Sheo Bhagwan vs Mst. Durgadevi and others

A.P. Sen, J.

This is an appeal preferred by the defendant No. 1, Sheo Bhagwan, from a judgment of the 1st Additional District Judge, Bilaspur, decreeing the plaintiff''s suit for rendition of accounts.

The facts of the case, in brief, were as follows--In the year 1943, there was an oral agreement between Gurumukhrai, karta of a joint Hindu family trading under the name "Baxiram Gurumukhrai" at Bilaspur, Radhakishan of Bilaspur and Premshanker of Nagpur, to start a business in partnership styled "Radhakishan Ramsahai" at Nagpur. Radhakishan was the uncle-in-law of Sheo Bhagwan. In that partnership, Sheo Bhagwan was employed as a munim. On 30th October, 1943, Sheo Bhagwan was admitted to the benefits of the partnership. He was brought in as a partner in place of Premshanker who went out. Under the terms of the partnership, Gurumukhrai and Radhakishan were each to have a -/6/-annas share while Sheo Bhagwan was to have the remaining -/4/- annas share. On 10th January, 1944, a deed of partnership was executed between Gurumukhrai, Radhakishan and Sheo Bhagwan. On 25th May, 1948, Gurumukhrai died and upon his death, the partnership was re-constituted, i.e., the plaintiff, Vasudeolal, the succeeding karta of the joint Hindu family firm "Baxiram Gurumukhrai" stepped in. The business of the firm continued under the name and style "Radhakishan Ramsahai" as before. In the re-constituted firm, each of the three partners were given -/5/4 annas share in the partnership business. There was no settlement of accounts of the partnership on the death of Gurumukhrai. The khata of Gurumukhrai; which was that of "Baxiram Gurumukhrai" in the partnership books was the same khata which continued when Vasudeolal came in. Admittedly, that khata of "Baxiram Gurumukhrai" was never squared up. On 22nd December, 1948, there was a formal deed executed between Vasudeolal, Radhakishan and Sheo Bhagwan to evidence the partnership. That deed was drafted by a senior lawyer, Shri P.P. Deo, who later became a Judge of the Nagpur High Court.

The entire business of the partnership at Nagpur from the very inception, i.e., w.e.f. 30th October, 1943, was under the management and control on Sheo Bhagwan and he was admittedly the managing partner thereof. During his period of management, he purchased a house at Nagpur worth Rs. 40,000/-, and subsequently mortgaged the same with his wife, Smt. Bhagwanibai. On 26th March, 1954, Sheo Bhagwan left the partnership business after giving a notice of dissolution of the firm.

On 26th March, 1954, the plaintiff Vasudeolal, acting as the karta of the joint Hindu family carrying on business under the name and style "Baxiram Gurumukhrai", instituted the present suit at Bilaspur, against the defendant No. 1 Sheo Bhagwan claiming rendition of account of the dissolved firm "Radhakishan Ramsahai" w.e.f. 30th October, 1943 to 26th March, 1954. In that suit for accounts, he also impleaded Radhakishan and Smt. Bhagwanibai as defendants Nos. 2 and 3 respectively, and added a relief of declaration to the effect that the house purchased by Sheo Bhagwan for Rs. 40,000/- was acquired from out of the assets belonging to the partnership and, therefore, constituted an asset of the firm, and consequently, the mortgage of the house effected by him in favour of his wife Smt. Bhagwanibai was not binding on the firm.

The suit was mainly contested by the defendant No. 1, Sheo Bhagwan. He pleaded, inter alia, that the firm stood dissolved with the death of Gurumukhrai on 25th May, 1948; that the claim was therefore, barred by limitation in respect of the profits prior to that date; that the partnership deed dated 2nd December, 1948, was executed at Nagpur and, therefore, the Bilaspur Court had no territorial jurisdiction to try the suit and that the suit as framed was bad for mis-joinder of parties.

