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2019 DIGILAW 1896 (MAD)

Gudiyattam Lungi Company v. G. Vasantha

2019-07-19

V.BHARATHIDASAN

body2019
JUDGMENT : V. Bharathidasan, J. 1. The defendants 1 to 6 and 8 to 13, and the legal heirs of the deceased 7th defendant -P.N. Sundaramurthy in O.S. No. 48 of 2006, on the file of the learned Subordinate Judge, Gudiyatham, are the appellants herein. The respondents herein filed the suit for (i) declaration of title in respect of suit A-schedule property and for the consequential relief of recovery of possession of A schedule property; (ii) division of B Schedule properties into 4 equal shares and allotment of one such share jointly to the plaintiffs; and (iii) dissolution of partnership and accounting by appointing a receiver. The learned Subordinate Judge, by judgment dated 28.04.2016 decreed the suit in part and thereby declared the title of the plaintiffs in respect of Item Nos. 1 and 2 of suit A-Schedule property and consequently directed the defendants to hand over the vacant possession of the same within two months; granted preliminary decree in respect of suit B-Schedule property, dividing the B-Schedule property into four equal shares and allotting 1/4th share to the plaintiffs; also granted a decree for dissolution of 1st and 2nd defendant partnership firms and permitted the plaintiffs to take out a separate proceedings as per order 40 Rule 1 of CPC in respecting of accounting of the firms. Insofar as the other items of suit A-Schedule property is concerned, the learned Subordinate Judge dismissed the suit. Aggrieved by the same, the defendants 1 to 13 preferred an appeal in A.S. No. 34 of 2016 before the District Judge, Vellore. The learned District Judge by judgment dated 19.06.2018, dismissed the appeal thereby confirming the judgment and decree passed by the trial court. After the dismissal of the appeal suit, 7th defendant in the suit namely, P.N. Sundaramoorthy died. Challenging the same, the defendants 1 to 6 and 8 to 13 and the legal heirs of the 7th defendant in the suit are before this court with this second appeal. 2. For the sake of convenience, the parties will hereinafter be referred to as per their rank in the suit. 3. The case of the plaintiffs in brief is that, one P.G. Ekambara Mudaliar was the founder and one of the partners of the 1st and 2nd defendant partnership firms. The 1st defendant firm is a marketing unit and the 2nd defendant firm is a manufacturing unit. 3. The case of the plaintiffs in brief is that, one P.G. Ekambara Mudaliar was the founder and one of the partners of the 1st and 2nd defendant partnership firms. The 1st defendant firm is a marketing unit and the 2nd defendant firm is a manufacturing unit. Both the firms were established in the year 1942, with five partners namely, (i) P.G. Subramania Mudaliar, (ii) P.G. Ekambara Mudaliar, (iii) P.G. Murugesa Mudaliar, (iv) P.G. Narayana Mudaliar and (v) P.G. Murugesa Mudaliar. All of them are sons of one Govindappa Mudaliar. The manufacturing unit is engaged in manufacturing of lungies with the trade mark "Top Brand", with a special design keeping the Top in a white triangle space with striped red colors and the rest of the portion colored in Red. In the year 1963, one of the partners namely, P.G. Narayanasamy Mudaliar died and the defendants 4, 5 and 6 being legal heirs of P.G. Narayanasamy Mudaliar had taken 1/3rd share of the partnership firm. One P.G. Sivagnanam Mudaliar, the eldest son of P.G. Narayanasamy Mudaliar, was adopted by one P.K. Gangadhara Mudaliar, brother of P.K. Govindappa Mudaliar, subsequently, the said P.G. Sivagnana Mudaliar was also added as one of the partners in both the firms. 4. It is the further case of the plaintiff that, in the year 1967, the plaintiff's father P.G. Ekambara Mudaliar died intestate leaving behind his wife, P.E. Padma and the plaintiffs as his legal heirs to succeed his estate. After the death of Ekambara Mudaliar, the plaintiff's mother was taken as the senior most partner in both the firms. After the death of Ekambara Mudaliar, another partner namely, P.G. Nataraja Mudaliar got retired from the firms, thereafter, another partner namely, Murugesa Mudaliar also got retired. While so, another partner namely, P.G. Subramania Mudaliar, also died in the year 1986, leaving behind the defendants 7 to 10 as his legal heirs and they have also become the partners jointly holding 1/4th share in the firms. After the death of the plaintiffs' father, the defendants were giving share due to their mother continuously. But, after the death of their mother, share was not paid to the plaintiffs and the plaintiffs have also come to know that the defendants 3 to 6 and 7 to 10 had floated their own company and have started using the trade mark of the 1st and 2nd defendant firms. 