- (1.) THIS is a civil first appeal by the plaintiff against the judgment and decree of the Court of the Additional District Judge, Jaipur, dated the 4th of May, 1951, dismissing the suit of the plaintiffs for dissolution of partnership and renditions of partnership accounts.
(2.) THE plaintiffs Lala Ramdhan and Bakhtawarlal filed a suit on the 7th of July, 1939, in the Court of Sambhar Shamlat Board against Seth Kesarlal and his five sons with the allegations that the plaintiffs constituted a joint Hindu family which carried on business in the name and style of Ramdhan Johrilal, and that the defendants' joint Hindu family firm in the name of Nathmal Moolchand through its Karta Kesarlal,defendant No. 1 entered into an agreement with the joint family firm of the plaintiffs Ramdhan Johrilal for carrying on business in Sugar in partnership on the 10th of October, 1935, and that the partnership agreement was lost. According to the terms of the agreement, it was stated, the share of the defendants in the partnership profits and losses, was 1/4th of the total profits and losses. It was further stated that the defendants continued to carry on the business of the partnership for some time but subsequently refused to settle the partnership accounts. THE plaintiffs, therefore, claimed that the partnership be dissolved and the accounts of the partnership be settled. THE plaintiffs subsequently amended their plaint and pleaded that a partnership agreement was brought about orally between the parties on the 6th of August, 1935, which was finally confirmed by means of an agreement in writing on the 10th of October, 1935 at Sambhar. Thus the plaintiffs based their claim on an oral agreement of the 6th of August, 1935, instead of on an agreement in writing of the 10th of October, 1935. THE suit was contested by the defendants on various grounds, out of which we are here concerned with their objections (1) that the evidence of oral agreement of the 6th of August, 1935, was not admitted for the reason that the agreement in writing of the 10th of October, 1935, was executed on insufficiently stamped paper. (2) that the defendants 2 to 6 could not be regarded as members of the partnership firm on account of their status of being members of a Joint Hindu family. Defendants denied their liability under the partnership agreement. Several issues were framed by the trial court, of which we are here concerned with issue Nos. 1 and 3 only, which run as follows - Issue No. 1. "whether on or about 8th August, 1935, the two plaintiffs and the six defendants entered into an oral agreement of partnership to do the business of the Sugar Agency of the Ledi Sugar Factory and the Maharajganj Sugar Factory under the name and style of the Rajputana Trading Company, and if so, what were the terms of the agreement?" Issue No. 3. "whether proof of the aforesaid oral agreement is barred under sec. 91 and 92 of the Indian Evidence Act?" The suit was transferred to the file of the Additional District Judge, Jaipur, after the abolition of the court of Sambhar Shamlat Board. The trial court held that the plaintiffs failed to prove the oral agreement, pleaded by them, of the 6th of August, 1935, and consequently dismissed the suit. The plaintiff has come to this Court in appeal. It is urged on his behalf by the learned counsel that the court below was wrong in holding that the plaintiffs failed to establish their relationship of partnership between the parties and in holding that the oral agreement of partnership was not established by the plaintiffs. The learned counsel contended that even though the document of partnership of the 10th of October, 1935, was inadmissible into evidence for proving the terms of the partnership contract, it was open to the plaintiff to produce evidence for proving the relationship of partnership between the parties. The learned counsel referred to two agreements entered into between the Rajputana Trading Company and Dr. Bhargava, Exhibits 1 and 2 of the 7th of August, 1935, which bore the signatures of both of the defendant Kesharlal and the plaintiff Bakhtawarlal, in which Rajputana Trading Company was described as a partnership firm of Ramdhan Johrilal and Nathmal Moolchand. Counterfoils of cheques dated the 7th of August, 1935, issued on behalf of the Rajputana Trading Company with endorsement in the hand-writing of defendant No. 6 Bansilal Lohadia, were referred to by the learned counsel in order to show that defendant No. 6 at that time actively participated in the work of the partnership firm. Draft letter from Nathmal Moolchand Exhibit 29 in the hand-writing of defendant No. 6 and Exhibit 55 dated 30th of October, 1935 in the hand-writing of defendant No. 6 and letters Exhibit 51 under the signatures of defendant No. 6 and Exhibit 54 under the signature of defendant No. 4 dated 12th of May, 1936 and 15th of November, 1935, respectively were also referred to by the learned counsel for showing the defendant Nos. 4 and 6 took part in managing the affairs of the partnership business. Certain other documents Exhibit 44, Ex. 23, Ex. 36 and Ex. 37 were similarly referred to. Learned counsel of the appellant tried to show that even in the absence of the oral agreement, pleaded by the plaintiff, the plaintiff succeeded in establishing the relationship of partnership between the parties with reference to the business of the Rajputana Trading Company. It was argued that the suit of the plaintiffs must have been decreed by the lower court in accordance with the provisions of sec. 13 of the Indian Partnership Act. Mr. C. L. Agarwal for the defendants-respondents supported the judgment of the court below by saying that the plaintiffs could not be allowed to lead evidence regarding oral agreement set up by them dated the 6th of August, 1935, inasmuch as the terms of that agreement were reduced to writing according to the plaintiffs themselves on the 10th October, 1935. Reliance was placed in this behalf on the decision in the case of M. Subramanian vs. M. L. R. M. Lutchmen (1 ). In that case their lordships of the Privy Council approved the observations of Couch, C. J. in