Judgment

JASWANT SINGH, J.

( 1 ) THESE two appeals by certificates granted under Article 133 of the Constitution which are directed against the common judgment and decree dated 22/12/1972 of the High Court at Allahabad in two connected Civil First Appeals Nos. 465 of 1954 and 65 of 1955 preferred against the judgment and preliminary decree of the Second Additional Civil and Sessions Judge, Agra, dated 5/04/1954, in suit No. 76 of 1949 shall be disposed of by this judgment.

( 2 ) THE facts material for the purpose of these appeals are : The appellant in Appeal No. 416 of 1973 and respondent No. 1 in Appeal No. 572 of 1974, Seth Loonkaran Sethiya, (hereinafter referred to for convenience as the plaintiff) is a financier living and carrying on business in Agra, respondents Nos. 1 to 3 in the first appeal and appellants Nos. 1 to 3 in the second appeal viz. Ivan E. John, Maurice L. John and Doris Marzano, grandsons and grand-daughter of one A. John, are partners of the registered firm called john and Co. , There are three spinning mills and one flour mill at Jeoni Mandi, Agra, which are compendiously described as john Mills. Originally, the members of the John family were the exclusive owners of all these mills which have been in existence since the beginning of the current century. In course of time, some strangers acquired interest therein and by the time the present lis commenced, the following became the joint owners thereof to the extent noted against their names :-1. ivan E. John. Maurice L. John and Doris Marzano,

appellants 1 to 3 in appeal 572 of 1974 and respondents 1

to 3 in appeal 416 of 1973 Partners of the firm

john & Co. , appellant 4 in appeal 572 of 1974 and

respondent 4 in appeal 416 of 1973 : 11/40th share

2. seth Munnilal Mehra (respondent 6 in appeal 416

of 1973 and respondent 9 in appeal 572 of 1974) and

hiralal Patni (respondent 5 in appeal 416 of 1973, deceased

and now represented by respondents 5/1 to 5/7 in the

said appeal and represented by respondents 2 to 8 in

appeal 572 of 1974): 19/40th share

3. gambhirmal Pandya (P) Ltd. partner in M/s. John

jain Mehra & Co. : 8/40th share

4. ivan E. John: 2/40th share

( 3 ) HAVING run into financial difficulties, M/s. John and Co. were driven to tap various sources for raising loans for their business and other requirements. By virtue of the dead of agreement (Exh. 1321) dated 14/06/1947, they entered into a financial agreement with Sethiya and Co. , a partnership firm of the plaintiff and Seth Suganchand. Under this agreement which was originally meant to last for five months but which was allowed to remain in force even after the expiry of that period. Sethiya and Co. undertook to advance to M/s. John and Co. funds to the extent of Rs. 8,00,000. 00 on the security of yarn and to act as sole selling agents of the latter. On 29/01/1948, the Collector, Agra, attached moveable and immoveable properties of the mills pursuant to a certificate issued for relization of income tax dues for the years 1943 to 1945 outstanding against M/s. John and Co. which exceeded Rs. 20 lakhs. On 5/02/1948, the Collector, Agra, appointed Ivan E. John, Maurice L. John and Doris Marzano as custodians for running the mills. On 9/02/1948, the aforesaid agreement (Exh. 1321) dated 14/06/1947, with Sethiya and Co. which continued to remain in operation beyond its original term was renewed upto the end of April, 1948, by agreement (Exh. 1320 ). This agreement gave an option to the partners of Sethiya and Co. to allow it to continue in force until their dues were paid in full by M/s. John and Co. These financial agreements with Sethiya and Co. did not prove adequate to meet the monetary requirements of M/s. John and Co. Accordingly on the same day i. e. on 9/02/1948, they entered into another agreement (Exh. 1319) with the proprietary concern of the plaintiff carrying on business under the name and style of m/s. Tejkaran Sidkaran whereby the latter agreed to advance certain amounts