5. But, after the death of their mother, share was not paid to the plaintiffs and the plaintiffs have also come to know that the defendants 3 to 6 and 7 to 10 had floated their own company and have started using the trade mark of the 1st and 2nd defendant firms. 5. According to the plaintiffs, the properties mentioned under Item Nos. 1 and 2 of suit A-Schedule were the separate properties of the plaintiffs' father Ekambara Mudaliar and the other items of A Schedule properties were the properties of P.G. Ekambara Mudaliar and Murugesa Mudaliar. For the sake of convenience, those properties were also used for the activities of the business with the permission of the P.G. Ekambara Mudaliar and Murugesa Mudaliar. But, all the sale deeds relating to the A Schedule property stand in the name of the father of the plaintiffs. According to the plaintiffs, their father never parted with the ownership of the schedule mentioned properties. Insofar as Item 1 to 7 in B-Schedule are concerned, they are the absolute properties of the 1st and 2nd defendant firms. They were purchased from and out of the income derived from the partnership business and the plaintiffs are entitled to 1/4th share jointly in those properties. 6. It is the further case of the plaintiff that, since the partnership is at will and when the legal heirs of the deceased Padmavathy Ammal, the plaintiffs have not opted to join the firms as partners, the defendants are not entitled to continue the firm. In the above circumstances, the suit was filed for declaration of title of the plaintiff in respect of the suit A Schedule property and for consequential relief of recovery of possession, for partition of B Schedule property, and for dissolution of the partnership firms, also for accounting. 7. The defendants 1, 2, 7 to 10 filed their written statement admitting the constitution of the 1st and 2nd defendant firms and also induction of P.E. Padmavathy Ammal as one of the partners of the 1st and 2nd defendant firms in respect of P.G. Ekambara Mudaliar's 1/4th share. It is further contended that, the properties mentioned under A-Schedule are not absolute properties of P.G. Ekambara Mudaliar. Item Nos. It is further contended that, the properties mentioned under A-Schedule are not absolute properties of P.G. Ekambara Mudaliar. Item Nos. 1 and 2 of the suit A Schedule property were purchased in the name of Ekambara Mudaliar from out of the income derived from the 2nd defendant firm and the same were brought into the account of the 2nd defendant firm also. The other item of properties mentioned under A Schedule were also belonging to the 2nd defendant firm. All the properties and the assets were being maintained only by the partnership firms. 8. It is further contended by the defendants that, the properties mentioned under B-Schedule are the properties of the 2nd defendant firm, and the 1st defendant firm have got nothing to do with the B Schedule property. The purchase of properties in B-Schedule were maintained only by the 2nd defendant firm and the same were purchased from out of the income derived from the 2nd defendant firm. The plaintiffs cannot claim 1/4th share in the suit A and B Schedule properties. Under Section 46 of the Partnership Act, on the death of one or more of the partners, the firm would get dissolved automatically. Immediately after the death of P.E. Padmavathy, both the partnership firms were reconstituted with defendants 3 to 10 as partners and the firm continued to run the business. A new partnership deed was executed on 19.01.1990 in respect of 1st defendant firm and a supplementary agreement was executed on 05.01.1990 in respect of the 2nd defendant firm. The plaintiffs have failed to ask for settlement of their claim as legal heirs of the deceased partner. Thereafter, it was resolved to pay a total sum of Rs. 5,25,000/- to each of the plaintiffs and they were also paid the amount on various installments and the plaintiffs have also acknowledged the receipt of the same by way of affidavit independently. In the above said circumstances, the suit for account and dissolution of partnership firm does not arise and there is no cause of action for the other reliefs. On the death of P.E. Padmavathy, the partnership firms got dissolved on 29.12.1989. Since the plaintiffs did not opt for becoming partners of the firms the firm was reconstituted with the defendants 3 to 10 as partners. 