ORDER
P. Ramakrishnam Raju, J.
1. These appeals arc filed by defendants 1, 2, 3 to 14 respectively in Original Suit No. 182 of 1982. The suit was filed by respondents 1 and 2 for partition and separate possession of plaintiffs half share in plaint schedule properties and to render true and proper account in respect of the businesses run by the defendants with regard to items 3, 4 & 5 of plaint schedule and to determine plaintiffs share and for other relief’s.
2. Plaintiffs’ case is that one Saheb Ramjee who was the common ancestor of plaintiffs and defendants 1 and 2 was doing Kirana and Grocery business, besides supplies to military. His son Pokerdas also joined the business and both of them carried on the business in petrol and petroleum products for a considerable time during their lifetime. After the death of Saheb Ramjee, Pokardas along with his sons Motilal and Chunilal constituted joint family and carried on business in the name of M/s Pokardas Chunilal. Chunilal, father of the plaintiffs died in the year 1952,
while Pokardas in the year 1961. Motilal, eldest son of Pokardas also died in the year 1974. During their life time both Motilal and Chunilal were living jointly with their father Pokerdas and were carrying on family business in petrol and petroleum products. Defendants 1 and 2 are the sons of Motilal, who died in the year 1974. After the death of Motilal, the family business was carried on jointly by the defendants 1 and 2 and plaintiffs as joint family business. In the Income Tax returns, the business in petrol and petroleum products was shown as joint family business. After the death of Pokardas, Motilal being the elder of two brothers was representing the joint family as Kartha, and after the death of Motilal, the first plaintiff being the eldest is representing the joint family as Kartha and the said business was called “Rampratap Ramlal” which was a joint family business.
3. The ancestral joint family house which is item-I of plaint schedule known as Golconda house and the income from the said house is being utilised by defendants 1 and 2 for which they have to account for. Item-II of plaint schedule is business run under the name and style “M/s Rampratap Ramlal” at House No.6-2-1011/1 and 6-2-1010/A Khairtabad, Hyderabad. There is subsisting contract with Indian Oil Corporation Limited to carry on business in petrol and petroleum products. Like-wise, item-Ill is also a joint family business run under the name and style of M/s Deccan Service Station, opposite to Public Gardens, Hyderabad. Like-wise, item-IV of plaint schedule is another business run under the name and style of “M/s Ameerpet Service Station” near Saradhi Studios, Ameerpet, Hyderabad which is also a joint family business. In Item-V of plaint schedule which is a business carried on under the name and style of M/s Motilal Chunnilal, situated at Mukkaramjahi Road, Hyderabad, the joint family of plaintiffs and defendants has a half share while the other half share belonged to Chunilal S/o Jai Narayan. Items-VI, VII & VIII of plaint schedule are sites along with super structures which have been acquired
from out of the joint family business and joint family funds, and as such, they are all joint family properties of plaintiffs and defendants 1 and 2. Item-IX of plaint schedule consists of moveables such as antiques etc. In pursuance of an oral agreement the family business run under the name and style of “M/s Rampratap Ramlal” was being looked after by the plaintiffs; while the joint family business run under the name and style of M/s Deccan Service Station and M/s Ameerpet Service Station was being looked after by defendants I and 2. Since 1978 the half share of the joint family in the business run under the name and style of M/s Motilal Chunnilal was not being disclosed by defendants 1 and 2 and as such it has become difficult for the first plaintiff to file tax returns without showing the income from the said firm. As such, plaintiffs issued a legal notice calling upon the third defendant to disclose the share of income derived by the joint family from M/s Motilal Chunnilal from the year ending Deepavali 1978 onwards. It appears, defendants 1 and 2 have entered into some arrangement with the third defendant in respect of the 50 per cent of joint family share in the business of M/s Motilal Chunnilal. Plaintiffs are in joint possession of Items-VI to VIII of plaint schedule along with defendants I and 2 As the defendants are not co-operating in disclosing the share of income of business run under M/s Motilal Chunnilal, plaintiffs were constrained to file the suit.
