Kunj Behari Lal v. Ajodhia Prasad — 1946 DIGILAW 72 (ALL)

JUDGMENT Ghulam Hasan and Kaul, JJ. - Consequent on our order dated the 14th of January, l946 this case was fixed for determination of the question whether the appeal abated wholly or in part. A preliminary objection was taken by Mr. Hyder Husein, who appeared for the Respondents, that even if the appeal abated only against some of the Respondents, this appeal, as it arises out of a decree for accounts and partition of the partnership property, which necessitates the presence of all the parties interested before the matter can be determined, cannot be heard in the absence of some of the heirs and legal representatives of Mst. lmtiaz-unnissa, Chaudhri Athar Ali and Wasi Haider, who were arrayed as Respondents 11, 4 and 4 (f) respectively. In order to appreciate the full force of this objection it will be convenient to state a few facts relating to the litigation out of which the present appeal has arisen 2. On the 16th of September, 1922, one George Perfect who let out kolhus (sugarcane pressing machines) and karhais (pans for boiling sugarcane juice) on hire, sold his business to six persons. 1. Chaudhari Asghar Ali. 2. Lala Nem Das. 3. Lala Ajodbia Prasad. 4. Pandit Sita Kant Saran 5. Rajendra Singh and the present Appellant. 6. Kunj Behari Lal, for a consideration of two and a half lacs of rupees. Kunj Behari Lal's share in this business, which was sold as a running concern, was 7 annas in the rupee. A deed of partnership to which the six purchasers were parties was executed on the 23rd of September, 1922. It appears that scone after the execution of this deed of partnership there arose disputes among the partners; and on the 26th of March, 1923, in exercise of a powers conferred by the partnership deed under which any person whose conduct was prejudicial to the firm could be "expelled" by the other partners, Kunj Bebari Lal was "expelled". On the 5th of September, 1925, Kunj Bebsri Lal instituted a suit for a declaration that he was still a partner in the business, and prayed for dissolution of partnership. The trial Court granted the declaration asked for, but refused to dissolved the. partnership. On the 5th of September, 1925, Kunj Bebsri Lal instituted a suit for a declaration that he was still a partner in the business, and prayed for dissolution of partnership. The trial Court granted the declaration asked for, but refused to dissolved the. partnership. By a decree dated the llth of April 1928 (F.C.A. No. 84 of 1927), this Court on appeal varied the decree of the trial Judge and further held that the Plaintiff would continue to be a partner till the contribution made by him to the partnership fund was raid off. On the 5th of November, 1928, Kunj Behari Lal instituted the suit which has given rise to this appeal for rendition of partnership accounts and dissolution of partnership. Lala Ajodhia Prasad, Lala Nem Das, Thakur Rajendra Singh, Chaudhari Asghar Ali, and Pandit Sua Kant Saran, all those who were the Plaintiff's partners, and two others, Thakur Raghunath Singh and Pandit Kanhaiya Lal were imp leaded as Defendants to the suit. Subsequently Lala Dharam Das who had acquired a mortgage of half the interest owned by Chaudhari Asghar Ali was also added in the array of Defendants. Chaudhari Asghar Ali died during the pendency of the suit, and the names of his legal representatives, including among others his brother Chaudhari Athar Ali and his mother Mst. Imtiaz-un-nissa were substituted on the record. On the 14th of May, 1929, a preliminary decree for accounts and partition of the partnership property was passed. The Plaintiff was held entitled to a seven annas share in the rupee in partnership. One Khan Bahadur Mr. Mahmudul Hasan Kirmani, was appointed commissioner. (a) to prepare an account of the credits, property and effects belonging to the said partnership, and (b) to prepare an account of the debts and liabilities of the said partnership. 3. The decree further directed that actual partition of the partnership property be made by the commissioner under the direction of the Court after the settlement of accounts. Detailed directions as to the mode of taking accounts were given to the commissioner. Kunj Behari Lal appealed against the decision, and by a decree dated the 28th of January, 1930, the decree of the trial Court was modified in certain respects. Detailed directions as to the mode of taking accounts were given to the commissioner. Kunj Behari Lal appealed against the decision, and by a decree dated the 28th of January, 1930, the decree of the trial Court was modified in certain respects. The following observations made by this Court may be reproduced here with advantage: As far as we read the learned Judge's judgment he lias given the Plaintiff the correct repress, but he has in our opinion put certain modifications "which in themselves are almost impossible to carry into effect. He has given