9. On the death of P.E. Padmavathy, the partnership firms got dissolved on 29.12.1989. Since the plaintiffs did not opt for becoming partners of the firms the firm was reconstituted with the defendants 3 to 10 as partners. 9. Based on the above pleadings, the following issues were framed before the Trial Court for trial:- (1) Whether a single suit for dissolution of two partnership firm is maintainable? (2) Whether Padmavathy was admitted to the partnership firms for enjoying the partnership properties absolutely? (3) Whether A and B plaint schedule properties are the absolute properties of deceased Ekambara Mudaliar? (4) Whether the partnership firm got automatically dissolved due to death of one of the partners Padmavathy? (5) Whether the partnership firms were reconstituted after the death of Padmavathy? (6) Whether the plaintiffs were admitted as partners after the death of their mother? (7) Whether the plaintiffs got settled the partnership accounts by receiving the amount due from the partners? (8) Whether the plaintiffs are entitled to ask accounting of the partnership firm? (9) Whether the plaintiffs have received the money from the partnership firm? (10) Whether the suit is barred by limitation? (11) Whether the market value of the plait schedule properties as valued is correct? (12) Whether the court has pecuniary jurisdiction to entertain the suit? (13) Whether the plaintiffs are entitled to the reliefs as claimed? (14) To what relief? Additional Issues:- (1) Whether the plaintiffs are entitled to declaration as recovery of possession with respect to 'A' Schedule property? (2) Whether the plaintiffs are entitled to 1/4th share in the 'B' Schedule property? During trial, on the side of the plaintiffs, 1st plaintiff herself was examined as P.W. 1 and one Kutti was examined as PW. 2 and as many as 14 documents were marked. On the side of the defendants, 8th defendant was examined as D.W. 1 and the 9th defendant was examined as D.W. 2 and one Thirunavukkarasu was examined as D.W. 3 and as many as 12 documents were marked. 10. The trial court, after considering all the materials available on record, had come to a conclusion that, Item 1 and 2 of suit A Schedule properties were the self acquired properties of the plaintiffs' father P.G. Ekambara Mudaliar, therefore, the plaintiffs can claim right only in respect of item Nos. 10. The trial court, after considering all the materials available on record, had come to a conclusion that, Item 1 and 2 of suit A Schedule properties were the self acquired properties of the plaintiffs' father P.G. Ekambara Mudaliar, therefore, the plaintiffs can claim right only in respect of item Nos. 1 and 2 of A Schedule properties and accordingly, decreed the suit in respect of Item Nos. 1 and 2 of A-Schedule properties and dismissed the suit in respect of other items of properties in suit A-Schedule. Further, the trial court had granted decree in respect of other reliefs as prayed for. Aggrieved by the same, the defendants had preferred an Appeal suit, and after having considered the available materials, the first appellate Court concurred with the findings of the Trial Court and dismissed the Appeal Suit. Challenging the same, the defendants and the legal heir of the deceased 7th defendant are before this court with this second appeal. 11. On 03.04.2019 when this second appeal came up for admission, upon considering the entire materials available on record the following questions of law have been formulated for consideration. The learned counsel for the appellants and the learned counsel for the respondent were invited to advance their arguments on the above questions of law. (1) Whether Item 1 and 2 of A-Schedule properties were the self acquired properties of P.G. Ekambara Mudaliar or belonged to the partnership firms? (2) Whether Item 1 and 2 of A-Schedule property were deemed to be the assets of the partnership firms as per Section 14 of the Partnership Act? (3) Whether the plaintiffs are entitled to ask for dissolution of partnership firms? (4) Whether the suit claim is barred by limitation? (5) Whether the plaintiffs are entitled to 1/4th share in the suit B-schedule property? 12. I have heard the learned counsel for the appellants and the learned counsel for the respondent and also perused the available records carefully. 13. The learned counsel appearing for the appellants/defendants would contend that, even though item 1 and 2 of the suit A-Schedule properties stand in the name of P.G. Ekambara Mudaliar, the father of the plaintiffs, those properties were purchase from out of the income derived from the partnership firms, Ex. B.4 and Ex. B.5, Accounts Book of the firms would clearly show that they were the assets of the partnership firms. B.4 and Ex. B.5, Accounts Book of the firms would clearly show that they were the assets of the partnership firms. As per Section 14 of the Partnership Act, the properties became the properties of the 1st and 2nd defendant firms and both the courts below have given a perverse finding without considering Ex. B.4 and Ex. B.5 in a proper perspective. 