Madras High Court
K. Rama Naidu vs S.K. Parthasarathy Naidu And Anr. on 12 March, 1992
Equivalent citations: (1993)1MLJ63
JUDGMENT Mishra, J.
1. The first defendant in a suit on the Original Side of the court has appealed against an order of injunction issued in terms as follows:
That the interim order of the court herein dated 13.6.1991 directing the respondents herein not to encumber or alienate the property more fully set out in the schedule hereto, in any manner to third parties and extended till 27.6.1991 by order dated 20.6.1991 be and is hereby made absolute till the disposal of the above suit C.S. No. 597 of 1991.
2. The plaintiff/first respondent and the second defendant/second respondent have a common cause in the injunction petition. For the purpose of appreciating the nature of the dispute between the parties, we may refer to the contents of the plaint and if necessary to the affidavits filed in the course of the hearing of the injunction petition. We do not, however, have the advantage of the written statement of the first defendant/appellant. We shall, however, for the purpose of deciding, the question of injunction, accept the allegations in the supporting affidavit as uncontroverted.
3. According to the plaintiff, he and defendants 1 and 2 have been dealing in real estate within and outside the jurisdiction of this Court independently and/or in partnership with one another in respect of any particular transaction. They purchased land, developed it as an approved lay-out and sell the lay-out plots to third parties and share not profits arising out of those transactions, depending upon the agreed share of investment and the share of profit fixed therefor. It is said, in the course of such business activity, the first defendant/appellant approached the plaintiff and the second defendant to do business in partnership of developing and selling the land of an extent of 4 acres of approved lay-out. This land is fully described in the schedule to the plaint. It is alleged, The first defendant agreed to give to the plaintiff and the 2nd defendant 1/5 share each in the profits of the sale proceeds of the suit property as lay-out plots. The 1st defendant is entitled to 3/5 share in the said profits. The abovesaid business of partnership between the plaintiff and the 1st defendant on the one hand and the 1st defendant and second defendant on the other hand, is confirmed by the 1st defendant in separate agreements dated 16.4.1988 and 8.8.1988. The partnership business of the plaintiff and defendants came into existence in the following Way:
The plaintiff states that the 1st defendant represented that the suit property was originally the trust property of Sithi Puthi Vinayakar Temple of Navanenrikuppam Village and the 1st defendant along with one Radhakrishnan entered into an agreement of sale dated 17.10.1983 with the Trustees of the said temple fixing the sale price of the suit property at Rs. 4,93,500 and that the Trustees filed O.P.No : 14 of 1985 on the file of the District Court, Chingleput for getting permission to sell the suit property and that the court has also granted permission on 30.7.1985 and that subsequently, dispute arose between them and that therefore the 1st defendant and the said Radhakrishnan were not able to purchase the suit property.
The plaintiff states that by making such-representation during the pendency of the aforesaid O.P. No. 14 of 1985 the 1st defendant approached the plaintiff to do business in partnership for developing the suit property as a lay-out and to share the profit by selling the same. The 1st defendant requested the plaintiff for contribution of part of sale consideration to purchase the suit property from the trustees of the temple agreeing to pay 1/5 of the profits of sale of layout plots. Believing the said representation of the 1st defendant, the plaintiff paid a sum of Rs. 1,00,000 (one lakh only) on 28.9.1987, for purchase of the suit property and the 1st defendant also issued a stamped receipt therefore. In the said receipt itself the 1st defendant admitted to give 1/5 share of profits to the plaintiff. Subsequently the 1st defendant executed an agreement dated 8.8.1988 incorporating the business of partnership and the share of profits as stated above between the plaintiff and the 1st defendant.
The plaintiff states that the 1st defendant sub-sequently represented to the plaintiff that the 1st defendant has entered into similar partnership with the 2nd defendant agreeing to pay to him l/5 share in the business of selling the suit property for which the 2nd defendant has also paid a sum of Rs. 1,00,000 (one lakh only) and the 1st defendant had also entered into an agreement dated 164.1988 for sharing the profits as slated above with the 2nd defendant.
