defendant (first defendant in O.S. No. 16 of 1957) has been properly settled by looking into the accounts.
3. In regard to the taking of accounts otherwise of the said partnership business, after the first and second defendants take out letters of administration after payment of duty to the deceased Solayan Abalam, we shall divide according to our shares the assets of the partnership in specie or their sale proceeds and at that time we shall finalise all the accounts.
4. Taking the shares of the shop as four, when the accounts are finally settled as stated in Clause (3), the 1 1|2 shares belonging to the family of the second defendant (Periannan alias Muthukannu) shall be divided, by the plaintiffs (present defendants 4 and 5) taking one share and the second defendant (their father Periannan taking a half share. 11/2 shares out of four will be taken by the first defendant (Ayyachamy, father of the present plaintiff). The third defendant (first defendant in O.S. No. 16 of 1957) will take one share. (Stated simply, it will be seen that this recognised, that the shares of Ayyachamy and Periannan were together three as against the one share of Karuppiah Ambalam, the present first defendant and there is a division inter alia between Periannan and his two sons, the two sons being the minor plaintiffs in that suit.
5. Since the shop at Siramban is a partnership and its assets are mostly immovable properties in foreign territories, the assets of the said shop are excluded from the suit. Hence it is prayed that the Court may record this and remove the C Schedule from the plaint and the third defendant without costs.
4. The above compromise was signed on behalf of the plaintiffs therein by their next friend Ponnalagi and by the first three defendants in that suit, namely, Ayyachamy, Periannan and Karuppiah Ambalam (present first defendant). The plaint asserts that the above compromise recites what was actually the fact, namely, that the partnership business was carried on without a break even after the death of Solayar Ambalam, as between Ayyachami, Periannan and Karuppiah. The plaint further states that the first defendant was throughout in charge of the business in Siramban and particularly after the death of Solayappa, and that the other two partners, Ayyachami and Periannan did not take any interest because of their profligate habits. The plaint charges the first defendant with gross acts of embezzlement. Ayyachami the father of the plaintiff died on 30th March, 1950 and Periannan (father of defendants 4 and 5) died on 14th May 1950. Paragraph 18 of the plaint states that the firm became dissolved without any doubt on 30th March, 1950 and still more indisputably on 14th May, 1950 and that the first defendant without handing over the assets to the plaintiff and defendants 4 and 5, misappropriated them. The plaint, therefore, prays for account from 18th January, 1946, but that was on the footing that the first defendant utilised the assets of the old partnership. See, for instance, paragraph 13 of the plaint, where it is stated that on 12th April, 1947 the first defendant opened a new account for the KR. PR. firm by transferring all the assets and liabilities of the firm to the new account.
5. The plaint also refers to three items of properties as thottam properties and states that they were the exclusive properties of Solayappa bought with the funds of the joint family of which he was the kartha or manager though the sale deeds for two of those properties stood in the name of the first defendant. The accounts of the income of those three properties were no doubt maintained along with the accounts of the KR PR. firm, but separately. The plaint prayed for an account of the income of those properties as well against the first defendant.
6. Originally the suit was filed with Dorairaj as the first plaintiff and Solamalai and Ramasami as plaintiffs 2 and 3. But at the instance of the plaintiff they were transposed, by an order in I.A.No. 184 of 1959, dated 7th April, 1959, as defendants 4 and 5, and that is how they have been described in the above narration as defendants 4 and 5. The explanation for this appears to be that the first defendant settled the claims of defendants 3 to 5 outside Court. The plaint was filed on 5th April, 1957, more than three years after 30th March, 1950, the date of the dissolution, according to the plaintiff. The delay is sought to be explained on two grounds : (1) the absence of the first defendant from India in Malaya for certain periods which have to be excluded under Section 13 of the Limitation Act, 1908 (the Act applicable when the suit was laid); (ii) the plaintiff was a minor. The fifth defendant was. still a minor. The fourth defendant attained majority on 21st January, 1956 but. the suit was filed within three years therefater.
7. The suit was contested by the first defendant on the following grounds : (1) There was no agreement between Solayappa and the first defendant that the partnership should continue even after the death of one of them. Further such an agreement is out of question in a case where there were only two partners. (2) The partnership came to an end on 19th January, 1946. No new partnership was formed between. Ayyachamy, Periannan and the first defendant. (3) The original partnership came to an end on 19th January, 1946 by the death of Solayappa. Ayyachamy and Periannan were competent to give a valid discharge on behalf of their sons, (the plaintiff and defendants 4 and 5) in respect of the accounts of the firm which was dissolved on 19th January, 1946 and no suit having been filed by them within three years of 19th January, 1946, no cause of action survived to the plaintiff or defendants 4 and 5 and the suit was time-barred. (4) The thottam properties were not the exclusive properties of Solayappa but belonged to the partnership and the first defendant was entitled to 1/4 share in them. (5) There was thus a dispute about title to the immovable properties lying in Malaya and even for giving a relief of accounting of the income thereof, the Subordinate Judge's Court, Devakottai, had no jurisdiction. The first defendant was not in charge of the firm. Solayappa had been in charge of the firm during his life-time and after him that partnership which was dissolved on his death was wound up, and in the course of such winding; up Ayyachamy and Periannan and also their two widows, Visalakshi and Pennalagi, received payments from the first defendant in full quit of the claims of the plaintiff' and defendants 4 and 5. They also were in management. The first defendant was, therefore, not liable to account at all. He did not commit any acts of misappropriation. (7) Exhibit A-5 is inadmissible for want of registration. According to the first defendant, it does not mean that there was any partnership between Ayyachamy, Periannan and the first defendant. On the other hand, it would only show how accounts should be taken of the partnership which had become dissolved on the death of Solayappa. Further, Exhibit A-5 contemplates that letters of administration had to be obtained for Solayappa and the suit as framed without obtaining letters of administration was not maintainable.
8. Several issues were framed, but, as mentioned already, the learned Subordinate Judge dismissed the suit on the preliminary grounds of limitation and jurisdiction. On the question of limitation, the learned Judge took the view that no new partnership came into existence as between Ayyachamy, Periannan and the first defendant and that the original partnership got dissolved on the death of Solayappa. He also thought that Exhibit A-5 required registration and that, in any case, it was only a piece of evidence on the question, whether the old business was carried on between Ayyachamy, Periannan and the first defendant. As against Exhibit A-5, there were clear statements in Exhibit A-1, the plaint filed in O.S. No. 33-of 1948, that the partnership between Solayappa and the first defendant had become dissolved on 18th January, 1946 and accounts had to be taken of that dissolved partnership.
