M.O.H. Aslum vs M.O.H. Uduman and 4 others

Sathladev, J.—Plaintiff in O.S. No. 806 of 1978 on the file of First Additional Subordinate Judge Pondicherry is the appellant. The five

defendants are five respondents herein. Plaintiff filed the suit for dissolving the firm, M.O. Hassan Kuthus Maricar with its registered office now at

No. 10, Jawaharlal Nehru Street, Karaikal and all its branches at Pondicherry, Madras and Villusuram with effect from the date of filing of the suit;

for directing taking of accounts from 20-7-1962 till date of suit and to direct the assets of the Firm to be valued and realised, etc. for appointment

of a Receiver to take charge of the management of the Firm, for granting a permanent injunction to restrain defendants 1 to 3 on the one hand and

defendants 4 and 5 on the other from recovering or receiving or disposing of or otherwise dealing with the assets of the Partnership Firm including

those specified in Schedule ''A'' to ''C'' and for such other reliefs as deemed fit and just, in the circumstances of the case.

In the plaint, he has stated as follows : Plaintiff and defendants 1 to 3 are the brothers. Fourth defendant is their mother. Their father one M.O.

Hassan Kuthus Maricar started a proprietory concern three decades ago in the name and style of M.O. Hassan Kuthus Maricar at No. 70.,

Thirunallar Road, Karaikal for carrying on business in import and export and other allied businesses. On 20-7-1962, by a notaries document No.

587 of the even date, he converted the proprietary business into a partnership firm with the same name and style of M.O. Hassan Kuthus Maricar

by taking plaintiff and defendants 1 to 3 as partners. All the partners joined the Firm by jointly executing the deed. The father had transferred all the

goodwill rights and the rights to quotas, additional quotas and licences in favour of the partnership Firm. The share capital contributed by each of

the partners was Rs. 20.000 and it was a partnership at will, commencing from 1-7-1962. In the partnership deed, provision was made for

retirement from partnership, in which event, the retiring partner would only receive the balance existing in his share of profit or loss, on the date of

withdrawal. Cl. 12 specifically prohibits any transfer of rights in the partnership concern to anybody, without the consent of the other partners. The

Firm picked up business gradually and traded in several consumer products such as motor cars, tractors, petroleum products, etc... The premises

where its branch offices are located, were taken on lease. In 1968, the father expressed a desire to retire from the partnership, and he executed a

deed of retirement on 1-8-1968. His entitlement was to receive his capital balance existing in his account after the share of profit and loss on the

date of retirement had been transferred. In that document, it was clearly provided that the four sons shall divide the profit and loss equally, and that

it shall be managed and administered by all the continuing partners. After the Firm was so reconstituted, further businesses dealing with

Refrigerator, Air-conditioners, Bajaj three wheelers, etc. were started. By about 1973 its turnover reached Rs. 1,07,00,000. Plaintiff demanded

statement of accounts by quantifying the actual net profits. But it was not relished by third defendant, who with the support of defendants 1 and 2

evaded the issue. There is another Partnership Firm named Evergreen Tube Well Service in which plaintiff was a partner along with other parties

including one Md. Issak, was carrying on business. Md. Issak, is the brother-in-law of plaintiff and defendants 1 to 3, and son-to-law of fourth

defendant. It was formed on 17-7-1970, and it was re-constituted on 1-7-1973. He with the connivance of the third defendant began to interfere

with the running of the suit Partnership Firm in 1975. Since plaintiff objected to it, defendants 1 to 3 had been making attempts to exclude the

plaintiff from participating in the suit partnership business. After referring to investment of money of the partnership firm in 1973 in the purchase of

transport bus in the name and style of Dhanalakshmi, it is stated that third defendant formed a private limited company i.e. fifth defendant which

had taken away the suit Partnership Firm and which was contrary to Cl. 12 of the partnership deed, and this was in May, 1978. Therefore,

mismanagement having taken piece, plaintiff in July, 1978 made his last attempt to have the accounts settled, but defendants 1 to 3 have adamantly

refused to do so, and therefore, having no other alternative remedy, he has filed the suit for dissolution of Partnership Firm for other reliefs.

Defendants 1 to 3 in a lengthy written statement had claimed as follows: The partnership deed dated 20-7-1962 was executed under the

provisions of the French Law, and the subsequent deed of retirement dated 1-8-1968 was in continuation of the former deed, and therefore, the

rights and liabilities attached to the partnership deed dated 20-7-1962 are reserved, and the rights of parties will have to be decided as per the law

obtaining in July, 1962. French Law does not contemplate dissolution, and hence, the suit as filed is not maintainable. The partnership deed dated

20-7-1962 states that the Firm shall continue so long as two of the partners are still living and have not retired, and hence, plaintiff could only seek

for retirement, if he desires to quit from the partnership, and receive the balance, if any, existing in his account after the share of profit or loss on the

date of retirement has been transferred. As for clause 12 of the deed, it only means that third parties cannot be inducted into the partnership

without the consent of other partners. The partnership is not at will. There was no reconstitution as claimed. No demand was made by plaintiff for

accounts in 1973, nor was there any refusal. All the partners are jointly entitled to manage the business, and plaintiff has been actively associating

with the management of the Firm till date of filing of suit. He has signed all vouchers and receipts. Regarding his share of profit in the partnership

business, he has overdrawn and is liable to repay to the partnership Firm. As for the brother-in-law''s role in the partnership Firm ""Evergreen Tube

Well Services"", plaintiff and third defendant represent that firm, the suit firm, as partners. The true circumstances under which the misunderstanding

arose between plaintiff and defendants are as follows:

(1) Till a few days prior to the filing of the suit, plaintiff was actively associating with the management of the Him. In January, 1978, the suit Firm

started a bushings in the name of plaintiff''s wife, called ""S.S. Agencies"" which deals with Spencer Drinks.

(2) As for Dhanalakshmi Bus Service, their mother had monies to her credit in the suit Partnership Firm, and the operation of the buses was done

by the Partnership Firm by paying a sum of Rs. 2,500 monthly to her.

The true circumstances under which the Private Limited Company was formed are as follows:

(1) The Partnership Firm was advised that for tax purposes and for expansion of business, it will not be commercially advantageous to have an

unlimited joint and several liability of partners, and it is better to form a private limited Company. This idea was mooted in March, 1978.

Defendants and plaintiff discussed this matter threadbare, and as third defendant happened to be a Chartered Accountant, he explained to the

plaintiff about the particulars regarding the formation of such a Company, and the latter agreed to its formation with the same partners as share

holders. The understanding was that two of the partners should first form the Company, and later shares will be allotted to all the pawners in the

same proportion as their respective shares in the suit Firm. There was no necessity for any formal writing of this proposal since it was done by

mutual discussions and consultations, and in view of the close relationship of the parties. In pursuance of this understanding, defendants 2 and 3

formed the Private Limited Company. As a follow up an agreement was executed between the suit Partnership Firm and the Company it being the

fifth defendant herein. Copies of the agreements are filed as Annexures and treated as part and parcel of the written statement. A further agreement

came into existence on 6-7-1978 mentioning the valuation of the various assets. Plaintiff is aware of both the documents and has consented to the

same. The Private Limited Company has taken over the assets of the Partnership Firm, and plaintiff would become a shareholder in the Company

in the same proportion in which he had a share. This mere change in the constitution of the set up, does not affect the position of the plaintiff, but on

the other, plaintiff will lie more benefited by this process. Apart from the consent of the plaintiff, the transaction is even otherwise valid because the

partnership was represented by one of its partners as provided in clause,4 (b).

