Andhra HC (Pre-Telangana)
Shivraj Reddy And Brothers And Anr. vs S. Raghuraj Reddy And Ors. on 19 October, 2001
JUDGMENT Y. Somayajulu, J.
1. These appeals are being disposed of by a common Judgment because common questions of law and fact arise for consideration, though some parties only are common in both the suits.
2. 1st respondent in both these appeals is the plaintiff in both the suits. He filed two suits for dissolution of two partnership firms and rendition of accounts. In C.C.C.A. No. 35 of 1999 the case of the plaintiff is that he, Shiva Raj Reddy (his eldest brother), Balraj Reddy and others had formed themselves into a partnership firm in the name and style of 'Shiv Raj Reddy and Brothers' for carrying on business by undertaking construction work contracts. In C.C.C.A. No. 40 of 1999 his case is that he, Shiva Raj Reddy (his eldest brother) and others formed a firm 'Shiva Raj Reddy & Brothers, B. Arjun Reddy & Co.,' to carry on business in film production distribution, exhibition etc., and constructed 'Aradhana Theatre'. His case in both the suits is that his share capital in the two firms was invested by his eldest brother Shiva Raj Reddy, the Karta of their joint family, from out of the share of his income from the joint family property and that those two firms have been submitting income tax returns and his share of profits were being given to him till 1991 and thereafter Shiva Raj Reddy stopped paying his share of profits and hence the suits.
3. Shiva Raj Reddy, who is the 2nd Defendant in O.S. No. 67 of 1997 out of which C.C.C.A. No. 35 of 1999 arises and 1st defendant in O.S. No. 121 of 1997 out of which C.C.C.A. No. 40 of 1999 arises filed written statements on his behalf and on behalf of two firms which are shown as 1st defendant in O.S. No. 67 of 1997 and 9th defendant in O.S. No. 121 of 1997, that he undertook contract works with his own money in his name and that the joint family of himself and plaintiff had no property or income, and since the name 'Shiva Raj Reddy and Brothers' brought him good luck he is carrying on business in that name only showing the plaintiff and some of his relatives nominally as partners in his business.
4. Defendants 3 and 4 in O.S. No. 67 of 1997 and defendants 2 to 4 in O.S. No. 121 of 1997 adopted the written statement filed by Shiva Raj Reddy for himself and on behalf of the firms. Defendants 5 to 8 in O.S. No. 121 of 1997 chose to remain ex parte.
5. In both the suits plaintiff besides examining himself as PW.1 examined his auditor as PW.2 and marked Exs.A1 to A20 in O.S. No. 67 of 1997 and Exs.A1 to A13 in O.S. No. 121 of 1997. Only Shiva Raj Reddy was examined on behalf of the defendants in both the suits as DW.1. No documentary evidence was adduced in O.S. No. 67 of 1997 by defendants but they got marked Ex.B1 in O.S. No. 121 of 1997.
6. By the decrees under appeal, the trial Court, negativing the contention of Shiva Raj Reddy held in favour of the plaintiff in both the suits. Hence these appeals by Shiva Raj Reddy on behalf of himself and the firms, hereinafter called the 'appellants'.
7. The contention of Mr. Mahmood Ali, learned counsel for the appellants, is that since the averments in the plaint and the evidence of plaintiff as PW.1 in both the suits is that his share of capital contribution in the firms came from out of the income of the joint family, and since the contention of Shiva Raj Reddy is that the joint family had no property much less income fetching property, and since there is no presumption that a joint family possesses property, the burden of proof to establish that the joint family has property and was deriving income there from is on the plaintiff and since the plaintiff failed to adduce any such evidence, the contention that plaintiff invested some amounts in the two firms cannot be believed or accepted. It is his contention that since the evidence of Shiva Raj Reddy, as DW.1, shows that the firms were brought into existence for income tax purpose and to elevate the status of his brothers, plaintiff is not entitled to claim any right as a partner in the firms. He relied on MUDIGOWDA vs. RAMCHANDRA, and APPALA SWAMI vs. SURYANARAYANA MURTI, AIR. 1947 P.C. 189 in support of his contention that there is no presumption that a Hindu family, merely because it is joint, possesses joint property or nucleus to acquire properties and till sufficient nucleus is either admitted or proved, acquisition made by a member of a joint family cannot be presumed to be the property belonging to the joint family. He contend that since plaintiff had also filed a suit for