Judgment : 1. This appeal by the appellant is directed against the common judgment and decree, dated 18.8.2005, passed by the XVI Addl. City Civil Judge, Bangalore, in FDP.No.104/2001 and FDP.No.20/2003. 2. By the impugned judgment and decree, the Trial Court has held that M/s.Lakshmi Ice & Cold Storage Factory has been established by using the funds of Bangalore Ice Factory and all the seven partners are entitled for 1/7th share each. As the respondents 1 to 5 have purchased the rights of 6th respondent Yadava Venkoba Rao, the respondents 1 to 5 are entitled for 6/7th share and the appellant is entitled for 1/7th share. 3. Aggrieved by that, the appellant has filed this appeal. 4. Briefly stated the facts are: The respondents 1 to 5 had filed suit in O.S.No.1926/1976 for dissolution of the Firm. It was renumbered as O.S.No.1551/1980. The case of the respondents 1 to 5 was that the respondents 1 to 5, the appellant and one Yadav Venkobarao constituted a partnership firm under the name and style of Bangalore Ice Factory. The appellant diverted the funds of the partnership firm and started another concern known as Lakshmi Ice & Cold Storage Factory by purchasing the land and constructing building from the funds of Bangalore Ice Factory. The assets of Lakshmi Ice & Cold Storage Factory are to be treated as the assets of the Firm namely Bangalore Ice Factory. The respondents are entitled for a share in the assets of both the factories. 5. The suit was contested by the appellant contending that Lakshmi Ice & Cold Storage Factory was established out of his own funds. He purchased the site in the month of November 1974 in his own name and constructed a factory building. He installed the machineries purchased out his own funds and no amount was diverted from the Bangalore Ice Factory. The respondents are not entitled for any share in the assets of the Lakshmi Ice & Cold Storage Factory. The Trial Court decreed the suit on 31.7.1991 dissolving the firm and ordered that the assets of the Firm should be sold and the sale proceeds shall be distributed amongst the partners. 6. The appellant being aggrieved by the judgment and decree passed in O.S.No.1551/1980 preferred an appeal in RFA.No.460/1991. This Court by its judgment and decree dated 3.6.1992 has modified the judgment and decree passed by the Trial Court. 6. The appellant being aggrieved by the judgment and decree passed in O.S.No.1551/1980 preferred an appeal in RFA.No.460/1991. This Court by its judgment and decree dated 3.6.1992 has modified the judgment and decree passed by the Trial Court. The finding on issue No.2 and alternative issue i.e., Whether the second concern styled as Lakshmi Ice & Cold Storage Factory is a part and parcel of suit partnership has been set-aside and it has been left open to be decided in the final decree proceedings. 7. The respondents have preferred civil appeal before the Hon'ble Supreme Court in Civil Appeal No.74/1993. The Hon'ble Supreme Court by its judgment dated 16.8.2001 has modified the judgment of this Court and has directed that the issue whether the plaintiff No.5 had paid his share shall also be considered by the Court while passing the final decree along with issue No.2. 8. Thereafter, the appellant has filed FDP.No.104/2001 and the respondents 1 to 5 have filed FDP.No.20/2003. The Trial Court by its common judgment dated 18.8.2005 has held that M/s. Lakshmi Ice & Cold Storage Factory has been established by using the funds of Bangalore Ice Factory and all the seven partners are entitled for 1/7th share each. As the respondents 1 to 5 have purchased the rights of 6th respondent Yadav Venkobarao, the respondents 1 to 5 are entitled for 6/7th share and the appellant is entitled for 1/7th share. Therefore, this appeal. 9. The learned counsel for the appellant contended that the impugned judgment and decree cannot be sustained in law. He also submitted that the partnership deed provides that the contribution should be made by the plaintiff No.5 i.e., respondent No.5 herein on or before 1.11.1970. The plaintiff No.5 has not paid his contribution on or before 1.11.1970. Therefore, the plaintiff No.5 is not a partner and he is not entitled for any share. Based on Ex.R14 i.e., the letter dated 10.7.1970 it cannot be said that the plaintiff No.5 has paid his contribution towards capital. Further he submitted that Ex.P3 pass book is the individual account of the appellant. A sum of Rs..10,000/- has been paid to Munibachappa on 7.11.1974. A sum of Rs..25,000/-was borrowed from S.A.Irani. Out of that, the appellant has paid a sum of Rs..10,000/- to Munibachappa. Further he submitted that the excess amount shown is a mistake. Further he submitted that Ex.P3 pass book is the individual account of the appellant. A sum of Rs..10,000/- has been paid to Munibachappa on 7.11.1974. A sum of Rs..25,000/-was borrowed from S.A.Irani. Out of that, the appellant has paid a sum of Rs..10,000/- to Munibachappa. Further