Garden Singh vs Vide Sharma and Others

Vinod K. Sharma,J.—This regular second appeal by the Defendant/Appellant is directed against the judgment and decree dated 12.02.1985, passed by the learned courts below, vide which suit filed by the Plaintiff/Respondents for rendition of accounts stands decreed.

The Plaintiffs i.e. the heirs of Madan Lal Sharma deceased, filed a suit for rendition of account, stating therein that the deceased Madan Lal Sharma was partner with the Defendants to the extent of 4/5th share, whereas Defendants No. 1 to 3 were partners to the extent of 1/5th share. Partnership firm, carried on business under the name and style of M/s Madan Medical Hall, Bathinda. Partnership firm commenced its business on 20.10.1973, for the sale of medicines and manufacturing of medicines, chemicals and pharmaceutical products. There is no dispute that the partnership firm had moveable and immovable property, including machinery and raw material etc. Under the partnership, no partner had right to sell any of the properties of the firm, which was to be managed by any two partners. Bank account was also to be operated by two partners jointly.

Late Madan Lal Sharma died on 5.7.1974 after being remained admitted in AIIMS, New Delhi. In the absence of Madan Lal Sharma, business was managed by Defendants No. 1 to 3, who maintained accounts of the business. The Plaintiffs i.e. the widow, son and daughter of Madan Lal Sharma sought rendition of account, from Defendants No. 1 to 3. It was also pleaded case of the Plaintiffs that Usha Rani, one of the Plaintiffs, was aged only 16 years at the time of death of Madan Lal Sharma.

Suit was contested by the Defendant-Appellants, by raising plea of limitation, estoppel and also that the accounts of the old partnership firm stood settled.

On merit, it was pleaded by the Defendant-Appellants, that after the death of Madan Lal Sharma, his heirs entered into fresh partnership firm by executing regular partnership deed and the accounts of old partnership were settled. It was pleaded that the Plaintiff/Respondents, had no right to claim rendition of accounts.

Stand taken in the written statement was controverted by filing replication, by reiterating the stand taken in the plaint.

On the pleadings of the parties learned trial court framed the following issues:

Whether the suit is within limitation? OPP

Whether the Plaintiffs are estopped from filing the suit by their own act and conduct? OPD

Which of the parties is liable to render accounts? OP Parties

Relief.

In support of the case, Plaintiffs examined Sheesh Paul PW 1, an official of the All India Institute of Medical Sciences, New Delhi, PW2 Kashmiri Lal Clerk of the office of Excise and Taxation Bathinda and Heera Lal PW 3. Satish Sharma, one of the Plaintiffs appeared in the witness box as Pw 4. Documentary evidence with regard to the admission and discharge of Madan Lal deceased from the hospital was also produced as also Higher Secondary Certificate of the Plaintiff Usha Rani and the death certificate of Madan Lal.

On the other hand, Defendant/Appellants examined K.C. Jaidka Handwriting and Finger Prints Expert DW 1 and produced on record copies of partnership deeds Ex.A.1 and Ex.A.3, Letter of authority Ex.A.2, Agreement mark A, letter of authority Mark B, Transfer certificate mark R and resolution mark X.

Learned trial court on appreciation of evidence came to the conclusion, that the suit was filed within limitation. Thus, issue No. 1 was decided in favour of the Plaintiffs.

Issues No. 2 and 3 were also decided in favour of the Plaintiffs for the reason that the stand taken by the Defendants was based on the agreement dated 21.8.1974, vide which right was said to have been relinquished in favour of the two sons of Madan Lal i.e. Vijay Kumar and Subhash Chander. The document was not read in evidence by the learned trial court, for want of registration as right was relinquished for the first time in favour of some of the members of the family under the document.

Support in this regard was drawn from the judgment of Hon''ble Patna High Court in the case of Mt. Haliman and Others Vs. Md. Manir and Others, , wherein it was held as under:

" The learned Subordinate Judge is right in holding that such an agreement is void in the eye of law according to Section 23(h) of the Contract Act. Moreover, such an undertaking purporting to forfeit the entire claim of Defendant No. 5 in the moveables and immovables of his father amounts to extinguishing his rights in the ancestral property. Such an agreement, therefore, requires registration, and Ex.A.2 being not registered, it cannot be admitted into evidence for proving the case of relinquishment as set up by the Plaintiff."