partition claiming certain properties as joint family properties, till that suit is disposed of, the question as to whether the joint family had any income fetching properties or not, and if the investment said to have been made came from the income from joint family cannot be determined, and so these two suits should have been tried jointly with the suit for partition (O.S. No. 122 of 1997) filed by the plaintiff. Relying on G.NARAYANA RAJU vs. CHAMARAJU, and LAKSHMI vs. MEENAKSHI, SYED ABDUL MAJID vs. VISHWANATHAN, AIR.1950 Mysore 33 NANCHAND GANGARAM vs. M.M.SADALGE, ,SHANMUKHESWARA RAO vs. VENKATAPPAIAH AND SONS, 1986(1) A.L.T. 313; SATCHIDANANDA SAMANTA vs. RAJAN KUMAR BASU, he contended that merely because Shiva Raj Reddy was carrying on business with the income earned by him, and had shown his relatives as partners for the purpose of income tax, plaintiff cannot seek a share in his business. It is his contention that if the contention of the plaintiff that his share capital came out of the joint family funds is to be true, the business carried on by plaintiff and Shiva Raj Reddy would become the joint family business, and so plaintiff should file a comprehensive suit for partition and cannot file three separate suits for partition and dissolution of the firms and in any event the suit filed by plaintiff for partition is not maintainable as it amounts to a suit for partial partition. He relied on KENCHEGOWDA vs. SRI SIDDEGOWDA, J.T. 1994(2) S.C. 125 in support of his contention that suit for partial partition is not maintainable. Relying on M.L.ARYA MURTHY VS. M.L.SUBBARAYA, he contended that since presumption that the property acquired by Shiva Raj Reddy is joint family property over which other members can claim share does not arise, in this case plaintiff is not entitled to any relief in these suits. Relying on M.MUNIA vs. MANOHAR LAL, A.I.R. 1941 Oudh 429, NACHIAPPA vs. MUTHU KARUPPAN, A.I.R. 1946 Madras 398, JUPUDI VENKATA VIJAYA BHASKAR vs. JUPUDI KESAVA RAO, and SHRI KRISHAN vs. KURUKSHETRA UNIVERSITY, he contended that an admission made in ignorance of legal rights has no binding effect, and as held in JUPUDI VENKATA VIJAYA BHASKAR (13 supra), merely because Shiva Raj Reddy had shown the name of the plaintiff as his partner for the purpose of income tax, plaintiff would not become a partner of Shiva Raj Reddy and in any event since Balraj Reddy, shown as one of the partners in "M/s. Shiva Raj Reddy & Brothers" (covered by CCCA. No. 35 of 1999) died in 1984, the said firm stood dissolved in 1984 and since there is no evidence on record to show that a new firm with redefined shares came into existence, or was constituted subsequently as held in RAM NIWAS vs. DIWAN CHAND, A.I.R. 1933 Lahore 618 the suit for dissolution and rendition of accounts filed in 1996 is clearly barred by time.
8. The contention of Mr. Prakash Reddy, learned Additional Advocate General, appearing on behalf of the plaintiff is that since it is not the case of the plaintiff that the business being carried on by the firms in these two suits is joint family business, and since it is the specific case of the plaintiff that he, along with his elder brother Shiva Raj Reddy, entered into a partnership with oth 7 ' bjbjUU )7|7|1Š3/4 l œ d d d x D D D 8 | 7 ' bjbjUU )7|7|1Š3/4 l œ d d d x D D D 8 | nd rendition of account of his share in those firms. He relied on I.T. COMMISSIONER, M.P., vs. H.M. CO., , PICHAPPA vs. CHOKALINGAM, A.I.R. 1934 P.C. 192 and FIRM BHAGAT RAM vs. E.P.T. COMMISSIONER, in support of the said contention. Relying on ATTA MD., vs. EMPEROR, A.I.R.1930 Privy Council 57 he contended that appellants cannot be permitted to raise a plea not taken in their written statement. It is his contention that though death of a partner, in the absence of contract to be contrary, results in dissolution of the firm, if the remaining partners continue the partnership business, a contract can be implied, because "Contract to the contrary" in Section 42 of Partnership Act can be either express or implied. He relied on RAM KUMAR vs. KISHORI LAL, A.I.R. 1946 Allahabad 259, TULSI RAM vs. ANNI BAI, , DEVJI GOA vs. TRICOMJI JIWANDAS, A.I.R. 1945 Privy Council 71 and COMMISSIONER INCOME TAX vs. G.S.MILLS, in support of the said contention. It is his contention that since Shiva Raj Reddy as DW.1 in O.S. No. 67 of 1997 stated that he removed the plaintiff from the partnership in 1991, it clearly establishes that there was an agreement to continue the partnership after the death of Balraj Reddy, and so there are no grounds to interfere with the decrees under appeal.
