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2010 DIGILAW 2472 (MAD)

Ponnusamy v. K. K. Subramaniam

2010-06-21

P.R.SHIVAKUMAR

body2010
Judgment :- 1. This appeal and cross objection have been filed against the judgment and decree of the trial court, namely the court of the Additional District Judge (Fast Track Court II), Gopichettipalayam dated 19.09.2002 made in O.S.No.5/2001 on the file of the said court. The defendants 1 to 3 in the original suit are the appellants herein. The suit was filed by the respondent herein for a perpetual injunction restraining the appellants/defendants from running the rice and oil mill, which had been run as a partnership business, the subject matter of the suit and for settlement of accounts and distribution of assets of the partnership to the partners. The suit was partly allowed in respect of the second prayer, namely settlement of accounts and distribution of the assets of the partnership to the partners. A preliminary decree to that effect declaring the entitlement of the respondent/plaintiff to 50% of the assets of the partnership was granted. However, the suit was dismissed so far as the relief of permanent injunction sought for in the plaint is concerned. As against the preliminary decree directing settlement of accounts and payment of 50% of the assets of the partnership to the respondent/plaintiff, the appellants/defendants have preferred the appeal. As against the other part of the decree of the trial court dismissing the suit in respect of the relief of permanent injunction, the respondent/plaintiff has preferred the Cross Objection No.35/2003. 2. The case of the respondent/cross objector/plaintiff, as per the contents of the plaint, in brief, can be stated thus:- The appellants 1 and 2/defendants 1 and 2 are the sons of the third appellant/third defendant. The third appellant/third defendant was the manager of the joint family consisting of the three appellants till a partition took place among them on 06.09.1984. In 1974 itself, the third appellant/third defendant, as the joint family manager entered into an oral partnership agreement with the respondent/plaintiff for jointly constructing and running a rice mill. The respondent/plaintiff contributed a sum of Rs.1,00,000/-and the third appellant/third defendant as the kartha of the joint family contributed one lakh for the construction of the rice mill. The said rice mill was named as Sri Vijayalakshmi Rice and Oil Mill. License was obtained jointly in the names of the respondent/plaintiff and the third appellant/third defendant. The income derived from the mill was shared between the partners. The said rice mill was named as Sri Vijayalakshmi Rice and Oil Mill. License was obtained jointly in the names of the respondent/plaintiff and the third appellant/third defendant. The income derived from the mill was shared between the partners. After a partition took place in the family of the defendants in 1984, the first appellant/first defendant purchased the shares of the other two appellants, namely appellants 2 and 3/defendants 2 and 3 in the rice mill and after such purchase the first defendant became entitled to the half share of their family in the rice mill and thus both the first appellant/first defendant and the respondent/plaintiff alone continued the partnership business as partner. After such purchase of the shares of the other appellants/other defendants was paid by the first appellant/first defendant, in February 1998 the first appellant/first defendant due to misunderstanding locked the rice mill and stopped the business, pursuant to which the respondent/plaintiff had to issue a notice dated 26.03.1998 dissolving the partnership with effect from 01.04.1998. The said notice was received by the first appellant/first defendant and the first appellant/first defendant issued a reply notice dated 11.04.1998 questioning the respondents/plaintiffs right to dissolve the partnership and also denying his half share in the site on which the rice mill stands. The reasons assigned in the reply notice for not running the rice mill are false. The first appellant/first defendant, who was running the rice mill has to account for all the incomes received by him. Denying the title of the respondent/plaintiff to an undivided extent of 13 17/54 cents in the land over which the rice mill building was constructed, the appellants/defendants had filed a suit in O.S.No.119/1998 on the file of the Sub-court, Gobichettipalayam and obtained an ex-parte order of interim injunction on 17.06.1998 and with the strength of the said order, the first appellant/first defendant with the help of the other appellants/other defendants has been running the rice mill and appropriating the entire income for himself. The first appellant/first defendant is not entitled to run the rice mill after the partnership was dissolved by the notice issued by the respondent/plaintiff. Therefore, the first appellant/first defendant, who is running the rice mill, despite the objection and protest raised by the respondent/plaintiff is also liable to render accounts for the income derived from the rice mill. The first appellant/first defendant is not entitled to run the rice mill after the partnership was dissolved by the notice issued by the respondent/plaintiff. Therefore, the first appellant/first defendant, who is running the rice mill, despite the objection and protest raised by the respondent/plaintiff is also liable to render accounts for the income derived from the rice mill. The respondent/plaintiff is also entitled for settlement of accounts and on such settlement, distribution of 50% of the assets of the partnership to him. Hence the suit for the above said reliefs of injunction and settlement of accounts and distribution of assets. 3. A written statement was filed by the first appellant and the same was adopted by the appellants 2 and 3 and all the three appellants resisted the suit based on the averments contained in the said written statement, which in brief, are as follows:- i) The respondent/plaintiff is the son of the maternal uncle of the first appellant/first defendant and thus he is a close relative of the appellants/defendants. When the first appellant/first defendant wanted the respondent/plaintiff to join as a partner in the rice mill proposed to be started, the respondent/plaintiff demanded conveyance of an immovable property in his favour to enable him to join as a partner in the proposed rice mill. Hence a sham and nominal sale deed was executed and registered on 04.07.1974 in respect of an undivided extent of 13 17/54 cents in old Survey No.144A and new Survey No.15/7 in Irugalur village, Gobichettipalayam Taluk in favour of the respondent/plaintiff. As the said sale was sham and nominal, no consideration was received from him and the title and possession of the property continued to rest with the appellants/defendants. The original sale deed was also not handed over to the respondent/plaintiff and the same was retained by the third appellant/third defendant. Patta had been issued in the name of the third appellant/third defendant. Since the sale was sham and nominal, the respondent/plaintiff did not take steps to get the patta transferred in his name. However, the rice mill building, machineries and other affixtures alone were used as properties of the partnership firm having the appellants/defendants and the respondent/plaintiff as partners. In the rice mill alone, excluding the land on which the rice mill has been built, the respondent/plaintiff had got a common half share, whereas the appellants/defendants were jointly entitled to the other half. However, the rice mill building, machineries and other affixtures alone were used as properties of the partnership firm having the appellants/defendants and the respondent/plaintiff as partners. In the rice mill alone, excluding the land on which the rice mill has been built, the respondent/plaintiff had got a common half share, whereas the appellants/defendants were jointly entitled to the other half. By a partition deed dated 06.09.1984, appellants/defendants divided the 3/6 share in the building, machineries, electricity service connection and license of the rice mill alone among themselves and each one of them was allotted 1/6 share. On 05.09.1984, the appellants 2 and 3/defendants 2 and 3 conveyed their shares in the rice mill in favour of the first appellant/first defendant under a registered sale deed and thereafter the first appellant became entitled to the entire half share held by the family of the appellants/defendants. Thus the first appellant/first defendant and the respondent/plaintiff became equal partners in respect of the rice mill business excluding the land over which the rice mill was constructed. ii) It is incorrect to state that the respondent/plaintiff contributed Rs.1,00,000/-, whereas the third appellant/third defendant, as kartha