JUDGMENT B.D. Agarwal, J. - These connected appeals arising out of U. S. No. 487 of 1983 instituted in the court of Civil Judge, Agra give rise to common questions of facts and law and are being disposed of together. 2. The following pedigree serves to elucidate the relevant facts. 3. Adi Ram Singbal had for long, been in the business of milk dairy. On November 1. 1958 he formed a partnership firm in the name and style of Singhal Daiq with his son Krishna Swarup (hereafter referred to as the respondent). The firm was registered on December 26, 1958. The share of Adi Ram was agreed to be IQ Annas in the rupee and the respondent the remaining 6 Annas share. The firm was engaged in selling: milk, butter and ghee. By another agreement of partnership entered into on February I. 197(1 the share of Adi Ram was specified as 63p. and the share of the respondent was specified as 37p. The firm resolved to confine itself to sell milk. The business relating to the manufacture of butter and ghee was allocated to another partnership constituted in the name of Singhal Dairy (Butter) comprising of Smt. Mohani Devi (wife of Adi Ram Singhati and their daughter Smt. Shashi Rani. 4. Later respondent dissociated himself from the partnership. It was dissolved with effect from January 31. 1971. The accounting also took place and the amount found due to the respondent was paid to him. On February 5, 1971. Adi Ram Singhal entered into another partnership agreement with his son-in-law, namely Suresh Chandra and the daughter Smt. Saroj Rani. The share of the parties in the profit and loss of the firm was allocated as 55 p. to Adi Ram 30 p. to Suresh and 15 p. to Smt. Saroj Rani who invested a sum of Rs. 10,000/-. The partnership was at will. On February 26, 1970 Adi Ram executed a registered will which, however, was kept under the sealed cover. 5. Adi Ram died on May 16. 1983. His wife had predeceased having died on March 28. 1982. The will made by Adi Ram was opened on August 20. 1983. Dispute arose between the parties. Suresh Chandra and Smt. Saroj Rani instituted 0. 5. Adi Ram died on May 16. 1983. His wife had predeceased having died on March 28. 1982. The will made by Adi Ram was opened on August 20. 1983. Dispute arose between the parties. Suresh Chandra and Smt. Saroj Rani instituted 0. S. No. 338 of 1983 in the Court of Munsif Fatehabad at Agra on September 1983 claiming injunction against the respondent preventing him from interference with the plaintiffs in running the business of Singhal Dairy (Milk) of which they had been partners along with Adi Ram deceased and an ad interim injunction was issued therein by the trial court on September 5, 1983. This was followed by 0. S. No. 487 of 1983 brought by the respondent in the court of Civil Judge, Agra. on September 8. 1983, against Suresh Chandra, Smt. Saroj Rani and Smt. Shashi Rant. The respondent alleged that in terms of the partnership agreement entered into by his father of February 5. 1471 he was to he deemed a partner in that firm on his death and that he had also communicated his desire to become a partner on coming to know of the said partnership deed. There was no response from the side of the defendants whereupon he dissolved this partnership at will by his telegram dated September 6. 1983. It was asserted that he has share in the firm to the extent of 68.05 p. Relief claimed is that the defendants be directed to render account and pay to the plaintiff such amount as is found due to him. 6. An application for temporary injunction was also made by the respondent in O. S. No. 487 of 1983 above mentioned to restrain the defendants from carrying on the business of the firm. The injunction was granted by the Civil Judge under order dated September 9. 1983 in his favour. On an application made by the defendants under S. 24. C. P. C.. both the suits Nos. 338 of 1983 and 487 of 1983 were transferred by the District Judge on September 13, 1983 to the Court of First Additional Civil Judge. Agra, for disposal. The First Additional Civil Judge on an application made for review from the side of the defendants vacated the interim order dated 9-9-1983 and directed that the application for temporary injunction might be reheard. This order passed by him is dated September 27. 1983. Agra, for disposal. The First Additional Civil Judge on an application made for review from the side of the defendants vacated the interim order dated 9-9-1983 and directed that the application for temporary injunction might be reheard. This order passed by him is dated September 27. 1983. The respondent has preferred First Appeal From Order No. 918 of 1983 against this order dated September 27. 1983 whereby the earlier order dated 9-9-83 was recalled upon review. 7. The respondent also made an application under O. 40 R. I. C. P. C., for the appointment of Receiver to manage and run the partnership business in O. S. No. 487 of 1983. The application was opposed by the defendants. On September 27. 1983 the First Additional Civil Judge, Agra. agreed on principle to appoint a Receiver in the matter. Against this order, the defendants preferred First Appeal From Order No. 738 of 1983 in this court. The question relating to the appointment of the Receiver was further considered by the trial court on October 10. 1983. Defendant 1. namely Suresh Chandra was required to furnish guarantee to ensure monthly average income in the business and time was granted to him for this purpose. This was followed by the ultimate order made on November 19. 1983 whereby Suresh Chandra. defendant 1. has been appointed Receiver on furnishing guarantee that during the period when he is the Receiver. the firm will continue to earn on average Rs. 39.722.5) p. per month. failing which he shall he liable personally to make good the deficiency and further that if this target was not achieved the deficiency might he realised from him personally or from his assets. Against this order dated November 19. 1483. Suresh Chandra and Smt. Saroj Rani have preferred First Appeal From Order No. 830 of 198.1. 8. Cross-objection has been filed by the respondent in First Appeal From Order No. 830 of 1983 contending that the term and conditions on which the appointment of Receiver was made be made more stringent and the conditions which the respondent has proposed in the application 107 - filed by him in the court below he incorporated also. 9. Shri Swami Dayal. learned counsel for the respondent has raised two preliminary objections namely. 9. Shri Swami Dayal. learned counsel for the respondent has raised two preliminary objections namely. (i) First Appeal From Order No. 7,18 of 1981 directed against the order dated September 27, 1983 at the instance of Smt. Saroj Rani and Suresh Chandra t hereinafter referred to as the appellants) is not maintainable under 0. 43 R. I. Civil Procedure Code (ii) First Appeal From Order No. 830 of 1983 does not lie since the order dated November 19. 1983 appointing Suresh Chandra as the Receiver is based upon the consent of the appellants. 10. In so far as the objection ti) aforementioned is concerned 0. 43 R.I.W.C.P.C. provides for an appeal against an order under R. I or R. 4 of 0. 40. Rule I Order 40 provides for in so far as relevant an order appointing a Receiver of any property whether before or after the decree. Rule 4 relates to the enforcement of the duties of a Receiver. Under order dated September 27. 1983 forming subject matter of the First Appeal From Order No. 738 of 1983, the court below did not actually appoint any person as it Receiver. It only expressed its view that it seems just and convenient in the circumstances to appoint a Receiver in this case and the suggestion offered from the side of the respondent in the course of arguments that Suresh Chandra (defendant It he himself appointed the Receiver in the event of guarantee being furnished was accepted in principle only. When this appeal came up before the court on November s, 198.1. the objection against its maintainability was raised h the respondent. The court directed that this may he considered later and that in the meantime the lower appellate court might consider in its discretion the question concerning the appointment of Receiver prayed for by the respondent. As mentioned above, the court below ultimately passed an order dated November 14. 1983 whereby the appointment of the Receiver has been mule and the First Appeal From Order No. 8,10 of 1983 is directed against that order. The order dated September 27, 1983 has thus virtually merged into the subsequent order passed on November 19. 1983. We are of the opinion that the first appeal from order No. 738 of 1983 does not lie in view of 0. 43 R. I Is) and uphold the preliminary object,.on on this score accordingly. 11. The order dated September 27, 1983 has thus virtually merged into the subsequent order passed on November 19. 1983. We are of the opinion that the first appeal from order No. 738 of 1983 does not lie in view of 0. 43 R. I Is) and uphold the preliminary object,.on on this score accordingly. 11. In regard to the objection 2 referred to above the contention for the respondent is that the order dated November 19, 1983 to appoint Suresh Chandra defendant I a Receiver was made with the appellants' consent and hence the appeal directed against the same he held to he not maintainable. After careful consideration of the material placed on the record, we are unable to agree with this submission. The application by the respondent under 0. 