he submitted that the excess amount shown is a mistake. Ex.P12 does not reflect payment of Rs..7,000/- by the plaintiff No.5. The legal notice dated 24.6.1976 i.e., Ex.P23 does not show that the appellant has misappropriated the funds. As per the terms of the partnership deed, there is no bar to carry on similar business. Further he submitted that the properties acquired through exhibits P30 and D25 i.e., sale deeds dated 5.8.77 and 7.11.1974 are the self acquired properties of the appellant. He also submitted that the money has not flown from the account of Bangalore Ice factory to establish the second entity i.e., M/s.Lakshmi Ice & Cold Storage Factory. The motor shown in Ex.D18 was purchased by the appellant out of his own funds. Money is spent by the appellant for rewinding. The appellant had borrowed a sum of Rs..2,20,000/-from the Finance Corporation. He also submitted that Ex.D21 is the Day Book of Lakshmi Ice & Cold Storage Factory. The appellant was running the second entity by borrowing hand loans and also borrowing money from the Finance Corporation. Exhibits D21 and D22 show that the appellant had borrowed loan from various persons. The appellant has paid the sale consideration in respect of Ex.D25 sale deed through Canara Bank account. The evidence of PWs.1 and 2 is not helpful to the respondents in any way. Further he submitted that Ex.P3 is the individual account of the appellant. There is nothing on record to show that Ex.P3 is the Firm's account. He also submitted that PW-3 was not competent to speak about the affairs of the Firm. The audit report shows that second entity is not part of the first entity. He also submitted that the sale consideration amount relating to Ex.P30 sale deed has been paid through cheques drawn on Indian Bank and also Canara Bank. The sale deeds stand in the name of the appellant. The appellant is the owner. The individual property cannot be treated as Firm's property. Further he submitted that there was no surplus amount available in the Bangalore Ice Factory to acquire the property for the second concern. The sale deeds stand in the name of the appellant. The appellant is the owner. The individual property cannot be treated as Firm's property. Further he submitted that there was no surplus amount available in the Bangalore Ice Factory to acquire the property for the second concern. The appellant has raised loan to run Lakshmi Ice & Cold Storage Factory. He has also borrowed Rs..2,20,000/- from KSFC. The bank account of Canara Bank is the exclusive account of the appellant. He also submitted that exhibits D33 to D52 show as to how Lakshmi Ice & Cold Storage Factory was established. Further he submitted that the conduct of the parties is not relevant to treat the plaintiff No.5 as partner of the Firm. The finding of the Trial Court that plaintiff No.5 is the partner is incorrect. He also submitted that the sale consideration is paid out of the appellant's own funds. The second entity is not the part of the first entity. The property acquired by the appellant is not Firm's property and it is his individual's property. 10. Placing reliance on the decisions reported in 1969 (3) SCC page 555, AIR 1978 AP page 257, AIR 2003 SC page 4106, AIR 1988 Kerala page 128 and AIR 2002 SC page 101, the learned counsel for the appellant submitted that the property belonging to a person, in the absence of an agreement to the contrary, does not, on the person entering into a partnership with others, become the property of the firm. It will become property of the partnership only if there is an agreement express or implied that the property be treated as the property of the partnership. There is no rule that whatever is brought by a partner and used by the members is presumed to be the property of the partnership. He, therefore, submitted that the second concern Lakshmi Ice & Cold Storage Factory is not part and parcel of the first concern Bangalore Ice Factory. 11. The learned counsel for the respondents 1, 2 and LRs. of R4 submitted that the partnership deed shows that the plaintiff No.5 i.e., the respondent No.5 herein is a partner. The letter dated 10.7.1970 shows that all the partners have contributed their share. The plaintiff No.5 has managed the affairs of the Firm for a period of five months. The Syndicate Bank was the authorised Bank. of R4 submitted that the partnership deed shows that the plaintiff No.5 i.e., the respondent No.5 herein is a partner. The letter dated 10.7.1970 shows that all the partners have contributed their share. The plaintiff No.5 has managed the affairs of the Firm for a period of five months. The Syndicate Bank was the authorised Bank. The account of the Firm was in the Syndicate Bank. From 1972 onwards, the appellant has managed the affairs of the Firm. The appellant has opened the account at Indian Bank on 10.9.1974. The payment has been made through cheques drawn on Canara Bank and Indian Bank. On 7.11.1974, cheque