These defences, however, failed and the learned Additional District Judge has decreed the plaintiff''s suit in its entirety. He sums up the position of Sheo Bhagwan in the following words :

The defendant No. 1 has himself admitted that he was the managing partner of the firm. In fact, he was the only partner living permanently at Nagpur where the firm was carrying on the business and it was not physically possible for the other partners to exercise supervision on day-to-day business of the firm from Bilaspur. It may be that the managing partner sought advice or sanction from the other partners from Bilaspur on phone but that does not operate against the position of the defendant No. 1 as managing partner of the firm. These instructions were sought because, in fact, the defendant No. 1 had not contributed to the capital assets of the firm. He was simply an employee, who was admitted to the benefits of the firm with a view to seek its smooth and profitable working. Naturally, the stake was with the other two partners and their upper hand over all affairs of the firm was, therefore, natural. Shri P.P. Deo, P.W. 1 has stated that Sheo Bhagwan defendant No. 1 was managing the affairs of the firm because he was the person, who was consulting him every time with respect to the legal affairs of the firm. In the Court also, I saw that the other partners were not in a position to lay hand on the specific entries in the accounts without the help of the defendant No. 1. Though it is true, that ultimately the books of account reached into the custody of the plaintiff, but that is not sufficient for making him liable for rendering the accounts. In fact, the person, who was incharge of the management of the firm should be deemed to be liable to render the accounts. It is true that in agreement of partnership, one partner is the agent of the other and the relationship of principal and agent does not exist with respect to only one partner, but it is obvious that the party which manages the affairs of the firm on behalf of all other partners should be deemed to be liable to render the accounts. This is clear from the evidence of all other witnesses including the Munims. It is, therefore, held that the defendant No. 1 is liable as a managing partner to render the accounts for the whole period in suit for which the accounts have been claimed by the plaintiff.

The most crucial question urged in the appeal was that the partnership of the year 1943 stood dissolved on the death of Gurumukhrai w.e.f. 25th May, 1948 and, therefore, the claim for rendition of accounts of that partnership of which Gurumukhrai was a member, was barred by limitation by virtue of Article 106 of the Limitation Act, 1908. It is urged in that connection, that the partnership evidenced by the deed of the year 1948, constituted a new partnership.

In our opinion, this contention is not well founded. No doubt, in the absence of a provision, the death of a partner puts an end to a partnership. That rule is enacted in section 42 (c) of the Partnership Act, which runs thu --

"Dissolution on the happening of certain contingencies.

Subject to contract between the partners a film is dissolved-

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(c) by the death of a partner;".

But the rule is subject to the important qualification embodied in the opening words of the section --

Subject to contract between the partners....

Partners may, accordingly, agree that on the death of any of them, his heir or legal representative shall be entitled to take his place.

Whether in a particular case there has or has not been such an agreement, may be proved by an express declaration or may be inferred from conduct. The law is succinctly stated in Desai''s Law of Partnership, 3rd Edn., thus--

An agreement between partners might show that the death of one of them was not to result in dissolution of the firm. Whether in a particular case there has or has not been such an agreement may be proved by an express declaration to that effect or may be evidenced from the conduct of the parties and the other facts and circumstances of the case. Thus, for instance, where a partnership agreement provides that on the death of any one of the partners, his nominee or legal representative should be entitled to take his place and it is proved that after the death of a partner his legal representative joined the business which was continued as before it would be held that the partnership was not dissolved on the death of that partner. Again, the words ''subject to contract between the parties'' do not mean that the contract must be express. Hence, a contract to continue the partnership after the death of a partner may be implied from the conduct of the parties. Though the contract must be one between the original partners, the conduct of the surviving partners and the heirs of the deceased partner after his death may reflect the original intention of the founders of the partnership. The taking up as a partner of a son of a deceased partner in his stead and the continuation of the firm without dissolution is not an uncommon feature of partnerships in this country.

This is clear from the decisions in Gokul Krishna v. Sashimukhi (1911) 16 Cal. WN 299; Raghumall v. Luchmondas (1915) 20 Cal. W.N 708; which was applied in Harmohan Poddar v. Sudarsan Poddar (1921) 25 Cal. WN 847 , the judgment of the latter case was subsequently affirmed by the decision in AIR 1935 350 (Lahore) and Kesrimal v. Dalichand AIR 1959 Raj. 140 . The same principle is deducible from the decisions in Mt. Basanti Bibi Vs. Babulal Poddar and Another, and AIR 1935 209 (Lahore) . The decisions of the Privy Council in AIR 1923 136 (Privy Council) and AIR 1945 71 (Privy Council) are also to the same effect. The decision of the Supreme Court in Commissioner of Income Tax, Madhya Pradesh, Nagpur and Bhandara Vs. Seth Govindram Sugar Mills, relied upon is distinguishable on facts. There, the partnership was only between two partners, and, therefore, it was held by the Supreme Court that there could not be any contract between them for a continuity of the partnership on the death of one of them.