9. On the question of jurisdiction he held that it was clear from the decision of the Bench of this Court (Wadsworth and Rajamannar, JJ.) in Nachiappa Chettiar v. Muthukaruppan Chettiar : AIR1946Mad398 , and the Statement of Law in. Halsbury's Laws of England (Vol. 6 Hailsham's Edn.) that the Subordinate Judge's Court, Devakottai, could not adjudicate on the title of the thottam properties situate in Malaya, and that even the relief of accounting of the income therefrom involved an adjudication of the title of those properties and that consequently the Subordinate Judge's Court had no jurisdiction.
10. The question of jurisdiction is fundamental, but the position has been considerably simplified, because in this Court the plaintiff has filed a memorandum through his learned Counsel giving up the contention that the thottam properties belonged to Solayappa, and accepting the first defendant's contention that the properties belonged to the partnership and that the appellant's grandfather was only entitled to three-fourth share therein. The position therefore is very simple, namely,, that here is a suit for taking accounts of a dissolved partnership against a defendant who is resident within the limits of the jurisdiction of the Devakottai Subordinate Judge's Court. The partnership has assets in the shape of immovable properties in Malaya, and there is no dispute about the title of the partnership to those assets,, so far as the plaintiff and the first defendant are concerned. Under these circumstances, the principle and commonsense inform us that there can be no objection to the Devakottai Subordinate Judge's Court trying the suit. Once it is ascertained whether any amount is due from the first defendant and if so the quantum thereof, it may well happen that the parties may agree about the valuation of the assets in Malaya and the defendant may pay the proportionate share thereof to the plaintiff in India itself which the plaintiff may accept. In such a case the plaintiff need not go to the foreign Court in Malaya at all. Secondly, even if it is necessary to sell the immovable property in Malaya, it may be done by a receiver appointed by the Subordinate Judge's Court, Devakottai, and, under the rules of Private International Law and the Comity of Nations, the foreign Court in Malaya is bound to recognise the appointment of the receiver. Thirdly, even if it should become necessary for the receiver to remove any impediment or obstruction from any third party in, Malaya the receiver can seek the aid of the foreign Court and the action will be tried according to the laws prevailing in Malaya. From any point of view, therefore, there is no possibility of the decree passed by the Subordinate Judge's Court, Devakottai,, becoming ineffective or useless. Therefore, it is clear that the Subordinate Judge's Court, Devakottai, will have jurisdiction in such cases. These propositions, which accord with principle and commonsense, of course find place in the leading text books and in several decisions, English and Indian. They will be found collected in the leading text books and digests.
11. The important principle to bear in mind is that the suit here is essentially an action in personam against a defendant who is amenable to the jurisdiction of the Subordinate Judge's Court, Devakottai. It is en accepted principle that in such cases the Court (where he resides) will have jurisdiction to try the action. In fact,, in England the principle has been extended even to a foreigner, usually resident abroad, but who happens to come to England even temporarily, provided that the writ in the action is served upon him when he is in England. The law is thus stated in 7 Halsbury, page 6, paragraph 4 (the reference is always to Simonds Edn.):
The English Courts have jurisdiction (subject to the exceptions referred to below) to entertain an action in personam against any person who is within the jurisdiction at the time when the writ in the action is served upon him, however, transitory his sojourn in England may be.
12. Again, even though the general principle is that the English Court will not have jurisdiction to try an action involving the determination of title to foreign immovables, there are some exceptions, which have thus been stated at page 33 of Halsbury Vol. 7:
The English Courts have power to exercise a jurisdiction in personam, in respect of foreign immovables against persons locally within their jurisdiction, in cases where there is an equity between the parties arising from contract, fraud, or trust, provided that the decision of title is not directly involved, and provided that such equity does not depend for its existence on the lex loci of the foreign immovable. Such an equity must be of a personal nature, that is, there must be either a fiduciary relationship or privity of some other kind between the parties for the Courts will not exercise their jurisdiction in order to enforce English principles of equity against third persons who have acquired a good title by the local law, or (in (he absence of privity between the parties) to impose on a foreign immovable a burden other than that which the local law requires it to bear.
The exceptions do not obviously apply here. It is on the above principle that it has been held that ' the English Courts have jurisdiction to order the specific performance of any contract relating to foreign immovables which the lex loci rei sitae allowed to be carried into effect.' (see page 36).
13. Again, at page 32 it is stated:
The English Courts have jurisdiction to order an account of rents and profits between tenants in common of a foreign immovable.
14. At page 37 it is stated:
The English Courts have jurisdiction to order an account of the rents and profits of a foreign immoveable against any person liable to account in respect thereof, and in a suitable case a receiver will be appointed. The Court does not, and cannot, by its order put a receiver in possession of foreign immoveables, but any party to the action in which the order is made who prevents the necessary steps from being taken to enable the receiver to take possession according to the lex loci rei sitae is guilty of contempt.
15. Again, at page 59 it is stated:
The English Courts have (with very few exceptions) jurisdiction to entertain an action relating to a contract, wherever made, in all cases where the parties are effectively before the Court, as where personal or substituted service of the writ has been effected on the defendants in England....
16. Cheshire in his Private International Law, in Chapter XVI (page 523 of the Seventh Edn. and page 582 of the Fifth Edn.) states:
The objection that a Court has no jurisdiction owing to the foreign situs of the res litigiosa is fatal to an action in rem, but is no answer to an action in personam.
He quotes the following passage from Lord Sellborne in Ewing v. Orr Ewing (1883) 9 A.C. 34 : (1883) 53 L.J. Ch. 435.
The English Courts of Equity are, and always have been Courts of conscience operating in personam and not in rem and in the exercise of this personal jurisdiction they have always been accustomed to compel the performance of contracts and trusts as to subjects which were not either locally or ratione domicilii within their jurisdiction.
17. We may also quote here the dictum of law of Blackburn, J., in the same case (page 46):
The jurisdiction of the Court of Chancery is in personam. It acts upon the person whom it finds within its jurisdiction and compels him to perform the duty which he owes to the plaintiff.
