P.K. Leelavathi and 8 others vs Guru Vittal and 2 others

R.R. Jain, J.—In a suit for dissolution and accounts of a partnership firm, the learned single judge, vide his order dated, 19.6.1989, ordered

for passing final decree against the defendants. The defendants, aggrieved by this order, have filed this appeal against the original plaintiffs, the

respondents. Four plaintiffs and the first defendant are the brothers and sons of the late Pattu Padmanabaiah Chetty. They were carrying on

business in partnership under the name and style of Padmanabha Talkies. However, as disputes arose between the partners with regard to the

affairs and administration of the firm, Civil Suit No. 6/68 came to be filed alleging that the first defendant, the partner, while administering the affairs

of the partnership firm, also diverted some of the assets, profits and started separate business in the name of his wife-the second defendant, under

the name and style of third defendant, namely, Revathi Textiles and thus alleging that the business run by the wife of the first defendant, namely the

second defendant, in the name of the third defendant, is also a partnership asset, the plaintiffs also prayed for taking accounts thereof. From the

record, it appears that on service of process, the defendants appeared and resisted the suit; consequently, issues were framed and the matter was

set for trial. At that stage, by consent of parties, a preliminary decree for dissolution and taking accounts was passed on 1.2.1972. According to

the consent terms, the suit partnership firm stood dissolved from the date of institution of the suit. The parties also agreed that all other questions

raised in the pleadings be determined by the Court after the Commissioner goes into the accounts and submits his preliminary report. According to

the consent terms, the first defendant was held liable as accounting party.

As per consent terms, one Mr. S.K. Gajendram Naidu was appointed as Commissioner to take accounts of the assets and liabilities so that the

respective entitlement of the partners could be apportioned as per their respective shares as per the partnership deed. For convenience, the

relevant clauses as agreed between the parties for passing preliminary decree are stated hereunder:-

That the plaintiffs are entitled to have suit partnership business of P.P.C. & Sons, Madras, Pattu Padmanaba Chetty and Sons, and all its

business (viz.) Padmanabha Talkies, Sri Padmanabha Lorry Service, Padmanabha Commercial Corporation, dissolved as and from the date of

institution of this suit, viz. the 18th day of January 1968.

That the suit partnership business of P.P.C. & Sons, Pattu Padmanabha Chetty & Sons, all its business (viz.) Padmanabha Talkies, Sri

Padmanabha Lorry Service, Padmanabha Commercial Corporation, do stand dissolved as and from the said 18th day of January 1908.

That the following accounts be taken:

a. An account of the credits, property and effects now belonging to the aforesaid partnership business.

b. An account of the debts and liabilities of the aforesaid partnership business.

c. An account of the dealings and transactions between the partners of the said partnership from the said 18th day of January 1968.

That the said first defendant herein do render accounts of the aforesaid partnership firm, as mentioned in Cl. 3 supra.

That Mr. S.K. Gajendram Naidu, Advocate, High Court, Madras, be and is hereby appointed Commissioner to take account of the assets and

liabilities of the said partnership business and collect the outstandings due to the said partnerships firm.

That for the aforesaid purpose, the said Commissioner herein shall record evidence and on examination of the said accounts, the said

Commissioner herein, do submit his preliminary report and proceedings therein to this Court, touching upon the various issues in the suit as well as

the Applications, particularly Appl. No. 318 of 1969 on the file of this Court within four weeks from this date (i.e.) on or before 29.2.1972.

Upon the report being submitted by the Commissioner, the respondents/plaintiffs filed two Applications, namely Application No. 972/68

seeking directions against the first defendant to deposit in the Court a sum of Rs. 10,52,800/- on account of Pattu Padmanabha Cherry & Sons

and a sum of Rs. 2,40,000/- on account of Padmanabha Theatre for the reasons stated therein. The respondents/plaintiffs also moved Application

No. 1326/83 for passing a final decree in terms of preliminary decree on the basis of report submitted by the Commissioner. The Court disposed

of both these Applications by the impugned order and ordered for passing final decree. Now, this order is under challenge in this appeal.