In Gokul Krishna''s case (supra), a partnership was entered into in 1883 between the plaintiff''s husband and the defendants. After his death in 1887, the business of the firm continued, with the plaintiff as a partner. There was no direct evidence of any contract between the original partners to that effect that on the death of any of them would not result in dissolution of the firm. But the conduct of the partners showed that everyone regarded the partnership as still continuing. In dealing with the question Mookerjee and Teunon, JJ. observed--

There is no room for the theory that after the death of the husband of the plaintiff a new partnership was constituted between herself and the surviving partners. The true view is that the original partnership was continued by common consent with this difference that the plaintiff replaced her husband and this condition of things can be explained only on the hypothesis that the contract between the founders of the partnership was that it was not to be dissolved by the death of any of the partners.

The decision was followed by Sanderson C.J. and Woodroffe and Mokerjee, JJ. in Raghumull v. Luchmondas (supra) and that judgment of theirs was upheld by their Lordships of the Privy Council. In Harmohan Poddar''s case (supra), the principle that the matter is one of inference from conduct, in the absence of an express stipulation, was reiterated by Mookerjee and Walmsley, JJ. In that case, as here, there was no express agreement about the heirs of a deceased partner, but the evidence showed that upon his death, his sons stepped into his place and were accepted, without question, as partners in a continuing firm and in that character they contributed capital to and withdrew sums of money from the firm. That is precisely the case here. So also, in Basanti Bibi''s case (supra), where a partnership consisted of 30 partners and there was no evidence that the business of the firm was treated as dissolved on each of the occasions when on which one of them died, but on the contrary the evidence indicated that business of the firm was continued as before, Mukerjee and Bennet, JJ., held that there must be presumed to be an implied contract not to dissolve the partnership.

The decision more in point is that of Tek Chand and Abdul Rashid, JJ., in Bansi Ram''s case (supra). The allegations in the plaint were that in 1909 under a verbal agreement a partnership was entered into between (1) Sada Ram, father of Jagan Nath, plaintiff No. 1, (2) Basanta Mal, father of Kulwant Rai, plaintiff No. 2 and (3) Bansi Ram, defendant. The capital was contributed entirely by Sada Ram and Basanta Mal, while Bansi Ram was the working partner, whose duties were to make entries in the books realise outstandings, work as a weighman and make other arrangements in connection with the business of the firm. The profits and losses of the business were to be shared by the partners in proportion to their shares. Sada Ran died on 18th November 1919, leaving a minor son, Jagan Nath, who was then about nine years old. The allegation in the plaint was that on the death of Sada Ram, Jagan Nath was declared as his heir and representative in the firm. The business of the firm continued under the name and style of Sada Ram Basanta Mal and the defendant continued to manage it as before. Basanta Mal died on 21st May 1927, when his son, Kulwant Rai was also declared as his heir and representative. Tek Chand, J., speaking for the Court stated--

On the question of limitation, the sole contention raised is that the partnership must be taken to have been dissolved by operation of law on the death of Sada Ram in 1919 as laid down in section 253 (10), Contract Act, as it stood before its repeal by the Indian Partnership Act, 1932. This is no doubt true but the course of conduct of the parties including Bansi Ram shows that after the death of Sada Ram the business was continued as before, under the old firm name ''Sada Ram Basanta Mal'' the same premises and the accounts continued to be written in the same books. This clearly indicates that though the partnership was technically dissolved on the death of Sada Ram, the surviving partners, Basanta Mal and Bansi Ram, started a new partnership under the same name, took over the business of the original firm as a going concern, and admitted the minor son of Sada Ram into the benefit of the partnership, giving him, the same share as was held by his deceased father. It was of course, open to Jagan Nath, within a reasonable time of his attaining majority, to repudiate to this arrangement, but the account books and the conduct of the parties show that instead of doing so, he ratified the arrangement. Similarly, on the death of Basanta Mal in 1927, though the partnership was technically dissolved again, his son and heir Kulwant Rai, who was a major at the time, was admitted into the partnership and the business was continued without a break by Bansi Ram, Jagan Nath and himself. In these circumstances there can be no doubt that at the time of the suit a subsisting partnership existed between the two plaintiffs and the defendant, the share of the plaintiffs being 6-16 each and that of the defendant 4-16 and no question of limitation arises.

In Kesrimal v. Dalichand''s case (supra), it was held not only that such a contract may be implied, but also that it was possible to spell out that contract from the subsequent conduct of the surviving partners and the heirs of the deceased partner.