18. Cheshire also states, at pages 505 and 506 of the Seventh Edn. (page 559 of the Fifth Edn.), two exceptions to the principle that a possessory or proprietary title to foreign land is not justiciable in England. The first is stated thus:
If the conscience of the defendant is affected in the sense that he has become bound by a personal obligation to the plaintiff, the Court, in the exercise of its jurisdiction in personam will not shrink from ordering him to convey or otherwise deal with foreign land.
This doctrine was established in Perm v. Baltimore (1750) 1 Ves. Sen. 444. We are not concerned with the other exception.
19. The same principle is also stated in Dicey's Conflict of Laws (Seventh edition) at pages 151, 155, and 169.
20. Kerr on Receivers, Thirteenth Edn. (1963) states (at page 93):
It is not necessary, in order that the Court may have jurisdiction to appoint a receiver, that the property in respect of which he is to be appointed should be in England, or indeed, in any part of Her Majesty's Dominions, though the extent to which the receiver may be able to obtain possession of the property depends on the Lex Loci. Persons have been appointed to receive the rents and profits of real estates and to convert, get in and remit the proceeds of property and assets, in cases in which the estate or property in question has been in Ireland; in the West Indies; in India; in Canada; in China; in Italy; in America; in New South Wales; in Jersey; in Brazil and in Peru. But the Court will not make such an order if it would be useless. Although the Court has no power of enforcing its orders and decrees in places beyond the jurisdiction, the receiver may be authorised to proceed abroad, or to appoint an attorney, and a party to the cause who resists him or his attorney will be guilty of contempt.
21. Similarly, in 32 Halsbury (at page 410) dealing with Receivers, it is stated:
A receiver may be appointed of property situate in a foreign country. Although the Court is unable to enforce delivery of possession it may direct an enquiry as to the best means of obtaining possession and make any necessary order on a defendant within its jurisdiction. It is usual to authorise the Receiver to appoint an agent to act in the foreign country. The Court will recognise a person in the position of a receiver appointed by a foreign Court.
22. We shall now refer to some of the cases chronologically. Houlditch v. Marquess of Donegall (1834) 2 C.F.R. 470 : 6 E.R. 1232, was a case decided as early as 1834 by the House of Lords. The head-note sums up the position correctly and is as follows:
The creditors of a person resident in Ireland, filed a bill in the English Court of Chancery, and obtained a decree for an account, etc. and afterwards (the property of the debtor lying chiefly in Ireland) filed a bill in the Court of Chancery there, praying to have the full benefit of the proceedings in the English suit. The Court of Chancery in Ireland dismissed such second bill as for want of jurisdiction. Held that the judgment of the Court of Chancery in Ireland was erroneous, that the proceedings in the English Court of Chancery were in the nature of a foreign judgment, and were to be treated as such in Ireland, namely, as prima facie evidence of right in the party who had obtained the judgment. Held also that this House could either remit the case with directions, or appoint a Receiver, and take such other proceedings as the Court of Chancery in Ireland might have done.
A reading of page 481 shows that the House of Lords ordered a Receiver to be appointed and further directions were reserved to the Court of Chancery in Ireland.
23. In Bunbury v. Bunbury 1 Beavan-1, 318 at 336 : (1839) 8 L.J. Ch. 297, the English Court directed the Master to appoint a manager of the estate in a foreign territory in the West Indies.
24. Hinton v. Galli 24 L.J. Ch. 121, was a case of 1854 where the Master of the Rolls appointed a Receiver for the estate of the deceased Galli situate in Italy and authorised the Receiver to appoint an agent in Italy.
25. Hendrick v. Wood 30 L.J. Ch. 583, was a decision of the Vice-Chancellor in 1861, and it is an. interesting case, because it resembles ours. The plaintiff wanted inter alia to realise the remaining assets of a firm, the assets being situate in Jamaica, and wanted a receiver to be appointed. The head-note correctly sums up the position:
The plaintiff being in England, filed a bill for an account against the executors of a deceased partner, some of whom were in England, but acting in concert with the others, who were in Jamaica; the partnership property being also in Jamaica;--Held, upon a plea to the jurisdiction by the executors resident in Jamaica,, that the suit was properly instituted in this country (England).
26. Then comes the decision of the House of Lords in 1883 in Ewing v. On Ewing 9 A.C. 34 : 53 L.J. Ch. 43. We have already quoted from the speeches of Lords Selborne and Lord Blacburn. It was held that the English Court had jurisdiction to administer the trusts of the will as to the whole estate, both Scotch and English, and that as no proceedings were pending in a Scotch Court by which the interests of the plaintiff could have been equally protected, the jurisdiction was not discretionary, but that the decree was a matter of course.
27. In Bolton v. Curre (1894) W.N. 122, a case of 1894, the English Court appointed a receiver of a foreign property in Ireland.
28. In Maudslay v. Maudslay Sons and Field (1900) 1 Ch. 602, it was stated:
It is well settled that the Court can appoint receivers over property out of' the jurisdiction. This power, I apprehend, is based upon the doctrine that the Court acts in personam. The Court does not, and cannot attempt by its order to put its own officer in possession of foreign property, but it treats as guilty of contempt any party to the action in which the order is made who prevents the necessary steps being taken to enable its officer to take possession according to the laws of the foreign country. See Keys v. Keys (1839) 1 Beav. 425, where special directions were given to a receiver as to the best mode of getting in an Indian debt; and Smith v. Smith (1853) 10 Hare, App. 71 where it was pointed out that a receiver of property in Jersey and in France would have to recover possession according to the laws of these countries; and in Houlditch v. Marquis of Donegal (1834)1 C.F.C. 470, the House of Lords held that the Court of Chancery in Ireland ought to appoint a receiver in a suit instituted to carry into effect a decree of the Court of Chancery in England by which a receiver had been appointed over estates in Ireland.
29. Kerr on Receivers also refers to other Instances, which are found collected in Soton's Judgments and Orders (Seventh Edn. at page 776, etc.) where receivers were appointed of foreign properties.
