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Kali Das Chaudhuri and ors. Vs. Srimati Danpadi Sundari Dassee - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in43Ind.Cas.893
AppellantKali Das Chaudhuri and ors.
RespondentSrimati Danpadi Sundari Dassee
Cases ReferredManiram Seth v. Seth Rupchand
Excerpt:
limitation act (ix of 1938), section 19, schedule i, articles 106, 120 - suit for declaration of dissolution of partnership and for accounts-limitation--acknowledgment of part of claim, effect of--contract act (ix of 1872), sections 239, 253--civil procedure code (act xv of 1908), order vi, rule 17--amendment of pleadings, principles governing--suit for account of partnership--amendment to convert suit into one for remuneration for services, whether permissible. - sanderson, c.j.1 .this is an appeal from a judgment of my learned brother mr. justice greaves, and the sole question which has been argued before us is whether the claim in the suit was barred by the statute of limitation.2. i will deal in detail with the nature of the suit directly.3. the suit was brought on the 8th of february 1913, and it was alleged to be in respect of a certain partnership of which the plaintiff hari prosad saha was a member up to the 27th of june 1910. before the case came on for trial, it was discovered that a necessary party, mokshoda sundari ghowdhurani, had not been added and she was added on the 12th of february 1914, so that as regards the added party the claim was barred or was alleged to be barred, and consequently as she was a necessary party, the claim was.....
Judgment:

Sanderson, C.J.

1 .This is an appeal from a judgment of my learned brother Mr. Justice Greaves, and the sole question which has been argued before us is whether the claim in the suit was barred by the Statute of Limitation.

2. I will deal in detail with the nature of the suit directly.

3. The suit was brought on the 8th of February 1913, and it was alleged to be in respect of a certain partnership of which the plaintiff Hari Prosad Saha was a member up to the 27th of June 1910. Before the case came on for trial, it was discovered that a necessary party, Mokshoda Sundari Ghowdhurani, had not been added and she was added on the 12th of February 1914, so that as regards the added party the claim was barred or was alleged to be barred, and consequently as she was a necessary party, the claim was alleged to be barred against the other parties. Therefore, when the case came on for trial the learned Counsel appearing for the defendant, Mr. S.R. Das, according to the minutes said, the suit is barred as they had added Mokshoda Sundari as a party defendant after the lapse of three years.' Mr. Mitter said, I know nothing about it--my friend should have raised the point by a supplemental written statement. But there is an admission of liability by the letter dated the 12th of August 1913.

4. Then the learned standing Counsel said further on, 'I shall put in a formal petition showing admission of liability, but if I require any other amendment I shall then ask for an adjournment. But I do not think I shall require.'

5. Then there were two paragraphs added by way of amendment whereby 'the plaintiff submitted that there had been a valid admission of liability in writing signed by the defendants or their duly authorized agents within the period of limitation, and such admission was contained in the letters of the 5th of July 1909, 2nd of October 1912, 6th of October 1912, 21st of January 1913 and in the written statement filed in this suit: and the plaintiff was advised and submitted that the proper period of limitation in the suit was six years from the time that the original plaintiff had retired from the partnership business. Those paragraphs were added on the day of the trial, the 31st of January 1916.

6. Then the learned Counsel for the defendant Mr. Das, said that he did not rely any longer upon that part of the defence which feet up the allegation that the plaintiff had only remained with the firm, to use a neutral expression, up to 1311 B.S. (corresponding with 1904 05) but that he simply relied upon the Statute of Limitation.

7. The learned Judge held that as regards the Statute of Limitation, Article 120 of the First Schedule to the Limitation Act applied and, therefore, the suit was not barred.

