Decided on July 19,1949

Hiralal Kundanmal Appellant
Chhagammal Kantiyalal Respondents


Rege, J. - (1.)THIS is a Defendant's appeal from a preliminary decree passed by the Additional District Judge, Indore in a suit by the Respondent Chhaganlal for rendition of accounts of a dissolved partnership. It is common ground that Chhaganlal was, under the terms of the partnership which commenced business on 20th October 1943, to supply the capital and take a five annas share in the rupee in the business. The Defendant Hiralal was to take another five annas while a six annas share was given to Amolakchand who retired from the partnership on 30th July 1946. On accounts being taken at this stage a sum of Rs. 5,100 was found due from Amolakchand who executed a bond Ex. P. 1, for the same in favour of the surviving partners. The Plaintiff's case is that after the retirement of Amolakchand, he and the Defendant continued the partnership in equal shares until the Diwali of samvat 2003 when Hiralal ceased working and the partnership came to an end. He claimed interest on the capital advanced by him at 7 1/2 per cent, per annum. The Defendant, while admitting the partnership and its initial terms, contended that the Plaintiff took up the six annas share of Amolakchand on his retirement and the bond, Ex. P. 1, was in fact to be understood as being in favour of the Plaintiff and consequently the Plaintiff was liable to the partnership for Rs. 6,100 under the bond. He pleaded that the partnership came to an end on Bhadav Sudi 11 samvat 2003, and set up a compromise of the claim by the Plaintiff for Rs. 1,700.
(2.)THE learned District Judge, held that interest was due to the Plaintiff at 6 per cent, and not 7 1/2 as claimed by him; that the Plaintiff was not liable for the amount of Rs. 5,100; that the Plaintiff and Defendant had an equal share in the partnership after the retirement of Amolakchand; that the partnership ended on Bhadav Sudi 11 -2003; and that the plea regarding the compromise was baseless. On a plea for instalments, the learned Judge rightly held that this was a matter to be considered when making the final decree. A preliminary decree for taking accounts was, therefore, passed and the Defendant held liable for costs.
Before me the contention regarding the Plaintiff's liability in consequence of Ex. P. 1 is not pressed and the only questions for determination are: (1) What is the share of the Plaintiff and Defendant in the partnership after the retirement of Amolakchand? (2) Was the claim of the Plaintiff for his share fixed at Rs. 1,700 by a compromise? (3) Should the costs be made payable by the Defendant?

(3.)IT is contended that in absence of a contract to the contrary the shares of the Plaintiff and Defendant must be eight annas each in the rupee. On the question of contract to the contrary we have the oath of the Plaintiff against the oath of the Defendant. The learned Judge below has accepted the word of the Plaintiff and apart from the weight the finding is entitled to by reason of the opportunity the learned Judge had of observing the deponent first hand, the circumstances give good ground for the preference. The Defendant is belied in his version regarding Rs. 1500 and as will be discussed presently on the question of the compromise. I, have, there fore, no hesitation in holding that the parties had an equal share in the partnership.

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