4. While denying the material allegations, the first defendant in his written statement contended that he was informed by his father that he took the dealership licence for all the petrol bunks in his individual name from the Indian Oil Corporation. After the death of his father, the first defendant is looking after the business at Fateh Maidan and Ameerpet. During the. life time of his father Motilal, all the petrol bunks were managed by his father and plaintiffs were assisting him in the management of petrol bunks. Motilal was filing income tax returns as Kartha of the joint family. After the death of Motilal, the first
plaintiff was filing returns as Kartha of the joint family. He denied that alt the joint family business, except Khairatabad petrol & petroleum products business, is styled as Rampratap Ramlal. Only petrol products business at Khairatabad is known as Rampratap Ramlal. Income from the Golconda house is Rs.50/- per month and the said income was being spent towards the maintenance of the building. Petrol business, M/s Rampratap Ramlal is a joint family business, but the site was purchased in the name of Motilal, and the first plaintiff, and therefore, first plaintiff, defendants 1 and 2 and their mother, Premlata are the co-owners of the site and super structures. M/s Motilal Chunnilal was a partnership business in which late Motilal and the third defendant were the partners. Defendants 1 and 2 have surrendered their share in the said business to the third defendant and executed a relinquishment deed in the capacity as the legal representatives of Motilal and that there was no collusion. He also denied that plaint schedule items 6, 7 and 9 arc the joint family properties. He also denied that there was any oral agreement to run the joint family business. Defendants 1 and 2 and their mother Premlata are jointly entitled to a half share in itcm-VIII of the plaint schedule as co-owners. Plaintiffs have no right to claim share in item-IX of the plaint schedule. Smt Sukhadevi, mother of the plaintiffs and Premlata, mother of defendant 1 and 2 are the necessary parties to the suit. The suit is bad for mis-joinder of parties and cause of action and it has to be dismissed.
5. Defendants 3 and 4 in their separate written statement while denying the allegations in the plaint contended that they are not necessary parties to the suit. Item-V of the plaint schedule is not the property of Motilal and the firm M/s Motilal Chunnilal had no connection with their joint family as Motilal had joined the said firm in his individual capacity, but not representing joint family of Motilal and Chunnilal. After the death of Motilal, partnership firm stood dissolved and
defendants 1 and 2 had succeeded to the interest of their father in their individual capacity, but not representing any joint family. They have also finally retired during May, 1979 from the partnership firm and the name of the said firm was changed to Chunnilal & Sons. Neither the plaintiffs nor defendants 1 and 2 have any share in item-V of the plaint schedule.
6. Defendants 5 to 14 are impleaded as legal representatives of the third defendant Chunnilal S/o Jainarayan.
7. Premlata, mother of defendant 1 and 2 and Sukhadevi, mother of plaintiffs 1 and 2 and Ramkanya, sister of defendant 1 and 2 were added as defendants 15 to 17 respectively. Defendants 18 and 20 are the daughters of the first plaintiff; while defendant No.19 is the husband of another daughter, Rampyari.
8. The trial Court framed the following issues:
(1) Whether the plaint-A schedule properties are all joint family properties?
(2) Whether the defendants are liable to render accounts of the business done under items 3 to 5 of ‘A’ schedule?
(3) Whether Sitkhadevi and Premlatha are necessary parties to the suit ?
(4) Whether the suit is bad for misjoinder of cause of action ?
(5) Whether the suit is valued correctly and Court fee paid is sufficient?
(6) To what relief ?
9. On behalf of the plaintiffs, the first plaintiff was examined as PW 1 and marked Exs.A1 to A26 documents; while defendant 1, 7 were examined as DWs 1 & 2 respectively; Second defendant was examined as DW 4 while DW 3 was the Manager, Canara Bank, Feelkhana Branch. Exs.B-1 to B-20 documents were marked on behalf of the defendants.
10. On a consideration of the entire evidence on record, the trial Court found that plaint schedule properties are the joint family properties of plaintiffs and defendants 1 and 2, and accordingly, decreed the suit for half share in all the plaint schedule properties by metes’ and bounds. Defendants 1 and 2 are further directed to render true and proper account of the business run by them under items-Hi to V of the plaint schedule from the date of the suit till the date of possession.
