M. Natesan, J.
1. These two second appeals arise out of the same partnership action and present a common case against the decision of the Courts below. The principal grievance relates to the trade-mark and goodwill of the partnership business, which it is submitted, are very substantial assets. While the trial Court held that the good will and trade mark of the partnership are assets of the partnership shared by the deceased partner under whom the appellants claim and the other partner, the sixth defendant in the case who deed pending the appeal, the appellate Court set as de this finding and declared the sixth defendant to be solely entitled to the trade mark and goodwill of the partnership. Closely connected with the right to the goodwill and trade mark of the firm is the question whether the partnership is a partnership at will, and if there is a dissolution of the partnership what is the date of the dissolution.
2. First, to set down briefly certain essential facts : One Abdul Rasheed and the sixth defendant in the suit, Abdul Gaffar Saheb carried on in partnership a fairly successful business in the manufacture and sale of beedies under the name and style of R. Gaffar & Company. The partnership, as an auxiliary venture, had a press under the name and style of Hindustan Press. The partnership between the two is evidenced by the partnership deed Exhibit B-1, dated 14th November, 1940. As the business flourished and the two partners found it difficult to manage the business by themselves, Basheer Ahmed, the fifth defendant in the suit and a son of Abdul Rasheed above referred to, was taken into the business as a partner, and a fresh partnership deed was entered into on 1st April, 1957. That deed is Exhibit B-2 in the case. Abdul Rasheed died on 28th June, 1958. The suit, out of which these second appeals arise, was filed on 1st October, 1958, originally as an action for taking of accounts of a dissolved firm, on the basis that the firm stood dissolved on the death of Abdul Rasheed. The first plaintiff in the suit is one of the widows of the deceased Abdul Rasheed. The second and third plaintiffs in the suit are his sons. Both were minors at the time of the institution of the suit. Pending the suit, on 27th July, 1959 the second plaintiff attained majority and he was declared a major in 1960. The first defendant is another widow of the deceased Abdul Rasheed. Besides the fifth defendant who had been taken into the partnership, the deceased had two other sons by her, the second and third defendants in the suit. They are all minors. The fourth defendant is a minor daughter of the deceased. The sixth defendant in the suit is the other partner. He died pending the appeal which he preferred to the lower appellate Court, and his widow and children were brought on record as his legal representatives by the lower appellate Court on 23rd August, 1962. The plaintiffs were originally unaware of the subsequent partnership agreement. Exhibit B-2 and, on its being set up in defence, the plaint was amended in terms. of the latter partnership agreement. The plaintiffs gave up the case of dissolution of the partnership by the death of Abdul Rasheed and on the basis of the second partnership deed, they prayed for taking of accounts of the partnership business, ascertaining the amounts due to each of the plaintiffs, declaring that the second plaintiff is a partner and the third plaintiff is entitled to be admitted to the benefits of the partnership and for directions to implement the rights of the parties in terms of the latter partnership agreement and also for other incidental reliefs.
3. The plaintiffs contended that there was no dissolution of the firm on the death of Abdul Rasheed and prayed for reliefs on the basis that the partnership continued notwithstanding the death of one of the partners. It is the case of the sixth defendant also that there was no dissolution of the partnership with the death of Rasheed and, the fifth defendant, to the extent his interests were not jeopardised, made common cause with the sixth defendant. Having regard to the claims put forward by the plaintiffs based on Exhibit B-2, the sixth defendant, by his additional written statement, prayed that the partnership may be dissolved and that his written statement may be taken as notice for the dissolution of the partnership. The Subordinate Judge, who tried the suit, held that there was no dissolution of the partnership on the death of Rasheed. Having regard to the partnership agreement, Exhibit B-2, he held 'hat the male descendants of Abdul Rasheed are entitled to rights in terms of the deed immediately on the death of their father and that the plaintiffs 2 and 3. and defendants 2 and 3 are entitled to be admitted to the benefits of the partnership from the date of their father's death. He also found that the second plaintiff who became a major in 1959 became a full partner of the firm. He, however, held that the partnership must be deemed to be dissolved on 16th September, 1960, the date on which the sixth defendant filed his additional written statement giving notice of dissolution. Though the sixth defendant who preferred the appeal against the decree of the Subordinate Judge raised a number of points, on his death, his legal representatives confined their contentions to the exclusive claim of the sixth defendant for the trade mark and goodwill of the firm. Plaintiffs 2 and 3 and defendants 2 to 4 who preferred cross-objections questioned the finding about the dissolution of the firm and asserted the right of the second plaintiff to continue the firm. In the appeal, a question was also raised whether the fifth defendant, one of the partners, is not solely entitled to the trade mark and goodwill of the firm to the exclusion of the co-heirs and heirs of the sixth defendant. As already stated, in the appeal, the heirs of the sixth defendant succeeded in establishing the exclusive right of the sixth defendant to the trade mark and goodwill of the firm. The appellate Court in other respects confirmed the finding of the trial Court holding that the firm stood dissolved on 16th September, 1960 when the sixth defendant filed his additional written statement claiming dissolution.