14. The learned counsel for the appellants/defendants, further submitted that the suit in respect of dissolution of partnership firms is hopelessly barred by limitation. The plaintiffs' mother P.E. Padmavathy, who was one of the partners of the firms died in the year 1989, and the suit was filed only in the year 2006 after 17 years of the death of one of the partners. That apart, immediately after the death of the plaintiffs' mother, the plaintiffs have entered into an agreement with the defendants and received their share in the partnership firms under Ex. B.9 to Ex. B.11, subsequently, submitted a sworn in affidavit individually under Ex. B.1 to Ex. B.3, for the receipt of the entire amount. After having received their share, now, it is not open to the plaintiffs to ask for dissolution and accounting of the partnership firms. 15. The learned counsel for the appellants/defendants further contended that as per clause (11) of the partnership deed which has been marked as Ex. B.6, the legal heirs of the deceased partners are entitled for the share amount within a period of twelve months from the date of death of the partner. Now, the plaintiffs have filed the suit after 17 years after the death of their mother and therefore, they cannot maintain the suit. He further added that the suit B Schedule property is also the property of the 2nd defendant firm, and as the plaintiffs had already received their share in respect of the 2nd defendant firm, they are not entitled for a decree for partition of 1/4th share in the suit B-Schedule property. 16. The learned counsel for the appellants/defendants finally submitted that the first appellate court which is the final court of fact did not at all consider the available materials in a proper perspective and the first appellate court has miserably failed to meet out the grounds put forth in the appeal memorandum and instead it has simply concurred with the findings of the court below mechanically without proper application of mind. 17. Per contra, the learned senior counsel appearing for the respondents/plaintiffs contended that, the item Nos. 1 and 2 of A Schedule properties stood in the name of the plaintiffs' father and they were purchased in the year 1951 and 1954 much prior to the constitution of the 1st and 2nd defendant partnership firms which was in the year 1959, and based on some innocuous entries made under Ex. B.4 and Ex. B.5 Account Books relating to the year 1960-61, it cannot be contended that the properties were purchased from out of the income derived from the partnership firm. According to the learned senior counsel, the provision of Section 14 of the Partnership Act would not come into rescue of the appellants/defendants. 18. The learned senior counsel further contended that, so far as the dissolution of partnership firm is concerned, after the death of the plaintiffs' mother, the firm was not dissolved and it continued to exist and reconstituted in the year 1990, hence, Article 5 of the Limitation Act is not at all applicable to the instant case. The firm was reconstituted in the year 1974, inducting the mother of the plaintiffs as a partner of the firms and as per clause (12) of the partnership deed, on the death or retirement of one of the partners, the partnership firm will not get dissolved and the remaining partners are entitled to continue the business, and no time limit was fixed for the payment of share amount to the legal heirs of the deceased partner. Hence, according to the learned senior counsel the suit is not at all barred by limitation as contended by the appellants/defendants. 19. That apart, so far the settlement of share of the firms in favour of the respondents/plaintiffs, according to the learned senior counsel, Ex. B.1 to Ex. B.3 were not proved by the appellants and both the courts below after having elaborately consider the entire materials rejected the contentions of the appellants and decreed the suit and no substantial question of law arises for consideration in this second appeal and therefore, he prayed for dismissal of the second appeal. 20. I have considered the rivals submissions carefully. Questions of Law Nos. 1 and 2:- 21. 