- (1.) These First Appeals are directed against the decree passed by the Bombay City Civil Court dismissing the plaintiff's suit relating to accounts in respect of the partnership business etc. First Appeal No, 174 of 1980 is filed by the original plaintiff; whereas First Appeal No. 176 of 1980 is filed by original defendant No. 11. The interest of both of them are, however, identical except, perhaps, for the fact that the other defendants in the suit claim to have an additional defence against defendant No. 11 which defence is not relevant for the purpose of this appeal. Both the appeals are, therefore, being disposed of by this common judgment. The parties hereafter shall be referred to as the plaintiff and the defendants. When special reference is to be made to the case of original defendant No. 11 he will be specially referred to as defendant No. 11. Before stating the respective case of the parties I may refer to certain admitted facts of the case.
(2.) The plaintiff, defendant No. 11 and one Lawrence were three brothers. A partnership-deed dated 29th of Dec. 1952, came to be executed by the three brothers for carrying on the business of Restaurant and other business under the name and style of Jai Hind Shamrock Restaurant at Colaba, Though it was only a restaurant in the premises in question there were also a tailoring shop and certain stalls such as of Panwala etc., It is the contention of the plaintiff and defendant No. 11 that as per the partnership-deed, the plaintiff and defendant No, 11 each were having 25% share in the partnership, whereas their brother Lawrence was having 50% share in the same. According to the plaintiff, the partnership business was carried on or actively managed mainly by Lawrence and plaintiff and defendant No. 11 were getting their share of profit. Lawrence died on 1-12-1961. Defendant No. 1 is his widow and defendants Nos. 2 to 10 are the children of deceased Lawrence. The plaintiff admits that the partnership was a partnership at will. The plaintiff and defendant No. 11 contend that the partnership stood dissolved by virtue of and with effect from the death of Lawrence. But they have contended further as follows; "Final account of the assets and liabilities of the partnership business as on the death of the said Lawrence Romaldas Rebellow was not taken. The same was permitted to be used for continuing the said business for the benefit of the surviving partners and the heits and legal representatives of the said Lawrence Romaldas Rebellow and the business continued with the funds of the old partnership." The above are only the averments in the plaint; they are not admitted facts; but it is common ground that on 17-8-1963 a notice came to be given on behalf of the plaintiff as well as defendant No. 11 to defendant Number 1 stating that the partnership stood dissolved on the death of Lawrence. It appears to have been mentioned therein that the death took place on 8th December, 1961. But it was common ground before me that it was a mistake. In any event, that date is not going to make any difference so far as the question involved in this litigation is concerned. By the said, notice it was further stated that plaintiff and defendant No. 11 had become entitled to have accounts in respect of the partnership business, that since the death of Lawrence defendant No. 1 has been looking after the affairs of the business but had not rendered accounts to the plaintiff and defendant No. 11. It was pointed out that both of them were having 1/4th share each in the said business as also in the profits of the same. Prima facie, therefore, they claimed 1/4th share not only in the profits, but also in the net assets of the firm. Defendant No. 1 was called upon to give to the plaintiff and defendant No. 11 accounts in respect of the business within eight days from the receipt of the notice. To this notice a reply dated 24th August. 1963 was given on behalf of defendant No. 1 and by that reply defendant No. 1 flatly denied the very existence of the partnership either before the death or after the death of Lawrence. It follows that she denied the plaintiff's and defendant No. 11's claim for accounts. Thereafter on 15-9-1965 the present suit was filed by the plaintiffs for various reliefs claimed in the suit. I will have occasion to refer to the various prayers somewhat in detail in the later portion of this judgment. At this stage I may state that declaration was asked for that the plaintiff had a share in the partnership business in the proportion set out therein. A declaration was also asked for that the firm be dissolved from 1-12-1961 and prayer was made that a Receiver be appointed for taking possession of the business and it was also prayed that accounts be taken of the business: (a) as on 1st of December 1961 and (b) for the period subsequent to 1-12-1961.
(3.) As stated above, defendant No. 11 sails in the same boat with the plaintiff. He filed his written statement and supported each of the plaintiff's contentions, The real contesting defendants were defendants Nos. 1 to 10. They filed their written statement and contended as follows :-- It was stoutly denied that there existed any partnership between deceased Lawrence on the one hand and the plaintiff and defendant No. 11 on the other at any time. It was, therefore, further contended that no question arose about the plaintiff and defendant No. 11 being entitled to any accounts for the period previous to the death of Lawrence or subsequent thereto. Moreover, it was contended that assuming that there existed any partnership amongst the three brothers and that the same stood dissolved on 1-12-1961. the suit for accounts filed on 15-9-1965 was barred by limitation.;