4. As in the appeal, in the second appeals also, the contentions were mainly confined to the claims in regard to the trade mark and goodwill of the firm and the date of dissolution of the partnership as the former was dependent on that. The principal contentions of the appellants are (1) that the partnership is not a partnership at will for the sixth defendant to get it dissolved by notice of dissolution; (2) that even if it is a partnership at will, by a mere claim for dissolution in the written statement, there can be no dissolution and (3) that the sixth defendant has no exclusive right to the trade mark and goodwill of the firm and, as they are partnership assets they have to be considered and dealt with as such. Even so the fifth defendant has no exclusive right in the same. Another point was also raised that the second plaintiff on attaining majority could continue the partnership.
5. The whole case rests upon the true interpretation of the partnership deed Exhibit B-2. Though it is not a lengthy document, the provisions therein are complexly set out and have given room for all the controversies. In the partnership deed entered into between Abdul Rasheed and Gaffar in 1940 they provided that, so far as the goodwill and trade make were concerned, the survivor of the two would be solely entitled to it, and that the heirs and representatives of the other would have no rights whatsoever in the same. Of course, there was provision for division of the profits etc. half and half. Under Exhibit B-2 with the coming in of the fifth defendant as a partner, the same idea that whoever continued the firm should have rights in the trade mark and goodwill is maintained, reorgnising, at the same time, the paramount rights of the two original partners to the trade mark and goodwill. Under this document, Gaffar and Rasheed are each given two out of the five shares and the fifth defendant the new partner is given the remaining one-fifth share. Clauses 5, 6 and 7 of Exhibit B-2 are the relevant clauses and on their correct interpretation depends the answer to the question whether the partnership is a partnership at will or not and the other question as to who is entitled to the rights in the trade mark and goodwill of the firm. I have read and re-read the document in the vernacular. It would be convenient if a free translation of the material clauses are set out. The sixth defendant is the No. 1 party to the document Rasheed is No. 2 party to the document and the fifth defendant is the No. 3. party to the document. The clauses run;
Clause 5:-If during the lifetime of parties Nos. 1 and 2, whoever of them wants to get out of the partnership, he shall give notice not exceeding three months in writing to the other partners. The trade mark and good will of the partnership shall be valued at Rs. 20,000 and the out-going partner shall receive one half of the said amount, i.e., Rs. 10,000, and the amounts standing to his credit in the partnership and retire from the partnership. The trade mark, and goodwill shall thereafter belong to the partner continuing the business of the firm. But, after the lifetime of Nos. 1 and 2, the male heirs of No. 2 party shall remain in the business and continue it. If they are not willing to continue in the business, the trade mark and goodwill shall be estimated then at the sum of Rs. 20,000 and one half of the amount, i.e., Rs. 10,000 and the amounts standing to their credit in the firm shall be paid over to them. (The third party to the document will also be entitled to< a share when payments are made as aforesaid). Thereafter, the. trade and goodwill etc. all shall belong exclusively to No. 3 party continuing the business. The male heirs of No. 1 also shall join the firm and run the business. If they are not willing to so carry on, when they walk out, they need not be paid the sum of Rs. 10,000 being the value of trade mark and goodwill. Instead, in consideration, they shall be given the Hindustan Press etc., as provided hereunder.
Clause 6 The beedi business and the Hindustan Press belong to the firm called R. Gaffar and Company. The trade mark and goodwill belonging to the said company shall, during the lifetime of No. I and No. 2, belong to them. No. 3 has no rights therein. If, after the lifetime of Nos. 1 and 2, this business is continuously carried on by No. 3, then the trade mark and goodwill of the company shall belong to No. 3. Others have no rights in them.
