Delhi District Court
Mrs. Sudhanshu Pratap Singh (Since ... vs Deputy Mal Jain & Ors on 21 May, 2015
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IN THE COURT OF SH. DEVENDER KUMAR JANGALA:
ADDL. DISTRICT JUDGE: WEST:TIS HAZARI: DELHI
RCA No.32/14 & RCA No. 33/14
Amended memo of parties filed on 21.05.2014
Sh. Pratap Singh (since deceased)
Through LRs.
1. Mrs. Sudhanshu Pratap Singh (since deceased)
wd/o Late Sh. Pratap Singh
2. Mr. Ajit Singh Gupta
s/o Sh. Pratap Singh
3. Mrs. Veena Gupta
w/o Sh. O.P. Gupta
d/o Sh. Pratap Singh
4. Mrs. Aruna Gupta
w/o Sh. Y.K. Gupta
d/o Sh. Pratap Singh
5. Ms. Neelam Gupta
d/o Sh. Pratap Singh
6. Mrs. Jaya Gupta
w/o Sh. Ramesh Kumar
d/o Sh. Pratap Singh
7. Ms. Nalini Gupta
d/o Sh. Pratap Singh
All c/o Sh. Ajit Singh Gupta
Pratap Bhawan, 8976Paharganj, Delhi
Also at
E3, Kalindi Colony, New Delhi ...........Appellants
RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors
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Versus
Sh. Deputy Mal Jain (since deceased)
a) Mrs. Prem Chand Jain
d/o Sh. Deputy Mal Jain
c/o Marbal and Paint Store
40 , Shradhanand Marg, Delhi
b) Mrs. Trilok Chand Jain
d/o Sh. Deputy Mal Jain
c/o Shahdara Builders Store
A2, Mansarover Park,
G.T. Road, Delhi110032
c) Mr. Adishwar Lal Jain (since deceased)
s/o Late Sh. Deputy Mal Jain
now represented by his legal heirs.
i) Smt. Vinod Kumar Jain (wife)
ii) Sh. Pradeep (son)
iii) Sh. Sandeep (Son)
iv) Smt. Deepa (daughter)
v) Smt. Abha (daughter)
vi) Smt. Seema (daughter)
vii)Smt. Chitra (daughter)
All r/o D2/8, Model Town,
Delhi110009
2. Sh. Satish Chandra
s/o Sh. L. Harish Chandra
Hauz Quazi, Delhi
nd
2 address
252C, Sant Nagar Main Road
East of Kailash, New Delhi
3. Sh. Tej Singh (since deceased)
Now represented by his Legal Heirs
RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors
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a) Sh. Dharamveer Singh
s/o Sh. Tej Singh
b) Miss Poonam Gupta,
d/o Sh. Tej Singh
c) Ms. Malti Gupta
d/o Sh. Tej Singh
d) Mrs. Sarla Gupta (since deceased)
w/o Sh. Jatinder Pal,
d/o Sh. Tej Singh
All r/o B13, Kalindi Colony, New Delhi
Now represented by her legal heirs.
i) Sh. Shailender Paul
ii) Mrs. Vineeta Paul @ Veenu (daughter)
iii) Ms. Mudita Paul @ Meenu (daughter)
All r/o Y29, Hauz Khas, New Delhi
4. Shri Bhagwan Singh (since deceased)
Now represented by
i) Sh. Gian Prakash (since deceased)
now represented by
a) Dr. Mrs. Saraj K. Prakash
w/o Late Sh. Gian Prakash
b) Dr. Raka Guleria
d/o Late Sh. Gian Prakash
Both r/o 70, Akriti Apartments
Plot no. 62, Patpar Ganj Delhi
ii) Sh. Satinder Prakash
s/o Late Sh. Bhagwan Singh
2816, Shanker Street, Bazaar Sita Ram
Kali Masjid, Delhi110006
iii) Smt. Bimla Gupta (since deceased)
d/o Late Sh. Bhagwan Singh
now represented by
RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors
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1. Sh. Praveen (son)
2. Mrs. Neeta
Both c/o Satinder Prakash
r/o 2816, Shanker Street, Bazaar Sita Ram
Kali Masjid, Delhi110006
iv) Smt. Shashi
d/o Satinder Prakash
r/o 2816, Shanker Street, Bazaar Sita Ram
Kali Masjid, Delhi110006
v) Smt Archana Gupta @ Pappu
d/o Late Sh. Bhagwan Singh
C140, Lajpat Nagar, New Delhi
vi) Smt. Rajni Gupta
w/o Late Sh. Narinder Prakash
Library Incharge
Happy School, Padam Singh Marg
Darya Ganj, New Delhi110002
vii) Master Sonu Gupta
s/o Sh. Narinder Prakash and
Grandson of Late Sh. Bhagwan Singh
Library Incharge
Happy School, Padam Singh Marg
Darya Ganj, New Delhi110002
5. Sh. Harnam Singh (since deceased)
now represented by
a) Davinder Gupta (son)
B11, A,G.Floor, Kalkaji
b) Asha Chandra
B29 A, 2nd floor,
Kailash Colony, New Delhi
c) Mrs. Sneh Gupta
RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors
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w/o Late Sh. Virender Gupta
(s/o Sh. Harnam Singh)
d) Raman Gupta
s/o Sh. Virender Gupta
e) Vinod Gupta
s/o Sh. Virender Gupta
All r/o S369, Greater KailashI
New Delhi
6. Smt. Kasturi Devi (since deceased)
now represented by legal heirs
a) Sh. Gurdit Singh (since deceased on 05.05.1996)
now represented by legal heirs
i) Smt. Santosh Kumari (Widow)
ii) Mrs. Rashmi Gupta (daughter)
iii) Sh. Mukul Gupta (son)
all r/o D336, Anand Vihar,
Delhi110092
b) Sh. Sant Singh
16C, MIG Pocket C
Ashok Vihar, PhaseIII
Delhi52
c) Smt. Prem
5258 Kolhapur House, Subzi Mandi,
Delhi
d) Sh. Raj Aggarwal
C123, Pushpanjali, Vikas Marg Extention
Delhi 92 ......Respondents
RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors
