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Madras High Court · body

2013 DIGILAW 2327 (MAD)

Khaja Mohideen v. M. Mohammed Saliha

2013-07-04

S.PALANIVELU

body2013
JUDGMENT Suit is filed for partition and separate possession. 2. The following are the brief allegations contained in the plaint - 2[a] The plaintiffs are brothers being the sons of Haji Sheik Dawood Saheb. The first defendant is the senior paternal uncle of the plaintiffs. The second defendant is the son of the first defendant. The plaintiffs had another senior paternal uncle by name Haji Mohammed Hussaian. He died in the year 1968. He had two sons and a daughter by names Habibullah, I.Ubaidullah and Misiria Begam. Habibullah died leaving behind the defendants 3 to 5 as his legal heirs. Ubaidullah also died subsequently as bachelor and his heirs are defendants 3 to 6. The mother of the 6th defendant Rafia Bibi also died in the year 1975 and her heirs are the defendants 3 to 6 herein. 2[b] In the year 1948, two business were started in partnership between N.A.Ardhanariappa Mudaliar, N.A.Ayyaswami Mudaliar sons of Arunachala Mudaliar and the plaintiffs two uncles Mohammed Hussain Saheb, Mohammed Abdul Khader, the first defendant herein and the plaintiffs father Haji Sheik Dawood Saheb. Subsequently the members of the families of the partners became partners. The first business was bus transport company run under the name and style of A.M.S. Motor Service and another business was a rice and oil mill run under the name of Eraichi Masthan Rice and Oill Mill at Nanjayyampalayam, Coimbatore. 2[c] The aforesaid firm did not see eye to eye which resulted in the firm being dissolved by a deed of dissolution dated 06.07.1968. By that time, the father of the 6th defendant died. After the said dissolution, all the partners entered into a registered partition deed on 03.06.1970 in respect of all the parties of the erstwhile partnership firm. Under the said partnership deed, N.A.Ayyaswami Mudaliar and his two sons Arunachalam and Balasubramaniam were allotted 'A' Schedule properties therein and Nos.4 to 11 therein who are defendants 1, the father of the plaintiffs, the 2nd defendant, the plaintiffs herein, first plaintiff No.7 therein and Rafia Bibi, their mother respectively were allotted 'B' Schedule properties therein. By virtue of the partition deed dated 03.06.1970, eight persons mentioned above became jointly entitled to all the properties covered under 'B' Schedule and each party is entitled to an 1/8th share in all those properties. By virtue of the partition deed dated 03.06.1970, eight persons mentioned above became jointly entitled to all the properties covered under 'B' Schedule and each party is entitled to an 1/8th share in all those properties. 2[d] The first plaintiff became entitled to 1/8th share and the 2nd defendant also became entitled another 1/8th share as per the partition deed dated 03.06.1970. The plaintiffs father who was also entitled to 1/8th share died in the year 1979 leaving behind the plaintiffs, a widow by name Hajara Bibi and 5 daughters by names Noor Jahaan Sirajunnissa, Hamurunnissa, S.Sabirunnissa and K.Thanjunnissa. The plaintiff's sister and mother executed a registered release deed in favour of the plaintiff on 27.06.1984 and therefore the plaintiffs have become entitled to 1/8th share of their father. 2[e] The 'B' Schedule properties of the partition deed comprise of a building at Udumalpet and the present suit properties. The plaintiffs as also all other owners who were allotted 'B' Schedule properties sold the building at Udumalpet to one T.Chinnaswami Chettiar on 16.09.1970. The first defendant is entitled to only 1/8th share in the suit properties who was allotted under the partition deed dated 03.06.1970 and so also the second defendant. The plaintiff's senior paternal uncle's widow Rafia Bibi was entitled to 1/8th share and she died during 1975 leaving behind two sons and a daughter. Her 1/8th share devolved on them. Rafia Bibi's son Habibullah was entitled to 1/8th share as per the partition deed dated 03.06.1970. He died and his share devolved upon defendants 3 to 5. Ubaidullah, another son of Rafia Bibi died as bachelor and his share devolved on the defendants 3 to 6 herein. The 6th defendant became entitled to a share as the heir of her mother and also as heir to her brother Ubaidullah. The defendants 3 to 6 are entitled together to 3/8th share in the suit properties and the defendants 9 and 10 are tenants of portions of the rice and oil mill buildings and therefore added as parties to the suit. The first defendant died during the pendency of the suit and hence defendants 11 and 12 are added as his legal heirs. The first defendant died during the pendency of the suit and hence defendants 11 and 12 are added as his legal heirs. 