of the family consisting of the appellants/defendants contributed Rs.1,00,000/-for the above said business. On the other hand, there was a specific understanding that the respondent/plaintiff should invest Rs.75,000/- and third appellant representing the joint family consisting of the appellants should invest Rs.75,000/-. Thus, the respondent/plaintiff and the first defendant as kartha of the family of the appellants/defendants contributed Rs.75,000/-each making the total share capital Rs.1,50,000/-. It was also the understanding that the profit shall be shared between the respondent/plaintiff and the appellants/defendants in the ratio of 50:50. It was also a specific understanding between the parties that the respondent/plaintiff would not have any right in the rice mill and he would not claim any right under the sale deed dated 04.07.1974. The parties also orally agreed that in case of arisal of any problem in running the rice mill or if the plaintiff expresses his unwillingness to continue to run the rice mill, then he should opt out of the partnership after getting his share in the market value of the building and machineries and retire from the partnership. It was also the specific understanding that the plaintiff shall not claim any share in the land. It was also the specific understanding that the plaintiff shall not claim any share in the land. The necessary building for the mill was constructed and the machineries were erected in 1976 and the mill was started functioning in 1977 after obtaining necessary license jointly in the names of the third appellant/third defendant and the respondent/ plaintiff. Till January 1998, the mill was running profitably and the profit was shared as per the above mentioned understanding. iii) While so, in or about January 1998 when the officials of the Tamil Nadu Government wanted to construct a water tank near the rice mill, the first appellant/first defendant and the respondent/plaintiff initially expressed no objection for putting up a water tank. However, subsequently the respondent/plaintiff raised objection and prevented the officials from putting up a water tank near the rice mill. The propriety of the said act of the respondent/plaintiff was questioned by the first appellant/first defendant, pursuant to which he got a grudge against the appellants/defendants and proclaimed that he would see how the first appellant/first defendant would run the mill. In the above said background of facts, in February 1998, when the first appellant/first defendant was away from the mill, the respondent/plaintiff high-handedly entered into the mill premises and started dismantling the compressor and motors. While he was in the process of thus dismantling the machineries, the wife of the first appellant/first defendant intercepted and thwarted the attempt made by the respondent/plaintiff to dismantle and remove the compressors and motors. Pursuant to the said occurrence, without putting any lock, the first appellant/first defendant kept the rice mill idle without running it. Under such circumstances, the electricity charges from January 1998 to April 1998 became due. When the respondent/plaintiff was asked to pay 50% of the electricity consumption charges, he refused to pay the same. Hence the production in the rice mill was stopped resulting in loss. With the intention of avoiding further loss, the first appellant/first defendant paid a sum of Rs.15,000/-to the Electricity Board towards the arrears of electricity consumption charges of the mill, obtained re-connection on 18.06.1998 and thereafter started running the mill once again. The market value of the machineries in the rice mill shall be Rs.1,00,000/-. The building, excluding the land, is worth Rs.50,000/-. The market value of the machineries in the rice mill shall be Rs.1,00,000/-. The building, excluding the land, is worth Rs.50,000/-. Thus the respondent/plaintiff shall be entitled to get Rs.75,000/- alone as his half share in the value of the machineries and building of the rice mill. Also, according to the oral understanding between the parties, the respondent/plaintiff is legally bound to release all his rights and interest in the rice mill after getting a sum of Rs.75,000/-. iv) The suit mill was not started as a partnership business. Therefore, the claim of the respondent/plaintiff that the partnership was dissolved by issuing a notice deserves to be rejected as untenable. As per the oral agreement, the amount payable to the respondent/plaintiff, namely Rs.75,000/-has been paid into the court on 11.08.1998 after getting the order of the court. On such payment, the oral agreement between the respondent/plaintiff and the appellants should be construed to have been brought to an end. The respondent/plaintiff cannot seek any relief under the provisions of the Indian Partnership Act against the appellants/defendants since the business was not carried on as a partnership business incorporating the provisions of Indian Partnership Act. The respondent/plaintiff shall also be not entitled to the relief of injunction sought for in the plaint. As the mill is being run by the first appellant/first defendant, in case the respondent/plaintiff is held entitled to claim his rights as a partner, he can be compensated by money for his exclusion from the management. The respondent/plaintiff, in his notice dated 26.03.1998 has named the arbitrators of his choice. Similarly the appellants/defendants have also named the arbitrators of their choice. Without seeking to have the dispute resolved by arbitration, the respondent/plaintiff has approached the court with unclean hands. The suit has become infructuous pursuant to the deposit of a sum of Rs.75,000/-by the appellants/defendants to the credit of the suit. The suit has been filed with a malafide intention of extracting money from the appellants/defendants and hence the same is liable to be dismissed. There is no cause of action for the suit and the one cited in the plaint is also false. Only an extent of 30 x 37 sq.ft. of land is occupied by the building and rice mill. There is no cause of action for the suit and the one cited in the plaint is also false. Only an extent of 30 x 37 sq.ft. of land is occupied by the building and rice mill. Instead of showing the said extent alone as the property of the partnership firm, the respondent/plaintiff has shown the entire extent of 0.11.00 hectares comprised in Survey No.15/7 in the description of property. Therefore, the description of the property is not proper. Even in respect of the above said 30 x 37 sq.ft. of land over which the building of the mill stands, the respondent/plaintiff does not have any share as the same belonged to the appellants/defendants and now belongs to the first appellant/first defendant. The suit is also barred under Section 69 of the Indian Partnership Act. For all the above said reasons, the suit should be dismissed with costs. 4. Based on the above said pleadings, the trial court framed the following issues:- i)Whether the sale deed dated 04.07.1974 in the name of the plaintif is not legally valid and hence he cannot claim any right in the suit property based on the same? ii)Whether the prayer for the relief of permanent injunction in respect of the suit property described as the mill situated in the dry land comprised in Survey No.15/7 having an extent of 0.11.0 hectare is legally sustainable? Whether the plaintiff is entitled to the relief of permanent injunction? iii)Whether the description of property found in the plaint schedule is correct? iv)Whether the suit of the plaintiff is not maintainable for want of a prayer for declaration in respect of the suit property and whether the suit should be dismissed in-limini on the said ground? v)Whether the plaintiff is not entitled to seek any relief in the suit under Indian Partnership Act? vi)Whether the suit is liable to be dismissed on the ground that the plaintiff has not chosen to state in the plaint that the issues were agreed to be resolved by resorting to arbitration? vii)Is it correct to state that there is no cause of action for the suit? viii)To what relief the plaintiff is entitled? 5. One witness was examined as P.W.1 and 29 documents were marked as Exs.A1 to A29 on the side of the respondent/cross objector/plaintiff. vii)Is it correct to state that there is no cause of action for the suit? viii)To what relief the plaintiff is entitled? 