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IN THE COURT OF SH. DEVENDER KUMAR JANGALA:
ADDL. DISTRICT JUDGE: WEST:TIS HAZARI: DELHI
RCA No.32/14 & RCA No. 33/14
Sh. Pratap Singh (since deceased)
through LR's
..........Appellants
Versus
Sh. Deputy Mal Jain ( since deceased)
through LR's
.............Respondents
Date of filing : 15.12.1973
Date of arguments : 26.03.2015
Date of Judgment : 21.05.2015
J U D G M E N T
21.05.2015
1. The present appeal is filed by the appellant under section 96 of the Code of Civil Procedure (C.P.C) against the judgment and decree dated 28.09.1973 passed by the court of Smt. Manju Gupta, the then Ld. Sub Judge Ist class, Delhi in Civil suit no. 552/71, whereby the suit of the plaintiffappellant has been decreed in the preliminary form for RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors :7: dissolution of partnership, rendition of the account. The share of the plaintiff in the partnership has been declared to the one anna, that of defendant no.1 six annas, that of defendant no. 2 five annas, that of the defendant no.3 to 6, one anna each. The partnership was declared to have been dissolved from 06.02.1963 and a commission has been appointed to take accounts from 01.01.1953 upto date of the judgment. The defendant no. 1 has been held to be the accounting party. It has also been held that for eradication of the evils of perjury and in the interest of justice, it is expedient that the witness (plaintiffappellant) should be prosecuted for the offence which appear to have been committed by him and proceedings under section 479A Criminal Procedure Code should be commenced.
2. Brief facts of the case are as under: The appellant/plaintiff filed a suit for dissolution of the partnership and for rendition of the account against the respondent/defendants on 16.12.1960. After conclusion of the trial, a preliminary decree was passed on 28.09.1973 by the court of Ms. Manju Gupta, the then Ld. Sub Judge, ClassI, Delhi. The Ld. Trial Court passed the following orders:
(a) " On the findings on issue no.1 to 8, the suit is decreed on contest in the preliminary form for RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors :8: dissolution of partnership and for rendition of accounts. The share of the plaintiff in the partnership is hereby declared to be /1/ anna, that the defendant no. 1, /6/ annas that of defendant no.2, /5/ annas and that of defendants no. 3 to 6, /1/ anna each. The partnership shall be decreed to have been dissolved from 06.02.63. A commissioner for accounts will take accounts from 01.01.1953 upto the date of the judgment and shal submit his report within two months of his assuming the office. The defendant no.1 is the accounting party and shall render the accounts to the Commissioner. Let Sh. Ishwar Sahai, Advocate, Delhi be appointed as Commissioner for taking the accounts. His fees are initially fixed at Rs. 500/ to be paid by the plaintiff. Considering the circumstances of the case the parties are left to bear their own costs".
(b) " It has also been held that for eradication of the evils of perjury and in the interest of justice, it is expedient that the witness (plaintiffappellant) should be prosecuted for the offence which appear to have been committed by him and proceedings under section 479A Criminal Procedure Code should be commenced".
3. The appellant/plaintiff being aggreived by findings of the Ld. Trial Court has filed the present appeal on various grounds:
(a)It is stated that the judgment and decree of the Ld. Trial Court are contrary to the facts and law.
(b)That the findings of the Ld. Trial Court on issue no. 1 and 2 are RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors :9: errorneous and are liable to be reversed.
(c) That the Ld. Trial Court has wrongly held that the respondent no. 3 to 6 in the appeal are entitled to get the relief in the present suit.
(d) That the Ld. Trial Court has wrongly held that the appellants share would be 1 anna in the partnership and the share of the defendant no. 3 to 6 would be 1 anna each. The appellant has contented that the defendant no. 3 to 6 are not the partners of the partnership firm and they have no share in the partnership business.
(e) That the Ld. Trial Court has wrongly came to the conclusion that the defendant no. 3 to 6 are partners in the firm D.C.G.A.
(f) That the Ld. Trial Court has erred in holding that the dissolution of the firm should be deemed to be from 06.02.1963. It is stated that the dissolution should be deemed to be from the date of institution of the suit.
