A retired partner, after receiving consideration for retirement, is not entitled to seek partition and claim a share in the properties of the partnership firm, as it is not legally sustainable and amounts to an abuse of process of law and Court.

S. Tamilvanan, J.

This Civil Revision has been preferred under Article 227 of the Constitution of India, challenging the fair and decretal order, dated 18.08.2011 made in I.A.No.865 of 2009 in the suit in O.S.No.106 of 2009 on the file of the Additional District Judge/FTC No.I, Salem.

2. It is seen that the suit in O.S.No.106 of 2009 was filed by the first respondent/plaintiff against the petitioners herein and others, seeking preliminary decree for partition, dividing the suit properties into 100 shares and to allot 55 contiguous shares to the plaintiff and also pass final decree for the same by allotting the said shares, in favour of the first respondent/plaintiff.

3. During the pendency of the suit, Interlocutory Application in I.A.No.865 of 2009 was filed by the revision petitioners/defendants, under Order 7, Rule 11 of the Code of Civil Procedure (herein after referred to as the Code), seeking an order to reject the plaint, on the ground that the first respondent/plaintiff, a retired partner is not entitled to partition and claim any share in the immovable property belongs to the partnership firm. The petitioners have stated that there is no legal cause of action, as stated by the first respondent/plaintiff in the plaint, to the relief sought for therein. Mr. S. Prabhakaran, learned counsel for the petitioners submitted that the relief sought for in the suit is based on false averments and the relief sought for is also a vexatious claim, hence, the Application was filed under Order 7, Rule 11 of the Code, seeking an order to reject the plaint, however, the court below has not allowed the Application and rejected the suit.

4. Per contra, Mrs. Hema Sampath, learned Senior counsel appearing for the first respondent/plaintiff submitted that the first respondent/plaintiff is entitled to seek the relief, as prayed for and according to the learned Senior counsel, only the Interlocutory Application filed by the revision petitioners herein under Order 7, Rule 11 of the Code was not legally sustainable, hence, as per the impugned order, dated 18.08.2011, the Court below has rightly dismissed the Interlocutory Application.

5. Mr. S. Prabhakaran, learned counsel appearing for the petitioners submitted that the property more fully described in the plaint were admittedly the properties of Narasus Coffee Company, a partnership firm and the first respondent/plaintiff, the second petitioner/second defendant and the respondents 2 and 3/defendants 5 and 6 were partners in the firm. It is not in dispute that the plaintiff and the defendants 5 and 6 subsequently retired from the partnership firm and the defendants 3 and 4 were inducted as new partners of the first defendant firm. The counsel for the petitioners contended that the firm was subsequently incorporated into a Private Limited Company, wherein the petitioners 2 to 4 are share holders and also Directors, hence, the suit filed by the first respondent/plaintiff, seeking partition of the properties belonged to the firm is not maintainable and liable to be rejected.

6. It is an admitted fact that the petitioners 3 and 4 are wife and son respectively of the second petitioner/second defendant. The first respondent/plaintiff has stated in the plaint that due to the pressure given by the second petitioner/D2, the plaintiff and the defendants 5 and 6 were forced to retire from the firm, though the partnership business was very lucrative. The first respondent/plaintiff has further stated that the plaintiff and the defendants 5 and 6 were owning 80% of the shares of the business of the first defendant firm.

7. It is not in dispute that a Memorandum of Understanding (MOU) was entered into between the plaintiff, the defendants 2, 5 and 6 on 10.08.2006 as partners, setting out the terms and conditions with regard to certain properties being transferred in the name of the plaintiff and defendants 5 and 6, in view of the retirement of the plaintiff and defendants 5 and 6 from the firm and the second