5. One witness was examined as P.W.1 and 29 documents were marked as Exs.A1 to A29 on the side of the respondent/cross objector/plaintiff. Two witnesses were examined as D.Ws.1 and 2 and four documents were marked as Exs.B1 to B4 on the side of the appellants/defendants. The learned trial judge, after hearing the arguments advanced on either side considered the pleadings made by the parties and the evidence, both oral and documentary, adduced on either side. Upon such consideration, the learned trial judge decreed the suit in part and granted a preliminary decree for settlement of accounts and distribution of the assets of Sri Vijayalakshmi Rice and Oil Mill described as the suit property in the plaint schedule and dismissed the suit so far as the prayer for injunction restraining the appellants/ defendants from running the rice mill. As against the preliminary decree for settlement of accounts and distribution of assets of the mill, the appellants/defendants 1 to 3 have come forward with A.S.No.749/2002 on various grounds set out in the memorandum of appeal. The respondent/cross objector/plaintiff has filed Cross Objection No.35/2003 questioning the correctness of that part of the decree passed by the trial court dismissing the suit in respect of the prayer for injunction restraining the defendants from running a rice mill on various grounds set out in the memorandum of cross objection. 6. The arguments advanced by Mr.R.T.Doraisamy, learned counsel for the appellants and by Mr.T.Murugamanickam, learned counsel for the respondent/cross objector were heard. The entire materials available on record were also perused. 7. The following are the points that arise for determination in the appeal and the cross objection:- i)Whether the respondent/cross objector/plaintiff does not have any share in the land over which the rice and oil mill has been put up? ii)Whether the description of property furnished in the plaint is not correct? iii)Whether the suit is barred by section 69 of the Indian Partnership Act, 1932? iv)Whether the respondent/cross objector/plaintiff is entitled to the relief of rendition of accounts and distribution of the assets of the partnership firm? v)Whether the respondent/cross objector/plaintiff is entitled to the relief of injunction restraining the appellants/defendants from running the rice mill in the name of the partnership firm before winding up of the same is completed? iv)Whether the respondent/cross objector/plaintiff is entitled to the relief of rendition of accounts and distribution of the assets of the partnership firm? v)Whether the respondent/cross objector/plaintiff is entitled to the relief of injunction restraining the appellants/defendants from running the rice mill in the name of the partnership firm before winding up of the same is completed? vi)To what relief the parties are entitled? 8. The defendants 1 to 3 in the suit are the appellants herein. The sole plaintiff in the suit is the respondent in the appeal and the cross objector in the Cross Objection. The suit was filed seeking a relief of injunction restraining the appellants/defendants from running the rice mill described as suit property in the plaint schedule and for the relief of settlement of accounts and distribution of the assets of the said rice mill. The said prayers have been made based on the plaint averments that the rice mill business was started and run as a partnership business in the building constructed and machineries erected using the share capital raised by the contribution of Rs.1,00,000/-by the respondent/plaintiff and Rs.1,00,000/-by the third appellant as the kartha of the family consisting of the appellants 1 to 3 making the total share capital of the money invested by them to Rs.2,00,000/-; that the mill was constructed and run on a land, of which the respondent/plaintiff and the appellants were the co-owners; that the respondent/plaintiff was entitled to a common half share in the land comprised in new survey No.15/7 having an extent of 0.11.0 hectare over which the mill stands and that as per the agreement between the parties, he was entitled to a share of 50% not only in the profit and loss but also in the assets of partnership business. The prayer for the reliefs of injunction and settlement of accounts and distribution of the assets of the partnership concerned, has been made on the strength of the plea that the partnership was at will and the same was dissolved by the respondent/plaintiff by exercising his option to dissolve the same with effect from 01.04.1998 by serving a notice dated 26.03.1998 on the appellants/defendants. The appellants/defendants would admit the fact that the rice mill business was run jointly by the respondent/plaintiff and the third appellant/third defendant on behalf of the jointly family of which he was the kartha, both of them contributing equal amount towards the share capital; that the profit earned in the business was agreed to be shared between them in the ratio of 50:50 and that after 1984 when there was a partition in the family of the appellants/defendants and the shares of appellants 2 and 3 / defendants 2 and 3 were purchased by the first appellant/first defendant the first appellant became entitled to half share in the rice mill and the other half share remained with the respondent/plaintiff. However, they have come forward with a novel plea that there was neither a partnership agreement and nor a partnership business and that hence the suit filed by the respondent/plaintiff is not maintainable. It is their further contention that though the respondent/plaintiff has got a common half share in the building, machineries and electric connection of the suit rice mill, he does not have any share in the land over which the mill situates. 9. The respondent/plaintiff claims to be a joint owner, entitled to half share in the land comprised in survey No.15/7 having an extent of 0.11.0 hectare by virtue of a sale deed dated 04.07.1974. Admittedly, a larger extent comprised in old survey No.144A in Irugalur village, Gobichettipalayam Taluk belonged to the appellants/defendants as their joint family property and subsequently, 0.11.0 hecares out of the same was assigned separate new survey No.15/7 and that a sale deed dated 04.07.1974 purporting to convey an undivided 13 17/54 cents was executed in favour of the respondent/plaintiff. The appellants/defendants have admitted the execution of the said sale deed by the first appellant/first defendant and by the third appellant/third defendant for himself and as guardian of the second appellant/second defendant, who was a minor on the date of the execution of the said sale deed. But they have come forward with a plea that the said sale was not a genuine one and on the other hand, the same was executed as a sham and nominal deed, without any intention of effecting a transfer of title under the said document. The land also has been shown to be the part and parcel of the suit property as per the plaint schedule. The land also has been shown to be the part and parcel of the suit property as per the plaint schedule. Point No.iii 10. It is also the contention of the appellants/defendants that since there was no written partnership deed and since the partnership was not a registered one, the suit by the respondent/plaintiff claiming to be a partner of the partnership business shall not be maintainable, as the same is barred by section 69 of the Indian Partnership Act. Therefore, the first and foremost question that arises for determination in this case is "whether the suit filed by the respondent/plaintiff for injunction and for settlement of accounts and distribution of assets of the partnership business on the strength of his pleading that the partnership was dissolved by issuing a notice is barred by section 69 of the Indian Partnership Act?". 11. For a better appreciation Section 69 of the Indian Partnership Act, 1932, dealing with the fact of non-registration, is reproduced here under. 69. Effect of non-registration – (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. (2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. (3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect,- (a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or (b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909, or the Provincial Insolvency Act, 1920, to realise the property of an insolvent partner. (4) This section shall not apply,- (a) to firms or to partners in firms which have no place or business in the territories to which this Act extends, or whose places of business in the said territories, are situated in areas to which, by notification under section 56, this Chapter does not apply, or (b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency-towns, is not of a kind specified in section 19 of the Presidency Small Cause Courts Act, 1882, or outside the Presidency-towns, is not a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887, or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim. 12. Though there is a general bar for filing a suit to enforce a right arising from a contract or conferred by the Act, such a bar is applicable only when the suit is filed against the firm or when the suit is filed by or on behalf of the firm against any third party unless such firm is registered and the persons suing are shown in the Register of Firms as partners in the firm. However, sub-clause (3)(a) exempts a suit from the bar provided under the sub-clause (1) and (2) of Section 69 of the Indian Partnership Act, 1932 when such a suit is filed for the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm or any right or power to realise the property of a dissolved firm. Though the firm might not have been registered, the following suits are not barred under Section 69 of the Indian Partnership Act, 1932. i)Suit for enforcement of any right to dissolution of an unregistered firm ii)Suit for accounts of a dissolved firm and iii)Suit for enforcement of any right or power to realise the property of a dissolved firm. 13. Though the firm might not have been registered, the following suits are not barred under Section 69 of the Indian Partnership Act, 1932. i)Suit for enforcement of any right to dissolution of an unregistered firm ii)Suit for accounts of a dissolved firm and iii)Suit for enforcement of any right or power to realise the property of a dissolved firm. 13. In this case, though the rice mill business was run jointly by the respondent/plaintiff and the third appellant/third defendant representing the joint family of which he was the kartha at the initial stage and subsequently jointly by the respondent/plaintiff and the first appellant/first defendant, it is an admitted fact that there was no registered partnership deed and the business concern was also not registered as a partnership firm with the Registrar of Firms. But, it is not a suit by the respondent/plaintiff against the firm having the respondent/plaintiff and the first appellant/first defendant as its partners. It is also not a suit on behalf of the partnership firm called "Sri Vijayalakshmi Rice and Oil Mill". The present suit has been filed by the respondent/plaintiff only for settlement of accounts and distribution of the assets of the partnership business and for an injunction restraining the appellants/defendants from running the mill before the completion of such settlement and distribution of assets. Based on the plea of the respondent/plaintiff that the partnership was one that could be dissolved at will and that and the same was dissolved with effect from 01.04.1998 by serving a notice dated 26.03.1998 on the first appellant/first defendant, it has been contended onbehalf of the respondent/plaintiff that the suit squarely falls under the second and third categories of cases listed in subclause (3)(a) of Section 69 of the Indian Partnership Act. Even in a case where a partner shall not have a right to dissolve the firm without the intervention of the court, such a partner shall not be debarred from filing a suit for dissolution of an unregistered firm and other consequential reliefs. As such a suit comes under the category of cases exempted under sub-clause (3)(a) of Section 69 of the Indian Partnership Act, 1932. As such there is no substance in the contention of the appellants/defendants that the suit is barred under Section 69 of the Indian Partnership Act, 1932. As such a suit comes under the category of cases exempted under sub-clause (3)(a) of Section 69 of the Indian Partnership Act, 1932. As such there is no substance in the contention of the appellants/defendants that the suit is barred under Section 69 of the Indian Partnership Act, 1932. The learned trial judge has rightly held that the suit is not barred under Section 69 of the Indian Partnership Act, 1932. The said finding does not deserve any interference and on the other hand deserves to be confirmed. Point Nos. i and ii 14. The next question that arises for consideration is "whether the suit is not maintainable as the suit property has been incorrectly described?" The contention of the appellants/defendants in this regard is two fold. Firstly, it is the contention of the appellants/defendants that the mill occupies an area of 30 x 37 sq.ft. alone whereas the entire extent of 26 34/54 cents has been shown to be forming part of the assets of the partnership business, namely "Sri Vijayalakshmi Rice and Oil Mill" and that hence the plaintiff should be non-suited for the relief on the ground that an incorrect description of the property has been provided in the plaint schedule. Secondly, it is the contention of the appellants/defendants that even in respect of the property over which the mill stands, the respondent/plaintiff does not have a share and the entire extent belonged to the defendants and now belongs absolutely to the first appellant/first defendant. 15. Let us now consider the tenability of the above said contentions raised by the appellants/defendants. Admittedly, the main building of the mill occupies an area of 30 x 37 sq.ft. The plaintiff, while deposing as P.W.1, has admitted that the main building of the rice mill has been constructed over an area about 990 Sq.ft. It is also the admitted case of the parties that the residential house of the appellants/defendants is situated on the south-west of the mill premises. It is also an admission that in between main building of the mill and the residential house of the appellants/defendants, there is a vacant space. According to the respondent/plaintiff, the said space was used as a drying yard attached to the mill. The appellants/defendants, who have come forward with a plea that the mill occupies only an extent of 990 sq.ft. According to the respondent/plaintiff, the said space was used as a drying yard attached to the mill. The appellants/defendants, who have come forward with a plea that the mill occupies only an extent of 990 sq.ft. and the rest of the vacant site was annexed to the residential house as its front yard, have not come forward with any clear evidence, either oral or documentary to show the title, extent initially available with the family and the area occupied by the residential house and the area of vacant site available in between the mill building and the residential house. On the other hand, the first appellant/first defendant while deposing as D.W.1, has made a clear admission that there is a concrete drying floor situated on the west of the mill building. However, he would state that he was not aware of the extent of such concrete drying yard. It is also an admitted fact that in the property described as suit property, there are bath-room and latrine. But the appellants/defendants would contend that the said bath-room and latrine were intended for the exclusive use of the family members of the appellants/defendants and that the same was annexed to the residential house making the area over which the same were constructed and the open space in between the house and the latrine and bath-room as the land appurtenant to the residential house and not the land attached to the mill. However, the first appellant/first defendant, while deposing as D.W.1, has admitted that no lincense for running the rice and oil mill will be issued, if bath-room and latrine are not provided in the mill premises. He has pleaded ignorance as to whether the bath-room and latrine were shown to be the part of the mill premises in the blue print. He has also admitted that they have not shown the bathroom and latrine in the plan submitted to the Panchayat for approval for building the residential house. In the light of the said evidence, the failure to produce the blue print and the approved plan for the construction of the mill will give rise to an adverse inference against the appellants/defendants in this regard. 16. The other witness, namely D.W.2, examined on the side of the appellants/defendants, has not deposed anything regarding the above said aspect. In the light of the said evidence, the failure to produce the blue print and the approved plan for the construction of the mill will give rise to an adverse inference against the appellants/defendants in this regard. 16. The other witness, namely D.W.2, examined on the side of the appellants/defendants, has not deposed anything regarding the above said aspect. However, the learned counsel for the appellants would contend that there is an admission on the part of P.W.1 that the mill was used only for hulling rice and extracting oil for others on a charge to be collected and that the parties never used it for hulling the paddy purchased by them to sell the rice after hulling and that in the light of the said admission, it should be presumed that there was no necessity to have a concrete drying yard. The said contention of the learned counsel for the appellants cannot be countenanced. There cannot be any inference that the mill does not have a drying yard since it was used only for hulling for others on a charge to be collected. Clear evidence has been adduced by P.W.1 that there is a drying yard made of concrete floor annexed to the mill building. The same was also admitted by the first appellant/first defendant while deposing as D.W.1. He has clearly admitted that the drying yard was made of concrete and that the same is situated on the west of the rice mill building. Therefore, the contention raised on behalf of the appellants/defendants that the mill did not have a drying hard attached to it as the same was used for hulling paddy for others on a charge to be collected does not have any substance in it and the same deserves to be discountenanced. The learned trial judge has rightly held that the drying yard also forms part of the mill premises and that hence the objection to the maintainability of the suit on the ground that a larger extent than 30 x 37 sq.ft. of land over which the main building of the mill stands has been shown to be the land attached to the mill premises, deserves to be rejected as untenable. There is no ground, whatsoever, for interfering with the said finding of the court below and hence the same is confirmed. 