(g)That the Ld. trial Court has wrongly held that the account should be taken on 01.01.1953 onwards whereas the accounts should have been taken from the year 1938 when the partnership in suit came into being.
RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 10 :
(h) That the Ld. Trial Court has erred in holding that the appellant has committed perjury by denying his signatures on the partnership deed Ex. D1 and the affidavit Ex. D3W1/1 and also denying the share of defendant no. 3 to 6.
(i) That there is no justification borne out from the facts on record for initiating proceedings u/s 497(a) of Cr.P.C. It is stated that there is no justification of the Ld. Trial Court below to so order the prosecution of the appellant.
It is prayed that this Hon'ble Court may please to accept this appeal, vary the judgment and decree appealed from, and hold that the shares of the appellant is /5/ annas, that of defendant no. no. 1 is /6/ annas and that of defendant no. 2 is /5/ annas while the defendants no. 3 to 6 have no share at all in the partnership firm D.C.G.A. That the partnership shall be deemed to have been dissolved from the date of the institution of the suit. That the commissioner is to take the accounts from 10.02.1938. That no offence of perjury has been committed by the plaintiffappellant herein and that it is not at all in the interest of justice or expedient that the appellant should be prosecuted for any offence. That the opinion of the Learned Court below in this behalf is RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 11 : wholly erroneous and is liable to be quashed and the suit of the plaintiff appellant be decreed.
4. By this judgment I shall also decide the crossobjections filed by respondent no.1 Sh. Deputy Mal Jain in the present appeal. The cross objections were filed on 19.03.1974. In the cross objections, it is prayed that the findings of the Ld. Trial Court on issue no. 1(A), 3, 5, 7 and 8 against the respondent no. 1 (the objector) be set aside and it is prayed that the suit of the plaintiff be dismissed with cost.
5. In the cross objections, it is stated that the findings of the Ld. lower court on issue no. 1(A), 3, 5, 7 and 8 against the objector is against the law and facts. It is stated that the Ld. Trial Court should have held that the firm was not liable for dissolution. That the Ld. Trial Court ought to have held that the suit of the plaintiff was not maintainable for dissolution . That the Ld. Trial Court ought to have held that the suit was not maintainable for rendition of accounts. That the Ld. Trial Court has wrongly held that any partner of the partnership firm could claim dissolution. That the Ld. lower court ought to have taken into consideration that the accounts having been made and accepted upto the end of 1957 and as such there is no question of rendition of accounts from 01.01.1953 onwards.
RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 12 : It is prayed by the objector that the judgment and decree of the Ld. Trial Court on issue no. 1(A), 3, 4, 5 , 7 and 8 may kindly be set aside and the suit of the plaintiff may kindly be dismissed with cost.
6. In the present case, during the pendency of the appeal on 14.02.1984, the Ld. predecessor, while trying the appeal observed that the trial court file is not there, and then the trial court record was requisitioned in the year 1984. It was then reported that the five boxes and trunks containing the trial court record is not traceable . The intimation in this regard was sent to the Ld. District Judge. The Ld. District Judge vide letter reference no. 13461/Vig./W/THC/Delhi/2012 and 6662/Vig./West/THC/Delhi 2012 directed the Ld. predecessor to conduct the fact finding enquiry and also give directions for reconstruction of the missing record.
7. On 07.08.2014, the final report regardng the fact finding enquiry as well as on the directions regarding the reconstruction of the missing record was sent by this court to the Ld. District and Sessions Judge, West, Delhi. The conclusion in fact finding enquiry report is as under: " In view of the above discussion, it is clear that all the Ahlmad/officials posted in the court of Ld. ADJ/predecessor/Appellate Court are not responsible for the missing record because the said record was never entrusted or handed over to them. The responsibility of the then Record RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 13 : Room, Civil (Incharge) also could not be established due to his death on 05.05.2006.
8. The final report regarding the directions of the reconstruction of the record are as under: " In the present facts and circumstances, I am of the considered opinion that the reconstruction of the missing record is not possible as neither the parties are in possession of the missing record nor the copy of the same are available on record"
1.
9. It is pertinent to mention that after conclusion of the fact finding enquiry, the objections were raised by the parties against the disposal of the appeal and the cross objections, in the absence of the partial missing record of the Ld. Trial Court. Vide detailed order dated 21.08.2014, the issue whether the present appeal/cross objections can be disposed in the absence of the partial missing record of the Ld. Trial Court was decided. In the said order, it is held that "all the available material on record is sufficient to take the proceedings to its logical end. I do not see any reason on which the appeal could not be disposed off in the absence of the partial missing trial court record. The respondent have failed to disclose any specific prejudice going to be caused to them in case the appeal/cross objections are disposed off in the absence of the missing trial court record. Therefore, in the present facts and circumstances, I have not hesitation to hold that the appeal/cross objections should be heard and proceeded further for disposal even in the absence of the RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 14 : missing partial record of the Ld. Trial Court. The appeal/cross objections can be decided on the basis of available record of the Ld. Trial Court. This issue is accordingly decided.