20. I have considered the rivals submissions carefully. Questions of Law Nos. 1 and 2:- 21. It is an admitted fact that the 1st and the 2nd defendant firms originally came into existence in the year 1959 with five partners who are sons of one Govindappa Mudaliar. The father of the plaintiffs one Ekambara Mudaliar was one of the partners in the firms. The 1st defendant firm was a marketing unit having office at Chennai and Kolkatta and the 2nd defendant firm was a manufacturing unit situated at Gudiyatham. The firms were engaged in the manufacturing and marketing lungies with a registered trade mark. The father of the plaintiffs namely P.G. Ekambara Mudaliar died in the year 1967 and in his place, the plaintiffs mother one Padmavathy was inducted as partner of the firms. Before that in the year 1953, one Narayanasamy Mudaliar, the father of the defendants 3 to 6 died and in the year 1986, Subramaniya Mudaliar, the father of the defendants 7 to 10 died. Thereafter, the mother of the plaintiffs namely, Padmavathy Ammal died in the year 1989. 22. The case of the plaintiffs is that the suit A-Schedule properties are the individual property of the plaintiffs' father Ekambara Mudaliar and it was not the property of the partnership firms. Likewise, the properties mentioned under B-Schedule were the properties of the partnership firm, therefore, the plaintiffs are entitled to 1/4th share. After the death of the mother of the plaintiffs, the defendants did not pay the share of the firm to the plaintiffs. Despite demands, the defendants refused to give their due shares and hence, the suit came to be filed for declaration of title in respect of suit A schedule property, and for the consequential relief of recovery of possession of A schedule property, for division of B Schedule properties into 4 equal shares, and to allot one such share jointly to the plaintiffs, further, dissolution of partnership and also for accounting by appointing a receiver. 23. The defendants contested the suit that, even though item Nos. 1 and 2 of the suit A-Schedule property stand in the name of the plaintiffs' father, the same were purchased from out of the income derived from the partnership and they are the assets of the partnership firms. 23. The defendants contested the suit that, even though item Nos. 1 and 2 of the suit A-Schedule property stand in the name of the plaintiffs' father, the same were purchased from out of the income derived from the partnership and they are the assets of the partnership firms. Likewise, the other items in the A-Schedule properties which stood in the name of Ekambara Mudaliar and Murugesa Mudaliar were also the properties purchased in the name of the firm from out of the income derived from the partnership firms. After the death of the mother of the plaintiffs, the entire share in the partnership firms due to the plaintiffs were settled and now, after having received their share amount, it is not open to the plaintiffs to ask for dissolution of partnership firms and for accounting. The suit B-Schedule properties are the absolute properties of the 2nd defendant firm and the same has got nothing to do with the 1st defendant firm. It is further contended by the appellants that, the plaintiffs father permitted the partnership firm to treat those properties as the properties of the partnership firm, therefore, under Section 14 of the Partnership Act, those properties have become the properties of the firm and as such the plaintiffs cannot claim any title over the same merely on the ground that the properties stand in the name of the plaintiffs' father. 24. Now, it is to be considered whether Item Nos. 1 and 2 of the suit A-Schedule properties are the absolute properties of the plaintiffs' father or the assets of the partnership firm. Item Nos. 1 and 2 of the suit A-Schedule property admittedly stood in the name of the father of the plaintiffs Ekambara Mudaliar. The 1st item was purchased in the year 1951, under Ex. A.1, while the 2nd item was purchased in the year 1954, under Ex. A.2. Admittedly, the partnership firms came into existence only in the year 1959. Whereas the properties in question have been purchased much prior to the constitution of the partnership firms. The defendants placing reliance heavily upon the entries in the Books of Accounts maintained by the partnership firms under Ex. B.4 and Ex. B.5 contended that, the above said properties were treated as assets of the partnership firm. But, from a perusal of Ex. B.4 and Ex. The defendants placing reliance heavily upon the entries in the Books of Accounts maintained by the partnership firms under Ex. B.4 and Ex. B.5 contended that, the above said properties were treated as assets of the partnership firm. But, from a perusal of Ex. B.4 and Ex. B.5, it is seen that they are