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Abdul Azeez and anr. Vs. M.K.P. Kader Mohideen and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberAppeal No. 37 of 1960 and C.R.P. No. 546 of 1961
Judge
Reported inAIR1963Mad428; (1963)2MLJ220
ActsPartnership Act, 1932 - Sections 42; Code of Civil Procedure (CPC) , 1908 - Sections 11 and 105 - Order 41, Rule 5 - Order 47
AppellantAbdul Azeez and anr.
RespondentM.K.P. Kader Mohideen and ors.
Appellant AdvocateR. Gopalaswami Ayyangar and ;K.N. Balasubramanian, Advs.
Respondent AdvocateT.R. Ramachandran, Adv.
DispositionAppeal dismissed
Cases ReferredJotindra Mohan Tagore v. Bejoy Chand
Excerpt:
.....meaning of section 42 of the act. the order of stay is expressly restricted to the passing of the final decree alone, and that means, the trial court will have unfettered and ample jurisdiction to proceed with the final decree proceedings, and every step taken and every direction given by the lower court upto the passing of the final decree will be clearly binding upon both the parties. all orders passed by the lower court and all the steps taken in pursuance thereof towards the framing and passing of the final decree are clearly binding upon the parties and the succeeding judges. the matter is clearly concluded by a bench judgment of this court in parthasarathi appa rao v. the fact that some other new judge has come in cannot obviously make any difference in principle, as it is..........they filed an application for stay of all further proceedings but this court directed that the final decree proceedings shall go on, but there shall be stay, restricted only to the passing of the final decree. in the course of the final decree proceedings a commissioner was appointed and he submitted a report. the district judge by his order dated 18-8-1960 after hearing all parties and after consideration of the commissioner's report has recorded a finding ascertaining the plaintiff's share of the profit at rs. 25183-1-5 and directed that the petition for passing a final decree shall stand adjourned in view of the order of the high court staying the passing of the fina! decree. the appellants have filed a revision petition, c. r. p. no. 546 of 1961, against the said findings and the.....
Judgment:

Ramamurti, J.

1. Defendants 1 to 3 in O. S. No. 3 of 1957, District Court, East Tanjore, are the appellants in the present appeal.

2. One Pichai Gani Sahib died on 8-11-1955, leaving behind him defendants 1 to 3 and the plaintiff, his sons, the fourth defendant his widow and defendants 5 and 6 his daughters. During his life-time he was carrying on a business in rice mill, flour mill and oil press at Manjakollai and Nagapattinam for a number of years and when his sons grew up he associated them in his business and on 31-8-1950 he and his sons executed a registered document under which he constituted the aforesaid business as a partnership business.

The terms and conditions of the partnership which are embodied in the partnership deed, amongst other things, provide that the partnership shall be deemed to have commenced from 1-4-1949, that it shall be carried on for a period of ten years from 1-4-1949 and that during the aforesaid period if a partner desires to retire from the partnership business he shall only be entitled to receive the amounts standing to his credit in the partnership accounts. The aforesaid Pichai Gani died on 8-11-1955 and within a year thereafter misunderstandings arose between the members of the family in the carrying on of their business, and there were also certain criminal proceedings. It is not necessary to refer to the same in detail and it is sufficient to mention that the relationship between the members of the family was anything but cordial, and mutual trust and confidence which is so essential for carrying on business in partnership ceased to exist amongst the members of the family. The, plaintiff first filed the suit in the Munsif's Court; but later on it was returned for presentation to the proper Court and with certain amendments the plaint was presented in the District Court of East Tanjore on 1-2-1957.

3. The plaintiff asked for the taking of the accounts of the partnership on the ground that by reason of his father's death the partnership became dissolved on 8-11-1955 or in the alternative for dissolution of the partnership under Section 44(g) of the Indian Partnership Act and for taking of accounts on the ground that serious misunderstandings had arisen between the parties, that the first defendant was guilty of various acts of omission and commission which had seriously impaired the mutual confidence and trust among them and that it is just and equitable that the firm should be dissolved. The plaintiff claimed 160/800 share in his own right and another 287 800 share as an heir to his father.

The defendants 4, 5 and 6 though not parties to the original partnership were impleaded as they are also entitled to Pichai Gani's share in the assets of the partnership.

4. Defendants 1 to 3 resisted the suit on the ground inter alia that the suit for dissolution was premature and not maintainable as the partnership deed had fixed a period of ten years, that despite the death of the father, the old business was not closed but the same was continued without any break, and a new partnership had been entered into between the plaintiff and defendants 1 to 3. They also contended that the charges levelled against them were unfounded but that on the other hand it was the plaintiff who was guilty of wrongful conduct and that in any event no cause had been made out for dissolution of the partnership under Section 44(g) of the Partnership Act. Defendants 4 to 6 supported the case of the plaintiff.