for a sum of Rs..10,000/-drawn on Indian Bank has been issued. The amount has been borrowed from the Finance Corporation by offering the property of the Bangalore Ice Factory as security. The appellant has not entered the witness box in the final decree proceedings. The appellant has not produced anything to show that he had sufficient income to purchase the property. There is no pleading regarding nonpayment of contribution by the plaintiff No.5. The accounts were maintained by the appellant himself. The suit was filed by the appellant contending that the plaintiff No.5 is one of the partners. The plaintiff No.5 was also one of the receivers appointed. The appellant has not produced the passbook of the Syndicate Bank which would have clinched the issue. Therefore, adverse inference has to be drawn. Ex.R14 letter shows that all the partners had contributed their share as on 10.7.1970. In the CRP, it has been conceded that all the partners are entitled for a share. Ex.R11 is the order passed in CRP.No.2421/1979. The appellant has not submitted the accounts to the concerned Authority. The plaintiff No.5 has paid his share as on 10.7.1970. It was well within time. The Firm started in the year 1969. From 1972 January till 14.6.1978, the appellant was incharge of the Firm. The property was agreed to be purchased in the year 1974. The appellant has not produced anything to show that he had income from other source to purchase the property. The appellant has not furnished the accounts for six years. The appellant has not obtained the consent of the other partners to do similar business. The accounts are not audited. The appellant has not produced the passbook of the Canara Bank. The appellant has not produced anything to show that he had income from other source to purchase the property. The appellant has not furnished the accounts for six years. The appellant has not obtained the consent of the other partners to do similar business. The accounts are not audited. The appellant has not produced the passbook of the Canara Bank. The Auditor i.e., CW.1 has not audited the accounts as directed. The evidence of PWs.1 and 2 show that the motor of Bangalore Ice Factory was used in the second concern. He also invited my attention to sections 9, 11, 13 and 14 of the Partnership Act. Further he submitted that the property was acquired out of the funds of the Bangalore Ice Factory. The Firm was ordered to be dissolved on 21.8.1976 and charge was handed over on 14.6.1978. The appellant has handed over the Indian Bank passbook to the Receiver. It shows that it was the Firm's account. The question that the plaintiff No.5 has not contributed his share was raised for the first time in the apex court. The second concern is part of the first concern. He also submitted that Exs.D33 to D42 and exhibits D43 to D52 are one and the same. Bangalore Ammonia was not an existing concern. In Ex.D53 Bangalore Ice Factory address is given. Ex.D29 is the extract of Canara Bank account. It does not reflect all the transactions. 12. Placing reliance on the decision of the Madras High Court reported in AIR 1994 MADRAS page 140, the learned counsel for the respondents 1, 2 and LRs of R4 submitted that the Managing Partner is bound to make full and correct disclosure to the other partners. When a partner transacts a business, he does so for himself as well as for other partners and all benefits of any such transaction will enure to the benefit of all the partners. The second concern Lakshmi Ice & Cold Storage Factory has been established and run from the funds of the first concern Bangalore Ice Factory. Therefore, Lakshmi Ice & Cold Storage Factory is part and parcel of Bangalore Ice Factory. He, therefore, submitted that the appeal may be dismissed. 13. The learned counsel for the LRs of respondents 3 and 5 submitted that earlier the Trial Court had recorded a finding that the second entity is part of the first entity. Therefore, Lakshmi Ice & Cold Storage Factory is part and parcel of Bangalore Ice Factory. He, therefore, submitted that the appeal may be dismissed. 13. The learned counsel for the LRs of respondents 3 and 5 submitted that earlier the Trial Court had recorded a finding that the second entity is part of the first entity. A similar finding has been recorded now in the final decree proceedings. The amount to purchase the property has been paid from the account of Bangalore Ice Factory. The appellant has not examined any person from whom he had borrowed the money. The appellant has utilized the funds of Bangalore Ice Factory to purchase the property for the second concern. There is no documentary evidence to show that the appellant had borrowed money. Bangalore Ammonia is not an existing concern. The electricity charges of Lakshmi Ice & Cold Storage Factory have been paid from the account of Bangalore Ice factory. Canara Bank account is also the Firm's account. He, therefore, submitted that the appeal may be dismissed. 