Calcutta High Court
Md. Mofazzular Rahman & Ors vs Md. Sarfaraz Alam & Ors on 10 November, 2025
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Krishna Rao
G.A. No. 8 of 2023
In
C.S. (COM) No. 158 of 2024
(Old No. CS 174 of 2019)
Md. Mofazzular Rahman & Ors.
Versus
Md. Sarfaraz Alam & Ors.
Mr. S.N. Mookherjee, Sr. Adv.
Mr. Rudraman Bhattacharyya, Sr. Adv.
Mr. Dhruv Chadha
Ms. Pooja Chakrabarti
Mr. Soorjya Ganguly
Ms. Arti Bhattacharyya
Ms. Debomita Sadhu
Mr. Sagnik Aditya
.... For the plaintiff no. 3.
Mr. Surajit Nath Mitra, Sr. Adv.
Mr. Sankarsan Sarkar
2
Mr. Soumalya Ganguli
... For the legal heirs of the
deceased plaintiff no. 1.
Mr. Pranit Bag
Mr. Anujit Mookherji
Mr. R.R. Modi
Mr. Anuj Misra
Mr. Prithish Chandra
Ms. Bishalaxmi Ghosh
.... For the defendant no. 1.
Mr. Utpal Bose, Sr. Adv.
Mr. D.N. Sharma, Sr. Adv.
Mr. Ankan Rai
Mr. Yash Singhi
Mr. Ratnesh Kr. Rai
Ms. Devanshi Deora
Mr. Akash Mishra
Ms. Sakshi Kejriwal
.... For the defendant nos. 2& 3.
Hearing Concluded On : 17.09.2025
Judgment On : 10.11.2025
Krishna Rao, J.:
1. The defendant no.1 has filed the present application being G.A. No. 8 of 2023 in C.S. (Com) No. 158 of 2024 (Old No. C.S. 174 of 2019) praying for recording the death of plaintiff no.1 and to substitute the legal heirs of the plaintiff no.1 as plaintiff nos. 1A to 1F and for amendment in the written statement and counter claim.
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2. During the pendency of the suit, the plaintiff no.1 died on 16th June, 2023. The suit is filed by four plaintiffs but after the death of plaintiff no.1, none of the plaintiffs has taken any steps to record the death of the plaintiff no.1 and substitution of the legal heirs of the plaintiff no.1 and accordingly, the defendant no.1 has filed the present application.
3. On receipt of the notice of the present application, the legal heirs of the plaintiff no.1 entered appearance and have filed their affidavit-in- opposition raising the issue that after the death of the plaintiff no.1, all the legal heirs have conveyed their unwillingness to be inducted into the partnership firm in place of the plaintiff no1. It is contended that in Clauses 11 to 13 of the partnership deed nowhere stated that the legal heirs of the deceased partner are mandatorily required to join the firm in place of the plaintiff no.1 who at the time of death was one of the partner of the firm. It is further contended that in Clause 13 of the partnership deed dated 18th July, 2019, clearly states that in case the legal heirs of any deceased or retiring partner are not willing to join the firm in place of the said deceased or retired partner, the rest of the partners would have an option to purchase the share of the deceased or retired partner.
4. It is further contended that at the time of institution of suit, the legal heirs of the plaintiff no.1 were not involved with the instant suit in any manner whatsoever and the existence of the instant suit was not within the knowledge of the legal heirs of the plaintiff no.1 till the receipt of notices of the present application.
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5. Mr. Surajit Nath Mitra, Learned Senior Advocate representing the legal heirs of the plaintiff no.1 submits that under Order XXX, Rule 4 of the Code of Civil Procedure, 1908, stipulates that notwithstanding anything contained in Section 45 of the Indian Contract Act, 1872, where two or more persons may sue or to be sued in the name of a firm under the above provisions or any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit. On contrary, the legal representatives of the deceased partner can apply to be made a party to the suit or can enforce any claim against the survivor or survivors.
6. Mr. Mitra submits that though Section 48 of the Partnership Act, 1932 provides as to how accounts are to be settled after the dissolution of a partnership firm, the defendant no.1 though has claimed for dissolution of the partnership firm, but has not made any claim about the accounts of the firm.