11. Aggrieved by the said decree and
judgment, defendants, 1, 2 and 3 to 14 filed
separate appeals as stated above.
12. The point for consideration is whether plaint schedule properties are the joint family properties, and if so, whether the defendants are liable to render account?
Point: The case of the plaintiffs is that plaint schedule properties, including business, are their joint family property in which they have got 50% share. Their great grandfather one Saheb Ramjee was doing Kirana and Grocery business along with his son Pokardas. Pokardas died in the year 1961. Out of his two sons, Motilal and Chunilal, Chunilal predeceased his father, Pokardas, Plaintiffs are the sons of Chunilal, while defendants 1 and 2 are the sons of Motilal. According to the plaintiffs, after the death of Pokardas, the family continued to be joint, and Motilal used to act as Kartha of the joint family till he died in the year 1974. After the death of Motilal, first plaintiff being the eldest was representing the joint family as Kartha till 1978 about which time, differences arose between the two branches. In pursuance of an oral agreement, the family business under the name and style of M/s Rampratap Ramlal i.e., Khairatabad Service Station, was being looked after by the plaintiffs; while the joint family business carried on under the name and style of M/s Deccan Service Station and M/s Ameerpet Service Station were being looked after by defendant 1 and 2. Half share of the joint family in the business carried on under the name and style
of M/s Motilal Chunnilal was not being disclosed by defendants 1 and 2 and as such, it became difficult for the first plaintiff to file tax returns on behalf of Hindu Undivided Family (for short HUF) without showing the income from the said firm. Plaintiffs accordingly issued a legal notice calling upon the third defendant to disclose the income of the said firm for the year ending Deepavali 1978 onwards. However, it transpired that defendants 1 and 2 entered into some kind of arrangement with the third defendant in respect of 50% share of the joint family in the business M/s Motilal Chunnilal. In fact items 6 to 8 of the plaint schedule were purchased in the joint names of Motilal and the first plaintiff. Defendants 1 and 2 filed written statement denying the material allegations in the plaint. They stated that during the lifetime of their father Motilal, all the petrol bunks were being managed by his father, while the plaintiffs were assisting him in the management of Khairatabad Petrol Bunk and defendants 1 and 2 were assisting their father in the management of Petrol Bunks at Patch Maidan, Ameerpet. Their father was filing income tax returns as Kartha of the joint family and after his death, first plaintiff was filing returns as Kartha of the joint family. The partnership business carried on under the name and style of M/s Motilal Chunnilal, of which Motilal and the third defendant were partners, was being managed by the third defendant. Defendant 1 and 2 have surrendered their share to the third defendant and executed a relinquisliment deed as legal representatives of late Motilal.
13. The contention of the plaintiffs is that the plaint schedule properties and the business belong to the joint family consisting of two brothers, Motilal and Chunnilal, and as their father Chunnilal died, they are entitled to a half share in the said properties. Defendants admit that there are certain items acquired by their great grandfather Saheb Ramjee, item 1 of the plaint schedule is one such. It is also the case of the plaintiffs that Saheb Ramjee was doing Kirana and Grocery
business and also doing military supplies. During his life time, business was conducted along with his son Pokardas who was the grand father of plaintiffs and defendants 1 and 2. After the death of Saheb Ramjee, Pokardas along with his sons Motilal and Chunilal carried on the business and established business in Petrol and Petroleum products. It is admitted in the written statement filed by the first defendant that after the death of Pokardas, Motilal was filing income tax returns as Kartlia of the joint family during his lifetime and after his death, first plaintiff was filing returns as Kartha of the joint family. It is also admitted that items 6, 7 and 8 of the plaint schedule were purchased jointly by Motilal, father of defendants 1 and 2 and the first plaintiff practically representing the two branches of Pokardas. Therefore, mere is no difficulty in coming to the conclusion that there is a joint family of plaintiffs 1 and 2 and defendants 1 and 2, but as there is no presumption that all the properties held by the members of the joint family are joint family properties. We have to see what are the items shown in plaint schedule belong to the joint family.