14. In reply, the learned counsel for the appellant submitted that there is no direct evidence regarding payment of share capital by the plaintiff No.5. The consequence of non-payment of share within time has been mentioned in Ex.D31 partnership deed. He also submitted that the oil purchased on 25.9.1974 could not have been used for Lakshmi Ice & Cold Storage Factory. The motor was purchased through Ex.D18. The amount was paid through cheque of the Canara Bank. The Canara Bank account belongs to Bangalore Ammonia. Ex.D4 shows that money was borrowed from KSFC. The appellant had availed loan and used it to purchase the property and run the business. The sale-deeds stand in the name of the appellant. The property is individual property of the appellant. Therefore, the appeal may be allowed. 15. I have carefully considered the submissions made by the learned counsel for the parties. 16. The points that arise for my consideration are, (1) Whether the plaintiff No.5 i.e., the respondent No.5 herein has paid his share capital of Rs..7,000/- within one year? (2) Whether the second concern Lakshmi Ice & Cold Storage Factory is part and parcel of the Bangalore Ice Factory or exclusively belongs to the defendant No.1 i.e., the appellant herein? 17. The points that arise for my consideration are, (1) Whether the plaintiff No.5 i.e., the respondent No.5 herein has paid his share capital of Rs..7,000/- within one year? (2) Whether the second concern Lakshmi Ice & Cold Storage Factory is part and parcel of the Bangalore Ice Factory or exclusively belongs to the defendant No.1 i.e., the appellant herein? 17. Point No.1: The appellant contends that the plaintiff No.5 has not paid his share capital within one year and therefore, he is not a partner. Ex.P31 is the partnership deed. The plaintiff No.5 is partner No.6. The partnership deed stipulates that the plaintiff No.5 shall pay his contribution within one year i.e., on or before 1.11.1970. The appellant contends that the plaintiff No.5 has not paid his share capital within one year. The plaintiff No.5 contends that he has paid his share capital within one year. The plaintiff No.5 has been examined as PW.1 and RW.1 in the final decree proceedings. He has deposed that he was one of the partners. He has paid his share capital during July 1970 within one year. He has credited the amount to the Firm's account No.927 in the Syndicate Bank. His name has been duly entered in the capital register for the year 1970. He wrote letter to all the partners on 10.7.1970 stating that all the partners have paid their share capital, in all amounting to Rs..49,000/-. Similarly, RW.2 i.e., plaintiff No.2 has deposed that all the partners had paid their share capital. The plaintiff No.5 has paid his share during July 1970. The plaintiff No.5 wrote letter to all the partners. The name of the plaintiff No.5 has been entered in the capital register. The plaintiff No.5 has worked as Managing Partner for sometime. 18. Ex.R14 is the letter dated 10.7.1970. It is addressed to all the partners. It is stated in the letter that all the partners have paid their share capital, in all amounting to Rs..49,000/-. The plaintiffs have issued legal notice dated 24.6.1976 as per Ex.P23 to the appellant. The appellant has replied the legal notice on 28.6.76 as per Ex.P24. In the reply, the appellant has not stated that the plaintiff No.5 has not paid his share capital. In his written statement, the appellant has stated that it is true that the plaintiffs and the defendants constituted partnership firm. The appellant has replied the legal notice on 28.6.76 as per Ex.P24. In the reply, the appellant has not stated that the plaintiff No.5 has not paid his share capital. In his written statement, the appellant has stated that it is true that the plaintiffs and the defendants constituted partnership firm. There is no plea in the written statement that the plaintiff No.5 has not paid his share. The plaintiff No.5 was looking after the management of Bangalore Ice factory for sometime. No issue has been raised regarding non- payment of share capital by the plaintiff No.5. It is only at the appellate stage the appellant has raised the question of non-payment of share by the plaintiff No.5. In the register of Firms the name of the plaintiff No.5 is shown as partner No.6. It is at Ex.P3(a). The plaintiff No.5 has managed the affairs of the firm for sometime. The firm's account was in the Syndicate Bank. It has been closed. From 1972 onwards, the appellant has managed the affairs of the firm. The passbook of the Syndicate Bank has not been produced. The employee of the Syndicate Bank has been examined. He has deposed that the details are not available. In the absence of details and passbook of the Syndicate Bank, it is from the other evidence on record an inference has to be drawn. The following circumstances are relevant; i) RWs.1 and 2 have deposed that the plaintiff No.5 had paid his