40 R. 1. C. P. C.. to appoint the Receiver was made one September 8. 1983 simultaneously with the institution of 0. S. No. 487 of 1983. The objections were filed against the sane by the appellants. The application came up for hearing before the lower court on September 27, 1983. In the course of arguments. it appears there was n suggestion made by the counsel In the respondent in the court below to the effect chat in case Suresh Chandra he prepared to guarantee continued accrual average income of the firm. he might himself he appointed Receiver. The trial court directed that in case defendant I he prepared to furnish security till the following day, he might be appointed the receiver. failing which the parties may submitted list of two persons each from the person to be appointed Receiver play he selected. Being aggrieved against the acceptance of this suggestion to appoint the receiver the appellants (including Suresh Chandra) rushed to this court and filed as mentioned above First Appeal From Order No. 738 of 1983 directed against this order dated September 27, 1983. There was, however. no interim stay granted therein. By an order dated September 28, 1983 the court below clarified that Suresh Chandra had to furnish guarantee for the accrual of usage income by the firm and that he might do that by the next following date and also furnish details to enable the court to arrive at the amount showing the average earning in the business. Suresh Chandra defendant I faced with this put in an application dated September 29. 1983. Suresh Chandra defendant I faced with this put in an application dated September 29. 1983. The respondent's counsel lays stress on contending that in this application Suresh Chandra expressed that he was ready and willing to work as a Receiver on terms laid by the court. This part of the application may not he isolated from the rest of the contents appearing therein or from the preceding background in . which the application came to be made, nor the immediate subsequent conduct of. the parties be ignored in this connection. In the application, defendant I specified that the average monthly income of the year 1982-83 was Rs. 45,200/- only and he further narrated that he understood and guaranteed an average income provided the plaintiff stops carrying milk business and competing with that of the firm M/s Singhal Dairy (Milk). In the order dated 10-10-1983, the court below assessed monthly average income of the firm as Rs. 39,722.05 p. only. Defendant I was required to furnish the draft for the guarantee on these terms but in the draft he also inserted the words 'subject to all just exceptions and the orders of the Court'. These words were deleted by the court below on November It. In while approving the rest of the draft. In the applications dated September 29. 1983. October 23. 1983 and November 14. 1983. the appellants persisted upon ensuring that the respondent he injected from running parallel business in the name of Singhal Dairy because according to them that adversely affected the firm of which defendant I was proposed to be appointed it Receiver. On October 13, 1983 itself Smt. Saroj Rani applied for certified copies being issued to her of the order dated September 27. 1983 October. 10. 1983 stating that she had to go in appeal. Against the order dated November 19, 1983, the appeal has been filed by the appellants in this court almost immediately after on November 28. 1983. From the order made by the lower court dated September 27. 1983 it was plain that it had decided on principle to appoint the Receiver. The search continued for the person fit to be appointed as such. Additional offer had been made from the other side. It could he easily foreseen that in case the appellants rejected the suggestion/offer straightway. there would he someone else to he appointed as Receiver. 1983 it was plain that it had decided on principle to appoint the Receiver. The search continued for the person fit to be appointed as such. Additional offer had been made from the other side. It could he easily foreseen that in case the appellants rejected the suggestion/offer straightway. there would he someone else to he appointed as Receiver. That might have been worse from their point of view. It is not that the appellants accepted or acted this suggestion without protest. In the application made on September 28. 1983 Suresh Chandra specified also that he was accepting the appointment of Receiver in terms of the order of the Court without prejudice to his legal right of filing an appeal in this court. The objections raised by them and also the appeals which they filed without loss of time are corroborative of the contention that there was left no way out for them to avert the situation created on account of the determination of the court below to appoint a Receiver i11 any event. They did not seek this appointment nor also they take it laying down. It would be unjust in our view to hold that they are precluded from maintaining this appeal merely because when the appointment of a receiver became inevitable. they chose the lesser of the two evils. In Mohammad Askari v. Nisar Husain, AIR 1921 All 91 the argument raised was that the party concerned had himself suggested that the Deputy Commissioner be appoint ed Receiver and hence he was precluded from maintaining the appeal. This was negatived by it Division Bench of this Court which observed that faced with the situation such as has arisen in the instant case the party had little option except to agree tentatively to a suit title person being made the Receiver. There is force also in the contention of Shri M.K. Saraswat. learned counsel for the appellants, that acceptance from their side was accompanied with the prayer that the respondent he restrained from running parallel business but no such restraint has come to he imposed by the court below. The appeal directed against the appointment of Receiver may not, therefore, he thrown out of this preliminary ground. 12. learned counsel for the appellants, that acceptance from their side was accompanied with the prayer that the respondent he restrained from running parallel business but no such restraint has come to he imposed by the court below. The appeal directed against the appointment of Receiver may not, therefore, he thrown out of this preliminary ground. 12. Upon merit Sri Swami Dayal contends that since Adi Ram Singhal had share to the extent of 55 paise in the partnership carried on under the name and style of Singhal Dairy 1Milk) and the firm has been dissolved. respondent I in capacity as the legal heir is entitled to share in the assets of the firm and to have the accounting done accordingly. In reply Sri Saraswat urged that respondent I cannot claim to have acquired interest by inheritance in view of his exclusion under the will executed by Adi Ram Singhal dated February 26. 1970 and also that it is a case of running partnership of which respondent I is not the member. 13. In the preamble to the will the testator refers to his wife. the two daughters. their children and the son observing that he had for long been residing separately from his son and that he (.respondent 1) had no issue. The testator states then that he had decided to create will in respect of his entire moveable and immovable property. Under Cl. 2 the provision made is that on his death, the wife shall be the owner of the entire property with absolute rights. Clause 3 envisages that in case the testator's wife predeceased, Kothu on plot No. 58 in Agra shall pass on to Snit. Shashi Rani and that out of his (the testator's) 63 paise share in the Singhal Dairy (Milk) (as it then was) half i.e. 31 paise shall pass on to the respondent and she other hall to Snit. Saroj Rani. Clauses 'Su and 'Da' appearing thereafter are read as under : "(Sal Meri Mrityu Ke pashchat jitne cash certificates mere nam se honge unmen se Aadhe Saroj Rani ko milen ge va Aadhe Shashi Agrawalko Milenge. Kisi Doosare Ka Usmen Koi Hay Nahin Hoga. lske Atirikt Jo chat Sampatti Hoti (ismen se Paanch Hazar Rupya Mere Bhateeje Ram Charan Singhal Putra Shri Bhola Nath Ji Aligarh Niwasi Ko Milenge. Kisi Doosare Ka Usmen Koi Hay Nahin Hoga. lske Atirikt Jo chat Sampatti Hoti (ismen se Paanch Hazar Rupya Mere Bhateeje Ram Charan Singhal Putra Shri Bhola Nath Ji Aligarh Niwasi Ko Milenge. Yadi Unki Mrityu Mere Jeewan Kai Men Ho Jave to Yag Paanch Hazar Rupya Unki Dharampatni Ko Diva Jaye". Da) Iske Bad Meri Sampatti Men se jo Chat Sampatti Bache Uske Malkan Gargi Putri Saashi Agrawal Neera Putri Saroj Rani va Prahhat Chand Jain Putri Saroj Rani honge. In teenon ka Hissa Barahar Barahar ka Hoga." 14. The argument of Sri Saraswat is that since the partnership existing on 26th February, 1970 in which the testator had 63 paise share was dissolved on 31st January. 1971 and was not in existence when he died on 16th May. 1983. The will to that extent has adeemed. and. further that under the residuary Cl. 'Da the testator's share in the new partnership which came into being with effect from Ist February. 