2 [f] The Rice and Oil Mill had several machineries described in 'B' Schedule of the partition deed dated 03.06.1970 and the first defendant had sold expeller, decoricator 3 HP Electric Motor Oil Tank, Oil Filler and steamer to the 7th defendant and he has no right or authority to sell the same, that the first defendant is bound to account for the sale proceeds, that similarly the first defendant, without the right or authority and the permission has sold away a 25 HP, A.E.I. Electric motor with oil starter to the 8th defendant, that he is bound to render accounts to the plaintiffs in respect of the sale proceeds as the said machineries may not be available, that in order to avoid technical objections, the defendants 7 and 8 are added as parties to the suit and that they are added as formal parties, that the plaintiffs have been demanding the first defendant to effect partition of all the joint properties but the first defendant has been evading the same and refused to agree for amicable partition. 3. In the written statement filed by D1 and D2, it is alleged as follows - 3 [a] The allegations contained in the plaint are denied. The plaintiffs are not entitled for the relief of partitions and separate possession and as well as for asking account as to the sale proceeds and that the relationship between the parties interest mentioned in the plaint are correct, that the 1st defendant, 4th defendant's grand father Haji Mohammed Hussan, the plaintiff's father Haji Sheik Dawooth Sahib are brothers and they are not members of one family, that there was no joint family among themselves and they lived separately from each other, that the partnership concerned between the 1st defendant Ayyasami Mudaliar and others are not concerned with the plaint schedule properties, that the partnership did not concern with the properties purchased by the 1st defendant in his individual name and the same were purchased by the 1st defendant in his own funds and not from the funds of his brothers and that there is no partnership deed among the parties with regard to 'Erachi Masthan Rice Mill'. 3 [b] 1st defendant purchased Item Nos.1 and 2 of the property as land under two sale deeds on 26.10.1945 and under one sale deed dated 02.11.1945 and that the above two items of properties are the self-acquired and separate properties of the 1st defendant, that on 25.05.1963, the 1st defendant, his brothers and other members of the family divided their family properties and executed a partition deed and it is admitted by the parties that there is no other property among themselves to be divided, that the partition deed dated 03.06.1970 mentioned in the plaint do not confer any title to any parties who are not having any subsisting title and that the parties to the partition deed could not get any right under the partition deed dated 03.06.1970 and that the same is invalid in law. 3 [c] The plaintiffs are not entitled to 3/8th share in the suit properties, that neither the plaintiffs nor their father are entitled for any share in the plaint schedule properties, that the release deed dated 27.06.1984 is not binding on the defendants 1 and 2, that the defendants 1 and 2 are neither parties to the said Release Deed nor witnesses for the same and that the above two items of properties are self acquired and separate properties of the 1st defendant. 3 [d] On 25.5.1963, the 1st defendant, his brothers and other members of the family divided their family properties and executed a partition deed, that it is admitted by the parties to the documents that there is no other property among themselves to be divided for, that the parties to the partition deed dated 3.6.1970 could not get any right under that deed, which is invalid in law since it is not a title deed, that the release deed dated 27.6.84 is not binding on the defendants 1 and 2 since, the said release deed is not a title deed and the defendants 1 and 2 are neither parties to the said release deed nor witnesses for the same. 3 [e] The 2nd defendant had filed W.P.No.7182/75 before the High Court, madras and the High Court has given a finding that the Plaintiffs herein and others have no manner right to suspend the licence for the Mill to be run by the lessee, that the Sub-Collector of Erode has passed an order that the 1st defendant is entitled to the patta of the land mentioned in item No.2 in the plaint schedule, that the plaintiffs have not filed any appeal or revision against the order of Sub-Collector, Erode, and hence the above order is final, that the plaintiffs are not entitled to question the same before this Court in this suit, that the patta stands in the name of the 1st defendant, that the 1st defendant alone has dealt with item No.1 and 2 properties as that of his own and not on behalf of his brothers 3 to 6, that he alone is in possession of the suit properties till this date, that he is entitled to create an encumbrance on the properties according to his whims and fancy and that the machineries has been purchased by the 1st defendant and he sold the same to the 7th and 8th defendants. 3 [f] The plaintiffs are not in joint possession of the suit properties along with 1st defendant, that the suit properties are not concerned with the partnership firm, that the 1st defendant need not furnish accounts to the plaintiffs for the sale of machineries, that the plaintiffs are not entitled for partition and separate possession of the suit properties, that the plaintiffs have no subsisting title or even if the plaintiffs are having any title it is barred by limitation and that the defendants 3 to 6 are colluding with the plaintiffs in conducting this case and hence the suit may be dismissed with costs. 4. 