8. The case now comes before us, the learned Counsel for the appellant urging that the learned Judge was wrong and that Article 106 applies and consequently the suit is barred by the Limitation Act. It is necessary to refer perhaps once more to the words of the Statute. Section 3 says, 'Subject to the provisions contained in Sections 4 to 25 (inclusive) every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed, although limitation has not been set up as a defence.' Then in the First Schedule one finds three columns, which of course are familiar to everybody, the first column of which sets out the description of the suit, the second, the period of limitation, and the third, the time from which the period begins to run. Therefore, it is necessary to see what is the description of the suit in the first instance; and for that purpose I turn to the plaint. But before I turn to the plaint perhaps I might refer to two letters to see, quite apart from the plaint, what was the real nature of the suit. On the 27th of June 1910 the plaintiff's solicitor wrote a letter saying, 'We are informed by our client Babu Hari Prosad Saha...that he has been acting as gomastha of the firm of Dwarka Nath Makhan Lal Shaha since its constitution in the year 1279 B.S. on the express understanding that he should receive three annas share of the net profits as his remuneration.... It is for this reason that our client has been obliged to have recourse to this letter in order to impress upon you the earnestness of his desire and hagnnstructed us to give you notice, which we hereby do, that he retires from the firm and all his connection therewith will cease from the beginning of the ensuing business year of the said firm which commences in the Bengali month of Asar or Sraban every year.' That might be said to be a letter which cuts both ways: it may be sajd to be quite consistent with the position that the plaintiff Hari Prosad Saha was a mere gomastha and servant remunerated by a share in the profits, or there are some phrases in it which go to show that he was alleging that he was a partner of the firm. But looking at the next letter written by the plaintiff's solicitor on the 10th of January 1913, I find it is in these terms:

I understand from my client Babu Hari Prosad Shaha of Urapura in the District of Pabna that he was a non-capitalist partner in the firm of Dwarka Nath Makhan Lall Saha carried on in Calcutta for several years and retired from the partnership sometimes on the 27th of June 1910 after giving you notice on that day through his then solicitors Messrs. Dutta and Guha. My client requested you several limes to arrive at as adjustment of accounts up to the dissolution aforesaid of the said co-partnership firm of Dwarka Nath Makhan Lal Saha and to pay to him out of the assets of the partnership what on such adjustment should be found due to my client but nothing has yet been done in that direction. I am farther informed that a large sum of money will be found to be due to my client on such adjustment being made as aforesaid.

I am now instructed by my client to request you which I hereby do to adjust the said accounts and thereafter to pay the amount due to him within a week from the date hereof so that no unpleasantness may arise in this connection which my client is eager to, avoid if possible.

9. I think nobody can doubt upon reading that letter that the plaintiff's solicitor was patting forward a position that his client, the plaintiff, had been a non-capitalist partner, that on the 27th of June, 1910 he gave active that he was retiring from the firm, and he treated it as a dissolution of the partnership which had existed upto the 27th of June 1910.

10. Then, when we come to the plaint, as my learned brother pointed out in the course of the argument, this is a plaint apparently to which some extraordinary importance was attached, because although it was drawn by Mr. S.K. Chakravarty, yet the parties were not satisfied with that and they got it settled by the Advocate-General. Upon looking at the plaint, to my mind it is obvious that it was a plaint which was based upon the allegation that the plaintiff had been a partner in the partnership business, because it says in the first paragraph that the defendants (setting oat the names) and the plaintiff agreed to carry on business in Calcutta in copartner ship: 'and that it was agreed that on the death of any of the Saba Chowdhury partners the heir or heirs of such deceased partner will take his place and become a partner or partners of such business and that the said business will not be dissolved by the death or deaths of any of Saba Chowdhury partners.' So that there is a distinct allegation that the parties agreed to be partners and that there was a term in the agreement--which is somewhat out of the ordinary--that as regards the Saha Chowdhury partners the death of one of them would not put an end to the partnership. But there was no arrangement that if the plainiff were to retire or were to die, his death would not as in the ordinary coarse put an end to the partnership.