Thus the 1st defendant entered into a partnership with the plaintiff and 2nd defendant by separate agreements agreeing to pay 1/5 share each from selling the suit property as lay out plots. Originally before the suit property was purchased for the partnership, the first defendant has mentioned estimated value of the suit property as Rs. 10,00,075 and the share of the plaintiff and defendant is mentioned as Rs. 1,00,001 each. It is agreed that after defraying the aforesaid sums, the profit will be shared in the ratio. However, now the property was purchased only for a sum of Rs. 4,46,800. Therefore, the estimated value of Rs. 10,00,075 has no bearing for taking away the share capital of partners. The plaintiff states that after the receipt of the aforesaid sums from plaintiff and second defendant towards the partnership business the plaintiff prosecuted O.P.No 14 of 1985 for getting permission to purchase the property from the Trustees of the temple. As represented by the first defendant after entering into the compromise on 15.2.1990 with his co-agreement vendee namely Radhakrishnan and the Trustees of the temple, the 1st defendant was able to complete the formalities of getting permission from the court and to obtain the sale deed dated 12.3.1990 in respect of the suit partnership property. The 1st defendant gave the agreement dated 16.4.1988 between 1st defendant and second defendant and the xerox copy of the sale deed to the plaintiff.
(underlining is ours).
4. Alleging that the first defendant, all of a sudden made a publication in the English daily "The Hindu" dated 15.7.1990 notifying the suit property for sale giving a phone number 652763 for contact by intending purchaser of the suit property and that hitherto the first defendant used to give the phone No. 610359 of the 2nd defendant alone for contact in person of business of partnership property by the intending developers, purchasers etc., which conduct of the first defendant is against the principles of Partnership and destructive of the partnership business itself, and for the reason that the plaintiff came to know that the representations made by the 1st defendant from 1987 onwards was with a fraudulent intention of cheating the plaintiff and the second defendant, the plaintiff has moved this Court for a decree inter alia that the partnership of the plaintiff and defendants to carry on the business of laying out and selling the suit property. may be dissolved as and from the date of suit and that the suit property being the asset of the partnership, may be divided into one fifth, three-fifth and one-fifth between the plaintiff, the, first defendant and the second defendant by appointing a Commissioner therefore The plaintiff/respondent also moved the court for an order of injunction. A learned single Judge of this Court granted injunction as above.
5. Before we advert to consider whether on the facts as above in the plaint, any case for the grant of injunction in terms as ordered by the trial court has been made out, we shall prefer to recapitulate the ambit and scope of a suit for dissolution of partnership and find out from a glance to the relevant provisions of law as to what constitutes an asset of the partnership and how far a partner can go claiming interest in the properties that belong to the partnership and how far a court can enjoin a partner with respect to the properties of the partnership and with respect to the properties which do not belong to the partnership
6. The Indian Partnership Act has defined partnership, partner firm and firm name to identify the relationship between persons, who have agreed to share the profits of a business carried on by all or any of them acting for all Section 5 of this Act says, The relation of partnership arises from con- tract and not from status; and, in particular, the members of a Hindu undivided family carrying on a< family business as such, or a Burmese Buddhist husband and wife carrying on business as such, arc not partners in such business.
7. Section 6 of this Act indicates the mode of determining existence of partnership in these words:
In determining, whether a group of persons is or is not a firm, or whether a person is or is not a partner in a firm, regard shall be had to the real relation between the parties, as shown by all relevant facts taken together.
Explanation 1; The sharing of profits of gross returns arising from property by persons holding a joint or common interest in that property does not of itself make Such persons partners.
Explanation 2 : The receipt by a person of a share of the profits of a business, or of a payment contingent upon the earning of profits of varying with the profits earned by a business, does not of Itself make him a partner with the persons carrying on the business; and in particular, the receipt of such share of payment:
(a) by a lender of money to persons engaged or about to engage in any business,
(b) by a servant or agent as remuneration,
(c) by the widow of child of a deceased, partner, as annuity or
(d) by a previous owner or part owner of the business, as consideration for the sale of the goodwill or share thereof, does not of itself make the receiver a partner with the persons carrying on the business.
8. Section 14 of this Act deiscribes the property of the firm in these word.
Subject to contract between the partners, the property of the firm includes ail property and rights and interest in property originally brought into the Stock of the firm acquired, by purchase or otherwise, by or for the firm, or for the purpose and in the course of the business of the firm, and includes also the goodwill of the business. Unless the contrary intention appears, property and rights and interests in property acquired with money belonging to the firm are deemed to have been acquired for the firm.