related to the year 1960-61. The only witness examined to prove the entries made under Ex. B.4 and Ex. B.5 is D.W. 1. But, D.W. 1 in his evidence had categorically admitted that he joined the firm only in the year 1986 and he was not aware of the transaction held prior to that and he had also admitted that he was not aware as to who had made those entries in Ex. B.4 and Ex. B.5. Except, the oral testimony of D.W. 1, no other evidence is available on record to prove those entries. In the above circumstances, it is crystal clear that, the properties in question were purchased much prior to the constitution of the partnership firms and in the absence of any evidence to prove that the properties were purchased from out of the income derived from the partnership firms it cannot be held that those properties are the assets of the 1st and 2nd defendant firms. 25. Item 1 and 2 of the suit A-Schedule property have been admittedly enjoyed by the 2nd defendant firm. Under such circumstances, now, the question is whether Item 1 and 2 of the suit A-Schedule properties have been impliedly treated as the properties of the partnership firm as per Section 14 of the Partnership Act. It is the settled law that in the absence of any agreement, the property exclusively belongs to a partner does not become the property of the partnership merely because it is used for the business of the partnership firm and it cannot be presumed to have become the assets of the partnership. Any property owned by a partner other than the partnership property would remain as his individual asset. Merely because one of the partners allowed the property to be used for the partnership purpose, it will not become the assets of the partnership. 26. In Arjun Kanoji Tankar v. Santaram Kanoji Tankar, (1969) 3 SCC 555 , the Hon'ble Supreme Court has held as follows:- 13. Merely because one of the partners allowed the property to be used for the partnership purpose, it will not become the assets of the partnership. 26. In Arjun Kanoji Tankar v. Santaram Kanoji Tankar, (1969) 3 SCC 555 , the Hon'ble Supreme Court has held as follows:- 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. ... 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. ... 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. In Miles v. Clarke [(1953) 1 All ER 779] 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. 14. There is no evidence in the present case that the plaintiff had, when entering into a partnership with the defendant, surrendered his individual interest in the assets brought by him into business, or had admitted that the defendant was to be the owner in equal share with him in all the assets brought into the partnership. The right of the defendant to a share in the assets brought into the business depended upon the terms of the agreement of partnership. There is no rule that whatever is brought by a partner in the partnership and is continued to be used by the members is presumed to have become the property of the partnership. 27. In yet another judgment reported in 2002-3-L.W. 17 : (2002) 1 SCC 583 (Shashi Kapila v. R.P. Ashwin), the Hon'ble Supreme Court has held as follows:- "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. 27. In yet another judgment reported in 2002-3-L.W. 17 : (2002) 1 SCC 583 (Shashi Kapila v. R.P. Ashwin), the Hon'ble Supreme Court has held as follows:- "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."" 28. A Full Bench of this Court in Chief Controlling Revenue Authority v. Chidambaram, AIR 1970 Madras 5 has held as follows:- "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 formerly came into existence under the document and there are no words whatsoever of a disparities 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." 29. Keeping the above principles in mind, if we consider the instant case, absolutely, there is no material evidence available to show that there is an implied or express contract among the partners for treating the properties in question as partnership properties. Merely because the plaintiffs have allowed the properties to be used for the partnership business, the properties would not become the properties of the partnership firm and the properties can be considered as the absolute properties of the plaintiffs' father. Thus, the questions of law 1 and 2 are answered accordingly against the appellants/defendants and in favour of the respondents/plaintiffs. Merely because the plaintiffs have allowed the properties to be used for the partnership business, the properties would not become the properties of the partnership firm and the properties can be considered as the absolute