Judgment :- 1. The only point for determination in this appeal by the plaintiff is as to whether a retiring partner of a firm is entitled to share the profits of the firm until the date of final settlement of accounts or whether his claim for profits should be restricted to the period up to the date of suit for dissolution of the firm and settlement of accounts. 2. The short facts of the case necessary for the disposal of the appeal are as follows: The plaintiff and defendants 1 to 3 entered into a partnership agreement Ext. Al on 21-6-1978 to conduct a business under the firm name "Santhosh Fisheries". The business consisted of the construction of a fishing boat and its operation for deep sea fishing. As per Ext. Al partnership deed the plaintiff and defendants 1 to 3 are the partners of the firm "Santhosh Fisheries". The first defendant is the Managing Partner entitled to a special remuneration of Rs. 300/- per month. Defendants 1 to 3 had obtained, a loan of Rs. 92,000/ from the 4th defendant the Kerala Financial Corporation and the said amount is to be their investment in the partnership. The plaintiff is to contribute Rs. 30,000/- as his share of investment. The profits of the firm are to be divided into four shares, one share is to be given to the plaintiff and after payment of the instalments due to the 4th defendant, the balance is to be divided equally among defendants 1 to 3. The accounts of the firm are to be maintained by the first defendant and the partners have a right of inspection of the same. In case defendants 1 to 3 default in repaying the loan advanced by the 4th defendant in accordance with the terms of the agreement between them, the plaintiff is authorised to pay the loan, take over the boat, and run the business as a proprietary concern. The instalments paid by defendants 1 to 3 are in that event to be repaid by the plaintiff within two years after the takeover". If any partner wants to retire from the partnership, his share is to be ascertained and paid over to him. On the death of any of the partners, it is open to his legal representative to continue as a partner of the firm or retire from the partnership. If any partner wants to retire from the partnership, his share is to be ascertained and paid over to him. On the death of any of the partners, it is open to his legal representative to continue as a partner of the firm or retire from the partnership. If any additional investment is found necessary, the first defendant is authorised to make such investment and adjust the same towards the profits due to the partners. If the business entails in loss or otherwise found necessary to stop the business, the boat is to be sold and its proceeds divided among the partners equally. 3. The firm built a mechanised boat by name "Santhosh" and started the business of deep sea fishing. Soon, there were differences of opinion among the partners. The plaintiff by Ext. A2 notice addressed to defendants 1 to 3 demanded dissolution of the firm and settlement of accounts. He expressed his willingness to repay the loan due to the 4th defendant and take over the business as his proprietory concern. Defendants 1 to 3 did not accede to the demand under Ext. A2. Thereupon the plaintiff filed the present suit for dissolution of the firm and for settlement of accounts. 4. The defendants resisted the suit denying the plaint allegations and contending that the plaintiff has neither a right to demand the dissolution of the firm nor has he any right to take over the business of the firm as a proprietary concern on payment of the balance due on the loan advanced by the 4th defendant to defendants 1 to 3. They also contended that additional amounts had been invested in the partnership business, the instalments due to the 4th defendant are being paid regularly and the share of profits due to the plaintiff had been adjusted towards the additional investments in terms of the provision in that behalf in the partnership deed Ex. Al. 5. The court below found that the plaintiff has no right to take over the business as a proprietory concern so long as defendants 1 to 3 had been paying the instalments due to the 4th defendant regularly, there was no default in payment of such instalments and hence the only remedy available to the plaintiff is to retire from the partnership as provided for in Ext. Al and in accordance with the provisions of S.32 of the Indian Partnership Act, 1932. The court below has also found that over and above the initial investment of . Rs. 30,000/- by the plaintiff, a sum of Rs. 6,685.97 due to him by way of share of profits had been adjusted towards additional investments in the firm. On these findings the court below passed a preliminary decree allowing the plaintiff to recover from defendants 1 to 3 and the assets of the partnership, his entire investment in the capital outlay and share of profits due to him, the quantum of which is to be determined on settlement of accounts at the stage of the final decree. The plaintiff's investment was tentatively found to be Rs. 36,685.97 as on 11-5-1979 subject to final settlement on scrutiny of accounts in the final decree proceedings. The plaintiff was directed to take out a commission for settlement of accounts to determine his total investment and share of profits due to him on the date of suit. The plaintiff was allowed to recover the amount thus settled with interest from the date of suit at 6% per annum from defendants 1 to 3. and the assets of the partnership. 6. The plaintiff challenges the finding of the court below that his additional investment is only Rs. 6,685.97. The final determination of the investment made by the plaintiff and the share of profits due to him is relegated to the final decree stage. The tentative finding in regard to the additional investment does not stand in the way of the plaintiff proving any further investment at that stage. It is also open to the plaintiff to prove that the investment adjusted towards profits due to him is much more than what is tentatively found by the court below. We make it clear that the tentative finding at the preliminary decree stage does not stand in the way of the plaintiff proving his case relating to investment and profits at the final decree stage. 7.The court below is not however right in restricting the plaintiff's right to share of profits until the date of suit. The business is a running concern and the profits received are attributable to the investment made by all the partners including the plaintiff. 