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Madras High Court
(Palepu) Narayanamurty vs Mallapudi Subrahmanyam on 27 July, 1928
Equivalent citations: AIR 1928 Mad 1197, 114 Ind Cas 655
Author: Reilly


Reilly, J.

1. S.A. 751 and 885 of 1925 are cross appeals in O.S. 196 of 1923 on the District Munsif’s file. It is not disputed before me that the plaintiff, Narayanamurty, and the defendant, Subrahmanyam, in that suit and Achanta Satyanarayana and Kamali Chandrayya were partners in a firm formed for the purpose of selling toddy. It is contended for the plaintiff that that partnership was illegal But the cases relied on Marudathamuthu Pillai v. Rangasami Mooppan [1901] 24 Mad. 01, Thithi Pakurudasu v. Bheemudu [1903] 26 Mad. 430, and Brahmayya v. Ramiah [1920] 43 Mad. 141, though they lay down that a partnership entered into in contravention of a license or of any rule under the Abkari Act is void and that a licensee of a toddy or arrack shop cannot legally take a partner without sanction, do not go so far as to lay down that it is illegal for persons to enter into a partnership for the purpose of carrying on a toddy shop business, for which they hope at a future date to obtain a license. There is indeed nothing in the Act to prevent a license to conduct a toddy shop being; issued to several persons, and there is nothing to make it illegal for several; persons to enter into a partnership for; the purposes of binding at a toddy shop auction and, if successful, in the auction, of obtaining a license and of carrying on a toddy shop business. At the date of the promissory note, Ex. A, that is, in August 1918, there was nothing illegal in the partnership of the four persons mentioned.

2. It is urged for the plaintiff that this suit was conducted in the lower Courts on the basis that the whole partnership was illegal; but it does not appear that the defendant made any admission to that effect, and he is not precluded on that ground from contesting the question here. Then it is urged that O.S. 461 of 1920 on the District Munsif’s file, a suit by Narayanamurty for dissolution of the partnership, was dismissed on the finding that the partnership was illegal. But it appears that, though Achanta Satyanarayana raised’ that plea in that suit, the present defendant, Subrahmanyam, did not do so. In O.S. No. 462 of 1920 on the District Munsif’s file, a similar suit for dissolution of a similar partnership in respect of a subsequent year, Subrahmanyam did raise that plea successfully. But that does not make the question res judicata between him and Narayanamurty in respect of the earlier partnership, with which we are now concerned. It is also urged for the plaintiff that Achanta Satyanarayana, being one of the partners, should not have been allowed to prosecute a separate suit on the promissory note, Ex. A for an advance made for the partnership business. That may be; but he was allowed to sue, and he got a decree. I do not think that Narayanamurty is entitled to any declaration such as he has prayed for in respect of the mortgage-deed, Ex. C.S. A. 751 of 1925 is, therefore, dismissed and S.A. 885 of 1925 is allowed. O.S. 196 of 1923 is dismissed. The plaintiff will of course be entitled to make use in future of ‘Narayanamurty’s admission that the Rs. 237 mentioned in Ex. G was never advanced by him.

3. Second Appeals 884 and 886 of 1925 are two appeals by Subrahmanyam against the dismissal of his suit, O.S. 340 of 1922, against Narayanamurty. The District Munsif dismissed O.S. 340 of 1922 except to the extent of Rs. 100-13-10. The Subordinate Judge dismissed it completely. Rs. 294 in Ex. G represents part of the amount of the decree obtained by Achanta Satyanarayana against Subrahmanyam (plaintiff in O.S. 340 of 1922 and defendant in O.S. 186 of 1923) on Ex. A. The District Munsif has allowed Rs. 100-13-10 as the 3rd share of the additional sum which had to be paid by way of interest accumulated on that decree through delay in payment. But, as Subrahmanyam’s evidence shows Narayanamurty was not responsible for that delay, the claim for Rs. 283-5-4 in O.S. 340 of 1922 cannot be pursued now as it is barred by a finding of fact. The other two claims for damages cannot be allowed. The dismissal of O.S. 340 of 1922 was, therefore, right. S.A. 884 and 886 of 1925 are both dismissed.

4. In the circumstances of this curious litigation each party will bear his own costs in these appeals in this Court.

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