17. of land over which the main building of the mill stands has been shown to be the land attached to the mill premises, deserves to be rejected as untenable. There is no ground, whatsoever, for interfering with the said finding of the court below and hence the same is confirmed. 17. The further contention of the appellants/defendants is that though a sale deed was executed conveying a common half share (undivided extent of 13 17/54 cents) out of an extent of 0.11.00 hectare of land comprised in Re.Survey No.15/7, Irugalur Village, Gobichettipalayam shown in the plaint schedule in favour of the respondent/plaintiff on 04.07.1974, the said sale was a sham and nominal one and hence the respondent/plaintiff did not derive any title to the said property. As the sale deed is admitted by the appellants/defendants and they claim that the sale deed was executed as a sham and nominal deed, the onus to prove the same rests heavily on them. In this regard, except the ipse dixit of the first appellant/first defendant as D.W.1, there is no evidence of any independent witness to prove the contention of the appellants/defendants that the sale deed dated 04.07.1974 was a sham and nominal one. It is an admitted fact that an extent of 0.11.00 hectare (equal to 26 34/54 cents of land) within specified boundaries comprised in old Survey No.144A and new Survey No.15/7 in Irugalur Village, Gobichettipalayam Taluk, originally belonged to the appellants/defendants as their ancestral joint family properties. It is also not in dispute that out of the above said extent of 26 34/54 cents, an undivided half share measuring 13 17/54 cents was purported to be sold under the sale deed dated 04.07.1974 to the respondent/plaintiff. The said sale deed was registered on the file of the Sub-Registrar, Nambiyur as document No.887/1974. It is true that the original sale deed was not produced from the custody of the respondent/plaintiff and the same was produced from the custody of the appellants/defendants as a document not in this case but in the connected case, namely O.S.No.1/2001 filed by the appellants/defendants, which was tried simultaneously by the trial court along with this case. Not even a certified copy of the same has been produced by the appellants in this case. Not even a certified copy of the same has been produced by the appellants in this case. However, it is not in dispute that the said sale deed was executed by the first appellant and the third appellant for himself and on behalf of the second appellant as his natural guardian since the second appellant was then a minor. Of course, it is true that no transfer of title shall take place under a sham and nominal deed, as it is non-est in the eye of law. But a person, who admits execution of a deed, but claims it to be a sham and nominal deed and that hence no legal transfer of title took place under the said deed, is bound to prove the same by reliable evidence. Such a burden heavily lies on the person alleging the transaction to be a sham and nominal one. 18. In this case, admittedly the sale deed dated 04.07.1974 was executed and registered in favour of the respondent/plaintiff. Therefore, the burden of proving it to be a sham and nominal deed heavily lies on the appellants. In support of their contention that the said sale deed dated 04.07.1974 is a sham and nominal one, the appellants have contended that even after the execution of the said deed, the same was not handed over to the respondent/plaintiff. It is also their contention that right from the date of execution of the sale deed, the respondent/plaintiff did not exercise any right as the owner of the property sought to be conveyed under the said sale deed; that the revenue records continued to stand in the names of the appellants and that the said sale deed was executed as a sham and nominal deed on the insistence of the respondent/plaintiff as a condition for becoming a partner of the rice and oil mill business proposed to be started with a specific understanding that no right would be claimed by the respondent/plaintiff under the said document. 19. In this regard, the appellants/defendants also rely on the documents produced as Exs.B1 to B4. Ex.B4 is a document projected to be an agreement in writing between the appellants and the respondent dated 20.01.1974. The signature of the respondent/plaintiff found in the said document has been marked as Ex.B4. The other two documents, namely Ex.B2 and B3 are respectively the partition deed dated 06.09.1984 and sale deed dated 05.09.1984. Ex.B4 is a document projected to be an agreement in writing between the appellants and the respondent dated 20.01.1974. The signature of the respondent/plaintiff found in the said document has been marked as Ex.B4. The other two documents, namely Ex.B2 and B3 are respectively the partition deed dated 06.09.1984 and sale deed dated 05.09.1984. The execution of Ex.B4-agreement has been specifically and stoutly denied by the respondent/plaintiff. Even the signature found in Ex.B4-agreement was not admitted by P.W.1. When it was put to him specifically during cross-examination, he would simply state that the signature found in the said document resembles that of his (plaintiffs). However, the court below has chosen to mark that signature alone as Ex.B1. A close scrutiny of the evidence adduced on both sides will go to show that neither the document Ex.B4 nor the signature of the plaintiff found therein has been proved by satisfactory evidence. 20. The said document Ex.B4 is projected to be an agreement in writing under which the respondent/plaintiff agreed not to claim any share in the land based on the sale deed, which the appellants/defendants now claim to be sham and nominal and also to get a sum of Rs.75,000/- alone as his share in the building and machineries of the mill and retire from the mill business. In addition to the ipse dixit of the first defendant as D.W.1, one Pongiannan, has also been examined as D.W.2 in order to prove Ex.B4 agreement. In this regard, the evidence of D.W.1 goes contra to the pleading made in the written statement. In the written statement it was specifically pleaded that there was no written agreement regarding the conduct of the business jointly by the plaintiff and the defendant; that only by an oral agreement they had agreed for dividing the profits between the plaintiff on the one hand and the defendants on the other hand at the ratio of 50:50 and that when the plaintiff would elect to withdraw from business, he would get a sum of Rs.75,000/- alone as his share in the building and machineries of the mill and that he would not have any claim in respect of the land. This specific plea that the above said terms were only orally agreed and were not reduced to writing as per the averments found in the written statement, has been given a go-bye and an attempt was made during trial to project Ex.B4 to be a written agreement executed by the parties incorporating the above said conditions. One Pongiannan examined as D.W.2, is admittedly a close relative of the third appellant (Avinasi Gounder). He calls him as his junior father-in-law. Though he would not have contended in the chief examination that a written deed was executed to the effect that all the defendants should invest Rs.75,000/- and the plaintiff should invest a sum of Rs.75,000/-and they would share the profit equally and that in case of his unwillingness to run the mill, the plaintiff should retire after getting a sum of Rs.75,000/-. During cross-examination he has pleaded ignorance as to how much was invested by each one of them. A new contention came to be raised by D.W.2 that either the sum mentioned in Ex.B4, namely Rs.75,000/-or half of the market value of the building of the mill and machineries therein, whichever is higher, should be received by the plaintiff for his retirement from the partnership. There are contradictions between the evidence of D.W.1 and D.W.2 besides glimpses of improbabilities. The appellants/defendants have also chosen to lead evidence contrary to the specific pleading made by them in the written statement that no written agreement was made between the parties. Therefore, this court has to necessarily come to the conclusion that Ex.B4 is not a genuine one and the same has been created for the purpose of the case. The learned trial judge also analysed the matter in this regard with a clear vision and on proper appreciation of pleadings and evidence arrived at a correct conclusion that Ex.B4 was not proved to be a genuine document. 