The question whether there was or was not a contract of the kind envisaged by section 42 of the Partnership Act to continue a partnership despite the death of a partner must be decided with reference to the facts and circumstances of each particular case. In the present case, the conduct of the parties and the course of their dealings clearly give rise to an inference that there was such a contract and the partnership initially formed with Gurumukhrai in the year 1943 was not, in fact and law, dissolved by his death. During his cross-examination, Sheobhagwan (D. W. 1) has admitted that when the partnership was first formed, he entered service as a Munim of the firm. Later, when Premshanker went out of the firm, he stepped into his place as a partner. Right from the year 1943 when he was taken as a partner till 1954 when he left the firm, Sheobhagwan never contributed a pie towards the capital assets of the firm. When he left the firm, the total value of the partnership assets, according to the plaintiff, was to the tune of Rs. 6,26,753.84 P. The business of the partnership was carried on with the funds supplied by the joint Hindu family styled "M/s Baxiram Gurumukhrai", through its Karta Gurumukhrai. Sheobhagwan has also admitted that the Khata of Gurumukhrai in the books of the partnership was that of M/s Baxiram Gurumukhrai and, that that Khata was never squared up. The same Khata continued after the death of Gurumukhrai, i.e., after Vasudeolal, Karta of the joint Hindu family came in. The contention that the partnership stood dissolved with the death of Gurumukhrai on 25th April, 1948 stands belied by the admission of Sheobhagwan. He states:

The name under which the firm traded was the same. There was no settlement of accounts of the partnership on the death of Gurumukhrai. The business was carried on by the same partnership as before, both in the commercial and in the legal sense. When Gurumukhrai entered into the partnership, in his capacity as the Karta of M/s Baxiram Gurumukhrai and when the business of the partnership was carried with the funds supplied by the joint Hindu family, it was but natural that the partnership would not dissolve by his death, and the business of the firm continued as before, with the succeeding Karta Vasudeolal stepping in his place. Thus, the partnership originally formed with Gurumukhrai in the year 1943 must be regarded as a living concern upto the date of dissolution of the continuing business. The conclusion of ours is reinforced by the testimony of Vasudeolal (P. W. 5) and Munim Radhakishan (P. W. 4) showing that the Partnership was not dissolved on 25th April, 1948 with the death of Gurumukhrai.

Vasudeolal (P. W. 5) has stated that originally when the partnership was formed in 1943, the contract was oral. That contract was made at the shop of M/s. Baxiram Gurumukhari at Bilaspur. Later, there was an instrument of partnership executed during the lifetime of Gurumukhrai on 10th January, 1944. The joint Hindu family supplied funds with which the business of the partnership was carried on. From time to time, the account books of the partnership used to be brought by Sheobhagwan or other Munims from Nagpur to Bilaspur for purposes of verification whether the Khata of M/s Baxiram Gurumukhrai in the partnership books had been credited with the sums sent. The accounts of the partnership were not settled on the death of Gurumukhrai. Gurumukhrai had entered into the partnership in his capacity as Karta of M/s Baxiram Gurumukhrai. After the death of Gurumukhrai, when he became the Karta Vasudeolal stepped into his place. He further states that the accounts of the partnership were never settled. Radhakishan (P. W. 4) has proved with reference to the entris of the partnership books various items of expenditure showing that the books were taken from Nagpur to Bilaspur for purposes of verification. This shows that the business was controlled from the shop of M/s. Baxiram Gurumukhrai. That also shows the extent to which the joint Hindu family had contributed to the capital assets of the partnership.

Much emphasis was laid on the fact that the instrument of partnership dated 10th January, 1944 does not show that Gurumukhrai entered into the partnership in the capacity of a Karta, and it was urged that the contract of partnership having been reduced into writing, no parole evidence was admissible to alter or vary the terms of the written deed by reason of section 92 of the Evidence Act. The contention is, in our opinion, without any force. When the partnership was originally formed, the contract was oral. The subsequent deed merely recites the fact of existence of partnership between certain persons. It is, therefore, not possible to spell out from the deed, the capacity in which they had entered into the partnership. It is a settled rule of construction that when a term of a written deed is not clear and unambiguous, it is permissible to take the aid of extrensic evidence to ascertain its meaning.