It would be also important to note here that the preliminary decree was passed with the consent of the first defendant P.P. Kannaiah. He had

also appeared before the Commissioner and led his evidence. But, before the Commissioner could file his report, he died on 26.9.1981. The

Commissioner submitted his report on 23.10.1981. The fact that the main contesting party agreed for passing preliminary decree suggests that

there was no dispute between the partners with regard to their respective shares as well as taking accounts of other business concerns, as referred

in preliminary decree as that of the suit partnership. Now, before the final decree could be passed on the materials placed before the Court, as the

original partner the first defendant died, his legal representatives the appellants were brought on record to continue the proceedings. Thus, the legal

representatives, feeling aggrieved by the impugned order, are before this Court as appellants.

The learned counsel for the appellants has argued that while passing the impugned order, the learned judge has acted arbitrarily without

following procedure prescribed u/s 48 of the Partnership Act 1932, read with Order 23, Rule 5 of the Original Side Rules as well as other

provisions of CPC requiring the Court to adopt a particular form for passing preliminary and/or final decree. It is also argued that though the

appellants had filed objections against the veracity of the Commissioner''s report, yet, without even deciding the validity or otherwise of such

objections, the Court accepted and acted upon the report, treating it as a valid and legal piece of evidence on admitted facts. The order is also

assailed on the ground that since the appellants are the legal representatives of the deceased partner, a personal decree could not be passed, and

at the most, a decree could be passed against the estate of the deceased only. Inviting our attention to the observations made in para 29 of the

judgment, it is argued that the learned judge has exceeded jurisdiction by deciding issue No. 4, though was not called upon to decide the said

issue.

The learned counsel for the respondents/plaintiffs has urged that the appeal is not maintainable as the final decree has already been drawn on

30.6.1989. It is also argued that as the appellants filed objections against the Commissioner''s report, the Court examined the same and having

been satisfied, has passed the order and thus, though expressly has not said anything about the rejection of objections, but having accepted,

impliedly shall be deemed to have rejected such objections. Supporting the judgment, it is also argued that the order is completely in accordance

with law and in terms of the preliminary decree which was passed by consent.

Before we deal with rival contentions on merits, we would like to discuss first the law laid down by various Courts in relation to passing of

preliminary decree and consequent final decree. This would help us to deal with rival contentions in their proper perspective.

i) In a decision reported in Banwari Lal and Others Vs. Shaikh Shukrullah and Others, in the case of Banwari Lal v. Shaikh Shukrullah, the Court

has dealt with the scope of relation of the preliminary decree to the final decree by stating that the function of the final decree is merely to re-state

and apply with precision what the preliminary decree has ordained, and final decree is not only based on but also controlled by preliminary decree

and cannot travel beyond it.

ii) The Orissa High Court, in Srinibas Jena and Others Vs. Janardan Jena and Others, has held that a final decree proceeding does not originate in

itself, but follows a preliminary decree passed in a suit. The final decree proceedings start only after determination of the rights and interest of the

parties in relation to the subject matter. Under the provisions of Order 20, Rule 18, C.P.C, the preliminary decree simpliciter declares the rights of

the parties and interest in the property and the final decree gives enforceability to the rights which have already been decided. Thus, the final decree

proceedings only relate to matters which are provided in the preliminary decree as to physical division or as to an account for mesne profits but do

not relate to the decision of any substantive rights of the parties as to the title to properties. While taking this view, reliance has been also placed on

the judgment reported in Banwari Lal and Others Vs. Shaikh Shukrullah and Others,

iii) A preliminary decree always settles the rights and liabilities of partners and such rights cannot be varied by a judge in proceedings taken

thereafter, namely the final decree, is held in AIR 1937 Sin 103, in the case of Lilaram Kewalram v. Hiranand Notandas.

iv) In the decision reported in S.P. Periaswami Konar and Another Vs. S. Mikole Udayar and Another, , it is held that in a case of suit for

dissolution of accounts of a partnership, each of the partners to a partnership suit, however he may be formally ranked, is really, in turn plaintiff and

defendant and in both capacities comes before the Court for the adjudication of his rights relatively to the other partners which the Court

endeavors to determine by its decree. It is further stated that the concept of rendering accounts is mutual accounting and not one partner alone

accounting to any one or more.

