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TMI Blog1954 (10) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... leged that mourn Kawadji and Kothari were acquired in partnership by Rai Bahadur Chandiprasad, predecessor- in-title of the Plaintiff and Defendants Nos. 1 and 2 and Seth Sidhakaran, father of Defendant, No. (sic), each having a half share in the same. The home-farm laud was cultivated by them in partnership and they also carried on money-lending and grain-lending business there in partnership. The income from, the villages and cultivation was utilized by thou for purposes of the business of the partnership. Rai Bahadur Chandiprasad died in 1906 bequeathing all his property to the Plaintiff and Defendants 1 and 2 by a will. As the Plaintiff and Defendants 1 and 2 were then minors, trustees appointed under the will continued the partnership with Seth Sidhakaran till the business was handed over to the Plaintiff and Defendants Nos. 1 and 2 on their attaining majcrity Sidhakaran died on 24-8-1932. He was the managing partner at that time, and alter his death his sun Chainkaran, Defendant, No. 3, became the managing partner of the partnership and continued to be so till the date of suit. 4. The defence of the Defendants Nos. 1 and d was that the village property was held in co-o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is it necessary to substitute the date 24-8-1933 in place of the year 1895 in the relevant direction? 11. As regards point (i), the learned Counsel for the Appellant urges that on 23-4-1986 Shri. G.Y. Deo, pleader (sic) a notice (Ex. 3-D-l) on behalf of his clients Girjashankar and his brothers (i.e. on behalf of the Plaintiff and Defendants Nos. 1 and 2). This n(sic) amounts to a notice within the meaning of Section 43, Partnership Act, and therefore by virtue of that notice the partnership stood dissolved on 23-4- 1936. In the alternative, it is contended that if this notice does n it effect dissolution of the partnership, the reply, dated 28-4-1936, (Ex. 3-D-2) of the Appellant to that notice is a notice of dissolution of the partnership within the meaning of Section 43, Partnership Act, and the partnership stood dissolved alter the expiry of the one week's period mentioned therein. This suit brought on 28-11-1942 for accounts of a dissolved partnership is, therefore, barred by time under either Article 106 or 120, Limitation Act. 12. It is not possible for us to accept this contention of the Appellant. Neither of the two notices is, in our opinion, a notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t proceed with certain construction works, and that failing it they would take action as they may be advised. This certainly is not a notice for dissolution of the partnership within the meaning of Section 43, Partnership Act. 17. In the reply dated 28-4-1930 to the aforesaid notice of 23-4-1930 the Appellant states that the Plaintiff and Defendants Nos. 1. and 2 while in charge of the management of the partnership business failed to maintain accounts properly, curried on the management of the estate and constructed tanks, buildings, well, etc. without consulting the Appellants. He was managing the affairs with their cooperation, The office was kept at Kothari and all of them were entitled to go there and see the Construction works and accounts. Though the Plaintiff and Defendants Nos. 1 and 2 had promised that they would be separating their shares, they had done nothing in that matter. There was no contract to take previous sanction of the other partners by the managing partner, nor was it understood between the parties that such previous permission should be obtained. The repairs were being done to properties held jointly by the parties. The Appellant had a halt share ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. It has not been established that the accounts were at any time previously asked by the Plaintiff or Defendants Nos. 1 and 2 or by any one or more of them from the Appellant, and that the Appellant had refused to render them. On the other hand, it is clear from the aforesaid two notices that the Appellant had informed the Plaintiff and Defendants Nos. 1 and 2 that the account books of the firm were kept ready at the office and could be inspected by any of the partners. Article 120 or any other provision of the Limitation Act is, therefore, not attracted by the facts and circumstances of the instant case. 22. We, therefore, hold that die suit is not I barred by time. 23. As regards point (ii), it is urged by the learned Counsel for the Respondents that under Section 42 Partnership Act, normally a partnership is dissolved by the death of a partner, unless there be a prior contract to the contrary. No such contract is pleaded by the Appellant. The partnership existing between Rai Bahadur Chandiprasad and Sidhakaran, therefore, came to an end in the year 1906 on account of the death of Rai Bahadur Chandiprasad. The business that was carried on by the trustees un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ship cultivation and the grain-lending and money-lending business also as per previous agreement. He and his father have been the Lambardars also. The lending business and cultivation were carried on with a view to earn and share the profits. 25. This plea is in substance a plea of one continued partnership, in spite of the intervening deaths of two partners, at the time of the death of each of those partners the legal representatives of the deceased partner stepping into his shoes. A plea in this form, in our opinion, sufficiently raises a plea of existence of an agreement between the partners to the effect that the death of a partner shall not cause dissolution of the partnership. If the other side wants to dispute the continuance of the partnership in spite of the death of a partner then that party has to plead so specifically. No such plea is raised in the present case. 26. It is a well principle of law that such an agreement can be interred from the conduct of the parties. 27. In Gokul Krishna Das v. Sashimukhi Das 16 Cal WN 299 (A) a partnership was entered into between the husband of the Plaintiff and the Defendants. The husband of the Plaintiff died i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant case, though there is no direct evidence of an express agreement to the effect that the partnership would not be dissolved on account of the death of a partner, the evidence on record establishes that at the time of the death of each of the two partners the heirs of the deceased partner stepped into his shoes. This course of conduct between the, parties is, in our opinion, sufficient to raise an inference that there was a contract between them that the partnership was not to be I dissolved on the death of a partner. 31. Even assuming that such a contract cannot be inferred from the evidence on record, in our opinion, on account of the fact that the legal representatives of the deceased partners Rai Bahadur Chandiprasad and Sidhakaran were admitted as partners the date of dissolution of the partnership in the instant case would be the date of suit. In this respect the following rule laid down by their Lordships of the judicial Committee of the Privy Council in Mst. Jatti v. Banwari Lal AIR 1923 P.C. 136 138 D) fully governs this case: On the death of Rup Chand, the Plaintiff's husband, the partnership was dissolved and a right to an accounting arose. B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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