11. Then 'in the third paragraph it is further alleged that 'the plaintiff under the denomination of gadnin gomastha contributed labour and skill for the promotion and carrying on of the said business but he did not bring in any capital, and it was agreed and arranged that the plaintiff should get 3/16th share of the profits and bear 3/16th share of the loss arising from the and business. The plaintiff is advised and submits that his position in the said firm was that of a non-capitalist working partner and that in any event'--I suppose that means whether in point of fact or of law a partner or not--'he is entitled to have the accounts of the said firm taken on the basis aforesaid and to receive from the defendants what may be found due upon the taking of such accounts.' Then in paragraph 6 it says that 'the plaintiff being destrous of retiring from the said business gave formal notice to all the partners on or about the 27th day of June 191,0 of such retirement through his then Attorneys Messrs. Dutta and Guha and called upon them to have the accounts of the said partnership adjusted and to pay the plaintiff his share of such profits as on such adiustment might be found due to him.' The plaintiff's prayer was that it might be declared that the plaintiff retired from the said firm of Dwarka Nath-Makhan Lal Saha on or about the '29th of June 1910, and if necessary it might also be declared that so far as he Was concerned, the said partnership came to an end and was dissolved at that time, and that the accounts of the said firm might be taken by and under the direction of this Court to ascertain what amount was due to the plaintiff as his share of the profits of the said firm at the time of his retirement.

12. Therefore, when I consider what was the description of the suit which the plaintiff was bringing in this case, I have no doubt whatever that it was a suit which would come within the exact description of Clause 106 which is as follows:

'Suit for an account and share of the profits of a dissolved partnership,' as his prayer is, as I have said just now, for a declaration that he retired from the said firm on a certain date, that so far as he was concerned the partnership was dissolved at that time, that accounts might be taken and upon such accounts being taken he might get what share of the profits would be found due to him.

13. If I had any doubt about this, that doubt would be removed by referring to the provisions of the Indian Contract Act and seeing what the definition of the term partnership' is in Section 269 of that Act, which provides: 'Partnership is the relation which subsists between persons who have agreed to combine their property, labour or skill in some business, and to share the profits thereof between them.' Then Section 253 provides: 'In the absence of any contract to the contrary, the relations of partners to each other are determined by the following rules': and Rule (7) provides, 'if from any cause whatsoever any member of a partnership ceases to be so, the partnership is dissolved as between all the other members:' Rule (8) provides, 'unless the partnership has been entered into for a fixed term, any partner may retire from it at any time.' In this case there is no suggestion that the partnership was for a fixed term. That being so, the plaintiff might retire from the partnership at any time, and, if he retired from it at any time, then he ceased to be a member of the partnership by reason of his retirement and the result was that by reason of the provisions of the Contract Act the partnership was dissolved not only as between him and the other members but as between all the other members.

14. To my mind there is no doubt whatsoever that that was the description of the suit which the plaintiff brought and that it came within Article 106, and that inasmuch as the suit must he deemed to have been brought on the 12th of February 1914, it was brought after the period of limitation specified in the Schedule to the Limitation Act, and was, therefore, barred, unless it can be said to have been brought within the provisions of Section 19 by reason of the alleged acknowledgment in the letters to which I have referred.

15. Now, before I deal with the acknowledgment, I have to deal with the point which was urged, and strongly urged, by the learned Standing Counsel that even if this Court were of option that the suit did come within Article 106, the plaintiff ought to have an opportunity to, amend his claim. In order to see whether the plaintiff ought to have such leave, it is necessary to examine what it is that he wants to do.

16. The plaintiff, as I have already said, brought his suit based upon the allegation that there was a partnership existing between him on the one hand and the defendants on the other. When it is found that that suit is barred by the Limitation Act, he then wishes to turn round and bring a suit which is based upon the allegation that he is not a partner but is merely a servant of the defendants although he was to be remunerated by receiving a share of the profits which would in fact, as was pointed out by the learned Counsel for the appellant, amount to this that he wants to abandon all the material allegations which are set out in his plaint, and adopt those which are set out in the defendants' written statement. If we were to grant his application for amendment, it would amount to granting, him leave to bring a fresh suit of an entirely different nature, which suit, if brought now, would be barred by the Statute of Limitation. It has been said that every amendment ought to be granted if the party against whom the amendment is granted can be compensated by an order as to costs. But this is not one of the amendments which can be occurred by the panacea of costs, because if we were to allow the amendment, we would be allowing the plaintiff to bring an action within the time specified in the Schedule; whereas if we were not to grant the amendment, his suit might be barred by the Limitation Act. For these reasons I do not think it right and just to allow the amendment to be made.