14. Item 1 of the plaint schedule is a house property called Golconda house. Items 2, 3 and 4 arc petroleum business carried on under the name and style of M/s Rampratap Ramlal, M/s Deccan Service Station and M/s Ameerpet Service Station. Rampratap is the name of the first plaintiff, while Ramlal is the name of the first defendant. Both their names are associated with item No.2 of the plaint schedule. Item 5 in which plaintiffs are claiming a half share for the joint family is associated with the names of Motilal, father of defendants 1 and 2 and the third defendant.
15. PW1 has consistently spoken the averments made in the plaint. He also produced Ex.A-1 assessment order for the year ending 30-9-1950 for the asscssee M/s Pokardas Chunnilal, whereunder 8 Annas share from the unregistered firm of M/s Motilal Chunnilal was also added as part of the income of HUF. So also Exs. A-2 & A-3 are to the
same effect, but for the assessment years 1952-53 and 1970-71 respectively; while Ex. A-4 is for the assessment year 1977-78 of the same firm. Pokardas Chunnilal is now changed to M/s Rampratap Ramlal. He also stated that Motilal died in the year 1974 and defendants 1 and 2 disclosed the income of the joint family up to 1978 for the business of firm M/s Motilal Chunnilal at Mukkaramjahi Road, Hyderabad, in which the joint family has got half share along with the third defendant. Therefore, plaintiffs issued a legal notice under Ex.A-5 and defendants 1 to 3 did not issue any reply, but they entered Caveat into Court. Therefore, plaintiffs were constrained to file the suit. In fact, PW1 issued Ex.A5 notice dated 16-11-1980 to the third defendant when Indian Oil Corporation Limited informed these Service out lets by letter dated 18-11-1975 (whereunder the Indian Oil Corporation stated) that after the death of Motilal they agreed to reconstitute the firm as per the desire of the family members. Rampratap Ramlal replied that all the above petrol bunks are the joint family businesses, and in the firm M/s Motilal Chunnilal, Joint family has got half share. Under, Ex. A-18 dated 7-7-1977 Rampratap Ramlal replied to the Indian Oil Corporation Ltd. that there has been no partition amongst the two branches of late Motilal and late Chunnilal and as such none of the members can claim any proprietory rights in any business whatsoever. Under Ex. A-21 which is an application filed by Motilal on behalf of Pokardas Chunilal before the Income Tax Officer during his life time for a certificate for the year 1972, it is stated that there is HUF consisting of himself, Rampratap Ramdass and Ramlal who are the plaintiffs and defendant No.1, besides himself. However, defendants 1 and 2 filed certain documents marked as B series to show that Motilal was the Proprietor of the Petroleum out lets. Some documents were also filed to show that Moiilal Chunnilal are partners of M/s Motilal Chunnilal and that after the death of Motilal, defendants 1 and 2 their mother and sister entered into a partnership agreement with Chunnilal son of Jaya Narayana in respect of item 5 of the
plaint schedule etc. Merely because Motilal was shown as partner along with Chunnilal, it cannot be said that the business is their separate business and not joint family business, in the absence of proof that they have established these business with their private funds.
16. Though it is the contention of defendants That Motilal took dealership in his individual capacity and opened Bank Account as Proprietor, we are of the view that it cannot be presumed that the business was his individual business, in view of Exs.A14, A15 & A-18, A-21. It may be mentioned here that some times properties are purchased in the individual names of the joint family members with joint family funds, but the character or the property cannot be any the less joint family property. The test is whether the property is purchased from out of the joint family funds or from the separate income of the member. It may be mentioned without fear of contradiction that there is no evidence whatsoever that either the plaintiffs or defendants 1 and 2 had any separate income to run any business or to acquire any property do hors the income derived from the joint family property and business. These Exs. A-14 A-15 and A-18 in our view clearly establish that even after death of Motilal in the year 1974, business is continued in the same names as before.