9. These provisions thus give us a definite idea to know whether a partnership is insistence and as to what is the property of the partnership. The sharing of profits or of gross returns arising from property by persons holding a joint or common interest in the property dos not of itself make such persons as partners. The receipt by a person of a share of the profits of ,a business or of a payment contingent upon the earning of profits or varying with the profits earned by a business, does not of itself make him a partner with the persons carrying on the business, more so, if such a person is the lender of money to persons engaged or about to engage in any business and other instances indicated in Explanation 2. To constitute a property of the firm, it must be shown that the rights and interests in property have been brought into the stock of the firm by the partners originally when the firm was formed or subsequently acquired by purchase or otherwise in the course of the business of the firm.
10. Section 37 of the Specific Relief Act says that temporary injunctions are such as to continue until a specified time or until further order of the court, and they way be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908, Section 41(e) of this Act says, An injunction cannot be granted to prevent the breach of a contract the performance of which would not be specifically enforced.
11. In the course of the hearing of the injunction petition in the trial court, some documents were produced in support of the plaint allegations. Such documents have been dealt with by the learned single Judge and for our purpose, it will be enough that we extract from the judgment of the trial court the contents thereof and the findings thereon.
The typed set filed on behalf of the first defendant/respondent contains the copies of various letters and agreements and among one was the sale agreement dated 28.9.1987, executed between the first defendant, herein as No. 1 and the plaintiff herein as No. 2 and that this document has been titled as land sale agreement. Referring the suit property in this agreement, as having been purchased by the first defendant, it was specifically pointed out that for the purpose of paying the money to get the sale deed in the District Court at Chengalpattu to purchase the suit property it appears that the first defendant had obtained a sum of Rs. 1,00,001 by cash. It appears from the said document that the suit property was valued on the said date for Rs. 1,00,075 and further it was agreed that the said property is to be converted into plots and sold away to third parties and the first defendant has agreed to give 1/5 share in the property derived out of the said sale of the suit property. Then this document was followed by the execution of another receipt by the first defendant on 16.4.1988 in favour of the second defendant hereinfor the receipt of Rs. 1,00,001 in token and consideration of an agreement executed by themselves in the stamp papers on 16.9.1988. Then a similar agreement was entered into between the first and second defendant to share the 1/5 profit to the second defendant from the profit derived out of the sale of the suit property and that this agreement was executed on 16.4.1988 with the value given for the suit property at Rs. 10,75,000.
One another document which was relied upon by the first defendant as well as the plaintiff is a document executed by the first defendant herein to the plaintiff on 8.8.1988 and that in which the first document and the receipt of Rs. 1,00,001 from the plaintiff has been referred to which was paid to him for the purchase of the suit property, Further, in the said document, it was recited as follows as agreed by the first plaintiff:
This document clearly speaks for the truth that, upon which the plaintiff and the first defendant had agreed upon already with regard to the suit property. It was made clinchingly clear that for the purpose of purchasing the suit property in the name of the first defendant, the sum of Rs. 1,00,001 was contributed by the plaintiff and that for which the first defendant has agreed to give 1/5 share in the profit derived out of the sale of the said land by any 3rd party after converting into plots and that even so the specific words stipulated therein.
The above words clearly manifest the intention of the parties, when it was reduced into writing. There was no denial on the part of the first defendant that he has not received the amount of Rs. 1,00,001 from the plaintiff and the first defendant respectively. Thus, a careful perusal and consideration of the documents relied on by the first defendant clearly demonstrate the fact that what was agreed upon between the defendants and the plaintiff was only a partnership business in purchasing the suit property in the name of the first defendant and for that purpose, he got the contribution from the plaintiff and purchased the same at the value prevailing on that date and agreed to sell away at Rs. 10,75,000 subsequently and that thereupon to share the profit also in accordance with the ratio of the contribution. Through this document, the truth has come out and the pleadings as well as the case of the plaintiff brought so far has been substantiated prima facie by the plaintiff herein. It is true that there was no written partnership deed among the plaintiff and the defendants herein with regard to the business of purchasing the lands and converting the same into plots and sell it away to third parties for profits. But, this fact has not been suppressed by the plaintiff. But even so, the documents, relied upon by the first defendant, clinches the fact of the agreement of partnership, business among the parties herein relating to the suit property, by converting into plots followed by the approval by the authorities and selling it away to third parties for profit and share them in proportion to their respective contribution made among themselves.
