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WICKRAMASURIYA et al. v. DE SILVA et al.
NLR39V573
1937 Present
: Hearne J. and Fernando A.J.
WICKRAMASURIYA et al. v. DE SILVA et al.
16-D. C. Colombo, 5,165.
Partnership-Agreement for an indefinite period-Terminable at will-Notice of
termination-Service of summons in partnership action.
Where, according to the terms of a partnership deed, the partnership was to
continue after the death of a partner as a partnership among the heirs of the
deceased partner and the surviving partners,-
Held, that the partnership created by the deed was one for an indefinite period
and was therefore terminable at will.
A partnership at will may be terminated by notice.
Service of summons in an action for dissolution of the partnership amounts to
such notice.
APPEAL from a judgment of the District Judge of Colombo.
N. E. Weerasooria
(with him Gratiaen and J. A. T. Perera), for first defendant, appellant.
H. V. Perera, K.C. (with him D. W. Fernando), for plaintiffs, respondents.
N. K. Ghoksy, for second to sixth defendants, appellants.
Cur. adv. vult.
July 30, 1937. FERNANDO A.J.-
The plaintiffs brought this action for a dissolution of the partnership existing
between them and the first defendant, and constituted by the agreement P 6 dated
July 2, 1933, and they complained that the first defendant had done certain acts
which made it impossible for the plaintiffs to continue the partnership business
with the first defendant, and that such conduct was in terms of section 35 D of
the Partnership Act of 1890 calculated to affect the carrying on of the
business, and that circumstances had arisen which rendered it just and equitable
that the partnership should be dissolved. They alleged that due notice had been
given to the first defendant of the fact that the said business should be
dissolved. They prayed that pending the dissolution the plaintiffs be authorized
to carry on the business or in the alternative that the first plaintiff be
appointed receiver for the beneficial winding up of the business. The first
defendant filed answer alleging that on account of certain acts done by the
first plaintiff, the first plaintiff was not entitled to an order for the
dissolution of the partnership, and he prayed that plaintiff's action be
dismissed, for an injunction restraining the first plaintiff from carrying on
the business, and that the first plaintiff be ordered to render an account to
the first defendant.
When the case came on for trial, a number of issues was framed, and the learned
District Judge after framing the issues, and after some discussion on certain of
these issues, decided to try the issues set out by him at page 49 of the type
written copy of the record. He held that the partnership subsisting at the time
of the action was the partnership
created by deed P 6. On issues 2 and 3 he held that the partnership was duly
registered, and that the plaintiffs could maintain the action. On issues 5, 6,
and 7 he held that the deed P 6 created a valid fidei commissum under which a
seven-ninths share of the business passed to the donees, subject to the
life-interest of the first plaintiff, and subject to certain other conditions
recited in that deed. He also held on issue 15 F that the partnership created by
deed P 6 was a partnership for an undefined period, and therefore, a partnership
at will. He then held on issues 15 B and 15 c, that the plaintiffs were entitled
to a dissolution of the partnership as from the date of the service of the
summons in this action on the first defendant, that is to say, as from June 10,
1936, and accordingly entered judgment for the plaintiffs declaring that the
partnership shall be deemed to have been dissolved as from June 10, 1936,
ordering an account to be taken on that footing, and also a sale of the assets
of the partnership. He also appointed the first plaintiff receiver for the
purpose of winding up of the business.
The first defendant appeals against this orde
