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K. Chandru, J.—W.P.(MD) No. 12434 of 2009 was filed by S.K. Sarfuddin, Managing Partner of Mohideen Andavar Motor Service, Pudukkottai, seeking to challenge an order passed by the Regional Transport Authority, Tiruchirappalli, dated 23.11.2009, by which an application was made by the first Respondent Mrs. Ayisha Amma, dated 3.6.2009 pertaining to transfer of permit in respect of the vehicle bearing Registration No. TN55/R 0760 plying from Srirangam to Keeranur and seeks to set aside the same.
When that writ petition came up on 30.11.2009, this Court held that considering Rule 208 of the Motor Vehicles Rules by which transfer of permit can be considered only on the joint application and in the present case, it was filed by the Widow (R-1) in her individual capacity and also that the permit belonging to a firm and since the petition filed was to come up for hearing, an interim stay was granted. Notice was ordered to the parties. On receiving notice, the first Respondent filed M.P.(MD) No. 2 of 2009, seeking to vacate the interim stay together with supporting counter affidavit, dated 7.12.2009.
Thereafter, the same Petitioner filed W.P.(MD) No. 7013 of 2010, seeking to challenge an order, dated 13.5.2010 passed by the first Respondent Regional Transport Authority, Pudukkottai pertaining to transfer of permit in respect of a vehicle bearing Registration No. TN 55/S 4800 plying on the route from Trichy to Pudukkottai and for quashing the same. The said writ petition came up on 27.5.2010. Notice was taken by the first Respondent. But, in view of the stay granted in the earlier writ petition, an interim stay was also granted in this writ petition initially for a limited period. Thereafter, it was extended from time to time. The contesting Respondent Mrs. Ayisha Amma had filed a vacate stay petition in M.P.(MD) No. 2 of 2010 together with supporting counter affidavit, dated 2.6.2010 and also a typed set of documents in support of her case.
Thereafter, W.P.(MD) No. 13120 of 2010 came to be filed by the same S.K. Sarfuddin in the capacity of Managing Partner of Mohideen Andavar Motor Service. When that writ petition came up on 27.10.2010, this Court ordered notice of motion and Respondents were directed to be served privately. In that case, the Respondent was one S.K.M. Sabir Salik. The Petitioner sought to quash the order of the Regional Transport Authority, Tiruchirappalli, dated 19.10.2010 returning an application for grant of renewal of Fitness Certificate in respect of a stage carriage bearing registration No. TN55/R 0760 plying from Srirangam to Keeranur and after setting aside the same, seeks for a consequential direction to the Regional Transport Authority to renew his Fitness Certificate.
When these matters were grouped together, the counsel for both sides informed that there was a family dispute among the partners of the Bus Transport which had resulted in a suit being filed by one party against the other party. The suit had finally reached this Court by way of two Second Appeals, i.e. S.A.(MD)Nos.597 and 1179 of 2009. If they were heard and disposed of, that will solve the issue pending in the writ petitions. Therefore, with the consent of both parties, those second appeals were also directed to be posted along with these writ petitions. Accordingly, they were also posted after obtaining orders from the Administrative Judge.
In S.A.(MD) No. 597 of 2009, the Appellant is Mrs. Ayisha Amma who is the wife of late Mohammed Kasim. She filed the appeal along with three sons of late Mohammed Kasim. The Defendants are Kader Ibrahim Rowthar and Sons represented by its partner Sarfuddin and M.A.M. Bus Service represented by its partner Sarfuddin and also Sarfuddin, S/o. Kader Ibrahim. In that case, an original suit was filed in O.S. No. 937 of 1993 by the late husband of Mrs. Ayisha Amma, seeking for the grant of decree dissolving Defendants 1,2,4,5 and 6 and also to direct the third Defendant Sarfuddin to render accounts in respect of the income and expenditure, profits, acquisitions, estates and liability of 2nd, 4th, 5th and 6th Defendants and also to direct the 5th and 6th Defendants to render accounts showing the origination of routes, income and expenditure, estate and liability and profit and loss account.
