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Brojendra Kumar Saha and ors. Vs. Kali Nath Saha and ors. - Court Judgment

LegalCrystal Citation
SubjectContract;Civil
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.77
AppellantBrojendra Kumar Saha and ors.
RespondentKali Nath Saha and ors.
Excerpt:
partnership, dissolution of - declaration of title to shares purchased by firm, maintainability of--specific belief act (i of 1877), section 42--decree in such suit, form of--execution--civil procedure code (act v of 1908), order xxi, rule 34. - .....it was not disputed that the plaintiffs were entitled to a half of the ten shares in question. the learned judge in the lower appellate court dismissed the whole suit;, holding that the plaintiffs could not get a half of the ten shares unless there had been an adjustment of the accounts of the partnership business. in this case none of the parties says that any question of account remains open other than the question as to the ownership of the ten shares. the plaintiffs are clearly entitled to a half of the ten shares. defendant no. 1 shall execute a proper transfer of a half of these ten shares.3. the decree of the court of first instance directed the bengal paper mill company to register the plaintiffs' name. this the learned judge had no power to do. the decree should, therefore,.....
Judgment:

1. This is an appeal by the plaintiffs against a decision of the learned Additional Subordinate Judge of Nadia, dated the 2nd August 1915, reversing a decision of the Munsif at Kushtia. The plaintiffs brought the suit for a declaration that they were entitled to a half of the shares in the Bengal Paper Mill Company, Limited, and for consequential reliefs. The plaintiffs' case was that the shares had been purchased out of the fund belonging to a firm which was formerly carried on by the plaintiffs and defendants Nos. 1 to 6 but was subsequently dissolved, and that, therefore, the plaintiffs were entitled to a half of the shares.

2. The Court of first instance decreed the suit, as it was not disputed that the plaintiffs were entitled to a half of the ten shares in question. The learned Judge in the lower Appellate Court dismissed the whole suit;, holding that the plaintiffs could not get a half of the ten shares unless there had been an adjustment of the accounts of the partnership business. In this case none of the parties says that any question of account remains open other than the question as to the ownership of the ten shares. The plaintiffs are clearly entitled to a half of the ten shares. Defendant No. 1 shall execute a proper transfer of a half of these ten shares.

3. The decree of the Court of first instance directed the Bengal Paper Mill Company to register the plaintiffs' name. This the learned Judge had no power to do. The decree should, therefore, instead of directing the Company to register the plaintiffs' names, direct the first defendant to execute a transfer of a half of the ten shares in favour of the plaintiffs and to lodge the transfer together with the share certificates with the Company for registration. If he 'fails to obey that, the plaintiffs can proceed to execute the decree in the manner provided for in Order XXI, Rule 34, Civil Procedure Code.

4. The decree passed by the learned Additional Subordinate Judge must be set aside and the appeal decreed in the terms already mentioned. The respondents must pay to the appellants the costs incurred by them in this Court and in the lower Courts.


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