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2010 Supreme(UK) 4
2010 (1) UAD 598
SUPREME COURT OF INDIA
Hon’ble Mr. Justice Tarun Chatterjee and Hon’ble Mr. Justice V.S. Sirpurkar
Civil Appeal Nos. 4411-4412 of 2002
MOHD. LAIQUIDDIN & ANR. – Appellants
Versus
KAMALA DEVI MISRA (DEAD) BY LRS. & ORS. – Respondents
Civil Appeal Nos. 6933-6934 of 2002
Decided on : 05.01.2010
Headnote:(A) Civil Procedure Code, 1908, Sec. 100 — Second Appeal — To raise a new plea for the first time — Permissibility — When a question of law is raised on the basis of the pleadings and evidence on record which might not have been raised before the courts below — Such question of law cannot be permitted for the first time before the High Court. (Para 17)
(B) Partnership Act, 1923, Sec. 42(c) — Dissolution of partnership — Such dissolution of partnership firm, subject to contract entered into by the parties — But, where there are only two partners constituting the partnership firm, on the death of one of them, the firm is deemed to be dissolved despite the existence of a clause which says otherwise.
(Para 26)
(C) Partnership Act, 1923, Sec. 14 — Property of the partnership — Contents — The property belonging to a person, in the absence of an agreement to the contrary does not, on the person entering into a partnership with others, become the property of the partnership merely because it is used for the business for partnership — It will become property of the partnership only if there is an agreement express or implied at the property was, under the agreement of partnership, to be treated as the property of the "partnership". (Paras 31, 37 to 41)
¼v½ nhokuh izfd;k lafgrk 1908] /kkjk 100 & f}rh; vihy & izFke ckj uohu rdZ dk fn;k tkuk vkSj mldh Lohdk;Zrk & tc dksbZ dkuwu dk iz'u mBk;k tkrk gS tks fd fjdkMZ esa miyC/k rdks± vkSj lk{; ij vk/kkfjr gks vkSj tks voj U;k;ky; ds lkeus igys u mBk;k tk ldk gks rks ,slk dkuwu dk iz'u mPp U;k;ky; ds lEeq[k izFke ckj mBk;s tkus dh vkKk ugha nh tk ldrhA ¼izLrj 17½
¼c½ ikVZujf'ki ,DV] 1923] /kkjk 42(c) ds vUrxZr lk>snkjh dh lekfIr & bl izdkj lk>snkjh QeZ dh lekfIr vkilh egk;nk ds vk/kkj ij i{kdkjksa }kjk lekIr dh tk ldrh gS & ijUrq tc dsoy nks gh Hkkxhnkj feydj Hkkxhnkjh QeZ cukrs gSa rks muesa ls ,d dh e`R;q gks tkus ij QeZ dks lekIr ekuk tk,xk] ;|fi dksbZ vU; Dykt Hkh fo|eku D;ksa u gksA ¼izLrj 26½
¼l½ ikVZujf'ki ,DV] 1923] /kkjk 14 & ikVZujf'ki QeZ dh lEifRr & fo"k; lwfp;k¡ & ,d O;fDr dh lEifRr] foijhr lafonk dh vuqifLFkfr esa vU; Hkkxhnkj tks QeZ esa dk;Zjr gSa] ikVZujf'ki QeZ dh lEifRr dsoy bl vk/kkj ij fd mldk mi;ksx QeZ ds fy, gksrk gS] QeZ dh lEifRr ugha cu tkrh gS ;g ikVZujf'ki QeZ dh lEifRr dsoy mlh n'kk esa cusxh tc bl lEcU/k esa dksbZ ,xzhesaV fyf[kr vFkok bEiykbM :i esa gks rc gh ml ,xzhesaV ds vUrxZr ml lEifRr dks ^ikVZujf'ki* dh lEifRr ekuk tk,xkA ¼izLrj 31] 37 ls 41½
Tarun Chatterjee, J. — These four appeals are directed against the judgment and order dated 9th of April, 2002 passed in second appeal Nos. 1048 & 1050 of 2001 of the High Court of Andhra Pradesh at Hyderabad, by which the High Court had partly allowed the appeals and modified the order dated 17th of October, 2001 of the First Appellate Court, which affirmed the order of the Trial Court decreeing the suit for dissolution of partnership firm and other relief filed by the appellants who are appellants in C.A. Nos. 6933-34 of 2002.
2. It may be mentioned that during the pendency of the suit, the original plaintiff died and her legal representatives were substituted as plaintiffs before the trial court. The original defendant also died before the filing of the first appeal, and ‘his legal representatives were brought on record as Appellant Nos. 2 to 6 before the first Appellate Court. For the sake of convenience, the Plaintiffs would be referred to as the ‘Appellants’ and the Defendants would be referred to as ‘the Respondents’.
3. The case made out by the original plaintiff (since deceased) in her plaint was as follows:
Shri Jai Narayan Mishra, original defendant (since deceased) made a proposal to constitute a firm for construction of a cinema theatre on the land of the original plaintiff (since deceased) and on acceptance of the said proposal by her, they executed a deed of partnership dated 26th of June, 1977. Clause 4 of the partnership deed envisaged that the plaintiffs share in the profits would be 2 annas in a rupee. The original plaintiff (since deceased) was receiving Rs. 2,000/- per month from the original defendant (since deceased) in pursuance of Clause 13, which guaranteed that the minimum profit of Rs. 2,000/- per month would be paid to her. The defendant never disclosed to the plaintiff as to what amount was due to her on settling the annual accounts of the firm. The defendant never furnished the statement of accounts to the plaintiff. He never disclosed the amount of profit payable to her towards her two anna share in the business. The defendant mismanaged the business of the firm and manipulated the account books. There was mutual irretrievable distrust between the plaintiff and the defendant and hence it was impossible to get along with the defendant in the business of the firm. The defendant stopped payment of the minimum guarantee profit to the plaintiff with a motive to strain her financial resources. The gravity of distrust assumed such proportions that the plaintiff could not continue as a partner in the firm. The defendant is also guilty of non-furnishing of annual accounts to the plaintiff and hence the suit. The original defendant (since deceased) entered appearance and contested the suit by filing a written statement. In the written statement, it was, inter alia, alleged as follows:-
“The value of the land given by the plaintiff for construction of the cinema theatre was only Rs. 70/- per sq. yard in the year 1977. The defendant invested more than Rs. 25 lakhs for the construction of the theatre. He has been maintaining accounts day-to-day in respect of the business of cinema theatre and no transaction relating to the said business had been concealed from the plaintiff. An extent of 1000 sq. yds. had been acquired by the Government for widening the road out of the total extent of 6808 sq. mts. of the site given by the plaintiff for construction of the cinema theatre and only the remaining land was available for the business of cinema-theatre. The duration of the partnership as per Clause 2 of the partnership deed was 42 years but subsequently it was agreed to give option to the defendant for another period of 20 years. The terms and conditions of the partnership deed were onerous to the defendant. Irrespective of whether the business made profit or not the plaintiff was guaranteed a minimum income of Rs. 2,000/- per month whereas the plaintiff suffered no loss on account of the business running
