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2016 Supreme(Cal) 511
IN THE HIGH COURT AT CALCUTTA
Shivakant Prasad, J.
Mrs. Malabika Bhattacharyya - Plaintiff
Versus
Shri Amitava Mukherjee - Defendant
CS No. 212 of 2010
Decided On : 07-11-2016
For the Plaintiff : Mr. Sanatan Ghosh, Mr. B.B. Saha
For the Defendant : Mr. Sudip Deb, Mr. Bishajib Ghosh, Ms. Kasturi Tarafdar
A partnership is dissolved by operation of law upon the death of a partner.
Headnote:
PARTNERSHIP - DISSOLUTION - DEATH OF PARTNER - SOLE PROPRIETORSHIP - PARTNERSHIP DEED - VALIDITY - FORGED SIGNATURE - JOINT FAMILY BUSINESS - PARTITION - SUIT MAINTAINABILITY - PRELIMINARY DECREE.
Fact of the Case:
Plaintiff and defendant are siblings and successors to the estate of their deceased mother, Ranu Mukherjee, who ran a business called Super Engineering Industries. The plaintiff claimed partition of the business and other properties, including a house at 2, Durga Charan Doctor Lane and the head office at 124B, Lenin Sarani. The defendant contested, claiming that he and his mother had entered into a partnership deed on 7th June 2008, three days before her death, and that the business was now his sole proprietorship. The plaintiff alleged that the partnership deed was forged and that her signature on it was false.
Finding of the Court:
The court found that the plaintiff's signature on the partnership deed was genuine and that the deed was valid. It held that the partnership was dissolved by operation of law upon the mother's death and that the defendant continued the business as a sole proprietor. The court also found that the plaintiff was entitled to an equal share in the house at 2, Durga Charan Doctor Lane and the head office at 124B, Lenin Sarani.
Issues: 1. Whether the suit is maintainable in its present form and under the law. 2. Whether the plaintiff is entitled to claim partition in respect of the business carried on under the name and style of Super Engineering Industries. 3. Whether the deed of partnership dated 7th June 2008 is void. 4. Whether the plaintiff's claim in respect of the income and assets of Super Engineering Industries is maintainable. 5. Whether the plaintiff committed fraud by suppressing her signature in the deed of partnership and affidavit. 6. What other reliefs, if any, is the plaintiff entitled to? 7. Whether the plaintiff is entitled to claim any share in respect of the undivided 1/25th share in premises no. 124B, Lenin Sarani, Kolkata-700 013, purchased by her late father, namely Sambhu Prosad Mukherjee?
Ratio Decidendi: 1. The suit was maintainable as a partition suit. 2. The plaintiff was not entitled to claim partition of the business as it was now the sole proprietorship of the defendant. 3. The partnership deed was valid and not forged. 4. The plaintiff's claim in respect of the income and assets of Super Engineering Industries was not maintainable as the business was now the sole proprietorship of the defendant. 5. The plaintiff did not commit fraud by suppressing her signature in the deed of partnership and affidavit. 6. The plaintiff was entitled to an equal share in the house at 2, Durga Charan Doctor Lane and the head office at 124B, Lenin Sarani. 7. The plaintiff was not entitled to claim any share in respect of the undivided 1/25th share in premises no. 124B, Lenin Sarani, Kolkata-700 013, purchased by her late father.
Final Decision: The suit was decreed in part in preliminary form. It was declared that the plaintiff and the defendant have each equal share in the premises no. 2, Durga Charan Doctor Lane, Kolkata-700 014 and premises no. 124B, Lenin Sarani, Kolkata-700 013. The parties were directed to effect partition in its final form by metes and bounds within three months from the date of the decree.
Shivakant Prasad, J.
Plaint case in brief is that mother of the plaintiff and defendant Mrs. Ranu Mukherjee, W/o. Late Sambhu Prasad Mukherjee started business at Calcutta with her own and husband’s money in the name and style as Super Scientific Instruments later changed to Super Engineering Industries, a proprietary, having Head Office at 124 B, Lenin Sarani Calcutta-700 013 and its factory at 6D, Mathur Babu Lane, Kolkata-700 015 (also known as B/6D/H/2, Rani Rashmoni Garden Lane), Kolkata-700 015.
2. The mother died intestate on 10.6.2008 leaving behind her only daughter Mrs. Malabika Bhattacharyya the plaintiff herein and only son Shri Amitava Mukherjee the defendant herein and these two are successors legal representatives to the estate both movable and immovable of the said Ranu Mukherjee as joint owners.
3. The plaintiff and defendant herein are entitled to all joint family properties both movable and immovable including the joint family business of Ranu Mukherjee with half share respectively owned by each.
4. After the death of said Ranu Mukherjee, the plaintiff continued through the defendant- Successor- Shri Amitava Mukherjee herein, to carry on and still are carrying on the said family business. It is submitted that the said Super Engineering Industries has its factory in the land of thika tenancy having area of about 15387 sq. ft. at 6D, Mathur Babu Lane, Kolkata-700 015 upon which the structure was made by said Ranu Mukherjee. The said Ranu Mukherjee inducted some tenants in her dwelling house at 2, Durga Charan Dr. Lane, Kolkata-700 014, and received rents from tenants, and the present defendant after the death of Ranu Mukherjee continued to collect the said rents from the tenants.
5. The immovable properties being of four storied building standing on land of approximate five cottahs thirteen chittaks and twenty two sq. ft. being family dwelling house standing on the premises no. 2, Durga Charan Dr. Lane, P.S.-Taltala, Kolkata-700 014 and the Head Office of the factory at 124B Lenin Sarani, Kolkata-700 013 are joint property.
6. After the death of Ranu Mukherjee the said son Shri Amitava Mukherjee has been looking after, managing and running the said joint family business with the trade licence of Kolkata Municipal Corporation.
7. The plaintiff did not get any of her share out of sale proceeds and income of the said joint family business as well as rents, profits of the said immovable properties at any time till this date from the defendant. The defendant has been enjoying all the profits of joint family business, rent received from tenants and all movables kept by deceased at the dwelling house at 2, Durga Charan Dr. Lane, Kolkata-700 014 at the time of death of mother Ranu Mukherjee.
8. The plaintiff time and again demanded and claimed payment of share value of the joint family business and physical partition of the dwelling house and the rooms at Lenin Sarani, but the defendant refused and neglected to do the same.
9. The plaintiff came to know on inspection of the original document as produced on 18th April, 2011 that the defendant and his mother Ranu Mukherjee, entered into a deed of partnership, on 7th June, 2008, just three days before her mother’s death on 10th June, 2008 at the age of 73 years. The said deed of partnership, dated 7th June, 2008 as claimed was authenticated by one Qamrul Hassan on 9th June, 2008, the Notary, Government of India, Regn. No. 4312/07, Sealdah Court just one day before the death of Ranu Mukherjee with Notarial Certificate dated 09.6.2008 on presentation and admission of documents by Ranu Mukherjee as stated in the Notarial Certificate issued by the said Notary. The said deed of partnership dated 7th June is fabricated, manufactured, false and fake, and is made with ulterior motive to deprive the plaintiff from the joint family business.
10. The plaintiff further submitted that she did not give any consent and/or did not put any signature as a witness in the impugned deed of p
