Judgment :- 1. This is a plaintiff's appeal from a suit for partition of property and an account of its income which has been dismissed by the courts below on the ground of limitation. 2. Joseph (predecessor-in-interest of the plaintiffs and defendant 5), Thiyyo and defendants 1 to 4 entered into a partnership under an agreement which was registered as document No. 2416 of 1119 of the Kadungalloor Sub-Registry. Thiyyo assigned his share to defendants 2 to 4 and thereafter they and Joseph continued the partnership. Joseph died on May 11, 1960 when the partnership dissolved. The only asset of the firm is the land with a building scheduled to the plaint. The plaintiffs who were supported by the 5th defendant alleged that as a result of the dissolution of the firm, the property belongs to them and defendants 1 to 4 jointly as co-owners and that defendants 1 to 4 were collecting the profits from the property and either using the rooms in the building or renting them out. Since May 15,1960 they had been misappropriating the entire profits, without sharing anything with the plaintiffs and defendant 5. The plaintiffs accordingly claimed a division by metes and bounds of the suit property and an account of its income. 3. So far as relevant, defendants 1 to 4 contended that the plaintiffs have no right to the property or its profits and that they were disentitled from asking for the accounts of the partnership. They further maintained that their rights if any, in this regard were barred by limitation. 4. In the trial court the plaintiffs sought an amendment of the plaint so as to include an averment that after the death of Joseph defendants 1 to 4 continued the partnership business and that the plaintiffs (including defendant 5) were entitled riot only to a partition of the suit property but also to an account of the business which was carried on by defendants 1 to 4 after 15 51960. The reliefs claimed in the plaint were also sought to be amended on the above basis. The application was allowed by the Sub-Judge but it was dismissed by this Court in C.R.P. 1551 of 1969. 5. The reliefs claimed in the plaint were also sought to be amended on the above basis. The application was allowed by the Sub-Judge but it was dismissed by this Court in C.R.P. 1551 of 1969. 5. In the course of the arguments in he trial court the plaintiffs sought to raise an argument based on S.37, Partnership Act on the footing that after 15-5-1960 defendants 1 to 4 were carrying on the business of the firm and as there has been no settlement of accounts they were liable to render account. The court however held that this approach was contrary to the plaint that the partnership had come to an end on 15-5-1960 and could not therefore be countenanced. There was an alternative contention that collection of usufructs and rent from the suit property of which partition was sought was also a business of the firm so as to attract S.37; but the court found that this was borne out neither by the plaint nor by the evidence. The court nevertheless recorded its view that even if the plaintiffs' claim came within S.37, still the suit which was brought 3 years after Joseph's death was barred by limitation. It finally held that the partnership stood dissolved on 15-5-1960, and that the suit which was brought only in 1966, was clearly out of time under Art.106 of the Limitation Act (really it should have been Art.5 of the Limitation Act of 1963). The suit was dismissed with costs. 6. The appellate court came to the conclusion that even before 15-5-1960, the grocery trade, which was the partnership business, had come to an end that the partnership itself had determined on 15-5-1960, if not earlier, that the plaintiffs have no right merely to demand a partition and recovery of the suit property, that the suit in essence is for realisation of the net assets and recovery of their share therein in other words a suit for accounts and share of the dissolved partnership and that it was therefore barred under Art.5 of the Limitation Act. In this view the court dismissed the appeal. 7. Now Joseph died on May 15,1960 and there being no evidence of any contrary contract even the partnership deed has not been produced the firm stood dissolved as from that date by virtue of S.42 (c), Partnership Act, a result which is admitted in the plaint itself. In this view the court dismissed the appeal. 7. Now Joseph died on May 15,1960 and there being no evidence of any contrary contract even the partnership deed has not been produced the firm stood dissolved as from that date by virtue of S.42 (c), Partnership Act, a result which is admitted in the plaint itself. The plaint proceeds on the footing that the suit property which is an item of partnership asset was thereafter held by the plaintiffs and defendants jointly and that they are entitled to partition and separate possession of their 1/5 share (which had devolved on them as Joseph's heirs) with an account of the profits. The partners or the ex-partners have no such rights and the plaint proceeds on wrong premises; for neither during the existence of the partnership nor after its dissolution are partners co-owners or joint owners of the partnership assets. "No