Back
2019 Supreme(Mad) 2847
IN THE HIGH COURT OF MADRAS
V. Bharathidasan, J.
Gudiyattam Lungi Company and Ors. – Appellants
Versus
G. Vasantha and Ors. – Respondents
Second Appeal No. 197 of 2019 and C.M.P. No. 3331 of 2019
Decided On : 19-07-2019
For the Appellant : V. Raghavachari
For the Respondent: M.S. Krishnan, Senior Counsel for K.A. Ravindran
Headnote:
Constitution Of India,1950 - Article 5 – Civil Procedure Code,1908 - Order 40 - Rule 1 - Partnership Act, - Section 46 - Partnership firm - settlement of their claim as legal heirs of deceased partner - Plaintiffs in respect of Item suit A-Schedule property and consequently directed defendants to hand over vacant possession of same within two months granted preliminary decree in respect of suit B-Schedule property dividing B-Schedule property into four equal shares and allotting share plaintiffs also granted a decree for dissolution of defendant partnership firms and permitted plaintiffs to take out a separate proceedings as per order of CPC in respecting of accounting of firms - Insofar as other items of suit A-Schedule property concerned Subordinate Judge dismissed suit - Aggrieved by same defendants preferred an appeal before the District Judge Vellore - District Judge by judgment dated dismissed appeal thereby confirming judgment and decree passed by trial court - After dismissal of the appeal suit defendant in suit died - Challenging same defendants and legal heirs defendant in suit are before this court with this second appeal –Held, Plaintiff same was property of defendant firm and same were purchased from out income derived partnership business and plaintiffs have share - But defendants contended that suit B-schedule properties are exclusive properties of defendant firm which is a manufacturing unit and duly accounted by defendant firm and defendant firm has got nothing to do with suit B-Schedule property - Even assuming that properties are belong defendant manufacturing company as already plaintiffs were settled with their share of profits only respect defendant marketing firm plaintiffs are entitled share in suit B-Schedule properties - This substantial question of law is answered accordingly against defendants and favour of plaintiffs to extent indicated above appellants contended that appellate Judge had not considered grounds raised in Appeal Suit and failed to frame proper points for consideration of appeal suit now entire materials were made available to this court for consideration - On considering entire materials available on record this Court is view that though the learned appellate judge had not given detailed findings on the grounds raised in appeal in considered opinion of this court appellate judge formulated appropriate issues for consideration and having considered both oral and documentary evidence concurred with findings by giving sufficient reasons for her conclusions appeal succeeds partly and the judgment and decree of Trial Court as confirmed by first appellate court require modification to the extent indicated below - In nutshell respondents are entitled for declaration of title in respect of Item suit A-Schedule property and for a consequential relief of recovery of possession by courts below and insofar as Item suit A-schedule property suit is liable to be dismissed - As far as suit B-schedule property is concerned they are liable for partition into four equal shares and the respondents are entitled to one such share jointly respondents are entitled for a decree for dissolution defendant firm alone and respondents are also entitled to initiate separate proceedings Order and Rule CPC for defendant firm alone suit in respect of dissolution defendant firm and for accounting is liable to be set aside - Appeal dismissed
JUDGMENT :
V. Bharathidasan, J.
1. The defendants 1 to 6 and 8 to 13, and the legal heirs of the deceased 7th defendant -P.N. Sundaramurthy in O.S. No. 48 of 2006, on the file of the learned Subordinate Judge, Gudiyatham, are the appellants herein. The respondents herein filed the suit for (i) declaration of title in respect of suit A-schedule property and for the consequential relief of recovery of possession of A schedule property; (ii) division of B Schedule properties into 4 equal shares and allotment of one such share jointly to the plaintiffs; and (iii) dissolution of partnership and accounting by appointing a receiver. The learned Subordinate Judge, by judgment dated 28.04.2016 decreed the suit in part and thereby declared the title of the plaintiffs in respect of Item Nos. 1 and 2 of suit A-Schedule property and consequently directed the defendants to hand over the vacant possession of the same within two months; granted preliminary decree in respect of suit B-Schedule property, dividing the B-Schedule property into four equal shares and allotting 1/4th share to the plaintiffs; also granted a decree for dissolution of 1st and 2nd defendant partnership firms and permitted the plaintiffs to take out a separate proceedings as per order 40 Rule 1 of CPC in respecting of accounting of the firms. Insofar as the other items of suit A-Schedule property is concerned, the learned Subordinate Judge dismissed the suit. Aggrieved by the same, the defendants 1 to 13 preferred an appeal in A.S. No. 34 of 2016 before the District Judge, Vellore. The learned District Judge by judgment dated 19.06.2018, dismissed the appeal thereby confirming the judgment and decree passed by the trial court. After the dismissal of the appeal suit, 7th defendant in the suit namely, P.N. Sundaramoorthy died. Challenging the same, the defendants 1 to 6 and 8 to 13 and the legal heirs of the 7th defendant in the suit are before this court with this second appeal.
2. For the sake of convenience, the parties will hereinafter be referred to as per their rank in the suit.
3. The case of the plaintiffs in brief is that, one P.G. Ekambara Mudaliar was the founder and one of the partners of the 1st and 2nd defendant partnership firms. The 1st defendant firm is a marketing unit and the 2nd defendant firm is a manufacturing unit. Both the firms were established in the year 1942, with five partners namely, (i) P.G. Subramania Mudaliar, (ii) P.G. Ekambara Mudaliar, (iii) P.G. Murugesa Mudaliar, (iv) P.G. Narayana Mudaliar and (v) P.G. Murugesa Mudaliar. All of them are sons of one Govindappa Mudaliar. The manufacturing unit is engaged in manufacturing of lungies with the trade mark "Top Brand", with a special design keeping the Top in a white triangle space with striped red colors and the rest of the portion colored in Red. In the year 1963, one of the partners namely, P.G. Narayanasamy Mudaliar died and the defendants 4, 5 and 6 being legal heirs of P.G. Narayanasamy Mudaliar had taken 1/3rd share of the partnership firm. One P.G. Sivagnanam Mudaliar, the eldest son of P.G. Narayanasamy Mudaliar, was adopted by one P.K. Gangadhara Mudaliar, brother of P.K. Govindappa Mudaliar, subsequently, the said P.G. Sivagnana Mudaliar was also added as one of the partners in both the firms.
4. It is the further case of the plaintiff that, in the year 1967, the plaintiff's father P.G. Ekambara Mudaliar died intestate leaving behind his wife, P.E. Padma and the plaintiffs as his legal heirs to succeed his estate. After the death of Ekambara Mudaliar, the plaintiff's mother was taken as the senior most partner in both the firms. After the death of Ekambara Mudaliar, another partner namely, P.G. Nataraja Mudaliar got retired from the firms, thereafter, another partner namely, Murugesa Mudaliar also got retired. While so, another partner namely, P.G. Subramania Mudaliar, also died in