4. The following are the averments contained in the written statement filed by D7 and adopted by D8: 4 [a] The 7th defendant has no knowledge about the relationship of the plaintiff and the defendants 1 to 6, that the plaintiffs are not entitled to a share in the machinery mentioned in the body of the plaint, that the 7th defendant is not at all necessary party to the suit, as he has not purchased the machineries, he is not bound to submit accounts thereon, and hence the suit has to be dismissed. 5. In the written statement filed by the 10th defendant it is stated that he is tenant in the schedule 2nd item property under 2nd defendant, that the plaintiffs and defendants have no right and enjoyment over the schedule 2nd item property and hence the suit filed by the plaintiffs have to be dismissed. Since, no relief is claimed against R7, even though he died pending the appeal, no steps were taken to implead his legal heirs has been given up. To that effect the appellant has filed a memo on 17.11.2008. 6. After hearing both parties, the learned Sub-Judge, Dharapuram has dismissed the suit, refusing to grant relief of partition under observation that the first defendant had not purchased the properties on his own and that since by virtue of Ex.A.1 partition deed even though the plaintiffs were shown as sharers in the properties, it cannot be stated that they are having rights in the properties and that the proportion of shares possessed by the plaintiffs has not been shown and hence they are not entitled for partition. The plaintiffs have carried the matter on appeal contending that even though the first defendant has purchased the properties on his own, the materials available in this case would show that the properties had been treated as properties belonging to the partnership firm and so the plaintiffs were parties to the firm, they are entitled to due share in the suit properties. Following are the points which has arisen for consideration in this appeal: 1.Whether the first defendant has allowed his properties to be treated as properties belonging to the partnership firm and his attitude and conduct would attract the ingredients of Section 14 and 253 of the partnership Act? 2.Whether the plaintiffs are entitled to partition as prayed for? 3.To what relief are the partners entitled to? 2.Whether the plaintiffs are entitled to partition as prayed for? 3.To what relief are the partners entitled to? Point No.1: 7. The learned Senior Counsel Mr.S. Parthasarathy appearing for the petitioner would contend that inasmuch as the first defendant has allowed his own properties to be treated as the properties belonging to the partnership firm, they partake the character of partnership properties, that the documents produced on behalf of the plaintiffs would vividly show that first defendant had got intention and inclination to treat the properties as those belonging to the partnership firm, that certain admissions in the oral testimony of the first defendant would clarify the position and that as per law the properties have become partnership properties resulting the rights of plaintiffs to claim partition. 8. Arguing on the other side of the coin, Mr.M.V. Krishnan appearing for Respondents 8 and 11 would urge that even though the first defendant has accepted for utilising his properties for the purpose of partnership business, unless proof of implied or express conduct from the parties for this purpose specifically, there could be no conclusion that the properties are belonging to the partnership firm, that the conduct of the first defendant would not attract the legal implications as ordained the provisions of Partnership Act and that the present attempt on the part of the plaintiffs claiming partition is a futile exercise. 9. Before entering into the factual aspects and specific conduct of the parties, it is profitable to bear in mind the settled legal position which holds the field. Hence it is deemed appropriate to refer to the judgments of the Honourable Supreme Court which lay down the law in this subject. 10. Both the learned counsel would rely upon a judgment of the Honourable Supreme Court reported in 1969 (3) SCC 555 [Arjun Kanoji Tankar v. Santaram Kanoji Tankar] wherein Their Lordships have observed that in order to bring the matter under Section 14 of the Partnership Act, it must be shown that there is an agreement express or implied that the property was has to be treated as the property of the partnership. Following are the relevant portion in the judgment: 13. Following are the relevant portion in the judgment: 13. Counsel for the defendant contends that in any event by virtue of Section 14 of the Partnership Act, 1932, all the assets with aid of which the business was carried on by the plaintiff must be deemed in law to have become partnership assets, under the deed of partnership, dated March 16, 1953. Section 14 of the Partnership Act, 1932, provides: “Subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of the business of the firm, and includes also the goodwill of the business.” 