1971. passed to his daughter's children and not respondent 1. In support of the first limb of this submission he relied on S. 152, Succession Act. 1925, which provides that if anything which has been specifically bequeathed does not belong to the testator at the time of his death. the legacy is adeemed. that is it cannot take effect, by reason of the subject matter having been withdrawn from the operation of the will. Due to the act of dissolution of the then existing partnership to which the testator was also a party that interest did not survive his death. The deed dated the February, 1971. shows that a new partnership came into being with effect' from 1st February, 1971, in which Adi Ram Singhal his son-in-law Suresh Chand and Smi. Saroj Rani were partners. A specific legacy is adeemed if the subject of it has ceased to exist as part of the testator property in his lifetime (Jarman on wills Vol. 2 (8th Edition) page 1065). The partnership created on 5th February, 1971 had a new complexion altogether, the set of partners was different: they had variant shares and the old partnership entered into on 1st February. 1970 had been wound up. The sum of Rs. 76.561.87 accruing to the respondent on accounting in that partnership had also been paid up. 2 (8th Edition) page 1065). The partnership created on 5th February, 1971 had a new complexion altogether, the set of partners was different: they had variant shares and the old partnership entered into on 1st February. 1970 had been wound up. The sum of Rs. 76.561.87 accruing to the respondent on accounting in that partnership had also been paid up. The change being thus substantial and not in form also the will concerning share in the extinct partnership is adeemed vide : Williams : Wills 15th Edition) (1980) P. 248. Vol. I. Ademption may take place by the subject matter of the instrument between the date of the will and that of the testator's death ceasing to be part of his estate or ceasing to conform to the description by which it is given. This may result from the testator's own disposition or change of investment or other events subsequent to the will and prior to the death of the testator (p. 248 ibid). 15. In re. Russell Russell v. Chell, (1882) 19 Ch. D. 432 cited for the respondent R carried on business in partnership with his brothers. His share in the capital and property of the firm and also in the profits of partnership was ?. In 1857 he executed a will which in substance provided "I, being a manufacturer, in partnership give to my wife the enjoyment of all the shares in the business lam carrying on which I may be entitled at my death." The testator died in 1881. During the period intervening between the execution of the will and the death of the testator, by a series of accidents the tenant's share increased and he became entitled to the entirety. It was argued that the interest which passed by his will was confined to that ? which he had in the year 1857 and is not to comprehend the interest which he had in 1881 when he died. This was repelled by Bacon V.C. observing at page 441 In my opinion that would be a very violent construction. It is clear that it would disappoint the intention of the testator: but that does not dispose of the case, because if he has failed to express himself in words which will give effect to his intention, the court will not inquire into those intentions. It is clear that it would disappoint the intention of the testator: but that does not dispose of the case, because if he has failed to express himself in words which will give effect to his intention, the court will not inquire into those intentions. But when you find the scope of a man's will to be, "I, being a manufacturer, in partnership. give to my wife the enjoyment of all the shares in the business I am carrying on to which I may be entitled at my death", it cannot be because that property has become increased by his own purchases or by the death of his brothers, that the provision he had made is to be confined to the one-third of which he was possessed at the date of his will. That would be a very violent construction, and on which I think the court is not compelled to adopt." 16. Reference therein was made also to the case of Backwell v. Child in which a testator having a limited interest in a partnership disposed of it by his will. The accidents incidental ordinarily to partnership led to the alteration of shares: new articles were -entered into the deed by which the shares were altered, but the decision was. that the bequest took effect in the terms in which the testator had expressed it, and that the accidental charge which had taken place did not in the slightest degree effect the interest which the testator intended to give, because the body and substance which he had intended to give were clearly comprised in the disposition of the will. 17. The important fact is that though the share of the testator in the partnership had during the period intervening between the execution of the will and his death increased. "his intention as expressed in his will had never undergone any change." It was observed that during the number of years which elapsed between the date of the will and the date of his death he never altered his will in any way, he made no codicil to it, nor did he do any act of kind to show that the substantive thing which he had given by the will should not pass by the will in the terms in which he had expressed it. 18. 18. In the case before us the bequest in favour of the respondent was confined to half of the testator's share in the partnership Singhal Dairy (Milk) as it then was on 26th February. 1970 (when the will was executed). This partnership being dissolved on 21st January, 1971. and a new concern having come into existence on the 1st February. 1971, the respondent cannot. in our opinion, assert on the basis of the decisions referred to above, that the will be taken as operative in his favour in respect of the testator's share in the new partnership also. It is not merely that the extent of the testator's share changed the partnership in relation to which bequest was made to the respondent had ceased to exist. That partnership comprised of father and son, the son retired and the firm was dissolved: the father entered into a new partnership with one of his daughters and the son-in-law. This was indisputedly a new venture. The cases referred to above, therefore, do not assist the respondent. Commenting upon these decisions, Kind ley in his treatise on the Law of Partnership (14th edition) observes at p. 685 : "A specific bequest of a share in a partnership will be a deemed if the testator, after he has made his will, leaves the firm and receives his share: but so long as he remains a partner, there will be no ademption, although by some agreement subsequent to the date of the will the amount of his share may have been varied. Even where he has, since he made his will, acquired the whole business his will may include the whole." (Emphasis supplied). 19. In regard to the other limb of the contention of Sri Saraswat, namely, that the testators share in the new partnership created on 1st February, 1971, passed to his daughter's children upon his death, reliance is placed on the two clauses of the will quoted above. It is submitted that the testator bequeathed all his property and hence the words "iskey bad meri sampati main se jo chal sampati bachey" should be construed as referring to the entire residue of all his moveable assets as might be held by him on the eve of his death, and not confined to such moveable property only as was in existence when the will was made. It is not a dispute that the share of a partner in the assets of a firm is his moveable property, vide AIR 1966 SC 1300 which affirms the view taken in Addanki Narayanappa v. Bhaskara Krishnappa, AIR 1959 Andh. Pra. 380 (FB) and Ajudhia Pershad Ram Pershad v. Sham Sunder, AIR 1947 Lah. 13 (FB). In terms of S. 102, Succession Act 1925, it is urged. a residuary legatee may be constituted by any words that show an intention on the part of the testator that the person designated shall take the surplus or residue of the property. Under a residuary bequest, the legatee is entitled to all.property belonging to the testator at the time of his death, of which he has not made any other testamentary disposition which is capable of taking effect. Sections 102 and 103 are attracted where there is a bequest of the residue of the estate Amitava Roy v. Smt. Jyotsna Prova Roy, AIR 1975 Ca1 323. The presumption is that a residuary bequest, in the absence of words sharing a contrary intention, passes not only the personal estate the testator had at the time of making his will, but what he afterwards acquired and died possessed of (Jarman on Wills Vol. 2 (8th Ed.) 1021). In Blight v. Hartnoll, (1883) 23 Ch. D. 218. Fry J. stated the ordinary rule thus : "....... in general the residuary gift carries every lapsed legacy and every legacy which on any ground fails to take effect but that is subject to this other rule that, if the testator has shown some intention with regard to the excepted property in -consistent with its ever falling again into, the residue, effect must be given to that intention." 