7.The court below is not however right in restricting the plaintiff's right to share of profits until the date of suit. The business is a running concern and the profits received are attributable to the investment made by all the partners including the plaintiff. Both on principle and precedent, the plaintiff is entitled to his due share of profits until the date of final settlement of accounts by the final decree to be passed in the suit. As per S.37 of the Indian Partnership Act an outgoing partner in the absence of a contract to the contrary is entitled at his option to such share of profits made since he ceased to be a partner as may be attributable to the use of his share of the property of the firm or to interest at 6% per annum on the amount of his share in the property until final settlement of accounts. A partner is bound in a fiduciary character to protect the interests of the other partners and under S.88 of the Indian Trusts Act he is bound to hold any pecuniary advantage gained for himself in his capacity as a partner for the benefit also of the other partners. In Crawshay v. Collins', (1808) 15 Ves. Jun 218 (A) it was held that on dissolution of a firm on the bankruptcy of a partner, the assignees of the bankrupt are, entitled beyond an account and distribution of stock to the participation of subsequent prof its made by the other partners, carrying on trade with the capital. The principle is that there exists a fiduciary relationship among the partners and equity will never permit the person standing in that relationship to any other person to trade with the property of that other person for his own profit. He must hold the profit in trust for the owner of the property, the use of which had produced the profit. In Feather stonhaugh v. Fenwick (1810) 17 Ves. Jun 298 (B) Sir William Grant, the Master of the Rolls said: "The next consideration is, whether the terms, upon which the defendants proposed to adjust the partnership concern, were those, to which the plaintiff was bound to accede. In Feather stonhaugh v. Fenwick (1810) 17 Ves. Jun 298 (B) Sir William Grant, the Master of the Rolls said: "The next consideration is, whether the terms, upon which the defendants proposed to adjust the partnership concern, were those, to which the plaintiff was bound to accede. The proposition was, that a value should be set on the partnership stock; and that they should take his proportion of it at that valuation; or that he should take away his share of the property from the premises. My opinion is clearly, that these are not terms to which he was bound to accede. They had no more right to turn him out that he had to turn them out, upon those terms. Their rights were precisely equal; to have the whole concern wound up by a sale, and a division of the produce. As therefore they never proposed to him any terms, which he was bound to accept, the consequence is, that continuing to trade with his stock, and at his risk, they came under a liability for whatever profits might be produced by that stock". The same principle was accepted by the House of Lords in Hugh Stevenson (Hugh) & Sons Ltd. v. Aktiengesellschaft Fur Cartonnagen-lndustie, (1918) AC 239 (C). In that case an English Company and a German Company carried on a partnership business in England until the outbreak of the first world war which operated as a dissolution of the partnership. The English company, however, continued to carry on the business and to use the partnership assets for that purpose. The House of Lords held that the German Company is entitled to share the profits earned by the English company carrying on business after the dissolution of the firm, with the aid of the German Company's share of capital. In Ahmed Musaji v. Hashim Ebrahim (AIR 1915 P.C.116 (D)) Lord Summer observed: "It is well settled that, in certain cases, when on the dissolution of a firm one of the partners retains assets of the firm in his hands without any settlement of accounts and applies them in continuing the business for his own benefit, he may be ordered to account for these assets with interest thereon, and this apart from fraud or misconduct in the nature of fraud." The above principle is embodied in S.37 of the Indian Partnership Act. A partner deriving benefits by use of the assets of a retiring partner is bound to account for such benefits to the latter by virtue of the provisions of S.88 of the Indian Trusts Act. A Division Bench of the Patna High Court in Ramnarayan v. Kashinath (AIR 1954 Patna 53) after adverting to the principles stated in the decisions referred to above stated at page 56: "(11) It is manifest that S.37 of the Partnership Act applies to the present case and the plaintiff is entitled to his proper share of the profits which may have been earned in the salt business by the use of the property of the firm between the date when the plaintiff ceased to be a partner and the date when the final account is settled. On behalf of the appellants, it was contended that there is no specific claim under S.37 of the Act to be found in the plaint and no such relief ought to be granted to the plaintiff. I am unable to accept this argument. S.37 is based on the equitable jurisdiction of the Court to grant relief in a case where the surviving partner has carried on the business of the firm with the property of the firm without any final settlement between him and the outgoing partner. The Court has jurisdiction to grant such relief if the necessary facts are found and it is immaterial that the plaintiff has not asked for relief under S.37 in the plaint." 8. Tek Chand J. in Mansha Ram v. Tej Bhan (AIR 1958 Punjab 5) applying S.37 of the Indian Partnership Act and S.88 of the Indian Trusts Act held that a retiring partner is at his option entitled to the share of profits attributable to his investment until the date of final settlement of accounts or to 6% interest and it is open to him to exercise this option at any time before a final decree is passed in the suit for dissolution of partnership and settlement of accounts. 9. A Division Bench of the Madhya Pradesh High Court in Bhawarlal v. Mathura Prasad (AIR 1962 M.P. 141) stated at page 143: "24. 9. A Division Bench of the Madhya Pradesh High Court in Bhawarlal v. Mathura Prasad (AIR 1962 M.P. 141) stated at page 143: "24. Even if we were to assume that the first respondent retired from the partnership with effect from Diwali of the year 1954, there is no doubt that under, S.37 of the Partnership Act be would be entitled to claim a share in the profits or to claim 6 per cent interest on the capital advanced by him unless the other partners settled the accounts and cleared off all the dues that might be due to him." 10. For the aforesaid reasons, we hold that the plaintiff is entitled at his option to his due share of profits as provided for in Ext.A1 or interest at 6% F.A. from date of suit till the final settlement of accounts as per the final decree to be passed in the suit. The preliminary decree passed by the court below is modified accordingly. The appeal is allowed to the above extent. The parties will suffer their respective costs. Allowed.