Judgement

Appeal (No. 128 of 1920) from a judgment and decree (November 19, 1918) of the High Court in its appellate jurisdiction, affirming an interim decree of that Court in its original civil jurisdiction.

The respondent as plaintiff in a former suit against the appellants had claimed an account of a partnership which had subsisted between them. By a decree made by a judge of the High Court on February 25, 1915, that suit was dismissed on the ground that the partnership had been dissolved in April, 1910, and that consequently the suit was barred by the Indian Limitation Act (XI. of 1908), Sch. L, art. 106. On April 30, 1915, the respondent brought the present suit in which he alleged that certain specific sums had been received by the appellants on the partnership account, and claimed his partnership share. The items were set out in the schedule to the plaint, and were stated to have been received at various dates all of which were before the date of the decree, and the majority before the previous suit was instituted.

The trial judge, Kumaraswami Sastriar J., made an interim decree declaring that the plaintiff was entitled to a fourth share in such items contained in the schedule as had been collected by the defendants, with interest, and referring the suit to chambers to take an account, with a direction that if on taking a general account of the dealings of the partnership any sum was due by the plaintiff it should be set off against his share of the sums so received.

An appeal was heard by Sir John Wallis C. J. and Napier J. and the decree of the trial judge was affirmed, subject to a slight variation as to the interest to be recovered. The learned judges said that they were not prepared to go behind the previous decisions of the Madras Court hereinafter mentioned. They said u the decisions would appear to proceed upon the view that the receipt of assets by a former partner after a dissolution gives rise to a fresh cause of action ; otherwise it would be quite impossible to distinguish Knox v. Gye. (( 1872) L. R. 5 H. L. 656.)"

1922. Jan. 31. Sir George Lowndes K.C. and A. M. Talbot for the surviving appellant. The suit is not maintainable. It would not have been maintainable even if no previous suit had been brought and dismissed. The only right which the Indian Contract Act gives to a partner to recover in respect of partnership dealings is that given by s. 265—namely, to have an account taken and the surplus assets, if any, distributed. That agrees with English law Richardson v. Bank of England (( 1838) 4 My. & C. 165, 171.) ; Marshall v. Maclure (( 1885) 10 App. Cas. 325, 334.); Lindley on Partnership, 8th ed.,

p. 402. The Indian Contract Act is exhaustive as to matters with which it deals Mohori v. Dhurmodas Ghose (( 1903) L. R. 30 I. A. 115, 125.) ; it forms a code of partnership law for India. In the present case the High Court followed its earlier decisions in Sokkanadha Vannimundar v. Sokkanadha Vannimundar (( 1905) I. L. R. 28 M. 344.); Thiruvengada v. Sadagopa (( 1910) I. L. R. 34 M. 112.); and China Kondian v. Narasappa. (( 1914) 26 Mad. L. J. 221.) Those decisions all followed Merwanji Hormusji v. Rustomji Burjorji (( 1882) LL.R.6 B. 628.), which was based upon an erroneous view of observations made in the House of Lords in Knox v. Gye. (L. R. 5

H. L. 656.) The true effect of those observations is merely that if an account has been taken and the partnership wound up, the executor of a deceased partner can recover from the surviving partner in respect of an asset which the latter has since got in. Apart from those dicta, which do not apply here, the decision is in the appellants favour. The decision in Merwanji Hormusji v. Rustomji Burjorji (( 1882) LL.R.6 B. 628.) was based upon the view taken of the above dicta by Green J. in Dayal Jairaj v. Khatav Ladha. (( 1875) 12 Bom. H. C. 107) In that case however it was expressly held that the transaction upon which the plaintiff founded his claim to contribution wa