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 partnership merely because it is used for the business of the partnership. It will become property of the partnership only if there is an agreement express or implied at the property was, under the agreement of partnership, to be treated as the property of the partnership. In Lindley on Partnership, 12th Edn., it is stated at p. 365: “Again, it by no means follows that property used by all the partners for partnership purposes is partnership property. For example, the house and land in and upon which the partnership business is carried on often belongs to one of the partners only, either subject to lease to the firm, or without any lease at all”. If, however, a partner brings such property into the common stock as part of his capital it becomes partnership property, and any increase in its value will belong to the firm. Xxx the only true method of determining as between the partners themselves what belongs to the firm, and what not, is to ascertain what agreement has been come to upon the subject. But this is by no means always an easy matter. We are unable to agree with counsel for the defendant that whenever there is a partnership and the assets which originally belonged to one of the partners are used for the purposes of the partnership, they must be presumed to have become partnership assets. But this is by no means always an easy matter. We are unable to agree with counsel for the defendant that whenever there is a partnership and the assets which originally belonged to one of the partners are used for the purposes of the partnership, they must be presumed to have become partnership assets. In Miles v. Clarke1 the defendant started the business of a photographer and then admitted the plaintiff a successful free lance photographer as a partner. The leasehold premises, furniture and studio equipment belonged to the defendant. It was intended to record the terms of partnership into a formal agreement, but no terms were ever settled, except that the partners were to share the profits equally. On dissolution of the partnership it was held that no terms ought to be implied except such as were essential to business efficacy and that only the consumable items of stock-in-trade were to be regarded as assets of the partnership, and the lease of the property, equipment and personal goodwill were to be treated as being the property of the partners who brought them into the business." 11. The learned Senior Counsel appearing for the appellants placed reliance upon a Full Bench decision of the Honourable Supreme Court in AIR 1966 (SC) 1300 [Addanki Narayanappa and another v. Bhaskara Krishnappa (dead)] in which the observations have been recorded as follows: "The provisions of Ss.14, 15, 29, 32, 37, 38 and 48 make it clear that whatever may be the character of the property which is brought in by the partners when the partnership is formed or which may be acquired in the course of the property which is brought in by the partners when the partnership is formed or which may be acquired in the course of the business of the partnership it beocmes the property o the firm and what a partner is entitled to is his share profits, if any, accruing to the partnership from the realisation of this property, and upon dissolution of the partnership to a share in the money representing the value of the property. No doubt, since a firm has no legal existence, the partnership property will vest in all the partners and in that sense every partner has an interest in the property of the partnership. No doubt, since a firm has no legal existence, the partnership property will vest in all the partners and in that sense every partner has an interest in the property of the partnership. During the subsistence of the partnership, however, no partner can deal with any portion of the property as his own." 12. In yet another decision rendered by the Supreme Court in 2002 (1) SCC 583 [Shashi Kapila v. R.P. Ashwin], cited by the plaintiffs side, it is held thus : "9. A partnership firm is an association of persons. But in spite of that unity between themselves, every partner can have his own separate existence from the firm. Any right which a partner has over any property, other than the partnership property, would remain as his individual asset. The mere fact that the particular person has chosen to include himself as a partner of a firm will not result in incorporation of all his individual properties as the assets of the partnership. Section 14 of the Indian Partnership Act, 1932 says: “14. Subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of the business of the firm, and includes also the goodwill of the business.” 13. Both the learned counsel have relied upon a Division Bench decision of Andhra Pradesh High Court reported in AIR 12978 Andhra Pradesh 257 [M/s. Boda Narayana Murthy and Sons v. Valluri Venkata Suguna and others] wherein the learned Judges have observed as follows: "9. 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 partnership merely because it is used for the business of the partnership. It would become property of the partnership only if there is an agreement, express or implied that the property under the agreement of partnership is to be treated as the property of the partnership. It would become property of the partnership only if there is an agreement, express or implied that the property under the agreement of partnership is to be treated as the property of the partnership. According to the provisions of S.14 for a property to became the property of a firm it must have been brought into the stock of the firm by the partners originally when the firm was formed or subsequently acquired by purchase or otherwise in the course of the business of the firm." 14. A Division Bench decision of Rajasthan High Court reported in 127 ITR 29 (DB) [Commissioner of Income Tax, Rajasthan v. Amber Corporation] it is held that even if the property contributed by a partner be immovable property, no document, registered or otherwise, is required for transferring the property to the partnership. 