doubt, since a firm has no legal existence, the partnership property will vest in all the partners and in that sense every partner has an interest in the property of the partnership." "During the subsistence of the partnership, however, no partner can deal with any portion of the property as his own. Nor can he assign his interest in a specific item of the partnership property to anyone. His right is to obtain such profits, if any, as fall to his share from time to time and upon the dissolution of the firm to a share in the assets of the firm which remain after satisfying the liabilities set out in Cl. (a) and sub-Cls. (i), (ii) and iii) of cl. (b) of S.48." (Narayanappa v. Bhaskara Krishnappa„ AIR. 1966 SC. 1300 at 1303). The position as explained by Lindley on Partnership is worth reading the following relevant passage has been quoted with approval in the above decision: "What is meant by the share of a partner is his proportion of the partnership assets after they have been all realised and converted into money, and all the partnership debts and liabilities have been paid and discharged. This it is, and this only which on the death of a partner passes to his representatives, or to a legatee of his share and which on his bankruptcy passes to his trustee." The assumption of the plaintiffs that they or indeed Joseph and the defendants were joint or co-owners and that they could seek a mere partition and recovery of the property in proportion to the interest in the partnership is erroneous. The firm having dissolved, their right was only to seek a settlement of accounts and claim a share in the assets after satisfying the debts and liabilities of the firm. The suit, so far as it involves such a settlement, is clearly time-barred under Art.5 of the Limitation Act 1963, which allows only 3 years from the date of dissolution for a suit "for an account and a share of the profits of a dissolved partnership." In this view the appeal must fail. 8. The appellants however seek to put their cases under S.37, Partnership Act, contending that if it falls within that Section, there is no limitation. The contention of the appellants is that as long as the surviving or continuing partners make use of the partnership assets, there is a continuous cause of action in favour of the legal representatives of the deceased partner or of the outgoing partner. Now the Section postulates that there was no settlement of accounts, before a claim for share of the profits can be made. Art.5 which corresponds to Art.106 of the 1908 Limitation Act comprehends a suit out only for account but for share of profits of a dissolved partnership the position in the case of a continuing partnership must be different and the suit must be commenced within 3 years form the date of dissolution. Art.5 in terms takes in a suit for share of profits of a dissolved partnership and S.37 itself speaks of "share of the profits". The plaintiffs admit and that is the very basis of the suit that the partnership was dissolved and I do not see how they could escape the clutches of Art.5. 9. In Musammat Jatti v. Banwari Lal, AIR. 1923 P.C.136, the appellant who was the widow of Rup Chd a partner who died in 1905, raised a suit in 1914 against the remaining partners, claiming accounts and payment of one-third of the partnership assets. 9. In Musammat Jatti v. Banwari Lal, AIR. 1923 P.C.136, the appellant who was the widow of Rup Chd a partner who died in 1905, raised a suit in 1914 against the remaining partners, claiming accounts and payment of one-third of the partnership assets. One of the defences put up was limitation under Art.106 and upholding this defence, the Privy Council observed at page 138: "On the death of Rup Chd, the plaintiff's husband, the partnership was dissolved and a right to an accounting arose. But Rup Chd died in 1905, and this suit was not raised until 1914. It is, therefore time-barred as a suit for such an accounting.' 10. S.37 was not then in force and the Contract Act contained no corresponding provision but the law stated in the Section prevailed even before its enactment, for it is but a particular application of the general equitable principle that a person in a fiduciary position must account to the beneficiary for profits made by him, which underlies S.88, 90 and 95 of the Indian Trusts Act. Despite the absence of any specific reference to that effect in the Privy Council judgment, it is obvious that the plaintiff's suit for share of the assets was grounded on the above principle, and the decision is therefore important as applying Art.106 to such a suit. 11. A case in which relief claimed by the legal representatives of a former partner was considered with reference to S.37 is provided by Peeran Sahib v. Jamaluddin Sahib, AIR. 1958 A. P. 48, Subba Rao C. J. who gave the decision of the bench found that the partnership had dissolved and that the plaintiffs who were legal representatives of the partner had not been admitted as partners and that they could rest their case only under S.37. The suit was filed 3 years after the death of the partner and the learned Chief Justice observed: "The plaintiff's relief conceived as one and made under S.37 is for an account and for a share In the profits of a dissolved partnership. To such a suit, Art.106 directly applies. If so, there is no scope for invoking the residuary article." 