17. With regard to the question of knowledgment, that depends upon Section 19 of the Limitation Act which runs in these words, 'where before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed,' The letter upon which the real reliance was placed in this case was the letter of the 21st of January 1913, which was written by the solicitors of the defendants, and, therefore, it would be signed' by a person who is 'an agent duly authorized in this behalf' and no point arises in that respect: and, it is also an acknowledgment of some liability to the plaintiff. But the question is whether it is an acknowledgment of the property or right which is the subject-matter of the suit.

18. Now, what was said is this: 'Your client Babu Hari Prosad Saha was the gomastha at Calcutta in the employ of the firm of Dwarka Nath Makhan Lal Siha, remunerated by shares of the profits and being liable for a proportionate share of the losses. He was struck by paralysis in the Bengali year 1307, from which time be could not do active work. He, however, continued to, be in Calcutta till 1311, when he left Calcutta and went away to his home at Urapara. Our clients have all along been ready and willing to have the amounts duly taken up to the time that your client retired from Calcutta. Tour client as the managing gomastha has to make up and explain the accounts up to that time. Our clients will offer' every facility in the matter of the adjustment of accounts.... It is note the fact that your client retired on the 27th June 1910. He ceased to do active work in 1307 and retired in 131. Our clients have no recollection of any notice from Messrs Datta and Guha. Oar clients are ready to pay to your client whatever may be found due on an adjustment of the accounts up to 1314.'

19. Now as I read that letter that contains three material statements: it contains' a statement that the plaintiff was gomistha of the defeafants: the second statement is that he was employed up to 1311 B.S. (corresponding with 1901-05), and no longer and the third, statement is that the defendants were willing and ready to pay to the plaintiff whatever might be found due to him on an adjustment of the accounts upto 1811. Now, what is the claim of the plaintiff in this case He brought his suit in order to establish his right to have the accounts taken upon the basis that he was a partner, and that he was entitled to have the accounts taken down' to June 1910. The defendants' solicitors wrote that he was not a partner and that he was not entitled to have the accounts taken upto 1910, but that he was only entitled to have the accounts taken upto 1311 B.S. (corresponding with 1904-05). I cannot understand how that can be taken to be an acknowledgment of the right which the plaintiff was endeavoring to substantiate in his plaint. I can understand it being said and argued with considerable force that it was an acknowledgment of some part of the plaintiff's claim, inasmuch as his claim was to have the accounts' taken up to June 1910 and inasmuch as the defendants admitted that he was entitled to have the accounts taken up to 1904-05: To that extent it is an acknowledgment, but in my judgment it is not an acknowledgment of the right alleged by the plaintiff, namely, that he was entitled to have the accounts taken up to June 1910. Inasmuch as the learned Counsel for the appellants stated that they are willing that the accounts should be taken between the plaintiff and the defendants, upon the basis of the plaintiff being a partner in the firm down to the end of the Bengali year 1311 this Court will make an order that the accounts should be taken between the parties upon that basis.

20. The result is that this appeal is allowed and we direct that an account be taken upon the basis of the partnership upto the end of the Bengali year 1311.

21. As regards costs, the appellants will have the costs of this appeal, but each party will pay his own costs of the suit in the Court of first instance.

22. The decree of the Court of first instance will, therefore, be varied by substituting the words 'end of the Bengali year 1311' for the words 'twenty-seventh day of June, one thousand nine hundred and ten' (in line 25 of the decree at page 36 of the paper book) and also by substituting the words 'each party do pay bis, her or their own costs of this suit for the words the adult defendants per tonally and the infant defendant out of the assets of the said partnership firm do pay to the plaintiff her costs of this suit' (to be taxed by the Taxing Officer of this Court on scale No. (2), with interest thereon at the rate of six per cent. per annum from the date of taxation until realization, The rest of the decree will stand.

Mookebjee, J.