the Plaintiff a decree for partition of his share. There he was right. He has appointed a gentleman as Commissioner to work out this partition There again he was right. This gentleman is to take lull accounts of credits properties effects, debts, liabilities and from those accounts he has to work out the share of the Plaintiff in the good will and stock in trade and further his profits,. Further the Learned Counsel for the Plaintiff Respondent has asked us to afford some indication to the commissioner as to how he is to conduct the partition when the article on the face of it is incapable of being partitioned. He instanced the case of a steam engine. We do not think that it should present any difficulty. The Commissioner should in such a case make an estimate of the value of the engine. The remaining partners who are carrying on the going concern should then be given an opportunity of purchasing the engine at that value and the Plaintiff will receive his share of the sale proceeds. If they refuse to purchase it tie Plaintiff should be given an opportunity of purchasing it himself and he would then pay to the other side their share of the sale proceeds. If both sides refuse to purchase it the engine should be put to auction and the sale proceeds divided. It will always be open to the Plaintiff to object later as to what a right estimate has been made, The Commissioner will be wise to take the assistance of expert values in matters of this kind...we may note here that the rights to the perfect patent will remain with the remaining partners of the firm. for the purpose of partition a valuation" will be made of the privileges of the patent 4. for the purpose of partition a valuation" will be made of the privileges of the patent 4. Subsequently it appears that K.B. Mahmudul Hasan Kamari i was removed and on the 16th of April, 1932, on an application made by Defendant No. 1. Shiam Manohar an Advocate of Lucknow, was appointed receiver he was to take charge of the business, to value the stock and effects of the partnership, to collect all the income of the firm, incur the necessary expenses, maintain regular accounts and to submit a scheme for partition. B. Shiam Manohar was later appointed a Commissioner "to prepare the accounts as well". On the 29th of July 1932, Mr. Shiam Manohar submitted a scheme for partition. It appears that only few minor points in connection with the partition remained for decision by the Court. The Plaintiff's share in the partnership assets was delivered to him, but as the accounts of profits to which he was entitled during the period for which he was excluded from sharing them had not been made out, and it was believed that he would be entitled to a large sum of money in respect thereof, the Defendants agreed that the receiver might from time to time pay to the Plaintiff a part of his savings from the Income of the 9 annas share which was under discharge. These payments were to be made on account and were to be adjusted when the Plaintiff's shaft in previous years profit was finally determined and were to go towards the liquidation of the joint responsibility of 9 annas share-holders in this behalf. 5. The Plaintiff was up to the date of the gment of the trial Court paid a sum of (sic) 4,30,785-8-Q from the income of the (sic)srship by the receiver under the orders Court. The points relating to portion on which the parties were in controversy were decided by the trial Court and finally on the 9th of May, 1940, a decree for Rs. 10,188-2-1 was passed in favor of the Plaintiff against the Defendants. Future interest on this sum was to run at six per cent per annum till realization. 6. Dissatisfied with this decree the Plaintiff preferred the present appeal which he has valued at Rs. 10,188-2-1 was passed in favor of the Plaintiff against the Defendants. Future interest on this sum was to run at six per cent per annum till realization. 6. Dissatisfied with this decree the Plaintiff preferred the present appeal which he has valued at Rs. 1,00,000 approximately He challenged the decree of the trial Court both as regards the sum due to him on account of his share as well as in respect of the partition of the partnership property as affected by the trial Court. 7. Among the persons arrived an Respondents in this appeal were Chaudbari Athar Ali, and Mst. lmtiaz-un-nssa, two of the heirs of Chaudbari Asghar Ali, who was one of the original partners. Chaudhari Athar Ali died on the 13th of March, l941, and one of his daughters Riaz Fatima,. who was among his legal representatives was not made a party to the appeal, within the time allowed by law. Similarly Mst. Imtiaz-un-nissa died since the appeal was filed and her daughter Kaniz Fatima who was among her heirs and legal representatives was not made a party. Another person Wasi Haider who was impleaded as one of the legal representatives of Chaudhari Athar Ali on his death, died, and one of his heirs, Mst, Riaz Fatima was not made a party. We have rejected the application which was made long after these persons were dead, for bringing on record the names of Kaniz Fatima and Riaz Fatima, heirs of Imtiaz-un-nissa and Chaudhari Athar Ali respectively. It is not disputed that Riaz Fatima was also an heir of Wasi Haider, but the application which we disposed of by our order dated the 14th of January, 1945, did not ask for bringing her name on the record as one of his (Wasi Haiier's) legal representatives. 