9. In reply, the contention of Mr. Mahmood Ali is that a stray sentence in the deposition of DW.1 cannot be picked up and the evidence of DW.1 in its entirety has to be considered to appreciate his evidence. Relying on NAGUBAI vs. B.SHAMRAO, , SHIV RAM vs. SHIV CHARAN, ; MARUDANA YAGAM vs. SOLA PILLAI, and C.KOTESWARA RAO vs. C.SUBBA RAO, and SUNIL CHANDRA vs. HEMENDRA K.DEB, he contended that for an admission to be acted upon it must be clear and specific, and should be taken as a whole.
10. Since it is the specific case of the plaintiff that he is only a partner in the two firms covered by suits, and since it is NOT his case that those businesses are being carried on by him and his brother Shiva Raj Reddy as members of the joint family or as a joint family businesses, and hence is entitled to a share therein as a co-parcener, the ratio in MUDI GOWDA (1 supra), APPALASWAMI (2 supra), NARAYANA RAJU (3 supra), LAKSHMI (4 supra), SAYED ABDUL MAJID (5 supra), NAN CHAND GANGARAM (6 supra), SHANMUKESWARA RAO (7 supra), SATCHIDANANDA SAMANTA (8 supra), KENCHE GOWDA (9 supra) and M.L.ARYA MURTHY (10 supra) does not apply to the facts of this case, and those decisions have little relevance for deciding these appeals and the question as to whether the joint family of the plaintiff, Shiva Raj Reddy and their brothers has any property or income fetching property and if suit for partition is a suit for partial partition are wholly irrelevant for deciding these appeals.
11. The question as to whether plaintiff invested any capital in the firms or not pales into significance if the factum of partnership agreement is established, inasmuch as contribution of capital by a partner is not the SINE QUA NON for the validity of partnership. As per Section 18 of Partnership Act every partner is the agent of the firm. Therefore, the act of a partner would be treated as 'act of a firm', which is defined in Section 2(a) of the Partnership Act. As per Section 25 of Partnership Act, all partners of the firm are jointly and severally liable for the act done by the other partner as partner of the firm. Section 185 of the Contract lays down that consideration is not necessary for creation of agency. So even without making any contribution towards capital a person can validly become a partner of a firm. In ABBA DADA AND CO., vs. C.I.T., 6 I.T.R. 470 it was held that it is not necessary that all partners should have contributed towards the capital of the firm for the partnership to be genuine. In VEERENDRA KUMAR AVINASH KUMAR vs. C.I.T., it is held that for finding out the genuineness of a partnership contribution of capital by a partner is not necessary. In VIJAYA LAXMI TALKIES vs. C.I.T., five brothers constituted a partnership firm along with a sixth partner, who alone provided the entire capital. All six partners agreed to share profits while loss was agreed to be borne by the financing partner alone. The five brothers agreed to retire from the firm when it made a net profit of Rs. One Lakh. That firm was held to be a genuine firm entitled to registration under Income Tax Act. In SHAHBUDDIN MOHD. RAZAS vs. C.I.T., (62) 46 I.T.R. 203 registration of the firm under Income Tax Act was refused as there was no separate capital account of the partners of the firm. The High Court held that the fact that some partners had not contributed anything towards the capital is not a circumstance to refuse registration of firm under the Income Tax Act. In view thereof even if no investment was made by plaintiff, it has no consequence on the genuineness of the two firms. In fact Ex.A4 in O.S. No. 67 of 1997 and Ex.A5 in O.S. No. 121 of 1997 show that plaintiff did make contributions towards share capital of those firms. Therefore whether those amounts came from out of the share of income of plaintiff in the joint family, or if those amounts were invested by Shiva Raj Reddy from out of his own money on behalf of plaintiff would be of academic interest only and does not have a bearing on the validity or genuineness of the two firms.
