On the dissolution of a partnership, the property of the firm has first to be applied in payment of debts and liabilities of the firm, and it is only thereafter that the surplus can be distributed amongst the partners according to their shares.

( 1 ) THESE two consolidated suits bearing Nos. 333 and 334 of 1970, were brought by Smt. Sunder Devi in May, 1959 for rendition of accounts of two partnership concerns. The first was in the name of M/s. Prem Sukh Das Narsingh Das, cloth commission agents and cloth merchants, Nai Sarak, Delhi. There were three partners in it, namely, Mela Ram, Kedar Nath who were brothers, and Brij Lal who their nephew. Mela Ram died on 2-5-1956, and on his death the partnership stood dissolved by operation of Law as there was no saving clause in the partnership deed that the death of any partner would not result in dissolution. The plaintiff is the daughter of Mela Ram, and claims to be his heir, and as such entitled to rendition of accounts.

( 2 ) OF the other two partners, Kedar Nath died on 6-5-1956, leaving behind two sons, namely Ghanisham Dass and Hanuman Prasad. Hanuman Prasad claims to be the adopted son of Mela Ram, and on this ground sought to defeat the plaintiff s claim. This case of adoption, however, was not accepted when the preliminary decree for rendition of accounts in the present suit was passed on 9-2-1967. That part of the controversy is, therefore no longer open.

( 3 ) THE defendants impleaded in the first suit were Brij Lal, Ghanisham Dass and Hanuman Prasad. the latter two being as heirs of Kedar Nath partner. Hanuman Prasad died. during the pendency of the suit in November, 1970, and his widow Smt. Gindori Devi stands impleaded as her legal - representative. Brij Lal also died during the pendency of the. suit in June 1975, and his son and daughter, namely, Hukam Chandand Gomati Devi were impleaded as his legal representatives. His widow Jamuna Devi too was so added but she has also hi the meanwhile died.

( 4 ) THE suit bearing No. 334 of 1970, concerns the firm Narain Dass Mela Ram. cloth commission agent and cloth merchants, Kalba Devi Road, Bombay-2. In-this. the partners were Mela Ram,. Brij Laland Ghanisham Dass. According to the plaintiff. Shashi Kant minor was entitled to the benefit of. partnership but- she did not accept the same.

( 5 ) A preliminary decree for-accounts in this case was also passed on 9-2-1967. One Shri Shiv Shankar was appointed as Commissioner to go into the accounts of the two firms. He submitted two reports, one in each case, on 17-1-1970. In report relating to suit No. 333 of 1970, he allowed an amount of Rs. 51,082 as principal and Rs. 96,147 as interest. The total of these amounting to to Rs. 147,229 was held payable to Smt. Sunder Devi from Ghanisham Das and Brij Lal.

( 6 ) IN the other suit, nothing was held due to any of the parties on the ground that the account books of that firm were not produced before him.

( 7 ) AGAINST these reports, Ghanisham Dass defendant filed objections. According to him, the approach adopted by the Commissioner in the first case was enlirely misdirected as the requirements of sections 46 and 48 of the Partnership Act were not complied with. The accounts of the firm were not gone into in terms of these provisions, and without ascertaining and adjusting the assets and liabilities of the firm, the amount shown in the account of Mela Ram partner was straight away allowed.

( 8 ) IN the other suit, it has been contended that the account books were lying with Hukam Chand from whom they ought to have been summoned by the Commissioner. In their absence the Commissioner, it is urged, entirely failed to carry out his duty of going into the accounts.

( 9 ) THESE objections were controverted from the side of the plaintiff.

( 10 ) FOLLOWING iseue in each of these cases was framed

"1. Whether the report of the Commissioner is liable to be set aside as alleged in the objections "

( 11 ) SH. Shiv Shankar was appointed to go into the accounts by a joint statement dated 7-12-1967 of the counsel for the plaintiff and Ghanisham Das defendant. It was mentioned that he was to be the local commissioner and arbitrator for settlement of accounts between the parties. This