A suit for partition cannot be maintained regarding a subsisting partnership firm if all legal sharers are not included in the proceedings.

JUDGMENT:

1. Plaintiffs before the trial court are the appellants in this appeal filed under section 96 read with order 41 Rule 1 CPC . Three items of immovable property were the subject matter in O.S.194 of 2001 on the file of learned Principal Senior Civil Judge, Nellore. Claiming that the plaint schedule properties were joint family properties, the suit was filed praying for partition and the prayer in the suit reads as below.

“The plaintiff therefore pray for a decree and Judgment in their favour: -

(a) directing the defendants to partition the 1/4th share of the plaintiffs in the plaint schedule properties and put them in separate possession thereof by passing preliminary decree thereof;

(b) passing final decree in pursuance of the preliminary decree, in case of non-compliance by the defendants 1 to 5 herein, through process of the court;

(c) granting costs of this suit; and

d) passing such other and further reliefs that are deemed just and proper under the circumstances of the case;”

2. There were three defendants in the suit. D1 filed a written statement wherein she agreed for the claim in the suit and prayed for the decree. D3 In the suit did not choose to appear and contest and the suit proceeded ex-parte against him. D2 contested the suit wherein he essentially pleaded that item No.1 of the plaint schedule was his self-acquired property and was not liable for partition. He did not deny the claim for partition of plaintiffs as against item Nos. 2 and 3 of the plaint schedule.

3. Learned trial court framed the following issues for trial.

1. Whether the plaintiffs are entitled for partition of the plaint schedule properties?

2. Whether the business, relating to M/s Sri Vijayalakshmi Engineering Works, is exclusive and absolute concern of the second defendant?

3. Whether Sudhakar was a partner of M/s Sri Vijayalakshmi Engineering Works, whose claims have not been settled, by other partners?

4. Whether the suit, as framed, is maintainable?

5. To what relief?

There was evidence of PWs.1 to 4 and Exs.A1 to A19 and the evidence of D2 as DW.1 and Exs.B1 to B31. After considering the entire material on record and the arguments advanced on both sides, the trial court held that item Nos.2 and 3 of the plaint schedule are joint family properties. It held that item No.1 of the plaint schedule was not joint family property and it was self- acquired property of D2/ Sri A. Naga Raju. It recorded a finding that M/s. Vijayalakshmi Engineering Works situated in Industrial Area is a business concern exclusively and absolutely belonged to D2/Sri A. Naga Raju and that the business concern is the proprietary concern owned by D2. Considering Ex.A5/ partnership deed, the trial court recorded its finding to the effect that M/s Vijayalakshmi Engineering Works is not a partnership firm and therefore, the suit for partition against it could not be maintained. About the maintainability of the suit, it held that the suit as framed was not maintainable since M/s Vijayalakshmi Engineering Works was not made a party. It decreed the suit in the following terms.

“In the result the suit is partly decreed. Items No.2 and 3 of the plaint schedule property are directed to be partitioned into four equal shares and one such share be allotted to the plaintiffs and the plaintiffs be put in possession thereof. The suit in relation to Item No.1 of the plaint schedule properties stands dismissed. However, that there be no order as to costs.

Accordingly a preliminary decree is passed.”

4. Plaintiffs in the suit are aggrieved against the findings of the trial court with reference to item No.1 of the plaint schedule and preferred this appeal. The grounds urged in the memorandum of grounds of appeal and the very argument of Sri K.S.