P.B. Mukharji, J. - (1.) This is an appeal from the judgment and decree of A. N. Ray, J., dismissing the plaintiff appellants suit with costs.
(2.) The plaintiffs filed the suit against the defendants for a decree for the sum of Rs. 40,132-13 and alternatively for accounts and decree for the amount found due. The plaintiffs allege that the plaintiffs and Manick Chand Sarawagi, a brother of the plaintiffs carried on a partnership business with one Ram Kumar Khatuwala. The partnership was a registered partnership business under the name and style of Ramballav Rameswar at its present place of business at No. 19, Noormull Lohia Lane, Calcutta. The firm is said to be established in 1946. The defendants are the widow and sons and heirs of the deceased Ram Kumar Khatuwala. The share of Ram Kumar Khatuwala is two annas in a rupee in that firm. The plintiffs as well as the said Manick Chand had fourteen annas in the rupee as their individual shares. It is alleged that accounts of the firm were adjusted annually on the Ramnavami day of each year in Calcutta and mutually used to carry interest at the rate of 6 per cent per annum. The pleading is that the last of such adjustments took place in Calcutta in the Ramnavami day of Samvat year 2007 corresponding to 14th/15th April, 1951. Then it was alleged that the partnership dissolved on the 11th April, 1954 and the terms of dissolution were recorded by the said Manick Chand and the said Ram Kumar Khatuwala in a document dated the 5th May, 1954. It is this pleading on which amendment is now sought and which we have allowed in our judgment dealing with the application for amendment. It is said that in this document of the 5th May, 1954, it was agreed that the unadjusted accounts of the firm would be taken within a year from that day and as soon as the accounts were completed Ram Kumar Khatuwala should forthwith adjust his accounts and pay to or receive from the plaintiffs and the said Manick Chand Sarawagi his share of losses or profits as the case might be.
(3.) Then what happened was that Ram Kumar fell ill and before any such adjustment could be made he died intestate in May, 1957 leaving the defendants as his sole heirs and legal representatives and or surviving members of Ram Kumars joint family of which Ram Kumar was the karta. The next event that occurred was that the plaintiffs and Manick Chand adjusted accounts in Calcutta and a sum of Rs. 31,496-1-0 was found due and owing by Ram Kumar Khatuwala to the plaintiffs and the said Manick Chand Sarawagi calculated up to the Ramnavami day of the Sambat year 2010 corresponding to 11th April, 1954. In other words these accounts relate to the years 1951-52, 1952-53, and 1953-54. The statement of accounts is annexed to the plaint marked as "A". By a deed of Assignment dated 24th April, 1958, Manick Chand Sarawagi assigned all his right, title and interest in the amount due from Ram Kumar Khatuwala to the plaintiffs. In is now alleged in the plaint that the defendants in spite of demands did not pay the said sum which was found due as aforesaid by Ram Kumar Khatuwala to the firm.;