Ex. A-8 is the assessment order for the year 1953-54. It shows that the assessee is Pokardas Chunnilal, grandfather and father of plaintiffs 1 and 2 and the assessee has declared the income as HUF which was accepted. Exs A-9 to A-13 are the assessment orders for the years 1954-55; 1955-56; 1956-57; 1963-64; and 1968-69 respectively. They clearly establish that the family is joint and the assessment orders were passed holding that the business is being carried on by the HUF. After disputes arose, PW 1 says that in item 8 which is admittedly a joint family property for convenient enjoyment, a compound wall was constructed. Mess was separated from the year 1970. In fact, first plaintiff was also acting as Kartha of joint family between the
years 1974 and 1978 i.e., after the death of Motilal and before disputes arose. Ex. A-4 is the assessment order of M/s Pokardas Chunnilal (now Rampratap Ramlal) for the assessment year 1977-78. There is thus overwhelming documentary evidence to show that not only the family is joint consisting of the children of two branches of Pokardas during the life-time of Pokardas, but also of Motilal and Chunnilal uptil 1978 possessing of plaint schedule properties.
17. As against the evidence on behalf of the plaintiffs, DW 1 was examined in part. Assuming his evidence is admissible in his evidence, he admitted that after the death of Motilal the first plaintiff being the eldest member of the joint family was representing as Kartha. Only Petroleum products business carried on under the name and style of M/s Rampratap Ramlal is a joint family business, but the site was purchased in the name of Motilal and the first plaintiff. As the dealership licences for all the three Petrol Bunks were taken in the name of Motilal in his individual capacity, plaintiffs cannot claim any share. Having regard to the circumstances as already seen and having regard to the evidence placed on record, we have no hesitation to come to the conclusion that the business are being carried on by and for joint family of plaintiffs and defendants 1 & 2.
18. The first defendant was examined in part, but he was not tendered for cross-examination. Evidence recorded in chief and cross-examined in part cannot be used as evidence; inasmuch as he was not tendered for further cross-examination. It is a settled principle that unless the evidence of the witness is tested by cross-examination, the same cannot be relied on. In spite of several opportunities, DW1 did not appear for further cross-examination, and as such, entire evidence has to be eschewed from consideration. Even then, he admits in his evidence that he cannot say whether his father was running the business in his individual capacity or as a partnership concern. What all he says is that his father told him that it is his individual business. He
admits that Item 1 is ancestral house of which he is in possession of, but he says that the rent realised is negligible i.e., Rs.50/- only per month.
19. If the evidence of DW 1 is eschewed, what remains is the evidence of DW 4 who is the second defendant. He says that his brother DW1 was looking after the litigation and for several questions, he answered that his brother only knows the state of affairs. He also says that his father told him that he was doing business in his individual capacity. These statements cannot inspire confidence. He says that after the death of his father, himself, his brother released their share in item 5 of the plaint schedule to the third defendant. Of course he says that plaintiffs got separated about two to two and half years prior to the death of his father Motilal. if this is accepted, the plaintiffs also constitute as members of the HUF along with defendants 1 and 2 and their father Motilal till about 1972 only, as Motilal died in the year 1974. There is absolutely no evidence worth mentioning to accept that plaintiffs got separated from the joint family about that time. There is not even a scrap of paper to show that any partition took place at or about 1972 or before the death of Motilal. The one circumstance on which reliance is placed is that his father filed a suit against ESSO when the licence was cancelled in the year 1971 in his individual capacity and after his death, himself, his brother, his mother and sister alone were added as the legal representatives of Motilal and not the plaintiffs. The mere fact that plaintiffs were not brought on record to contest the suit when the legal representatives of Motilal are contesting the suit for the benefit of the family, it cannot be a ground to hold that plaintiffs have nothing to do with the said property. Whether plaintiffs are added as parties or not, if Motilal and his legal representatives succeed in the suit, the benefit would go to the joint family and the plaintiffs also would be entitled to a share in it. Therefore, it connot be said that their nonjoinder as parties in the said suit would affect their rights in the joint family property.
