Madras High Court
Kanagammal vs Theatre Abirami on 20 July, 2009
Author: M.M.Sundresh
Bench: M.M.Sundresh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20/07/2009
CORAM
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
A.S.No.737 of 1993
Kanagammal ... Appellant/Plaintiff
Vs.
1.Theatre Abirami
Partnership Concern
through its Managing Partnership
S.Nagalingam.
2.S.Nagalingam
3.V.Murugesan
4.S.Perumal
5.Athimoolam
6.Ragamathullah
7.Muhilan Automobiles
through its prop.Mahalingam
8.Srinivasan
Prop. of Appar Electronics.
9.Ramanthan
10.Vijayakumar
Prop. of Popular Auto centre,
Abirami Theatre Buildings,
Dindigul.
11.Ravi @ Suresh
12.Korakan Chettiar
13.Natesan
14.Narayanasamy Naidu,
Coffee Bar at Abirami Theatre
Buildings, Dindigul.
15.Perumal Thevar
16.Krishnaveni
(R16 brought on record as Lrs. of
the deceased R4 as per order of the
Court dated 31.03.98 in CMP.4021/98
by SJJ and R15 impleaded as party
respondent as per order dated 02.02.1994
in CMP.17470/93 by KSJ)
... Respondents/Defendants
Prayer
This First Appeal has been filed under Section 96 of the Civil
Procedure Code, against the judgment and decree made in O.S.No.226 of 1986 dated
27.04.1993, on the file of Additional Sub Court, Dindigul.
!For Appellant ... Mr.S.Parthasarathy
(Senior Counsel)
for Mr.D.Rajendiran
^For Respondent... Mr.S.Subbiah
Nos. 1 & 2
For Respondent ... Mr.P.Velmurugan
No.3
For Respondent ... Mr.R.Nandakumar
No.14
For Respondent ... Mr.K.Sridhar
No.15
For Respondent ... Mr.K.Govindarajan
No.16
:JUDGMENT
The appellant herein, who is the plaintiff in the suit has preferred this appeal against the judgment and decree made in O.S.No.226 of 1986 dated 27.04.1993, on the file of Additional Sub Court, Dindigul. The suit has been filed for dissolution of the partnership and for rendition of accounts.
2. The case of the plaintiff in a nutshell is as follows:
The first defendant firm is a partnership firm. The said firm has been started in pursuant to the registered partnership deed dated 14.06.1979 entered into between the plaintiff and the defendants 2 to 4. In pursuant to the same, the theatre has been constructed and run in the name of 'Abirami Theatre'. The plaintiff has paid the share of Rs.2,20,000/-. The second defendant is the Managing partner. Shops have also been constructed by the firm. The defendants 5 to 14 are the tenants of the shops. Since the second defendant has refused to share the profit and give accounts inspite of the request made by the plaintiff on several occasions, the present suit has been filed for dissolution of the partnership firm and rendition of accounts. The partnership firm being registered, under Partnership Act 1932, the suit will have to be decreed as prayed for.
3. The case of the second defendant is as follows:
The second defendant filed a written statement stating that it is true that the plaintiff has paid a sum of Rs.2,20,000/-. It is also true that the plaintiff and the defendants 2 to 4 are partners. It is not true that the plaintiff was not given a share of the profit. It is also not true that the defendant has refused to give the accounts. The partnership is not one "at will". The suit is liable to be dismissed, since no notice has been given to the defendant. It is further stated that the defendants 5 to 14 are unnecessary parties.
4. The defendants 3 and 4 have filed a separate written statements. They have also supported the case of the plaintiff and wanted the dissolution of partnership. The defendants 5, 6, 8 to 14 filed written statements stating that they are only tenants and hence, they are unnecessary parties.
5. The following issues have been framed by the trial Court which are as follows:
1) Is the plaintiff entitled to seek dissolution of the partnership firm?
2) Is the second defendant liable to give the accounts?
3) Is the suit liable to be dismissed for non joinder of necessary parties?
4) Is the suit liable to be dismissed for adding unnecessary parties?
5) Is the Court fee correctly paid?
6) Are the particulars about the suit properties correct or not?
7) What is the relief, the plaintiff is entitled to?
6. On behalf of the plaintiff, P.W.1, who is the husband of the plaintiff was examined and the second defendant has been examined as D.W.1. The plaintiff has marked Exs.A-1 to A-9 and the second defendant has marked Exs.B-1 to B-28. The Court below on an interpretation of Ex.B-1 has held that the partnership firm is not one of partnership at will and thus, dismissed the suit.