Hence, reference made to Clause 12 of the partnership deed in this context is irrelevant. Certain items which do not belong to the Firm had been

included in the plaint with an ulterior motive. The suits bad for non-joinded of parties. The suit is not maintainable since he seeks relief in respect of

properties not standing in the name of the partnership but only third parties. After referring to the usual aspects like suit valuation, court-fee.

particulars in the schedule to the plaint, etc. it is stated that at present there is no subsisting franchise in favour of the suit Partnership Firm, and

therefore, there is no question of accounting. The Partnership Finn being a Society under the French Law, no relief of dissolution of the Firm could

be granted. ""Plaintiff may at best can pray for dissolution of the Partnership by giving notice to all the partners of his intention to have the

partnership relationship dissolved."" There was no valid notice which is a condition precedent for filing the suit for dissolution. Hence, they have

prayed for dismissal of the suit.

Fourth defendant in her written statement by referring to Dhanalakshmi Bus Service, had denied the claim made by the plaintiff, and stated that

plaintiff was aware of the arrangement made, and neither himself nor his brothers have any right of owner ship in respect of Dhanalakshmi

Transport owned by her.

Fifth defendant after adopting paragraphs 1 to 14 of the written statement filed by defendants 1 to 3, would state that the Private Limited

Company was incorporated on 6-5-1978, and also entered into a valid agreement with the Partnership firm on 25-6-1978 for transfer of the

assets of the said Partnership or 30-6-1978. To give effect to the first stage of such transfer, a further agreement was entered into on 6-7-1978,

and the fixed assets valued at Rs. 1,55,000 of the Partnership Firm were taken over by the Company at a value of Rs. 13,16,000. The other

assets remain to be transferred are stock-in-trade like car, tractors, motorcycles, etc. All these took place with the concurrence of the plaintiff.

Even apart from it the transfer was made under clause 4 (b) of the partnership deed dated 1-8-1968. Hence, the suit is liable to be dismissed.

During the course of the hearing of the suit, on 4-5-1978, the issues were learned. The first issue was;

Whether the suit is not maintainable? for found in notes paper,

The other issues relate to court-fees, whether plaintiff is entitled to the relief of dissolution, whether fifth defendant is not a necessary party, and to

what other reliefs are the parties entitled? The suit was then posted to 19-10-1978, and again to 14-12-1978, and thereafter to 16-12-1978. On

that day, it was recorded by the trial Court as follows:

Both sides Counsel agree that they will argue on preliminary issue regarding maintainability. Call on 29-12-1978.

Hence, the preliminary issue was taken up for hearing, and defendants filed the partnership agreement dated 20-7-1962 as Ex.B1 a translation

copy in English as Ex.B1/a and the retirement deed dated 1-8-1968 as Ex.B2. No witness was examined on either side.

The trial Court held that the suit filed for dissolution of the Firm is not maintainable in law, and plaintiff has to seek other remedies open to him.

Hence, it dismissed the suit. As against the said decision, A.S. No. 509 of 1979 was filed in this Court, and the learned Judge concurred with the

conclusion of the trial Judge, and dismissed the appeal. Therefore, this Letters Patent Appeal came to be filed by plaintiff.

The trial Court held

...Thus the two clauses 4 and 5 in the agreement arc mutual and alternate remedies to suit differ rent circumstances...

It posed the question"" as to whether the universal act of a single partner should prevail and decide the fate of a commercial organisation of repute

against the dominant unanimous will of the other three partners not to dissolve the firm? It then dealt with the next contention of the plaintiff

regarding dissolution under S. 44 (d) and (g) of Indian Partnership Act. After referring to the decisions cited by both the plaintiff and defendants, it

concluded that the principle laid down in V.M. Nissar Ahmed and Others by Guardian and next friend V.C. Abdul Munaf Saheb Vs. Rahima Bi

and Others, would apply to the present case regarding maintainability of the suit. It was held therein that the partnership deed must be read as a

whole to ascertain its true meaning, and any intention must be manifest, and that an agreement between the partners that a single partner cannot

determine the partnership between all although he can determine it as between himself and others, is not a partnership at will. Even though

defendants had not raised the point relating to limitation, the trial Court took upon itself this point, and held that Art. 5 of 113 of II Schedule of

Limitation Act, 1963 applies to this case, and therefore, the suit for accounts from 1962 to 1968 is barred by limitation.

Learned Judge on the preliminary point held that clauses 4 and 5 of Ex.B1 will have to be read and harmoniously construed, and that Clause 5

clearly smells out the duration of the Firm viz., till two partners are available, and that the dissolution of the partnership at will of one of the partners

was never in the minds of the partners and their father, and therefore. Clause 5 of Ex.B1 will Prevail over Clause 4. As for Clause 1, it was

incorporated in case a contingency arises where all partners agree to dissolve the Partnership Firm. It was then held:

-In the present case, the contract of partnership was for an unlimited period till two partners agreed to continue. As already stated, in the present

case, the contract of partnership made for unlimited period contains a specific clause permitting any partner to retire from the firm at any time.

Therefore, the contract in question before us, which was made for an unlimited period, does not attract the application of Art. 1865 and 1869 of

the French Code-

In spite of holding that it is a partnership for an unlimited period, it was held by the learned Judge;

-Clause 1 of Ex.B-1 is subject to Clause 5 and both the Clauses must be read together as a whole-

After referring to the provisions of French Code Civil, it was held that there is no corresponding provision therein relating to Ss. 43 and 44 of

Indian Partnership Act, and therefore, parties are governed by French Code Civil provisions relating to partnership which have not been expressly

or impliedly repealed. On the transfer of the assets of the Firm fifth defendant Company, it was held that this contention would be valid only so far

as plaintiff is concerned, and he cannot seek for dissolution of the Firm which is contrary to the intention of the parties in Clause 5 of Ex.B1.

Regarding arguments advanced about invocation of S. 44 of the Indian Partnership Act, after referring to it in two places in the judgment, it was

held that even on principles of justice and fair-play, it is neither proper nor expedient to ask for dissolution of the Firm because the intention of the

father-founder was to carry on business. Hence, the appeal was dismissed without prejudice to the rights of plaintiff to seek for the alternative

remedy for accounts.

Out of the many points which have come up for consideration the foremost is, whether under the facts and circumstances of this case, the

provisions of the French Code Civil dealing with the partnership would apply, or the provisions of the Indian Partnership Act would apply?

Learned Counsel for defendants'' respondents herein, submits that since Ex.B1 partnership deed was executed on 20-7-1962 at a time when

French Code Civil was applicable to the territory of Pondicherry, the rights of parties could be worked out only by applying the provisions of the

said Code because Ex.B2, the retirement deed, dated 1-8-1968 is in continuation of the terms and conditions found in Ex.B1. Under the

Pondicherry (Laws) Regulation, 1963, the Indian Partnership Act, 1932 was extended to Pondicherry on and from 1-10-1963, except for S. 69,

which came into force on and from 1-7-1964. It is submitted that in spite of the said Regulations having been passed, the suits filed on 17-8-1978

could be heard and disposed of only as per the provisions of the French Code Civil. It is also contended by defendants that plaintiff had never

disputed this proposition, and in fact, in Ground Nos. 6, 14 to 18 and 20 of the Grounds of Appeal in A.S. No. 509 of 1979, he claimed that it is

only the French Law relating to partnership which governs the facts of this case.. Even in this appeal, no definite stand having been taken by

plaintiff, the rights of parties could be worked out only based on French Law. Reliance is placed on S. 4 (2)(b) which states that nothing in sub-S.