v) While dealing with the scope of Section 48 and the mode of taking and finalisation of accounts, it is held by the Andhra Pradesh High Court, in

the judgment reported in Alluri Appamma and Others Vs. Balaji Lal and Others, that in a suit for dissolution of partnership, the partnership assets

have to be valued, the accounts have to be taken, the liabilities have to be ascertained, their discharge has to be provided for and the balance of

the partnership assets should be directed to be divided between the partners according to their shares and in a case where this procedure is not

followed and the plaintiff is directed to a separate suit, such a direction would wholly be erroneous in law. As regards right to file suit for dissolution

and accounts, it is held that essentially, the suit has to be between the parties to the agreement and a stranger cannot sue.

vi) In another judgment of this Court reported in Karri Venkayyamma Vs. Goluguri Tirapayya, , it has been held that the legal representative of a

partner is not liable to render accounts to the other partners. The other partners must allege and establish the liability of the deceased partner, and

the amounts so ascertained could be recovered only from'' the assets of the deceased at the hands of the legal representative. In other words, the

legal representatives cannot be held personally liable for the dues of the partnership firm in relation of its late partner.

vii) In a Full Bench decision of this Court reported in Babburu Basavayya and Others Vs. Babburu Guravayya and Another, , it is held that even if

the preliminary decree is silent about the accounting of profits subsequent to the date of the passing of such decree, the Court is not precluded and

prohibited for giving any directions in final decree and such an enquiry can be either treated as a part of preliminary decree itself of subsequent

inquiry as a step towards passing an equitable final decree and such a direction in final decree would not tantamount as traveling beyond the scope

of preliminary decree.

Now, dealing with merits, it is true that the learned Judge has not expressly dealt with the validity of objections against the report of the

Commissioner filed by the appellants, but at the same time, it is an admitted fact that the learned Judge has elaborately discussed the evidence

collected by the Commissioner and has based his finding on the basis of such report. Thus, by necessary implication one can say that having upheld

the legality of the report, the learned Judge has relied upon the same and has based his finding, we have no hesitation in saying that impliedly, the

objections shall be deemed to have been overruled. Upon going through the entire judgment, we are of the opinion that the learned Judge in fact on

merits, rejected the objections and upheld the legality and validity of the Commissioner''s report and by placing reliance, has ordered for passing

final decree. We feel that absence of express rejection is merely an omission. Hence, if by necessary implication a particular meaning can be

derived, then such an omission has no relevance, and simpliciter becomes an academic issue without vitiating the legality of the impugned order.

Similarly, the respondents'' contention that as the final decree has already been drawn on 30.6.89, then the appeal challenging the impugned order

would not be maintainable. The impugned order itself says drawing of final decree and subsequent act of drawing decree is merely a procedural act

and in any way does not change the merits of the order which otherwise could be challenged as per law.

The learned counsel for the appellants has also assailed the impugned order for want of following due procedure prescribed u/s 4X of the

Partnership Act read with Order 23, Rule 5 of the Original Side Rules.

It is true that unless a complete enquiry as undertaken about the debts and credits, profits and losses, capital contribution, withdrawal etc., the

accounts prepared cannot be deemed to be reflecting true and correct picture and cannot be divided amongst the sharers. It is also true that before

ascertaining the rights of the partners and dividing the properties amongst them, the debts of the firm have to be discharged first. It is true that

relying upon the Commissioner''s report, the learned judge has ascertained the rights and liabilities of the partners and has ordered for passing final

decree without referring to discharge of debts. But, from the record it clearly transpires that the Commissioner had taken lot of pains to hold

detailed enquiry and had also gone into each and every aspect of the accounts including debts and credits, liabilities, capital accounts, withdrawal

etc. and has ultimately prepared the accounts reflecting true and correct picture of the partnership affairs. Though the appellants have raised

objections about non-compliance of procedure prescribed u/s 48 of the Partnership Act, read with Order 23, Rule 5 of the Original Side Rules,

there is nothing on record to show that the properties of the partnership firm are sought to be divided without discharging the debts of thee

partnership firm. Nothing has been placed on record to show that there are some creditors of the firm who have not been paid or that any other

liability of the firm is not discharged. Apart from these facts, in our view, the appellants have no personal knowledge about the affairs of the

partnership firm and are on record as legal representatives of the deceased partner only. The Commissioner had prepared report in the presence of

the deceased partner. The Commissioner had examined the deceased partner and many other witnesses on both the sides. We do not find that any

such objection was ever raised by any of the parties much less by the deceased partner whose interest is now represented by the present

appellants. Thus, we find no merits in these contentions.