5. The learned District Judge of East Tan-jore decreed the plaintiff's suit taking the view that on the death of the father Pichai Gani there has been a dissolution, that the case of defendants 1 to 3 that a new partnership was formed between themselves and the plaintiff had not been made out. He also held that having regard to the charges and countercharges and the misunderstandings which have arisen between the parties and which had resulted in lack of trust and confidence amongst the members of the family, it was cleariy equitable and just that the firm should be dissolved. He passed a preliminary decree for dissolution and taking of accounts of the partnership. He also gave certain findings in regard to some of the charges and counter charges but it is not necessary to refer to the same in this judgment. Defendants 1 to 3 have preferred the above appeal.

6. During the pendency of the appeal they filed an application for stay of all further proceedings but this Court directed that the final decree proceedings shall go on, but there shall be stay, restricted only to the passing of the final decree. In the course of the final decree proceedings a Commissioner was appointed and he submitted a report. The District Judge by his order dated 18-8-1960 after hearing all parties and after consideration of the Commissioner's report has recorded a finding ascertaining the plaintiff's share of the profit at Rs. 25183-1-5 and directed that the petition for passing a final decree shall stand adjourned in view of the order of the High Court staying the passing of the fina! decree. The appellants have filed a revision petition, C. R. P. No. 546 of 1961, against the said findings and the order of the learned District Judge. The above appeal as well as the civil revision petition have been posted together.

7. Mr. Gopalaswami Aiyangar, learned counsel for the appellants, contended that the circumstances adverted to by the learned District Judgedo not justify a decree for dissolution under Section 44 (g) of the Act and that the plaintiff is notentitled to interfere with the carrying on of thebusiness till the expiry of the ten year periodfixed under the partnership deed, and that theplaintiff's right is only to receive the amountsstanding to his credit in the account books of thefirm.

As we are inclined to take the view that the firm became dissolved by the death of Pichai Gani under Section 42(c) of the Partnership Act, it is unnecessary to deal with Mr. Gopalaswami Aiyan-gar's contention about the applicability of Section 44(s) of the Act to the facts of the present case, Section 42, amongst other things, clearly provides that subject to the contract between the partners a firm is dissolved (a) if constituted for a fixed term by the expiry of that term; .....(c) by the death of a partner. The learned counsel contended that if a firm is constituted for afixed term, the death of a partner will not dissolvethe firm and fixation of a period for the partnership should be regarded as a contract to the contrary. We are of opinion that there is no substance in this contention.

In our opinion a proper interpretation of Section 42 would be to read Sub-sections (a) and (b) as clearly subject to the provisions of Sub-sections (c) and (d). In case of a death or adjudication of a partner, the partnership would stand automatically dissolved unless there is express contract to the contrary, that either of the events shall not effect dissolution of the firm. Fixation of a fixed term for the duration of the partnership is clearly not such a contract to the contrary within the meaning of Section 42 of the Act. This view of the matter is amply supported by authority and it is enough to refer to a Bench judgment of this Court in Kothandapani Chetti v. Sreemanavedan Raja, 66 Mad LJ 625 : AIR 1934 Mad 162, in which the scope of the corresponding provision in the Contract Act Section 253(10), came up for consideration. The relevant clause in the partnership deed in that case provided that the partnership shall be in force for a period oi 60 years. It was held that that clause did not amount to a contract to the contrary so as to prevent dissolution taking place on the death of a partner. There is no need to refer to other cases on the point as, in our opinion, Section 42 does not admit of any other interpretation,

The corresponding provision in English law, is Section 33 of the Partnership Act of 1890. In Lindley on Partnership, 11th Edn. at page 677, the learned Author while discussing the effect of death of one of the partners has observed that the mere fact that the partnership was entered into for a definite term of years, which has not yet expired, when the death occurred, is not sufficient to prevent a dissolution by such death. In this view that the partnership became automatically dissolved on the death of Pichai Gani, it is not necessary to consider the appellant's contention regarding the scope of Section 44(g) of the Act. We have, therefore, no hesitation in affirming the preliminary decree passed by the lower Court.

8. In the revision petition, the learned counsel for the petitioners contended that the order of the District Judge determining the plaintiff's share of the profits at Rs. 25,183-1-5 was vitiated by some errors and mistakes, and that in any event the proper meaning to be given to the order passed in the stay petition in this Court is that it is only after the appeal against the preliminary decree is decided one way or the other that the Court can continue the final decree proceedings and consider the Commissioner's report and all the objections of the parties, and determine what amount is payable by one party to the other as a result of the taking of accounts. He elaborated this point by contending that the final decree should be actually passed by the same judge who hears the parties and considers the Commissioner's report and the objections thereto, and that it is not a proper procedure that (when the appeal against the preliminary decree is pending) one Judge should determine the liability regarding it merely as his findings while (after the disposal of the appeal against the preliminary decree) some other judge automatically accepts the findings and passes a final decree.

