Death of a partner dissolves a partnership unless legal heirs express desire to continue; injunction against co-heir not permissible.

JUDGMENT

This second appeal is directed as against the judgment and decree dated 26.06.2003 passed in A.S.No.11 of 2003 by the learned Additional District Judge, Pondicherry, confirming the judgment and decree dated 30.01.2003 passed in O.S.No.121 of 2001 by the learned Principal Subordinate Judge, Pondicherry.

2. For the sake of convenience, the parties are referred to as per their ranking in the trial Court.

3. The case of the plaintiff in brief is as follows :-

3.1. The suit is filed for permanent injunction. The plaintiff and the defendant are brothers. Their father had been running a wine shop in the premises situated at R.S.No.2/1, Villupuram Main Road, Hadagadipet, Pondicherry. Thereafter, their father entered into a partnership with the plaintiff to run the liquor shop under the name and style of “Reagan Wines” and got it registered with Registrar of Firm in No. 187/97 dated 08.07.1997. According to the partnership deed, the plaintiff would be entitled to 75% of the profit and his father would entitle to 25% of the profit. Their trade license stands in the name of the plaintiff. While being so, on 03.02.2001, his father met with a road accident and died on 07.02.2001. He died leaving behind his two sons viz., the plaintiff and the defendant and his wife and four daughters. On the demise any one of the partner, their respective legal heirs would step into the shoes of the partners. Accordingly, the defendant is entitled to have 1/7 share out of 1/4 share of their father, in the partnership firm. However, the plaintiff alone had been running the said business by raising loan from the third parties and purchased stock on credit to improve the business. While being so, on 11.03.2001, the defendant along with henchmen attempted to trespass into suit property and threatened to thrown out the plaintiff from the business premises. Hence the suit.

4. Per contra, the defendant by resisting the same filed written statement by stating that his father never entered into partnership with the plaintiff. The entire businesses are joint family property conducted in the name and style of “Reagan Wines” as such all the legal heirs of the deceased father have their respective equal share. During his life time, the business was run with the help of the plaintiff and the defendant. Therefore, no point of time, the plaintiff was alone operated the business that too with the 75% share of the wine shop. Further stated that one co-sharer cannot restrain another co-sharer from interfering with the joint business by way of injunction and prayed for dismissal of the suit.

5. On the side of the plaintiff, he examined P.W.1 to P.W.4 and were marked Ex.A.1 to Ex.A.20. On the side of the defendant, he examined D.W.1 & D.W.2 and were marked Ex.B.1 to Ex.B.17. The witness document was marked as Ex.X.1. On perusal of the material produced on record and on considering both the oral and documentary evidence adduced by the respective parties and also the submissions made, the trial Court dismissed the suit filed by the plaintiff. Aggrieved by the same, the plaintiff preferred an appeal suit in A.S.No.11 of 2003 before the III Additional District Judge, Pondicherry, and the first appellate Court also dismissed the appeal by confirming the judgment and decree passed by the trial Court. Aggrieved by the same the plaintiff filed this present second appeal.

6. At the time of admission of this second appeal on 15.09.2003, the following substantial questions of law were formulated for consideration:-

"1. Whether the Courts below were right in refusing the decree for injunction in favour of the plaintiff when