7. Being aggrieved of the same, the plaintiff has preferred the present appeal.
8. The only point of determination in the appeal is as to whether the partnership entered into between the plaintiff and the defendants 2 to 4 is one of partnership at will or not.
9. Heard the learned counsels for the appellant as well as the respondents.
10. The learned counsel for the appellant submitted that the partnership is one at will and the same can be clearly seen on perusal of Ex.B-1 itself. The learned senior counsel further submitted that Clause (3) of Ex.B1 specifically says that the partnership is one of partnership at will. The learned senior counsel further submitted that there is no ambiguity in Ex.A-1 and therefore, simple and plain meaning will have to be given. According to the learned counsel, clause (7) only speaks about the condition that the share of a partner cannot be sold to any other person. Similarly, Clause (10) only speaks about retirement from the partnership by taking the share. Hence, it is contended that even under Clause (7) and Clause (10), there is no specific express or implied condition fixing the time limit or for determination of the partnership. Hence, it is contended that the partnership being a partnership at will, the appeal is liable to be allowed.
11. On a contrary, the learned counsel for the respondents submitted that the suit is not one of partnership at will. According to the learned counsel, a mere reading of Clause (7) and Clause (10) would clearly show that it is not a partnership at will and therefore, the partnership will continue till there are two partners. The learned counsel further submitted that Clause (3) should be construed as contrary to Clause (7) and Clause (10) and therefore, applying the principles under Sections 95 and 97 of the Indian Evidence Act, 1872, it is to be held that Clause (7) and (10) coupled with evidence available on record would prevail over Clause (3). Hence, he prayed for the dismissal of the appeal.
12. In order to decide the issue raised in this case, one as to look into the document itself. Clause (3), (7) and (10) of Ex.B-1 has extracted hereunder for useful reference:
3. if Tl;L tpahghuKk; xU n&;lfhyTl;lhf elj;JtuBtz;oaJ.
7. ek;kpy; vtBuDk; jdJ gA;if btspahl;fSf;F &f;fpuak; bra;af;TlhJ.
10. ek;kpy; ahBuDk; i& Tl;oypUe;J tpyfpf;bfhs;s mgpg;gpuhag;gl;lhy; mg;go tpyfpf;bfhs;Sk; Tl;lhsp 3 khj Kd;jtiz Behl;O!; vGj;J Kyk; kw;w Tl;lhspfSf;F bfhLj;J me;j tU& bfLtpy; fzf;if Koj;Jf;bfhz;L jdJ gA;if kw;w Tl;lhspfsplBk bfhLj;Jtpl;L bry;y Btz;Lk;. fzf;fpy; cs;s bjhifia kl;LBk bgw;Wf;bfhz;L tpyfpf;bfhs;s Btz;Lk;.
13. On a perusal of the above said provisions, make it clear that Clause (3) in clear terms says that it is a partnership at will. Similarly, Clause (7) says that a share of a partner cannot be sold to anyone outside the partnership. Likewise, Clause (10) speaks about the mode of payment to be given to the retiring partner.
14. Indian Partnership Act 1932 speaks about the mode of determining the existence of the partnership. Section 7 of the said Act defines partnership at will. Similarly, Section 32 of the said Act speaks about retirement of a partner. Clause (39) of the Act provides for dissolution of partnership firm. Hence, a reading of the above said provisions would clearly shows that the "retirement of a partner" is distinct and separated from the "dissolution of a firm". It also makes it clear that the provisions for retirement of a partner is not a provision for determination of a partnership firm within the meaning of Section 7 of the Act. For the better appreciation and understanding of the case, the above said provisions are extracted hereunder:
"6. Mode of determining existence of partnership.-In determining whether a group of persons is or is not a firm, or whether a person is or is not a partner in a firm, regard shall be had to the real relation between the parties, as shown by all relevant facts taken together.
Explanation 1.-The sharing of profits or of gross returns arising from property by persons holding a joint or common interest in that property does not of itself make such persons partners.
Explanation 2.-The receipt by a person of a share of the profits of a business, or of a payment contingent upon the earning of profits or varying with the profits earned by a business, does not of itself make him a partner with the persons carrying on the business;
and, in particular, the receipt of such share or payment-
a)by a lender of money to persons engaged or about to engage in any business,
b)by a servant or agent as remuneration,
c)by the widow or child of a deceased partner, as annuity, or
d)by a previous owner or part owner of the business, as consideration for the sale of the goodwill or share thereof, does not of itself make the receiver a partner with the persons carrying on the business.