7. Mr. Mitra submits that the legal heirs of the deceased partner do not become liable for liability of the firm upon the death of the partner. In support of his submissions, he has relied upon the judgments in the case of S.P. Misra and Others Vs. Mohd. Laiquddin Khan and Another reported in (2019) 10 SCC 329 and in the case of Annapurna B. Uppin and Others Vs. Malsiddappa and Another reported in (2024) 8 SCC 700.
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8. Mr. Pranit Bag, Learned Advocate representing the defendant no.1 submits that as per Clause 9 of the partnership deed, maximum three legal heirs of the deceased partner can be included in the partnership business and when this Court on 16th October, 2023, has taken up the matter, Learned Advocate appeared for the plaintiffs pray for six months' time to take decision as to which three legal heirs out of six legal heirs would be included in the partnership. He submits that time to time the plaintiffs have taken time from this Court for taking decision which the legal heirs are to be included in the partnership. He submits that from the act of the plaintiffs, it is clear that the legal heirs of the plaintiff no.1 have agreed to substitution by three of his legal heirs, but now they have changed their stand, which is not permissible.
9. Mr. Bag submits that in terms of Order XXII Rule 3 of the Code of Civil Procedure, 1908, the legal representatives of the plaintiff no.1 has right to decide the legal heirs and or legal representatives who will inherit the assets or estate of the deceased partner are required to be brought on record. He further contended that in terms of Order XXII Rule 10 of the Code of Civil Procedure, 1908, since the plaintiff no.1 has died during the pendency of the suit, there has been devolution of interest from the plaintiff no.1 through his legal representatives.
10. Mr. Bag submits that Section 50 of the Code of Civil Procedure, 1908, further makes it clear that if a judgment debtor dies before the decree is satisfied, the holder of the decree may apply before the Court which 6 passed it, to execute the same against the legal representatives of the deceased.
11. Mr. Bag submits that in terms of Section 46 of the Indian Partnership Act, 1932, on the dissolution of the firm, every partner or his legal representative is entitled as against all other partners or representatives, to have the property of the firm applied in payment of debts and liabilities of the firm, and to have the surplus distributed among the partners of their representatives according to their rights. He submits that in terms of Section 46 of the Indian Partnership Act, 1932, once the firm is dissolved, if any of such partner has died, his legal representative is entitled as against all the partners or their representatives to have the properties of the firm applied in payment of debts and liabilities and to have the surplus distributed amongst the partners or their representatives according to their rights.
12. Mr. Bag submits that the defendant no.1 only prays for substitution of the legal heirs /legal representatives as the firm stands dissolved, the legal representatives are liable and /or entitled to pay off the debts of the partnership firm by utilizing the assets of the partnership firm and obtain the surplus as per their shareholding.
13. Mr. Bag submits that the decree for accounts and other decrees in a dissolved partnership firm is not a personal claim and the dissolved partnership firm survives against the legal heirs and substitution should be effected in such cases. In support of his case, he has relied 7 upon the judgment in the case of Girijanandini Devi and Others Vs. Bijendra Narain Choudhary reported in AIR 1967 SC 1124 and in the case of Dr. Papiya Mukherjee Vs. Aruna Banerjea and Another reported in 2022 SCC OnLine Cal 595.
14. Mr. Bag submits that to the extent of the share of the deceased partner, the partner is required to be substituted by his legal representatives as they are liable to other partners to the extent of the assets of the deceased partner in the partnership firm. In support of his submissions, he has relied upon the judgments in the case of Babu alias Govindoss Krishnadoss Vs. Official Assignee reported in AIR 1934 Privy Council 138, in the case of S. Mohinder Singh Vs. Shiv Des Singh reported in AIR 1971 P&H 186, and in the case of Parmanand Vadilal Vasani and Another Vs. State of Gujarat and Another reported in AIR 1994 Gujarat 206.
15. S.N. Mookherjee, Learned Senior Advocate along with Mr. Rudraman Bhattacharyya, Learned Senior Advocate representing the plaintiff no.3 submits that the defendant no.1 has filed an application under Order VI, Rule 17 of the Code of Civil Procedure, 1908, praying for amendment in the written statement and counter claim. He submits that in an amendment application, substitution of the legal heirs of the plaintiff no. 1 is not maintainable. He submits that there is a specific provision under the Code of Civil Procedure, 1908, for substitution of legal heirs of the deceased plaintiff. In support of his submissions, he has relied upon the Judgment passed by this Court in the case of 8 Thakurani Shree Shree Durga Mata Jew & Ors. Vs. Kangali Charan Raul & Anr., in C.S. No. 219 of 2012 dated 22nd August, 2023.
