L.R. of demand partner bound by an acknowledgement made by surviving partner.

The suit, C.S. No. 82 of 1953, out of which the above appeal arises was filed on the Original Side of this Court by a firm of partnership, Messrs. V.M. Periyaswami Chetty &38; Co., to recover a sum of Rs. 21,701-2-6 with further interest and costs under the following circumstances.

The plaintiff-firm is carrying on business in metals, brass and copper sheets, etc., at 399, Mint Street, Sowcarpet, Madras. They sold and delivered goods (metal, brass and copper sheets, etc.) to another firm called M. K. M. Khader Masthan Sahib and Brother, which was a partnership consisting of two partners, who were brothers, M. Khader Masthan Sahib and Mohideen Mashtan Sahib. This firm was carrying on business at Ayyasami Pillai Street, Pudupet, Madras. The course of business in respect of the dealings between the plaintiff-firm and the firm of M. K.M. Khader Masthan Sahib and Brothers appears to be to settle accounts periodically at the end of Panguni in each Tamil year, and obtain the signature of one or other of the partners of the M.K.M. firm. On 14th July, 1950, there was a settlement of accounts as on 13th April, 1950, in and by which one of the partners of M. K. M. firm, namely, Khader Masthan Sahib acknowledged that a sum of Rs. 32,255-5-6 was due by the M. K. M. firm to the plaintiff-firm. Even thereafter the plaintiff-firm dealt with the M. K. M. firm and obtained part payments towards the amounts due to them. The final result of these transactions as on 6th September, 1950, was a total liability of Rs. 21,701-2-6 due by the M. K. M. firm to the plaintiff-firm. It is this amount together with interest claimed at 12 per cent. aggregating to Rs. 7,420 which formed the subject-matter of the suit.

The partner, Mohideen Masthan of the M. K. M. firm, died on 5th October, 1949. The other partner Khader Masthan also died in November, 1952. The suit was instituted on 20th February, 1953, impleading the legal representatives of both the deceased partners. The first defendant in the suit is the mother of the partners ; the second defendant is the widow of Khader Masthan and defendants 3 to 9 are the children of Khader Masthan. The tenth defendant is the widow of Mohideen Masthan and defendants 11 to 15 are the children of Mohideen Masthan. A decree was passed by the learned Master on 15th December, 1953, against the second defendant, the widow of Khader Masthan and defendants 3 to 9 the children of Khader Masthan and also against the first defendant as the legal representative of Khader Masthan. This decree has become final.

Before the learned Judge who tried the suit on the Original Side the suit was resisted only by defendants 11 to 14, the minor children of Mohideen Masthan, who were represented by Sri H. Rama Rao, appointed as the Court-guardian. The contention raised on their behalf was that there was no proof that Khader Masthan and Mohideen Masthan were partners, and that the liability for which Khader Masthan had signed in the books of the plaintiff firm was not binding upon the legal representatives of Mohideen Masthan, and that in any event the claim as against them (defendants 11 to 14) was barred by limitation.

The learned Judge held that Exhibit P. 11, which is a deed of dissolution, dated 16th July, 1950, was a clear proof of a partnership having subsisted between the brothers, and it was clearly shown that Mohideen Masthan and Khader Masthan were partners in the business of M. K. M. Khader Masthan Sahib and Brothers. He therefore held that the suit liability was a liability of the M. K.M. firm. The question of limitation was overruled by the learned Judge relying upon Exhibit P. 6, dated 18th March, 1951, which was a reply to a lawyer’s notice issued on behalf of the plaintiff-firm in which the suit claim was acknowledged by the tenth defendant acting for herself and as guardian of her minor children, defendants 11 to 14, and also by 15th defendant who was the legal guardian of her minor children and that an acknowledgme