To begin thus to consider whether there has been a partnership, it has to be seen that there is no written partnership deed among the plaintiff and the defendants with regard to the business of purchasing the land, converting the same into plots and selling it away to third parties for profits (see the finding quoted above of the trial court).
12. There is no material on record to show anything beyond a certain stipulation that the first defendant/appellant has agreed to share profits or gross returns arising from the sale of the suit land. There is nothing also to show that the plaintiff and the second defendant have been holding a joint or common interest in the suit land with the first defendant/appellant.
13. The first document dated 8.8.1988 showing that the plaintiff paid a sum of Rs. 1,00,001 to the first defendant for the purchase of the suit property shows that the first defendant had agreed that he would give one-fifth share in the profit derived out of the sale of the land by any third party after converting into plots. The plaint recital is also clear that the first defendant purchased the suit land from the trustees of the Siddhi Puddhi Vinayagar Temple of Navaverikuppam (vide : sale deed dated 113.1990) after permission in O.P. No. 14 of 1985 granted by Court and after compromise on 15.2.1990 with the co-agreement vendee Radhakrishnan and the trustees of the temple. There is nothing on record to show, assuming that some sort of partnership was created, that the suit property was either originally brought by the partners into the stock of the partnership or subsequently acquired by purchase or otherwise in the course of the business of the firm. In fact, it is nobody's case that the suit land was purchased in the course of the business of the firm or out of any fund of the partnership. If there has been a partnership between the plaintiff and the first defendant, that had nothing to do with the partnership which the first defendant had with the second defendant. The common link in the two partnerships (if at all there has been a partnership) is missing. The first defendant no doubt is the purchaser/owner of the suit property, but he neither gave the property to the partnership which he created with the plaintiff nor he gave that property to the partnership which he created with the second defendant. There is also nothing on record to know as to when and how a partnership between and there was created, the so-called partnership which is sought to be dissolved in the suit.
14. Viewed, however, independent of the merit of the claim of the plaintiff that the suit property is a partnership property and confining our consideration only to the prayer of injunction we cannot fail to take notice of the attempt of the plaintiff to seek enforcement of a so-called contract of partnership after it is dissolved by the plaintiff himself by his act of moving in the court for its dissolution and in the course of this attempt to enforce the contract, to keep the property which belongs to the first defendant/appellant in a status quo so that the relief of profit that he would have received as a consequence of the contract executed by the first defendant should not be denied to him. This is a prayer opposed to the rule in Section 41(e) of the Specific Relief Act. If at all there is a breach of the contract of partnership by the first defendant, the question that would arise is, can the contract specifically be enforced by a decree of the court? If it could be specifically enforced, then only injunction could be asked for to prevent the breach.
15. Learned trial Judge, however, held that the plaintiff has prima fade established that the suit transaction is a partnership business and that the plaintiff and the defendant herein are the partners of the suit property in purchasing, converting and developing into plots and selling the same to third parties for profit and that they have agreed to share the profits derived out of the said sale in accordance with the ratio of their respective contributions. We fail to understand how the learned trial Judge has come to the conclusion that the plaintiff and the defendants are partners of the suit property particularly when the facts in this behalf are clear and unambiguous that the first defendant/appellant approached the plaintiff promising to give one-fifth share in the profits derived out of the sale of the suit land and getting a sum of Rs. 1,00,000 from him. Similarly, under a separate agreement, he received a sum of Rs. 1,00,000 from the second defendant and promised to give him one-fifth share in the profits derived out of the sale of the land. Having so obtained Rs. 1,00,000 each from the plaintiff and the second defendant, he finalised the purchase of the suit land and obtained a sale deed dated 12.3.1990 in respect of the suit property in his name from the trustees of the temple (Vendors). There has been thus no partnership in purchase. If at all there has been anything, that was borrowing of Rs. 1,00,000 from the plaintiff and another sum of Rs. 1,00,000 from the second defendant on a promise that he Shall share one-fifth of the profit when the land would be sold after laying out the land as house plots. 16. Once it is found that there has been no partners-ship in purchasing the land, even if it is found that there has been some sort of partnership between plaintiff and the first defendant on the one hand and between the first defendant and the second defendant 0n the other hand and by guess between the three that is to say, the plaintiff, the first defendant and the second defendant, that was confined to sharing the profits to the extent of one-fifth, three-fifth and one-fifth respectively. This partnership also is sought to be dissolved. The result is, if there has been any business of a sale of any portion of the suit property before the suit, there shall be profit to the plaintiff as well as to the second defendant to share with the first defendant/appellant and if there shall be any business during the pendency of the Suit and there is a profit, there shall be Such sharing by way of accounting. Injunction will bring the business to a standstill. If there shall fee no business, there Shall be no profit. There shall be nothing to share. That there has been nothing to share before the suit is admitted in the plaint. Since there, has been no business before the suit, there is nothing to share between the so-called partners. Something to share will arise, as we have noticed earlier, only if there is a sale. There is some material brought before us to show, that some agreement of sale has been executed by the first defendant in favour of some persons who are described by, the second defendant/respondent as kins of the first defendant. Nonetheless they are third parties. Is not known whether they have acquired a right under the contract of sale, to get the same specifically enforced. Any grant of Injunction in the absence of such intending purchasers, who entered into an agreement with the first defendant, will affect their right as well.