30. We shall now refer to some of the Indian decisions. In Durgadas v. Jai Narain I.L.R. (1919) All. 513, a suit was brought for dissolution of a partnership in the Aligarh Court. The cause of action arose within the jurisdiction of that Court. The parties were residing, within that jurisdiction. The defendant, however, pleaded that the Court had no jurisdiction because the factory which belonged to the parties was situate outside the jurisdiction of that Court. The trial Court upheld this contention and ordered the plaint to be re-presented to the proper Court. That decision was affirmed in appeal. In revision to the High Court, the learned Judges set aside the orders of the Courts below and held that the Aligarh Court had jurisdiction. They pointed out that the Court would have jurisdiction (under Section 20, Civil Procedure Code) unless the jurisdiction was excluded by Section 16; but the jurisdiction was not so excluded because there was no dispute about the title to the immovable property which was admitted to be partnership property. It was pointed out that Section 16 (a) relating to recovery of immovable property would apply only to a case where the title of the plaintiff is denied by the defendant and the plaintiff seeks to recover the property from the defendant. For the same reason Clause (d) of Section 16 would not apply because there was no dispute about the right to immoveable property or interest in immovable property. The principle of this decision directly applies to the facts of the case before us, in view of the memorandum of the plaintiff filed in this Court giving up his exclusive claim to the thottam properties in Malaya.
31. Ismailji v. Ismail Abdul I.L.R. (1921) 45 Bom. 1228, was a case where there was a partnership consisting of three persons, the plaintiff the first defendant and one Sulemanji. It carried on business at Chanchai in Delagoa in South Africa. It was managed by the first defendant at Chanchai. In 1902 Sulemanji died. The plaintiff filed the suit in Bulsar in Surat District for dissolution of the partnership and for taking accounts. Both the plaintiff and the defendants were within the jurisdiction of the Bulsar Court. Objection was, however, taken that the Court had no jurisdiction over the property of the partnership situate in South Africa and could not appoint a receiver to take possession thereof. This objection was upheld by the trial Court (Subordinate Judge). But on appeal the learned Judges of the High Court held that the Bulsar Court had jurisdiction. They observed:
Section 20 of the Civil Procedure Code clearly gives the Courts jurisdiction to decide any suit within the local limits of whose jurisdiction the defendant resides, subject to limitations prescribed in Sections 16 to 19. But it must be admitted that none of those limitations apply to this suit. If therefore, the plaintiff and the defendant were within the jurisdiction of the Bulsar Court, the plaintiff could file a suit against, the defendant for dissolution of partnership, even although that partnership commenced and was carried on in foreign territory. It might be difficult to take the accounts of the partnership. That is purely a matter for the plaintiff's consideration, while there can be no doubt that a Court can appoint a receiver of property outside its jurisdiction and even in foreign territory, although the receiver in endeavouring to take possession of the suit property will have to apply and will be subject to the law of the territory in which the property is situated. But all those questions have nothing to do with the question of jurisdiction of the Bulsar Court, which is prima facie entitled to pass a decree in favour of the plaintiff against the defendant for dissolution of partnership and for accounts unless the Indian law of limitation bars the plaintiff's remedy in the Indian Courts.
This decision, again, directly applies to our case.
32. The above decision was followed by the same High Court in Chandulal Madhavlal v. Maneklal Lalluram I.L.R. (1931) 55 Bom. 309, and a receiver appointed by a Court of the Baroda State was recognised as a proper party for the purpose of filing suits in the British Courts.
33. In Sunder Singh v. Ganga Ram I.L.R. (1938) Lah. 305, the High Court upheld the order of appointment of receiver by the British Court in respect of property situate in an Indian State and observed that the proper course would be to direct the defendant, who was admittedly in possession of the property to hand over the property to the receiver. Some of the cases discussed by us were referred to and followed.
34. There is a full discussion of the legal position in Prithi Singh v. Thakur Ganesh Prasad Singh I.L.R. (1951) All. 703 : 2, where the question arose, on an application filed by the mortgagor under the provisions of the United Provinces Agriculturists Act, 1934, for a declaration that the mortgage of the properties situate in Banares District and in Banares State (then a native State) had become discharged on account of the mortgagee having been in possession of the properties for the period prescribed by the Act. The suit was brought in the Court in Banares District and it was held that, though the relief of redemption of the property in Banares State could not be given in view of the provisions of Section 16 of the Civil Procedure Code, the Court in Banares District had jurisdiction to order an account to be taken of the rents and profits derived from both sets of properties for the purpose of giving the relief which the applicant actually desired. It was in that connection that the whole question of the jurisdiction of a Court in respect of property in foreign territory was discussed.
35. The decision in Nachiappa Chettiar v. Muthukaruppan Chettiar : AIR1946Mad398 , relied on by the learned Subordinate Judge, is clearly distinguishable. The suit there was for partition and some of the assets were immovable properties in Ceylon where the joint family had been carrying en money-lending business. It was a trading family. There was also dispute about title to some of the immovable properties in Ceylon. One of the objections of the defendant was that the Subordinate Judge's Court, Devakottai, had no jurisdiction in respect of the properties in Ceylon. This contention was upheld by the trial Court (Subordinate Judge's Court, Devakottai),, and relief was given by the trial Court only in other respects. The plaintiff preferred an appeal in respect of the Ceylon properties. His learned Counsel sought to get out of the difficulty of jurisdiction by urging that the immoveable properties in Ceylon belonged to the partnership and what was sought was only a division of the assets of the partnership and, if so, the Subordinate Judge's Court, Devakottai, would have jurisdiction. The learned Judges recognised that in the case of a bare partnership owning properties in Ceylon, a suit for the dissolution of the partnership and accounts could be brought in Devakottai, but rejected the contention on the ground that the case before them was that of a trading family and in the case of a trading family even the partnership assets must be deemed to be joint family properties. It was therefore a simple case of partition of immovable properties belonging to the joint family and from that point of view the Subordinate Judge's Court, Devakottai, had no jurisdiction. In the present case, however, the members forming the partnership did not all belong to a joint family, because the first defendant was a stranger. Hence, that decision does not apply. On the contrary, it is pertinent to remark that the very decision recognises that in the case of a partnership, such as the one we have here, it is permissible to bring a suit for accounts of the dissolved partnership, even though some of the assets may be in the shape of immovable properties outside India where there is no dispute about title. The principle on which jurisdiction of the Indian Court has been recognised is that the normal remedy of the parties is only to sell the assets of the partnership and to a share thereof after meeting the debts. That principle has been affirmed by their Lordships of the Supreme Court in Narayanappa v. Krishnappa : 3SCR400 .
36. In Ramanathan Chettiar v. Narayanan Chettiar : AIR1955Mad629 , a partition suit was brought by the sons of a joint Hindu family against their father. Some of the properties were in Ceylon and in Burma. In respect of them the plaintiffs did not seek any partition, but prayed for an account of the income therefrom. Mack and Krishnaswamy Nayudu, JJ. held that from the date of severance of the joint family that particular relief could be awarded on the principle that it was an action in personam, arising out of a simple agency or equity, and they distinguished Nachiappa v. Muthukaruppan : AIR1946Mad398 .