21. Though the appellants might have chosen to produce certain documents like certified copies of RSR in the connected suit O.S.No.1/2001 to show that the entire extent of 0.11.0 hectare comprised in survey No.15/7 was in the name of the third appellant and that mutation of name was effected subsequently in the names of appellants 1 and 2, such documents have not been produced in this case. There are a number of documents produced by the respondent/plaintiff and marked as Exs.A1 to A26, which evidence the fact that the mill was run by the plaintiff and the third appellant initially and from 1984 by the plaintiff and the first appellant as a partnership business. However, there is an admission on the part of the respondent/plaintiff that patta was not changed in his name, pursuant to the purchase made by him under the sale deed dated 04.07.1974. From the said evidence, it can be inferred that the revenue records continued to be in the name of Avinasi Gounder, which later on came to be transferred in the names of appellants 1 and 2/defendants 1 and 2 and that no mutation of name in the revenue records was effected pursuant to the execution of the sale deed dated 04.07.1974. But, whether the mere fact that mutation of the name was not effected in the revenue records pursuant to the sale deed dated 04.07.1974 and the further fact that patta continued to stand in the name of the third appellant and then in the names of the first and second appellant, shall be enough to hold that the sale deed dated 04.07.1974 is sham and nominal? The answer shall be in the negative. Unless the appellants/defendants are able to prove that such document was not given effect to and was not acted upon and that the document was executed as a sham and nominal one without intending to effect a transfer of title, the appellants/defendants shall not succeed in discharging the burden cast upon them. 22. In this regard even though the appellants/defendants would have stated that no consideration did pass for the purported transfer of title under the sale deed dated 04.07.1974, there is lack of reliable evidence adduced on the side of the appellants/defendants. D.W.1 is none other than first appellant/first defendant. As such interested testimony of D.W.1 shall be approached with caution. Though the case of the appellants is that the sale deed dated 04.07.1974 is a sham and nominal one and D.W.1 would venture to state that the said transaction under the said sale deed was a sham and nominal one, during cross-examination he admitted that he did not know the meaning of a sham and nominal transaction "epg fpiuak; vd;why; vdf;F mh;j;jk; bjhpahJ". D.W.1 was one of the executants of the said sale deed and hence was a signatory to the sale deed. The above said admission made by him that he did not know the meaning of a sham and nominal deed coupled with the further fact that he has chosen to state that all the three appellants signed the said sale deed, which is incorrect, will greatly impair the reliability of the evidence of D.W.1. The document was signed by the first appellant (D.W.1) and Avinashi Gounder (third appellant) for himself and as the guardian of the second appellant. As against the said fact, D.W.1 has chosen to state that all the three have signed the document. Furthermore, the third appellant Avinashi Gounder did not enter the witness box to give evidence in support of the contention of the appellants that the said sale deed was a sham and nominal one. None of the witnesses, who attested the document, has been examined on the side of the appellants. On the other hand, one pongiannan, who claims to have knowledge of the circumstances under which the sale deed was executed has deposed as D.W.2. He would state in the chief examination that the sale deed was executed as a sham and nominal deed. He has also committed the very same mistake committed by D.W.1 by stating that all the three appellants affixed their signatures in the sale deed. Though D.W.2 would have stated in the chief examination that the sale deed was executed as a sham and nominal deed, during cross-examination he has admitted that he did not know whether the third appellant Avinashi Gounder received the sale consideration quoted in the sale deed either at the time of execution of the deed or prior to the execution of the said sale deed. Therefore, the evidence of D.W.2 also shall not lend any support to the case of the appellants that Ex.A1-sale deed was a sham and nominal one. 23. Apart from the oral evidence, the appellants also seem to have relied on the fact that the property was dealt with by the appellants among themselves, as if they alone were the owners of the entire extent of 0.11.0 hectare comprised in new survey No.15/7, Irugalur village, Gobichettipalayam Taluk. Those transactions are a partition deed dated 06.09.1984 (Ex.B2) and a sale deed dated 05.09.1984 (Ex.B3). Those transactions are a partition deed dated 06.09.1984 (Ex.B2) and a sale deed dated 05.09.1984 (Ex.B3). An attempt has been made by the appellants to show that under the partition deed, marked as Ex.B2, the land was not divided and the building, machinery, electricity connection and the license of Sri Vijayalakshmi Rice and Oil Mill alone were divided among the appellants. Admittedly, the said business, namely rice and oil mill business was run as a partnership business, in which the respondent/plaintiff did have 50% share and the appellants 1 to 3/defendants 1 to 3 jointly owned the other 50% share. It is also admitted that the profit earned from the business was shared in the above said ratio. It is also an admitted fact that the respondent/plaintiff contributed an amount equal to the amount contributed by all the appellants together, as his share capital in the business. When that is so, if at all the land over which the building was constructed and the mill was run entirely belonged to the appellants alone, either the share of the appellants/defendants in the profit would have been fixed at a higher rate than 50% or else there could have been an understanding that a fixed amount shall be paid to the appellants as rent for the land over which the mill is situated. No such arrangement has been made. The said factor will be a point against the appellants, who have claimed that the entire land belonged to them. Even those documents under which the appellants claimed to have dealt with the entire extent of 0.11.0 hectares to be one belonging to the appellants alone, do not support the above said case of the appellants/defendants. 24. The appellants made an unsuccessful attempt to show that at the first instance, there was a partition and thereafter the shares allotted to the appellants 2 and 3 were sold to the first appellant/first defendant. But, it is pertinent to note that the partition deed is dated 06.09.1984, whereas the sale deed is dated 05.09.1984. Of course it is obvious from the said documents that the partition deed was registered earlier and the sale deed was registered subsequently. It is pertinent to note that not only the mill premises, but also the house property was sought to be divided among the appellants under Ex.B2 - partition deed. Of course it is obvious from the said documents that the partition deed was registered earlier and the sale deed was registered subsequently. It is pertinent to note that not only the mill premises, but also the house property was sought to be divided among the appellants under Ex.B2 - partition deed. In all those other properties, each one of the appellants was allotted 1/3 share, which will go to show that the other properties, which were the subject matter of partition excepting the mill premises, were owned by the appellants 1 to 3 to the exclusion of others and that is why all the three got 1/3 share each. But, so far as the mill premises was concerned, each one of the appellants was allotted a common 1/6 share alone. The shares allotted to all the three appellants put together make only half of the mill premises. This was so because the other half had already been sold to the respondent/plaintiff under the sale deed dated 04.07.1974. What was divided under the original of Ex.B2 was the share of the appellants not only in the building, but also in the land over which the mill is situated. Mill includes the drying yard also. That is the reason why each one of the appellants was allotted 1/6 share alone in the mill premises, whereas in respect of the house properties, each one was allotted 1/3 share. Similar is the position of the recitals found in the sale deed dated 05.09.1984, marked as Ex.B3. Under Ex.B3, the appellants 2 and 3 have purported to sell their 2/3 share in all other properties and their 2/6 share in the rice and oil mill to the first appellant. The same will go to show that the sale under sale deed dated 04.07.1974 was not only genuine, but also was the one recognised, acted upon and given effect to by the appellants themselves. 