20. The next circumstance on which reliance is placed by defendants 1 and 2 is that Exs.B14 to B16 is that Exs. B-14 to B-16 which are cheques issued by Motilal as Proprietor of M/s Ameerpet Service Station. These cheques were issued just before the death of Motilal in the year 1974. Even assuming that Motilal signed the cheques as the proprietor of M/s Ameerpet Service Station, it cannot defeat the rights of the plaintiffs as one co-parcener by his acts or treatment cannot alter the character of the property to the detriment of other members in the absence of a regular partition among the members of the family.
21. The 7th defendant who is the grandson of the third defendant was examined to show that item 5 of the plaint schedule was a firm carrying on business in partnership between Motilal and his grandfather; Chunnilai. Ex.B7 is the registration extract of M/s Motilal Chunnilai. He says that his grandfather informed him that Motilal is a partner in his individual capacity and that the half share of Molilal docs not represent the joint family of Pokardas Chunnilai. After the death of Motilal in the year 1974, defendants 1 and 2 and the widow of Motilal were allotted 50% of the share held by the deceased Motilal and in the year 1979 after the death of his father Ratanlal, he approached defendants 1 and 2 to relinquish their share by receiving a sum of Rs.l5,000/- Ex.B5 is the relinquishment deed dated 31-5-1979 signed by late Chunnilai, his grandfather, defendants 1 and 2 and the widow of Motilal. As we have already held that the half share in item 5 of the plaint schedule also belongs to the joint family of plaintiffs and defendants 1 and 2 the next question is whether defendants 1 and 2 can relinquish this property to the third defendant.
22. It is admitted that Molilal Chunnilai is a partnership firm carrying on business in Petroleum products at Mukarramjahi Road which is item 5 of the plaint schedule in which Motilal has 50% share. It is undeniable that the half share in the said business represented
by Motilal in fact belongs to HUF of Molilal, his sons and the plaintiffs. Therefore, plaintiffs claim a share in the said business also. The question is in such a situation, whether the plaintiffs who are not the partners of the firm can seek for partition of the partnership business against not only defendants 1 and 2 who are co-parceners but also against strangers who arc defendants 3 to 17.
23. Partnership is a creature of the contract, while joint family is one of a status. No doubt right to partition is one of the incidence of joint family, and at the same time the right to seek partition of joint family assets in the hands of third parties can be enforced. But when the asset is a share in the partnership firm, the remedy lies in accordance with the terms of the partnership deed and the provisions of the Partnership Act, 1932, but not by way of a simple suit for partition. It is well settled that when a member of a Hindu Joint Family enters into a partnership with strangers and carries on business with the joint family funds, he is accountable to the members of the family for the profits derived towards his share. It is equally well settled that the members of the joint family cannot file a suit for such profits against strangers as there is no privity of contract. Where a Kartha or Manager of Hindu Joint family joins as a partner in a firm, his rights and obligations in respect of other partners of the firm are determined by the Partnership Act and not by the principles under Hindu Law. So also if any of the coparceners desires to discontinue the partnership business entered into by the Kartha of the Joint family, they can only sue the Kartha of the family for a division of the assets of the family and they cannot bring about dissolution of the firm or seek for accounts; in other words, the other members who are eo nominee parties to the partnership deed can only act through de facto partner of the firm. The liability to account for the money received from the firm cannot be disowned by the Kartha of the joint family, if a suit is filed against him. Therefore, the only right the members of the Hindu Joint Family have is to call upon the Kartha or the
other member who is a partner of the firm to account for the profits, he has made in the partnership business. This view of ours gets ample support from Mulla Hindu Law, Page 265 (16th Edition), wherein it is stated that such a partnership could be governed by the provisions of Indian Partnership Act, 1932 with the result that if the Manager dies, the Partnership would be dissolved. Privy Council has also expressed the opinion in Pichappa v. Chokalingam, AIR 1934 PC 192, if a member of the joint family joins in partnership with strangers it is in his individual capacity but not the other members. Therefore, it is clear that merely because one of the joint family members joins as a partner in a firm, the remaining co-parceners cannot enforce their rights of partition against the partners of the firm. The Supreme Court in Rashiklal & Co. v. CIT, , observed as follows:
“It is essential to have an agreement between the partners to form a partnership. An HUF not being a “person” cannot enter into an agreement of partnership. If the Kartha of an HUF enters into partnership with a stranger, upon the death of the Kartha, the partnership will stand dissolved. In the absence of the contract to the contrary, another member of the family cannot step into the shoes of the Kartha claiming that the Kartha was merely representing the HUF and the real partner was the HUF. A Kartha who enters into a contract of partnership with a stranger may be accountable to the other members of the HUF for the profits received from the partnership business. But that is something between the Kartha and the HUF. But so far as the partnership firm is concerned, the Kartha is a partner like any other partner. If a commission is paid to a partner who happens to be a nominee of an HUF, the commission is not paid to the HUF. It is paid by the firm to one of its individual partners. The partner may have to account for the monies received from the firm to another person or another
firm or an association of persons or an HUF. But that will not alter the fact that commission was paid by the firm to one of its partners.”