23. I agree that the decree made by Mr. Justice Greaves cannot be supported.

24. The plaintiff, who has died during the pendency of this litigation, instituted the suit on the 8th February 1913, for reliefs on the allegation that he was a partner in the firm of Dwarka Nath-Makhan Lal Saba and that as he contributed labour and skill but no capital, he was, as arranged amongst the partners, entitled to receive 3/16ths share of the profits and bound to bear 3/16ths share of the loss arising from the business. He further alleged that he had terminated his connection with the firm by notice to the other partners on the 27th June 1910. He accordingly asked for a declaration that he had retired from the firm on the 27th June 1910, and that so far as he was concerned the partnership had come to an end and was dissolved at that time. On this basis, he prayed for an order that accounts be taken to ascertain what amount was due to him as his share of the profits of the firm at the time of his retirement and that the defendants do pay him the sum so ascertained. The defendants, in their written statement, raised substantially four grounds of objection. They contended, first, that the suit was defective in form as one of the original partners, Beni Madhab Saha Chowdhury, had died in 1895 and his representative had not been added as a party, secondly, that the plaintiff was not a partner as he alleged but a servant, thirdly, that his connection with the business had terminated not in 1910 as he alleged but during the years 1904-05, and fourthly, that the claim was barred' by limitation. The plaintiff thereupon applied to the Court on the 12th February 1914 to add the representative of the deceased partner as a defendant. The result was that under Section 22 of the Indian Limitation Act, the suit had to be regarded as instituted on the 12th February 1914, as against the added defendant, and, if as against him, the suit had to be dismissed on the ground of limitation, it was bound to fail as against the other defendants as well, because obviously no account could be directed in respect of a partnership business in the absence of one of the partners. Consequently, at the trial, the plaintiff found himself in a position of considerable embarrassment and so he asked for and obtained leave to amend the plaint by the insertion of two paragraphs. One of these paragraphs recited that the suit was saved from the bar no limitation by reason of the acknowledgment contained in four letters which had passed between the parties before the institution of the suit. The second paragraph recited that the proper period of limitation was 6 years from the time that the plaintiff retired from the partnership business. There was no prayer for amendment in any other respect, though the minutes show that the plaintiff indicated that further amendment might possibly be necessary. The case then proceeded to trial on the assumption that the plaintiff was a partner and had retired on the 27th June 1910, as alleged by him, and the question was argued whether the suit was barred by limitation.

25. On behalf of the defendants, reliance was placed upon Article 108 of the Indian Limitation Act and it was contended that as more than three years (calculated from the date of retirement of the plaintiff) had expired on the 12th February 1914, when the suit must be deemed to have been instituted, it was obligatory upon the Court under Section 3 to dismiss the suit. The plaintiff replied that Article 120 which provides for a period of six years was applicable arid that if this contention failed, Section 19 saved the suit from the bar of limitation. Mr. Justice Greaves has come to the conclusion that Article 106 was not applicable and that the case was governed by Article 120. In this view he has not discussed the question of the applicability of Section 19.

26. On the present appeal, Mr. Das has contended on behalf of the defendants-appellants that Article 106 is applicable and that, the suit is obviously barred by limitation. On behalf of the respondent, Mr. Mitter has not seriously contested this position but he has argued that Section 19 saves the suit from the bar of limitation. He has also prayed that the plaintiff might be allowed at this stage to amend the plaint, on the footing that he was not a partner, as asserted by him in the third paragraph of his plaint, but a servant as alleged by the defendants in the first paragraph of their written statement. It is convenient to consider the application for amendment at the outset.