Even the preliminary decree also says that Mr. S.K. Gajendram Naidu, Advocate, High Court, Madras was appointed as Commissioner to get

accounts of the assets and liabilities of the said partnership business and wind up the same by collecting outstanding dues and for the said purpose,

the Commissioner shall record evidence and after examination of the said accounts, shall submit a report. It clearly suggests that the Commissioner

was authorised to look into the entire affairs of the partnership business to collect the dues and discharge the liabilities and finalise the accounts and

thus, the Commissioner having done so, shall be deemed to have complied with Section 48 of the Partnership Act, read with Order 23, Rule 5 of

the Original Side Rules.

In a suit for partition of joint and undivided properties as well as for dissolution of accounts of a partnership firm, every party to the litigation is

plaintiff as well as defendant, irrespective of their status as ranked in the suit and are mutually liable for rendition of accounts. But mutuality and

reciprocality for rendition of accounts depends upon the facts and circumstances of an individual ease. In a case where each and every one of the

interested parties is found to be in possession'' of joint properties and/or in administration of affairs of the partnership firm, each one shall be

responsible for rendering accounts to that extent, namely the extent to which they are in possession or in administration, and thus every party

becomes plaintiff as well as defendant. But if on facts, a particular partly alone is found to be responsible as accounting party, the question of other

parties being responsible for rendition of accounts does not arise at all, because they are no more found either in possession or in administration of

the affairs of the partnership firm. In this case, it is evident from the terms of preliminary decree that the deceased defendant No. 1 himself agreed

to be liable for rendition of the accounts. With this admitted evidence on record, the appellants who have no personal knowledge about the affairs

and administration of the partnership firm, have no right to raise such objection saying that the plaintiffs should also render accounts and not having

done so the decree is not based on true and complete affairs and that, it is not legal.

It is also argued that the properties which did not belong to the partnership firm have been taken into consideration for the purpose of

accounting while passing the final decree and thus the final decree, being beyond the scope of preliminary decree, is illegal and cannot be sustained.

In order to appreciate this contention, we refer to the various clauses of the preliminary decree. As a rule, a final decree has always to be

controlled by a preliminary decree and cannot travel beyond it, because it is the preliminary decree which ascertains the rights of parties and the

final decree simpliciter confers executability Clause No. 1 of the preliminary decree states that the plaintiffs are entitled to have suit partnership

business of P.P.C. & Sons, Madras, Paltu Padmanabha Chetty & Sons and all its business (viz,) Padmanabha Talkies, Sri Padmanabha Lorry

Service, Padmanabha Commercial Corporation, dissolved as on the date of institution of the suit. In the plaint, it is the allegation of the plaintiffs

that the first defendant, who was in administration and control of affairs of the partnership firm had diverted some of its assets and profits, and

started separate business and they shall be deemed to be properties of partnership firm and divisible amongst the partners as contemplated u/s 10

of the Partnership Act. The preliminary decree was passed by consent and by agreeing to get the other concerns dissolved and make available all

such properties for division amongst the partners as if the properties of the main partnership firm, all the parties shall be deemed to have admitted

that irrespective of the style and control of business, all these businesses are that of the partnership firm, divisible amongst the partners. Thus, now

the appellants, stepping into the shoes of the deceased partner, are estopped from contending otherwise and raising such dispute.