37. For the above reasons we have no hesitation in holding that in this case the Subordinate Judge's Court, Devakottai, had jurisdiction to entertain the suit and, if it becomes necessary, the Court would have jurisdiction to appoint a receiver to realise the assets of the partnership (including immovable properties) situate in Malaya.
38. Before leaving this point of jurisdiction, it is necessary to refer to two matters which were adverted to during the arguments. It was stated by Sri T. R. Srinivasan, the learned Counsel for the contesting respondent (first defendant), that a suit had been brought in Malaya for the same relief which the plaintiff has sought in the present suit. At that stage the learned Counsel did not give any particulars of the suit, and Sri A. Sundaram Iyer, the learned Counsel for the appellant explained that the suit referred to was a suit for accounting of the income from the thottam properties on the footing that they belonged exclusively to Solayappa and thereafter to the plaintiff and the others, and that the suit had nothing to do with the taking of accounts of the dissolved partnership. Sri Sundaram Iyer further admitted that in view of the memorandum filed by the plaintiff before us in this Court, accepting the contention of the first defendant that the thottam properties also belong to the partnership and the relief of accounting which the plaintiff would get on that basis in the present suit, the plaintiff would necessarily have to abandon the suit filed in Malaya for that purpose. This was what took place before we reserved judgment. But after we reserved judgment, Sri T. R. Srinivasan took cur permission to file the papers in Civil Suit No. 120 of 1966 on the file of the High Court in Malaya. It was explained by Sri Sundaram Iyer that that suit was filed by the plaintiff after the Subordinate Judge of Devakottai dismissed the present suit, O.S. No. 16 of 1957, and for the same relief of accounting of the dissolved partnership. Sri Sundaram Iyer explained that the plaintiff adopted that course, because he could not be certain that this appeal filed by him would be successful. Sri Sundaram Iyer further pointed out that because of the pendency of this appeal, the defendant himself had obtained stay of the trial of the said suit, C.S. No. 120 of 1966. It is obvious that the suit, C. S. No. 120 of 1966, cannot be an impediment to the disposal of this appeal and a further trial of the suit, O.S. No. 16 of 1967.
39. That brings us to the point of limitation. As already pointed out, the real case of the plaintiff is that after the death of Solayappa on 19th January, 1946, a new partnership came into existence between Ayyachami, Periannan and the first defendant and that it was dissolved en 30th March, 1950, the date of the death of Ayyachami. The learned Subordinate Judge finds that there was no such partnership and that the only partnership was that between Solayappa and the first defendant which came to an end on 19th January, 1946. In coming to this conclusion he was mainly influenced by the recitals in the plaint in O.S. No. 33 of 1948 (Exhibit A-1) and he was disinclined to attach any importance to Exhibit A-5 and, in fact, in his opinion, Exhibit A-5 was inadmissible for want of registration. We shall presently show that this objection of non-registration is not valid and that Exhibit A-5 is admissible. If once Exhibit A-5 is held to be admissible, it is absolutely clear therefrom that there was a partnership between Ayyachami, Periannan and the first defendant and in that partnership Ayyachami and the sons of Periannan were also entitled to a share. The first clause of Exhibit A-5 clearly recites that the original partnership was carried on even after the death of Solayan Ambalam without a break but as a partnership between the three defendants with their shares as before. The share of Solayappa was three and that of the first defendant was one. The share of Solayappa was further sub-divided, Ayychami having 1 1/2 shares and Periannan's branch having three shares. In Periannan's branch, Periannan was entitled to a half and his two sons were entitled to one share. In our opinion. Exhibit A-5 constitutes a contract binding on the parties thereto, including the first defendant and it is therefore not open to him to assert anything to the contrary.
40. It has been argued by Sri T. R. Srinivasan, the learned Counsel for the first defendant that Exhibit A-5 only means that the accounts had been settled till then, and cannot mean that the old partnership was continued without a break upto 5th April, 1949. We are entirely unable to accept this argument in view of the clear recital in Clause (1) of Exhibit A-5 and the further recital of the shares of the new partners in Clause (4). After all, there is nothing surprising in the old partnership continuing for practical purposes without a break, though the partners would be different, the assets of the old partnership being utilised for the new partnership. Instances of this can be found in Ahinsa Bibi v. Abdul Kader Saheb I.L.R. (1902) Mad. 26 and Mt. Sughra v. Babu : AIR1952All506 where it is pointed out that the assets of the old partnership would form the capital contribution of the new partnership and in order to determine the capital contribution it may be necessary incidentally to take an account even of the old partnership.
41. Sri T.R. Srinivasan, however, contends that there was no continuance of the partnership after the date of Exhibit A-5 (5th April, 1949). That question has not been gone into yet. We propose to remit that question for trial by the trial Court, giving an opportunity to both sides to adduce the necessary evidence. But that can only relate to what happened after 5th April, 1949. So far as what happened between 19th January, 1946 and 5th April, 1949, Exhibit A-5 is clear and cannot be contradicted by the first defendant. The parties must proceed on the footing, and likewise the Court must proceed on the footing, that there was a partnership without a break from 19th January, 1946 to 5th April, 1949, and that the assets of the old partnership were utilised for that purpose.
42. Once we arrive at the above position, it will be seen that the suit is in time even if it should be held hereafter that there was no partnership after 5th April, 1949. We shall refer to that later. We proceed straightaway to a consideration of the important question whether Exhibit A-5 is inadmissible for want of registration. The objection is that it requires registration under Section 17 (1) (b) of the Indian Registration Act of 1908. Section 17 (1) (b) reads as follows:
17. (1) The following documents shall be registered, if the property to which they relate is situate in a district in which and if they have been executed on or after the date on which, Act XVI of 1864 or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877 or this Act came or comes into force, namely:
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
It is urged that Exhibit A-5 declares the rights of the parties in immovable properties though in Malaya and requires registration under Section 17 (1) (b). In passing it may be noted that no objection has been taken on account of the nonregistration of Exhibit A-5 in respect of other properties situate in British India and covered by the other Schedules in the suit, O.S. No. 33 of 1948, presumably because they were the subject-matter of the suit and registration would be unnecessary in view of Section 17 (2) (vi) of the Act. In our opinion, there is absolutely no substance in this objection that Exhibit A-5 requires registration in respect of the immovable properties of the partnership in Malaya. There are at least three reasons, each of them good, for our view, (i) it merely recites the pre-existing right of the parties in the immovable properties of the partnership in Malaya; (ii) it does not deal with any specific immoveable property and allot it to one or the other of the parties; and (iii) the Indian Registration Act of 1908, and in particular Section 17 (1) (b) would apply only to India and cannot apply to immovable properties situate in Malaya.