12. In this view the learned Chief Justice held that the relief which related to the partnership assets was barred by limitation. One of the decisions followed in this case was AIR. 1923 P. C. 136. 13. To such a suit, Art.106 directly applies. If so, there is no scope for invoking the residuary article." 12. In this view the learned Chief Justice held that the relief which related to the partnership assets was barred by limitation. One of the decisions followed in this case was AIR. 1923 P. C. 136. 13. In Gopi Nath v. Satish Chandra, AIR. 1964 Allahabad 53, Asthana J. followed AIR. 1958 A.P.48 and an earlier decision of the Allahabad High Court in Kashi Ram . Kundan Lal, AIR. 1956 Allahabad 660 and observed: "Article 106 of the Limitation Act prescribes the limitation for any suit for rendition of accounts of a dissolved partnership and it will govern a suit even by a representative of a deceased partner against the surviving partners who hold the assets in a fiduciary capacity." 14. As against these decisions, Counsel for the appellants relied upon a few cases to which I must now turn. The most important of them is Nagaranjan v. Robert Hotz, AIR. 1954 Punjab 278. The appellant and one Pook carried on a business in partnership from 1 11941 till 26-4-1943; when Pook died. The appellant however continued to carry on the business even after Pook's death and there was no settlement of accounts. Later the administrator of Pook's estate brought a suit praying for a declaration of the dissolution of the firm and a decree for rendition of the accounts. It was found that the appellant was using the partnership assets and even the prof its due to Pook which remained in his hands, after Pook's death. After holding that the suit, which was for accounts for Pook's share of the profits of the firm, was competent under S.37 the learned judges considered the question of limitation. They held that Art.106 only applied to the claim for the period between 111941, the date when the partnership came into existence and 26 41943 when the partnership was dissolved on Pook's death and that Art.106 did not apply to the period subsequent to the death of Pook. The reason for the exclusion of this latter claim from limitation was that as the firm Was dissolved, the accounting was not of partnership accounts but under the provisions of S.37. The reason for the exclusion of this latter claim from limitation was that as the firm Was dissolved, the accounting was not of partnership accounts but under the provisions of S.37. It was further observed that the cause of action continued from day to day and as long as the business continued the firm continued to make profits and that the plaint in was entitled to claim Pook's share in the profits. For this view the learned judges placed reliance on a few decisions. Of these no point of limitation was involved or considered in Lachhmi Narain v. Beni Ram AIR. 1931 Allahabad 327. In Ahinsa Bibi v. Abdul Kader Saheb, ILR. 25 Madras 26, the question of limitation was involved and inorder to appreciate the ratio decidendi, the relevant facts have to be noticed. In 1885 five persons commenced a partnership business. In 1890, Pacha Mean one of the partners died and surviving four partners continued the partnership till 1891 when one of them, Chanda Mean died. Thereafter the remaining three continued to carry on the business in partnership. In 1898, the legal representatives of Chanda Mean instituted the suit against the surviving partners and the representatives of the deceased partner for an account and for a share of the profits of the partnership which was formed in 1890, on the death of Pacha Mean and dissolved in 1891, on the death of Chanda Mean. The third plaintiff was a minor at the date of suit. One of the grounds of defence was that the suit was barred by limitation. On this question Bhashyam Ayyangar J. observed that the suit being really one for an account and a share of the profits of the partnership which was dissolved by the death of Chanda Mean in August 1891 with subsequent interest thereon, the article applicable to the case was Art.106 of the Limitation Act. The learned judge then examined the question whether the starting point of limitation was the death of Pacha Mean or Chanda Mean and in the course of the discussion pointed out that with the death of the former the partnership was dissolved and that when the surviving partners carried on the business, they did so as a new partnership investing therein as capital the respective snares of the surviving partners in the profits of the dissolved partnership. It was then pointed out that as the surviving partners had dispensed with the taking of an account of the profits of the dissolved partnership, when they continued the business of the dissolved partnership, in a suit for an account and share of the profits of the new partnership which dissolved in 1891 by the death of Chanda Mean, it will be necessary incidentally to take an account of the profits of the old partnership which was dissolved by the death