Clause 7:-If anyone of Nos. 1 and 2 should die, the accounts of the firm shall be taken and closed till that date, the profit or loss shall be determined after providing for all expenses, staff salary etc., and the same along with the amounts standing to the credit of the deceased in capital (in the books of the firm) shall be given to the respective persons. The male heirs of the deceased shall be in the firm and carry on the business and the amounts found due to them for their share as aforesaid they shall retain in the business and carry on the business. If the male heirs of No. 1 do not consent to remain in the partnership and carry on the business, then the Hindustan Press with its name and the related machinery, types etc. with all accessories shall be handed over to them free of cost without valuation. But as the premises belong to No. 2, the business may be carried on there on payment of rent according to the times.
6. One thing is manifest, on a reading of this document. The desire of the two partners who started on their own in 1940 and developed the business and made it -a flourishing one, was that the business should be continued. Obviously, with a view to this, the fifth defendant who had already been trained in the trade, was taken in as a partner in 1957. The document provides for the fifth defendant continuing the business after the lifetime of Nos. 1 and 2. This is very prominently brought out in Clause 5 of the deed. While the fifth defendant, who had got himself duly qualified as set out in the preamble, is to continue the business after the death of Nos. 1 and 2, an option is provided to the other male heirs of his father Rasheed to join and continue in the business. If they are not willing to do so, they take their share in the assets of the firm according to the personal law, the fifth defendant also being a sharer with them in the assets of the father. The trade mark and goodwill, the main stay of the business, have to go with the business and belong to the fifth defendant who carries on the business. A sum of Rs. 10,000, the value of the half share, is distributed among the heirs. Clause 5 itself provides for the heirs of the first party, the sixth defendant, in a similar manner joining the partnership and continuing the business. If they evince no desire to remain in the firm and continue the business instead of giving them a sum of Rs. 10,000 for the trade mark and goodwill, they are to be given the auxiliary business, the Hindustan Press. Clause 7, as I read it, only elaborates what is already set out in Clause 5. It sets out when and in what manner the Hindustan Press shall go to the male heirs of the first party. 'The deed shows in both Nos. 1 and 2, a paramount desire that their male heirs continue the business in partnership. But they provide against the contingency -of the heirs not choosing to continue in the business. The Courts below correctly held the there was no dissolution of the firm on the death of Rasheed. There is a clear indication in the deed that the male heirs of the deceased partner should join in the firm that would be continued by the remaining partners, the amounts payable to them being credited to their account in the firm. In fact, on this, there was no contest. It is the common case of the parties that the partnership was continued 'without any dissolution on the death of Rasheed.
7. The more difficult question is whether this is a partnership which can be dissolved by notice under Section 43 (1) of the Indian Partnership Act as a ' Partnership at will.' It is only if the partnership is a partnership at will, the firm may be 'dissolved by any partner giving notice in writing to all the other partners of his intention to dissolve the firm. On such notice, the firm is dissolved from the date mentioned in the notice as the date of dissolution, or if no date is so mentioned, from the date of communication of the notice.
8. The contention for the appellant is that this is not a partnership at will. Section 7 defines ' partnership at will' as a partnership where no provision is made by contract between the partners for the duration of their partnership or for the determination of their partnership. If the contract of partnership, by express provision or by implication, provides for the duration of the partnership, then clearly the partnership is not a partnership at will. Leaving out the claims of the second plaintiff to have become a partner on the death of Rasheed, the fifth defendant and the sixth defendant were partners, and they admittedly continued the business. The contract of partnership, while providing for the retirement of one or other of the partners, provided for its being continued without dissolution. On the death of one of the original partners, the contract gave the male heirs of the deceased partner option to join in the partnership firm and continue in the business as partners. The question for consideration is whether such a partnership is a partnership at will? Whether the parties to the contract of partnership could have intended, while providing in-specific terms for the continuance of the partnership business and the maintenance of the goodwill in the firm despite retirement or death of a partner, that any one of the partners can at any moment by notice to others dissolve the firm? Is such an inference compatible with the expressed terms of the contract?