20. In case of residuary gift large enough in its language to comprehend residue the question is not what is included, but what is excluded "and you,j must find words sufficiently large, sufficiently definite, sufficiently distinct to enable you to say that some item is excluded so that...... what hitherto has purported to be residuary gift is reduced to the level of a specific gift, and passes to be a residuary gift." (In re Bagot (1877) 3 D 348). This rule of construction was -approved in Elizabeth 0' Denoghus v. Sutherland, AIR 1935 Rang 71. what hitherto has purported to be residuary gift is reduced to the level of a specific gift, and passes to be a residuary gift." (In re Bagot (1877) 3 D 348). This rule of construction was -approved in Elizabeth 0' Denoghus v. Sutherland, AIR 1935 Rang 71. In suitable context many words are capable of denoting the whole or the residue of the real and personal estate of the testator however, it is expressed, the effect must that it is intended to comprise all that' not disposed of by a will. Williams: W (supra) page 369. 21. We stop here and would like to nothing more of the construction of " f Mill lest this prejudices either side in the trial court except that prima facie the text 01 this instrument suggests that the legacy to the respondent was specific confined to half of the share of the testator in the then existing partnership which a deemed due to the firm being dissolved and the respondent having received also his share in the assets thereof long before the death of the testator and, the entire residue to the moveable property of the testator (including his share in the new partnership which commenced with effect from February 1, 1971) that he left on his demise stood bequeathed to the daughter's children. 22. Sri Dayal in support of the application for the appointment of receiver next relied in the alternative upon cl. (7) of the deed of partnership dated 5th February. 1971. It was argued that the respondent became a partner in equity by virtue of this clause which should, according to the learned counsel,. be construed as a nomination clause and this firm, it is further submitted, being dissolved by him in September, 1983, he became entitled to the appointment of a receiver. Clause (7) reads : "7. That on the death of a partner the partnership shall not stand dissolved suo motu and may be continued by the surviving or remaining partners on such terms and conditions as they may agree upon. On the death of a partner, his/her legal heir shall be entitled to be admitted to the partnership on such terms and conditions as may be mutually agreed upon." 23. On the death of a partner, his/her legal heir shall be entitled to be admitted to the partnership on such terms and conditions as may be mutually agreed upon." 23. Learned counsel argued that the expression "upon such terms and conditions as may be mutually agreed upon" appearing in this clause envisages agreement among the heirs of the deceased partner inter se. We are not impressed with this contention. The agreement contemplated is between the surviving partners on the one hand and the heir/heirs as the case may be, of the deceased partner on the other. This indeed is in conformity with the basic concept of partnership which is founded upon consent among the partners. The consensus among the partners is at all events an indispensable prerequisite to the existence of partnership. The Supreme Court in Commissioner of Income Tax v. Govindram Sugar Mills, AIR 1966 SC 24 observed : "Partnership under S. 4, Partnership Act, is the relation between persons who have agreed to share the profits of a business, carried on by all or any of them acting for all. Section 5 of the said Act says that the relation of partnership arises from contract and not from status. The fundamental principle of partnership arises out of contract and not out of status." In the words of Lindley on Law of Partnership (supra) p. 481. "When persons enter into a contract of partnership, their intention ordinarily is that a partnership shall exist between themselves and themselves alone. The mutual confidence reposed by each in the other is one of main elements in the contract, and it is obvious that persons may be willing enough to trust one another, and yet be unwilling to place the same trust in any one else. Hence it is one of the fundamental principles of partnership law, expressly recognised by the Partnership Act 1890, that no person may be introduced as a partner without the consent of all existing partners. If, therefore, a partner dies, his executors or devises have no right to insist on being admitted into partnership with the surviving partners, unless some agreement to that effect has been entered into by them." 24. Section 42 (c) of the Partnership Act provides "that subject to contract between the partners a firm is dissolved by the death of a partner. Section 42 (c) of the Partnership Act provides "that subject to contract between the partners a firm is dissolved by the death of a partner. If there are only two partners in a firm there is no scope for applying cl. (c) of S. 42 because upon the death of one of the two partners the firm automatically comes to an end. Section 42(c) can appropriately be applied to a partnership where, as in the instant case, there are more than two partners. If one of them dies, the firm is dissolved, but if there is a contract to the contrary, the surviving partners will continue the firm."vide AIR 1966 SC 24 (supra). This also is the view taken by this court in Mt. Sughra v. Bahu, AIR 1952 All 506 and the Madras High Court in Narayanan v. Umayal, AIR 1959 Mad 283 which was endorsed by the Supreme Court. Clause 7 in this case constitutes the contract to the contrary. "The surviving partners being agreed between themselves as to the terms and conditions may continue the firm: the admission of the respondent as the heir of the deceased member of the firm to the partnership is expressly conditional upon the terms and conditions being mutually agreed upon, and, this condition not being fulfilled, the respondent has not become a partner. In this light S. 31, Partnership Act, which lays down the subject to contract between the partners and to the provisions of S. 30, no person shall be introduced as a partner with a firm without the consent of all the existing partners" is also relevant. The Allahabad case, AIR 1952 All 506 (supra) affirms that ..one partner cannot by his own contract, impose a partnership upon his heirs or legal representatives." 25. When it is said that a partnership will not be dissolved by the death of one party. what is meant is that the partnership will continue between the surviving partners even after the death of a partner. This negatives the alternative submission of the respondents' counsel that since the remaining partners and the heir of Adi Ram Singhal could not mutually agree upon the terms and conditions, the partnership be treated as dissolved. The firm continues between the surviving partners because there is express contract to the contrary within the meaning of S. 42(c). 26. Could the later part of cl. The firm continues between the surviving partners because there is express contract to the contrary within the meaning of S. 42(c). 26. Could the later part of cl. (7) quoted above be given effect to as the nomination in favour of the respondent is the question next to be considered. Lindley in his treatise on partnership thus states the law on this subject at page 205. "If during the continuance of the partnership any partner shall die the personal representatives of such deceased partner shall be entitled to nominate one of themselves or any one other person to be admitted into the partnership as a partner in place of such deceased partner for all purposes and upon the same terms as those which applied to such deceased partner." A provision of this kind occasionally appears in partnership agreements (it is no longer common as was once the case). The effect of any such provision must of course depend on its words, but speaking generally it may be said. (1) That clauses of this kind, although they bind the surviving partners to let in the person nominated. do not bind him to come in but give him an option whether he will do so or not: and even if the agreement is absolute that the person nominated shall come in, the agreement cannot be specifically enforced though the refusal to cone in may make the covenanter or his estate liable in damages. (2) That before making up his mind the person nominated is entitled to make himself acquainted with the state of the partnership affairs although he is not entitled to have its accounts formally taken. (3) That if he is desirous of coming in. he must comply strictly with the terms upon which alone he is entitled to do so. (4) That if he declines to come in. and there is no provision as to what is then to be done, the partnership must be dissolved and wound up in the usual way. 26A. The case-law on the point is scanty. At page 485 of this treatise the learned author takes note of an old English case viz. (4) That if he declines to come in. and there is no provision as to what is then to be done, the partnership must be dissolved and wound up in the usual way. 26A. The case-law on the point is scanty. At page 485 of this treatise the learned author takes note of an old English case viz. Lovegrove v. Nelson, 