Partnership--Death of Partner--Partnership stood dissolved--Estate of a partner who dies, shall not be liable for acts done after death of partners

Anil Kshetarpal, J.

C.M. No. 1859-C-2006 in RSA No. 2188 of 2004

C.M. No. 1654-C-2009 in RSA No. 2257 of 2004

C.M. No. 2264-C-2009 in RSA No. 2259 of 2004

C.M. No. 2474-C-2007 in RSA No. 2552 of 2004

Prayer in these applications is for permission to produce in additional evidence a copy of application dated 21.03.2006 submitted to the market committee, a copy of partnership deed dated 16.10.1993, executed between Ram Nath and Ashok Kumar and a copy of Form-A, a licence granted to the firm in the year 1994.

2. Learned counsel for the respondent has submitted that subsequently Ashok Kumar joined Ram Nath and a partnership deed came into existence dated 16.10.1993.

3. On the other hand, learned counsel for the appellants has submitted that the application for additional evidence cannot be allowed as the case now sought to be projected by way of additional evidence is against the pleaded case of the plaintiff before the trial Court. It has been pointed out that before the trial court as well as before the first appellate court, it was not the case of the respondent-plaintiff that Ashok Kumar is infact a partner in the firm. Learned counsel has submitted that the additional evidence sought to be produced is beyond the pleaded case set up by the plaintiff.

4. This Court has considered the submissions. A careful reading of the plaint would shows that the plaintiff-respondent had filed a suit against the firm, Ram Nath and defendant no3 to 8 as legal heirs of deceased partner. It was not the case set up by the plaintiff that Ashok Kumar is liable as he is a partner in the firm-defendant no.1.

5. In view thereof, the application for additional evidence cannot be allowed.

6. Still further, it was for the plaintiff to collect the evidence and produced the same at an appropriate stage. At the stage of second appeal, plaintiff cannot be permitted to produce documents, execution whereof is being disputed by the appellant-defendants.

7. Hence, the applications are dismissed.

MAIN

8. By this judgment, Regular Second Appeal Nos.2188, 2552, 2257, 2258 and 2259 of 2004 shall stand disposed of as the common question of law which arise for determination is:-

“Whether the legal heirs of a erstwhile partner, who has died before the loan was taken by the firm are liable to re-pay the amount”.

9. All the appeals are between the same parties and counsel for the parties are also common and they admit that all the appeals be disposed of by common judgment.

10. Undisputed facts are that Shakti Traders Commission Agents was a partnership firm consisting of two partners, namely, Late sh. Faqir Chand and Ram Nath. Late Sh. Faqir Chand died on 12.10.1993. Thus, on the death of Faqir Chand, partnership firm stood dissolved as per Section 42 of the Partnership Act, 1932. It is not disputed before this Court that the partnership deed did not contain any contract to the contrary. Section 42 of the Partnership Act, 1932 is extracted as under:-

“42. DISSOLUTION ON THE HAPPENING OF CERTAIN CONTINGENCIES.-Subject to contract between the partners a firm is dissolved-

(a) if constituted for a fixed term, by the expiry of that term;

(b) if constituted to carry out one or more adventures or undertakings, by the completion thereof;

(c) by the death of a partner; and

(d) by the adjudication of a partner as an insolvent”

11. A reading of Section 42 of the Partnership Act, 1932 would show that on the death of a partner, the firm would stand dissolved. Only exception is that if there is any contract to the contrary. It is not the case of any of the parties that there is a contract to the contrary in the present case. Hence, the partnership firm stood dissolved.

12. Even otherwise, out of two partners, one partner had died. Hence the partnership firm could not continue to exist with single person.

13. It is further not in dispute that in all these cases Ram Nath borrowed certain amount from the plaintiff. Both the Courts decreed the suit against all the defendants. Defendants no.3 to 8-appe