On notice from the Sub Court, Tiruchirappalli, a written statement was filed by the third Defendant Sarfuddin. The same was adopted by the second and fourth Defendants. The fifth Defendant had filed an independent written statement. Thereafter, the suit was transferred to be tried by the Principal District Munsif, Tiruchirappalli and was renumbered as O.S. No. 2637 of 2004. After the suit was taken up, the sixth Defendant had filed a written statement. An additional written statement was filed by the third and fourth Defendants, to which the Plaintiff Mohammed Kasim filed a reply statement.
Before the trial court, on the side of the Plaintiff, 34 documents were filed and marked as Exs.P.1 to P.34. The Plaintiff examined himself as P.W.1.
On the side of the Defendants, 66 documents were filed and marked as Exs.D.1 to D.66 and three witnesses were examined as D.W.1 to D.W.3. D.W.1 was the third Defendant Sarfuddin. The trial court framed nine issues, which reads as follows:
1)Whether the suit was filed against proper parties?
2)Whether an oral partition in the year 1976 between the third Defendant and his sister was true?
3)Whether the Plaintiff was running the first Defendant firm in his individual capacity?
4)Whether the second Defendant firm went to the third Defendant on partition?
5)Whether in the fourth Defendant firm, the Plaintiff was added as a partner?
6)Whether the partnership firm is liable to be dissolved?
7)Whether the Defendants 3,5 and 6 have submitted the statement of account to the Plaintiff?
8)Whether the prayer of the Petitioner can be granted by the court?
9)To what relief the Plaintiff is entitled to?
Further, the following additional issue came to be framed:
10)Whether the suit was barred by limitation?
The trial court on the basis of the evidence (both oral and documentary), in respect of issue Nos. 2,3 and 4 found that the third Defendant had failed to prove that the Plaintiff, third Defendant and their sister had any oral partition in 1976. The Plaintiff did not conduct the first Defendant''s firm in his individual capacity. Only as a managing partner, he was conducting the firm of the first Defendant. Likewise, the second Defendant''s firm was not given to the third Defendant on partition. Till date by giving any paper advertisement or notice, the two partners have not resigned from the partnership and no intimation was given to the Registrar. As per the records, they continue to be partners. On the side of any third party if any demand is placed on the firm, the duty to solve that demand vests both on the Plaintiff and the third Defendant either on the basis of managing responsibility or on their personal capacity till such time they are alive. Therefore, it cannot be said that the firm is a private property of any person.
In respect of issue Nos. 5 and 6, it cannot be said that Defendants 5 and 6 are no way responsible to the Plaintiff and they have no connection whatsoever with the Plaintiff. There was no necessity for Defendants 5 and 6 to submit their statement of income. But the third Defendant is actually a partner of the second Defendant. Therefore, being another partner of the said firm, the third Defendant is bound to submit the accounts to the Plaintiff. He is also responsible for giving account to loan obtained by him and also to pay back the loan for purchasing of bus for the fourth Defendant from the joint family business.
In respect of issue No. 1, the trial court found that the Plaintiff had mis jointed forth and sixth Defendants and also others are made as parties who have no connection with the joint family firm. He had also not imp leaded all necessary partners of those firm. Hence the suit suffered from non joiner of parties.
In respect of the additional issue, it found that the suit was not barred by limitation. So long as no legal steps were taken to bring the partnership to an end and to deny the right of an another partner expressly and remove the partner from the firm, it has to be presumed that the right of one of the partner cannot be time barred. It has to be presumed that the other partner continues to be running the firm as a managing partner and also an agent of the other partner.
In respect of issue Nos. 8 and 9, the finding was that in respect of first and second Defendants establishment, the Plaintiff is entitled to get a relief as against the third Defendant. Hence the suit was decreed and a preliminary decree was passed against the third Defendant. But with reference to fourth and sixth Defendants, no relief can be claimed and the suit was dismissed as against them. With reference to rendition of accounts, a separate action will have to be taken by the Plaintiff.
