A suit for accounts and a share of the profits of a dissolved partnership must be filed within three years from the date of dissolution under Article 106 of the Old Limitation Act.

1. The Plaintiff who was unsuccessful in both the Courts below has preferred this second Appeal.

2. The short facts are as follows:—The partnership firm, consisting of the 1st defendant, plaintiffs father, P.W. 2 one Abdul Khader and Meera Pillai, was carrying on business at Rengola in Ceylon. Meera Pillai died in the year 1933 and his assets were taken over by the 1st defendant and plaintiffs father. On 12th February 1938, plaintiffs father died. In 1938 P.W. 2 retired from the partnership and in 1939 Abdul Khader also died. Thereafter, the 1st respondent continued the business with his co-heirs until it was stopped in 1959. The plaintiff who was born on 11th June, 1936 filed the suit for recovery of possession of the plaintiffs share In respect of the 1st schedule, for accounting and other incidental reliefs.

3. In the written statement concerning this partnership at Rengola, it was contended that the plaintiffs father was never a partner and it was the sole business of the 1st defendant alone. The father of the plaintiff was only a paid employee.

4. The learned Subordinate Judge, on a consideration of the oral and documentary evidence, passed a preliminary decree for partition with respect to the 2nd schedule property and in other respects, the suit was dismissed. On appeal by the plaintiff in A.S. No. 11 of 1965, the learned District Judge of Tirunelveli confirmed the findings of the trial Court. Hence the present Second Appeal.

5. The only controversy before me now in the second Appeal is concerning the point of limitation. Since the lower Appellate Court has categorically found that the plea put forth by the defendants that the father of the plaintiff was only a paid employee was not true and that there was no settlement of his accounts, posing the point of limitation under point No. 5, the learned Appellate Judge held that it is only Article 106 of the Old Limitation Act that would apply in which event the suit having been brought on 20th November, 1961 long after the plaintiff had attained majority would be clearly barred by limitation. In attacking this finding, the learned Advocate General submits that in so far as the evidence tends to disclose that the assets belonging to the father of the plaintiff had been utilised and in as much as it has been found that the partnership continued even after the death of the plaintiffs father, he would be entitled to profits and there is no clear evidence as to the date of dissolution because the stand of the defendants, as already seen, is only that the plaintiffs father was a paid employee. Therefore, it is incumbent upon the defendants to prove the date on which the dissolution took place. Concerning this the learned appellate Judge has assumed that it stood dissolved on 12th March 1938 and on that basis held the suit to be barred.

6. In meeting these submissions of the learned Advocate General, Mr. A. Sundaram Iyer, learned counsel for the respondents submits that on the death of the partner viz., the plaintiffs father, the partnership automatically stood dissolved and merely because it was carried on with the remaining partners it would not mean that it was the original partnership that carried on the business. It is only Art. 106 of the old Limitation Act, as applied by the lower Appellate Court, would govern the present case. In support of this contention the learned counsel relies on the decisions in Mohideen Bee v.

Syed Meer Saheb I.L.R. 38 Mad. 1099 Peeran Sahib v. Jamaludin Saheb A.I.R, 1958 A.P. 48 and P. Someswara Rao v. J.A. Rama Arya 1968-1 A.W.R. 456. Even otherwise, according to the learned counsel for the respondents, all the other partners excepting the 1st defendant had neither retired from the partnership or died by 1929, as a result of which the first defendant lone became the sole proprietor in which case there was no further partnership. So even reckoning the date from 1939 the suit would be barred.

7. Lastly, a technical objection put forth is