(1) shall affect any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed. Under S.4 (1), any law in force in

Pondicherry corresponding to any Act referred in S. 3 shall stand repealed as from the coming into force of such Act in Pondicherry. It is the

contention of learned Counsel for defendants that as the provision is in primavera with S. 6 of the General Clauses Act, the rights conferred on

each partner under Ex.B1 read with Ex.B2, being a vested right, by the saving provided in S.4 (2)(d), in spite of Indian Partnership Act made

applicable to Pondicherry on and from 1-10-1963. in so far as the suit Partnership Firm is concerned, for years to follow, the rights of parties

could be worked out only as per French Code Civil Though there are many decisions dealing with vesting of right, instead of multiplying the

decisions, reliance is placed on Garikapatti Veeraya Vs. N. Subbiah Choudhury, , to point out as to what extent vested right gets preserved by the

said saving provision. It was a case in which a point was involved as to whether the right of appeal is a vested right or not. A suit was filed on 22-

4-1949 which was before the date of the Constitution, and it was held that from the date of institution of the suit, a vested right of appeal upon

terms and conditions then in force, accrued to the party, and as per the provisions of the old Civil Procedure Code, if the subject matter is above

Rs. 10.000, then the aggrieved party had a vested right of appeal to the Federal Court, and therefore, after the ushering of the Constitution, he

would have a right to come up on appeal before the Supreme Court under Art. 135. It was further held:

...The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis

commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing

at the date of the instigation of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the tiling of the

appeal.

It has been always held that a right of appeal is not a mere matter of procedure, but is a substantive right. Once a suit is instituted, it carries with it

the implication that all the rights of appeal then in force are preserved to the parties till finality is reached in litigation, unless such a right is taken

away by a subsequent enactment either expressly or by necessary intendment and not otherwise.

This decision could have no relevance in so far as the contract of relationship of parties is concerned, as found in Ex.B1 and B2. The section

states that the right, if any acquired or accrued or incurred, must be one which had been derived under the law then in force. The right to enforce

the terms and conditions of a contract emanates by agreement of parties. They may be governed by a law in force at that time quite different from

the law which supersedes. The right to ask for dissolution or retirement from the partnership is also dependent upon the terms and conditions of the

two deeds. The right of dissolution is not a vested right solely acquired because of French Code Civil. It is not a vested right, which would be

equated to the right of appeal, which accrued because of institution of proceedings before coming into force of subsequent legislation and which as

put comes up for consideration before the Supreme Court in the aforesaid decision.

In spite of whatever stand the parties to a proceeding may take regarding the applicability of a particular law, it is for the Court to decide as to

which law governs the rights of parties. Because of ignorance of law by parties or due to unwillingness on the part of Counsel to take a specific

stand about the correct applicability of law, a Court cannot non-suit a plaintiff if the law under which he could enforce his rights, is available to him.

Inspite of plaintiff taking the stand that French Code Civil applies, defendants have placed decisions before Court on the point whether S. 44 of the

partnership Act would apply or not. Rather, they got the suit dismissed by relying upon the decision in V.M. Nissar Ahmed and Others by

Guardian and next friend V.C. Abdul Munaf Saheb Vs. Rahima Bi and Others, , which dealt with the provisions of Indian Partnership Act, and

therefore, the nebulous stand taken by the plaintiff as to the applicability of the correct law cannot be a ground to dismiss the suit, once a Court is

able to decide as to which are the two laws applicable to the facts and circumstances of this case.

Relating to partnership agreements entered into in the territory of Pondicherry before 1-10-1963, if suits are instituted after that day in respect

of any part of the cause of action having arisen subsequent to that day then the provisions of the Indian Partnership Act alone could govern the

rights of parties. In the instant case, even notice was not issued prior to that date, and no dispute arose prior to that date between the parties. The

two instances relied upon in paragraphs 9 and 10 of the plaint are referable to happenings in 1973 and 1978. About what had happened in 1973,

plaintiff states that he became aware of it only in 1976, when misunderstandings arose. Therefore, the relief claimed in this suit could be considered

only by reference to the provisions of the Indian Partnership Act.

In the light of this finding, certain submissions made as to the nature of the Partnership Firm which could come into existence, and to what

extent, in a partnership at will, dissolution could be asked for under French Law need not be gone into in this appeal.

The second point is, whether the partnership agreement (Ex.B-1) is a partnership at will or not.?

S. 7 of the Partnership Act reads as follows:

Where no provision is made by a contract between the partners for the duration of their partnership or the determination of their partnership, the

partnership is partnership-at-will.

The learned Judge held:

...In the present case, the contract of partnership was for an unlimited period till two partners agreed to continue. As already staled., in the present

case, the contract of partnership made for unlimited period contains a specific clause permitting any partner to retire from the firm at any time-

Inspite of it, the learned Judge had concluded differently. Learned counsel for the defendants, submits that it is not the use of the words ""at will"" in a

partnership deed, which could be determinative of the nature of the partnership, and that the terms and conditions of a partnership deed must be

read as a whole, and the intention of the parties must be spelt out by a harmonious construction of all the clauses contained therein, and if need be,

it has to be read without the numbers assigned referring to paragraphs in the deed. In support of this contention, reliance is placed on Karumuthu

Thiagarajan Chettiar and Another Vs. E.M. Muthappa Chettiar, , which deals with the scope of S. 7 of the Act. It was held by, the Supreme

Court as follows:

S. 7 contemplates two exceptions to a partnership at will. The first exception is where there is a provision in the contract for the duration of

partnership, the second exception is where there is provision for the determination of the partnership. In either of these cases the partnership is not

at will. The duration of a partnership may be expressly provided for in the contract, but even where there is no express provision, the partnership

will not be at will, if the duration can be implied.

It was a case wherein managing agency rights in a mill was involved, and a notice of dissolution was given treating it as a partnership at will, but it

was held:

...As we read the terms of the agreement it seems to us clear that the intention could not be to create a partnership at will. The partners

contemplated that the management would be carried on in rotation between them In four yearly periods. It was also contemplated that the heirs of

the partners would also carry out the management in rotation. Considering this provision as well as the nature of the business of partnership it could

not be contemplated that the partnership could be brought to an end by notice by either partner. The intention obviously was to have a partnership

of some duration though the duration was not expressly fixed in the agreement In any case even if there is some doubt as to whether the terms of

this contract implied any duration of the partnership, there can in our opinion be no doubt that the terms do imply a determination of the partnership

when the managing agency agreement comes to an end. It is clear that the partnership was for the sole business of carrying on the managing agency

and therefore by necessary implication it must follow that the partnership would determine when the managing agency determines Therefore on the

terms of the contract in this case, even if there is some doubt whether any duration is, implied, there can be no doubt that this contract implies that

the partnership will determine when the managing agency terminates. In this view the partnership will not be a partnership at will as S. 7 of the Act

makes it clear that a partnership in which there is a term as to its determination is not a partnership at will. Our attention was drawn in this

connection to a term in the contract which lays down that either partner may withdraw from the partnership by relinquishing his right of

management to the other partner. That however does not make the partnership a partnership at will, for the essence of a partnership at will is that it

is open to either partner to dissolve the partnership by giving notice. Relinquishment of one partner''s interest in favour of the other, which is

provided in this contract, is a very different matter...