Kedarnath Dutt vs. Shamlall Khettry (2), which are as follows - "the rule with regard to writings is that oral proof cannot be substituted for the written evidence of any contract which the parties have put into writing. And the reason is that the writing is tacitly considered by the parties themselves as the only repository and the appropriate evidence of their agreement. " It is conceded on either side in the present case that the plaintiffs could not be allowed to lead evidence about the terms of their agreement of the 10th of October, 1935. The oral agreement which is pleaded by the plaintiffs in their amended plaint is said to be the very agreement that was subsequently confirmed by an agreement in writing on the 10th of October, 1935. The terms of the oral agreement having been reduced to writing, the plaintiffs cannot be permitted to lead evidence regarding the terms of the contract in view of the provision of sec. 91 of the Indian Evidence Act. The learned counsel of the appellant having realised this weakness took his stand on the evidence led by the plaintiffs regarding the fact of relationship of partnership between the parties and referred to several documents in the hand-writing and under the signatures of some of the defendants, which have been referred to above. It is evident from a perusal of the various documents cited by the learned counsel of the plaintiff that there is ample evidence on the record to show that both the parties acted in relationship of partners in carrying on the business of Rajputana Trading Company. The most important pieces of evidence in this connection are agreements Exhibits 1 and 2 under the signatures of defendant No. 1 Kesarlal and the plaintiff Bakhtawarlal. In spite of the fact that the evidence regarding the terms of the partnership agreement is not admissible, the plaintiff could lead evidence to show the fact of relationship of partnership between the parties by means of other evidence, because the fact of relationship cannot be considered to be one of the terms of the partnership agreement. That fact may be regarded as independent of it. We are supported in this view of the matter by a decision of this Court in the case of Tejraj vs. Mohanlal (3 ). It was observed that, "where a deed of partition is unregistered and therefore inadmissible in evidence under sec. 49, Registration Act, other evidence can be led to prove the fact of partition as distinct from the terms of partition. " We are inclined to hold that even in the absence of oral agreement or agreement in writing the plaintiffs have succeeded in proving that the parties carried on business in relationship of partners in the name of Rajputana Trading Company. The question, however, remains whether the plaintiffs can be permitted to take their stand on the provision of sec. 13 of the Indian Partnership Act when an agreement in writing was entered into between the parties and a term of which related to the shares of the partners in the profits and losses; of the business. Sec. 13 of the Indian Partnership Act provides "subject to contract between the partners: - (a ). . . . . . . . . . . (b) the partners are entitled to share equally in the profits earned and shall contribute equally to the losses sustained by the firm; (c ). . . . . . . . . . (d ). . . . . . . . . . (e ). . . . . . . . . . (f ). . . . . . . . . . We are afraid the plaintiffs cannot be allowed to take their stand on the provision of sec. 13 of the Partnership Act when there was an agreement in writing between the parties regulating the sharing of profits among them. The provision of sec. 13 is only applicable where there is no contract to the contrary between the parties and cannot be made use of where there is a contract in writing to the contrary. In accordance with the pleadings of the plaintiffs themselves, there existed a contract in writing between the parties regulating distribution of profits and losses among them. The plaintiffs, therefore, cannot take their stand on the provision of sec. 13 for distribution of profits and losses when as per their own pleadings there existed a contract in writing regarding the shares of the partners. The plaintiffs, however, are precluded from placing on record their evidence regarding the terms of the agreement inasmuch as the agreement was written on in sufficiently stamped paper and was stated to have been lost. It is difficult for the plaintiff to get Over the provisions of sec. 91 of the Indian Evidence Act. Even though the relationship of partners between the parties has been established, the plaintiff cannot get any relief regarding the settlement of accounts in the absence of evidence regarding the shares of the partners in the partnership business, as the accounts cannot be made up without that part of information on the record of the case. We may quote the following observations from the judgment of the Court in Tejraj's case (3) in (support of this view. "it is a different matter whether in a particular case such evidence of the fact of partition would be of any use without the term of the partition. That will depend upon the circumstances of each case. Where, for example, the plaintiff says that there was no partition at all, and the defendant says that there was partition, evidence, which would establish partition irrespective of the partition deed, would be enough to throw out a suit for partition a second time. But where, for example, the plaintiff says that there was partial partition and some properties remained undivided, and claims division of these undivided properties, the evidence of the fact of partition may not be sufficient to throw out the suit. " That was a suit for partition and the present suit is for dissolution of partner-ship and rendition of accounts, but so far as the point under discussion is concerned, the position is not much different. It is very unfortunate that the plaintiff is helpless in getting his relief on account of the provision of the rules of evidence.
(3.) THE appeal fails and is dismissed. Under the circumstances, we leave parties to bear their own costs of this Court and of the court below. .;