1834-4d ER 1 and cites the following passage therefrom : "To make a person a partner with two other their consent must clearly be had but there is no particular mode or time required for giving that consent, and if three enter into partnership by a contract which provides that on one retiring, one of the remaining two, or even a fourth person who is no partner at all, shall name the successor to take the share of the one, retiring, it is clear that this would be valid contract which the court m perform, and that the new partner wo come in as entirely by the consent of other two as if they had adopted him name." 27. The general rule excluding cases of agency or trust is that an agreement between two persons cannot he enforced against either of them by a third person. even though such third person was intended to derive a benefit from the agreement. In Page v. Cox., 1852-68 ER 882 cited in Lindley's treatise at page 206 the rule of nomination was attempted to be applied to an agreement between two partners to the effect that on the death of one his widow should succeed him. One of the partners was dead: it was contended that his widow had no right to succeed. But it was held that the general (rule) referred to above had no application to such a case: the articles had created a valid trust in favour of the widow: and she was entitled to come to court for a decree for execution of such trust. 28. In Byrne v. Reid, (1902) 2 Ch.D. 735 relied on by both sides before us the partnership deed contained a clause to the effect that Henrv Byrne (one of the partners) shall (lave the right to nominate his son to become the holder of any part of the father's share in the business and profits thereof. 28. In Byrne v. Reid, (1902) 2 Ch.D. 735 relied on by both sides before us the partnership deed contained a clause to the effect that Henrv Byrne (one of the partners) shall (lave the right to nominate his son to become the holder of any part of the father's share in the business and profits thereof. The relevant Article 29 of the agreement was : "Subject to the proviso written at the end of this clause, the said Henry Byrne may at any time during the said term nominate, either by will or otherwise. and introduce into the firm for the whole or any part of his share in the said business and the profits thereof any son or sons upon attaining twenty one years of age, or any other male person or persons over twenty one years of age, he may think fit and in such case the son or sons, or other male person or persons, to be so nominated and introduced shall hence-forth. during the residue of the said term. carry on the said business in partnership with the incoming partners, or such of them as shall then remain in the firm. for the residue of the said term upon and subject to the like terms and conditions and stipulations as are herein contained with reference to the in-coming partners and upon such introduction such son or sons, or other male person or persons, shall execute a proper deed or deeds the said terms and conditions accordingly." 29. Considering what in point of law is the effect of this clause, Stirling L.J. remarked that this is a matter on which there is extremely little authority. The only authority relied was the passage in Lovegrove v. Nelson, 1834-40 ER 1 (quoted above) and the following which appears in Lindley. Partnership at page 485 ( 14th Edition) : "If partners choose to agree that any of them shall be at liberty to introduce any other person into the partnership, there is no reason why they should not, nor why, having so agreed. they should not he bound by the agreement. Persons who enter into such an agreement consent prospectively and once for all to admit into partnership and person who is willing to take advantage of their agreement. and to observe those stipulations. if any, which may be made conditions of his admission. they should not he bound by the agreement. Persons who enter into such an agreement consent prospectively and once for all to admit into partnership and person who is willing to take advantage of their agreement. and to observe those stipulations. if any, which may be made conditions of his admission. Such an agreement as this is the basis of every partnership, the shares in which are transferable from one person to the other. Those who form such partnerships. and those who join them after they are formed, assent to be partners with anyone who is willing to comply with certain condition." 30. The decision arrived at by Stirling L. J. relying on these passages as authoritative was : "Now. adopting as I do these passages as a correct statement of the law. it seems to me to follow that the son Stanley on accepting this nomination became. in the eye of a Court of Equity a partner and entitled to such relief as the Court of Equity are in the habit of granting to persons who stand in the relationship of partners. That relief does not include as a general rule specific performance of an agreement to become partners that is clearly settled. but it does not seem to me that any question as to this arises in the present case. There is other relief which Courts of Equity are in the habit of granting as between partners for example. there may be an injunction granted to prevent one partner from excluding another. Again, there might he relief given binding himself and themselves to observe in the shape of account. if necessary. And further than that, there is a head of relief, which is granted by Courts of Equity, namely. the execution of any necessary and proper deeds which may be required for defining the interests of the parties or giving effect to them. if necessary. And further than that, there is a head of relief, which is granted by Courts of Equity, namely. the execution of any necessary and proper deeds which may be required for defining the interests of the parties or giving effect to them. I need scarcely add that another form of relief which the Court of Equity would give, and indeed the form which is contemplated by the very action which is now before us, is dissolution, which in a proper case might be the result if any of the persons who were bound by the partnership agreement failed to perform the duties which arise out of the partnership relation." According to Lindley : Partnership "If, therefore, the other partners refuse to admit the new partner or to do and execute the acts and deeds necessary for conferring upon him the rights of a partner, he is entitled as against them to such relief as the courts are in the habit of granting to partners and as may be appropriate to the circumstances of the case, as for example to an injunction to prevent his exclusion from the business, or to an account, or to an order for the execution of the proper deeds, or even to a dissolution - subject to his fulfilling on his part such conditions of his admission as may be contained in the agreement under which he is introduced." 31. Despite considerable research put in by learned counsel which has been of great assistance to us they are unable to lay hands upon any Indian case of the subject. The case in Bachubai v. Shamji Jadowji, (1885) ILR 9 Bom 536 which Sri Saraswat cited turned on its facts. The partnership agreement provided that upon vacancy arising due to the death of a partner the firm shall admit that person whose name may be given in his place by the dying partner and whatever authority he may have exercised that much share and authority shall be duly got and exercised by the partner coming in his stead. 'H' a partner died leaving a will but there was no illusion in the will to the firm or to the partnership and no, express appointment of a successor in the partnership. 'H' a partner died leaving a will but there was no illusion in the will to the firm or to the partnership and no, express appointment of a successor in the partnership. It was held that this will did not operate as an exercise of the power of nominating his successor and did not constitute the plaintiff a partner in the firm because the agreement conferring power to appoint a partner in the firm required "a specific direction in that behalf, either in specific terms or at any rate, by a specific disposal of the deceased partner's interest in the firm.- neither of which was found in H's will that was made before the partnership was thought of. The will in that case had been executed before H acquired interest in partnership. 