A Division Bench of Gujarat High Court in Keshavtat v. Bhailal 1936 3 All ER 823, by reference to S. 7 of the Act, held that a contract may

expressly provide that a partnership will determine under certain circumstances, but even if there is no such express term, whether there is any

implied term as to when it will determine, could be gathered from the terms and conditions of the contract, and the nature of business.

Learned Counsel for defendants would then rely upon Abbot v. J. Abhoi A.I.R 1968 Guj. 157., which took the view that if the partnership is

not at will, the right of dissolution which is a superior right under the Partnership Act, 1932 will not be available. The point at issue therein was

whether upon the proper construction of the deed, the partnership was not a partnership at will, but one to continue as regards the remaining two

partners until the retirement of one partner."" It was a case in which a partnership was entered into on 11-8-1944 between a father and his five sons

to carry on business, and Clause 2 says that ""the partnership shall commence as and from Oct. 11.1988, and that the death or refinement of any

partner shall not terminate the partnership.'''' Cl. 10 states that if any parcener has become unfit physically or mentally, then he shall be considered

as having retired from. the partnership, and the other partners shall have the option to purchase his share. Cl. II states that if any partner dies or

retires, the other surviving partners shall have the option to purchase his rights. Plaintiff therein claimed that it is a partnership at will as per the last

annual balance-sheet, and sought for dissolution by giving notice. In construing Cl. 8, it was held that a partner who says ""I want to go out of the

partnership"", does not determine the partnership by doing that, and according to Cl. 8, the partners have agreed that the partnership shall continue

notwithstanding that one partner dies, and the Clause is consistent with the view that so long as there are two partners, the partnership is to

continue, because no partnership could exist without the partners. No Clause similar to Cl. 4 in Ex.B-1 was incorporated in that partnership and in

no part of it, was there any mention about the character of the Firm. This decision has been relied upon in Karumuthu Thiagarajan Chettiar and

Another Vs. E.M. Muthappa Chettiar, , referred to in para 17.

The decision in Ross v. Robhic 1910 1 A.C. 465, is also relied upon to claim that only if no fixed term is agreed upon for the duration of the

partnership, then only one of the partners may determine it at any time by notice. Cl. 4 of the partnership deed therein would state as follows:

This agreement shall be terminated by mutual agreement only.

When plaintiff therein give notice of his intention to terminate the partnership, it was resisted upon by claiming that it could be determined only by

mutual consent. It was held that, when partners had agreed to terminate the partnership in a specific manner, in the absence of mutual consent, it

cannot be terminated at the instance of one of the partners. This decision was confirmed by the Court of Appeal reported in Ross v. Rabhic 1910

1 K R. 846. It was emphasised therein that, when the parties have not said that the partnership is to be for their joint lives, but have said that v is

determinable ""by mutual arrangement. only"", it is not a partnership at will, because it is expressly provided that it could be determined only by

mutual consent of both parties.

Reference is also made to the decision in Abbashbhai K. Golwala Vs. R.G. Shah and Others, , but the situation which arose in that case has

no relevance to the facts and circumstances of this case, and therefore, the rationale adopted therein cannot be of any guidance, in interpreting the

terms of Ex.B1.

In the decision reported in Iqbalnath Premnath Anand Vs. Rameshwarnath Premnath Anand and Another, ., it was held that, any provision in a

partnership deed as to retirement of a partner cannot be considered to be a provision for determination of their partnership within the meaning of S.

7.

In the present case, the terms and conditions of the partnership deed are now to be looked into, to find out whether it is a partnership-at-will

or not?

Ex.B1, the partnership deed dated 10-7-1962 is in French. Ex.B1 a is the authenticated and translated English version of Ex.B1. Clauses 4

and 5 of Ex.B1 read as follows:

(4) The business of that firm has been started on the 1st of July 1962 and the partnership will be brought to an end at will.

(5) The partnership will continue till there are two partners; even in case of one or several partners withdraw them selves or die, the partnership will

continue between the two partners, will remain owners of all the capital, on condition that they should pay back to the withdrawing partners, and to

the heirs of the deceased partners, only the amount of their rights according to the last inventory.

It is the contention of the learned Counsel for the plaintiff that these two clauses deal with different situations, and they are independent to each

other. As already pointed out, the trial Court held:

-Thus the two clauses 4 and 5 in the agreement are mutual and alternate remedies to suit different circumstances-

Learned Judge held that these two clauses will have to be read together and harmoniously construed. Learned Counsel for the defendants, submits

that these clauses must be read along with all the other clauses in the deed, and the document must be taken as a whole, and has to be read as if

there are no paragraphs; and if there are two clauses, one dealing with dissolution and the other with retirement, it is only the clause dealing with

retirement which would be enforceable so long as two partners are there in the partnership. Only in the event of all the partners agreeing for

dissolution, clause I would get activated. Otherwise, it has to subordinate itself to Cl. 5 and other terms and conditions in the partnership deed. It is

also pleaded that the earlier part of clause 5 which states that the partnership had to continue till there are two partners, will have to be read along

with clause 4 as forming part of it, and the later part of clause 5 has to be read along with all the other clauses upto the clause which deals with

retirement or what would happen when one of the partners dies.

In drafting a deed, upon scrupulous effort had been taken to deal with different topics with different headings or with paragraphs with an intent

to avoid any confusion or any anomalous situation being developed, the effort taken in that direction cannot be thrown to winds by breaking up

sentences, or adding a portion of it to an earlier sentence or later portion of and latter sentence and the like. Such a manner of reading cannot be

termed as harmonious construction of terms and conditions of an agreement. As held in the decisions above referred to, the document has to be

read as a whole, and the intention of the parties must be culled out, and even if expressly a relevant or apposite word is not spelt out, still it could

be implied, and in respect of partnership transactions, the nature of business carried on also could be a guiding factor. The argument put forth by

the learned Counsel for defendants that, if there is a clause for retirement, then a clause dealing with right of dissolution at the instance of one of the

partners would become nugatory, if the partnership is to continue with two partners, cannot be accepted. There is no permissible scope to read the

first nine words in clause 5 as part of clause 4. Partnership Act itself contemplates a right of dissolution and a right of retirement as distinct and

different rights inhering in a partner under different circumstances. There are provisions in the French Code Civil and in the Indian Partnership Act

dealing with right of dissolution and right of retirement as distinct rights. Hence, merely because a clause relating to retirement is found in Ex.B1, the

right of dissolution at the instance of one of the partners which accrues and 4 characterising it as partnership at will cannot be made nugatory or to

read it differently as if such a right could be exercised only when all the partners agree for dissolution. The word ''all'' is nowhere used either in the

French Code Civil or Indian Partnership Act. In the absence of agreement between the parties in such of those cases where S. 7 gets applied, the

right of dissolution would be available to each partner. It is only in such of those cases where there is an agreed term that the right of dissolution

could be exercised only by all partners, such a restriction on the partner could be enforced. Cl. 4 states that it is a partnership at will, and there

being no restraint put upon the right of each one of the partners to seek for dissolution, it could be exercised by anyone of the partners. Cl. 4 states

that it is a Partnership-ant-hill, and therefore, under S. 43 of Indian Partnership Act, it could be dissolved by any partner by giving notice in writing

to all the partners of his intention to dissolve the Firm. At the time when the partnership deed was executed, the partners were aware that the law

then in force provided for right of dissolution at the instance of one partner, if it is a partnership at will. Even though the learned Judge in para 10 of

the judgment had slated that there is no corresponding provision in French Code Civil regarding Ss. 43 and 44 of the Partnership Act, plaintiff

refers to Art. 1889 which reads as follows:

The rule that a partnership can be dissolved at the will of the partners does not apply to partner ships the duration of which has been fixed. The

dissolution is effected by the partner who wishes to retire sending a notice of such intention to all his co-partners. Such notice of dissolution of the

partnership must be given in good faith, and not at an inopportune moment.