16. Mr. Mookherjee submits that all the legal heirs have specifically conveyed that they are not willing to be included as partners in place of the plaintiff no.1, they cannot be forced to become partners to the partnership firm. In support of his submissions, he has relied upon the judgment in the case of Usha Gopirathnam and Ors. Vs. P.S. Ranganathan (D) Thr. Lrs. and Others reported in 2022 SCC OnLine SC 1285.
17. The main issue in the present proceeding whether the legal heirs of the deceased plaintiff no.1 are required to be substituted as plaintiff nos. 1A to 1F in the suit. Admitted facts in the present proceeding is that the plaintiff no.1 was one of the partner of the firm, namely, M/s. Serajuddin & Co. and the plaintiff no.1 died on 16th July, 2023 leaving behind six (6) legal heirs i.e. wife, two sons and three daughters.
18. Clauses 8, 9, 10 and 11 of the Partnership Deed reads as follows:
"(8) Death of a partner will not dissolve the partnership and in case of death it will be binding for the remaining partners to admit one or two heirs of the deceased partner, as a new partner.
(9) It is, however, clearly understood and agreed by all the parties that this partnership will not be deemed as a partnership at will and none of the parties herein shall have the right and shall be entitled to dissolve the Firm by giving notice as and when he so desires. It is further clearly agreed and understood between the parties hereto that on no 9 consideration and on any whatsoever, on the retirement or death of any partner or partners of the Firms of MD. SERAJUDDIN & BROTHERS and M/S SERAJUDDIN & Co. the good will, if any, of the said partnership and/or concerns shall belong only to the continuing and/or surviving partners and neither the retiring partners nor any heir or legal representatives of any deceased partner shall be entitled to claim the same.
(10) Md. Mazharul Haque, the Managing Partner and the experienced partner Md.
Mofazzalur Rahman shall have the power jointly to negotiate with any agency relating to affairs of the firm on behalf of firm M/s SERAJUDDIN & Co.
(11) The Managing partner and the experienced partner Md. Mafazzal Rehman jointly may delegate their power to a new partner just admitted in the partnership for special work in connection with the affairs of firm."
19. As per Clause 9 even upon the death of any partner, the partnership firm does not get dissolved and on contrary, the remaining partners are given a right to choose three legal heirs of the deceased partner in the continuing partnership.
Clause 11 specifies that upon death of one of the partner of the partnership firm will not get dissolved and in case the legal heirs of the deceased partner are unwilling to join the partnership then the surviving partners have the option to purchase shares of the deceased partner in the partnership business and the purchase price of the shares shall be the amount of which such shares shall stand in the last balance sheet of the partnership firm, prepared prior to the death of the partner.
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20. All six legal heirs of the deceased plaintiff no.1 are unwilling to join the firm as partners in place of the plaintiff no.1 and have expressed such unwillingness in writing by their respective letters dated 1st July, 2024; 2nd July, 2024 and 3rd July, 2024. All six legal heirs have cited their personal and professional commitments which make it unfeasible for them to take up the post of a partner in a firm involved in the business of mining on a large scale.
21. Order XXX, Rule 4 of the Code of Civil Procedure, 1908, reads as follows:
"ORDER XXX Suits by or against firms and persons carrying on business in names other than their own
4. Rights of suit on death of partner.-- (1) Notwithstanding anything contained in section 45 of the Indian Contract Act, 1872 (9 of 1872), where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit.
(2) Nothing in sub-rule (1) shall limit or otherwise effect any right which the legal representative of the deceased may have--
(a) to apply to be made a party to the suit, or
(b) to enforce any claim against the survivor or survivors."
Order XXX, Rule 4 of the Code of Civil Procedure, 1908, establish that it is not necessary to join the legal representatives of the deceased partner in a suit against a firm, even if the partner died before the suit 11 is filed or during its pendency, this rule applies to suits filed in the firm's name and ensures that litigation can proceed efficiently, though it does not prevent the legal representative from applying to be a party to the suit or from enforcing their claims against the surviving partners.
