N RAJAN NAIR Vs. M T BALAKRISHNAN NAIR
LAWS(KER)-2003-2-27
HIGH COURT OF KERALA
Decided on February 13,2003

N.RAJAN NAIR Appellant
VERSUS
M.T.BALAKRISHNAN NAIR Respondents

JUDGEMENT

- (1.) This second appeal is filed by the plaintiff in a suit for settlement of accounts and realisation of share of profits of a partnership firm. The plaintiff and the Ist defendant were partners of a registered firm which was dissolved on 3.1.1984. The 2nd defendant is the wife of the 1st defendant and the first defendant is the brother inlaw of the plaintiff. The case of the plaintiff is that he was away on account of his employment and the 1st defendant was conducting the business on behalf of the firm and that he amassed wealth by using funds of the firm and purchasing property in the name of his wife, the 2nd defendant. The plaint schedule shows 16 items of properties out of which 14 items are immovable properties which according to the plaintiff the defendants purchased out of the funds from the partnership firm. Defendants 1 and 2 filed separate written statements. Both of them contended that the suit is barred by limitation. The allegation that the properties were purchased by making use of the partnership fund was denied. It was contended that the 1st defendant had other business also.
(2.) The Trial Court considered the question of limitation as a preliminary issue and found that the suit is barred by limitation and dismissed the suit on that short ground. The appellate court confirmed the judgment and decree of the Trial Court.
(3.) In this second appeal, it is contended that the Trial Court went wrong in considering the question of limitation as a preliminary issue. It was contended that only after the trial of the case it could be decided whether the suit is barred by limitation or not. The further contention was that the defendants are in the position of trustees and the suit cannot be dismissed on the ground of limitation in view of S.10 of the Limitation Act.;


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