27. In my opinion, the plaintiff should not be allowed to amend the plaint in the manner proposed at this stage of the litigation. It is well settled that where a plaintiff bases his claim upon a specific legal relation alleged to exist between him and the defendant, he should not be allowed to amend the plaint so as to base it on a different legal relation. This rule is only one aspect of the broader principle that leave to amend should be refused where the amendment would introduce a totally different, new and inconsistent case. Here the plaintiff came into Court deliberately on the allegation that he was a partner of the firm along, with the defendants. The defendants denied that he was at any time a partner and asserted that he was a servant. The case has proceeded to trial on these pleadings: the plaintiff has succeeded and has got a decree for accounts on the footing that he was a partner. He cannot now be permitted to abandon that decree, to discard the fundamental allegation made in the plaint, to adopt as the foundation of his claim the allegation made by the defendants in their written statement, and to seek relief on the basis thereof. There are further two weighty reasons why. the application should be refused as made at a very late stage of the proceedings, in the first place, if the plaintiff were now to institute a suit on the allegation that he was a servant, it would be successfully met by the plea of limitation. It is not necessary to hold, .as the Allahabad High Court has done in the cases of Balkaran Upadhya v. Gaya Din 24 Ind. Cas 255 : 36 A. 370 : 12 A.L.J. 635 and Muhammad Sadiq v. Abdul Majid 10 Ind. Cas. 476 : 33 A. 616 : 8 A.L.J. 636, that the Court is not competent to allow an amendment of the plaint so as to introduce a cause of action which at the moment is barred by limitation. But it is plain that the Court would be very reluctant to deprive the defendants in this manner of a valuable right which they have already acquired by the operation of the Statute of Limitation [see Steward v. North Metropolitan Tramways Co. (1885) 16 Q.B.D. 178 and the observations of Lopes, L.J., in Weldon v. Neal (1887) 19 Q.B.D. 394 : 56 L.J.Q.B. 621 : 35 W.R. 820]. This clearly is not a Case where the otherside can be compensated by award of costs, which has been described by Bowen, L.J., as the one panacea which heals every sore in litigation [Cropper v. Smith(1884) 26 Ch. D. 700 : 53 L.J. Ch. 891 : 51 L.T. 733 : 33 W.R. 60]. In the second place, the plaintiff has died during the pendency of the litigation and we can no longer have his testimony, which would have been of primary importance upon the question of his status. On these grounds I hold that the application for amendment should not be entertained. Two questions consequently require examination, namely, first, is Article 105 or 120 of the Indian Limitation Act applicable to this case? and, secondly, if Article 106 is applicable, does Section 19 assist the plaintiff; and if so, to what extent?

28. Article 106 provides that 'a suit for an account and share of the profits of a dissolved partnership must be instituted within three years from the date of dissolution.' What then is the true meaning of the expression 'dissolved partnership?' The defendants contend that this has reference to a partnership which so far as the plaintiff is concerned has been dissolved; in other words, the suit contemplated by Article 106 is brought by a plaintiff who has ceased to be a member of the partnership and has consequently become entitled Jo claim an account, and a share of the profits. The plaintiff contends, on the other hand, that if the partners other than the partner who has retired carry on the business, there is no dissolved partnership within the meaning of the Article. In my opinion, the interpretation suggested by the defendants gives effect to the true intentions of the Legislature, as is clear from the provisions of the Indian Contract Act relating to the dissolution of partnerships [Sections 239, 233(7) and (8)]. In the case before us, the plaintiff alleges that he retired from the partnership on a specified date; he seeks a declaration that in so far as he is concerned the partnership was dissolved on that date. It is obviously immaterial whether the business was or was not carried on after his retirement by the other members; for, if it was carried on, it was not a partnership in which he was interested as a partner. From this point of view, Article 106 is obviously applicable [Ahinsa Bibi v. Abdul Kaser Sahib 25 M. 26 and Sudarsanam Maistri v. Narsimhulu Maistri 25 M. 149 : 11 M.L.J. 353] In the second of these cases Mr. Justice Bhashyam Ayyangar formulates the law in terms with which I find myself in complete agreement: 'From the year 1894, the plaintiff ceased to be a member of the alleged partnership (vide Section 253, Clause 7, of the Indian Contract Act) and in fact, he retired from the partnership which had not been entered into for any fixed term (Clause 8 of Section 253, Indian Contract Act). It is, therefore, clear that the present suit, viewing it as one for winding up the affairs of the partnership which terminated or was dissolved in 1894, is barred by the Law of Limitation. The fact that after retirement of one of two partners, the remaining partner carries on the same business makes no difference [Knox v. Gye (1872) 5 H.L. 656 : 42 L.J. Ch. 234]. The case of Noyes v. Crawley (1879) 10 Ch. D 31 at p. 39 : 48 L.J. Ch. 112 : 89 L.T. 266 : 27 W.R. 109, cited on behalf of the respondent, is in point and Vice-chancellor Malins expresses his full concurrence, in the following, statement of the law by Lord Lindley in his treatise on Partnership, 4th Edition, page 966: 'So long indeed as a partnership is subsisting and eaoh partner is exeicising his rights and enjoying his own property the Statute has, it is conceived, no application at all; but as soon as a partnership is dissolved or there is any exclusion of one partner by others, the case is very different and the Statute begins to run. The same learned author, on the authority of Pearce v. Lindsay (1860) 3 Dec G.J. & S. 139 : 46 E.R. 591 : 142 R.R. 41, says that a dissolution of a partnership at-will may be inferred from circumstances.... Having regard to the above authorities and Clauses 7 and 8 of Section 253 of the Indian Contract Act, it is impossible to accede to the contention of the learned Advocate-General that there has yet been no dissolution of the alleged partnership between the plaintiff and the 1st defendant, and that, therefore, the suit is not barred by Article 103 of the Indian Limitation Act.' The view attributed to Lord Lindley was emphasised by him in the case of Betiemann v. Betjemann (1895) 2 Ch. 474 at p. 477 : 64 L.J. Ch. 611 : 12 R. 455 : 73 L.T. 2 : 44 W.R. 182. There a partnership had been carried on by three persons A, B and G, of these A died with the result that the partnership was determined by that event. The question arose whether the partnership which was subsequently carried on by B and C was the original partnership or a new partnership. Lord Lindley held that the two sons continued the partnership but it was in point of law a different partnership, namely, a partnership between the two [see also Barton v. North Staffordshire Ry. (1869) 8 Eq. 499, Miller v. Miller (1854) Kay 678 : 69 E.R. 289 : 18 Jur. 929 : 101 R.R. 811]. I hold accordingly that on his retirement the plaintiff ceased to be a member of the firm, that in so far as he was concerned the partnership was then dissolved and that time must run under Article 106 against him from that date. In this view the claim was prima facie barred on the 12th February 1914, when the suit must be deemed to have been instituted. This renders necessary an examination of the effect of Section 19 of the Indian Limitation Act.