Therefore, an identical concept having existed in the French law, the parties to the partnership deed, had known that anyone of the partners has the

right to seek for dissolution if circumstances warrant, and that was why Cl. 4 had been incorporated to state that it is a partnership-at-will. The

nature of the clause as framed is such that the right of dissolution there under is traceable in law.

What then is the scope and ambit of Cl. 5? It is contended by defendants that if Cl. 5 deals with retirement, then there is no need to have Cl.

According to them, it is Cl. 10 which alone deals with the right of retirement, and that Cl. 5 has to be dead with Cl. 4. If not the whole of it,

then in any event, the first nine words in Cl. 5 has to be treated as part of Cl. 4. As for Cl. 11, it deals with what would happen if one of the

partners dies. The word used in Cl. 5 is ""withdrawal"", and it is the common case that it refers to the right of retirement from partnership. The same

word is used in Cl. 10 also. Though it is claimed by defendants that the first nine words in Cl. 5 have no relevance relating to retirement and will

have to be read along with Cl. 4, once it is realised that the word ""withdrawal is retirement and that the right of retirement is distinct and different

from the right of dissolution as spelt out in Karumuthu Thiagarajan Chettiar and Another Vs. E.M. Muthappa Chettiar, there is no incongruity if Cl.

5, dealing with the right of retirement, is read as a whole. The first nine words are followed by the words ""even in case one or several partners

withdraw themselves or die..."" and they are a guiding factor to hold that the partnership firm will not stand dissolved merely because one or more

of the partners either retires or dies, and that it will continue till two of them remain as partners. It is made clear that its reduced strength would not

bring it to an end. In law, there cannot be a partnership consisting of less than two partners. To make it clear that. retirement of a partner or by the

death of a partner, or two or more of them and the like, it shall not result in dissolution of the firm so long as there are two partners. As for Cl. 10

is concerned, it deals with quota rights and other rights benefited by the Firm, when any one or more partners retire from the partnership and as to

what rights they would then be entitled to Cl. 5 deals with what would happen to partnership and to the retiring partner, whereas Cl. 10 deals with

how and in what manner, the quota rights and other rights benefited by the Firm are to be worked out as between the partners, and as to what

limited benefits, the outgoing partner will get when he retires from the partnership. Certainly, Cl. 10 is not a term conferring any-right of retirement

on parties. As contended by defendants, it is not the only clause relating to retirement is clearly made out in Ex. B-2 wherein all the partners state

that partnership deed i.e. Ex.B-1 provides for retirement under Cls. 5 to 10. Yet it is contended that Cl. 5 as a whole does not deal with retirement

Cl. 11 deals with rights which the heirs of a deceased partner would get in the partnership Firm.

Hence, Cls. 4 and 5 in the partnership deed, deal with different situations, and there is no need to mix up these clauses and read them as if

there are no paragraph numbers, no full stop, or comma or semi-colon, etc. The terms and conditions of a deed cannot be read as collection of

words, from beginning to end, without any formation of sentences. It is only if the nine words in Cl. 5 are read with Cl. 4; it would result in an

abnormal reading relating to the rights of a partner in a partnership-at-will, when he wants to exorcise his right of dissolution.

Yet another contention of the defendants is that, it is the intention of the father H.O. Hasan Kuthoos Maricar, which has to be remembered and

implemented; and the terms and conditions in the deed could be properly understood, only if this intention to keep the partnership firm alive for

ever is read into the clauses of that deed. This argument of the defendants, who proclaim about the intention of their father to prevail in

understanding the terms and character of the partnership deed, and which in a way impressed the learned Judge, cannot be advanced any longer

by them, because of what they have stated in para 12 of their written statement. Copies of the agreements about the take-over of Partnership Firm

by the fifth defendant. Private Limited Company were filed along with their written statement, so that they may be treated as part and parcel of the

written statement. They have asked the Court to take notice of the contents therein. On reading them it is self-evident that they have completely put

an end to the Partnership Firm as early as 1978 in an indirect manner, and which is one of the reasons for the plaintiff to file the present suit. Fifth

defendant in the written statement had stated that it was incorporated on 6-5-1978, and it has entered into a valid agreement with the partnership

Firm on 25-6-1978 for transfer of the assets of the Partnership Firm as on 30-6-1978, and that with reference to the first stage of the transfer, it

had taken over the fixed assets belonging to the firm at a value of Rs. 3,15,000. In the agreement dated 25-6-1978, it is stated as follows:

whereas further that the actual closing of business of the firm would take some more time, the transferor firm would continue to do whole or art or

any of the business in the mutual interest of both the parties until the actual final transfer is made. The profit and loss of the business of the firm shall

be divided or borne between the patties of the firm in their existing ratio during that period....

Cl. 5 of the said agreement deals with transfer of assets including goodwill, and as per Cl. 9, the Partnership Firm agreed to execute further deed

or instrument for passing title to the fifth defendant Company, in respect of franchise or other dealership rights, but route permits and in respect of

immovable properties. This was followed by another agreement dated 6-7-1978, which states that partnership Firm shall transfer for valuable

consideration the assets and liabilities as set out in the schedule to the private Limited Company, as on 1-7-1978. Plaintiff has claimed in the plaint

that his consent was never obtained. Defendants contended that it was done with his concurrence, but no written consent was taken from him. He

is not a signatory to the agreements referred to above

Written statement of defendants 1 to 3 proceeds on the basis that signatories to these documents had the authority to represent the plaintiff.

How far they would be binding upon the plaintiff, is an aspect which cannot be gone into in this appeal. It is because defendants themselves had

relied upon these two agreements and have asked for these agreements to be read as part and parcel of their written statement, to the extent

permissible and for the limited purpose of showing as to how far the sons have understood the terms of the partnership deed regarding the intention

of their father and implemented it. the contents of these two agreements have been referred to herein.

For the purpose of expanding the business and for taxation purposes, a private limited company was incorporated, and assets of the

partnership firm are transferred to that Company. Certain valuable rights of a partner, would not now be available. It is claimed that the father had

intended that the partnership in the manner constituted by him, shall continue till two partners are there. It is vociferously pleaded that what was

conceived by him to be adhered to by his sons regarding the nature of their inter-se relationship was to have a long lasting existence by keeping

alive the partnership firm, and which should not be destroyed by anyone of the partners seeking for dissolution. It is contended that this intention of

the father should be read into with every clause of the deed, to prevent dismemberment of the partnership between the sons. The terms and

conditions of the partnership deed or the retirement deed do not contain any unusual or special terms, to highlight this so-called intention. Like any

father, on reaching the old age, and when time comes for entrusting the financial affairs to his off-springs; he had, at the first stage, created a

partnership associating them in his business, and within five years thereafter, he had retired from the partnership.

