The assets of the firm cannot be excluded for the purposes of dissolution and they cannot be exclusively set apart for allotment to the first defendant. All the assets of the firm are to be taken into the hotch-pot for dissolution and distribution in terms of S. 48 of the Act as explained already.

( 1 ) THE appeal is by the plaintiff now represented by the legal representatives. The first respondent is the first defendant, referred hereinafter either as the contesting respondent or as the first defendant.

( 2 ) THE suit was for a declaration that the firm by name Uday Motor Transport, Shimoga stands dissolved from 23/02/1976 or in the alternative to have the firm dissolved by the order of the court. The plaintiff also sought for the appointment of a Receiver to realise the assets for distribution. Other consequential reliefs such as for accounting and for payment of plaintiffs share are also sought for by the plaintiff. There is no dispute regarding basic facts.

( 3 ) A deed of partnership was executed on 1/02/1957 at Shimoga between the first defendant, second defendant and the plaintiff. The partnership deed states that the first defendant was carrying on the business in stage carriage transport service in the name and style of Uday Motor Transport and that the other two partners were taken into the business as partners resulting in the formation of the firm. The partnership was at will. The business of the firm commenced on 1/02/1957. The capital of the firm was Rs. 42,500/- out of which Rs. 40,000/- was contributed by the first defendant and Rs. 25,00/- by the second defendant. The net profits or losses of the firm must be shared by the partners as follows:i) the first defendant = 6 annas. ii) plaintiff = 5 annas. iii) second defendant = 5 annas. It is unnecessary to refer to the other clauses in the partnership deed except the statement that in the event of death, retirement, disability etc. of any partner or partners the partner or partners shall not be entitled to claim anything towards goodwill. Since the question involved in this appeal pertains to the scope of the accounting to be taken, it is unnecessary to refer to the various contentions raised by the defendants. The first defendant contended that all the assets of the firm belonged to him since they were the buses which originally belonged to him.

( 4 ) THE trial court framed the following issues:1) Whether the plaintiff proves that he has a right in the assets of the firm of Udaya Motor Transport, Shimoga? 2) Whether the defendants prove that the notice dated 23-2-1976 is bad in law and as such the suit is not maintainable. 3) Whether the suit is not maintainable in view of the Arbitration clause in the Partnership Deed? 4) Whether the 4th defendant is not a necessary party? 5) Whether the firm is dissolved? If so, to what reliefs, if any, the plaintiff is entitled? 6) What decree or order? the dispute in the appeal pertains to the first issue.

( 5 ) THE trial court held that the plaintiff was entitled to 5 annas share in the profits and losses of the firm and the accounts of the said firm regarding profits and losses are to be taken with the assistance of the Commissioner for the period from 1-2-57 to 23-2-76. The firm was declared as having dissolved with effect from 23-2-76. However, under issue No. 1, the trial court held that the plaintiff was not entitled to any share in the assets of the firm and the said assets shall be excluded while taking the accounts. The trial court also held that though some buses were acquired by borrowing loans from the banks, the plaintiff was not entitled to derive any benefit out of the said acquisition. Indications are that all the buses belonged to defendant No. 1, even though the trial court found that buses and parts were acquired by borrowing loans from the bank and the permits were changed in the name of the firm. The trial court also noted that the value of the buses and spare parts have been shown in the income-tax returns of the firm. However, that was held to be irrelevant to consider those assets as the assets of the firm. According to the trial Court, there is no reference to the assets in the partnership deed Ex. Dl. The trial Court held that the plaintiff was entitled to a share in the profits and losses o

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