29. Section 19 of the Limitation Act--I quote only so much thereof as is applicable to this case--provides that where before the expiration of the period prescribed for a suit in respect of any right an acknowledgment of liability in respect of such right has been made in writing signed by the party against whom such right is claimed, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. Reliance is placed in this connection upon a letter, dated the 21st January 1915, in which the defendants admitted that they were liable to render accounts to the plaintiff up to the year 1904-05, and at the same time stated specifically that the plaintiff retired in 1904-05 and not on the 27th June 1910, as he alleged. This letter consequently does embody an acknowledgment given within three years from the 27th June 1910 when the partnership was dissolved) of the right of the plaintiff to have an account of the profits of the firm from the defendants down to the year 1901 05 But it does not go further. I cannot accede to the contention that as there was a liability to account if the liability was admitted in part, the right was saved in its entirety. No authority has been mentioned which sustains the view that there cannot be an acknowledgment of a part of the right claimed. The decision in Prance v. Sympson (1854) Kay 678 : 69 E.R. 289 : 18 Jur. 929 : 101 R.R. 811 undoubtedly does not support this broad proposition and is clearly distinguishable. On the other hand, the decision of the Judicial Committee in Maniram Seth v. Seth Rupchand 33 C. 1047 : 4 C.L.J. 94 : 8 Bom. L.R. 501 : 10 C.W.N 874 : 1 M.L.T. 199 : 3 A.L.J. 525 : 16 M.L.J. 300 : 2 N.L.R. 130 : 33 I.A 165 (P.C.), where reference is made in terms of approval to the judgment of Mellish. L.J., in River Steamer Co., In re; Mitchell, Ex parte (1871) 6 Ch. 822 : 25 L.T. 319 : 19 W.R. 1130 points to a different conclusion. Mellish, L.J., held that an acknowledgment to take a ease out of the Statute of Limitation must be, first, one from which an absolute promise to pay can be inferred; or secondly, an unconditional promise to pay the specific debt; or thirdly, there must be a conditional promise to pay the debt and evidence that the condition has been performed. Consequently the effect of the acknowledgment must depend in each case, upon the nature of the particular right claimed and the terms of the acknowledgment. In this case, there was an unconditional promise to pay whatever might be found due upon accounts taken, down to the year 1904-05, coupled with an express denial of liability to account for the subsequent period. I hold accordingly that Section 19 saves that portion only of the claim which is admitted in the letter. The appeal must accordingly be allowed and the decree modified to the extent indicated.


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