25. For the production of the original sale deed in the connected suit from the custody of the appellants, the respondent/plaintiff has come forward with a clear explanation that the said document had been kept in the mill premises for inspection by the officials, who might come to the mill for checking and that when the first appellant locked the mill and barred the entry of the respondent/defendant into the mill took away the document from the mill premises. The said contention of the respondent/plaintiff has been substantiated by the evidence of D.W.1, the respondent/plaintiff himself. Since the appellants have come forward with a plea that the sale deed dated 04.07.1974 was a sham and nominal one they are bound to prove it by reliable evidence. As pointed out supra, the burden of proof is heavy on the appellants. 26. In Vimal Chand Ghevarchand Jain & Others vs. Ramakant Eknath Jajoo reported in 2009 (2) CTC 858, the Honble Supreme Court has made the following observations:- "The deed of sale being a registered one and apparently containing stipulations of transfer of right, title and interest by the vendor in favour of the vendee, the onus of proof was upon the defendant to show that the said deed was, in fact, not executed or otherwise does not reflect the true nature of transaction." Relying on earlier decisions of the Honble Supreme Court in i) R.Janakiraman v. State, rep. by Inspector of Police, CBI, SPE, Madras reported in 2006 (1) SCC 697 , ii) Roop Kumar v. Mohan Thedani reported in 2003 (6) SCC 595 and iii) State Bank of India & Anr. v. Mula Sahakari Sakhar Karkhana Ltd., reported in 2006 (6) SCC 293 to the effect that when a character of the document is questioned, extrinsic evidence by way of oral evidence is admissible, the Honble Supreme Court in the above cited case, namely Vimal Chand Ghevarchand Jain & Others vs. Ramakant Eknath Jajoo reported in 2009 (2) CTC 858, made the following observations. "A heavy burden of proof lay upon the defendant to show that the transaction was a sham one. It was not a case where the parties did not intend to enter into any transaction at all. Admittedly, a transaction had taken place. Only the nature of transaction was in issue. A distinction must be borne in mind in regard to the nominal nature of a transaction which is no transaction in the eye of law at all and the nature and character of a transaction as reflected in a deed of conveyance. The construction of the deed clearly shows that it was a deed of sale. The stipulation with regard to payment of compensation in the event appellants are dispossessed was by way of an indemnity and did not affect the real nature of transaction." 27. The construction of the deed clearly shows that it was a deed of sale. The stipulation with regard to payment of compensation in the event appellants are dispossessed was by way of an indemnity and did not affect the real nature of transaction." 27. In this case, admittedly the property was used for running a rice and oil mill in the name of Sri Vijayalakshmi Rice and Oil Mill as a partnership business. It is also not in dispute that the building for the mill was constructed and the machineries were purchased using the capital raised for which the respondent/defendant contributed 50%. It is also an admitted fact that the respondent/defendant was receiving 50% of the profit as his share. It is quite obvious that the property described in the suit was used by the partnership concern for running the rice and oil mill. Therefore, merely because patta had not been transferred and it was allowed to remain in the name of one of the appellants, it cannot be assumed that the respondent/defendant did not take possession and was out of possession. The possession by the third appellant and subsequently by the first appellant shall be related to their position as a partner and as a co-owner. Therefore, the contention of the appellants that the respondent/plaintiff did not get possession as per the sale deed dated 04.07.1974 and that the said document was not acted upon, cannot be countenanced. This court comes to the conclusion that the appellants/defendants have miserably failed to substantiate their contention by proper evidence that the sale deed dated 04.07.1974 executed in favour of the respondent/plaintiff was a sham and nominal one and that on the other hand, it has been proved by the respondent/ plaintiff that the sale was a genuine one and the same was acted upon. The court below has also arrived at a correct conclusion in this regard. 28. In the foregoing paragraphs, it has been held that the sale deed dated 04.07.1974 was a genuine one and the same was not proved to be a sham and nominal one. An extent of 26 34/54 cents, equivalent to 0.11.00 hectare comprised in re-survey No.15/7, Irugalur village, Gobichettipalayam was admittedly a portion of the old survey No.144A, Irugalur village, Gobichettipalayam. In the foregoing paragraphs, it has been held that the sale deed dated 04.07.1974 was a genuine one and the same was not proved to be a sham and nominal one. An extent of 26 34/54 cents, equivalent to 0.11.00 hectare comprised in re-survey No.15/7, Irugalur village, Gobichettipalayam was admittedly a portion of the old survey No.144A, Irugalur village, Gobichettipalayam. The first appellant/first defendant as D.W.1, would admit that totally 40 cents of land originally belonged to their family and out of that 40 cents of land, a portion has been used for the mill and a portion has been used for locating their residential house. In the re-survey, 26 34/54 cents equivalent to 0.11.00 hectares, was assigned a separate re-survey number as 15/7. A common half share in the same was the subject matter of the sale deed dated 04.07.1974 executed in favour of the respondent/plaintiff. In the partition effected among the appellants under Ex.B2-Partition deed, the half share (3/6 share) in the entire extent of 26 34/54 cents comprised in re-survey No.15/7 shown to be the area over which the mill has been constructed was divided equally among the appellants by allotting 1/6 share to each one of the appellants 1 to 3. Under Ex.B3-Sale deed appellants 2 and 3 sold their 2/6 shares (1/6 of second appellant and 1/6 of third appellant) to the first appellant/first defendant. It was also specifically mentioned in the document that, after such sale, the title of appellants 2 and 3 in respect of the above said entire extent of 26 34/54 would come to an end, thereafter they would not have any share in it. Therefore, it is quite obvious that the mill was run in the entire extent of 0.11.00 hectare (26 34/54 cents) which consists of the mill building and drying yard (fsk;). The same has been correctly described in the plaint schedule by the respondent/plaintiff. Therefore, the contention of the appellants that the suit property had not been properly described in the plaint schedule and that the plaint schedule includes the land over which the respondent/plaintiff does not have a share, also deserves to be rejected as untenable. Point Nos.iv and v 29. Therefore, the contention of the appellants that the suit property had not been properly described in the plaint schedule and that the plaint schedule includes the land over which the respondent/plaintiff does not have a share, also deserves to be rejected as untenable. Point Nos.iv and v 29. The learned trial judge has rightly come to the conclusion that the mill premises includes the entire land 0.11.00 hectares comprised in survey No.15/7, the buildings and machineries of the rice and oil mill; that as a person having purchased an undivided half share in the land the plaintiff had given it to be used along with other half share of the appellants for running the rice and oil mill in the name of Sri Vijayalakshmi Rice and Oil Mill in partnership with the respondent/plaintiff and that the respondent/plaintiff shall be entitled to half share not only in the building and machineries of the mill, but also in the land extending 0.11.00 hectare comprised in survey No.15/7. The learned trial judge having found that the respondent/ plaintiff was entitled to half share in the business of Sri Vijayalakshmi Rice and Oil Mill described as the suit property in the plaint schedule, has also arrived at a conclusion that the respondent/plaintiff was not allowed to take part in running the rice and oil mill business; that from 01.02.1998 the first appellant alone was running the said business excluding the respondent/plaintiff and that hence he was liable to render accounts for the income derived from the said business from 01.02.1998. For arriving at the said conclusion, the learned trial judge relied on the admission made by D.W.1 that it was he (the first appellant), who was running the rice and oil mill business without the participation of the respondent/plaintiff and that respondent/plaintiff was entitled to 50% of the net income arrived at after deducting the expenses from the gross income. The finding of the trial court that the first appellant/first defendant was liable to render accounts for the income derived from the rice and oil mill business from 01.02.1998, does not suffer from any infirmity and the same deserves to be confirmed. 