15. In a Division Bench decision of Allahabad High Court reported in 108 ITR 214 (DB) [K.D.Pandeay v. Commissioner of Wealth Tax , Lucknow.] it is observed that a partner can bring his immovable property to the stock or capital of the firm as his contribution thereto without a registered instrument, as soon as a partner intends that his separate properties should become partnership properties and they are treated as such, then by virtue of the provisions of the Contract Act and the Partnership Act,the properties become the properties of the firm. 16. In a Full Bench decision of this Court in AIR 1970 Madras 5 [Chief Controlling Revenue Authority v. Chidambaram] it is held thus: "By virtue of Section 14, property could be thrown into the partnership stock without any formal document, and would, thereafter, become the property of the firm. Moreover, when the very partnership formally came into existence under the document, and there are no words whatever of a dispositive character, which, expressly or by implication, amount to a transfer of interest as between the partner who threw his property in the partnership and the rest of the partners, it could not be presumed that the partner sold his property to the partnership firm. " 17. The learned counsel for the respondents 8-11 would place reliance upon a decision of the Honourable Apex Court reported in AIR 2002 SC 101 [Shashi Kapila v. R.P.Ashwin] in which Their Lordships have held as follows: "A partnership firm is an association of persons. " 17. The learned counsel for the respondents 8-11 would place reliance upon a decision of the Honourable Apex Court reported in AIR 2002 SC 101 [Shashi Kapila v. R.P.Ashwin] in which Their Lordships have held as follows: "A partnership firm is an association of persons. But in spite of that unity between themselves, every partner can have his own separate existence from the firm. Any right which a partner has over any property, other than the partnership property, would remain as his individual asset. The mere fact that the particular person has chosen to include himself as a partner of a firm will not result in incorporation of all his individual properties as the assets of the partnership." 18. In a Division Bench decision of Allahabad High Court reported in AIR 1936 Allahabad 270 [Lachhman Das and another v. Mt.Gulab Devi ] it is cited as follows: "I may refer particularly to some of the provisions of Section 253 of that Act. The first part of the section is as follows: In the absence of any contract to the contrary the relations of partners to each other are determined by the following rules: (1) All partners are joint owners of all property originally brought into the partnership stock or bought with money belonging to the partnership or acquired for the purposes of the partnership business. All such property is called partnership property. The share of each partner in the partnership property is the value of his original contribution, increased or diminished by his share of profit or loss...." 19. Mr.V. Bharathidasan appearing for R-13, R-18 and R-20 would garner support from a decision of the Honourable Supreme Court in (2003) 6 Supreme Court Cases 423 [ARM Group Enterprises Ltd., v. Waldorf Restaurant and Others] wherein it is held as under : "35. Under Section 14 of the Partnership Act, 1932, in the absence of an agreement to the contrary, property exclusively belonging to a person, on his entering into partnership with others, does not become a property of the partnership merely because it is used for the business of the partnership. Such property will become property of the partnership only if there is an agreement express or implied that the property was, under the agreement of the partnership, to be treated as the property of the partnership. Such property will become property of the partnership only if there is an agreement express or implied that the property was, under the agreement of the partnership, to be treated as the property of the partnership. See decision of this Court in the case of Arjun Kanoji Tankar v. Santaram Kanoji Tankar (1969) 3 SCC 555 (SCC at paras 13 and 14)." 20. From the above illuminating judicial pronouncements, following points emerge on the subject to adjudicate the issue: 1. The mere fact that the partner allows his property to use for the partnership business, such property would not become partnership property. 2. There must be an implied or express contract among the partners for treating the property as partnership property. 3. In order to treat a property of a partner be that of partnership property, it must be thrown into the partnership stock; it may be without any formal document. 