7. Partnership at will.-Where no provision is made by contract between the partners for the duration of their partnership, or for the determination of their partnership, the partnership is "partnership at will".
32. Retirement of a partner.-
(1) A partner may retire,-
a)with the consent of all the other partners,
b)in accordance with an express agreement by the partners, or
c)where the partnership is at will, by giving notice in writing to all the other partners of his intention to retire.
(2) A retiring partner may be discharged from any liability to any third party for acts of the firm done before his retirement by an agreement made by him with such third party and the partners of the reconstituted firm, and such agreement may be implied by a course of dealing between such third party and the reconstituted firm after he had knowledge of the retirement. (3) Notwithstanding the retirement of a partner from a firm, he and the partners continue to be liable as partners to third parties for any act done by any of them which would have been an act of the firm if done before the retirement, until public notice is given of the retirement:
Provided that a retired partner is not liable to any third party who deals with the firm without knowing that he was a partner.
(4) Notices under sub-section (3) may be given by the retired partner or by any partner of the reconstituted firm.
39. Dissolution of a firm.-The dissolution of partnership between all the partners of a firm is called the "dissolution of the firm".
15. A perusal of Section 7 would show that a partnership would become a partnership for the duration of their partnership or for the determination of their partnership. Hence, in the absence of any provision fixing the specific durations for the partnership concerned and also for determination of the partnership , a partnership would be a partnership at Will. Similarly, a perusal of Section 32 of the said Act would show that the mode of retirement of a partner and his liabilities.
16. The word 'partnership at will' has been defined in the Black Dictionary is as follows:
A partnership that any partner may dissolve at any time without thereby incurring liability.
A partnership where no provision is made by contract between the partners for the duration or determination of their partnership [S.7, Indian Partnership Act (9 of 1932)] In the case of a partnership at will, each partner is entitled to dissolution; it is a legal right under the Indian Contract Act."
Hence, it is seen that a partnership at Will would be one in which on the exercise of the discretion of one of the partners, the partnership is liable to be dissolved. The word 'determinable' has been defined is as follows:
"determinable. adj. 1. Liable to end upon the happening of a contingency; terminable <fee simple determinable>. 2. Able to be determined or ascertaine <the deliver date is determinable because she kept the written invoice>"
Hence, the reading of the said definition would show that upon the happening of a contingency, the partnership would be determined. In other words, upon the happening of such contingency alone, the partnership can come to an end.
17. Principles for interpretation:-
Now the question to be considered in this case is as to how Ex.B-1 will have to be interpreted. As seen in the earlier Clause (3) in specific terms says that the partnership is one at will. Clause (7) speaks about the condition for alienating a partner's share and Clause (10) speaks about the payment to be made for the retired partners that a document sought to be interpreted is the one which should be guided by the terms of the document alone. The attendant circumstances could be looked into only to gather the intentions. When such an intention is explicit in the document itself, then there is no scope for looking at the attendant circumstances. It is further to be seen that once a party enters into a contract, then the word stated therein will have to be given its due meaning. In other words, no part of the contract can be redundant unless it is contrary to any statute. Further, a contract of a partnership should be read as a whole and the intention of the parties should be gathered from use in the contract by adopting harmonious constructions can all the Clauses therein. Thus, the natural, ordinary and sensible meaning will have to be made while construing the document. Hence, a document will have to be considered reasonably. Therefore, on a plain reading of Clause (3), this Court is of the opinion that the document in Ex.B-1 is nothing but a partnership at Will. Further, by a harmonious construction of Clauses (7) and (10) one can only interpretate the document as one of partnership at will.