share within time. ii) The appellant has not stepped into the witness-box in the final decree proceedings. iii) The partnership deed shows that the plaintiff No.5 is partner No.6. iv) Ex.R14 letter dated 10.7.1970 shows that all the partners have contributed their share. v) The plaintiff No.5 has managed the affairs of the firm for sometime. vi) The plaintiff No.5 has received his share in the assets of Bangalore Ice factory in terms of the order passed in CRP. vii) There is no plea in the written statement that plaintiff No.5 has not paid his share. viii) The question of non-payment of share by the plaintiff No.5 has been raised at the appellate stage. ix) All the partners except the appellant have admitted that the plaintiff No.5 has paid his share. x) The appellant along with the others has filed suit in O.S.No.1071/1974 for injunction and obtained injunction against the plaintiff No.5. viii) The question of non-payment of share by the plaintiff No.5 has been raised at the appellate stage. ix) All the partners except the appellant have admitted that the plaintiff No.5 has paid his share. x) The appellant along with the others has filed suit in O.S.No.1071/1974 for injunction and obtained injunction against the plaintiff No.5. xi) The register of firms shows that the plaintiff No.5 is partner No.6. xii) The Commissioner report Ex.C5 and the evidence of the Commissioner shows that plaintiff No.5 has contributed his share, but not within one year. The Commissioner has not recorded any reason as to why he says that plaintiff No.5 has not contributed his share within one year. There is no reference to Syndicate bank account or the letter dated 10.7.1970. The fact remains that plaintiff No.5 has contributed his share. xiii) The plaintiff No.5 has continued as partner throughout. From the above circumstances, it can be inferred that the plaintiff No.5 has paid his share within time and he is a partner of Bangalore Ice Factory. Point No.1 answered accordingly. 19. Point No.2: It relates to the question as to whether the second concern Lakshmi Ice & Cold Storage Factory is part of the Bangalore Ice Factory or exclusively belongs to the appellant. The appellant contends that Lakshmi Ice & Cold Storage Factory exclusively belongs to him. The respondents contend that Lakshmi Ice & Cold Storage Factory is part of the Bangalore Ice Factory. Exhibits P3 and P4 are the pass books of Indian Bank. The account is in the name of the appellant as partner of the Bangalore Ice Factory. The appellant contends that it is his personal account. But, the contents of exhibits P3 and P4 clearly show that it relates to Bangalore Ice Factory. The electricity bills, sales tax, auditors fees etc., of Bangalore Ice Factory have been paid through exhibits P3 and P4. Initially the firm's account was in the Syndicate Bank. It has been closed. Thereafter, Indian Bank account has been opened on 11.9.1974. The cash and cheque payments of Bangalore Ice Factory have been made to Indian Bank account. In his cross-examination the appellant has stated that the cheque payments of Bangalore Ice Factory have been made through exhibits P3 and P4. Electricity bills and sales tax amount of Bangalore Ice Factory have been paid through exhibits P3 and P4. The cash and cheque payments of Bangalore Ice Factory have been made to Indian Bank account. In his cross-examination the appellant has stated that the cheque payments of Bangalore Ice Factory have been made through exhibits P3 and P4. Electricity bills and sales tax amount of Bangalore Ice Factory have been paid through exhibits P3 and P4. He cannot say by perusal of exhibits P3 and P4 which cash remittance belongs to Bangalore Ice Factory and which does not. A sum of Rs..400/- has been paid to M/s.Ghatage & Co., auditors of Bangalore Ice Factory. Exhibits P3, P4, P6, P7 and P8 were handed over to the receiver by the appellant. Cheque in respect of sale agreement has been issued from Ex.P3. From the evidence of the appellant and the contents of exhibits P3 and P4 it is clear that the Indian Bank account belongs to Bangalore Ice Factory. Exhibits P3 and P4 relate to Bangalore Ice Factory transactions. 20. PW.1 Asst. Accounts Officer of KEB has deposed that motor bearing No.6664-OM-28, 45 HP was in the Bangalore Ice Factory on 14.5.1975 when electricity connection was given. PW.2 Sr. Asst. KEB, Yeshwanthpur has deposed that the motor bearing No.6664-OM-28, 45 HP was found in the Lakshmi Ice & Cold Storage Factory on 17.6.1975 when electricity service was given. The evidence of PW.3 shows that motor bearing No.6664-OM-28 belongs to Bangalore Ice Factory. It is clear from the evidence of PWs.1 to 3 that the motor bearing No.6664- OM-28 belongs to Bangalore Ice Factory and it has been shifted to Lakshmi Ice & Cold Storage Factory. 