As against the judgment and decree of the trial court, i.e. Principal District Munsif, an appeal was filed by the original Plaintiff Mohammed Kasim in A.S. No. 286 of 2005 and a cross appeal by the second Defendant M.A.M. Service, a registered firm of partnership represented by its partner Sarfuddin and also by Sarfuddin (D-3) being A.S. No. 33 of 2006 before the Principal District Court. These two appeals were entrusted for disposal by the II Additional Subordinate Judge, Tiruchirappalli and were accordingly renumbered as A.S. No. 237 of 2005 and A.S. No. 30 of 2006 respectively.
The lower appellate court tried both appeals together and passed a common judgment and decree on 15.4.2009. In A.S. No. 30 of 2006, the Appellants M.A.M. Service and Sarfuddin had filed I.A. No. 733A of 2008 for filing an additional written statement. That was allowed by the court on 21.11.2008. In the additional written statement, it was stated that in the oral partition pleaded of the year 1976, certain properties were listed. In that oral partition, the second Defendant firm was given to the third Defendant exclusively. Therefore, the Plaintiff was stopped from contending to the contrary. Hence the suit in its entirety must be rejected. The original Plaintiff being the Respondent in that appeal had filed a counter statement. He had stated that the contentions raised by Defendants 2 and 3 are not maintainable. It is an afterthought. The earlier suit filed between the parties in OS. No. 1185 of 1964 was transferred to the Fast Track Court and renumbered as O.S. No. 4 of 2004. In that written statement, the second Defendant firm was described as joint family firm and sisters were informed that they are not entitled for any share in the joint management. The Defendant had filed a written statement in 1989. In the present suit, he had contradicted the oral partition in the first time in the written statement. Therefore, having took up a contention in the year 1989 and thereafter 13 years after, he has no right to raise any objection. The motor transport firm was started in the year 1972 and not in the year 1976. Likewise, the Plaintiff/Appellant in A.S. No. 237 of 2005 filed I.A. No. 736(A) of 2008 and prayed for marking of additional documents. That application was allowed and documents Nos. 35 and 36 were marked as Exs.A.35 and A.36. In the light of the additional pleadings and reply, an additional issue was framed, i.e. Whether the Plaintiff was stopped in filing the suit in O.S. No. 2637 of 2004?
On the basis of these pleadings and additional pleadings, the lower appellate court found that the findings rendered by the trial court was proper. Hence both appeals were dismissed and the judgment and decree passed by the trial court was affirmed. With reference to the additional issue framed regarding oral partition that took place in the year 1976, the lower appellate court held that the said pleading was made by the Defendant only in the written statement. Therefore, there was no impediment for the suit being conducted by the Plaintiff. Further though the Defendant had pleaded that partition took place in the year 1976, the trial court rejected the same as not being proved by the third Defendant. The lower appellate court agreed with the said finding held that the additional issue framed on behalf of the third Defendant has to be answered against the third Defendant and there is no estoppels against the Plaintiff.
Aggrieved by the judgment and decree, dated 15.4.2009 passed by the II Additional Sub Judge, Tiruchirappalli, both sides have filed Second Appeals. S.A.(MD) No. 597 of 2009 was filed by Smt. Ayeshamma and others as by then, the original Plaintiff Mohammed Kasim died. Being the wife and sons of late Mohammed Kasim, they have come on record to pursue the second appeal.
When S.A.(MD) No. 597 of 2009 came up for admission on 20.08.2009, this Court framed the following two questions of law:
Whether the Courts below erred in granting a decree only in favour of the 3rd Defendant when it is clearly proved that the Defendants 4 to 6 are also the firms which were formed from and out of the income earned from the 1st Defendant firm and 2nd Defendant firm?
Whether the Courts below erred in dismissing the suit in respect of other Defendants when the oral partition pleaded by the 3rd Defendant has been rejected?
Likewise, the Defendants 2 and 3 filed S.A.(MD) No. 1179 of 2009.