32. Sri Dayal emphasises on the strength of the latter part of clause (7) considered in the light of these authorities that the respondent is entitled as against the surviving partners to such relief "as the courts are in the habit of granting to partners and as may be appropriate to the circumstances of the case, as for example to an injunction to prevent his exclusion from the business, or to an account...... or even to a dissolution." Sri Saraswat counters this effectively, in our opinion. contending that the latter part of clause (7) is incobate: this does not define the terms and conditions for the admission of the respondent to partnership: in a partnership the terms and conditions might be of large varieties, clause G1 represents merely an agreement to agree to something in the future and that the court will not make out a contract for the parties. In each of the three English decisions viz. Byrne v. Reid, 1902-2 Ch D 735, Lovegrove v. Nelson, 1834-40 ER 1. Page v. Cox, 1852-68 ER 882 referred above, the nomination clause was operative. The nominee could, it is t exercise his volition not to join the partnership but there was no such condition that "he shall he entitled to be admitted to the partnership on such terms and conditions as may be mutually agreed upon." The terms as those already operating among the existing partners. A partnership sans agreement upon the terms and conditions is a misnomer. A partnership sans agreement upon the terms and conditions is a misnomer. The introduction of a new member may be heir/heirs of the deceased partner does not fructify for so long as the terms and conditions are not settled. We have for this purpose assumed that the respondent not excluded from succession to Ram's interest in partnership by virtue his will dated 26-2-1970 and also that t expression 'legal heir' appearing in clause 7 of the partnership deed is used broadly to denote a legal representative. but. even so for reasons discussed above, this clause does not avail the respondent. 33. The distinction is succinctly taken note of by Maugham J. in re : Pranklin and Suwathline's Arbitration, (1929) 1 Ch D 238. Under a partnership deed each original partner had a right to introduce a qualified person nominated by him, as a new general partner for the residue of the partnership for the whole or any part of the nominator's share of profits. and such nomination could he effected by will or codicil. Clause 31 provided that "the admission to the partnership of a qualified nominee was to he subject to the consent. not to he unreasonably withheld. of the general partners voting at a meeting of the partners and. a general partner or a qualified nominee, if of opinion that the consent to admission had been unreasonably withheld, could require the matter to he referred to arbitration." At page 241 the learned Judge refers to the dictum in Page v. Cox, 1852-68 ER S82 and Byrne v. Reid, 1902-2 Ch D 735 and observes : "In the present case it is apparent that the applicant was not a party to the original deed of partnership, and has not signed it or become liable at present to sign it. His rights as a nominee of a partner is that which has been defined in the case of Page v. Cox by Turnor V.C. and by the Court of Appeal in Byrne v. Reid. A .nominated partner as such has no contractual right whatever he is within the ordinary doctrine of the common law that only the parties to the contract or their legal personal representatives prima facie have any right to enforce the contract. A .nominated partner as such has no contractual right whatever he is within the ordinary doctrine of the common law that only the parties to the contract or their legal personal representatives prima facie have any right to enforce the contract. The doctrine of Page v. Cox is that if there is a person validly nominated as a partner under a clause contained in the articles of partnership. the result is that a trust is created with reference to the partnership assets for the purpose of enabling a nominated person to take that which he is entitled to under the deed. and I do not doubt that in the present ease the applicant upon satisfying the conditions. including the conditions of clause 31 of the partnership deed, would be entitled to enforce the trust which it will then he shown has been created. The present position. however, is that it is impossible to establish that there is a trust for the applicant in respect of the partnership business or assets. because that in effect is the very point which it is desired to submit to arbitration. a difference having arisen owing to the fact that the general partners have decided adversely to the applicant. The applicant admittedly has no contractual rights. The applicant may be able to establish hereafter that he is a cestui que trust under the doctrine of Page v. Cox but at the present he cannot do anything of the sort: because, for aught I know. the general partners have properly exercised their rights, and in that case he has no more interest in the partnership assets than a stranger." 34. At page 242 then it is significantly stated : ".... I do not want it to be supposed that in such a case as that of Byrne v. Reid, 1902-2 Ch D 735 where a valid nomination has been made. and there are no conditions which had to be complied with to enable the nominee to establish the fact of a trust, it would follow that if there was a partnership deed with an arbitration clause in it, that clause might not be enforced by the nominee. I am dealing with a different case namely, one in which the applicant cannot show at the present time that he is a cestui que trust as regards any one of the assets belonging to the partnership.' 35. I am dealing with a different case namely, one in which the applicant cannot show at the present time that he is a cestui que trust as regards any one of the assets belonging to the partnership.' 35. Although clause (7) in the present (partnership deed?) does not expressly incorporate a term that consent of the surviving partners shall not he unreasonably withheld. We none the less regard this as implicit. This takes us to the issue whether the appellants have prima facie declined unreasonably to agree to terms and conditions for taking in the respondent as a partner. Upon the material before us we do not feel satisfied that the stand taken by the appellants has on the whole been unreasonable. Mutual trust and confidence are the bedrock on which a partnership rests. These appear in this case shaken unfortunately at their root. The respondent has had the belief deeply ingrained. it seems that his sisters and the brother-in-law (Suresh Chand) conspired to alienate him from the love and affection of his parents which was his legitimate due. His letter dated 30-11-66 addressed to the father speaks of this and he asserts this too vigorously in his affidavits. It is not unnatural as the appellants contend that the knowledge of the contents of the father's will which was opened on 20th August. 1983. infuriated him. Various accusations and counter accusations have been made into the details or veracity whereof we are not called upon to enter in this case. The appellant's assertion has been that the respondent took recourse to misappropriation and damage of the property of the firm, the customers were beguiled: the hawkers seduced, the business of the firm was brought to stand -still: things were adversely published in the newspapers and the respondent set up rival competitive business in the same commodity under the name of Singhal Dairy. The matter has also been taken on both sides to the police and the executive authorities. The respondent has denied the accusations levelled against him but one thing is crystal clear from what they have said of each other that there is no meeting ground left. In giving the telegrams dated 31-8-83 and 4-9-1983 to which the respondent refers he has observed an empty formality. The telegrams make no mention whatever of any proposal on his side concerning the terms and conditions for being admitted to partnership. In giving the telegrams dated 31-8-83 and 4-9-1983 to which the respondent refers he has observed an empty formality. The telegrams make no mention whatever of any proposal on his side concerning the terms and conditions for being admitted to partnership. To be more specific in his affidavit dated 8-9-1983 filed in the trial court and respondent swore that he gave these telegrams to avoid any controversy and technical objection." In the backdrop of such deep rooted distrust and lack of good will on both sides it is idle to assume that they could possibly agree to terms and conditions to become partners in this venture. It is not our purpose to apportion blame. We only take note of probabilities and observe that on its face the respondent cannot claim to have become a partner by virtue of clause (7) of the deed of partnership dated 5-2-71 and as such no right accrued to him at any stage to dissolve the firm. 36. It was further urged on behalf of the appellants that if we proceed on assumption that the will of Adi Ram does not exclude the respondent from acquiring share in the partnership assets on the death of the testator then in that event since in pursuance of clause (7) of the agreement dated 5-2-71 the respondent cannot claim to have become a partner in the firm, all that he may lay claim to is the beneficial share of the father. The beneficial share of Adi Ram Singhal would be his proportionate interest in the partnership assets after they have been 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." In its first part this clause (7) exhibits a clear intention that upon the death of one of the partners the firm will not dissolve, but that the business shall be carried on by the surviving partners. Lindley on Partnership states at page 464 : "But in cases where there can be shown to exist a common intention that the other partner or partners will continue the business, then a valuation at the relevant date will be directed together with all accounts and inquiries relevant thereto. Lindley on Partnership states at page 464 : "But in cases where there can be shown