12. Ex.A4 dated 25-4-1978 in O.S. No. 67 of 1997 is the deed of partnership of "M/s. S. Shiva Raj Reddy & Brothers" to which all partners subscribed their signatures. Exs.A1 and A2 in O.S. No. 67 of 1997 show that that firm was registered with the Registrar of Firms on 21-12-1978. Ex.A5 in O.S. No. 121 of 1997 is a certified Xerox copy of the Reconstituted Deed of Partnership dated 1-10-1986 between the partners of "M/s. S. Shiva Raj Reddy & Brothers and M/s. B. Arjun Reddy and Co.," to which all the partners subscribed their signatures. Since the said certified copy was issued by Assistant Commissioner of Income Tax, Circle 6(1), Hyderabad, it is clear that that firm was registered under the provisions of Income Tax Act. But there is no documentary evidence on record to show that the said firm was registered with the Registrar of Firms. Ex.A9 in O.S. No. 67 of 1997 is a certified copy of application for registration of firms, submitted by Shiv Raj Reddy, Raghu Raj Reddy (plaintiff), Bal Raj Reddy, Dhanraj Reddy and Narayana Reddy to the Registrar of Firms for registration of "M/s. Shiva Raj Reddy and Brothers", containing signatures of all the partners. Therefore, in view of Section 68 of the Partnership Act which reads-, "(1) 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 therein stated;
(2) A certified copy of an entry relating to a firm in the Register of Firms may be produced in proof of the fact of the registration of such firm and all the contents of any statement, intimation or notice recorded or noted therein".
Read with Section 4 of Evidence Act, Shiv Raj Reddy is precluded from contending that plaintiff was not a partner of the firm "M/s. S. Shiva Raj Reddy and Brothers" (see BELASROY vs. SCINDIA STEAM NAVITATION COMPANY, A.I.R. 1940 Rangoon 294).
13. In view of Ex.A5 in O.S. No. 121 of 1997, which is not denied or disputed by Shiva Raj Reddy, it is clear that plaintiff is also a partner of that firm from 1-10-1986. Therefore, the contention of Shiva Raj Reddy that plaintiff is nominally shown as a partner cannot be countenanced in view of Sections 91 and 92 of Evidence Act also.
14. In para 4 of the plaint in O.S. No. 67 of 1997 plaintiff alleged that Balraj Reddy, one of the partners of 'M/s. S. Shiva Raj Reddy & Brothers' expired in 1984 and that his son, being his legal heir and successor was "co-opted" into the firm to the extent of the share of Balraj Reddy. Section 42 of the Partnership Act lays down that unless there is a contract to the contrary, a firm dissolves by death of a partner. Ex.A4 in O.S. No. 67 of 1997 does not contain a clause that remaining partners can carry on the business of the firm even after the death of a partner. Therefore on the death of Balraj Reddy in 1984 the firm "M/s. Shiva Raj Reddy and Brothers" stood dissolved.
15. The contention of the learned Additional Advocate General is that an implied contract between the surviving partners to continue the business of the partnership can be inferred in view of the evidence on record. In DEVJI GOA (21 supra) relied on by the learned Additional Advocate General, a concern by name Tricumji Jivandas and Goa Petha were partners of the firm, for whose dissolution the suit was filed. In that case one person by name Tricumji Jivandas carried on business in his own name. After his death, seven out of his eight sons and their descendants, continued the business in the same name i.e., 'Tricumji Jivandas' and entered into a partnership with Goa Petha to acquire lands and work as a Colliery. Several years after the death of Goa Petha suit for dissolution of the firm was filed by 'Tricumji Jivandas'. The representatives of Goa Petha took a plea that the suit filed several years after the death of Goa Petha was barred by limitation. Repelling that contention it was held that since the partnership between 'Tricumji Jivandas' and Goa Petha went on as a living concern continuously since the time it was started, irrespective of separations or deaths of some members in Tricumji Jivandas family, where sons and grandsons took the place of their fathers, the Court presumed consent by Goa Petha to continue the business by treating the remaining members, and the members that were added in Tricumji Jivandas from time to time, as partners of the firm, and held that the cause of action arose only after the death of Goa Petha. That decision was referred to and followed in TULSI RAM case (20 supra), a case where suits were filed against a firm by name 'Surajmal Maniklal', for recovery of amounts borrowed by its partners for the business of the firm. Repelling the contention that promissory note executed by Pannalal cannot bind the other partners of the firm 'Surajmal Maniklal' after the death of Surajmal in 1946, as the said firm stood dissolved on the death of Surajmal, it was held that in spite of the fact that a partnership stands dissolved on the death of a partner, unless it is otherwise contracted for, since the subsequent conduct of the parties in that case showed that despite the death of Surajmal, the partnership continued and functioned, it should be taken that it had continued by virtue of a contractual relationship. In the above two cases the Court basing on the evidence on record that the remaining partners continued the business after the death of a partner, held that by virtue of continuance of business, a contract between the remaining partners can be implied.
