A claim for partnership profits post-death under Section 37 requires a specific settlement suit, distinct from partition actions; a genuine will must be proven for it to hold weight in succession matters.

J U D G M E N T

The sole plaintiff in O.S.No.342 of 1997 before the IInd Additional Sub Judge, Ernakulam, is the appellant. Her suit for partition of plaint A schedule items to F schedule items and also for share of profits from the immovable properties as well as partnership assets held by her deceased father Sri.Vasudeva Shenoy, was partly decreed by the impugned judgment and decree.

2. Being aggrieved by the refusal of division of some of the plaint items and dismissal of claim for share of profits from partnership assets, she filed this appeal.

3. Defendants 1 and 2 in the suit are also partly aggrieved by the decree and hence they also filed Cross Objection No.26/2008. Both matters were :-10-:

heard together.

4. The claims advanced by the appellant in the suit are briefly narrated below.

Appellant is the sole daughter of late Sri.A.L.Vasudeva Shenoy. He died on 14.02.1996 leaving behind the appellant-daughter, his wife- first defendant and the sole son-second defendant as his legal heirs. Plaint A schedule items 1 to 10 are landed properties that belonged to the joint family of Sri. Vasudeva Shenoy who are followers of Hindu Mitakshara law. In Ext.A2 partition deed dated 29.09.1950 executed between Sri.Vasudeva Shenoy, who was then a minor, Lakshmana Shenoy-his father, and his two elder sons Sreedhara Shenoy and Sreenivasa Shenoy, plaint A schedule items were allotted to Sri.Vasudeva Shenoy's share under plaint D schedule. After birth of second defendant, D schedule property became coparcenary property of :-11-:

the father and son. The coparcenars subsequently divided the properties as between them under Ext.A7 partition deed dated 29.06.1972 and Ext.A6 partition deed dated 27.06.1974.

5. Plaint A schedule items 1, 2, 3, (5.665 cents), 4 and 8 became the separate properties of Sri.Vasudeva Shenoy following the said partition deeds. Appellant claims 1/3rd share in these items as class I heir under the Hindu Succession Act, 1956 . She does not claim any right in respect of plaint A schedule items 6 and 7 as is obviously clear from the paragraph 27 of the plaint itself. Plaint A schedule 9 and 10 items were allotted to the share of second defendant under Ext.A2 while A schedule item No.5 was retained by Sri. Vasudeva Shenoy as his own share under the deed. Appellant concedes that she does not claim physical division of any of these three items since they have already :-12-:

become the assets of D20, the New Guna Shenoy Partnership Firm, of which Sri. Vasudeva Shenoy was a partner till his death.

6. Even otherwise also, she cannot claim division of partnership assets in so far as the instant suit filed is not for dissolution of the Firm. D20 Firm is an on going Firm which cannot be dissolved otherwise than by consent of all partners as already agreed upon in the deed of partnership. Appellant is not admittedly a partner of the Firm. Moreover, substantial portion of plaint A schedule items 9 and 10 was already sold by the Firm converting its assets into cash. What the appellant therefore advances with respect to plaint A schedule items 5, 9 and 10 is 1/3rd claim purportedly made by her as the representative of deceased partner (Sri.Vasudeva Shenoy) under Section 37 of the Indian Partnership Act, 1932 (for :-13-:

short, 'the Act') for such share of profit held by the deceased in the Firm since the date of death. That is how D20 Firm came to be made a party to the suit.

7. We are not concerned with plaint B schedule properties since concededly no relief is sought by the appellant in respect of these items.

8. Plaint C schedule items 1 to 4 are properties which appellant's grandfather Sri.Lakshmana Shenoy obtained under Ext.A2. He subsequently executed Ext.B3 registered Will on 30.06.1959 in favour of appellant's father, and his brother Sreenivasa Shenoy bequeathing these items to their joint share. After death of Sreenivasa Shenoy, his wife and children who are defendants 3 to 5 and 7 to 10 inherited the deceased. That is how they also ca