1969 (7) TMI 115 - HC - Indian Laws

Parties' Partnership Shares Determine Deposit Distribution; Appeal Dismissed Due to Lack of Account Books

The appeal was dismissed as the plaintiff failed to produce material account books, leading to the court's conclusion that rendition of accounts could not ... Admissibility and weight of examination-in-chief where witness dies before cross-examination - Presumption under illustration (g) to Section 114, Evidence Act for non-production/withholding of material documents - Effect of withholding material account books in suit for rendition of accountsAdmissibility and weight of examination-in-chief where witness dies before cross-examination - Statement made in examination-in-chief by a witness who dies before cross-examination is admissible but its weight is a matter for the court to determine. - HELD THAT: - The Court held that evidence given in examination-in-chief, which was admissible when recorded, does not become inadmissible because the witness subsequently dies before being cross-examined. The absence of cross-examination affects only the probative value, not admissibility. The court must consider the circumstances of each case in assessing weight - including the nature of the testimony, probative value, status and possible bias of the witness, indications that cross-examination would have impaired credibility, and whether the testimony is corroborated by surrounding facts. Where the court, after applying appropriate caution, relies upon such testimony, the decision so founded is not vitiated by the absence of cross-examination. [Paras 12]The statement of a witness examined in-chief who dies before cross-examination is admissible; its weight is for the court to determine in the facts of the case.Presumption under illustration (g) to Section 114, Evidence Act for non-production/withholding of material documents - Effect of withholding material account books in suit for rendition of accounts - Withholding of material account books by the plaintiff justifies drawing an adverse inference under illustration (g) to Section 114, Evidence Act, and may preclude a plaintiff from claiming rendition of accounts. - HELD THAT: - The Court upheld the finding of the lower appellate court that the plaintiff willfully withheld material account books which were in his possession. Illustration (g) to Section 114 permits the drawing of an adverse inference where evidence that could be produced is withheld and would, if produced, be unfavourable to the party withholding it. Precedent establishes that in suits for rendition of accounts the non-production of account books by the party in custody justifies the presumption that they have been withheld because they would be unfavourable; where the plaintiff seeks rendition but withholds books, the suit may be dismissed. The appellate court's factual conclusions as to possession and willful withholding (supported by surrounding circumstances and corroborative material) were not shown to be erroneous and therefore the courts below were justified in refusing to proceed to rendition of accounts. [Paras 13, 14]The plaintiff's willful non-production of material account books warranted drawing the adverse inference under illustration (g) to Section 114, and justified refusing the claim for rendition of accounts.Final Conclusion: The second appeal is dismissed; the courts below were justified in (a) treating the un-cross examined examination in chief as admissible though of limited weight, and (b) drawing an adverse inference under illustration (g) to Section 114 from the plaintiff's withholding of material account books, resulting in the dismissal of the plaintiff's claim for rendition of accounts; parties to bear their own costs. Issues Involved:1. Dissolution of partnership and rendition of accounts.2. Withholding of material account books.3. Admissibility and weight of the statement of a deceased witness.4. Distribution of deposited amount among partners.Detailed Analysis:1. Dissolution of Partnership and Rendition of Accounts:The plaintiff filed a suit for dissolution of the partnership and rendition of accounts against the defendants. A preliminary decree for dissolution and accounts was awarded, affirmed on appeal. The Local Commissioner appointed to go into accounts reported dues from the defendants to the plaintiff. However, the trial court set aside this report and dismissed the suit, finding it impossible to go into accounts due to both parties withholding important account books. The District Judge on appeal agreed with the trial court, concluding that the plaintiff had failed to produce material account books in his possession, thus not entitled to claim rendition of accounts.2. Withholding of Material Account Books:The trial court presumed against the plaintiff under clause (g) of Section 114 of the Evidence Act for non-production of account books in his possession. The District Judge upheld this finding, noting that the plaintiff's failure to produce material account books justified the presumption that the withheld evidence would be unfavorable to him. The court referenced the case of Debendra Narayan Singh v. Narendra Narayan Singh, which held that non-production of account books by a party in a suit for accounts justifies the presumption under Section 114(g) of the Evidence Act.3. Admissibility and Weight of the Statement of a Deceased Witness:The plaintiff challenged the admissibility of Baj Ram's statement, arguing it was inadmissible as he died before cross-examination. The court reviewed several precedents, concluding that the statement of a witness in examination-in-chief, admissible when recorded, does not become inadmissible due to the witness's subsequent death before cross-examination. The absence of cross-examination affects the weight of the statement, not its admissibility. The court found no sufficient ground to interfere with the finding that the account books for the relevant years were in the plaintiff's possession and willfully withheld.4. Distribution of Deposited Amount Among Partners:The District Judge addressed the Rs. 16,000 deposited by Munshi Ram in court, determining the parties were entitled to the amount according to their partnership shares. The plaintiff was entitled to Rs. 6,000, the legal representatives of Chandu Ram to Rs. 8,000, and Munshi Ram to Rs. 2,000. This distribution was based on the partnership agreement and the respective shares of the partners.Conclusion:The appeal was dismissed, with the court affirming the lower courts' findings that the plaintiff was not entitled to claim rendition of accounts due to withholding material account books. The distribution of the deposited amount among the partners was upheld. The parties were left to bear their own costs.