Indeed, the capacity in which Gurumukhrai entered into the partnership is beyond question. On the death of Gurumukhrai, the partners decided to continue the same business as before, with Vasudeolal stepping into the place of Gurumukhrai, and they had the partnership re-constituted, with the three partners taking 5/4 share each. On 2nd December 1943, a second instrument of partnership (Ex. D-1) was executed by the partners. That deed was prepared by Shri P.P. Deo, an eminent lawyer of Nagpur, under the instructions of Sheobhagwan. The recitals of that deed throw a flood of light as to the capacity in which Gurumukhrai entered into the partnership, and they run as follows:

Executed this 2nd day of December, 1948 between Radhakishan s/o Ramkarnadas Agarwal, merchant, resident of Bilaspur (2) Basudeolal s/o Sagarmal Agarwal resident of Bilaspur and (3) Sheobhagwan s/o Laxminarayan Kejadiwal, merchant, Itwari, Nagpur, witnesseth.

Whereas the first and third partners hereto and Seth Gurumukhari s/o Baxiram Agarwal merchant of Bilaspur were carrying on business in partnership in cloth and yarn at Nagpur under the name and style of Radhakishan Ramsahai and had executed an instrument of partnership dated the 10th January, 1944 and whereas the said Seth Gurumukhari was partner of this firm as the manager of a Joint Hindu Family and whereas on his death on or about 25-5-48, Basudeolal s/o Sagarmal the second partner hereto has become the manager of the said joint Hindu family of Seth Gurumukhrai and as such manager he is entitled to continue as partner of the said firm Radhakishan Ramsahai and whereas on the death of the said Seth Gurumukhari, the parties hereto as partners having equal shares in the profits and losses of the firm as from 25-5-48. This instrument of partnership is executed to record these facts.....

Sheobhagwan was virtually the author of this deed, and being its executant the recitals contained therein are binding on him. [See : AIR 1938 103 (Privy Council) When confronted with the document (Ex. D-1). Sheobhagwan (D.W. 1) admitted the recitals to be true.

There is no reason for us not to act on the testimony of a highly respectable witness, like Shri P.P. Deo. He was not only a lawyer of eminence, but also had wide experience of commercial laws. He states in unequivocal terms that the firm was not dissolved with the death of Gurumukhrai but the business of the firm continued as before, with a partner taken in his place. That is what the parties decided, and that is what is reflected in the written deed. That the partnership was not dissolved is further borne out by the fact that the partners instead of giving a notice of dissolution of the firm started in the year 1943, gave a notice of re-constitution of the firm (Ex. P-4) to the Registrar of Firms, as required by section 63 of the Partnership Act.

From all these considerations, we must unhesitatingly hold that the partnership of the year 1943 formed with Gurumukhrai, was not dissolved by his death on 25th May, 1948, but the partnership continued as before with Vasudeolal as a partner in place of Gurumukhrai and the partnership continued till 26th March 1954 when it stood dissolved with the notice of dissolution served by Sheobhagwan. The plaintiff was, therefore, entitled to a rendition of accounts of the profits of the partnership right from the year 1943, when it was formed, till 26th March, 1954, the date of dissolution. The starring point of limitation for such a suit accrues from the date of dissolution and, therefore, the suit was not barred under Article 106 of the Limitation Act.

Placing reliance on Abdul Jaffar Sahib and Others Vs. K. Venugopal Chettiar and Others, , learned counsel for the appellant contends that the accounts of the old partnership has to be taken not for the purpose of enforcing the claim to the money due as profits in that partnership, but only for the purpose of ascertaining what the capital supplied by the continuing partners was to the new partnership. That contention proceeds on the assumption that when Gurumukhrai died, the partnership came to an end. Oh the view that we have taken that the firm was not dissolved by the death of Gurumukhrai, the contention does not arise. The remaining partners did not bring into existence any new partnership, but the business of the partnership as it existed was continued as before and, therefore, an account has to be taken for the profits of the partnership right from the year 1943 till the date of its dissolution, as a running business.