When that second appeal came up for admission, this Court framed the following three questions of law on 18.12.2009, which reads as follows:
(a)Is the learned Subordinate Judge right in decreeing the suit for dissolution of first and second Defendants firms and for accounts when it has been clearly admitted by the Plaintiff that both the first and second Defendants firms had been in exclusive and individual management of the Plaintiff and the third Defendant respectively for a very long time?
(b)Is the learned Subordinate Judge correct in rejecting the plea of oral partition when the Plaintiff himself has admitted the exclusive management of the first Defendant and second Defendants firm by Plaintiff and the third Defendant respectively?
(c)When the third Defendant has specifically pleaded for accounts of first Defendant firm in case of passing a decree for the dissolution of the first Defendant firm, is the learned Subordinate Judge correct in not granting the relief of accounting by the Plaintiff in respect of the first Defendant firm when the learned Subordinate Judge has directed for accounting by the third Defendant with respect to the second Defendant firm?
It was thereafter both parties have entered appearance. By the order of the Administrative Judge on 20.1.2009, all matters were grouped together and directed to be posted before this Court.
In S.A.(MD) No. 597 of 2009, the contention of the Appellants was that the court below ought to have found that the Plaintiff and the third Defendant were doing business in partnership and that Defendants 1 and 2 are partnership firm in which originally the Plaintiff and the third Defendant are partners. Once it is found that there was no partition between the Plaintiff and the third Defendant as pleaded by the third Defendant in the year 1976, then the suit ought to have been decreed as prayed for. It must have been noted that Defendants 4 to 6 were formed only from the income generated from and out of the second Defendant firm. It was a partnership firm being run by the Plaintiff and the third Defendant. Defendants 4 to 6 are also partnership firm so that the Plaintiff is entitled to share in those firms. It was further argued that all permits which were owned by the fifth Defendant are initially owned by the Plaintiff. The theory of oral partition if not accepted, then it should have been held that the transfer of route permit and buses in favour of the fifth Respondent by the Plaintiff was only by way of efficient management. The amounts were paid out of the second Defendant firm for running the firm was also proved. The Defendants themselves had stated before the Regional Transport Officer that the transfer was only for effective supervision. There were joint applications filed by the Plaintiff and the fifth Defendant. Therefore, an absolute transfer in favour of the fifth Defendant of all permits and buses had really divested the Plaintiff of its right.
The contention of the Defendant in accepting the transfer of amount from the first Defendant firm for acquiring route permit and buses from one Veerappan is a clear case of admission of fact. They were not considered by the court below. It is also stated that the first Defendant firm in acquiring routes and buses and for their maintenance till formation of fourth Defendant was not specifically denied by the Defendants. The investment for the fourth Defendant firm has been made by the third Defendant by getting money from the first Defendant. It was found by the court below that it was only borrowed. To record such a finding, there was no pleading. The account books produced in respect of the fourth Defendant will show that none of the partners had invested any money for acquisition of route permits and buses. The partners taken by the third Defendant were only working partners. The acquisition of route permit in favour of the fourth Defendant went out only from the first Defendant firm and that the third Defendant had changed the constitution of partnership without notice to the original Plaintiff. Since partners of Defendants 4 to 6 were only close relatives of the third Defendant and that it was established only for the purpose of getting grant from the Regional Transport Officer on an understanding between the Plaintiff and the third Defendant. The Defendants 4 to 6 though are having different names, they are not an independent firm and they were controlled by the second Defendant. Even though these facts were stated by D.W.3, the sixth Defendant was bifurcated from the fifth Defendant.