In view of this binding authority, we are of the opinion that plaintiffs cannot seek any relief in item 5 of the plaint schedule against defendants 3 to 14 who are partners of the firm M/s Motilal Chunnilal which is carrying on business, but at the same time their right to claim share in the profits during the life time of Motilal or for recovery of a share in the business after his death since the firm gets dissolved on his death cannot be denied. Therefore, defendants 1 and 2 who joined as partners after the death of their father have to account for the profits received by them. Hence, while holding that plaintiffs cannot seek any remedy against defendants 3 to 14, their right to claim a share of profits in item 5 of the plaint schedule derived by defendants 1 and 2 has to be enforced.
24. Learned Counsel for the appellants in CCC A.No.8 of 1995 submits that inasmuch as Motilal who was the partner in M/s Motilal Chunnilal died in the year 1974, the partnership being at will must be deemed to have been dissolved on the date of his death, and therefore, no suit for accounts of the firm lies after a period of three years. He elaborates his argument by contending that a suit for accounts of a dissolved firm, after a lapse of three years, is not maintainable. The suit for partition by some of the co-parceners of the deceased partner is equally not maintainable so far as relief of accounts of the dissolved firm is concerned. No doubt, this argument is attractive in the first blush, but if we carefully analyse the implications of this argument, we have to necessarily say that this contention has no legs to stand. The suit is one for partition and separate possession of plaintiffs share. As already held the plaintiffs cannot file the suit against the partners of M/s Motilal Chunnilal, but at the same time, the suit is maintainable against defendants 1 and 2 who after the death of their father Motilal, continued to be the partners of the said firm. It may be
true that the plaintiffs cannot ask for profits or accounts of the firm as on the date of filing of the suit, but they are entitled to seek for accounts of the firm which is deemed to have been dissolved on the date of death of Motilal and whatever assets that have come into the hands of defendants 1 and 2 or profits earned by them from the said firm, have necessarily to be accounted for by defendants 1 and 2 to the plaintiffs 1 and 2 being the co-parceners of Joint Hindu Family. In this view of the matter, though defendants 3 to 14 are not liable to render accounts to plaintiffs 1 and 2, but defendants 1 and 2 cannot escape their liability to account for the assets that have come into their hands or the profits realised by them from the said firm.
25. In view of the fore-going discussion, CCC A.Nos. 37 and 46 of 1995 are dismissed and the decree for partition of the plaint schedule properties passed by the lower Court against the appellants in these appeals is confirmed, subject to the following modification viz., plaintiffs themselves have to account for the half share of defendants 1 and 2 in the business in respect of item 3 of the plaint schedule and the profits realised by them.
26. The decree passed by the lower Court against defendant 3 to 14 is set aside, and the decree to render true and proper account in respect of the business in item 5 of the plaint schedule is confined to defendants 1 and 2.
27. In respect of item 9 of the plaint schedule, the decree for partition of the plaintifls’ share is confirmed basing on the Commissioner’s report.
28. CCC A.No.8 of 1995 is allowed. Accordingly a modified preliminary decree shall be passed and the parties can workout their shares during final decree proceedings. Each party shall bear its own costs.