10.After decision on the fact finding enquiry and on the issue of proceeding further in the absence of the missing trial court record, the parties were asked to advance their arguments. It is not out of place to mention that the present appeal and the crossobjections were pending since the year 1973 and four decades have passed. The present case file was received by this court by way of transfer on 03.04.2014. Thereafter on 19.04.2014, for the expeditious disposal, following order was passed: " The present appeal is pending since the year 1973. It is one of the oldest matter pending in this court. Therefore, for the expeditious disposal of the present matter, it is ordered that the court shall make endeavour to take up the present matter for hearing every week".
11. This court could brought the matter to its logical end with the assistance of the order dated 19.04.2014 because by virtue of the said order, the matter was listed every week and the proceedings has been concluded.
12.I have carefully perused the material on record and gone through the submissions of the parties. Sh. Ajit Singh, one of the LR of the RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 15 : deceased appellant advanced his oral arguments at length. The written submissions on behalf of the LR of the deceased appellant is also filed on record. Sh. V.V.Malhotra and Sh. Pawan Singhal, Ld. counsels addressed the arguments on behalf of the LR's of the deceased respondent no.1. Ms. Poonam and Sh. D.V.Singh, LR's of the deceased respondent no. 3 addressed their oral arguments in person. None of the remaining parties or their counsel advanced the arguments despite opportunities.
13.In view of the submissions and material on record and for the disposal of the appeal, as per order 41 Rule 31 CPC the following points for determination of appeal are settled: Point (A): The main contention of the appellant in the present appeal is that the point that the defendant no. 3 to 6 were not the partners in the firm DCGA. The main contention of the parties before the Ld. Trial Court was also revolving on this point. The major part of the evidence led by the parties is also on this point. The appellant in the present appeal has assailed the judgment of the Ld. Trial Court regarding the findings and decision to hold the defendant no. 3 to 6 as partner in the firm DCGA and their entitlement for share. The majority of the grounds of the appeal RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 16 : contended by the appellant is assailing the finding of the Ld. Trial Court on this issue. This point of determination will cover majority of the contention raised by the appellant. The majority of the contention of the appeal are related to this point of determination or dependant on the decision of this point of determination.
Point (B): The appellant has also assailed the judgment of the Ld. trial Court on the application moved by defendant no. 1 and 2 under section 490 Cr.P.C read with section 191 and 193 IPC. The appellant has also challenged the order of the Ld. Trial Court directing the prosecution of the appellant for the commission of the offence of perjury under section 479(a) Cr.P.C. Point (C): In the cross objections, the respondent no. 1 Sh. Deputy Mal Jain has prayed for setting aside the order of the Ld. Trial Court on issue no. 1(A), 3, 4, 5, 7 and 8 against him with prayer to dismiss the suit of the plaintiff.
14. In the light of material on record and the contentions raised by the parties, my decision and its reasons on the point of determination are as under:
15. Point (A): The appellant/plaintiff had filed the present suit for RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 17 : dissolution of the partnership and rendition of account. The suit filed by the appellant/plaintiff has been decreed. The appellant/plaintiff has challenged the order of the Ld. Trial Court in the present appeal. The grounds of the appeal raised by the appellant revolve around the point (A) of the determination. The majority of the ground raised by the appellant assail the judgment of the Ld. Trial Court on the findings given on issue no. 1 and 2 as framed in the original suit.
16. The appellant/plaintiff raised the contention that in the partnership deed Ex. D1, it is only the plaintiff who has shown as partner. That the firm was Registered under Partnership Act. That the name of the respondent no. 3 to 6 are not mentioned in the record of Register of Firms as partners. That section 68 of the Partnership Act lays down the rule that any statement, intimation or notice recorded or noted in the Register of Firms, shall as against any person by whom or on whose behalf such statement, intimation or notice was signed, be conclusive proof of any fact stated therein. It is also contended on behalf of the appellant that in view of the provisions of the Partnership Act, the findings of the Ld. Trial Court is liable to be reversed. On the other hand, it is stated by the Ld. counsel for the respondents that the submissions of the appellant is contrary to the provisions of law and RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 18 : not tenable.
17.The perusal of the section 68 of the Partnership Act is necessary in this regard . Section 68 of the Partnership Act lays down the rule of evidence. This provision makes conclusive proof, of any statement, intimation or notice recorded and noted in the Register of Firms as against any person by whom or on whose behalf such statement, intimation or notice was sent. This section makes the original documents filed in the Register of Firms as conclusive proof of the fact contained in them as against any person who has signed them or on whose behalf they have been signed, but not as against any other person, to whom it is always open to prove the contrary.
18.The provisions of section 68 of the Partnership Act bounds a person by whom such intimation or notice was sent to the Register of Firms. Section 68 of the Act is based upon the principle of estoppel. This rule is not applicable against a person who has neither signed such intimation nor sent the same. A third party is not bound by provisions of section 68 of the Act. It is the admitted fact that there was no intimation or notice recorded or noted in the Register of firms which was signed or sent by respondent no. 3 to 6. Therfore, this rule is not applicable against the respondent no. 3 to 6. This contention of the RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 19 : appellant is not tenable and contrary to the provisions of law.