At this stage, we do not want to get details of the report prepared by the Commissioner, but we only say that the report appears to have been

prepared by the Commissioner in detail by going through the books of accounts and by examining several witnesses on either side including expert

witnesses, namely Chartered Accountant. The learned Judge has referred to the evidence collected by the Commissioner at several places in the

judgment and has also dealt with the veracity of oral evidence and thus, considering various aspects of the report and considering the respective

share of the properties, the Court has come to a conclusion that the plaintiffs are entitled to 4/5th share of the total estate and that the late

defendant No. 1 is liable to pay to the plaintiffs to the extent of 4/5th share of the total estate. This conclusion is based on books of accounts

maintained by the deceased first defendant. In case of rendition of accounts, the rights and liabilities of the parties have to be ascertained on the

basis of books of accounts maintained by the accounting party. For ascertaining such claim, the party entitled to claim is not expected to prove its

entitlement by independent evidence. The question of independent proof would arise only in case despite holding one party responsible for

rendition of accounts, the books of accounts are not produced or the accounts are not rendered by such party. In this case, this question does not

arise because the late first defendant, admitting himself as accounting party, had already led evidence before the Commissioner, produced the

books of accounts, whereupon the Commissioner prepared a detailed report. Thus on facts, it will not be proper to say that the learned Judge has

determined the rights and liabilities without any proof or basis.

We have gone through the impugned judgment and are in complete agreement with the appreciation of the evidence and reasonings adopted

by the learned Judge for arriving at conclusion. Though the appellants have challenged the decree, we are at pains to state that they have not been

able to point out any illegality or error or manifest erroneous appreciation of evidence, vitiating the legality of the order. The final decree is squarely

within the scope of the preliminary decree and by no stretch can be said as traveling beyond it.

A contention is also sought to be raised that the order is not passed in the Form prescribed under the procedural rules. We reject this

contention by only saying that the impugned order is a judicial order and law does not prescribe any Form. The Forms prescribed under C.P.C,

are a part of procedure and are to be adopted only to give excitability to the judicial order. This is a procedural aspect and has to be undertaken

by the office after the judicial order is passed.

A mountain has been made out of mole by the learned counsel for the appellants by referring to the observations made in para 29 of the

judgment. In this paragraph, the learned Judge has stated that though no separate arguments were advanced by the learned counsel for the plaintiffs

on issue No. 4, yet, on the basis of evidence available on record, the learned Judge decided the issue against the plaintiff and in favour of the first

defendant. Taking recourse of this observation, the learned counsel has argued that though the issue was not pressed, yet the learned Judge has

decided the issue and thus has exceeded jurisdiction or has acted arbitrarily. Even then also we are of the opinion that this finding has not caused

any prejudice. It the appellants who are claiming through the late first defendant, because the issue has been decided in their favour. On facts, we

do not agree with the contention because while examining the legality of final decree, the Court has not to go by the finding given in relation to

individual issue, but the ultimate result and whether it is in consonance with the preliminary decree or not is only to be seen. In this case, as

discussed above, the final decree is completely in consonance with the scope of the preliminary decree, and the finding on issue No. 4 has no

independent bearing on the merits of the final decree.

Now comes the question whether the appellants who are the legal representatives of the erstwhile partner can be personally held liable for

payment of debts of the deceased. In this case, on perusal of judgment, it clearly transpires that the learned judge has not clarified this aspect and

has straightway passed decree against the appellants/defendants as if they are personally liable. As a matter of rule, the legal representatives of a

judgment debtor cannot be held personally liable for the dues of a judgment debtor. Section 50(2) of C.P.C, clearly says that the legal

representatives can be held liable to the extent of property of the deceased, which has come to their hands and has not been duly disposed of. An

omission to this effect in the order cannot render it illegal since the order can be modified by giving effect to the provisions of law without affecting

the respective rights conferred by the decree.

During the course of arguments, a contention is also raised that the appeal has not been preferred on proper Court fee stamp. In light of

aforesaid observations at this stage, we do not find it necessary to go into this quest ion and leave it undecided by saying that it shall he open for

the Court fee inspector to look into the valuation aspect and assess proper Court fee stamp payable, if any, by the appellants. For the reasons

stated above, we do not find any good and sufficient reason warranting interference in the impugned order. The appeal, being devoid of merits, is

hereby dismissed, confirming the order of the learned, single judge with clarification that the appellants shall be liable to the extent of properties of

the deceased in their hands. In the circumstances of the case, we pass no order as to costs. Consequent to the dismissal of the main appeal itself,

the related C.M.Ps are also dismissed.