30. The finding of the trial court that the first appellant/first defendant was liable to render accounts for the income derived from the rice and oil mill business from 01.02.1998, does not suffer from any infirmity and the same deserves to be confirmed. 30. However, the learned trial judge while correctly coming to the conclusion that the respondent/plaintiff shall be entitled to half share in the assets of the rice mill, which includes the land, building and machineries, has gone further and held that the respondent/plaintiff shall be entitled to receive 50% of the value of the buildings and machineries, which value has to be ascertained by a Commissioner to be appointed by the court. In making such an observation, the learned trial judge has totally forgotten the fact that the mill had been constructed over a land jointly belonging to the first appellant/first defendant and the respondent/plaintiff and that each one of them is entitled to half share in the land also. The learned trial judge, perhaps, due to inadvertence, has omitted to consider the same. Further having disbelieved Ex.B4-agreement, the learned trial judge ought not have arrived at a conclusion that the first appellant alone shall be entitled to retain the buildings and machineries and the respondent/plaintiff should be content with the money equivalent to half of the market value of the buildings and machineries; since the buildings and machineries were the properties belonging to the partnership, each one of the partners shall have equal right in respect of the same. Similar is the position in respect of the land. 31. Section 46 of the Indian Partnership Act, 1932 is to the effect that, on the dissolution of a firm every partner or his representative shall be entitled as against all the other partners or their representatives, to have the property of the firm applied in payment of the debts and liabilities of the firm, and to have the surplus distributed among the partners or their representatives according to their rights. The said provision shall not be excluded from having application in this case. As it was already pointed out, the suit for rendition of accounts of a dissolved firm is not one barred under section 69 of the Indian Partnership Act, 1932. The manner of settlement of accounts of a firm after dissolution is provided under Section 48 of the Indian Partnership Act, 1932. As it was already pointed out, the suit for rendition of accounts of a dissolved firm is not one barred under section 69 of the Indian Partnership Act, 1932. The manner of settlement of accounts of a firm after dissolution is provided under Section 48 of the Indian Partnership Act, 1932. Section 53 gives a right to a partner of a dissolved firm or his representative, in the absence of any contract between the partners to the contrary, a right to restrain any other partner or his representative from carrying on a similar business in the name of the firm or from using any of the property of the firm for his own benefit until the affairs of the firm have been completely wound up. The exception is provided in the proviso which says that any partner or his representative who has bought the goodwill of the firm shall have the right to use the firm name. Therefore, as rightly contended by the learned counsel for the respondent/cross-objector/plaintiff, that the part of the decree of the trial court which simply directs that the value of the properties of the firm should be valued by a Commissioner to be appointed by the court and that the right of the respondent/cross-objector/plaintiff shall be confined to getting half of such value without considering the principles of settlement of accounts of the partnership firm, whose property includes movables and immovables, requires interference. In such cases, either they should be divided according to the share ratio or in case it is found that the properties left after meeting the liabilities of the firm are not divisible or that it would not be profitable to divide it, then each partner shall have a right to make an offer for the purchase of the others share. Which partner shall take the property and pay the money of the value of the shares to the other appellants, shall be decided by a limited auction among them or by drawing lot, if there is consensus to that effect. Which partner shall take the property and pay the money of the value of the shares to the other appellants, shall be decided by a limited auction among them or by drawing lot, if there is consensus to that effect. In case, none of the partners comes forward to purchase the shares of others in such immovable properties of the firm, which are impartible or cannot be partitioned without causing diminution of its value, then the same can be sold to third parties, either by auction or otherwise and the sale proceeds can be divided among the partners according to their share ratio. 32. Therefore, while coming to the conclusion that the decree of the trial court deserves to be confirmed so far as it directs the first appellant/first defendant to render accounts from 01.02.1998 and this court holds that the other part of the preliminary decree to the effect that the value of the buildings and machineries and the income shall be ascertained by a Commissioner to be appointed by the court and that the respondent/plaintiff should get half of such value fixed by the Commissioner, deserves to be reversed and modified as the same is infirm and defective. 33. Similarly, the other part of the decree of the trial court dismissing the suit in respect of the relief of injunction is concerned, as rightly contended by the learned counsel for the respondent/cross objector, cannot be sustained in law. As pointed out supra, Section 53 gives a right to every partner or his representative of a dissolved firm, in the absence of a contract between the partners to the contrary, restrain any other partner or his representative from carrying on a similar business in the name of the firm or from using any of the property of the firm for his own benefit, until the affairs of the firm have been completely wound up. When such is the clear statutory provision, the finding of the trial court that the respondent/plaintiff shall not be entitled to injunction solely on the ground that the first appellant/first defendant is in possession of the properties of the partnership firm and it is, he who runs the business even after the dissolution of the firm by the issue of a notice by the respondent/plaintiff, cannot be sustained and the same deserves to be set aside and reversed. As pointed out supra till the partnership firm is completely wound up, the respondent/plaintiff shall be entitled to restrain the appellants from running Sri Vijayalakshmi Rice and Oil Mill. This is so in view of the finding that the oral agreement pleaded in the written statement and the agreement in writing under Ex.B4 contrary to the said rights conferred under Section 53 has been disbelieved. Therefore, the decree of the trial court dismissing the suit so far as the relief of injunction is concerned deserves to be reversed holding that the respondent/ plaintiff shall be entitled to the injunction as prayed for. Point No.vi 34. For all the reasons stated above, A.S.No.749/2002 is dismissed. Cross Objection No.35/2003 is allowed. Consequently, the preliminary decree passed by the trial court in O.S.No.5/2001 shall stand modified as follows:- There shall be a preliminary decree i)for settlement of accounts for the profits earned by the first appellant/first defendant from 01.02.1998. ii)for settlement of accounts and distribution of the assets between the respondent/plaintiff and the first appellant/first defendant in the ratio 50:50. iii)There shall be an injunction against the appellants/defendants from running the rice mill till settlement of accounts iv)If no consensus is arrived at regarding the mode of settlement of accounts and division of assets within three months, either of the parties may move for passing of a final decree. The appellants shall pay the cost of respondent/cross-objector/ plaintiff besides bearing there own cost.