Then, learned counsel for the appellant contends that Bilaspur Court had no jurisdiction to entertain or try the suit. That contention again rests on the assumption that a new partnership came into existence in the year 1918 on the death of Gurumukhrai. Admittely, when the partnership was initially formed in the year 1943, the contract of partnership was orally made at the shop of M/s Baxiram Gurumukhrai at Bilaspur. The suit is for rendition of accounts of the profits of that partnership. Besides, the instrument of partnership dated 2nd December 1948 was executed at Bilaspur and not at Nagpur. The entire argument rests around the mistake in not striking out the words "at Nagpur" in the document (Ex. D-1). The original deed is not before us. Ex. D-1 is a copy of that deed produced by Radhakishan the uncle-in-law of Sheobhagwan. Evidently, the deed was executed for income tax purposes. The firm used to be assessed on its income by the Income Tax Officer, Nagpur, and its returns used to be filed at Nagpur. Shri P.P. Deo was the legal adviser of the firm. Looking to the stakes involved, it was but natural for the joint Hindu family to safeguard its interest. Vasudeolal (P. W. 5), therefore, states that he got a draft prepared at Bilaspur and sent the same to Sheobhagwan to be settled at Nagpur. The stamp on which the deed was to be executed was with Sheobhagwan and he got the deed (Ex. D-1) drafted by Shri P.P. Deo at Nagpur. The date was kept blank, and later the date 2nd December was inserted when the deed was executed at Bilaspur. According to the usual course of human conduct, Sheobhagwan, who was no one but an employee of the firm, at one time, would have taken the draft to Bilaspur. Shri P.P. Deo does not suggest that the deed was executed at Nagpur. Not a word was put to him as to the place of execution. There is overwhelming evidence to establish that the deed was executed at Bilaspur. Both Vasudeolal (P. W. 5) as well as the attesting witnesses, Kadibhai (P. W. 2) and Radhakishan (P. W. 3) have deposed to that effect. There is nothing for us to disbelieve these witnesses. The attesting witnesses have specifically mentioned the place where they attested it to be Bilaspur. There is no suggestion that the deed was executed at one place and got attested at another. Nothing is brought out in the cross-examination of the witnesses as to impeach their credibility as truthful witnesses. The contract of partnership having taken place at Bilaspur, the Bilaspur Court had jurisdiction to try the suit. Besides, the head office of the partnership was at Bilaspur from where its business used to be controlled and the accounts were also rendered at Bilaspur. Therefore, no question of jurisdiction arises.

Further more, with reference to the objections relating to territorial jurisdiction, section 21 of the CPC enacts that no objection to the place of suing should be allowed by an appellate Court unless there was a consequent failure of justice. The clause "unless there has been a failure of justice" implies that of the time of the objection the suit had already been tried on the merits. The policy underlying sections 21 and 99 of the Code is analogous to that contained in section 11 of the Suits Valuation Act, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it has resulted in failure of justice, and the policy of the Legislature had been to treat objections to jurisdiction, both territorial and pecuniary, not open to consideration by an appellate Court, unless there has been a prejudice on the merits. [See: Kiran Singh and Others Vs. Chaman Paswan and Others, and The Bahrein Petroleum Co. Ltd. Vs. P.J. Pappu and Another, In the present case, the suit has been tried on merits. If the decision on merits is correct, then there can be no interference merely on the ground of want of jurisdiction. We are of the view that the trial of the suit has not caused any failure of justice and, therefore, the judgment under appeal cannot be disturbed. The defendant No. 1, Sheobhagwan, was in no way prejudiced by the trial of the suit at Bilaspur. He applied for and obtained issue of commissions for examination of his witnesses at Nagpur. No complaint is made before us that the procedure adopted by the learned Additional District Judge was not in consonance with the procedure established by law. The suit has been hotly contested by him, and he had ample opportunity to lead his defence. Even assuming that the objection as to place of suing, which had been raised at the earliest opportunity, was wrongly decided, that objection cannot be entertained because there is no failure of justice.

Lastly, the objection as to the form of the decree, can hardly be entertained. The decree is in Form No. 21, Schedule I, Appendix D of the Code of Civil Procedure. The only mistake is that the shares have not been declared, but there is no dispute between the parties that the three partners had 5/4 share each. The preliminary decree shall stand modified to that extent.

The contention of the learned counsel for the appellant that this was a fit case for giving a special direction under Order XX, rule 17 of the Code, that in taking accounts the books of the partnership should be treated as prima facie ''evidence, cannot be accepted. This is not a case of a partnership whose accounts were audited. Merely because for income tax purposes accounts were made every year for filing of income tax returns does not mean that the return of the profits or loss in each year reflected the actual profits earned. No doubt, the accounts are to be taken on the basis of the books of the partnership, but the entries cannot be treated to be correct. It appears to us that the preliminary decree made is in the proper form in leaving all matters of accounts to the discretion of the Commissioner to be appointed during the final decree proceedings. It is well settled that mere balancing of account in a book of accounts does not by itself constitute an account stated, much less does it constitute an account settled, such as the parties would not be entitled to reopen except on special grounds. [See: Gokul Krishna v. Sashimukhi (supra).] We are informed that the Commissioner has already taken accounts and submitted his reports. Under the circumstances, the stage is past for giving any special direction under Order XX, rule 17 of the Code.

Subject to the modification indicated above, the appeal fails and is dismmissed with costs. Counsel''s fee, as per schedule or certificate, whichever is less.