43. It will be convenient to take up reasons (i) and (ii) together. In Bageshwari Charan Singh v. Jaganath Kuari , their Lordships of the Privy Council approved the view of West, J., in an early Bombay case that the word ' declare ' occuring in Section 17 (1) (b) will apply only to those instruments which bring about a definite change of legal relation to the property by an expression of will embodied in the document referred to and will not apply where it merely recites the pre-existing facts. In the case before West, J., in Sakha Ram Krishnaji v. Madan Krishnaji I.L.R. (1880) 5 Bom. 232, the document in question acknowledged the pre-existing title of the eldest brother M. of the executants to the sites on which the brother M. was putting up houses. West, J., in holding that it did not require registration observed:
Here, however, the document is not itself one which declares a right in immovable property, in the sense probably intended by Section 17. There ' declare* is placed along with ' create,' ' assign ' 'limit,' or ' extinguish ' a ' right,' ' title or interest,' and these words imply a definite change of legal relation to the property by an expression of will embodied in the document referred to. I think this is equally the case with the word ' declare.' It implies a declaration of will, not a mere statement of fact, and thus a deed of partition, which causes a change of legal relation to the property divided amongst all the parties to it, is a declaration in the intended sense; but a letter containing an admission, direct or inferential, that a partition once took place, does not ' declare ' a right within the meaning of the section.
44. Their Lordships of the Privy Council observed:
Though the word ' declare ' might be given a wider meaning, they are satisfied that the view originally taken by West, J., is right. The distinction is between a mere recital of a fact and something which in itself creates a title. The distinction has been acted on in cases connected with mortgages by deposit of documents of title....In the present case the statement in the petition of the respondent did not create any right in the Thakur. It merely acknowledged as a fact that such right was his. There was therefore no necessity for registration.
45. The above decision was followed with approval by their Lordships of the Supreme Court in Nachiappa Chettiar v. Subramaniam Chettiar (1960) 1 A.W.R. 101 : (1960) 1 M.L.J. 101 : (1960) a S.C.R; 209 : (1960) S.C.J. 416, and Narayanappa v. Krishnappa (1966) 2 A.W.R. 60 : (1966) 2 M. L.J. 60 : (1966) 2 S.C.J. 490, already referred to, where the document was construed as merely reciting a fact which had taken place earlier. It will be seen that in the present case there was no dispute at the time of the compromise in O.S. No. 33 of 1948 about the shares of the parties. Clause (4) there merely recited what was common ground between the parties, and did not bring about any change in the legal relation of the parties with respect to the properties.
46. Secondly, Exhibit A-5 did not allot any specific item of immovable property to any of the parties. It does not even say that the properties have necessarily to be divided in specie, in the respective shares. It contemplated that the properties might have to be sold and accounts finalised which is the normal mode of working out the rights of partners, as pointed out in Narayanappav. Krishnappa (1966) 2 A.W.R. 60 : (1966) 2 M. L.J. 60 : (1966)2 S.C.J. 490, already referred to. According to Exhibit A-5, even if it should become necessary to divide the properties in specie, that had to be done by any instrument which was to come into existence later when the accounts were finally settled. It did not therefore create or declare any interest in any particular item of property in any of the parties.
47. Thirdly, it is clear that the Indian Registration Act, 1908 cannot apply to immovable properties in Malaya. Section 1 (2) of the Act says that the Act extends to the whole of India except the State of Jammu and Kashmir, and it is provided that the State Government may exclude any districts on tracts of country from its operation. The Act therefore does not purport to apply to any immovable properties outside India. The scheme of the Act also confirms this. Section 17 says that the documents specified therein shall be registered if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, the Registration Acts of 1864, 1866, 1871, 1877 or 1908 came or comes into force. Section 5 of the Act says that for the purposes of the Act the State Government shall form districts and subdistricts. Section 5 of the Act says that for the purposes of the Act the State Government shall form districts and sub-districts. Sections 28 to 31 contain important provisions about the place of registration. In the case of documents relating to immovable property, they shall normally be presented for registration in the office of the Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates, is situate. Sections 64 and 65 contemplate that the Sub-Registrar, on receiving a document relating to immovable property, shall send copies of the registered deed to every other Sub-Registrar in whose jurisdiction any part of such property may lie. The idea is obviously to make the registration complete to anybody who wants to inspect the title. These provisions are reinforced by Section 49 which says that no document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered, shall affect any immovable property comprised therein, etc. These provisions, particularly the provisions about the place of registration, are totaly inappropriate in the case of a document like Exhibit A-5 dealing with immovable properties in Malaya. The Indian Registration Act of 1908 does not and cannot prescribe in which place such documents can be registered. The importance of the place of registration can be recognised from the fact that if no part of the properties lies in the jurisdiction of the Sub-Registrar to whom the document is presented, the documents cannot be registered by that Sub-Registrar and, if for the purpose of securing registration some property is fictitiously mentioned, the registration will be void. This has been held by the Privy Council in Harendralal Roy Chowdary v. Haridasi Debt I.L.R. (1914) Cal. 972 : L.R. 41 IndAp 110 : (1914) 37 M.L.J. 80 : (1914) 23 I.C. 637. See commentary in Mulla's Registration Act, under Section 28. In short, the object of the legislation is only to provide for compulsory registration in respect of immovable property in India so that the title may be clear, and it is no concern of the Indian Legislature to legislate with respect to the title to immovable properties in Malaya.
48. This position is also settled in Private International Law. In 36 Halsbtuy page 430, the law is stated thus:
Statutes relating to land are presumed to have been intended to bind all land within the territory to which they extend, but not land situated elsewhere.