8. It is contended that this appeal cannot be determined in the absence of these persons from the array of parties. Mr. Hyder Husein who raised the objection contended that as a suit for account or an appeal arising there from, cannot be determined in the absence of any of the partners or parties interested, the present appeal was perfectly idle. It is contended that this appeal cannot be determined in the absence of these persons from the array of parties. Mr. Hyder Husein who raised the objection contended that as a suit for account or an appeal arising there from, cannot be determined in the absence of any of the partners or parties interested, the present appeal was perfectly idle. In support of his contention he has relied on Fazal Mohammad Khan v. Ali Mohammad Khan (1934) 11 O.W.N. 1487 where it was held that where an appeal in a partition suit abates as against a deceased Respondent under Order 22, Rule 4(3) real with Rule 11 of the Coda of Civil Procedure, and it is impassible to proceed with the appeal in the absence of the legal representatives of the deceased Respondent, the appeal abates in, toto. He further relied on the decision of their Lordships of the Judicial Committee in Raj Chuder Sen v. Gangadas Seal (1904) 31 I.A. 71 That was a suit in substance for taking accounts and winding up the affairs of a partnership which had subsisted between the Plaintiff and the several Defendants to the suit. There were complicated questions as to the respective relations of the parties inter se. These preliminary questions were disposed of by the subordinate Judge, and he there upon directed the accounts to be taken by a Commissioner. In the result a final decree was made by which it was ordered that a sun of Rs. 9,288 odd should be contributed in certain proportions by the Plaintiff (Appellant before their Lordships), the Defendants Ramgati Dhur and Bissumbhur Poddar, (Appellants in the connected appeal before their Lordships) and certain other parties and that out of that sum Rs. 1,740 odd should be paid to Abhoy Churn Chowdhary, one of the Defendants. The Defendants Ramgati Dhur and Bissumbhur Poddar and the Plaintiff respectively appealed to the High Court. The Defendant Abhoy Churn Chowdhry died and the name of his legal representative was not brought on the record within the time allowed by law. It was held by their Lordships in these circumstances that the appeals could not proceed in the absence of the representatives of Abhoy Churn Chowdhary and they were perfectly idle. The Defendant Abhoy Churn Chowdhry died and the name of his legal representative was not brought on the record within the time allowed by law. It was held by their Lordships in these circumstances that the appeals could not proceed in the absence of the representatives of Abhoy Churn Chowdhary and they were perfectly idle. Reference was also made to another decision of this Court in Mohammad Faruq v. Azizul Hasan 1935 O.W.N.401 which was an appeal in a suit for partition and was held to abate because the provisions of the Order 22, Rule 4 were not complied with. Our attention was further inserted to the following cases; Baboo Janokzy Doss v. Biniabun Doss (1880) 3 Moors I.A. 175 (196-7), Chuni Lal Tulsi Ram v. Amin Chand (1933) 14 Lah. 543 Dassumal Rmmrakhiomal v. Mahomed Bux Amir Bakhas AIR 1937 Sind 203 and Ambika Charan Guha v. Tarini Charan Chandra (1881) 19 I.C. 963, In the last mentioned case the Plaintiff brought a suit for anoints of a partnership of which he and the Defendants Nos. 1, 2, and 4 were the members, There was another partner who died after the partnership business cam? to an end, but before the suit was brought. Ha left two sons of which only one was originally imp leaded. Objection was taken in the written statement that the deceased partner was not properly represented. The other son of the deceased partner was not imp leaded till the period of limitation prescribed for such a suit had expired. It was held on these facts that a partnership suit must fail unless all the partners are made parties, and as one of the sons of the deceased partner was not imp leaded, the suit could not be determined. A similar view was taken in Paras Das v. Prem Ghand AIR 1945 Pat 456 and by a Bench of this Court in Hinga Lal v. Ahmad Ali Khan 1939 O.A. 622 : A.W.R. (CC) 105 : O.W.N. 711, In the last mentioned case R and G sued jointly on the ground that they had paid the whole revenue in respect of share and were entitled to recover it from the Defendant, another co-sharer. The suit was decreed in the first two courts and, the Defendant filed a second appeal. The suit was decreed in the first two courts and, the Defendant filed a second appeal. R died during the pendancy of the appeal but no application for substitution was made, it was held that as no presumption could be made in. respect of the amount paid by R, the appeal abated in its entirety. 