to exist a common intention that the other partner or partners will continue the business, then a valuation at the relevant date will be directed together with all accounts and inquiries relevant thereto. Further, even if no such common intention can be found, if, in fact, the other partner or partners wish to carry on the business and are prepared to pay a sum equal to the market value of the share, then the court has a discretion to refuse a sale and instead direct an inquiry as to what sum would represent the market value of the share at, the relevant time and order the payment of that sum.' 37. Section 37, Partnership Act, (corresponding to S. 42 of the English Act is much to the same effect. Where any member of firm has died and the surviving or continuing partners carry on the business of the firm with the property of the firm without any final settlement of accounts as between them and his estate. then, in the absence of a contract to the contrary, the estate of the outgoing partner is entitled at the option of his representatives "to such share of PW. profits made since he ceased to be partner as may be attributable to the use of .his share of the property of the firm or to interest at the rate of 6% per annum on the amount of his share in the property of the firm." A partner through an agent observes Vishwanatha Sastri J. speaking for the bench in Kasi v. Ramanathan Chettiar, AIR 1949 Mad 693 is, in no sense, a trustee for his co-partner. He has no higher duty than to deal fairly and honestly with him. He is bound to indemnify his co-partners for any loss caused by his fraud and is liable in the absence of a contract to the contrary to account to them for profits earned by him by use of the firm's property or by carrying on a competing business (section 16). If he clandestinely secures a personal profit to himself in a partnership transaction. he must share the profit with the other partners (section 88, Trusts Act). He is not in the position of an insurer or guarantor of his other partners. If he clandestinely secures a personal profit to himself in a partnership transaction. he must share the profit with the other partners (section 88, Trusts Act). He is not in the position of an insurer or guarantor of his other partners. He is under no positive duty to make or earn a profit or avert a loss in the conduct of the partnership business. All that -the law -imposes on him is an obligation of good faith and all that is required of him is that he must not act in a manner antagonistic or prejudicial to the interest of the firm. The respondent in the instant case has I chosen not to exercise his option under S. 37. He has not at any stage and despite our putting this to learned counsel specified whether he would elect for such share of the profits made since his father ceased to be a partner as may be attributable to the use of his share of the property of firm or for interest at the prescribed rate on the amount of his share in the firm property. The representatives of a deceased partner will not be entitled to an amount of profits if this right is excluded expressly or by implication under the partnership agreement, Lindley : Partnership. p. 649. 38. Kerr : On Receivers (15th Edition) is of the view that if a dissolution has clearly been effected or if the partnership has expired by the efflux of time, a receiver will readily be appointed, though, t he adds the appointment is not a matter of course. The court will not, as a matter of course. appoint a receiver of the partnership assets even where a case for dissolution is made. "The very basis of a partnership contract being the mutual confidence reposed on each other by the parties: the court will not appoint a receiver, unless some special ground for interference is established." (page 67). If the partnership is a continuing one, and may continue, the court is always placed in a position to very great difficulty. "The very basis of a partnership contract being the mutual confidence reposed on each other by the parties: the court will not appoint a receiver, unless some special ground for interference is established." (page 67). If the partnership is a continuing one, and may continue, the court is always placed in a position to very great difficulty. If it grants the motion the effect of it is to put an end to the partnership, which one of the parties claims a right to have continued, while if it refuses the motion, it leaves the defendant at liberty to go on with the partnership business at the risk, and may be in some cases, to the loss and prejudice, of the dissenting party (p. 65). 39. Lindley : Law of Partnership (14th Edition) page 586 expresses the view that courts are by no means anxious to take upon themselves the management of a partnership business, and they will never do so, save with a view to a dissolution or final winding up of the affairs of the concern. A receiver might be appointed as well as in a suit for a dissolution and winding up. If the appointment of a receiver does not involve the appointment of a manager, that may be acceded to even in an action not seeking a dissolution of the partnership. "But there does not appear to be any instance in which an action or suit has been instituted for the purpose of continuing a partnership. and in which the court has appointed a receiver and manager.". 40. A distinction is drawn between cases in which there is a contest between partners, or late partners, from those in which (as in the present) the contest is between partners or late partners on the one side, and a non-partner on the other. If the partnership is still subsisting "no receiver will be appointed unless some special ground for the appointment can be shown" or unless it is plain that an order for a dissolution will be made whilst if the partnership is already dissolved, the court usually appoints a receiver, almost as a matter of course. In contest as between partners and a non-partner the court is reluctant to exclude a partner from the management of partnership affairs it will readily interfere to prevent other persons from intermeddling therewith. In contest as between partners and a non-partner the court is reluctant to exclude a partner from the management of partnership affairs it will readily interfere to prevent other persons from intermeddling therewith. The suit in the present is not for dissolution or winding up of the firm, plaintiff -respondent 1 asserted that the firm already stands dissolved, which on its face does not appear. Lindley is of view that even in an action for a dissolution, or winding up. a receiver will not be granted against a member of the firm at the instance of the executors, administrators or assigns of a late partner, unless some special grounds for the interference of the court can be established (p. 589) (see also : Sudhansu Kanta v. Manindra Nath, AIR 1965 Pat 144 and Sheonarain Jaiswal v. Shree Kripa Shanker, AIR 1972 Pat 75 . 41. The court may, as provided in 0. 40 R. 1 Civil Procedure Code appoint a receiver of any property, whether before or after decree, where it appears to be just and convenient. The settled view is that the discretion in this behalf is to be exercised with great care and circumspection. The party seeking that a receiver be appointed must have strong prima facie case in his favour. It should appear to the Court's satisfaction that property is in peril of being wasted or seriously damaged. The object behind the appointment of receiver is to protect and preserve the subject matter of the lis for the benefit of the parties who may ultimately be found entitled to it. An order appointing a receiver will not be made when it has the effect of depriving a defendant of 'de facto' possession. The court has to consider whether special interference with the possession of a defendant is required there being a well founded fear that the property in question will be dissipated or that other irreparable mischief may be done unless the court accords its protection. It is not a proper exercise of judicial discretion to appoint a receiver on the ground that no party will be harmed by such appointment. The courts- have regarded this as one of the harshest remedies provided by law. It is not a proper exercise of judicial discretion to appoint a receiver on the ground that no party will be harmed by such appointment. The courts- have regarded this as one of the harshest remedies provided by law. These are some of the principles governing the appointment of receiver which were formulated and acted upon by this court and various other High Courts (vide) Prosonomoyi Devi v. Devi Madhab Rai, (1883) ILR 5 All 556, Mohd. Askari v. Nisar Husain, AIR 1921 All 91, S.B. Industries Freegunj v. United Bank of India, AIR 1978 All 189 , T. Krishnaswamy Chetty v. C. Thangavelu Chetty, AIR 1955 Mad 430 , Rasi Devi v. Bikal Maharana, AIR 1965 Orissa 20, Sudhansu Kanta v. Manindra Nath, AIR 1965 Pat 144 . Just and convenient in O. 40 have reference not to one party or the other but to what court feels to be proper in the circumstances of the case. It is not regarded a proper exercise of judicial discretion to appoint a receiver on the ground that no party will he harmed by such appointment Issardas S. Lulla v. Smt. Hari, AIR 1962 Mad 458 . 