As authority for the latter position it has quoted the decision of the House of Lords : in British South Africa Co. v. Companhia De Mocambique L.R. (1893) A.C. 602. There a suit was brought in England by the plainiff to recover damages for a trespass said to have been committed by the defendant-company to the plaintiff's mines situate in South Africa. The reliefs of declaration of title and injunction which had been originally prayed for were given up. The House of Lords held that the question of title to properties situate in South Africa was involved and that the English Court could not try such a suit. Their Lordships quote Story's Conflict of Laws. Story himself quotes the following landguage of Wattel:
In such a case, as property of this kind is to be held according to the laws of the country where it is situated, and as the right of granting it is vested in the ruler of the country, controversies relating to such property can only be decided in the state in which it depends.
We have seen that this is also what has been stated in 7 Halsbury, at pages 30, 31, etc.
49. The same position is reiterated in the other leading text books : Craies on Statute Law; Maxwell; Dicey's Conflict of Laws; and Cheshire's Private International Law. Thus in Craies on Statute Law, Chapter XVII, page 448 (Sixth Edition) it is stated:
All the authorities in England and the United States recognise in its fullest import the principle that real estate or immovable property is exclusively subject to the laws of the Government within whose territory it is situated. It is subject to the lex situs.
Similarly in Maxwell, in Chapter VI, it is stated:
Another general presumption is that the Legislature does not intend to exceed its jurisdiction. Primarily legislation of a country is territorial. See page 138, etc.).
50. The same position is stated in Dicey's Conflict of Laws in several places; for instance (Seventh Edition) Introduction (page 4) Rule 18 (pages 147 to 152 ) Rule 85 (page 512, etc.).
51. In Cheshire (Seventh Edition) the law is to be found in pages 503 to 505, among other pages.
52. It is unnecessary to refer to the other English decisions. Turning to the decisions in India, there seem to be only a few. In Venkatappayya v. Venkata Ranga Row : (1920)38MLJ149 the plaintiffs sued for the recovery of the Zamindari of Munagala situated in Krishna District from the second defendant who was in possession claiming to be the duly adopted son of the daughter of the late Zamindar who represented the eldest branch, marked A in the genealogical tree. On the question of adoption it was found by the learned District Judge who tried the suit that there was a written authority to adopt given to the widow of the late Zamindar. The late Zamindar and his widow were domiciled in the then Nizam's dominions. The law of Hyderabad did not require registration of the authority to adopt but it was contended on behalf of the plaintiffs that nevertheless it had to be registered under Section 17 (b) of the Indian Registration Act of 1908, because claim was made to immovable property in Krishna District in British India on the basis of that written authority to adopt. The learned District Judge found that the authority to adopt was registered in British India within four months of its being brought into British India under the provisions of section. 26 of the Registration Act. The learned District Judge decreed the suit. The plaintiffs preferred the appeal. It was heard by Wallis, C.J., and Sadasiva, Ayyar, J. Wallis, C.J., held that the authority to adopt in that case did not require registration under the Indian Registration Act. He observed:
The first question which arises is, whether the provision in Section 17 of the Indian Registration Act which requires authorities to adopt not contained in a will to be registered, has any application to an authority to adopt given in Hyderabad, outside British India, by a subject of that State domiciled there. If not, such an authority is a not' document required by Section 17 to be registered ' within the meaning of Section 49 of the Act, and it not affected by the provisions of that section. Now the limits of legislative authority are territorial, and the Indian Legislature in particular has authority to legislate only for British India and British subjects in Native States. Prima facie, therefore, its enactments are not to be construed to apply to acts done outside British India even by British subjects.
At page 302 he observed:
That (section 17 (3) ) is a provision affecting status. The Indian Legislature has no authority to legislate as to the status of the subjects of Native States domiciled in such States and this provision cannot in my opinion on the well established rules of construction be read as extending to an authority to adopt conferred in Hyderabad by a subject of that State domiciled there, whose only connection with British India was that his wife owned property there. Questions of the validity of adoptions made outside British India by persons who are not British subjects may arise in our Courts, not only in connexion with claims to succeed to immovable property situated in British India, but also in ' other ways too numerous to mention, and it would in my opinion be altogether opposed to the accepted cannons of construction to attribute to the Indian Legislature when it inserted in the Registration Act what is now Section 17 (3) an intention to interfere in any way with the question of such adoptions which is a matter outside its competence. For these reasons, I am of opinion that the provisions of the Indian Registration Act did not apply to the authority to adopt the second defendant; and that it is unnecessary to consider the further question whether these provisions were in fact complied with.
53. Sadasiva Ayyar, J., also was of the opinion that Section 17 (3) of the Act could not apply to the document in that case and that primarily Section 17 (3) would only apply in respect of authorities to adopt executed by persons domiciled in British India. He further observed:
As regards the concession given in Section 26 to have certain documents, including an authority to adopt executed out of British India, presented for registration within four months after it is brought into British India, it was, in my opinion, intended to meet the case of a person domiciled in British India travelling abroad (in Europe or America, etc.)., or even in a Native State on a pilgrimage and suddenly finding himself in a bad state of health, executing an authority to adopt in favour of his wife to be used by her.
54. Though on the above view it would seem to have been unnecessary to consider the further questions, the learned Judge considered the further question and agreed with the learned District Judge that the document was presented for registration within British India within four months after its arrival in India and that the presentation of the document by the natural father of the second defendant who was then a minor was proper presentation by a representative of the minor for the purpose of the Act (sections 32, 40).
55. The decision on the last point was affirmed by their Lordships of the Privy Council. The decision is reported in Venkatappayya v. Vcnkata Ranga Rao I.L.R.(1929) 52 Mad. 175 : L.R. 56 IndAp 21 : (1929) 56 M.L.J. 218. The appeals of the plaintiffs were dismissed by the Privy Council on that basis. Because the appeals could be dismissed on that short ground, their Lordships did not think it necessary to discuss the further question whether really the authority to adopt did not require registration in India. They observed:
Neither is it necessary to discuss the important but somewhat abstruse question, whether the respondent being at that time resident in and subject of the State of the Nizam, can rely upon the unquestioned fact that his status as an adopted child was accepted by the Courts in the Nizam's dominions, as a binding decision on the question of his status precluding all dispute as to the fact and lawfulness of his adoption.
From this it cannot be urged that their Lordships meant to throw any doubt on the findings of Wallis, C.J., and Sadasiva Ayyar, J., that the Indian Registration Act had no extra-territorial jurisdiction. In any case, it is clear that the Indian Registration Act could not prescribe for the registration of a document like Exhibit A-5, in so far as it deals with immovable properties situate in Malaya.