21. Ex.P6(a) is the counter foil of the cheque issued to KEB in respect of Lakshmi Ice & Cold Storage Factory. Ex.P3(b) in the relevant entry in the pass book. Ex.P7(a) is the counterfoil of the cheque issued to KEB. Ex.P3(c) is the relevant entry in the pass book. This shows the electricity charges of Lakshmi Ice & Cold Storage Factory have been paid from the account of Bangalore Ice Factory. 22. Ex.P8(a) is the counterfoil of the cheque issued in favour of Munibachappa, the vendor. Ex.P3(a) is the relevant entry in the pass book. A sum of Rs..10,000/- has been paid to Munibachappa from the account of Indian Bank towards sale consideration amount. 23. In Ex.P9 cash book at page 23, the closing balance is shown as Rs..47,569.24. It is at Ex.P9(f). Ex.P3(a) is the relevant entry in the pass book. A sum of Rs..10,000/- has been paid to Munibachappa from the account of Indian Bank towards sale consideration amount. 23. In Ex.P9 cash book at page 23, the closing balance is shown as Rs..47,569.24. It is at Ex.P9(f). At page 24, the opening balance is shown as Rs..3,882.94. The difference amount is not accounted. 24. PW.3 (RW.1) has deposed that one K.H.Shekar employed by Bangalore Ice Factory has been working in Lakshmi Ice & Cold Storage Factory. His wages are paid from the funds of Bangalore Ice Factory. Further PW.3 has deposed that one Jagannath was an employee of Bangalore Ice Factory. He has been transferred to Lakshmi Ice & Cold Storage Factory. Ex.P7(c) is the counterfoil of the cheque issued to Jagannath. Ex.P3 (d) is the relevant entry in respect of Ex.P7(c). 25. The appellant contends that he had borrowed money and managed the affairs of the second entity i.e., M/s.Lakshmi Ice & Cold Storage Factory. The appellant has deposed in his cross-examination that Bangalore Ammonia is a proprietary concern. It belongs to him. Bangalore Ammonia has no factory premises. His residence is the office of Bangalore Ammonia. He has no documents to show that he was doing business in the name of Bangalore Ammonia. 26. Exhibits D33 to 52 are the invoices of Bangalore Ammonia in favour of Lakshmi Ice & Cold Storage Factory. Exhibits D33 to D43 are copies of exhibits D43 to D52. The invoices exhibits D43 to D52 have been furnished to the Finance Corporation to raise loan. The appellant has deposed that Bangalore Ammonia has no factory premises. The office is in his residence. Bangalore Ammonia did not have the materials of its own. It purchased the materials from the market and supplied to Lakshmi Ice Factory. The finance corporation has issued cheque in favour of Bangalore Ammonia for having supplied the material. From the evidence of the appellant it is clear that Bangalore Ammonia did not have the materials to supply. The appellant claims to be the proprietor of Bangalore Ammonia and Lakshmi Ice & Cold Storage Factory. He has furnished the invoices of Bangalore Ammonia to facilitate him to raise loan. Exhibits D43 to D52 are concocted documents. 27. From the evidence of the appellant it is clear that Bangalore Ammonia did not have the materials to supply. The appellant claims to be the proprietor of Bangalore Ammonia and Lakshmi Ice & Cold Storage Factory. He has furnished the invoices of Bangalore Ammonia to facilitate him to raise loan. Exhibits D43 to D52 are concocted documents. 27. The appellant has stated that he borrowed money from several persons for putting up construction and to manage the affairs of Lakshmi Ice & Cold Storage Factory. He has not executed any documents to borrow the money. The appellant has not examined the persons from whom he had borrowed the money. Exhibits D21 to 24 are the Daybooks and ledgers of Lakshmi Ice & Cold Storage Factory. They are maintained by the appellant. In the absence of acceptable evidence it is difficult to believe the contents of exhibits D21 to D24 and they are not reliable. 28. The appellant contends that 45 HP motor was purchased from Papaiah through Ex.D18. Ex.D19 is the cash bill for having paid rewinding charges. In exhibits D18 and D19 the number of the motor is shown as 6664-OM-28, 45HP. Ex.D18 shows that the motor is sold for a sum of Rs..4,500/-in favour of M/s.Bangalore Ammonia. The amount is paid through cheque of Canara Bank. It is encashed as per Exhibits.D28(a). PW.1 Asst. Accounts officer of KEB has deposed that motor bearing No.6664-OM- 28, 45 HP was in the Bangalore Ice Factory on 14.5.1975 when electricity connection was given. PW.2, the Senior Asst. KEB has deposed that Motor bearing No.6664-OM-28, 45HP was found in the Lakshmi Ice & Cold Storage Factory on 17.6.1975 when electricity service was given to Lakshmi Ice & Cold Storage Factory. The evidence of PW.3 shows that the motor bearing No.6664-OM-28 belongs to Bangalore Ice Factory. The appellant in his cross- examination has stated that the motor mentioned in Ex.D18 was used in the Bangalore Ice Factory. From this, it is clear, exhibits D18 and D19 are concocted documents. The motor belonging to Bangalore Ice Factory has been shifted to Lakshmi Ice & Cold Storage Factory and thereafter, a circumstance has been created, as if, the motor was purchased from Papaiah for a sum of Rs..4,500/-. 