4. If the partnership came to existence under a document and when there were no rights indicating transfer of interest as between a partner through his property in the partnership and the rest of the partnership, it cannot be presumed that the partner sold his property to the partnership firm. 5. A partner should intend that his separate property should become partnership property and the same should be treated as such. Then by virtue of provisions of Contract and Partnership Act, the properties become the properties of partnership 21. With the back ground of the above said legal prepositions, the facts of the case must be approached. In the Memorandum of appeal, in Ground No.12, it is stressed that the trial court has failed to note that the documents produced by the plaintiffs marked as Exs.A14 to A16, A18, A19 and A24 clearly establish that the suit properties belonging to the first defendant were treated by the partners including the first defendant as the properties of partnership. Exs.A14-A16 are the Ledger Books maintained in the partnership business in which the transactions have been recorded. Exs.A14-A16 are the Ledger books maintained from the year 1954-55 uptil 1966-67. In those books, the entries are available with regard to the expenses incurred by the firm for the suit schedule properties. Exs.A-17 and A18 are the Rent Agreements came to existence between 1st defendant and 3rd party leasing the second item of the suit schedule property. Exs.A14-A16 are the Ledger books maintained from the year 1954-55 uptil 1966-67. In those books, the entries are available with regard to the expenses incurred by the firm for the suit schedule properties. Exs.A-17 and A18 are the Rent Agreements came to existence between 1st defendant and 3rd party leasing the second item of the suit schedule property. Exs.A-19 to A-24 are the accounts maintained from 1.4.1953 to 31.3.1954 upto 1.4.1966 to 31.3.1967. These records were marked subject to objection. These accounts of rent income and building expenses have been entered in the partnership business. Taking advantage of the above entries it is urged by the plaintiffs' side that the first defendant has accepted his properties to be maintained by the partnership firm. The rent income was utilised for partnership firm. 22. The allegation that the plaintiffs became the parterns of the firm in or about 1963, it is not disputed. Even though the family partition took place in the family of first defendant, the suit properties which are absolute properties of first defendant were not included since they were his separate properties, it is argued. After the dissolution of partnership firm (unregistered) the legal heirs of partners and existing partners entered into an agreement with regard to suit properties on 03.06.1970 by means of original of Ex.A.1 registered partition deed. 23. It is worthwhile to note that the first defendant is also a party to the document. In this document, the plaintiffs are also parties. It is categorically recited in this document that 'A' schedule properties belong to N.A. Ayyasami, N.A. Arunachalam, N.A.Balasubramaniam and 'B' Schedule properties belongs to first defendant and 7 others including plaintiffs. It is also specifically recited in this document that immovable properties viz., suit properties were already partitioned between the parties to Ex.A.1 document and to confirm the same they were executing and registering. It is further mentioned in the document that the respective shares allotted to the parties had to be enjoyed by the parties absolutely. 24. In view of the above said Ex-A1 Paritition Deed, the plaintiffs as well as the first defendant and others had got equal shares in the properties. In Ex.A-1 the present suit properties are coming under 'B' Schedule in which it is recited that 8 persons (including first defendant and plaintiffs) are absolutely entitled to the 'B' Schedule properties. 25. 24. In view of the above said Ex-A1 Paritition Deed, the plaintiffs as well as the first defendant and others had got equal shares in the properties. In Ex.A-1 the present suit properties are coming under 'B' Schedule in which it is recited that 8 persons (including first defendant and plaintiffs) are absolutely entitled to the 'B' Schedule properties. 25. It transpires that the first defendant was party to Ex.A-1, had consciously participated in the partition and accepted the suit properties to be partitioned between 8 persons. Now, he can not turn around and contend that the plaintiffs are not entitled to the share. 26. As far as the legal position whether the properties belonging to the partner to the partnership would become the properties of the partnership in given circumstances or not, in view of the participation of first defendant in Ex.A-1 partition he is estopped from contending contra to the document. Hence, the plaintiffs are entitled for 3/8th share in the suit properties. In such view of the matter, the Judgment and Decree passed by the trial Court are liable to be set aside and they are accordingly set aside. These points are answered accordingly. 27. In fine, the Appeal Suit is allowed, passing preliminary decree for partition of 3/8th share in the suit properties and a direction for rendition of accounts as per para 20(b) of the plaint. No costs.