We think there is no substance in this contention. In the first place it should be mentioned that the proper, effective and appropriate remedy for the party is to prefer an appeal against the final decree, and urge therein all his objections against the findings and the decision of the lower Court in the matter of fixation of his liability under Section 105 C. P. C. Matters which can be agitated only in an appeal against the final decree cannot be agitated in a revision petition. On this short ground the revision petition is liable to be dismissed in limine.

Further we do not agree with the learned counsel's interpretation of the scope of the order of stay passed by this Court. The order of stay is expressly restricted to the passing of the final decree alone, and that means, the trial Court will have unfettered and ample jurisdiction to proceed with the final decree proceedings, and every step taken and every direction given by the lower Court upto the passing of the final decree will be clearly binding upon both the parties. All orders passed by the lower Court and all the steps taken in pursuance thereof towards the framing and passing of the final decree are clearly binding upon the parties and the succeeding Judges.

9. In Kishun Kuar v. Ganga Prasad, ILR 31 All 153, the District Judge fixed the liability of the defendant, determining the amount payable by him to the plaintiff but deferred the passing of the decree for production of a certificate to collect the debts. Later on the District Judge delivered a second judgment and made an order remanding the case to the Court of first instance. It was held that on the earlier occasion nothing remained to be done except to pass a decree, and that the second order of the learned District Judge in supersession of the earlier order was without jurisdiction.

The matter is clearly concluded by a Bench judgment of this Court in Parthasarathi Appa Rao v. Venkatadri Appa Rao : AIR1929Mad121 in which after reviewing the entire case law the learned Judges have held that the interlocutory judgment passed by a Judge as a step towards the framing of the final decree is binding upon bis successor if it involves an adjudication of rights of parties. It is clear, therefore, that the share of profits which has been fixed by the learned District Judge by his order dated 18-8-1960 is binding upon the succeeding Judges, unless of course the petitioners make out a case for review satisfying the conditions under Order XLVII C. P. C. We only want to make it clear that it is not open to the petitioners to contend before the Judge now presiding in the lower Court that be should hear the objections of the parties afresh and express his own opinion on the merits of the points in controversy. Any other view would lead in very inconvenient and absurd results, besides simply protracting and delaying proceedings. If the same Judge had continued it could be impossible for the petitioners to contend that he should hear their objections over again, ignoring his prior findings. The fact that some other new Judge has come in cannot obviously make any difference in principle, as it is elementary and well established that principles of res judicata apply to successive Judges and in successive stages of the same litigation provided there is an adjudication of the rights of parties in the course of the progress of proceedings in a Court of law. It is to provide for such contingencies of transfer and changes in the personnel of the Judges that provision is specially made in Order XX Rule 2 C. P. C. to the effect that a Judge may pronounce a judgment written by his predecessor.

In Venkatesu v. Suryanarayana, : AIR1959AP16 , a Bench of the Andhra Pradesh High Court held the word 'may' occurring in Order XX Rule 2 had a compulsory force and a succeeding Judge is under an obligation to pro-nounce the judgment that was written by his predecessor and it is not competent for him to rehear the appeal. The learned Judges have pointed out that the purpose underlying this provision is to save judicial time and if the succeeding Judge were to re-hear the matter de novo it would involve waste of judicial time and cause a great deal of hardship and inconvenience to the parties.

Mr. Gopalaswami Aiyangar, learned counsel for the petitioners, placing reliance upon Order XX Rule 7 C. P. C. contended that the decree which would be drawn up should bear the same date as the judgment, and that as the final decree has yet to be passed, the findings already recorded by the then Judge cannot form the judgment for the decree to follow, and that there should be a fresh judgment so as to satisfy the requirements of Order XX Rule 7 C. P. C. This argument proceeds upon a misunderstanding of Order XX Rule 7 C. P. C. In this case there is no final judgment at all and all that the previous Judge has done is to record his findings and determine the liability. Now the successor Judge will pronounce a judgment adopting the figures already determined by his predecessor and a final decree will follow thereon. In other words, both the final judgment and final decree will be pronounced by the successor Judge, with the result that there will be no time lag between the date of the judgment and the date ct the decree. Even otherwise where a Court gives a judgment but is unable to give a decree till a condition is performed or a contingency is satis-fied, the later date, the date of the decree is regarded as the date of the judgment. In this connection reference may be made to Jotindra Mohan Tagore v. Bejoy Chand, ILR 32 Cal 483.

10. Therefore we overrule all the objection of the learned counsel for the petitioners and dismiss both the appeal and the civil revision petition. The respondents will have his costs in the appeal. But there will be no order as to costs in the revision petition.


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