( 1 ) THIS order disposes of four IAs.

( 2 ) THE facts in brief, in so far as relevant for the disposal of these applications may be noticed. M/s Kedar Nath Mohinder Nath was a partnership firm. There were five partners. The plaintiff and the defendants 1,2 and 3 real brothers held 15% share each. Their mother Smt Krishna Pyari was also a partner holding 40% share.

( 3 ) THE plaintiff has filed this suit for dissolution of partnership and rendition of accounts on 18. 11. 1993. The mother was not joined as a party to the suit. The defendants on being noticed, have on 11. 11. 93 filed on I. A. No-249/94 under Order 7 Rule II Civil Procedure Code seeking rejection of the plaint alleging the suit to be barred by law inasmuch as the mother, a necessary party was not joined in the suit. Faced with this application, the plaintiff became wiser and on 1. 3. 94, moved an application under Order 1 Rule 10 CPC (I. A. N0. 2271/94) for impleading the mother as a party to the suit. However, before the application could be heard on merits, the mother expired on 8. 3. 94 rendering the plaintiff s application infructuous.

( 4 ) ON 4. 4. 1994, the plaintiff moved an application under Order 6 Rule 17 CPC ( I. A. NO. 3354/94) seeking an amendment in the plaint alleging that the mother having expired, her share in the partnership had devolved upon the plaintiff and defendants 1 to 3, the four brothers in equal shares and hence the suit as originally framed should proceed ahead, the death of mother haying cured the defect of her non-joinder in the suit. The prayer for amendment has been contested by the defendants submitting that the suit was bad for non-joinder of necessary party and the plaint being liable to be rejected, the defect could not be cured by seeking an amendment. Reliance is placed on Joginder Singh v. Krishan Lal, AIR 1977 Pand-H 180. It is also submitted that late Krishana Pyari has left a will bequeathing her share in partnership to defendants No. 1,2 and 3 only excluding the plaintiff from inheritance.

( 5 ) THE deed of partnership dated 8. 9. 1975 is on record. Following two clauses of the deed are extracted and reproduced as they would be of significant assistance in disposing of several controversies posed for being resolved at this stage. Clauses 9 and 10 read as under: "9. That in the event of the retirement of any one partner, the business shall not be dissolved and the continuing partners shall be entitled to carry on the business as before. The retiring partner, however, shall not be entitled to use or exploit the trade name and good will of the firm, which shall in such a case become the exclusive property of the continuing partners. The retiring partner shall, however, be paid his share in the value of the trade name and goodwill of the firm and in such an event, such value shall be deemed to be fie average of the profits of the business for the two accounting years preceding the date of such retirement.

( 10 ) THAT the death of the partner shall not dissolve the partnership which shall continue between the remaining partners. The heirs of the deceased partner will have the option to join thr partnership on the same terms and conditions under which such deceased was working in the partnership. "

( 6 ) ACCORDING to the plaintiff, the partnership is one at will and shall be deemed to have dissolved, with the summons in the suit accompanied by copies of plaint having been served on defendants in view of Sections 7 and 43 of the Partnership Act. 1932. According to the defendants, the partnership is not one at will. It is a continuing partnership. Any one intending to retire from the partnership may so retire which would not dissolve the partnership and the business would be continued by the partners other than the retiring partner. Death shall also not dissolve the partnership which shall be deemed to have been constituted by the remaining partners, subject to the option exercisable by the heirs of the deceas