19.It is further stated by the appellant that only the appellant and respondent no. 1 and 2 are the partners of the firm and claim of respondent no. 3 to 6 are false and frivolous. That the name of the respondent no. 3 to 6 are nowhere reflected as partners in the partnership deed Ex. D1. That there is no written agreement on record to show that the respondent no. 3 to 6 are the partners of the firm. It is contended that in view of existence of the Registered partnership deed and in the absence of any written contract, the power of the court is excluded, to look into any other material to arrive at the conclusion that respondent no. 3 to 6 are partners of the firm. It is stated that the Ld. Trial Court had no right to look into other circumstantial evidence or other material to arrive at the conclusion that the respondent no. 3 to 6 are partners in the firm.
20.In this regard, I have perused section 6 of the Indian Partnership Act. Section 6 of the Indian Partnership Act lays down the rules for determining the existence of the partnership which provides in general terms that regard shall be paid to the real intention of the parties as shown by all the relevant facts taken together. Section 6 of the Act is the comprehensive statement of the rule in this regard. There are RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 20 : remarkable english decisions in existence which shows that insistence must be on real relation between the parties in a disputed partnership and not merely on the expressed intention of the parties. A and B may in a written agreement have stated expressly that they are not partners, yet the courts have held them as partners, or they may have stated that they are partners and the court held them not to be partners. The course taken by the judges has been to examine all the incidents of the relation between the parties as shown in written agreements, verbal agreement or mere conduct, to lay special stress on not a particular fact and not a particular legal element in partnership, but to take all the facts impartially into account and from them to deduce the real relation between the parties.
21. This section is a guide to the courts in India to determine the nature of existence of partnership between the parties. This section stress on the point that regards shall be given to the real intention of the parties as appearing from the whole facts of the case and not merely on their expressed intention. The provisions of section 6 of the Act is explicit clear that the courts while determining the existence of the partnership need not to rely upon only on the written agreement but it is the duty of the court to find out the real intention of the parties by RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 21 : surrounding facts and circumstances. The duty of the court is to find out the real intention and not merely remain dependent upon the documentary material produced before it. The contention of the appellant is based upon contrary interpretation of section 6 of the Act. In view of the existence of section 6 of the Act, the appellant is estopped from raising the contention that the Ld. Trial Court had no jurisdiction to look beyond the Registered partnership deed and other written contract. This contention of the appellant is not tenable in the eyes of law.
22.It is contented by the appellant that the Ld. Trial Court has relied upon the WILL Ex. D54 contrary to the provisions of Indian Evidence Act. That the said WILL is not proved by the respondents as per the procedure laid down in the Indian Evidence Act, therefore, the reliance placed upon the same by the Ld. Trial Court is illegal. The appellant has relied upon one judgment of the Hon'ble Delhi High Court reported as AIR 1982 Delhi 584 in support of his submissions. The Hon'ble Delhi High Court in the judgment (supra) has held as under: " The burden of proving the sound state of mind of hte maker of the WILL and execution and attestation etc of the WILL, is on its propounder. It is also further necessary for the propounder to dispel all suspicions which surrounded the WILL such as genuiness of the RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 22 : signatures of the testator, condition of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other dications in the will to show that the testator's mind was not free. If the propounder himself takes prominent part in the execution of the will which confers a substantial benefit on him, that is also a suspicious circumstance to be taken into account and the propounder is required to remove the doubt by clear and satisfactory evidence. All such legitimate suspicions should be completely removed before the document can be accepted as the last will of the testator. The court is not confined only to the manner in which the witnesses have deposed but it can look into the surrounding circumstances and probabilities so that it may be able to form a correct idea of the trustworthiness of the witnesses.
23. The perusal of the impugned judgment reveals that the Ld. Trial Court has minutely examined the Will Ex. D54. The Ld. Trial Court has dealt with all the contentions raised by the appellant regarding the WILL Ex D54. It is also not out of place to mention that the WILL Ex. D54 has not bequeathed any right upon the parties regarding to the present suit, therefore, in fact the WILL Ex. D54 is used as a collateral documents in support of the submissions made by the parties. The WILL Ex. D54 is not used by parties claiming or inheriting any right by virtue of this documents. The WILL is required RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 23 : to be proved as per provisions laid down by the Indian Evidence Act during the probate proceedings or when any property is bequeathed upon any of the parties by virtue of the said WILL.
24.The scribe of the documents Ex. D54 being old man was examined in commission as CW1. The Ld. Trial Court after analysing the whole evidence of CW1 has held that there is no reason why he should be disbelieved. The Ld. Trial Court has given the plausible reason to rely upon the testimony of CW1 (Scribe of Ex. D54). The appellant has raised the objections on the authenticity of the WILL Ex. D54, therefore, the Ld. Trial Court as a matter of abundant caution proceeded further to look into other evidence produced by the parties to arrive at any conclusion. The findings of the Ld. Trial Court is not solely based upon the WILL Ex. D54. The Ld. Trial Court has come to the conclusion by considering the WILL Ex. D54 only as one of the documents or material to corroborate the other evidence. In view of the corroborating evidence considered by Ld. Trial Court, this contention of the appellant is not tenable in the eyes of law.
25.It is stated by the appellant that the Ld. Trial Court has wrongly declined to rely upon the opinion of the Hand Writing Expert examined the appellant. That the Ld. Trial Court has wrongly relied upon the RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 24 : opinion of the Handwriting Expert examined by the respondents.