29. The appellant has deposed that he had borrowed a sum of Rs..25,000/-from S.A.Irani for Lakshmi Ice & Cold Storage Factory. The motor belonging to Bangalore Ice Factory has been shifted to Lakshmi Ice & Cold Storage Factory and thereafter, a circumstance has been created, as if, the motor was purchased from Papaiah for a sum of Rs..4,500/-. 29. The appellant has deposed that he had borrowed a sum of Rs..25,000/-from S.A.Irani for Lakshmi Ice & Cold Storage Factory. The appellant has not produced anything to show that he had borrowed money from S.A.Irani for Lakshmi Ice & Cold Storage Factory. S.A.Irani has not been examined. Therefore, it is difficult to believe that appellant had borrowed money from S.A.Irani. 30. Exhibits P10 and P15 relate to purchase of Veedol Andarin Oil. The oil is purchased in the name of Bangalore Ice Factory. But, the address given is that of Industrial Gases and Chemicals Corporation, Kadagondanahalli, Bangalore -45. The oil is not used by the Bangalore Ice Factory. 31. The appellant has examined one S.D.Chowan. He is the brother of the appellant. He has deposed that himself and his father had lent money to appellant. He is an interested witness. 32. In the commissioner report Ex.C5 it is observed that there is a carry forward mistake while carrying forward balance of page No.23 to page No.24 of Ex.P9 cash book. The balance to be carried forward was Rs..33,399.11, whereas only Rs..3,882.92 has been carried forward. The amount of Rs..29,916.19 is not carried forward. 33. From the evidence on record, it is clear, exhibits P3 and P4 are the pass books of Indian Bank and they relate to Bangalore Ice Factory and not the personal account of the appellant. A sum of Rs..10,000/-has been paid to Munibachappa, the vendor, towards sale consideration amount from the account of Bangalore Ice Factory as per Ex.P3(a). The appellant has managed the affairs of Bangalore Ice Factory from 1972 onwards till it was dissolved. The appellant has not entered the witness box in the final decree proceedings. PW-1 (RW-1) and RW-2 have deposed the appellant has diverted the funds of the Bangalore Ice Factory and also used the materials belonging to Bangalore Ice Factory to run the Lakshmi Ice & Cold Storage Factory. The electricity bills, sales tax, auditor fee etc., have been paid from the account of Bangalore Ice Factory i.e., Exhibits.P3 and P4. PW-1 (RW-1) and RW-2 have deposed the appellant has diverted the funds of the Bangalore Ice Factory and also used the materials belonging to Bangalore Ice Factory to run the Lakshmi Ice & Cold Storage Factory. The electricity bills, sales tax, auditor fee etc., have been paid from the account of Bangalore Ice Factory i.e., Exhibits.P3 and P4. The electricity charges of Lakshmi Ice & Cold Storage Factory has been paid from the account of Bangalore Ice Factory as per exhibits P3(b), P3(c), P6(a) and P7(a). In Ex.P9 cash book at page 23, the closing balance is Rs..47,569.24. It is at Ex.P9(f). At page 24, the opening balance is Rs..3,882.94. The difference amount is not accounted. Through exhibits P10 and P15 one drum of Veedol Andarin oil has been purchased in the name of Bangalore Ice Factory, but it is not used for the Bangalore Ice Factory. 34. PW.3 (RW.1) has deposed that K.H.Shekar employee of Bangalore Ice Factory has been working in the Lakshmi Ice & Cold Storage Factory. His wages are paid from the Bangalore Ice Factory. Further he has deposed that one Jagannath employee of Bangalore Ice Factory has been transferred to Lakshmi Ice & Cold Storage Factory and cheque is issued from Bangalore Ice Factory account. 35. The appellant contends that he had borrowed money from the KSFC and others and managed the affairs of Lakshmi Ice & Cold Storage Factory. In his cross- examination the appellant has stated that Bangalore Ammonia is a proprietary concern. It belongs to him. Bangalore Ammonia has no factory premises. His residence is the office of Bangalore Ammonia. He has no documentary evidence to show that he was doing business in the name of Bangalore Ammonia. Exhibits D33 to D52 are the invoices of Bangalore Ammonia in favour of Lakshmi Ice & Cold Storage Factory. Exhibits D33 to D42 are copies of exhibits D43 to D52 invoices. Exhibits D43 to D52 invoices have been furnished to the Finance Corporation by the appellant to raise loan. The appellant has stated in his evidence that Bangalore Ammonia did not have the materials to supply to Lakshmi Ice & Cold Storage Factory. It purchased the material from the market and supplied it to Lakshmi Ice & Cold Storage Factory. The Finance Corporation has issued the cheque in favour of Bangalore Ammonia for having supplied the material. The appellant has stated in his evidence that Bangalore Ammonia did not have the materials to supply to Lakshmi Ice & Cold Storage Factory. It purchased the material from the market and supplied