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1980 Supreme(Cal) 253
High Court Of Calcutta
A. K. Sarkar
PRADIP KUMAR DUTTA - Appellant
Versus
GOPAL CHANDRA BOSE - Respondent
Suit 151 Of 1978
Decided On : 07/09/1980
BHOLA NATH SEN, C.K.SAHA, NIRMAL MITRA, P.K.MULLICK
Section 69 of the Indian Partnership Act, 1932, does not bar a suit for a declaration of partnership and enforcement of the right to sue for dissolution and account, even if the partnership firm is not registered.
Headnote:
PARTNERSHIP - SUIT FOR DISSOLUTION OF FIRM - MAINTAINABILITY - SECTION 69 OF THE INDIAN PARTNERSHIP ACT, 1932 - SCOPE AND APPLICABILITY - REGISTRATION OF PARTNERSHIP FIRM - EFFECT ON MAINTAINABILITY OF SUIT - ENFORCEMENT OF RIGHT TO SUE FOR DISSOLUTION AND ACCOUNT - EXCEPTION UNDER SUB-SECTION (3) (A) OF SECTION 69 - INTERPRETATION.
Fact of the Case:
A partnership firm, "Gopal Bose Gangaram," was constituted by a deed of partnership dated September 29, 1962, between Gopal Chandra Bose, Devilal Mehta, and Pashupati Dutta. Upon Pashupati Dutta's death in 1977, his legal heirs, the plaintiffs, inherited his share in the partnership. The defendants, Gopal Chandra Bose and Devilal Mehta, admitted the first plaintiff, Pradip Kumar Dutta, as a partner in the firm, and a new partnership deed was executed on September 5, 1977. However, disputes arose between the parties, leading to the dissolution of the partnership by the first plaintiff on March 6, 1978.
Finding of the Court:
The court found that the partnership firm, "Gopal Bose Gangaram," was not a registered partnership firm, but the instant suit was not barred by Section 69 of the Indian Partnership Act, 1932, as it was a suit for a declaration that the first plaintiff was a partner of the firm and for enforcement of the right to sue for dissolution and account. The court held that the partnership between the first plaintiff and the defendants was acted upon, and the first plaintiff had signed the balance sheet and profit and loss account of the partnership along with other partners.
Issues: 1. Whether the suit is barred by Section 69 of the Indian Partnership Act, 1932, due to the non-registration of the partnership firm? 2. Whether the first plaintiff was a partner of the firm "Gopal Bose Gangaram"? 3. Whether the partnership between the first plaintiff and the defendants was acted upon? 4. Whether the first plaintiff is entitled to a declaration of partnership, dissolution of the firm, and an account of profits?
Ratio Decidendi: 1. Section 69 of the Indian Partnership Act, 1932, does not bar a suit for a declaration of partnership and enforcement of the right to sue for dissolution and account, even if the partnership firm is not registered. 2. The first plaintiff was admitted as a partner of the firm "Gopal Bose Gangaram" by the defendants, and the partnership deed dated September 5, 1977, was acted upon by the parties. 3. The first plaintiff is entitled to a declaration of partnership, dissolution of the firm, and an account of profits from the date of his admission as a partner till the date of the decree.
Final Decision: The court decreed that the first plaintiff was a partner of the firm "Gopal Bose Gangaram" since May 30, 1977, and dissolved the partnership between the defendants and the first plaintiff. The court also ordered an account of the profits of the firm from May 30, 1977, till the date of the decree and appointed a special referee to conduct the accounting.
( 1 ) "a partnership firm under the name and style of "gopal Bose Gangaram" was constituted by a deed of partnership dated 29th September, 1962 between Gopal Chandra Bose the defendant No. 1 Devilal Mehta the defendant No. 2 and one Pashupati Dutta. The shares of the partners in the partnership were Gopal Chandra Bose 6 annas 6 pies, Devilal Mehta 4 annas 3 pies and Pashupati Dutta 5 annas 3 pies enumerated in Clause VII of the said Deed of partnership. The terms of the partnership inter alia contained in the said Deed dated 29th September, 1962 tendered as Exhibit A in Clause XIV, "death, incapacity, insanity, insolvency, expulsion or retirement of any partner or attachment and sale of the share of any partner for his private debts shall not dissolve the firm but shall be carried on by the other persons and in case of death of any partner his legal heirs will be taken as partner or partners". 3. On 29th May, 1977 the said Pashupati Dutta died interstate leaving him surviving the plaintiffs in the suit as his heirs and legal representatives. Upon such death his entire estate including his right, title and interest in the said partnership business, "gopal Bose Gangaram" devolved upon the plaintiffs under the provisions of Hindu Succession Act, 1956. The partnership of "gopal Bose Gangaram" was not however dissolved. 4. The plaintiff No. 1 Pradip Kumar Dutta, youngest son of the said Pashupati Dutta deceased, during his father's lifetime attended and was learning the said business with intent to join the same in the event of his father's death. 5. The following issues were settled in Court :-ISSUES1. What are the scope, terms and effect of the deed of Partnership dated 29th Sep. , 1962? 2. Did the deed of relinquishment vest the first plaintiff with any right, title and interest in respect of the share of the deceased partner in the partnership business absolutely ? 3. Has the plaintiff acquired any right under the deed of partnership dated 5th September. 1977? Did the partnership thereunder come into effect ? 4. Is the first plaintiff ready and willing to act as partner in spite of notice of dissolution? 5. Has the plaintiff No. I accepted the accounts up to the period ending April 13, 1977 on 1-8-1977? 6. Has the plaintiff No. 1 received any money as alleged in paragraph 10 of the written statement ? 7. Is the plaintiff No. 1 entitled to any account or any share of profit of the firm ? 8. Is the plaintiff No. 1 entitled to ask for the dissolution of the firm ? 9. Have the plaintiffs any locus standi to institute or maintain the suit? 10. To what reliefs, if any, is the plaintiff No. 1 entitled?
( 2 ) THE Deed of partnership dated 29th Sept. , 1962 was a registered deed, the shares of the parties were enumerated in Clause VII. Clause XIV provided that the said partnership shall not be dissolved on the death of any of the partners whereupon his legal heirs will be taken as partner or partners. There are also specific provisions in the said deed with regard to the rights and liabilities of each of the partners as also what would happen with regard to the business of the firm and in the event of death of any of the partners his legal heirs will be admitted as partner or partners and the business of the firm shall continue. This is in answer to Issue No. 1.
( 3 ) AFTER the death of Pashupati, one day during the plaintiffs' mourning the defendants went to their house and after discussions with them decided to take plaintiff No. 1 as partner in the said business and stated that relinquishments of their right, title and interest in the share of the said business in favour of the plaintiff No. 1 by his sisters, mother and the brother, the other plaintiffs would be necessary. The Deeds of relinquishment as prepared by the Advocate of the defendants were executed by the plaintiffs except the plaintiff No. 1, relinquishing their right, title, interest in the share of the said partnership in favour of plaintiff No. 1. Si