18. The contention of the learned counsel for the respondents that when there is a conflict between the two parts of the document, that part of the document which is supported by evidence will have to be taken into consideration cannot be accepted. This Court is of the opinion that in view of the specific terms of Ex.B-1 and for the reasons stated above, the said contention of the learned counsel for the respondent seeking reliance upon Sections. 95 and 97 of the Indian Evidence Act cannot be accepted. In the judgment reported in 1992 SC 1238 (Tamboli Ramanlal (dead) by L.Rs., Vs. Ghanchi Chimanlal Keshavlal (dead) by L.Rs. and another), the Hon'ble Supreme Court has held that the Court should be guided by the terms of the document alone, when the intention is explicitly expressed in the document itself. Hence, there is no scope for looking at other circumstances. Similarly, in the judgment reported in 2000 (3) SC 723 (M.Arul Jothi and another Vs. Lajja Bal (Deceased) and another), the Hon'ble Supreme Court has held that the document entered into between the parties, every word stated therein will have to be given itself due meaning and no part of the said document cannot be redundant. In the judgment reported in AIR 1991 SC 1020 (M.O.H.Uduman and others Vs. M.O.H.Aslum), the Hon'ble Supreme Court has held that the guiding Rule in interpretating the document has become natural, ordinary and sensible meaning. It is also been held in 1965 (56) I.T.R. 588 (Commissioner of Income-Tax Vs. Shah Jethaji Phulchand) that a partnership deed should be construed reasonably. The Hon'ble High Court in 1970 (I) MLJ 512 (V.M.Nissar Ahmed and others Minors by Guardian and next friend V.S.Abdul Munaf Saheh Vs. Rahima Bi and others) has held that attempt should be made to harmonise the several provisions of the instrument. Hence, on a consideration of the said judgments, this Court is of the opinion that Clause (7) and (10) cannot be interpretated to mean that the partnership is not one of partnership at will.
19. As seen earlier, Section 7 of the Partnership Act 1932, makes it clear that two conditions must be satisfied for holding that a partnership is a partnership at will. The first condition is that there should be no provision in the contract between the parties for the duration of the partnership and the second one being, there shall not be any provision for the determination of the partnership. It is also true that there can be an implied agreement providing the determination of the partnership and also, fixing the time limit. As held earlier, there is no implied agreement in the present case providing for the determination or for fixing the time for the partnership.
20. A further reading of the Section 7 of the Act clearly shows that it refers to a provision for the duration "their" partnership and not on "the" partnership. This could only mean that the deed of partnership must contain a provision for the duration of the partnership consisting of all the partners concerned. Similarly, the determination is to be "their" partnership and not a partnership from which one of the partners has to be excluded. The said principles has been considered by the Hon'ble High Court of Gujarat in the judgment reported in AIR 1968 Gujarat 157 (V 55 C 21) (Keshavlal Lallubhai Patel and others Vs. Patel Bhailal Narandas and others). Similarly, mere reading of Clause B in the deed provides that for retirement of a partner is not a provision for determination of partnership, within the meaning of Section 7. In this connection, it is useful to refer the judgment of the Hon'ble High Court of Gujarat reported in AIR 1968 Gujarat 157 (V 55 C 21) (Keshavlal Lallubhai Patel and others Vs. Patel Bhailal Narandas and others) in (B) which is as follows:
"(B)Partnership Act (1932), Sections 39 and 32-- Dissolution of Partnership - Retirement of a partner does not ipso facto lead to dissolution."
The said judgment of the Gujarat was also followed by the judgment of the Bombay High Court in AIR 1976 Bombay 405 (Iqbalnath Premnath Anand Vs. Rameshwarnath Premnath Anand and another), wherein, it has been held as follows:
43. It is interesting to notice that what Section 7 of the Act refers to is not a provision for the duration of the partnership but a provision for the duration of their partnership. This means that the deed of partnership must contain a provision for the duration of the partnership consisting of all the partners concerned that is to say a partnership in which each of the existing partners is a partner. Similarly, the determination is to be of their partnership and not a partnership from which one of the partners has been excluded.
44. It would appear that an argument of the nature, as advanced by Mr.Meghani before me, was also advanced before the Gujarat High Court in Keshavlal Lallubhai Patel Vs. Patel Bhailal Narandas, AIR 1968 Guj 157.
45. Bhagwati, J. (as he then was) after discussing the principles for construction of a partnership at will including the terms which may be implied held that the retirement of a partner from a firm did not have the effect of dissolving the firm so that it could not be said that it would amount to determination of the partnership inter se between all the partners. The learned Judge observed that the retirement of a partner merely severs the partnership between the retiring partner and the continuing partners leaving the partnership amongst the continuing partners unaffected and that the firm continues with the changed constitution comprising the continuing partners. The learned Judge then observed as follows:
"What Section 7 requires is that there should be no provision made by contract between the partners for the duration of their partnership or for the determination of their partnership. The important words are "their partnership"
and since the pronoun "their" in the context stands for the 'partners', these words have clearly reference to partnership between all the partners and not partnership of any one partner with the rest. A provision for retirement of a partner which has the effect of disrupting the partnership only as between the retiring partner and the continuing partners and not as between all the partners inter se cannot therefore be regarded as a provision for determination of "their partnership" within the meaning of Section 7.