26.The appellant/plaintiff has examined the handwriting expert Sh. V.K. Sakhuja as PW15. The Ld. Trial Court has observed that " according to the expert, therefore, it thus appears that forger was very careful to leave any mark of forgery and there is no sign of forgery in signatures at Ex. D1". The report of handwriting expert PW15 has been controverted by another handwriting expert Sh. D.R. Nanda D3W10 examined by the respondent/defendant. The Ld. Trial Court has given a cogent reason to discard the report of the handwriting expert examined by the appellant/plaintiff and relying upon the report of the handwriting expert examined by the respondent/defendant. The observation of the Ld. Trial Court is based upon the settled principle of law. The Ld. Trial Court has examined the report of both the handwriting expert as per settled principles. The appellant/plaintiff has failed to point out any illegality to challenged the observations of the Ld. Trial Court on this issue. The appellant/plaintiff has failed to give any valid explanation to arrive a conclusion contrary to the observations of the Ld. Trial Court. Accordingly, this contention of the appellant/plaintiff is not tenable in the eyes of law.
27.It is also contented by the appellant that Ld. Trial Court has arrived at RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 25 : the conclusion that the respondent no. 3 to 6 are also partners in the firm without any material on record. That there was no material on record to support claim of the respondent/defendants that they are also the partners in the firm.
28.The perusal of the Ld. Trial Court record reveals that one thing has been established in the trial that the initial investment in firm DCGA was made, out of the funds of firm Pratap Singh Harnam Singh. The perusal of constitution of the firm Pratap Singh Harnam Singh is very important to determine the constitution of firm DCGA, once it is established that initial investment in the DCGA was made by the firm Pratap Singh Harnam Singh. The defendant no. 3 to 6 claim that the firm Partap Singh Harnam Singh was started by the father of the plaintiff and defendant no. 3 to 5 and the deceased husband of the defendant no. 6 out of his own funds and that after the death of the father, Sh. Rai Sahib Lala Shiv Shanker, the firm had devolved upon his four sons and widowed daughterinlaw under the WILL wherein the shares of all the five person were equal. The plaintiff has disputed the contentions raised by defendant no. 3 to 6 but the plaintiff did not claim that the firm was his proprietorship concern. The appellant/plaintiff has contended that he was partner in the firm RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 26 : DCGA exclusive of his brothers and he invested in the firm after taking the loan from firm Pratap Singh Harnam Singh. The plaintiff could not established by leading the evidence that he had taken the loan from the firm Pratap Singh Harnam Singh. Sh. Harnam Singh was another partner of the said firm who has been examined as D3W12 in the present case. Sh. Harnam Singh took the contrary stand against the plaintiff. Sh. Harnam Singh stated that the firm Pratap Singh Harnam Singh was started by his father and all the four brothers and widowed daughterinlaw was having equal share in the firm Pratap Singh Harnam Singh. This statement is of great value and force because the maker of the statement would not certainly make it, had this statement been false. Sh. Harnam Singh could not have made this statement detrimental to his own interest. He has specifically denied in his own statement that firm Pratap Singh Harnam Singh advanced any loan to the plaintiff for carrying on any business. In the impeccable testimony Sh. Harnam Singh admitted the defendant no. 3 to 6 as partners of the firm Pratap Singh Harnam Singh . The story of the appellant/plaintiff is demolished by the testimony of this witness. There are other supporting material on record which supports the stand of defendant no. 3 to 6 and demolish the case set up by the RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 27 : plaintiff. The documents Ex. D54 (Will) speaks contrary to the stand of the plaintiff. The defendants have also relied upon the partnership deed executed by the plaintiff and the defendant no. 3 to 6 in 1948 marked D1. The defendants have also produced on record the affidavit filed by plaintiff in Income Tax department praying to reduce the Income Tax assessed on him on the ground that he is a partner in the firm only to the extent of /1/ anna and the defendants no. 3 to 6 are sharing the profits to the extent /1/ anna share each. There are books of accounts of DCGA wherein a regular reduction has been made from the /5/ anna share of profits of Partap Singh in favour of the defendants no. 3 to 6 as if they were entitled to /1/ anna share in the profit of the firm. The appellant/plaintiff in his deposition could not give any plausible explanation regarding the books of account showing the payment to the defendant no. 3 to 6 out of his share of profits. The execution of the documents Ex. D1 i.e. partnership deed appearing the signatures of the plaintiff is duly proved by the handwriting expert. The Income Tax returns filed by the plaintiff in the year 1948 onwards Ex.D3W9/6, Ex. D3W9/8, Ex. D3W9/8, Ex. D3W9/10 showed /1/ anna share of the plaintiff in the firm DCGA. The plaintiff has denied any knowledge of any such returns having been filed by him but the facts RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 28 : remains that he took the benefit of the deductions in the income tax given to him on the basis of these returns. Defendant no. 3 to 6 in their income tax returns got themselves assessed on /1/ anna share each in the firm DCGA.