it to Lakshmi Ice & Cold Storage Factory. The Finance Corporation has issued the cheque in favour of Bangalore Ammonia for having supplied the material. The appellant claims to be the proprietor of Bangalore Ammonia and Lakshmi Ice & Cold Storage Factory. It is clear, the appellant has concocted invoices exhibits D43 to D52 to facilitate him to raise the loan. 36. The appellant has stated that he borrowed money from several persons for putting up construction and to run the business. He has not executed any documents. The persons from whom the money was borrowed have not been examined. Nothing has been produced to show that the appellant had borrowed from several persons. In the absence of acceptable evidence it is difficult to believe that the appellant had borrowed money as contended by him. The day books and ledgers of Lakshmi Ice & Cold Storage Factory cannot be believed as they are not reliable. 37. Ex.D18 is the letter cum receipt dated 28.8.1972 in favour of Bangalore Ammonia. It shows that 45 HP old motor bearing No.6664-OM-28 was sold in favour of Bangalore Ammonia for a sum of Rs..4,500/-by one Papaiah. Ex.D19 is the cash bill dated 15.9.72 in favour of Bangalore Ammonia. It relates to repair of 45 HP motor bearing No.6664-OM-28. PW.1 Asst Accounts Officer of KEB has deposed that motor bearing No.6664-OM-28, 45 HP was in the Bangalore Ice Factory on 14.5.1975 when electricity connection was given. PW.2, the Senior Asst., KEB, has deposed that motor bearing No.6664-OM-28, 45 HP was found in the Lakshmi Ice & Cold Storage Factory on 17.6.1975 when electricity service was given. The evidence of PW.3 shows that the motor bearing No.6664-OM-28 belongs to Bangalore Ice Factory. The appellant has admitted in his evidence that the motor mentioned in Ex.D18 was used in the Bangalore Ice Factory. It is clear, exhibits D18 and D19 have been concocted to make it appear that the motor bearing No.6664-OM-28 was purchased from Papaiah by Bangalore Ammonia. In fact, the motor belongs to Bangalore Ice Factory and it has been shifted to Lakshmi Ice & Cold Storage Factory. 38. The Court Commissioner has been examined as CW.1. It is clear, exhibits D18 and D19 have been concocted to make it appear that the motor bearing No.6664-OM-28 was purchased from Papaiah by Bangalore Ammonia. In fact, the motor belongs to Bangalore Ice Factory and it has been shifted to Lakshmi Ice & Cold Storage Factory. 38. The Court Commissioner has been examined as CW.1. He has produced his report Ex.C5. It is observed that there is a carry forward mistake while carrying forward balance of page No.23 to page No.24 of Ex.P9 cash book. The balance to be carried forward was Rs..33,399.11, whereas only Rs..3,882.92 has been carried forward. The amount of Rs..29,916.17 is not carried forward. 39. It was contended by the learned counsel for the appellant placing reliance on the decision of the Hon'ble Supreme Court reported in 1969(3) SCC page 555 and other cases that the property belonging to a person will not become the property of the firm unless there is an express or implied agreement to treat the property as firm's property. In the present case, sale consideration amount of Rs..10,000/-has been paid from the account of Bangalore Ice Factory. The materials belonging to Bangalore Ice Factory have been used to run the business of Lakshmi Ice & Cold Storage Factory. The invoices are concocted. The account maintained by the appellant is not reliable. The consent of the partners has not been obtained to do similar business. Therefore, in the circumstances of the case, the decisions relied upon by the learned counsel for the appellant will not help the appellant in anyway. The material on record discloses that the appellant has established the Lakshmi Ice & Cold Storage Factory by using the funds of Bangalore Ice Factory. The materials belonging to Bangalore Ice Factory have been used. In the circumstances, Lakshmi Ice & Cold Storage Factory is part and parcel of the Bangalore Ice Factory. All the partners are entitled for equal share in the assets of Lakshmi Ice & Cold Storage Factory. Since one of the partners has sold his share in favour of the respondents, his share will be equally divided amongst the respondents. The respondents 3, 4 and 5 are no more. Their LRs are entitled for their respective share. For the reasons stated above, the impugned judgment and decree does not call for interference. There is no merit in this appeal. Therefore, the appeal is liable to be dismissed. The respondents 3, 4 and 5 are no more. Their LRs are entitled for their respective share. For the reasons stated above, the impugned judgment and decree does not call for interference. There is no merit in this appeal. Therefore, the appeal is liable to be dismissed. Accordingly, the appeal is dismissed. No costs. As the appeal is dismissed, Misc.Cvl.6061/2010 and I.A.No.1/2005 do not survive for consideration. Accordingly, they are rejected.