Partnership rights are contractual and not heritable; legal heirs cannot claim rights in a partnership license if explicitly prohibited by the partnership deed.

JUDGMENT

URMILA JOSHI-PHALKE, J. - Heard learned counsel for the parties.

2. The appellant has challenged the order and judgment dtd. 8/10/2009 passed by the learned Single Judge in Writ Petition No.2122 of 2002 confirming the order passed by the respondent no.1.

3. Brief facts of the case are as follows :

A] In the year 1973 the Firm namely M/s Akot Wine Mart was constituted and licence for wine shop (Country and foreign liquor) was obtained in the name of M/s Akot Wine Mart. On 1/11/1978, the firm was reconstituted and three persons namely Vijaykumar Dwarkalal Jaiswal, Arunkumar Dwarkalal Jaiswal (Appellant) and Dinkarrao Pundlikrao Gawande were the partners of the firm. On 1/9/1992 a fresh deed of partnership was executed and as per Clause 10, on the death of a partner the firm was not to be dissolved. The legal heirs were disentitled from claiming any goodwill or rights of the firm. On 21/11/1994 Dinkarrao, a partner expired. The said partnership was again reconstituted on 23/12/1994 and the remaining two partners agreed to share profits and losses equally.

4. According to the appellant, as per the terms and conditions of the partnership Deed, on the death or retirement of any partner, rights pertaining to the licence or such other rights of the Firm were to vest in the remaining partners. As per the contention of the appellant, in view of terms and conditions of the partnership Deed, legal heirs of the deceased partner are not entitled to become a partner of the Firm. The partner namely Dinkarrao Gawande died on 21/11/1994 and in view of specific condition of the Deed of partnership referred above, name of Dinkarrao Gawande came to be deleted from the licence as per the order of the Collector i.e. respondent no.2 dtd. 24/6/1996. The appellant has deposited the necessary fees for deletion of name with the Treasury Office, Akola. In the year 1998, another partner Vijaykumar Jaiswal expressed his intention to retire from the Firm and in view of that Firm was dissolved on 1/4/1998 and thereby the appellant became the proprietor of the business Firm M/s Akot Wine Mart. He had taken over the business with all assets and liabilities. After dissolution of the Firm, the name of Vijaykumar Jaiswal came to be deleted from the licence as per the order dtd. 17/5/1998 passed by the respondent no. 2. Thus, the name of the appellant alone was continued in the licence of M/s Akot Wine Mart and the names of other two partners namely Dinkarrao Gawande and Vijaykumar Jaiswal were deleted on account of his death and name of Vijaykumar Jaiswal was deleted as he retired from the Firm as per the orders of respondent no.2 - the Collector, Akola. Subsequently, respondent no.3 - wife of Dinkar Gawande had moved an application on 13/1/1999 before respondent no.2 - Collector for inclusion of her name in place of name of her husband. The Collector had rejected the said application by passing an order on 19/5/1999 and communicated to respondent no.3 that her name cannot be included in view of the terms and conditions of the Deed of Partnership. Respondent no.3 being aggrieved and dissatisfied with the order passed by the respondent no.2 - Collector preferred an appeal before the Commissioner of State Excise under Sec. 137 of the Bombay Prohibition Act, 1949. The Commissioner by passing an order dtd. 24/2/2000 rejected the appeal and confirmed the orders of the respondent no. 2 by assigning the reason that as per the clause 10 of the Deed of Partnership dtd. 1/11/1978, the name of the legal heirs of the deceased partner cannot be included in the partnership Firm and all the rights relating to the licence are bound to vest in the remaining partners. Therefore, respondent no. 3 had preferred the revision before the Minister of State, State Excise under Sec. 138 of the Bombay Prohibition Act, 1949. The Minister of State had allowed the Revision of the respondent no.3 by passing an order on 16/4/2002 and thereby set aside the order of respondent No.2-Collect