After the suit for partition was filed by one of the sister of the Plaintiff in the year 1984, the third Defendant himself in his written statement in that suit in the year 1989 had put forth a case of partnership firm between the Plaintiff and himself in respect of Defendants 1 and 2. The third Defendant''s wife though was a partner of other firm and had filed a written statement did not enter into box, but had examined her son on her behalf who was a minor and hardly 4 to 5 years old at the time when the Defendant firm was established. The properties including bus route standing in the name of Defendants 4 to 6 were all properties and asset of Defendants 1 and 2 which were later transferred by third Defendant was not noted by the court below. It was also not noted that the original transport business was done by he father. After his father, Plaintiff and the third Defendant were carrying on the business in partnership. It was specifically the case of the third Defendant that on oral partition, the first Defendant was given to the Plaintiff and that the second Defendant was given to the third Defendant. Since this was not accepted by the court below, then they should have decreed the suit as prayed for. If the plea of original joint family business was accepted, then the plea of oral partition was to be rejected and that the suit ought to have been decreed as originally prayed for. The documents and account books filed by the parties clearly show that Defendants 1 and 2, Defendants 4 to 6 were all partnership firm belonging to the Plaintiff and the third Defendant.
Per contra, it was argued by the Respondents who are Defendants, that the court below had failed to note that there was oral partition in the year 1976. This was pleaded specifically. Due to oral partition, the first Defendant was allotted to the Plaintiff and the second Defendant was allotted to the third Defendant. Since there was no denial by any reply which fact should have been found in favour of Defendants. The family partition was done at the intervention of the respective elders of the family as suggested by the Plaintiff himself. This fact was not denied. The Plaintiff himself in his plaint had stated that he was looking after first Defendant firm individually and exclusively. Since the totality of evidence show that the first Defendant was taken care of by the Plaintiff and the second Defendant was taken care of by the third Defendant itself will prove that it was pursuant to the oral partition. If there was no oral partition, then each one of them had participated in the other ones business. There was no intervention by 17 either of them in the others business and that they are distinct and separate entities. The court below was erroneous in stating that the third Defendant did not plead in the earlier suit in O.S. No. 1185 of 1984 about the oral partition. Therefore, his statement was unbelievable and does not by itself will prove that there was oral partition. The court below did not appreciate the evidentiary value of Exs.B.17, B.4, B.5, B.18 to B.23 to prove that there was an oral partition. In Ex.B.8, the Plaintiff himself had signed the transfer of bus route in favour of third Defendant''s wife. If there was no oral partition, the question of transfer will not arise.
It is in this context, one has to see whether the judgment and decree passed by the court below is liable to be interfered with at the instance of one or the other side?
Mr. AR.L. Sundaresan, the learned Senior Counsel leading for Ms. AL. Gandhimathi, appearing for the Appellant in S.A.(MD) No. 597 of 2009 contended that if there are only two partners constituting a partnership firm and on the death of one of them, the firm is deemed to be dissolved. In case of death of one of the partners of the firm, an obligation is upon the legal representative of the deceased partner to continue the partnership if any. If the legal representatives of the deceased partner were not at all interested in continuing the firm or constituting a fresh firm, they cannot be asked to continue the partnership as there is no legal obligation upon them to do so. The partnership is not a matter of heritable status, but purely one of contract. For this purpose, he relied upon a judgment of the Supreme Court in Mohd. Laiquiddin and Another Vs. Kamala Devi Misra (Dead) by L.Rs. and Others, .
In this context, the trial court had found that Defendants 1 and 2 firm were continued to be partnership firm and only the management of each firm were separately attended to. Even if one partner is managing the firm of the other partner who does not take any role in the management by itself will not become a separate property. It has to be taken only as a firm property. The partner who is managing the firm is the manager even in respect of the other partner, who is not having any role. Since the oral partition that took place in the year 1976 was not proved by the third Defendant, it has to be presumed that the Plaintiff was not conducting the first Defendant on exclusive basis and even the second Defendant was not given to the third Defendant.
The lower appellate court in paragraphs 25 and 26 had clearly given a finding that there was no oral partition and the evidence of D.W.2 to that effect could not be proved as the third Defendant never made any statement in the written statement. For the first time only during the trial, this theory was brought in. Therefore, there was no evidence to show that there was separate allotment of business of the first Defendant to the Plaintiff and the second Defendant to the third Defendant. Since both the courts on the basis of appreciation of evidence came to this conclusion, this Court is not inclined to interfere with the said findings. Therefore, the two questions of law framed in S.A.(MD) No. 597 of 2009 do not merit any attention.