46. I find myself in respectful agreement with these observations and in my view any provision as to the retirement of a partner whether conditional or otherwise, whether at a moment's notice or of a specified period and whether on taking accounts or without taking accounts, cannot be considered to be a provision for determination of their partnership within the meaning of Section 7 of the Act."
21. The Hon'ble Supreme Court has also held that the judgment reported in 2003 (3) SCC 445 (Pamuru Vishnu Vinodh Reddy Vs. Chillakuru Chandrasekhara Reddy), which is extracted hereunder for useful reference:
"Use of the word "retire" in Section 32 of the Act is confined to cases where a partner withdraws from a firm and the remaining partners continue to carry on the business of the firm without dissolution of partnership as between them. Where a partner withdraws from a firm by dissolving it, it shall be dissolution and not retirement. Retirement of a partner from a firm does not dissolve it, in other words, it does not determine partnership inter se between all the partners. It only severs the partnership between the retiring partner and continuing partners, leaving the partnership amongst the latter unaffected and the firm continues with the changed constitution comprising of the continuing partners. Section 32 provides for retirement of a partner but there is no express provision in the Act for the separation of his share and the intention appears to be that it would be determined by agreement between the parties. Section 37 deals with rights of outgoing partners. Although the principle applicable to such cases is clear but at times some complicated questions arise when disputes are raised between the outgoing partner or his estate on the one hand and the continuing or surviving partners on the other in respect of subsequent business. Such disputes are to be resolved keeping in view the facts of each case having due regard to Section 37 of the Act. Section 48 deals with the mode of settlement of accounts between the partners after dissolution of the partnership firm."
The reading of the said judgment would clearly show that the word "retire" as mentioned in Section 32 of the Act cannot be construed as the one, meaning to dissolution of the firm. In other words, the retirement of a partner from a firm only would severe between the partnership between the retiring partner and continuing partner but it does not end the partnership. Hence, this Court is of the opinion that in the present case, Clauses 7 and 10 of Ex.B-1 cannot be intrepretated to say that the partnership is not a partnership at Will.
22. On a perusal of the said judgments, this Court is in respectable agreement with the same for the reason that Section 7 speaks only for duration of the partnership in which each of the existing partner is a partner and the availability of a clause in a document for retiring would not be looked into for dissolution of a partnership. In the above said judgments, the Hon'ble High Court have considered the judgments of the Hon'ble Supreme Court reported in AIR 1961 SC 1225 (Karumuthu Thiagarajan Chettiar and another Vs. E.M.Muthappa Chettiar).
23. In the case on hand, the second respondent has filed a caveat and the caveator has served the appellant. Hence, the requirements of notice under Section 43(2) of the Partnership Act 1932 has been duly complied with. It is well settled principle of law that a partnership deed should be dissolved from the date on which the notice was served on the defendants. Moreover, in the present case, the defendants 3 and 4 have also filed written statement seeking dissolution of the partnership firm.
24. Hence, on a consideration of the facts of the case, this Court holds that the partnership is one of partnership at Will and therefore, the appellant is entitled to succeed in the appeal. Hence, the first appeal is allowed as prayed for and the judgment and decree made in O.S.No.226 of 1986 dated 27.04.1993, on the file of Additional Sub Court, Dindigul is hereby, set aside.
25. At the time of delivering the judgment, a mention has been made by the learned counsel for the third respondent that due to oversight, he could not make his submissions and therefore, he may be permitted to make his submissions. Accordingly, the learned counsel was permitted to place his arguments.
26. The learned counsel for the third respondent filed an affidavit before this Court dated 16.07.2009, stating that at the time of earlier proceedings, the third respondent herein, took a wrong stand since he was only 46 years and he was not able to think about his future at that time. According to the third respondent, now he has realized that the plaintiff may be directed to retired from his partnership in accordance with Clause 10 of the Partnership deed. It is further submitted that in pursuant to the affidavit, the third respondent is withdrawing his statement made before the Court below.