9. It was argued by the Learned Counsel for the Appellant in reply that a preliminary decree for accounts and partition having already been passed no question of abatement arises. The rights of the parties according to his contention had to be worked out in accordance with the directions given in the preliminary decree. He strongly relied in support of his contention on the decision of the Lordship of the Judicial Committee in Lachmi Narain Marwari v. Balmukund Marwari (1925) 4 Pat. 61. That was a case in which the High Court on appeal made an order by consent for a partition upon certain terms and remitted suit to the Subordinate Judge for disposal under the decree. Upon the Plaintiff failing to appear on the day appointed by the Subordinate Judge for the matter to be proceeded with, he made an order dismissing the suit. He based his action upon Order XVII, Rule 2. It was held in these circumstances that the Subordinate Judge had no jurisdiction to make the order, since after a decree was made In a suit, the suit could not be dismissed unless the decree is reversed. Reference was made to a number of cases where this dictum of their Lordships was followed in India. We are clear that the observation made in that case have no relevance to the matter which arises for consideration before us. We are dealing with an appeal and not with a suit, and no question of the dismissal of any suit in which a preliminary decree has been passed arises before us. We have to deal with the application of Order 22, Rule 4 of the CPC read with Rule 11 of that order. It cannot be disputed that in the present appeal the right to sue did not survive against those Respondents alone whose names are already on the record, and as this appeal arises out of a suit for accounts and partition, which cannot be determined in the absence of all the parties interested, the appeal must fail. It cannot be disputed that in the present appeal the right to sue did not survive against those Respondents alone whose names are already on the record, and as this appeal arises out of a suit for accounts and partition, which cannot be determined in the absence of all the parties interested, the appeal must fail. The right to sue here means the right to prosecute the appeal. 10. The Appellant's Counsel cited the following cases also, bat as none of them deals with the case of an appeal where all the necessary parties were not on the record they have no application: Mt. Bhatia and Another Vs. Abdus Shakur and Others, AIR 1931 Patna 57 ; Raghunandan Sahu and Others Vs. Badri Pandey and Others, AIR 1945 Patna 380 ; Perumal Pillai v. Perumal Chetty A.I.R.1928 Mad. 914; Dawarali Jafarali Saiyad Vs. Bai Jadi and Others, AIR 1940 Bom 318 Abdul Gaffar v. Mohummad Haroon AIR 1933 Lah. 712; Mahadev Dattatraya Rajarshi Vs. Secretary of State for India, AIR 1930 Bom 367 Priya Bala Dassi v. Sarjubala Chaudharani AIR 1933 Cal 5407 and A.T.K.P.LM. Miuthiah Cheatyar v. Tha Zan Hla AIR 1933 Rang 318. 11. It was further argued on behalf of the Appellant that as the names of some of the legal representatives of Imtiazuuissa, Athar Ali and Wasi Haider are already on the record their estate should be deemed to be sufficiently represented, and the appeal ought not to be held to have abated. Reference in support of this contention was made to the decision of this Court in Mohammad Ata Husain Khan v. Husain Ali Khan 1944 A.W.R. (C.C.) 11: O.W.N. 37. That was a suit brought by some of the family heirs of Nawab Munawaruddaulah for a declaration that they had a right to a portion of the wasiqa to which he was entitled. The wasiqa was being dealt with by the Husainabad Trust which was founded by Act 15 of 1878 (the Husainabad Endowment Act). It appears that at the time Act 15 of 1878 was passed, Nawab Baqar Ali Nawab and Jafar Ali had bean receiving this wasiqa. Accordingly the Husainabad Trust continued to pay it to them. Nawab Baqar Ali died in 1921. On the death of Nawab Jafar Ali a suit was brought by some of the family heirs of Munawaruddaulah in 1934 for the declaration stated above. Accordingly the Husainabad Trust continued to pay it to them. Nawab Baqar Ali died in 1921. On the death of Nawab Jafar Ali a suit was brought by some of the family heirs of Munawaruddaulah in 1934 for the declaration stated above. The suit as originally laid was against only the three trustees of the Hasainabad Trust for accounting and money. Other Defendants were imp leaded under the orders of the Court on the 8th September, 