56. Sukriti Bala v. Hemanta Kumar A.I.R. 1957 Ass 153, was a case where in execution of a money decree the decree-holder agreed to accept a lesser sum of Rs. 9,000 and on behalf of the judgment-debtor, his wife the appellant offered security of her immovable property. The decree-holder sought to proceed against the appellant in respect of her property. Objection was taken on the ground that the charge created by the compromise had not been registered. The objection was repealed on the ground that the provisions of the Indian Registration Act did not apply to the area where the decree in question was passed or the adjustment was recorded, because that area was the Khasi and Jaintia hill tracts. This is a direct decision on the point.
57. In Ramanathan Chettiar v. Somasundaram Chettiar (1964) 2 M.L.J. 256 : I.L.R. (1964) 1 Mad 611, the question was one of limitation in a suit on a mortgage executed and registered in Burma in respect of properties there by persons 'who were of Indian domicile (Ramanathapuram District). The creditors gave up their security and claimed only personal relief against them in the District Court of Ramanathapuram. One of the acknowledgments by the debtors was dated 12th June, 1941, and the next acknowledgment was 31st March, 1947. If Article 115 applied the limitation was three years, but if Article 116 applied the limitation would be six years. That turned on the question whether the mortgage document could be deemed to be registered within the meaning of Article 116. Ramachandra Ayyar, C.J., and Ramamurti, J., held that the word ' registered occurring in Article 116 meant 'registered ' under the law in force in India and since the document was not registered according to the law in India, Article 116 would not apply and so the suit was time-barred. This may be taken to be a converse of the case before us, but the underlying principle is of some relevance in the present case.
58. In the result we hold that Exhibit A-5 does not require registration. It is admissible and creates a binding contract, namely, that there was a partnership between Ayyachami, Periannan and the first defendant, from 19th January, 1946 upto 5th April, 1949 at any rate. We shall consider the question of limitation on the assumption more favourable to the first defendant, namely, that there was no partnership after 5th April, 1949. Article 106 will apply. The suit would normally have to be brought within three years from 5th April, 1949, but the suit was filed on 5th April, 1957. Section 13 of the Limitation Act will, however, come to the rescue of the plaintiff. It says that the time during which the defendant has been absent from India shall be excluded. Paragraph 25 of the plaint says:
The plaintiff understands that the 1st defendant has been absent from India in Malaya from 17th March, 1947 to 19th May, 1948, 25th August, 1948 to 29th June, 1952 and from 20th January, 1955 to 24th December, 1956 both days; inclusive.
The written statement does not specifically traverse this and hence under Order 8, Rules 3 to 5 the first defendant must be deemed to have admitted the periods of his absence. Apart from this, the learned Subordinate Judge finds in his judgment, with reference to the several exhibits, as follows (page 10):.the first defendant was in Malaya from 17th March, 1947 to 19th May, 1948. He again left India on 13th August, 1949, and returned to India on 29th June, 1952. He again went to Siramban on 23rd January, 1955, and returned to India on 24th December, 1956. These particulars are available from Exhibits A-30, A-31, A-32, B-20, A-63, A-84 and A-85.
This finding was not challenged before us by the first defendant's learned Counsel. We accept it, though the periods are somewhat shorter than the periods mentioned in the plaint. Even taking these reduced periods, it will be seen that they work out to a period of five years, eleven months and nineteen days of absence from India. If this is excluded, the suit is in time, even taking 5th April, 1949, as the starting point. Of course, a fortiori the suit would be in time if the partnership had continued till 30th March, 1950. We would add that the benefit of this reasoning on the question of limitation will enure for the benefit of the second defendant as well, if she has a share.
59. A minor contention of the learned Counsel for the first defendant is that letters of administration have not been taken out for the deceased Solayappa as contemplated in Exhibit A-5 and that, till they are taken out, the suit cannot proceed, in the Subordinate Judges Court, Devakottai. Sri Sundaram Iyer for the appellant stated that 'otters of administration had been taken out to the estate of the late Solayappa by the first defendant himself. We do not think it necessary to go into that question, because in our view, even if letters of administration have not been taken out so far, that will not be an impediment to the jurisdiction of the Subordinate Judge's Court, Devakottai. If necessary, letters of administration can be taken from the Malaya Court in due course.
60. A more substantial contention, however of the learned Counsel for the first defendant is that, even if we should find, on the basis of Exhibit A-5, that there was a partnership between Ayyachami, Periannan and the first defendant from 19th January, 1946 to 5th April, 1949, we should not further find straightaway that the first defendant was liable to account. He submits that Ayyachami and Periannan also took part in the management and shared the proceeds. This question has not yet been gone into and must also be remitted for trial by the learned Subordinate Judge.
61. The learned Counsel further contends that, as a matter of construction, Exhibit A-5 itself provides that the partnership between 19th January, 1946 and 5th April, 1949, should be wound up by all the parties being in management of the properties without anyone being liable to account exclusively. He submits that factually also each of the parties was in possession of some property or the other and that consequently the first defendant is not liable to account. This is contested by the learned Counsel for the appellant. This question again is left open.
62. Accordingly, we set aside the judgment and decree of the learned Subordinate Judge and we record our findings as follows:
(i) The suit is maintainable in the Subordinate Judge's Court, Devakottai.
(ii) Exhibit A-5 constitutes a valid contract on the basis of which the parties must proceed, namely, that there was a partnership between Ayyachami, Periannan and the first defendant even from 19th January, 1946 upto 5th April, 1949, and that the shares are as indicated in Exhibit A-5. Since the first defendant has settled the matter with defendants 3, 4 and 5 the dispute will be outstanding only as between the plaintiff and the second defendant on the one hand and the first defendant on the other.
(iii) We find the suit is within time.
63. The suit is remitted for trial on the further points of dispute between the parties and in particular the following:
(i) Whether the partnership continued from 5th April, 1949 to 30th March, 1950?
(ii) Which of the parties are liable to account; in particular whether the first defendant is liable to account and if so from what date?
(iii) What are the shares of the plaintiff and the second defendant?
(iv) To what relief will the parties be entitled?
64. Besides the evidence already on record the parties will be entitled to adduce further evidence. The suit must be disposed of expeditiously. The parties will bear their own costs in the appeal. The Court-fee paid on the memorandum of appeal will be refunded to the appellant. Costs in the trial Court will abide the result of the suit. In the meanwhile the first defendant who is said to have collected the costs from the plaintiff must pay back the costs to the plaintiff.