9. In Halsbury's Laws of England, Third Edition, Vol. 28 at page 502, while pointing out that, where there is no express agreement to continue a partnership for a definite period, there may be an implied agreement to do so and that the burden of proving such an implied agreement is upon the person who alleges its existence, it is observed that the provisions relied on as showing an agreement to continue the partnership ' must be clearly inconsistent with the general right to dissolve.' In Karumuthu Thiagarajan Chettiar v. E. M. Muthappa Chettiar : 3SCR998 , the Supreme Court observed at page 1229:
As we read the terms of the agreement, it seems to us clear that the intention could not be to create a partnership at will. The partners contemplated that the management would be carried on in rotation between them in four yearly periods. It was also contemplated that the heirs of the partners would also carry on the management in rotation. Considering this provision as well as the nature of the business of partnership it could not be contemplated that the partnership could be brought to an end by notice by either partner. The intention obviously was to have a partnership of some duration though the duration was not expressly fixed in the agreement....The duration of a partnership may be expressly provided for in the contract; but even where there is no express provision,. Courts have held that the partnership will not be at will if the duration can be implied.
Considering the question whether a term in the contract of partnership permitting a partner to withdraw from the partnership by relinquishing his right of management to the other partner would make it a partnership at will, the Supreme Court observed.
That however does not make the partnership a partnership at will, for the essence of a partnership at will is that it is open to either partner to dissolve the partnership by giving notice. Relinquishment of one partner's interest in favour of the other, which is provided in this contract, is a very different matter. It is true that in this particular case there were only two partners and the partnership will come to an end as soon as one partner relinquishes his right in favour of the other. That however is a fortuitous circumstance....
Their Lordships cited with approval the decision in Abbott v. Abbott (1936) 3 All E.R. 823, which I shall be presently referring to.
10. In Lindley on Partnership (Twelfth edition) at page 159, it is said that an agreement which will rebut the presumption that a contract of partnership is a. partnership at will
may be established as well by direct evidence as by implication from the acts of partners and it is not possible to lay down any rule by means of which. the intention of the partners on this head may be certainly ascertained where no express agreement has been come to.
11. Where a contract of partnership is by deed, clearly the intention should be found within the four corners of the instrument. In Abbott v. Abbott (1936) 3 All E.R. 823, the deed of partnership between a father and his five sons provided that death or retirement of any partner shall not terminate the partnership. On one of the sons contending that the partnership had been dissolved on notice of dissolution, the question was whether an inference could be made by necessary implication that it was not a partnership at will. Clauson, J., posed before himself the question : ' Whether the parties have agreed that any one of the sons, or the father, can bring the business to an end at any moment or whether there is some agreement inconsistent with that being done? ' For the conclusion that the partnership considered was not one at will, one of the tests the learned Judge applied was that if one partner said that he would go out of the partnership, it did not determine the partnership. If the partnership is one at will, then if one partner said that he would go out of the partnership, the effect would be to dissolve the partnership between all the partners. That partnership would come to an end, although the remaining partners may regroup themselves into a partnership. That would be a different partnership. The existence of a limitation upon this character of partnership was emphasised by the learned Judge as a test. An agreement between the partners that a single partner cannot determine the partnership between all although he can determine it as between himself and others was considered as negativing the partnership at will. The learned Judge observed:
The partners have agreed that the partnership shall continue, notwithstanding that one partner goes out, and they have also agreed that notwithstanding that one partner died, the partnership shall continue. That does not mean that the partnership shall continue when all but one of the partners has either died or required, because there cannot be a partnership with one partner. But the clause seems consistent with the view that so long as there are two partners the partnership is to continue.
