R. B. Misra, J. - (1.) THESE are two appeals against the common judgment of the First Additional Civil Judge, Agra dated 24th September 1956 in two cross suits between the parties, Suit No. 91 of 1952 giving rise to First Appeal No. 29 of 1957 was filed by Raj Bahadur against Chaubey Sushil Chand. Keshri Mal and Prem Chand, while suit No. 75 of 1952 giving rise to First Appeal No. 33 of 1957 was filed by Chaubey Sushil Chand against Raj Bahadur. The material facts leading upto these appeals are as follows:
(2.) THERE is a glass factory known as Hanuman Glass Works at Station Road, Firozabad, Chaubey Sushil Chand was the sole owner till 1929 or 1930. In or about the year 1930-31 late Lal Pyare Lal uncle of Raj Bahadur appeared on the scene. He was taken in either as partner or on commission and his share was fixed at 3/6 in a rupee. In or about the year 1935 Lal Pyare Lal started another business for the purchase and sale of sand etc. used in the manufacture of glass in the name and style of Lal Pyare Lal Agarwal. According to Raj Bahadur, this new business was in partnership with Chaubey Sushil Chand wherein the share of Chaubey Sushil Chand was fixed at As. -/10/and that of Lala Pyare Lal at As. -/6.00 in a rupee. According to Chaubey Sushil Chand, it was, however, a private concern of Lal Pyare Lal. In or about the same year Lal Ram Swarup, father of Raj Bahadur, also joined the firm Hanuman Glass Works as a servant on a salary of Rs. 35.00 per mensem. Later on, he was also taken either as partner or on commission and the shares of these persons were readjusted in such a way that Chaubey Sushil Chand was to have As. -/9/6. Lala Pyare Lal -/3/6 and Lal Ram Swarup -/3.00. On 9th August, 1943, the firm Pyare Lal Agarwal entered into a financial agreement on commission basis with M/s Himalaya Glass Works at Firozabad for financing and supplying raw materials to and for the sale of the finished products of the latter firm. The said arrangement, however lasted only for a year when huge amount had fallen due to the firm Pyare Lal Agarwal. A suit was filed by Lal Pyare Lal for the recovery of the dues against M/s Himalaya Glass Works. Pyare Lal in the meantime died and late Lal Ram Swarup as his legal representative entered into a compromise and under the compromise only a decree of Rs. 8000.00 was passed. Firm Pyare Lal Agarwal stopped its business and was dissolved some time in 1944 on the failure of Himalaya Glass Works though its final accounts could not be settled and wound up on account of the pendency of the suit against M/s Himalaya Glass Works. It appears that about the same time the business of Hanuman Glass Works was divided into two sections, known as Sections A and B. Section A was to deal in chemical etc. while section B was to deal in the manufacture and sale of Block Glass only. In Section A, the shares of Chaubey Sushil Chand, Lala Pyare Lal and Lala Ram Swarup continued to be the same as stated earlier but in Section B, (also known as 'Kanch Bhatti) two more partners, that is, Shri Keshari Mal and Shri Prem Chand were taken as new partners and their shares were readjusted. The firm Hanuman Glass Works Sections A and B was not dissolved on the death of Lala Pyare Lal and under an oral agreement between the surviving partners they continued as before. The share of Lal Pyare Lal, however, devolved on Lal Ram Swarup Lal Ram Swarup also died on 23rd September, 1951. On his death the firm stood legally absolved.
(3.) IT further appears that in the account books of Firm Hanuman Glass Works Section A Lal Pyare Lal opened two Khatas - one in the name of Lala Pyare Lal and the other in the name of Lala Pyare Lal Agarwal, Khata in the name of Lala Pyare Lal Agarwal represented the commission advances made in cash or kind to Himaliya Glass Works through firm Pyare Lal. Later on the two Khatas were amalgamated. 4-a. Chaubey Sushil Chand in his suit no. 75 of 1952 against Raj Bahadur claimed a decree for Rs. 17,316/5.00 with pendente lite and future interest against the assets of late Lala Pyare Lal in the hands of Raj Bahadur. According to the plaintiff Lal Pyare Lal supervised the plaintiff's business in Sections A and B of Hanuman Glass Works on commission basis and not as a partner. He also used to carry on his separate business at Firozabad. Under the terms of an agreement, Lala Pyare Lal was to get -/3/6 in a rupee as his commission on the net profits of the plaintiff's aforesaid business in Hanuman Glass Works as his remuneration for his work of supervision, Lala Pyare Lal used to take cash advances and raw material and glass etc. from the plaintiff's firm Hanuman Glass Works for his other business. There was mutual, open and current account between the plaintiff and Lal Pyare Lal deceased under which cash advances, price of the raw materials and glass etc. used to be debited to Lal Pyare Lal and the payments made out of the commission earned by him used to be credited by him. Though the account was open, mutual and current, yet for the facility and convenience, two Khatas were opened in the plaintiff's account books - one in the name of Pyare Lal Agarwal and the other in the name of Lala Pyare Lal on 30th June, 1949. Both these Khatas were amalgamated under the instructions of Lala Pyare Lal deceased. From Ist July, 1948 to 30th June, 1949 Rupees 37.302/14/9 were debited to Lal Pyare Lal and from Ist July, 1948 to 30th June, 1949 Rs. 22,302/5/6 were credited to him in the plaintiff's regularly kept account books. Thus a balance of Rs. 15,000/9.00 remained against Lal Pyare Lal. Subsequently from Ist July, 1949 upto 30th June, 1950, a balance of Rs. 17,308/11/remained due from Lala Pyare Lal including the balance of Rs. 15,000/9.00 as outstanding on 30th June, 1949. From Ist July, 1950 to 30th December, 1950, a further sum of Rs. 7/10.00 was debited to Lal Pyare Lal and nothing was credited. Thus a total amount of Rs. 17,316/5/remained due to the plaintiffs from Lal Pyare Lal deceased Lala Pyare Lal died leaving Raj Bahadur, his nephew, the defendant. Besides the repeated demands, the defendant did not pay the amount so the plaintiff was obliged to file a suit for the recovery of the said amount. ;