properties of the plaintiffs' father. Thus, the questions of law 1 and 2 are answered accordingly against the appellants/defendants and in favour of the respondents/plaintiffs. Question of law No. 3: 30. So far as the next issue relating to dissolution of partnership firms is concerned, admittedly, after the death of the plaintiffs' father P.G. Ekambara Mudaliar, the mother of the plaintiffs', one Mrs. Padmavathy was inducted as a partner of the firms and after her death in the year 1989, the partnership firms were reconstituted in the year 1990 with the defendants 3 to 10 as partners. The contention of the defendants is that after the death of the mother of the plaintiffs, there was a settlement between the plaintiffs and the defendants, wherein the plaintiffs agreed to receive a sum of Rs. 5,25,000/- each and the same was paid by the defendants. In order to prove the same, the defendants have marked Ex. B.1 to B.3 - Sworn-in affidavits of the plaintiffs and also Ex. B.9 to Ex. B.11 receipts for payment of share. But, it was disputed by the plaintiffs. A perusal of Ex. B.1 to B.3 would go to show that all the plaintiffs have filed a separate affidavit of declaration stating that they had received a sum of Rs. 1,00,000/- in full and final settlement in respect of Gudiyatham Lungi Company viz., the 1st defendant firm. They were duly signed by the plaintiffs and notarized. The notary was also examined as D.W. 3 to prove the same. D.W. 3, the Notary had categorically admitted that sworn-in affidavits were signed by the plaintiffs and they were duly notarized by him. I find no reason to disbelieve his evidence. But, the above affidavit of declaration was for the receipt of share only in respect the 1st defendant firm. Though it was contended by the defendants that the share amounts were settled in respect of both 1st and 2nd defendant firms, there is no evidence available to show that the defendants had settled the shares of plaintiffs in respect of 2nd defendant partnership firm. Though it was contended by the defendants that the share amounts were settled in respect of both 1st and 2nd defendant firms, there is no evidence available to show that the defendants had settled the shares of plaintiffs in respect of 2nd defendant partnership firm. From the available evidence, it could be seen that the defendants had settled the share only in respect of the 1st defendant partnership firm. Therefore, the plaintiffs are entitled for dissolution of partnership firm in respect of 2nd defendant firm alone and not for 1st defendant firm. This substantial question of law is answered accordingly. Substantial Question of Law No. 4:- 31. Now, the question is as to whether relief sought by the plaintiffs for dissolution of partnership firms is barred by limitation. 32. The learned counsel for the appellants/defendants placing reliance heavily upon clause 11 of the partnership deed of the year 1964, which was marked under Ex. B.6 contended that the plaintiffs are entitled to get their share within a period of twelve months after the death of the deceased partner, whereas the instant suit was filed after 17 years of the death of the plaintiffs' mother and therefore, as per Article 5 of the Limitation Act, the suit was not maintainable as it was barred by limitation. 33. Article 5 of the Limitation Act, 1963 reads as follows:- Description of suit Period of Limitation Time from which period begins to run 5 For an account and a share of the profits of a dissolved partnership Three Years The date of dissolution 34. Under Article 5 of the Limitation Act, the suit for accounts and share of profit of the dissolved partnership firm should be filed within a period of 3 years from the date of dissolution. But, in the instant case, after the death of the plaintiffs father, the partnership firm was reconstituted in the year 1974 inducting the mother of the plaintiffs as one of the partners. As per clause 12 of the new partnership deed (Ex. B.12), on death of any of the partner, the partnership will not get dissolved and the remaining partners are entitled to continue to run the partnership. The relevant clause of the reconstituted partnership deed reads as follows:- "12. The death, retirement or insolvency of any partner shall not dissolve the firm and the remaining partners shall be entitled to continue the business. The relevant clause of the reconstituted partnership deed reads as follows:- "12. The death, retirement or insolvency of any partner shall not dissolve the firm and the remaining partners shall be entitled to continue the business. The legal representative of the deceased, retiring or insolvent partner as the case