Similarly, in the second appeal in S.A.(MD) No. 1179 of 2009, Mrs.N. Krishnaveni, learned Counsel appearing for the Appellants contended that the oral partition pleaded in the year 1976 should have been accepted by the court below. In such matter, technical consideration should give way to peace and harmony in the enforcement of family arrangement or settlement. For this purpose, reliance was placed upon a judgment of the Supreme Court in Hari Shankar Singhania and Others Vs. Gaur Hari Singhania and Others, . The learned Counsel also referred to the very same judgment in Mohammad Laiquiddin''s case (cited supra) for the purpose of contending that dissolution of partnership firm on account of death of one of the partner is subject to contract entered into between the parties. Then, the learned Counsel contended that decreeing the suit for dissolving the firm of Defendants 1 and 2 and for rendition of account was incorrect, since it was established that Defendants 1 and 2 were in exclusive possession. She had also contended that since the third Defendant had pleaded for accounts of the first Defendant''s firm in case of passing decree for dissolution of the first Defendant firm, the lower appellate court''s direction to rendition of accounts by the third Defendant in respect of second Defendant''s firm is erroneous.
With reference to oral partition, already the case of the Defendants has been rejected by this Court. It is found from paragraph 46 of the judgment of the lower appellate court that the Plaintiff had filed a suit that both Defendants 1 and 2 were under the management of the third Defendant. Only on that basis, the Defendants 1,2 and 4 to 6 should render accounts. But in his evidence, he had 20 stated that the first Defendant firm was under his control. Therefore, he could not have claimed any relief against himself. But the third Defendant had at no point of time claimed any relief in respect of the first Defendant''s account. The findings of the trial court in this regard was upheld. Therefore, the questions of law in S.A.(MD) No. 1179 of 2009 in respect of issue No. 3 does not merit any attention.Further sitting in the jurisdiction u/s 100 of C.P.C., this Court is not inclined to interfere with the well reasoned order of the courts below. The questions of law framed have been squarely answered by the courts below.Hence both the second appeals are liable to be dismissed.
In view of the dismissal of the second appeals, it has to be seen whether there are any merit in the writ petitions filed by the third Defendant in W.P.(MD)Nos.12434 of 2009 and 7013 of 2010 and the second Defendant in W.P.(MD) No. 13120 of 2010?
During the pendency of proceedings, Mr. M. Palani, the learned Counsel appearing for the Petitioner in all writ petitions brought to the notice of this Court that an order passed by the Regional Transport Authority, Pudukkottai stating that the permit for the vehicle bearing registration No. TN55/S 4800 cannot be used beyond 31.7.2010. He had also brought to the notice a subsequent notice given on 4.8.2010 asking the parties to appear for an hearing of dispute regarding transfer of permit in view of the stay granted by this Court. Though on behalf of the son of S.K. Mohammed Kasim, a counter affidavit in W.P.(MD) No. 13120 of 2010 was filed stating that in view of the death of his father, the partnership was automatically dissolved and therefore, the second Defendant firm should not be allowed to be operated, already this Court has upheld the judgment and decree of the lower appellate court, wherein dissolution of Defendants 1 and 2 has been ordered. In respect of second Defendant, the third Respondent was directed to submit profit and loss account. With reference to rendition of account, the Plaintiff can take an appropriate action, but the claim as against Defendants 4 to 6 was rejected. Therefore, the authorities will have to abide by the order passed by this Court in the two second appeals. The parties are allowed to work out their rights in terms of the judgment and decree passed in O.S. No. 2637 of 2004, dated 13.6.2005.
In view of the above, both the second appeals will stand dismissed and three writ petitions also will stand dismissed. However, the parties are allowed to bear their own costs. Consequently, connected miscellaneous petitions stand closed.