42. To sum up, the Will dated 26th February 1970 executed by Adi Ram bequeathing half of his 63 paisa share in the then existing partnership to the respondent appears on its face adeemed with the extinction of that interest prior to the testator's death which took place on May 16. 1983. The testator's share in the partnership constituted with effect from the 1st February. 1971 would, it seems, pass on to his daughters' children under the residuary clause of the will. Assuming that the will does not exclude the respondents, he did not automatically become a partner in the business in pursuance of Clause 171 of the Partnership Deed dated 5-2-1971 upon his fathers death. There is no self operative nomination of the respondent as such. it is incohate and conditional, the terms and conditions to admit him as partner did not come to be settled: nor there exists reasonable prospect of agreement on this score. The partnership does not stand dissolved. The appellants continue in actual management and possession of the firm as the surviving partners. it is incohate and conditional, the terms and conditions to admit him as partner did not come to be settled: nor there exists reasonable prospect of agreement on this score. The partnership does not stand dissolved. The appellants continue in actual management and possession of the firm as the surviving partners. It is an extensive running business, the dispute is between the partners and one who asserts to be a partner in equity but is not in management or control. The surviving partners have not moreover insisted upon i employing in business the assets of the deceased partner Adi Ram. The respondent himself is engaged in parallel competitive business In the same commodity in the same area under the number and style closely resembling to that of the partnership in question. We do not find any special ground made out to appoint a receiver in these circumstances and are clearly of the view that it would neither be just nor convenient to do so. 43. The respondent has not exercised option under S. 37 Partnership Act. The appellants have offered, however, to set apart the proportionate share of the assets of Adi Ram in the Firm in a manner as may adequately safeguard the respondent's interest if any. In Pratap Narain Agrawal v. Ram Narain, 1981 All LJ 591 Hon'ble M. N. Shukla, J. (as he then was) speaking for the Division Bench examined what are the legal incidents of the rights and interest of a partner in the partnership property and adopted the following classical statement of the law on the subject by Lindley on Partnership (13th Edition page 366). "What is meant by the share of a partner is his proportionate interest in 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 which under the old law was considered as bona not abulia and which on his bankruptcy passes to his trustees." 44. The same principle. it was observed, has been embodied in Sections 14, 15. 29. 30, 31 to 38. 46 and 48 Partnership Act. or to a legatee of his share which under the old law was considered as bona not abulia and which on his bankruptcy passes to his trustees." 44. The same principle. it was observed, has been embodied in Sections 14, 15. 29. 30, 31 to 38. 46 and 48 Partnership Act. Sections 46 and 48 particularly clarify that on "the dissolution of a firm" the representatives of a deceased partner or of a partner are put on a par with the partners of the firm. On a dissolution of the firm every partner or his representative is entitled as against all other partners or their representatives to have surplus distributed amongst the partners or their representatives according to their rights. (See at page 599). The dissolution of the firm in the instant case has not taken place. 45. The appellants have placed on record extracts of the balance sheets as submitted to the Income-tax Department. On the basis thereof the assets of Adi Ram deceased are shown as under. 1. 1981-82 Rs. 2,13,257.14 2. 1982-83 Rs. 1, 30,498.14 3. May 16, 1983 Rs. 1,40,793.83 4. 1983-84 Rs. 1,28,225.88 46. Nothing tangible could be shown for the respondent to doubt the authenticity of these accounts supported with books of account regularly maintained. Taking into consideration the amount as on May 16, 1983, when Adi Ram died, the respondent's ? share therein would roughly be in -the amount of Rs. 47000/-. The appellants undertake to set this amount apart and invest the same in the form as the Court directs. This disposes of the first appeal from order No. 830 of 1983. 47-48. Since this appeal succeeds and the order of the court below appointing receiver has to be set aside, there arises no question to impose more stringent conditions upon the functioning of the receiver as prayed for in the cross -objection filed by the respondent. The cross-objection accordingly fails. 49. This takes us to the First Appeal From Order No. 918 of 1983 brought by the respondent against the order dated September 27, 1983 passed by the Ist Additional Civil Judge vacating the earlier order dated September 9, 1983. As mentioned above, the respondent had put in an application for grant of temporary injunction when he instituted the suit on September 8, 1983 giving rise to these appeals. As mentioned above, the respondent had put in an application for grant of temporary injunction when he instituted the suit on September 8, 1983 giving rise to these appeals. An order of temporary injunction was made thereon by the learned Civil Judge purporting to be dated September 9. 1983. An application for transfer under S. 24, Civil Procedure Code, had been made in the meantime before the District Judge by the defendants. Upon the matter being taken up before the trial court on September 9, 1983 the defendants, it appears. prayed for the stay of the proceedings on ground that transfer had been applied for. Various allegations were made in the application into the details whereof we need not enter. The application was rejected. On September 13. 1983 the District Judge directed transfer of the suit to the court of the 1st Additional Civil Judge from that of the Civil Judge. The defendants thereafter applied for review against the order purporting to be made on September 9. 1983. This was opposed by the respondents but on September 27, 1983 under the impugned order the learned 1st Additional Civil Judge granted the application for review and revoked the order claimed to have been made on 9th September. 1983 granting the temporary injunction. This appeal is thus virtually under O. 43 R. I (w), Civil Procedure Code. 50. The trial court has revoked the earlier order observing that it did not appear that the defendants were heard when the order was passed and that there is no reference to any of the contentions raised by them nor are any document referred to therein. An observation has also been made to the effect that as contended for the defendants the order seemed to have been antedated. From the record. we find that order dated 9th -September, 1983 is non-speaking. There are no reasons assigned in support of the temporary injunction granted thereunder. It does not make mention of the relevant' facts involved in controversy nor is there reference to prima facie evidence placed in support thereof. The essential ingredients for grant of temporary injunction are not discussed. In view of the application made for transfer of the proceedings the defendants had not put in their counter-affidavit and the order does not indicate that there was hearing given to counsel for the defendants. The merits involved do not seem to be dealt with. The essential ingredients for grant of temporary injunction are not discussed. In view of the application made for transfer of the proceedings the defendants had not put in their counter-affidavit and the order does not indicate that there was hearing given to counsel for the defendants. The merits involved do not seem to be dealt with. In face of these irregularities apparent on the face of the record, the court below may not be said to have erred in recalling the said order on review. The court below has left open still the decision on merit on the application made by the respondent for grant of temporary injunction. The respondent is at liberty to pursue the same if that be worthwhile. Section 53, Partnership Act. referred to on his behalf, we may observe. comes into play only "after a firm is dissolved." This appeal directed against the order of review is thus devoid of merit. 51. First Appeal From Order No. 738 of 1983 is accordingly dismissed. First Appeal From Order No. 918 of 1983 is dismissed also. 52. First Appeal From Order No. 830 of 1983 is allowed. The order dated November 19. 1983 made by the 1st Additional Civil Judge is set aside. The application for appointment of Receiver is rejected. The appellants shall within one month from the date of the communication of this order to the court below deposit a sum of Rs. 47000/- in the form of National Saving Certificates under the direction of the court below. The disbursement of this amount together with the interest accruing thereon shall be subject to the decision in the suit and such order as may be passed therein. The cross-objection filed by the respondent in this appeal is dismissed. 53. Costs in these appeals and the cross-objection shall be borne by the