22. Mr. Bag relied upon Section 46 of the Indian Partnership Act, 1932 which reads as follows:
"46. Right of partners to have business wound up after dissolution.-- On the dissolution of a firm every partner or his representative is entitled, as against all the other partners or their representatives, to have the property of the firm applied in payment of the debts and liabilities of the firm, and to have the surplus distributed among the partners or their representatives according to their rights."
Section 46 of the Indian Partnership Act, 1932 grants partners the right to have the firm's business wound up after dissolution. This right includes the authority to have the firm's property used to pay off all debts and liabilities first, and then to have any remaining surplus assets distributed among the partners according to their rights.
23. The plaintiffs have filed the suit praying for the following reliefs:
"a) Declaration that the purported Notice of dissolution dated July 13, 2019 issued illegally by and through the Advocate of the first defendant to the other partners is bad, illegal, invalid and void ab-initio and of no legal effect whatsoever;
b) Declaration that the first defendant was duly expelled from the firm named Serajuddin & Co. constituted by the Deed of Partnership dated October 1, 2011 and in accordance with law and in due exercise of the powers vested under Clause 19 of the said partnership deed;12
c) Perpetual injunction restraining the first defendant by himself or otherwise by or through his Advocates or servants or agents or employees or assigns or otherwise howsoever from holding out and/or representing in any manner whatsoever before any public body or statutory authority or private party or otherwise whosever that the firm Serajuddin & Co. constituted by the Deed of Partnership dated October 1, 2011 was dissolved by notice dated July 13, 2019;
d) Perpetual injunction restraining the first defendant by himself or otherwise by or through his Advocates or Chartered Accountants or servants or agents or employees or assigns or otherwise howsoever from holding out and/or representing in any manner whatsoever before any public bodies and/or statutory authorities and/or public as well as private party or whosoever that the firm, Serajuddin & Co. constituted by the Deed of Partnership dated October 1, 2011 was dissolved by notice dated July 13, 2019;
e) If necessary, this Hon'ble Court be pleased to adjudicate and declare that the purported notice dated July 13, 2019 issued by and at the instance of the first defendant is bad, illegal, invalid and void and that all offending copies thereof be ordered and directed to be delivered up and cancelled by this Hon'ble Court;
f) Declaration that the first defendant is not a partner of the firm reconstituted by the Deed of Partnership dated July 18, 2019;
g) Declaration that the first defendant is not entitled in any manner whatsoever to interfere with the conduct of business of the partnership firm, Serajuddin & Co. as reconstituted by the Deed of Partnership dated July 18, 2019;
h) Perpetual injunction restraining the first defendant from in any manner whatsoever, interfering with the conduct of business of the partnership firm M/S Serajuddin & Co. as reconstituted by issuing letters, notices or any correspondence to any public bodies and/or statutory authorities and/or public as well as private parties and/or third parties and/or 13 whosoever, in respect of the business of the partnership firm M/S Serajuddin & Co.;
i) To issue mandatory injunction calling upon the first defendant and directing him to forthwith withdraw all his correspondence addressed to Punjab National Bank at 17, Bapuji Nagar, Janpath, Bhubaneswar, Odisha-751009, and a direction upon the said Punjab National Bank to forthwith release the debit freeze of the firm's Current Account No. 3221002100024555 and unconditionally allow operation of the said account and not to interfere with such operation without the leave of this Hon'ble Court;
j) Perpetual injunction restraining the first defendant from in any manner whatsoever approaching the banker or bankers of the firm by issuing letters, notice or any correspondence to such banker or bankers in relation to the business of the partnership firm M/S Serajuddin & Co.;
k) For the purposes aforesaid, all necessary accounts, enquiries and directions;
1) Receiver;
m) Interlocutory Injunction;
n) Attachment;
o) Costs;
p) Further and other reliefs."