27. The learned counsel for the third respondent based upon the said affidavit has made his submissions contrary to the earlier stand taken in the written statement filed in the suit. The learned counsel submitted that there is no serious allegations against the defendants 1 and 2 and the second defendant has been acquitted honorably in the Criminal Court and hence, in the event of this Court agreeing with the appellant, the relief made may be modified to one of retirement instead of dissolution of the firm. The learned counsel has relied upon the judgment reported in AIR 1986 AP 167 (M.Satyanarayana Murthy and others Vs. M.Venkata Bala Krishnamurthy), 2000 (4) SCC 368 (V.H.Patel & Company and others Vs. Hirbhai Himabhai Patel and others), 2008 (5) CTC 481 (1.Hindustan Life Care, rep. by its Partner, Gopinath N., 2.Mrs.R.S.Smiline Rushidha, 3. Mr.Gopinath N., 4.Mr.N.Sivaramakrishna Vs. 1.Mr.N.Ramesh, 2.The Hon'ble Sole Arbitrator, Justice S.S.Subramani) in support of his contentions that in a given case, the Court can order retirement of a partner instead of dissolution of the firm. Hence based upon the same, the learned counsel has sought for a prayer that in the event the appeal being allowed, the same has to be converted to one of retirement of the partnership.
28. The learned counsel for the appellant submitted that mere filing of the affidavit before the Court today i.e. on 20.07.2009 cannot be a ground for taking different stand than the one taken earlier before the trial Court. According to the learned counsel, the said procedure is unknown to law and a party after proceeding before the trial Court is over cannot be allowed to take totally contrary stand. The learned counsel further submitted that the judgments relied upon by the learned counsel for the third respondent do not apply, since they do not deal with "partnership at will". Hence he prayed that the appeal will have to be allowed.
29. As rightly contended by the learned counsel for the appellant, a stand taken before the trial Court cannot be allowed to be changed at the whims and fancies of a party by way of filing an affidavit before the Court at the time of delivering the judgment. Having taken a stand and without even amending the written statement, such a plea cannot be allowed and even a perusal of the affidavit would show that totally unconvincing reasons given for taking such a stand. Obviously, the party to the affidavit wants to take a different stand due to the reasons best known to him. The change in relationship of the parties cannot be a ground for taking different stand. Hence, this Court is of the opinion that the said affidavit cannot be allowed and hence, the request made upon the said affidavit is hereby rejected.
30. In so far as the judgments relied upon by the learned counsel for the third respondent are concerned, as contended by the learned counsel for the appellant, they are not applicable to the present case on hand. The issue involved in those cases are the effect of retirement of a partner namely, whether consequent to the said retirement, the partnership would be dissolved or allowed to continue. Similarly, the Courts were asked to interpret the provisions of Section 44 of the Indian Partnership Act, 1932. A reading of Section 44 would show that the Court may dissolve a firm on the ground mentioned therein. However, in the present case, the issue involved is as to whether the partnership firm is a partnership at will or not. Therefore, this Court is of the opinion that the said judgments are not applicable to the facts on hand. In fact, the judgment relied upon by the learned counsel for the third respondent reported in 2008 (5) CTC 481 (1.Hindustan Life Care, rep. by its Partner, Gopinath N., 2.Mrs.R.S.Smiline Rushidha, 3. Mr.Gopinath N.,
4.Mr.N.Sivaramakrishna vs. 1.Mr.N.Ramesh, 2.The Hon'ble Sole Arbitrator, Justice S.S.Subramani), the relevant passage is extracted hereunder for useful reference:
"41. The facts before this Court under the agreement between the parties is no different. The clear understanding between the parties is that the partnership is not one at Will. Any partner can retire from the partnership after giving notice, and on such retirement, the retiring partner would not carry on business which is competitive in nature to that of the partnership for a period of one year; that the partnership could be dissolved only when the majority of the members wished so and that it was open to two partners to retire. One partner or two partners, who wish to leave the firm can do so only by retiring from the partnership."
The Hon'ble High Court was pleased to hold that in the said case, the partnership is not one at will. Similarly, the facts in the other judgments relied upon by the learned counsel for the third respondent also are totally different and the question involved was the exercise of power under Section 44 of the Indian Partnership Act by the concerned Court. As stated above, Section 44 of the Indian Partnership Act has no relevancy to the Partnership at will. Hence, the said contention raised by the learned counsel for the third respondent is hereby rejected.
Accordingly, the first appeal is allowed as indicated above. There shall be no orders as to costs.
DP/CS To The Additional Subordinate Judge, Dindigul.