Like any father, being quite aware that, when the family expands there is likelihood of estranged feelings developing amongst his issues, he has

provided for two methods as found in law, they being, for any partner either to retire or to seek for dissolution depending upon his volition and

circumstances warranting him to do so. That was why he made a partnership-at-will. There is nothing unusual in enabling a partner thereby

acquiring the right of dissolution at his will alongside an enablement for him to retire, if he so desires. In spite of their own conduct, on what they

had done in 1978 to the partnership firm, if the intention now claimed by defendants really existed; then he would have provided in Cl. 4 that unless

all of them agree, the partnership-at-will cannot be dissolved. Why he provided for this right by making it as partnership-at-will? A right of

dissolution at the instance of a partner is always considered as resulting in checks and balances between partners, when all of them have the right of

management over its affairs. A dominating partner cannot then lightly encroach upon the rights of another partner and scuttle him out from managing

the affairs of the firm, When this right exists, then undue or unreasonable domination of one partner or a set of partners over a single partner or

minority of them, does not exist. Evidently, being aware that opportunism and avariciousness may develop amongst his sons, and that a younger or

an ill-equipped or an illiterate son can be taken for a ride by the domination of his elder brother or brothers, he has chosen to make it as a

partnership-at-will, so that right [of dissolution as known to law, could be availed of by anyone of the partners, and which would safeguard the

aggrieved partner''s rights. In turn it would facilitate the partnership to continue to exist effectively. Existence of such a right, prevents anything being

''done to the detriment of the partnership firm, and thereby it could continue to exist for longer period than otherwise. Hence, the intention of the

father was to make it a partnership-at-will in the interests of his sons, but the defendants have done differently, but still in Courts take a different

posture against plaintiff and make it appear as if he is acting contrary to the wishes of the father. Hence, father''s intention had been misunderstood

by defendants. Therefore, on what has been stated above, it is held that the partnership firm is a partnership-at-will. Therefore, the undue emphasis

laid by the learned Judge and the trial Court, on the so-called intention of the father, and the extent to which it is sought to be highlighted by the

defendants in this appeal, cannot result in holding that Cl. 4 and first nine words in Cl. 5 have to be read together, to find out whether the

partnership firm is at will or for a particular duration.

The third point taken is that, without prior notice of dissolution, the suit filed is not maintainable. This aspect need not be considered at length

because of the decision in Banarsi Das Vs. Seth Kanshi Ram and Others, , that the last of the service of suit summons on the defendants would be

notice of dissolution with effect from that date, and will be a valid service of notice of dissolution.

On these three points, the appeal could be disposed of. But defendants have put more hurdles in the way of plaintiff securing the eluding relief

at an early date by the suit being disposed of on merits. This shows as to what extent they are desperately clinging to non-existing technicalities, to

prevent proper trial of the suit. To a query made as to whether the plaintiff is being paid his share in the Partnership firm during the past ten years

when his attempts in Courts have failed, and when defendants claim that the partnership continues to exist; they gave an evasive reply. Plaintiff''s

Counsel stated that not a pie had been paid to his client during the past 10 years. When his suit for dissolution is dismissed, and when he had not

retired, yet at no point of time, any communication had been sent to him calling upon him to take his share in the partnership firm. After the

constitution of the fifth defendant Company, no communication had been sent to him, pertaining to his interests. It is not as if the plaintiff got any

relief from Court hitherto, which disentitles him to claim his rights. No order was obtained by him from Court, which denies him his rights, until

otherwise decided. Defendants have thus clearly demonstrated that they would act in any way they want, like transferring the assets of the

Partnership firm as claimed by them in the written statement, and deny the share or profits to plaintiff for all these years. Still they contest the claims

in the suit by all sorts of technical points, which could give them a leeway to prolong the proceedings, because any legal proposition taken will have

to be argued out. Being fully aware that in the nature of set up existing, endless legal points are taken so that litigation cannot come to an end for

decades even on a preliminary point. Already 10 years have passed by and the plaintiff had not been paid a pie. Each one of the defendants had

thus acted unfairly and unreasonably.

Apart from the points taken about the nature and character of the firm, they have now taken various technical points which are hereunder dealt

with.

The first of these points is that even though paragraphs 8 to 10 in the plaint refer to certain acts of mismanagement, which would give him a

right to seek for dissolution under S. 44 of the Indian Partnership Act; he having agreed for a preliminary decision to be rendered as to ""whether

the suit is not maintainable"", he cannot any longer claim any relief by relying upon S. 44 of the Act. In spite of the Court framing five issues,

because an objection was taken that the Partnership firm is not at will; the maintainability of the suit was taken up as preliminary issue. The framing

of the issues show that defendants have asked for this preliminary issue, and hence both the Counsels agreed for it to be argued out. The records

of the Court would show that plaintiff''s Counsel was ready to argue the case straightaway on this preliminary issue. It is ununderstandable as to

how plaintiff by agreeing to have this issue heard and disposed of as a preliminary issue, could be prevented from any longer relying upon S. 44 of

the Partnership Act, and claim relief for dissolution Necessary averments pertaining to S. 44 are found in paragraphs 8 to 10 of the plaint, and in

this regard, in the written statement, defendants 1 to 3 have admitted transfer of interests of the partner ship firm to a Private Limited Company,

and strongly defend their action. As to whether it will be a valid ground, and whether S. 44 of the Partnership Act could be invoked, could be

decided only when the merits of the suit are taken up for hearing. Therefore, the point that plaintiff cannot rely upon S. 44 any longer, is a fruitless

objection.

The next point taken is that in the plaint, he having asked for dissolution of the Partnership Firm ''''with effect from the date of filing of the suit"",

he cannot rely upon S. 44, because according to it, it is only the Court which can fix the date for dissolution. As held in Banarsi Das Vs. Seth

Kanshi Ram and Others, it is not the date which is relied upon by the plaintiff which would be relevant for dissolution, and in suite of whatever date

is mentioned by him, it is the Court which has to fix it and therefore, be cannot be prevented from relying upon S. 44 to seek for the relief of

dissolution.

Yet another point taken is that having resisted the claims of the defendants in regard to the preliminary issue about the character of the firm and

consequently, whether he has a right to seek for dissolution, he cannot in this appeal for the first time lake up the point that irrespective of whether

it is a partnership at will or otherwise, he can still secure relief under S. 44 of the Act. There being no alternative relief claimed in the plaint, he

cannot be allowed to abandon his case and adopt a different claim based on what the defendants have stated in the written statement. Learned

Counsel for defendants, submits that mutually exclusive and destructive pleas cannot be allowed. Plaintiff must either stand on his claim that it is

partnership at will, or fail in the suit, and having not incorporated any alternate relief in the plaint, he has to file a fresh suit based on any allegation of

mismanagement or on any of the grounds which could enable a partner to seek for the equitable relief under S. 44 of the Act. He relies upon the

decision of this Court Subramania Mudaliar Vs. Ammapet Co-operative Weavers Production and Sales Society Ltd., , which holds that a plaintiff

cannot be allowed to abandon his own case and then turn round and adopt that of the defendant and claim relief on that footing. It was a case in

which plaintiff deposed that the entire terms of the contract were not communicated to him, and he was only informed about its acceptance, that

later on wanted to plead by relying upon the defendant''s case that the entire resolution was communicated to him. Therefore, on a material factual

point, when he came forward with contradictory claims, it was held that he cannot adopt the case of the defendant and seek for relief on that

ground. No such contrary claim is made by the plaintiff herein on any factual aspect. The preliminary issue was confined to for the purpose of

finding out as to the character of the firm. In claiming dissolution alongside, he had alleged about the acts of mismanagement in paragraphs 8 to 10

constituting further grounds for dissolution. When his claim is based on his rights under the partnership deed, he can seek for dissolution of the firm

of the partnership at will, along with it, since it is claimed that because of the acts of mismanagement, he has a right to seek for dissolution, which

would come under S. 44. Hence there is no mutually destructive or exclusive plea put forth by him; whether it is the one or other ground the relief

claimable is only dissolution.

