Judgement

Appeal (No. 12 of 1943) from a decree of the High Court (May 9, 1940), which varied a decree of the Subordinate judge of Delhi (April 28, 1938).

The suit which gave rise to this appeal was brought by the first respondent against the second respondent and the appellant for dissolution of partnership and for accounts. On December 3, 1929, a deed of partnership was executed by the first and second respondents and the wife of the appellant. The business of the partnership was described as that of " hosiers, milliners, dressmakers, tailors and outfitters, etc." and was to begin from November 1, 1929, and " should continue unless otherwise determined by the mutual " agreement of the partners or by operation of law." The partnership deed provided " (5) The capital of the partnership shall consist of Rs. 90,000 to be subscribed by the " partners in equal shares .... (7) The net profits of the " business shall be divided in equal shares between the " partners .... (10) That it is understood that the third “partner enters into partnership with the first and second " partner in the present running concern. The third partner " does not in any way stand responsible for any profit or loss “shown by the firm up to the date of the third partner joining " the firm. The stock and liabilities (excluding the loss) of " the present firm shall

Law. Rep. 71 Ind. App. 149 ( 1943- 1944)

N. R. Kapur V. Murli Dhar Kapur 52

be deemed to be the stock and liabilities " of the partnership entered into by this agreement. The " stock shall be taken at its cost."

On July 13, 1934, the first respondent instituted the suit out of which this appeal arose against the second respondent and the appellant, who, it was alleged, had become partner in the name of his wife, for dissolution of partnership and for accounts. The Subordinate judge directed that a preliminary decree for dissolution of partnership should be passed, and he ordered accounts to be taken. On April 28, 1938, he delivered judgment accepting the accounting Commissioners final report, and passed a decree in accordance therewith for Rs. 12,418-15-9 in favour of the first respondent and for Rs. 5,107-7—1 in favour of the appellant against the second respondent. On appeal from that decree the High Court (Dalip Singh and Sale JJ.) varied the trial judges decree and directed a decree for Rs. 22,206—9-11 to be passed against the appellant and for Rs. 21,921-3-10 against the second respondent, with future simple interest at 3½ per cent, per annum from the date of the decree until realization.

From that decree the appellant now appealed, and the reasons in his printed case included the following

" (2) Because the judges of the High Court have misconstrued the terms of the partnership deed ....

" (3) Because the judges of the High Court were wrong in "holding that the outstandings of the old partnership were “taken over by the new partnership.

" (7) Because the judges of the High Court were wrong in " holding that the following payments were properly made " by the first respondent; none of these items were due from " the partnership [there followed a list of four payments, amounting in all to Rs. 5.323-15-0.]

" (8) Because the sum of Rs. 2,400 having been admittedly " collected from the firm of Aux Elegantes, by the partner " R. N. Kapur, the judges of the High Court were wrong in " making the appellant liable for that sum.

" (9) Because the appellant should have been credited by " the judges of the High Court with the sum of Rs. 2,293 " admittedly paid by him to Ram Kishan, a creditor of the " partnership."

1944. May 17. Rewcastle K.C. and Wallach for the appellant.

Sir Thomas Strangman K.C. and Khambatta for the first respondent, by way of preliminary objection, contended that the questions raised in this appeal were not questions which ought to be made the subject-matter of an appeal to His Majesty in Council, and referred to Lala Hakim Rai v. Lala Ganga Ram (P. C. App. No. 81 of 1939 (See Practic