Similarly, other agreement, said to have been executed by Subhash Chander in favour of Vijay Kumar, was also not relied upon for want of registration, as under the said agreement again right was said to have been relinquished in favour of Vijay Kumar by Subhash Chander. The learned court did not exhibit document mark "X" as it was not proved on record. The learned courts held that the settlement was not between the family members. Learned trial court, specially took note of the fact that the one of the Plaintiffs was minor, therefore, was not capable of entering into contract. Issues No. 2 and 3 were decided in favour of the Plaintiffs and against the Defendant/Appellants and consequently, suit for rendition of accounts was decreed.

The learned trial court decreed the suit for rendition of account w.e.f. 10.10.1971 to 5.7.1974. In appeal, findings recorded by the learned trial court were affirmed and the appeal filed by the Defendant/Appellants was dismissed.

Learned Counsel for the Appellants contends that the appeal raises the following substantial question of law for consideration by this Court:

Whether the judgment and decree passed by the learned courts below, is perverse being the outcome of misreading of evidence, and discarding of admissible evidence?

In support of substantial question of law, learned senior counsel for the Appellants vehemently contended, that mark "A" was, in fact, a family settlement which did not require registration as under this agreement family members had released the rights in favour of other family members.

Similarly, learned senior counsel for the Appellants referred to mark-"B" and contended, that this document also did not require registration. The contention of the learned Counsel for the Appellants further was that the courts below misread the oral evidence, as admission was made by Subhash Chander in his cross-examination about the settlement entered into between the family members.

In view of the contentions referred to above, learned senior counsel for the Appellant prayed that substantial question of law, raised be answered in favour of the Appellants and against the Respondents.

It was also the contention of the learned senior counsel for the Appellants, that the judgment and decree suffers from error on the face of record as admittedly, the partnership firm had commenced its business on 20.10.1973 and continued till 5.7.1974, whereas the learned courts have ordered rendition of accounts from 10.10.1971 to 5.7.1974.

Learned Counsel for the Respondents, on the other hand, supported the impugned judgment and decree, by contending that the argument raised by the learned senior counsel for the Appellants, on the face of it cannot be sustained.

Firstly, for the reason that the learned courts below rightly held the document Ex.A.2 and mark "B" to be inadmissible in evidence for want of registration, in view of the law laid down by Hon''ble Patna High Court in the case of Mt. Haliman and Ors. v. Md. Manir and Ors. (supra).

It was further the contention of the learned Counsel for the Respondents that once the documents were not exhibited, in accordance with law, there was no occasion for the court to take note of these documents. Admittedly, neither document mark-A nor document mark B were exhibited but only marked, for want of proof in accordance with law.

It was also the contention of the learned Counsel for the Respondents, that the courts below were right in holding, that it was not possible for one of the legal heirs, to settle the accounts of the firm in the absence of any written authority. As already observed above the document, on which reliance was placed, were held to be inadmissible in evidence. It was prayed that substantial question of law, framed be answered in favour of the Respondents.

On consideration, I find no force in the contention raised by the learned Counsel for the Appellants.

Reading of documents Mark "A 1" and "A.2" and Mark "B" shows, that it was relinquishment of right by one in favour of other party. These documents certainly required registration, and for want of registration, these could not be read in evidence. Learned courts below were also right in not taking note of these documents, as these were merely marked, and not exhibited.

The substantial question of law framed, is answered against the Appellants.

There is, however, force in the contention, raised by the learned senior counsel for the Appellant, that the decree passed by the learned courts below ordering the rendition of accounts from 10.10.1971 to 5.7.1974 cannot be sustained as relief granted is beyond pleadings itself. The case set up by the Plaintiffs, was that partnership commenced from 20.10.1973 and lasted till July, 1974, therefore, the rendition of account could only be ordered for this period, and not prior thereto.

For the reasons stated above, while upholding, the judgment and decree passed by the learned courts below, for rendition of account, it is ordered that preliminary decree, for rendition of account would be for the period from 20.10.1973 to 5.7.1974.

With this modification in decree, the regular second appeal is dismissed, but with no order as to costs.