I shall now examine Exhibit B-2 in the light of these principles. The document itself sets out the circumstances in which the latter agreement of partnership was entered into. The former agreement of partnership which was between the two original partners provided that if one of them went out of the business, the trade mark and goodwill would be with the remaining partner who carried on the business. It is an established rule of construction of a document that the instrument must be read as a whole to ascertain its true meaning. An attempt must be made to harmonise the several provisions of the instrument to find out the true intention of the executants. Every part of the deed must be used to expound every other part of it, so that all the parts of the instrument agree. Reading the document thus, the indention most manifest in the document is, that the goodwill and trade mark being the most Valuable asset of the business, the rest of it being the stock-in-trade, must belong to the partners who remained and carried on the business. Three persons had become partners. Goodwill and trade mark vested in the original partners. The provision is that if one of them is not willing to carry on the business, he had to go out of the business receiving Rs. 10,000 for his half share of the goodwill and trade mark, and any amounts to his credit in the business. Despite a partner walking out of the business, the business has to be carried on by the remaining two partners. The trade mark and goodwill will be held by the original partner who continues the business. This is during the lifetime of the original partners. As to the character of the partnership during that period, the test applied in Abbott v. Abbott (1936) 3 All E.R. 823, is clearly satisfied. It certainly could not have been the intention, of the parties that during the lifetime of the two original partners' (one) could, instead of retiring from the partnership taking his share, by notice, dissolve the partnership between all the three partners. Admittedly on the death of Rasheed, the partnership was not dissolved but has been continued by the fifth and sixth defendants. There can be and there is no change in the character of the partnership thereafter. The contract of partnership contemplates the male heirs of the original partners joining the partnership and continuing the business. No doubt the option is with them. 'The surviving partners, the fifth and the sixth defendants are not left with any option to keep them out. If the male heirs do not desire to join in the partnership, they have to be paid what they are entitled to under the personal law from the assets of the deceased partner. The trade mark and goodwill do not go out of the firm. They remain with the surviving of the original partners continuing in the firm and after him with the fifth defendant. While it is unnecessary, having regard to the events that had happened in this case as will be pointed out presently, to discuss the question whether the male heirs of a deceased partner could specifically enforce the covenant in the partnership deed providing for their being taken in as partners when they were all minors at the crucial time, the provision in this regard is a factor to be taken into consideration in determining whether the partnership is terminable at will. It is a fortuitous circumstance that none of the other sons of Rasheed was a major when he died. The articles in this regard do not bind the male heir and it is for him to determine whether he will get into the partnership or not. But it is evident that the parties to the deed of partnership intended the continuance of the partnership at least till its determination by the death of all but one of the partners. There are certain other aspects relating to the ownership of the trade mark and goodwill which emphasise the fact that when the partnership was formed under Exhibit B-2, the parties never intended its termination and dissolution amongst all the partners at the will of one of the partners. The parties intended a sensible business partnership agreement and, in my opinion, it would make nonsense of the several articles of the partnership, if any of the partners could put an end to partnership at his will so long as two of the partners are alive.
12. Mr. M. S. Venkatarama Ayyar for the respondents referred to the decision of this Court in Sami Aiyangar v. Srinivasa Aiyangar (1909) 19 M.L.J. 77, where it was held that a partnership deed which did not fix the duration of the partnership but only provided that after the death of one of the partners his nephew should act in his stead was a partnership at will only. The decision turned on the provisions of the partnership deed in consideration there, and it was pointed out that the only provision relied upon was not inconsistent with a partnership at will. The decision in Cox V. Willoughby (1880) 13 Ch. D. 863, referred to and distinguished therein is more to the point and supports the case of the appellants here. Equally, the other case, Cuffe v. Murtagh 7 I.L.R. 411, relied on before me by learned Counsel for the respondents is clearly distinguishable. In that case, it is observed at page 422,
The disputed term here is not....nor is it inconsistent with any of the rights of the other partners, if by tacit agreement they should continue the business after the expiration of the term of seven years. I can see nothing insensible or repugnant in such a clause if inserted in a deed establishing a partnership at will. It amounts to this and no more, that one partner may put a substitute for himself into the firm, who will have just the same rights as he would have had if he had continued a partner. If he was but a partner at will, so would his substitute be; if a partner for the residue of a term, so would his substitute be.
But in the case here, under consideration, to make the partnership one at will and give a right to one of the partners, say the sixth defendant, to dissolve it at a moment's notice would be inconsistent with the rights of the remaining partners. The articles of the partnership provide inter alia for survivorship of the trade mark and goodwill to the fifth defendant, the third partner in the business. That cannot happen if one of the partners may dissolve the partnership at his will. It follows that the partnership is not one at will determinable by notice at the instance of one of the partners.