24. The defendant no.1 has filed written statement along with counter claim praying for the following reliefs:
"a) Preliminary Decree for dissolution, with effect from, July 13, 2019 of M/s. Serajjudin & Co., having Registration No. L76559 and constituted by the Deed of Partnership dated October 1, 2011 in Form No. 21 of Appendix D of the Code of Civil Procedure, 1908;14
b) Final Decree for dissolution of the said partnership firm in Form No. 22 read with Appendix D of the Code of Civil Procedure, 1908;
c) Alternatively, M/s. Serajuddin & Co. bearing having Registration No. L76559 and constituted by the Deed of Partnership dated October 1, 2011 be dissolved by this Hon'ble Court;
d) Perpetual Injunction restraining the Plaintiffs and defendant nos. 2 and 3 their men, assigns, agents, servants from conducting or carrying on business with the assets of the said partnership firm or in the name of the said partnership firm and/or deal with any asset of the firm including moneys lying in the bank accounts of the said partnership firm;
e) Perpetual Injunction restraining the Plaintiffs.
defendant nos. 2 and 3 and/or their men and/or assigns and/or agents and/or servants from selling any asset of the said partnership firm including, iron ore and lumps;
f) Declaration that the purported expulsion of defendant no. 1 from the firm of M/s. Serajjudin & Co. on 15th July, 2019 is illegal and null and void and inoperative;
g) All documents in connection with the purported expulsion of the defendant no. 1 including the show cause notice dated 26th June, 2019 and documents in connection with the expulsion dated 15th July, 2019 be adjudged void, delivered up and cancelled;
h) Declaration that reconstitution of the firm by way of the reconstituted Deed of Partnership dated 18th July, 2019 is illegal, null and void;
i) Perpetual injunction restraining the Plaintiffs and the defendant Nos.2 and 3 and their agents or assigns from carrying on any business of mining by using of the name of M/s. Serajuddin & Co. or from representing themselves as carrying on business of M/s. Serajuddin & Co. or from soliciting any custom of persons who are dealing with M/s. Serajuddin & Co. before its dissolution;
j) Receiver 15
k) Cost;
l) Further or other reliefs."
25. In the case of Girijanandini Devi and Others (supra), the Allahabad High Court that:
"14. Finally, it was urged that since defendants Mode Narain and Rajballav Narain had died during the tendency of the proceedings, the High Court was incompetent to pass a decree for account against their estates. Rajballav who was Defendant 6 died during the pendency of the suit in the trial court and Mode Narain who was Defendant 1 in the suit died during the pendency of the appeal in the High Court. But a claim for rendition of account is not a person claim. It is not extinguished because the party who claims an account, the party who is called upon to account dies. The maxim "actio personalis moritur cun persona" a personal action dies with the person, has a limited application. It oupeates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. Death of the person liable to render an account for property received by him does not therefore affect the liability of his estate."
The case referred by Mr. Bag is for account against the estate, but in the present case neither the plaintiffs nor the defendant nos. 2 and 3 have claimed any rendition of account.
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26. In the case of Dr. Papiya Mukherjee (supra), this Court held that:
"7. In terms of the above, though the respondents are not signatory to the arbitration agreement dated 20th of May, 1992 but being the legal representatives of Dr. Dhrubajyoti Banerjea, one of the signatory of the agreement, are bound by it to the extent provided in law. At the earlier stage, respondents themselves had sent the notice dated 29th of February, 2016 admitting the partnership deed dated 20th of May, 1992 and invoking the arbitration clause as legal heirs of the deceased Dr. Dhrubajyoti Banerjea with the request to appoint the sole arbitrator and the arbitrator was appointed and some proceedings before the arbitrator had also taken place, therefore, their contrary stand at this stage cannot be accepted."
The case referred by the defendant no.1 is in connection with Section 11 of the Arbitration and Conciliation Act, 1996 and the Hon'ble Court held that there exists a arbitration agreement and the Court is under the obligation to refer the parties to arbitration in terms of the arbitration agreement and the plaintiffs being the legal heirs representative are bound by the agreement to the extent provided by law.
27. In the case of Babu alias Govindoss Krishnadoss (supra), the Hon'ble Court held that "After a dissolution of partnership the rights and obligations of the partners continue in all things necessary for winding up the business of the partnership". In the said case the Hon'ble Court also held that the right of the representatives of the deceased partner is one of the property and does not rest merely on contract and that the surviving partners, who have the right and duty to realize the partnership property, hold a fiduciary relationship towards the 17 deceased partner's representatives as regards his interest in the partnership property, though the latter have no such right in any individual asset of the partnership property as will entitle them to interfere with surviving partners' right to deal with and dispose of any such asset for the purpose of realization.