The other decision relied upon by defendant is reported in T.S. Govindaraj Vs. A.B. Kandaswami Goundar and Another, . This was relied

upon in the earlier decision. It was a case in which plaintiff claimed that there was a partnership relationship between himself and the defendant, but

on defendants claiming that they were only agents of the plaintiff, he turned round and claimed relief on that footing. This was rightly rejected by the

learned Judge.

Yet another decision taking this view is Nagayasami Naidu and Others Vs. Kochadai Naidu and Others, in which it was held that it is only the

dear admission of the opposite party in the pleading that could be relied upon to award relief on a basis different from one covered by the issues on

which parties went to trial.

The last of the decisions on this aspect is Lodd Balamukundas Vs. K. Kothandapani and Others, . wherein the learned Judge of this Court

held that it is not open to a plaintiff who came to the Court with a specific case and with a specific ground of relief to go back upon them and

abandon the same and seek to claim the same relief on the facts alleged by the defendant, No such situation has arisen in the instant case, and

therefore, none of these decisions have any relevance, and, hence, on this point, it is held that by agreeing for the preliminary issue to be framed,

plaintiff had not been deprived of his right to claim relief alongside under S. 44 of the Partnership Act.

Yet another point taken is that, it is for the first time, in this appeal a plea is put forth that whether it is a partnership at will or otherwise still the

plaintiff could seek for relief under S. 44 and therefore such a stand cannot be allowed to be taken, and that at a time when the learned Counsel for

the plaintiff had chosen to argue this point in reply to argument made by learned Counsel for the defendants. It is a fact that learned counsel for the

plaintiff while presenting the case, has confined it to the main point about the character of the firm, which had led to a litigation to last for 10 years

until now, and after the learned Counsel for the defendants dealt with that point, it was submitted that even if for any reason, it is held that the

partnership firm is one of duration, still there are several allegations already incorporated in the plaint, which entitle the plaintiff to invoke S. 44, and

without going into the merits of the same, the suit could not have been dismissed. He submitted that, if on the point already argued, a decision could

be made for the suit to be taken up for hearing, it will be unnecessary to deal with the applicability of S. 44 at this stage because it would in any

event be available during trial of suit when plaintiff has asked for dissolution, there is no need to have an alternate prayer stating that dissociation is

asked for, under S. 44 of the Act as well.

It is not correct as claimed by defendants, that this S. 44 aspect is being considered by this Court for the first time in this appeal. Rather, in the

trial Court, considerable arguments had been advanced as to whether plaintiff could maintain the suit under S. 44 or not. Three pages of its

judgment deal with the applicability of S. 44, Plaintiff''s Counsel had relied upon three decisions Vali Venkataswami v. Gannabathulla

Venkataswami 1976 All 141, Krishnakumar Poddar v. Ramkumar Agrawal 1978 N.O.C. 25 (Patna) Page 13.. and Sardar Hardatt Singh v.

Mukka Singh 1973 J&K 46.. Defendant''s Counsel had relied upon Gur Dayal Prasad v. Raghunath Prasad, and V.M. Nissar Ahmed, etc.

(Minor) by V.C. Abdul Munaf Sahib v. Rahima Bai, etc 1970 1 M.L.J. 513. = 82 L.W. 47 (S.N.). The learned trial Judge had arrived at a

curious reasoning as hereunder:

...Thus to reach the ultimate situation of a complete breakdown among the majority of partners, there is a long distance to travel before which stage

effective and satisfactory solutions are contemplated by providing suitable remedies in the agreement of partnership itself which has to be

considered in depth and spirit of law. To that limited extent it is reasonable to hold that S. 44 of the Act is suspended in its operation and

jurisdiction, whereby the court will hesitate to hasten disastrous consequences just for the sake of satisfying personal animosity and vendetta of a

lone partner. These aspects do not appear to have been dealt with and discussed in the above case laws cited by the plaintiff counsel, whereas the

defendant''s counsel placed reliance to the following authorities which fortify the views of this Court.

After relying upon Vali Venkataswami and Others Vs. Gannabathulla Venkataswami, , the learned trial Judge held that the facts and principles laid

down therein directly applies to the present case for considering the maintainability of the suit. It is regrettable that in spite of such a point taken and

considered by the trial Court, defendants have chosen to raise an objection of this nature.

It is pointed out by plaintiff that even before the learned Judge of this Court, arguments had been advanced relating to the applicability of S. 44,

and for which purpose he had relied upon the written arguments submitted before Court. To prevent any reliance being placed upon it, defendants

relied upon State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, , which dealt with a case wherein written submissions made to the

Court were relied upon to prove certain claims made as to what had happened during the course of the proceedings; and it was held that what are

recorded in the judgment by the learned Judge as to what had transpired in Court cannot be allowed to be disputed. Hence it is submitted that

written arguments submitted before the learned Judge cannot he relied upon to plead, that the rights under S. 14 were canvassed before him. This

objection raised is purposeless is clear from what are stated in the next para as well.

On reading the judgment of the learned Judge, straightaway, it is made out that this point was argued before him, because in para 13, learned

Judge says:

...Therefore it is argued that the only remedy for the appellant/plaintiff will be to ask for dissolution of the firm as contemplated under S. 44 of the

Indian Partnership Act....

Again in para 14, it is stated:

...Now, the stand taken by the plaintiff is that whatever be the provisions under the French Code, the plaintiffs entitled to file the suit for dissolution

of partnership under S. 44 of the Indian Partnership Act....

Hence, it would not be correct on the part of the defendants to claim that the applicability of S.44 is canvassed for the first time in this appeal.

Again it is claimed that the relief of dissolution based upon the character of the firm as a partnership-at-will, and the relief claimed under S. 44

of the Act, are mutually exclusive and destructive pleas, because the relief claimed under S. 7 read with S. 43 is a legal right, whereas the relief

claimed under S. 44 is an equitable relief, and hence without amending the plaint, no relief under S. 44 can be granted. To show that relief of

dissolution under S. 44 is discretionary and could be exercised only if it is found to be just and equitable, learned Counsel for the defendants,

would first refer to Hind Overseas Private Limited Vs. Raghunath Prasad Jhunjhunwalla and Another, , which dealt with the scope of not only S.

433 of the Companies Act, but also the scope of S. 44 (g) of the Partnership Act. It was held that the Court should see that a prima facie case has

been made out, before it is admitted on the allegations in the petition. There must be material to show that when just and equitable clause"" is

involved, that it is just and equitable not only to the persons applying for winding up but also to the company and to all its shareholders.

At page 584 of the Thirteenth Edition of Lindley on Partnership, it is stated as follows:

I Before considering the particular case mentioned in the Partnership Act 1890 in which the court than decree a dissolution of partnership, it is to

be observed that the Act has given the court a wide discretion, and though in exercising that discretion it will no doubt be guided by previous

decisions, the courts will not be bound to dissolve a partnership exdebito justitiae in any of the cases mentioned in S. 35 of the Act.