29.There is an order of Appellate Assistant Commissioner of Income Tax which is mark Ex D1397. This order is dated 29.10.1952, which gives remission to the plaintiff on the basis of the representation that he is a partner to the extent of only /1/ anna share in DCGA rather that /5/ anna share. The order of AAC is based upon the partnership and it is clear from the order of AAC that the plaintiff apart from producing the affidavit and the partnership deed also appeared in person alongwith his lawyer brother Sh. Tej Singh. The order of AAC is clearly reflecting the presence of the appellant/plaintiff, in which he has admitted that defendant no. 3 to 6 are having share in the partnership firm. The plaintiff though contented that he never appeared before AAC but the plaintiff has failed to prove this fact before the Ld. Trial Court.
30.A careful perusal of all the evidence and the three documents namely Partnership deed, the affidavit and the order of AAC Ex. D1397, establish on record that the plaintiff had admitted the shares of defendant no. 3 to 6 of /1/ anna each in the partnership firm DCGA. RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 29 : The Ld. Trial Court after careful analysis of the evidence has rightly come to the conclusion that the defendant no.3 to 6 are partners in DCGA and their share in the firm was /1/ anna each. There is no illegality or infirmity in the judgment of the Ld. Trial Court on this ground. The judgment of the Ld. Trial Court is well reasoned on these facts.
31.It is also contented that since defendant no. 3 to 6 were not shown as partners in the Register of Firms, therefore, they have no right to claim in the relief in the suit filed by the plaintiff.
32.The defendant no. 3 to 6 are already proved to be the partners in DCGA. There is no provision of law under which the partners can be ousted from the relief permissible to them in a suit for dissolution of partnership and for rendition of account simply because their names do not appear only in the Register of the Firms. In a suit for dissolution of partnership and rendition of accounts, both the parties are placed on equal duties and both the parties can get relief in the account taken. It is established on record that the defendant no. 3 to 6 were the partners in the firm DCGA alongwith the plaintiff, therefore, there is no reason why the defendant no. 3 to 6 being the partners in the firm DCGA alongwith the plaintiff could not get any relief in the suit filed by the RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 30 : plaintiff. In the absence of any provisions of law shown by the appellant contrary to this observation, this contention is not tenable in the eyes of law.
33.It is also contented by the appellant that Ld. Trial Court has wrongly passed the order for dissolution of the firm under clause (g) of section 44 of the Indian Partnership Act instead of clause (d) of section 44 of the Indian Partnership Act.
34.Section 44 of the Indian Partnership Act relates to dissolution of the firm by the court. Section 44 of the Act is not made subject to the contract between the parties and gives right to the partners to seek assistance of the court for the dissolution of the partnership on the ground specified in the section. This section gives powers to the court to pass the decree of dissolution of the partnership firm. The power to dissolve the firm is vested in the court by virtue of this provision. The clause (g) of section 44 of Indian Partnership Act lays down that the court may dissolve the firm on a ground which renders it just and equitable, that the firm should be dissolved.
35.It has come on record that there was lack of mutual faith and confidence between the partners. The lack of mutual faith is sufficient reason for dissolution of the partnership firm. The court may dissolve RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 31 : the partnership firm under section 44 of the Indian Partnership Act if it appears that such feeling has arised between the parties as to render it impossible that the partnership can continue with one another. If such feeling is in existence which makes it impossible for the firm to run, then the dissolution of the firm can be ordered.
36. The Ld. Trial Court has examined the terms and conditions of the partnership deed to find out any other mode of dissolution or exclusion of the partners to avoid the directions under section 44 of the Act but in the absence of any such provisions, the Ld. Trial Court comes to the conclusion that the firm is liable to be dissolved under the provisions contained in section 44 (g) of the Act.
37.In view of the definition of section 44 (g) of the Act, the contention of the appellant is not tenable as there is no illegality or infirmity in the order of the Ld. Trial Court.
38. The appellant has also contended that the Ld. Trial Court has wrongly fixed the date 06.02.1963 as the date of dissolution. It is submitted that there was no material before the Ld. Trial Court to assess the date 06.02.1963 as date of dissolution.
39. The perusal of the record reveals that the Ld. Trial Court has fixed the date of dissolution i.e. 06.02.1963 from the date on which the RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 32 : amendment application praying for dissolution of the firm was allowed and the prayer of the dissolution of the firm was incorporated by amendment. There was no prayer of the dissolution of the firm before amendment, therefore, the Ld. Trial Court has rightly declined to consider the date of filing the suit as date of dissolution. The amendment praying for dissolution was incorporated only on 06.02.1963, therefore, the Ld. Trial Court has rightly assess the date 06.02.1963 as date of dissolution of the partnership firm.
40.It is contended by the appellant that the Ld. Trial Court has wrongly held that the accounts should be taken from 01.01.1953 onwards whereas the account should have been taken from the year 1938 when the partnership in suit came into being.
41.The perusal of the impugned judgment reveals that the Ld. Trial Court has relied upon the documents Ex. P4 para 6 for arriving at the date 01.01.1953 as date of taking the accounts. In the documents Ex. P4 which is an admitted documents, the parties have admitted the assets and liabilities as shown in the books of old partnership as on 31.12.1952. The books of the old partnership were accepted by all the parties of the deed. This is the admitted documents which contains the admission of the parties regarding the accounts existing before RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 33 : 31.12.1952. When the accounts are settled between the parties and the parties agreed to accept the books of accounts, then the settled account is binding upon the parties and it is not required to be reopened on any ground.