13. Learned Counsel for the appellants contends that, even if the partnership could be deemed to be one determinable at will, there has been no proper notice In terms of Section 43 of the Partnership Act for bringing about the dissolution of the firm. Counsel in this connection referred me to the decision of the Supreme Court in Banarsi Das v. Kanshi Ram : 1SCR316 , There are observations in the Judgment in support of the contention that the mere filing of suit for dissolution of a partnership at will does not amount to notice of dissolution of the partnership. Mr. M. S. Venkatarama Ayyar, learned Counsel for the contesting respondents, points out that in that case the Court was principally concerned with the date on which the partnership should be deemed to have been dissolved and that the observations therein are in relation to the particular facts of the case. Learned Counsel contended that there are a catena of decisions, English and Indian, for the proposition that the filing of suit followed by service of summons in the suit on the other partners would have the effect of the requisite notice for dissolution of a partnership at will the dissolution dating from the service of summons on all the partners. It is urged that written statement and pleas in answer to a bill in chancery in England have been held to constitute Valid notice. Counsel refers to Section 32 (c) of the United Kingdom Partnership Act, 1890, where also written notice of intention to dissolve is contemplated. Reference was made to the decision of the Judicial Committee in Sathappa Chetty v. Subramanyan Chetty and certain other cases prior to the Indian Partnership Act of 1932. They may be distinguished as there was no provision as to notice in the repealed chapter of the Contract Act relating to partnership law. Sailendra Nath Kumar v. Chillar Ram I.L.R. (1951) 2 Col. 140, a case subsequent to the Indian Partnership Act of 1932 was also cited. Inter alia, my attention was drawn to foot note (g) at page 562 of Halsbury's Laws of England, Third Edition, Vol. 28; Unsworth v. Jordan 1896 W.N. 2, Syers v. Syers L.R. (1876) 1 A.C. 174 Lindley on Partnership, 12th Edition, page 597 bottom; passages from Rowley on Partnership (American) and also Corpus Juris Secundum, Vol. 68, paragraph 333 at pages 845-846. With reference to the passage at page 929 in Corpus Juris Secundum, referred to in the Supreme Court decision above referred to, it is pointed out that all that is said there is that the mere institution of suit for dissolution and accounting does not ipso facto dissolve the partnership. The point in the case before the Supreme Court was one of limitation and the question was whether the partnership was dissolved on the date of presentation of the plaint in an earlier suit for dissolution between the partners, which had ended with a dismissal for default, or any later date. The Supreme Court pointed out that for fixing the date of dissolution, the plaint in a suit for dissolution cannot be taken as ' notice' under Sub-section (2) of Section 43 of the Indian Partnership Act, having regard to the requirements of notice. The Supreme Court observed:
It would follow therefore that the date of service of the summons accompanied by a copy of the plaint in the suit for dissolution of partnership cannot be regarded as the date of dissolution of the partnership and Section 43 is of no asistance.
The emphasis in that case, learned Counsel submitted, was on the requirement as to due service of notice of dissolution on the other partners and fixing the date of dissolution. The instant case, being a case of written statement in which it is. specifically mentioned that it may be taken as notice of dissolution, it is submitted, made all the difference and could effectively bring about dissolution of the partnership. Having regard to the specific averments in the written statement of the desire for dissolution and that the written statement itself might be taken as notice for dissolution, I see that there may be no impediment to distinguish the instant case from the case before the Supreme Court. The essential for a valid notice under Section 43 (1) of the Indian Partnership Act, a firm and final intention to dissolve the partnership, is there. And the written statement is required to be treated as notice of that. No particular form or mode of service is prescribed for the notice. The date of dissolution would be the date of service of the written statement on the other partners and the written statement may in the circumstances will be treated as notice under Section 43 (2) of the Act. However, I do not think it necessary, in the view I take of the character of the partnership here, to express any final opinion on this aspect of the case. Though the partnership is not dissoluble at will, I heard no particular arguments from Counsel for the continuance of the partnership, maybe, having regard to the subsequent events. Counsel for the appellants concentrated his attack on the dissolution of the partnership at the will of the sixth defendant and his exclusive claim to the goodwill and trade mark based thereon, while Counsel for the respondents would press on the dissolution of the partnership at the will of the. sixth defendant in an effort to sustain exclusive title for the sixth defendant to the goodwill and trade mark of the firm. Section 44 (g) of the Indian Partnership Act of 1932 provides for the Court, at the suit of a partner, to dissolve a firm on any ground which renders it just and equitable that the firm should be dissolved. The words ' just and equitable' are wide in their amplitude and enable the Court to take into consideration events subsequent to the date of the suit and factors apparent on the record on such events. Though the suit as it emerged finally after amendment is not one for dissolution but for the continuance of the partnership, originally it was instituted for accounts of a dissolved firm. The sixth defendant, by his written statement, while denying the rights of the plaintiffs to join and continue the firm, by his supplemental written statement gave notice of dissolution of the firm. The fifth defendant, the other partner, joined with him to the extent the claims of the sixth defendant were not against his interests. When