These decisions deal with the scope of S. 44, and it is not the claim of the plaintiff that as of legal right by making averments in paragraphs 8 to

10, he could seek dissolution of the suit Partnership Firm. He had relied on two instances mentioned in plaint therein, and has asked the Court to

consider whether relief could be granted under clauses (d) and (g) of S. 44 so that the Court may fix a date for dissolution. The term of dissolution

asked on this basis will not in any manner result in inconsistent contentions being raised because when a party is entitled to the same relief on more

than one ground, he can always rely upon different grounds for the same relief. In Srinivas Ram Kumar Vs. Mahabir Prasad and Others, , it was

held that a plaintiff may rely upon different rights alternatively, and there is nothing in the C.P.C. to prevent parties from making two or three

inconsistent sets of allegations and claiming relief thereunder in the alternative. It was further held that a Court cannot grant relief on a case for

which there was foundation in he pleadings, but when the alternative case which the plaintiff could have made, was not only admitted by the

defendant in his written statement but was expressly put forward as an answer which the plaintiff"" made in the suit, then there is nothing improper in

giving the plaintiff a decree on the case which the defendant himself makes. It was also held that, instead of driving the plaintiff to a separate suit,

relief could be granted in the same suit, if an alternative plea is put forth. When such an approach could be made, in the instant case, for the same

relief, when law permits the plaintiff to rely upon more than one factor or circumstance or rights, there is no question of any mutually inconsistent or

destructive pleas put forth by plaintiff. In para 10 of the plaint, he had referred to the formation of a Private Limited Company, which had resulted

in wrongful loss and deprivation of legitimate benefits of the partnership to the plaintiff, and as the actual transfer took place in July, 1978, he has

filed the suit on 17-8-1978 seeking for dissolution. This claim is admitted in the written statement filed by defendants, and in paragraphs 11 and 12

of the written statement it is claimed that the change in the constitutional set up of firm does not affect the position of the plaintiff, and by the

Company taking over the assets, the plaintiff would become a share-holder in the Company in the same proportion in which he had shares in the

Partnership Firm. A reading of these paragraphs shows that the partnership had virtually been abandoned. Plaintiff as a partner claims that this was

done without his consent. Defendants would state that first defendant signed on behalf of the Firm, he being the eldest, and the third defendant, the

Managing Director of the Company signed on behalf of the Company. It is not the claim of the defendants that they have obtained any written

consent from the plaintiff. In paragraph 11, it is stated:

There was no necessity for any formal writing of this proposal since it was done by mutual discussions and consent...

The two agreements having been filed, fifth defendant Company had tried to justify the transfer and claimed to have acquired the rights in the

Partnership Firm. All these got to show that a prima facie case is made out that clause (g) of S. 44 is applicable to the facts of this case, and to

protect the interests of the plaintiff''s share in the Partnership Firm, it will be necessary to entertain the suit, to be disposed of on merits regarding

other issues. Hence, on this ground also, plaintiff succeeds.

Yet another contention put forth is that, plaintiff has to elect when he claims under different heads for dissolution of the Partnership Firm, The

decision of this Court in R.S. Vijayam v, Srinivasa A.I R. 1956 Mad 301, is relied upon by defendants to claim that mutually contradictory pleas

cannot be put forth. It was a case in which the mortgagor has treated the tenant as holding under him and sought relief on that footing in the eviction

proceedings. Later on, when he started asserting that there was no tenancy relationship, but it was one of wrongful occupation, which entitles the

mortgagor to claim mesne profits; it was held that he was recorded by this election in so doing.

Yet another decision relied upon in Gopinath v. Chmilal AIR 1953 Nag 316, wherein a division Bench took the view that defendants having

contested the suit that the will was a forgery, cannot subsequently put up an alternative plea of undue influence.

A passage at page 304 of The Law Relating to Estoppel by Representation, by Spencer Bower and Turner (Second Edition) is relied upon

and which is as follows:

...It very frequently happens that a party litigant is confronted with the necessity of immediately making a definite choice between two possible

courses of action which are mutually exclusive. Whenever this occurs, the general rule of estoppel by election comes into play; that is to say, if by

words or as is almost invariably the case by conduct or inaction, he represents to the other party litigant his intention to adopt one of the two

alternative and inconsistent proceedings or positions, with the result that the latter is thereby encouraged to adopt or persevere in a line of conduct

which he otherwise would have abandoned or modified, as (as the case may be) to change tactics from which he otherwise would never have

deviated, the first party is estopped, as against his antagonist, from resorting afterwards to the course or attitude which, of his free choice, he has

waived or discarded....

As repeatedly pointed out, when mutually inconsistent or destructive pleas had not been put forth and for the same relief when more than one

ground available in law having been pleaded in the plaint there is no question of election to be made by the plaintiff.

Yet another hurdle put for this that, plaintiff has come forward with a false claim that his consent had not been obtained for constituting the

Private Limited Company, when in fact, he had actively participated in the discussions, and shared the enthusiasm in the formation of the limited

company and the follow up action, he cannot secure any relief under S. 44, because it is a discretionary relief which cannot be extended to a

person who comes to Court with unclean hands. The question whether plaintiff''s consent was obtained or not, had not been gone into at all by the

Courts below.

Reliance is placed on the Division Bench decision of this Court in Subburayadu v. Tatayya 1937 MWN 1158, which arose under the Specific

Relief Act, and it was held that plaintiff was not entitled to specific performance because he gave false testimony about passing of consideration. It

was further held that a Court of equity would never extend relief to such a person. At a time when no evidence had been recorded, reliance is

placed on a decision of this nature, which goes to show how desperate the defendants are to prevent the plaintiff on one ground or other, from

seeking the relief, and to prevent the Court from holding a full-fledged trial.

Yet another plea put forth is the so called admission by plaintiff that it is a partnership with a duration. It is contended that in para 4 of the

plaint, he has stated that the partnership will last so long as there are two partners, and this stand is destructive of the claim that it was a

partnership-at-will.

In the plaint filed for dissolution of a partnership firm, it is necessary for the plaintiff to summarise some of the terms and conditions of the

partnership deed. In drafting a plaint, a counsel may choose to incorporate the entirety of the agreement or reproduce only relevant clauses

summarise them to the best of his ability. The condensed manner of summarising it ineptitudely by a Counsel would never be construed as a stand

taken by the plaintiff about the nature of the partnership. Para 4 is confined only to summarising some of the clauses in the deed. It is unfortunate

that a paragraph of this nature should have been relied upon in every Court to claim that plaintiff himself had pleaded that it is a partnership with

duration limited by the terms contained therein.

Therefore, for all the reasons above stated, the suit partnership firm is a partnership-at-will, and therefore, in law, the plaintiff can seek for its

dissolution, and the rights of parties are governed by the Indian partnership Act, and that the alternative ground relied upon under S. 44 of the

Indian Partnership Act has also to be gone into by the trial Court on merits. Therefore, the suit as filed is maintainable, and it is now for the trial

Court to take up the suit on its file and dispose it of on merits, on other issues involved in the suit. Since ten long years have rolled by, it is just and

proper to direct the trial court to dispose of the suit within four months from the date of receipt of the steno-copy of this order. The appeal is

therefore allowed with costs. Counsel fee Rs. 2,500.