28. In the case of S. Mohinder Singh (supra), the Punjab and Haryana High Court held that:
"(5) The first contention of Mr. Gandhi is to be noticed only to be rejected. It is a settled proposition of law that a suit for accounts cannot be maintained against some of the partners only and that every partner is a necessary party. The reason for this rule is not far to seek. The shares of all the partners in the matter of their profits and losses have to foe determined and it is neither possible nor correct to decide the extent to rights and liabilities of a partner in his absence. The cardinal rule of law is that no decree can be passed against a person in his absence. The argument of the learned counsel founded on Order XXX, rule 4, Civil Procedure Code, is misconceived. It is only when two or more partners sue in the name of a firm and any of such partners dies, that it is not necessary to join the legal representatives of the deceased as a party to the suit but this provision has no application when the suit is not in the name of the firm. The present is a suit for accounts of a dissolved partnership filed by one partner against the others. In such a situation, if one of the partners dies, the right to sue cannot survive against the others and the legal representatives of the deceased have to be impleaded as a party.
(6) The main question really to be determined is whether in the matter of taking accounts, the entire period of two partnerships is to be treated as continuing one or that before 15th October, 1955, there was a distinct and separate partnership between the plaintiff appellant and defendant respondent 1 which had already been dissolved and 18 from which the deceased partner could be disassociated. It is true that once it is held that the rights and liabilities between the plaintiff and defendant respondent 1 could not be adjudicated with regard to the first partnership without the accounts for the subsequent period being also taken, Chanan Singh deceased was a necessary party and the suit could not proceed without his legal representatives having been brought on the record.
The Courts below took the view that since assets of the first partnership were utilised to constitute the second partnership after the deceased became a partner, the accounts for both the periods had thus to be taken before the matter could be finally adjudicated Reliance was placed on section 31(1) of the Indian Partnership Act, 1932, which permits introduction of a partner into a firm with the consent of all the existing partners.
In order to resolve this question, it becomes necessary to make a reference to the pleadings of the parties and the partnership deed Exhibit P. 1 executed on 19th November, 1955. According to his pleadings, the plaintiff appellant was serving as Subedar Major in the Army and during his period of service he advanced a loan of Rs. 4,000 to defendant respondent 1 and after his retirement, the entire pension was also being received by the later. All this amount, as stated by the plaintiff, was being spent in the partnership business. The partnership firm was paying income-tax as well and continued its business till 14th October, 1955. It is specifically stated by him in the plaint that he was entitled to a dissolution of partnership and rendition of accounts for the period from 1st December, 1950 to 14th October, 1955, against defendant respondent 1 who had not rendered any accounts to him.
It is further pleaded by him that with effect from 15th October, 1955, defendant respondent 2 was taken in the partnership and a partnership deed, Exhibit P. 1, executed which contained all the conditions. A perusal of this document shows that there is no reference whatsoever made therein to any previous partnership or to essets and liabilities of the same having been taken by the new partnership. It is completely an independent and distinctly new partnership between the parties 19 brought about by the deed except that the parties had actually started business from 15th October, 1955, and that a document was executed on 19th November, 1955. We have a recital in the deed that regular account books had been started from the first day of start of business, that is, from 15th October, 1955, and they were to be kept till the existence of the partnership business. Both the defendants in their written statements took objection to the joinder of two separate causes of action and the trial Court Court framed the following issue :--
"Whether this suit is bad for mis-joinder of causes of action and parties?"
Before a decision could be given on this issue, Chanan Singh defendant died."
The case referred by the defendant no.1 is for accounts but in the present suit neither the plaintiffs nor the defendant no.1 has prayed for any accounts of the partnership firm.