the trial Court decreed that the partnership stood dissolved from 16th September, 1960, while the sixth defendant appealed against the decree to the extent, his claims to the trade mark and goodwill were denied, there was no appeal or Memorandum of Cross-objections by the fifth defendant. Cross-objections were preferred only by defendants 2 to 4 and plaintiffs 2 and 3 questioning the decree declaring dissolution of the firm. In this Court also, the fifth defendant has not figured as an appellant. A point, no doubt, was framed in the lower appellate Court about the exclusive right of the fifth defendant to the trade mark and goodwill of the firm. The sixth defendant died pending the appeal in the lower appellate Court. Defendants 2 to 4, the appellants in S.A. No. 1168 of 1964, are still minors, and the second appellant in S.A. No. 1217 of 1964 became a major pending the appeal here and the second plaintiff became a major only pending suit. The learned District Judge points out in the judgment that the fifth defendant is not now conducting the business and the stock-in-trade had all been sold away by the Commissioner appointed in the suit. It is remarked by the learned District Judge that there is no evidence to show that the fifth defendant, the third partner of the firm, had been continuing the business after the lifetime of Gaffar, the sixth defendant. Having regard to the circumstances, the substantial dispute relating to only the rights in the goodwill and trade mark of the firm, I think it is a case where the Court must declare the partnership as dissolved. At the time the suit was instituted, clearly the plaintiffs cannot claim to be, even then partners. They were all minors at the time of the institution of the suit, and could, if at all, claim to be admitted to be benefits of the partnership. Minors, thus admitted to the benefits of partnership, do not have all the rights of partners and their rights in this regard are inchoate. On the date of the suit, only the fifth and sixth defendants were partners in the full sense of the term, and the sixth defendant deed pending the appeal. The claim of the second plaintiff who had become a major pending the suit to be a partner has been disputed. A partnership suit is like a partition suit where either side may claim dissolution, in the alternative to any other pleas he may raise. See Shibram v. Chintahar A.I.R. 1933 Lah. 1032. The sixth defendant in his written statement has claimed dissolution. No business, has been carried on, at any rate, after the second plaintiff became a major, and assuming without deciding that he has become a full-filedged partner, it is not said that any of the parties are likely to be prejudiced by not directing the continuance of the partnership and enforcing the rights of the male heirs to join in the business, if that could be done. All the more so, in the view I am taking as to the rights in the goodwill and trade mark of the firm. Under the articles of the partnership, the male heirs of the sixth defendant could elect to continue the business, and, if they should exercise their option and not join the business, they should be given the Hindustan Press. On the death of the sixth defendant pending the appeal, they came on record as legal representatives and have continued the appeal pressing the claim put forward by him of dissolution of the partnership. In the circumstances, on his death, they have not exercised the option to join, in the business and continue the partnership. This suit relating to the partner-ship has been pending since 1958, Circumstances are such that it would be just and equitable to dissolve the partnership, even if it should be held that the partnership was not dissolved on the death of the sixth defendant leaving only the fifth defendant as a partner, and the second plaintiff had also become a partner. The male heirs and other heirs would be having their rightful shares in the assets of the partnership with any profits that may have accrued. A decree for dissolution of the partnership as provided by the Court below, but dating from the date of death of the sixth defendant is the practical and proper solution of this tangled state of affairs. As matters stand it does not appear reasonably practicable to attain the object which the three partners had in mind when they entered into the contract of partnership.
14. The next and really important question is as to the rights in the trade mark and goodwill of the firm. The learned Subordinate Judge held that the goodwill is -an asset of the partnership and has to be dealt with accordingly and sold under Section 55 of the partnership Act. He found against the claim of the fifth defendant as he would be entitled to the goodwill only if he had continued the business after the death of Rasheed and the sixth defendant. The learned District Judge has held that it belongs solely to the sixth defendant. The rights to goodwill have to be found under the terms of the deed of partnership Exhibit B-2. The partners when they entered into the agreement of partnership, Exhibit B-2, attached the greatest importance to the trade mark and goodwill of the firm. Having regard to the nature of the trade, it is the goodwill that brought in the profits and the maintenance of the goodwill was considered so essential to the development and successfull carrying on of the business that they never contemplated the goodwill to be separated from the business. It has been continued in one or the other of the partners in the business who carried on the same. During the life time of Rasheed and the sixth defendant, it had been owned by them jointly. If either of them went out, he was paid Rs. 10,000 for his share in the goodwill and trade mark of the firm. The fifth defendant, the third partner, if he should survive the other two partners and continued the business, took the goodwill and trade mark for himself. Quite properly, in the circumstances, the trial Court, when on this part of the case, observed:
Clause 6 provides for a contingency of keeping the goodwill in tact in the absence of any dissolution of the partnership. It does not provide for the disposal of goodwill after the dissolution of the partnership because Exhibit B-2 does not at all contemplate any dissolution.