1934. The trial Judge held that the Plaintiffs were entitled to their share of the wasiqa as claimed, but the suit was not maintainable because no certificate as required by Section 6 of the Pensions Act (23 of 1871) had been filed by the Plaintiffs. The suit was accordingly dismissed on this technical ground. The Plaintiffs then filed an appeal before this Court and produced a certificate as required u/s 6 of the Pensions Act, this Court thereupon allowed the appeal and sent back the case to the Court below for being tried de novo. After the case was decided an appeal was again preferred to this Court. A preliminary objection was taken to the hearing of the appeal. It was contended that this Abid Jehan Begam), daughter of Baqar Ali Khan, who was imp leaded as a Defendant in the trial Court, and was arrayed as Respondent No. 9 in the appeal, died, and of her heirs and legal representatives only the name of Fakhr Jehan Begam, who was already on the record as Respondent No. 5, was substituted. It was contended that as the names of her other heirs were not brought on the record the appeal abated. This contention was repelled. Their Lordships prefaced their discussion of this objection with the following remarks: Before proceeding any further in the case we shall deal with the preliminary objection. It has been argued at considerable length before us on the succeeds Kaniz Fatima and Riaz Fatima not being parties to it would not be affected by its result. The only decree binding upon them would be that passed by the trial Court. It has been argued at considerable length before us on the succeeds Kaniz Fatima and Riaz Fatima not being parties to it would not be affected by its result. The only decree binding upon them would be that passed by the trial Court. If the appeal succeeds and the Plaintiff is granted a decree say for one lac of rupees or more, and it is realized from any one of the heirs of Imtiazunnisa or Athar Ali or Wasi Haider, such heir would not be entitled to claim contribution in respect of the sum paid by him to the decree-holder from Kaniz Fatima, or Riaz Fatima. We are clear that the theory of representation of the estate of a deceased Respondent by one of her heirs, which was a ground of decision in certain cases cited by the Learned Counsel for the Appellant has no application to a case like this. Among the numerous authorities cited by the Learned Counsel for the Appellant there were some which dealt with the application of Order 22, Rule 10 of the Code of Civil Procedure. They have no application to the case before us. The present is a case in which devolution of interest has taken place by death and so Order 22, Rule 10 of the CPC has no application. 12. Lastly it was prayed by the Appellant that the Court might have added these persons, Kaniz Fatima and Riaz Fatima, as parties in exercise of its own powers under Order 1, Rule 10(2) of the Code of Civil Procedure. We are clear that in view of our order dated the 14th of January, 1946, the present cannot be regarded as a fit case in which we should exercise our powers under Order 1 Rule 10(2) of the CPC even if those provisions were applicable. 13. At the close of his arguments the Appellant's Counsel suggested that if the issues relating to the partition of the partnership property cannot, in the opinion of the Court, be decided in the absence of Kaniz Fatima and Riaz Fatima, he might be permitted to withdraw the grounds of appeal (Nos. 14 and 15) which related to that matter. 13. At the close of his arguments the Appellant's Counsel suggested that if the issues relating to the partition of the partnership property cannot, in the opinion of the Court, be decided in the absence of Kaniz Fatima and Riaz Fatima, he might be permitted to withdraw the grounds of appeal (Nos. 14 and 15) which related to that matter. The Learned Counsel was not prepared to withdraw these grounds unconditionally and accordingly we cannot act upon such a request, but even if we were inclined to accede to it, it would not affect the result of the appeal. According to the law an appeal in a suit for settlement of partnership accounts only could also not be determined in the absence of any of the partners. 14. Having given the arguments of the Learned Counsel for the Appellant our care basis of certain decision, but we do not think it is necessary to spend much time upon it, partly because we think that the appeal must fail for other reasons, and partly because we think it is clearly untenable." 