2006 Supreme(Cal) 200

High Court Of Calcutta
Aniruddha Bose
RITA SHAW - Appellant
Versus
DIPENDRA LAL SHAW - Respondent
Suit 136 Of 1983
Decided On : 04/03/2006

A partnership business comprising of only two partners automatically dissolves on the death of one partner, and a clause in the deed of partnership that the surviving partner would become sole owner of the business cannot transform the business into a proprietary concern.

Headnote:

PARTITION SUIT - Heritability of Properties - Deed of Trust - Partnership Business - Tenancy - Movable Assets - Partition - Commissioners of Partition Appointed - Accounts and Valuation of Goodwill - Temporary Excise License - Receiver Discharged.

Fact of the Case:

Suit for partition of the estates of Samarendrajit Shaw and Smt. Jashoda Shaw, the parents of plaintiffs and defendant. Defendant is the eldest son and sole defendant. Dispute over heritability of properties other than the dwelling house at 83, Lenin Sarani and the jewelleries and movables. Defendant claims 20/2 and 22, Harinbari Lane, Calcutta falls outside the scope of partition as it became a debuttar property by a deed of trust executed on 12th December, 1949. Dispute over business of wine being conducted under the trading style of M. L. Shaw and Co. and tenanted premises from where the business is being run.

Finding of the Court:

1. Deed of trust is void as the disposition made therein is in favour of the shebait and not in favour of the deity, and the devolution of Shebaitship as specified in the deed runs contrary to law, being hit by the rule against perpetuity. 2. Exclusion of female heirs from the office of shebaitship is not permissible under the Hindu law. 3. On the death of Samarendrajit Shaw the firm M. L. Shaw and Co. stood dissolved and the assets thereof are liable to be disbursed among the plaintiffs and the defendant in their respective shares. 4. The liquor licence and the tenancy would not constitute part of the assets of M. L. Shaw and Co. 5. The tenancy in the present case, on the basis of evidence before the court, cannot be held to have been converted into the property of the firm. 6. The plaintiffs cannot have any right over such tenancy.

Issues: 1. Whether the suit is maintainable in its present form and in accordance with law? 2. Whether the suit is barred by limitation? 3. Whether the plaintiffs have any cause of action for the suit? 4. Whether the estate of Samarendrajit Shaw, since deceased, can be partitioned amongst the plaintiffs and the defendant No. 1? If so, in what proportions? 5. Whether the estate of Smt. Jashoda Shaw, since deceased, is liable for partition amongst the plaintiffs and the defendant No. 1? If so, to what extent? 6. Whether-the premises No. 22, Harinbari Lane, Calcutta, is a debuttar property? 7. Was the business known as "m. L. Shaw and Co. ", a partnership business of Samarendrajit Shaw, since deceased, and the defendant No. 1 as alleged in paragraph 5 of the Written Statement of the defendant No. 1? 8. Whether the defendant No. 1 has become the absolute owner of the said business known as "m. L. Shaw and Co. " after the death of the other partner, Samarendrajit Shaw, as alleged in paragraph 5 of the Written statement of the defendant No. 1? 9. Whether the plaintiffs Nos. 1 and 2 are entitled to partition of the dwelling house, being premises No. 83, Lenin Sarani (formerly dharmatolla), Calcutta-700 013? 10. Whether the plaintiffs are entitled to get a decree as prayed for? 11. Whether the plaintiffs are entitled to get other reliefs, if any?

Ratio Decidendi: 1. A partnership between Samarendrajit Shaw and the defendant stood dissolved on the death of the former. 2. The firm M. L. Shaw and Co. had dissolved on the death of Samarendrajit Shaw and the assets thereof are liable to be disbursed among the plaintiffs and the defendant in their respective shares. 3. The liquor licence and the tenancy would not constitute part of the assets of M. L. Shaw and Co. 4. The tenancy in the present case, on the basis of evidence before the court, cannot be held to have been converted into the property of the firm.

Final Decision: 1. The properties described in the schedule "a" to the plaint, dwelling House, being premises No. 83, Lenin Sarani, Calcutta-700 013, business and assets of M. L. Shaw and Co. excluding the tenanted premises at 15, Ashutosh Mukherjee Road and 2, Rajendra Road Calcutta-700 020 and the excise licence, the property including the premises known as "provash Kanan", situated in holding No. 234, Bhuban Chandra Bhar Road, Chandannagore, district-Hooghly and movable properties as inventorised by the learned Receiver are heritable and are liable to be partitioned. 2. The share of the plaintiffs Nos. 1, 2 and defendant would be one-third each, and the plaintiff No. 3 would not be entitled to any part of the estates of which partition is sought. 3. The learned Advocates-on-record of the plaintiffs and defendant are jointly appointed as the Commissioners of Partition. 4. The Commissioner of Partition shall return the commission after six months upon sale of existing assets and stock-in-trade of the share of samarendrajit Shaw in the partnership firm. 5. The Commissioner of Partition shall effect in particular valuation of the goodwill of the firm M. L. Shaw and co. after deducting the legitimate expenses debts and also the sum already paid to the plaintiffs, and pay the two-third of the surplus sum out of the shares of Samarendrajit Shaw to the plaintiff Nos. 1 and 2, and the defendant shall retain one-third of this amount, along with the proceeds arising out of his share in the firm. 6. The temporary licence issued by the Collector of Excise in favour of the defendant shall remain operative for a period of sixteen weeks from date. 7. The learned Receiver already appointed in this matter was not required to perform any effective function. By consent of parties, he shall stand discharged and no account would be required to be filed by him.