may be shall be entitled to be paid out of the amount due to him as on the date of death, retirement or insolvency as the case may be with interest at 12 per cent per annum" 35. In the above circumstances, on death of the mother of the plaintiffs, the partnership firm did not get dissolved automatically and it was also admitted by D.W. 1 in his evidence that without even issuing any notice to the plaintiffs, they had reconstituted the firm on 19.01.1990. From the above, it could be seen that after the death of the mother of the plaintiffs the partnership firm was not dissolved and it was reconstituted with the defendants 3 to 10 as if partners without any notice to the plaintiffs and the partnership firm continued to be in existence. Under such circumstances, Article 5 of the Limitation Act is not applicable to the instant case and the plaintiffs are entitled to seek for dissolution of the 2nd defendant firm. This substantial question of law is answered accordingly in favour of the respondents/plaintiffs. Substantial Question of Law No. 5:- 36. Insofar as partition of suit B-schedule property is concerned, according to the plaintiff, the same was the property of the 1st and 2nd defendant firm and the same were purchased from out of the income derived form the partnership business and the plaintiffs have got 1/4th share. But, the defendants contended that the suit B-schedule properties are the exclusive properties of the 2nd defendant firm which is a manufacturing unit, and duly accounted by the 2nd defendant firm and the 1st defendant firm has got nothing to do with the suit B-Schedule property. Even assuming that the properties are belong to the 2nd defendant manufacturing company, as already held the plaintiffs were settled with their share of profits only in respect of the 1st defendant marketing firm, the plaintiffs are entitled to 1/4th share in the suit B-Schedule properties. This substantial question of law is answered accordingly against the defendants and in favour of the plaintiffs to the extent indicated above. 37. This substantial question of law is answered accordingly against the defendants and in favour of the plaintiffs to the extent indicated above. 37. Though the learned counsel for the appellants contended that the learned appellate Judge had not considered the grounds raised in the Appeal Suit and failed to frame proper points for consideration of the appeal suit, now entire materials were made available to this court for consideration. On considering the entire materials available on record, this Court is of the view that, though the learned appellate judge had not given detailed findings on the grounds raised in the appeal, in the considered opinion of this court, the learned appellate judge formulated appropriate issues for consideration and having considered both the oral and documentary evidence, on facts, concurred with the findings by giving sufficient reasons for her conclusions. This court does not find any infirmity or perversity in such factual findings. Thus, this contention of the learned counsel for the appellants cannot be countenanced. 38. For the foregoing discussions, the second appeal succeeds partly and the judgment and decree of the Trial Court, as confirmed by the first appellate court, require modification to the extent indicated below. In nutshell, the respondents are entitled for declaration of title in respect of Item Nos. 1 and 2 of the suit A-Schedule property and for a consequential relief of recovery of possession as held by the courts below, and insofar as Item Nos. 3 to 7 in suit A-schedule property, the suit is liable to be dismissed. As far as suit B-schedule property is concerned, they are liable for partition into four equal shares and the respondents are entitled to one such share jointly; the respondents are entitled for a decree for dissolution of 2nd defendant firm alone; and the respondents are also entitled to initiate a separate proceedings under Order 40 and Rule 1 of CPC for accounting of the 2nd defendant firm alone. The suit in respect of dissolution of 1st defendant firm and for accounting is liable to be set aside. 39. The suit in respect of dissolution of 1st defendant firm and for accounting is liable to be set aside. 39. In the result, the second appeal is partly allowed in the following terms:- (i) the judgment and decree of both the courts below in respect of dissolution of the 1st defendant firm is set aside; and (ii) in other respects the second appeal is dismissed and the judgment and decree of the trial court and as confirmed by the first appellate court stand confirmed No costs. Consequently, connected CMP is closed.