17. It is not necessary, in our opinion, to go beyond what we have already found, to refuse the prayer of injunction on behalf of the plaintiff. But we cannot resist making some observations that besides the question whether there is a prima facie case, it is always necessary in a "case of temporary injunction to bear in mind the cardinal principles of balance of convenience and irreparable injury. Parties, it appears, failed to address the trial court on the question of balance of convenience. There has, however, been some attempt before us on behalf of the respondents (plaintiff and the second defendant) to raise the issue of equity, a rule which is the foremost part of the rule of balance of convenience. This Court has in a number of cases indicated how the rule of balance of convenience is applied. We shall only be repeating but we must quote a passage from the Halsbury's Laws of England, 3rd Edn, Volume 21, p.765 at page 365.
Where any doubt exists as to the plaintiffs right, or if his right is not disputed, but its violation is denied, the Court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the defendant, on the one hand, would suffer if the injunction was granted and he should ultimately turn out to be right, and that which the plaintiff, on the other hand, might sustain if the injunction was refused and he should ultimately turn but to be right, the burden of proof that the inconvenience which the plaintiff will suffer by the refusal of the injunction is greater than that which the defendant will suffer, if it is granted lies on the plaintiff.
18. There has been no attempt by the learned trial Judge to find out how this balance titled in favour of the plaintiff and the second defendant if injunction was refused and how, if injunction was granted, inconvenience caused to the first defendant/ appellant was lesser than the inconvenience caused to the plaintiff and these second defendant. The view that we have taken leads us to one irresistible conclusion that the inconvenience which the first defendant/appellant will suffer if injunction is granted will be far greater than that which the plaintiff will suffer and this alone in our view, is enough to refuse the prayer of injunction
19. Before we part with this judgment, we must in appreciation of the efforts of the learned Counsel for the plaintiff/respondent, deal with the case law brought to our notice.
20. In Narayanappa v. Bhaskara Krishnappa , it is pointed out with reference to some of the provisions, of the Partnership Act that all property originally brought into the stock of the firm or acquired by the firm in the course of the business of the firm constitutes the assets of the partnership. On the facts of the case before the Court, the Supreme Court has observed, From a perusal of these provisions it would be abundantly clear that whatever may be the character of the property which is brought in by the partners when the partnership is formed or which may be acquired in the course of the business of the partnership it becomes the property of the firm and what a partner is entitled to is his share of profits, if any, accruing to the partnership from the realisation of this property, and upon dissolution of the partnership to a share in the money representing the value of the property. No doubt, since a firm has no legal existence, the partnership property will vest in all the partners and in that sense every partner has an interest in the property of the partnership. During the subsistence of the partnership, however, no partner can deal with any portion of the property as his own. Nor can he assign his interest in a specific item of the partnership property to anyone. His right is to obtain such profits, if any, as fall to his share from time to time and upon the dissolution of the firm to a share in the assets of the firm which remain after satisfying the liaibilities set out in Clause (a) and Sub-clauses (i), (ii) and (iii) of Clause (b) of Section 48.