of Pacha Mean in 1890, merely for the purpose of ascertaining the capital contributed to the new partnership by each of the four partners. Then it was observed: "The present suit is brought by the plaintiffs for an account and a share of the profits of the partnership which was formed in August 1890 and was dissolved in August 1891, and it cannot be regarded, within the meaning of Art.106, as a suit in part of an account a share of the profits of the partnership which was dissolved in August 1890 on the death of Pacha Mean." 15. It is the head note based on this passage that has been extracted and followed in AIR. 1954 Punjab 278 (281). After the above passage Bhashyam Ayyangar J. went on to point out that this very question was decided by the Court of Appeal in Betjemann v. Betjemann, (1895) 2 Ch. 474, holding that when a partnership is determined by death and the surviving partners continue to carry on the business, the statute of limitation was no bar to taking the accounts of the new partnership by going into the accounts of the old partnership which have been carried on into the new partnership without interruption or settlement. In this view the learned judge disagreed with the decision of the trial court that the suit not having been brought within three years from the death of Pacha Mean, was barred by limitation. It is thus obvious that what the learned judge held was that there was no limitation in going into the accounts of the old partnership in order to find what has been carried into the new partnership for taking the accounts of the latter. It is thus obvious that what the learned judge held was that there was no limitation in going into the accounts of the old partnership in order to find what has been carried into the new partnership for taking the accounts of the latter. With great respect, neither the above passage nor the head note, supports the proposition that there is no limitation for settlement of the accounts and share of profits by the representative of a deceased partner, for which the head-note has been quoted in AIR. 1954 Punjab 278. This is further clear from the fact that the Madras High Court applie9 Art.106 although it was held that the suit was within time being saved by S.6 and 7 of the Limitation Act as one of the representatives of Chanda Mean the third plaintiff was a minor. This aspect was the subject of the second head-note, which the Punjab High Court had obviously overlooked. I must also mention that in AIR. 1958 A.P. 48, Athinsa Bibi's case, I.L.R.25 Madras 26 has been relied upon for the view that the starting point for the period of limitation for a suit for an account and for recovery of his share of the profits by a legal representative of a deceased partner was the date of his death and that such a suit was governed by Art.106 of the Limitation Act. Abdul Jaffar Sahib v. K. Venugopal Chettiar, AIR. 1924 Madras 708, another case followed in AIR. 1954 Punjab 278, did not consider the question of limitation for settlement of accounts of a dissolved partnership; it merely held following I.L.R. 25 Madras 26 that if the remaining partners continue the business, then for the purpose of ascertaining what shares they brought into the new partnership, an account may be taken of the old partnership and there will be no question of limitation in such a case for that account is taken not for enforcing the claim to money due as profits in that partnership. This decision again lends no support to the proposition laid down in AIR. 1954 Punjab 278. Nilmadhab Nandi v. Srimati Nirada Sundari Dasi, 45 C. W. N. 1065, unlike the other cases, supports the decision in AIR. This decision again lends no support to the proposition laid down in AIR. 1954 Punjab 278. Nilmadhab Nandi v. Srimati Nirada Sundari Dasi, 45 C. W. N. 1065, unlike the other cases, supports the decision in AIR. 1954 Punjab 278 for it held after referring to S.37 that "The right thus given to the legal representative of a deceased partner is not a right to a share of the profits of a dissolved partnership within the meaning of Art.106 of the Limitation Act, but is a right accruing to him by the subsequent dealing with the assets belonging to the deceased partner." 16. On this review I differ, with great respect, from the law laid down in AIR. 1954 Punjab 278 following Nilmadhab Nandi v. Srimati Nirada Sundari Dasi, 45 C.W.N. 1065. The other cases followed in AIR. 1954 Punjab 278 do not provide any support to what the learned judges laid down: of them Athinsa Bibi's case, ILR. 25 Madras 26, definitely declares the law to a contrary effect and that has been followed in AIR. 1924 Madras 708. AIR. 1954 Punjab 276 makes no reference to AIR. 1923 P. C.136. In this state of the authorities I prefer to follow AIR. 1958 A.P. 48 and the other cases mentioned earlier to that effect. 17. Two other authorities Daitari Mohapatra v. Brundaban Matia, AIR 1959 Orissa 110, and Abdul Samad v. Madarsa Rowther, AIR. 1959 Madras 440 cited by the appellants' counsel have no bearing on the questions involved in the appeal and require no discussion. 18. I agree with the courts below that the suit is barred by limitation and dismiss the appeal with costs. Dismissed.