9911796707
TMI Blog1904 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... e after the sub-lessees began to exercise their right disputes arose between them and Natesa Pillay and Ayyakutti Muthiryan who also claimed to be a sub-lessee under Natesa Pillay. Litigation ensued and Original Suit No. 466 of 1893 was instituted by Kandasami against Natesa Pillay and Ayyakutti Muttiryau. Pending the suit Kandasami died on the 31st January 1895. The suit having been continued by the first defendant as next friend of Kandasami's son, the present sixth defendant an infant, a compromise was, on the 25th August 1896, entered into whereby Natesa Pillay undertook to pay ₹ 1,800 in discharge of all liability. The plaintiff alleges that at the same time the first defendant entered into an arrangement with Ayyakutti Mnthi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, but it is not identical with it. The death of a member of a family thus engaged in business has in truth no other effect upon the rights of the surviving members in the business than to enlarge their interest to the extent of the share to which the deceased was entitled in his lifetime if he left no male issue, and if he left such issue, then to enlarge the shares of such issue similarly. It is to such result that the observations of Mr. Justice Melvill in Samalbhai Nathubhai v. Someshvar, Mangal and Harkisan(1) on which reliance was placed on behalf of the plaintiff should be taken to refer. Therefore whether the contract of partnership entered into between the plaintiff and Kandasami be taken as creating that relation only between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from this it was contended on behalf of the plaintiff that, even on the footing that a suit for a general account was out of time, the plaintiff is entitled to his share of the assets of the partnership received by the defendants subsequent to the compromise subject to due allowances, as the claim for such relief is within time. Whether in point of fact the defendants have received any and what assets subsequent to the compromise has not been tried and the question is, assuming they did so receive, is the plaintiff entitled to maintain a suit for his share notwithstanding that a suit for a general account and a share of the profits is time barred? Merwanji Hormusji v. Rustomji Burjorji is a clear and direct authority in favour of answering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of realization of assets made under circumstances which raise no question of limitation with reference to a claim strictly confined to a share of what was thus realized of course, to allow such a claim to be maintained without the defendant being at liberty to go into the whole accounts and if possible defeat the plaintiff's claim by showing that the net balance is against the plaintiff would he quite unjust. The view we follow avoids such undesirable results while it secures to all the partners their fair and proper shares in assets with reference to which no question of lapse of time is capable of being raised under the law. We must therefore set aside the decree of the District Judge and remand the case. In doing so it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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