In Lindley on Partnership (12th Edition) at page 467, with reference to goodwill, it is pointed out that goodwill is generally used to denote benefit arising from reputation and that goodwill has no meaning except in connection with a continuing business. At page 471 of the treatise, it is found that ' if the firm is dissolved, and there is no agreement to the contrary, the goodwill must be sold for the benefit of the partners, if any of them insisted upon such a sale.' The treatise points out that partnership trade mark is another important element in the goodwill of the business and such marks are assets of the firm saleable on dissolution like any other asset. Of course, the rights would be dependent on any contract to the contrary in the articles of the partnership.
15. Now to take up the claim of the sixth defendant to the exclusive right to the goodwill and trade mark, clause 6 no doubt vests in Rasheed and Gaffar (sixth defendant) the rights in the goodwill and trade mark of the firm. But the vesting of the rights in them is for their life-time only. Of course, if any of them went out of the partnership, he should be paid Rs. 10,000 which is the estimated value of the goodwill and trade mark. On the death of either of them, their heirs do not get the trade mark and goodwill. The trade mark and goodwill are retained in the business, and they are credited to heirs of Rasheed with a sum of Rs. 10,000 being the value of half share of the deceased. Gaffar's heirs got the Press. During their lifetime the trade mark and goodwill remain with the business as an asset of the firm belonging to them only. On their death they devolve on the fifth defendant. During their lifetime, though a partner, in the business, the fifth defendant had no ownership in the goodwill and trade mark. So far as the sixth defendant is concerned, I have already held that there was no dissolution of the firm during his lifetime. That apart, as pointed out by the trial Court, the dissolution of the firm by the surviving of the two original partners is not contemplated at all in the partnership deed Exhibit B-2. If he retired from the firm, the provision in Clause 5 is that the retiring partner should be paid Rs. 10,000 as and for his share of the rights in the trade mark and goodwill and nothing more. On my finding that the firm has not been dissolved as a partnership at will at the instance of the sixth defendant, all that can be said is that the sixth defendant continued to be the owner of the goodwill and trade mark of the firm till his death. On his death, if the business had been continued by the fifth defendant the third partner, it would have devolved on him. On the terms of the agreement of partnership, the goodwill and trade mark are not the assets of the sixth defendant transmissible to his hairs in specie. There is no provision as to what should happen with reference to goodwill and trade mark of the firm, in the event of the partnership not continuing after the death of Rasheed and Gaffar. Such a contingency has not been contemplated. The fifth defendant, as found by the Courts below, cannot, in the circumstances, claim any exclusive rights to the goodwill and trade mark. In the absence of any provision in this regard, goodwill and trade mark must be deemed to be in the assets of the firm belonging to or contributed by Rasheed and Gaffar and to be dealt with as such. As the fifth defendant in also an heir of Rasheed, it is immaterial how the matter is viewed. In no event can the fifth defendant claim exclusive rights therein. In fact, as pointed out earlier, he has preferred no appeal claiming exclusive rights to the same; nor was nay argument advanced before me on his behalf.
16. It follows that the decree of the lower appellate Court deleting Clause (10) of the decree of the trial Court has to be set aside, and Clause (10) of the decree of the trial Court restored. This, in fact, is the substantial variation made by the lower appellate Court in the decree of the trial Court. The decree of the trial Court has further to be varied in regard to the date on which the partnership should be dissolved. The partnership should be held to have become dissolved as and from the date of death of Gaffar, the sixth defendant in the suit, and not earlier.
17. The second appeals are allowed to the extent above indicated. The parties will be entitled to half costs in each appeal from the contesting respondents. Leave granted.