42.The settled account as on 31.12.1952 were admitted by the parties, therefore, there was no reason to pass the order for accounts to be taken from the year 1938 when the partnership was came into existence. The Ld. Trial Court has rightly determined the date of 01.01.1953 onwards for taking the account. There is no illegality or infirmity in the findings of the Ld. Trial Court.
43.In view of the above discussion, I am of the considered opinion that there is no illegality or infirmity in the judgment of the Ld. Trial Court. None of the grounds raised by the appellant is sustainable in the eyes of law. There is no material on record in the present appeal which shows any perversity in the judgment of the Ld. Trial court . The Ld. Trial court has dealt with all the contentions/issues in great detail and length. There is cogent finding of the Ld. Trial Court on each and every issue. Accordingly, the point (A) of determination goes against the appellant and the findings of the Ld. Trial Court are affirmed.
RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 34 : Point (B)
44.It is the admitted fact that the appellant/plaintiff has already expired and a dead person could not be prosecuted for the commission of offence. Once the person is dead, the criminal proceedings or any order directing the initiation of criminal proceedings becomes abated. Since the proceedings directing the prosecution of the appellant/plaintiff for the offence of perjury under section 479 (a) Cr.P.C has become abated. Therefore, the judgment of the Ld. Trial Court does not require to be interfere on this ground. This point of determination is decided accordingly.
Point (C)
45. The respondent no. 1 has filed the cross objections in the present appeal and prayed for setting aside the findings of the Ld. Trial Court on the issues no. 1A, 3, 4, 5, 7 and 8. It is prayed by respondent no. 1/objector that suit of the plaintiff be dismissed with cost.
46. It is stated by ld. counsel for the objector that ld. Trial Court should have held that the firm was not liable for dissolution and the suit for accounts was not maintainable. The ld. Trial Court should have given due weight to the partnership deed Clause 10 dated 1.1.53 which has clearly ruled out the possibility of any dissolution. That ld. Trial Court RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 35 : has wrongly come to conclusion that mutual faith and friendship between the partners had been completely broken and it was quite reasonable that the partnership should be brought to an end.
47. The ld. Trial Court has passed the order for dissolution of the firm under Section 44 (g) of the Indian Partnership Act. Section 44 of the Partnership Act empowers the court to pass a decree of the dissolution of the firm. By virtue of the existence of the provisions of Section 44 of the Partnership Act, the court was having ample power to entertain the suit for dissolution of the firm and consequently for accounts. This provisions is not made subject to the contract between the parties and gives a right to the partners to seek the assistance of the court to have the partnership dissolved on the grounds specified in this section. The absence of any provision in the partnership deed does not take away the power granted to the courts by the statutes. The power granted under Section 44 can be exercised by the courts in the absence of any clause containing the provision for dissolution of the firm in the Partnership Deed or in any written contract between the parties.
48. By virtue of Section 11 of the Partnership Act, any Partnership Deed or contract between the parties is subject to the provisions of Partnership Act and Section 44 gives power to the court to pass a RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 36 : decree for dissolution of a partnership firm. Section 11 of the Act does not override the provisions of Section 44. The power to dissolve a firm is vested in the court by the provision of law and it is not a matter to be decided by partners by virtue of their contract.
49. Conclusion: In view of the provisions of Section 44 of the Partnership Act, the grounds contained in the cross objections are not tenable in the eyes of law. There is no illegality or infirmity in the findings of the ld. Trial Court.
50.In view of the above discussion, the present appeal filed by the appellant against the preliminary decree dated 28.09.1973 passed by the court of Ms. Manju Gupta, the then ld. SubJudge Ist class is dismissed. The cross objections filed by respondent no. 1, Sh. Deputy Mal Jain against the preliminary decree dated 28.09.1973 is also dismissed.
51. The present appeal is disposed off against the preliminary decree passed by the court of Ms. Manju Gupta, the then ld. SubJudge Ist class. The further proceedings and the final decree is yet to be passed. The present appeal was assigned to the ld. predecessor of this court, when there was a single Sessions & Civil District and a single District and Sessions Judge in the entire Delhi. The successor of ld. Trial Court RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 37 : may be within the jurisdiction and control of present District Judge (HQ) Tis Hazari Court, Delhi. Therefore, the Trial Court alongwith copy of this judgment be sent to the Ld. District Judge (Headquarter) through the Ld. District Judge (West) with a request to assign the same to the successor court of Ld. Trial Court, which passed the preliminary decree or to any other court as per provisions of law. The parties are directed to appear before the ld. District and Sessions Judge (Headquarter), Tis Hazari Court, Delhi on 10.07.2015 at 2 P.M. File be consigned to record room after completion of necessary formalities.
Devender Kumar Jangala ADJ07/West/Delhi 21.05.2015 The order contains 37 pages. All are duly signed by me.
Devender Kumar Jangala ADJ07/West/Delhi 21.05.2015 RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors : 38 : RCA No: 32/14 Pratap Singh & ors vs Deputy Mal Jain & ors