29. In the case of S.P. Misra & Ors. (supra), the Hon'ble Supreme Court held that:
"18. At this stage, it is to be noticed that once the partnership comes to an end, by virtue of death of one of the partners, there will not be any partnership existing in which legal representatives of late Smt Hashmatunnisa Begum could be taken in. The judgment and decree obtained by late Shri Jai Narayan Misra against late Smt Hashmatunnisa Begum, in pursuance of partnership deed dated 14-4-1982, cannot bind the legal representatives of late Smt Hashmatunnisa Begum, as such, decree is not executable against them. The legal representatives of late Smt Hashmatunnisa Begum are not the partners of the original partnership deed dated 14-4-1982. When such legal representatives are not parties to the contract, such contract cannot confer rights or impose obligations arising under it on any third 20 party, except parties to it. No one but the parties to the contract can be entitled under it or borne by it. Such principle is known as "Privity of Contract".
When the partnership stands dissolved by operation of law under Section 42(c) of the Partnership Act, 1932, the question of execution in pursuance of the decree does not arise. There cannot be any contract unilaterally without acceptance and agreement by the legal heirs of the deceased partner. If there are any clauses in the agreement, entered into between the original partners, against the third parties, such clauses will not bind them, such of the clauses in the partnership deed, which run contrary to the provisions of the Partnership Act, 1932, are void and unenforceable. Such clauses are also opposed to public policy."
30. In the case of Annapurna B. Uppin & Ors. (supra), the Hon'ble Supreme Court held that:
"16. Thirdly, there was no evidence on record to show that a fresh partnership deed was executed reconstituting the firm in which the present appellants had become partners so as to take upon themselves the assets and liabilities of the firm. The law is well settled that legal heirs of a deceased partner do not become liable for any liability of the firm upon the death of the partner."
31. In the present case, the legal heirs of the deceased plaintiff no.1 have clearly stated in their respective letters that due to their personal and professional commitments which bars them to be partners in a firm involved in the business of mining at a large scale. The laws of succession applicable on the legal heirs of the plaintiff no.1 are limited to the personal liability of the plaintiff no.1 only and do not include the rights and liabilities of the plaintiff no.1 as partner of the firm to which none of the legal heirs of the plaintiff no.1 are signatories. 21
32. In the case of Usha Gopirathnam & Ors. (supra), the Hon'ble Supreme Court held that:
"18. The last leg of Shri Ranjit Kumar's submission dealt with the Appellants becoming partners of the Firm automatically after the death of Gopirathnam. To buttress his submission, he relied upon a judgment of this Court in Khushal Khemgar Shah v. Mrs. Khorshed Banu Dadiba Boatwalla.
19. The main thrust of Shri Gurukrishna Kumar, Senior Advocate appearing on behalf of Respondent Nos. 5 to 7 is that the Appellants do not automatically become partners after the death of Gopirathnam. He contended that such is the scheme of the Act too. In support of his submissions, he relied on Sections 4 and 5 of the Act to contend that a partnership is creature of a contract and not of status, with the only exception being Section 30(5) of the Act. Further, he also placed reliance on Section 31 of the Act to contend that any new partner can be inducted only with the consent of all the then existing partners. He stated that such a consent is absent in the facts of this case. In support of these submissions, he relied on the decisions of this Court in Commissioner of Income Tax v. Seth Govindram Sugar Mills, and S.P. Misra v. Mohd. Laiquddin Khan."
33. This Court finds that Clause 11 specifies that upon death of one of the partner of the partnership firm will not get dissolved and in case the legal heirs of the deceased partner are unwilling to join the partnership then the surviving partners have the option to purchase shares of the deceased partner in the partnership business and the price of the shares shall be the amount of which such shares shall stand in the last balance sheet of the partnership firm, prepared prior to the death of the partner. The legal heirs of the plaintiff no. 1 have specially conveyed 22 their unwillingness to be inducted as partners into the partnership firm in place of plaintiff no.1, this Court did not find any reasons to allow the prayer of the defendant no.1 to substitute the legal heirs of the plaintiff no.1 as plaintiff nos. 1A to 1F. The death of plaintiff no.1 is admitted by all the parties, the department is directed to delete the name of the plaintiff no.1 from the cause title of the plaint and written statement along with counter claim within three (3) weeks from date.
34. This Court has not allowed the prayer of the defendant no.1 for substitution of legal heirs of plaintiff no.1, thus the amendment sought for by the defendant no.1 has become infructuous.
35. G.A. No. 8 of 2023 is disposed of.
(Krishna Rao, J.)