21. There can be no exception to the statement of law by the Supreme Court but before such restraint as indicated by the Supreme Court is applied to the partners, it has to be found that the property belongs to the partnership. The case in hand, in our opinion, is one in which it is still in doubt whether the property in dispute is a partnership property.
22. In C.R.R. Gowder v. C.P. Nanjappa , also, the same view has been expressed in these words:
In the present case the property in question was purchased in 1909 and Desai Gownder was living in the property. Ramiah was also associated with Desai Gownder even during his life- time and he was living in the same property. After the reconstruction of the house by utilisation of partnership funds, Ramiah, one of the partners of the firm, was living in, the same property. The mere fact that it was not shown in the balanced sheets of the firm as partnership property will not alter the character of the property and the further circumstances that the Arbitrator who decided the disputes between the plaintiff and his brothers made an award on basis that the suit property is the separate property belonging to Ponniah and divisible among the plaintiff and others also will (not) alter the character of the property. The fact that the suit property was the subject of division will not alter the character of the property as there is no decision on that question. The mere fact, that the muchalika by the three brothers requesting Sr. C.S. Rathnasabapathy Mudaliar to effect a division was attested by Ramiah will not to an admission that the suit property belonged to Penniah alone. On the other hand, Ramiah's occupation of the suit house even prior to the death of Desai Gownder is a circumstance to be taken into account in ascertaining whether the plaintiff is the owner.
23. The above observations were made after taking notice of the various authorities and the provisions of the Partnership Act and the principle that unless a contrary intention appears by an express agreement or by the nature of the transaction, property bought with money belonging to the firm is deemed to have been bought for the firm.
24. A Judgment, however, of the Special Bench of the Mysore High Court in the case of I.J.J. Rebello v. C.C. Rev. Authority A.I.R. 1971 Mysore 318, has expressed this aspect of the law in these words:
The concept of partnership is to embark upon a joint venture and for that purpose to bring in as capital, money or property including immovable property. When it is shown that property, whatever its character is brought into the common stock of the partnership firm. It would cease to be the exclusive property of the person who brought it in and it would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of the partnership. Since the firm has no legal existence, the partnership property will vest in all the partners. The provisions of the Indian Partnership Act, 1932 do not prescribe any particular mode by which properties whether movable or immovable have to be brought into common stock. For the purpose of bringing the separate property of a partner into the common stock of the firm. It is not necessary to have recourse to any written document at all. As soon as the partners intend that their separate properties should become the partnership properties and they are treated as such, then by virtue of the provisions of the Partnership Act the properties become the properties of the firm. This result follows by operation of law. This sort of contribution or transfer is not prohibited by the Transfer of Property Act or the Registration Act (vide : Pren Raj Brahmin v. Bhani Ram Brahmin I.L.R. (1846)1 Cal. 191 at pp. 193-194.
Though under law a written document is not necessary to bring in the separate property of a partner into the partnership stock and such property becomes the property of the firm when the partner intends to bring it and treat the same as such, where a document is executed by a partner as a formal conveyance, the question is not whether the contribution or transfer could not be effected otherwise than by execution of a document but whether the document is a conveyance, as defined under Section 2(1)(d) of the Act. The Act subjects to duty the instruments falling within the description of documents specified in the schedule and for fixing the duty payable, the substance of the document should be looked into.
A partner can sell his property to a partnership firm which includes himself as a member. Whether the partner sold his property or he contributed the property to the common stock is a question which would depend upon his intention and on the language of the document. Where the document contains no words whatever of a dispositive character which expressly or by necessary implication amount to a transfer of interest as between one partner and the others, there is irresistible conclusion that the properties were brought into the common stock.
25. We are in complete agreement with the view of the Special Bench and we have not deviated from the principles stated therein.
26. Our conclusions on facts, however, are such that we are constrained to hold that any right of the plaintiff in the suit is in serious dispute and it will be difficult to say that there is a prima facie case. In any case, in our view, the balance of convenience is in favour of the first defendant/appellant. The impugned judgment, in our opinion, is not in accordance with law. The same is accordingly set aside. We, however, make it clear that any observations on the merits of the case of the plaintiff in our judgment, shall not be taken into account in the course of the trial of the suit. The appeal is, therefore, allowed. No costs.