15. Their Lordships further observed that in the case before them the interests of the Defendants were not inseparable, nor were they of opinion that there would be any difficulty in executing the decree in case the appeal succeeded. The following observations from their decision are of importance. Supposing that the appeal abated against Abid Jahan Begam so that her legal representatives would have a decree in their favour which the other Defendants would not, then if she were drawing any portion of the wasiqa before payment was stopped by the trustees in anticipation of this suit, that share would be secured to her heirs. Pro Tanta the shares claimed by the Plaintiffs would be ratably reduced. The decree so far as it affected the interests of the other Defendants would remain in force. We think, however, that the presence of Fakhr Jehan Begam, the mother and one of the legal representatives of Abid Jehan Begam as Respondent No. 6, is sufficient to save abatement as regard any of these legal representatives. 16. Though the opinion expressed by their Lordships is entitled to great weight, it is clear that the observations were arbiter as the appeal failed on the merits. 16. Though the opinion expressed by their Lordships is entitled to great weight, it is clear that the observations were arbiter as the appeal failed on the merits. It was further found in that case that there would be no difficulty in executing the decree if the appeal succeeded. That was not a case of an appeal in a suit for partition and accounts of any partnership property where the presence of all the partners is necessary for a proper determination of the suit. We are satisfied that the decision in that case can be of no assistance in determining the question we have to decide. 17. Another argument put forward by the Learned Counsel for the Appellant was that in the case before us really there were only two parties, Kunj Behari Lal Appellant on the one side and the remaining partners, who had expelled him, on the other. He argued that in such a case the general rule applicable to a suit for accounts and partition of partnership property, which necessitates the presence of all the partners for its determination does not apply. We are unable to accept this contention. Here a money decree has been passed jointly against all the Defendants. If Kunj Bshari Lal realizes the entire decrial amount from one Defendant he will have a right to contribution against others. The decree passed by the trial Court is for Rs. 10,188-2-1. The present appeal is valued at "Rs. 1,00,000 approximately". If the appeal succeeds Kaniz Fatima and Riaz Fatima not being parties to it would not be affected by its result. The only decree binding upon them would be that passed by the trial Court. If the appeal succeeds and the Plaintiff is granted a decree say for one lac of rupees or more, and it is realized from any one of the heirs of Imtiazunnisa or Athar Ali or Wasi Haider, such heir would not be entitled to claim contribution in respect of the sum paid by him to the decree-holder from Kaniz Fatima, or Riaz Fatima. We are clear that the theory of representation of the estate of a deceased Respondent by one of her heirs, which was a ground of decision in certain cases cited by the Learned Counsel for the Appellant has no application to a case like this. We are clear that the theory of representation of the estate of a deceased Respondent by one of her heirs, which was a ground of decision in certain cases cited by the Learned Counsel for the Appellant has no application to a case like this. Among the numerous authorities cited by the Learned Counsel for the Appellant there were some which dealt with the application of Order 22, Rule 10 of the Code of Civil Procedure. They have no application to the case before us. The present is a case in which devolution of interest has taken place by death and so Order 22, Rule 10 of the CPC has no application. 18. Lastly it was prayed by the Appellant that the Court might have added these persons, Kaniz Fatima and Riaz Fatima, as parties in exercise of its own powers under Order 1, Rule 10(2) of the Code of Civil Procedure. We are clear that in view of our order dated the 14th of January, 1946, the present cannot be regarded as a fit case in which we should exercise our powers under Order 1 Rule 10(2) of the CPC even if those provisions were applicable. 19. At the close of his arguments the Appellant's Counsel suggested that if the issues relating to the partition of the partnership property cannot, in the opinion of the Court, be decided in the absence of Kaniz Fatima and Riaz Fatima, he might be permitted to withdraw the grounds of appeal (Nos. 14 and 15) which related to that matter. The Learned Counsel was not prepared to withdraw these grounds unconditionally and accordingly we cannot act upon such a request, but even if we were inclined to accede to it, it would not affect the result of the appeal. According to the law an appeal in a suit for settlement of partnership accounts only could also not be determined in the absence of any of the partners. 20. Having given the arguments of the Learned Counsel for the Appellant our careful consideration we are satisfied that this appeal cannot be proceeded with on account of the Appellant's failure to have all the necessary parties on the record. We therefore, dismiss it with costs.