16. In Ram Kumar (20 supra) a third party borrowed money from a firm consisting of two partners and executed a bond in favour of the firm. After the death of a partner the remaining partner filed the suit in the name of the firm, alleging that the firm is continuing with the wife and adopted son of the deceased partner, without dissolution. Allahabad High Court took the view that a contract to continue the firm after the death of a partner can be implied because of widow and adopted son taking the place of the deceased partner. Supreme Court considered the said decision in G.S.MILLS Case (22 supra) and observed that the question of inapplicability of Section 42(2) of the Partnership Act to a partnership consisting of only two partners was neither raised nor decided in RAM KUMAR (20 supra), and after considering the views of the various High Courts on the question whether a partnership consisting of only two partners dissolves on the death of a partner, the Supreme Court agreeing the view taken by Madras High Court, and disapproving the view of Calcutta High Court, held that such firm automatically comes to an end and so there is no scope for a third party to be introduced as a partner into such firm, and that it is open to the surviving partner to enter into a new partnership with the heirs of the deceased partner, as per the wishes of the deceased partner. In cases of partnership containing more than two partners also, when there is no contract to the contrary, since the partnership automatically gets dissolved on the death of a partner, in view of Section 42 of Partnership Act, even if the remaining partners continue the business of the earlier firm, such continuance has to be taken and understood to have arisen as a result of a fresh contract between the remaining partners. C.I.T. vs. NALLI SILK EMPORIUM, (1991) 89 C.T.R. 288 = 102 Tax 534 relates to a case of a partnership which did not contain a clause that the remaining partners can continue the business after the death of a partner. The Court held that since the firm dissolves on the death of a partner, the surviving partners have no option to continue the firm, and so separate assessments will have to be made for the period up to the date of death of a partner, and from the date of death up to the date of constitution of a new firm. Therefore, if after the death of Balraj Reddy the remaining partners continued the business, it can only be by virtue of a fresh agreement. So plaintiff has to establish that the remaining partners carried on business for partnership for the Court implying a fresh contract conversely for the Court implying a fresh or implied contract between the remaining partners, there should be evidence on record to show that the remaining partners continued or carried on the same business as a firm.
17. Though in para 4 of the plaint in O.S. No. 67 of 1997 it is alleged that after the death of Balraj Reddy in 1984, his son Dhan Raj Reddy, an existing partner of the firm, was given the share of Balraj Reddy, and the business of the firm continued, plaintiff while giving evidence as PW.1 in O.S. No. 67 of 1997, did not state anything about reconstitution of the firm or re-adjustment of shares among partners after the death of Balraj Reddy. What all he stated in his chief examination is that after the death of Bal Raj Reddy, his sons, (3rd defendant), became entitled to his share. PW.2 is the auditor of the firm. He did not speak anything about the reconstitution or about a fresh agreement between the parties, after the death of Balraj Reddy. During cross-examination he stated that he does not have record to show the works done by the firm (M/s. Shiva Raj Reddy & Brothers) from 1983-84 onwards. Exs.A5 to A14 in O.S. No. 67 of 1997 relate to assessment years 1983-84 and years prior thereto. Though Ex.A13 is dated 12-1-1996, it relates to the assessment year 1983-84, for which a return was filed on 17-1-1984. Ex.A14 also relates to the assessment year 1983-84 though it is dated 15-1-1986. Thus, the oral and documentary evidence adduced by the plaintiff in O.S. No. 67 of 1997 does not show that the firm 'M/s. S.Shiva Raj Reddy & Brothers' continued to exist and (or) did business subsequent to the death of Balraj Reddy. No evidence is adduced to show that subsequent to the death of Bal Raj Reddy, the alleged new firm was filing income tax returns.
18. The evidence of Shiva Raj Reddy as DW.1 in O.S. No. 67 of 1997 is that the firm "M/s. S. Shiva Raj Reddy & Brothers" was created by him for the purpose of income tax and that no business was done in the name of the said firm and that income tax returns were submitted in the name of the said firm till 1990-91, and that in1993 he changed the name of the firm as "S.S.R. Constructions" with his sons and daughter as new partners. During cross-examination he stated that as head of the family he paid amounts to the plaintiff as partner of the firm, and that as per Clause 2 of Ex.A4 (in O.S. No. 67 of 1997) works allotted to him would be deemed to be the works done by the firm, and that he did not intimate the Registrar of Firms about the change of name of the firm as "S.S.R. Constructions" or about induction of his son and daughter as partners in "S.S.R. Constructions" and that he removed the name of the plaintiff from the partnership and did not intimate the same to the Registrar of Firms, but intimated the plaintiff in 1991, and did not give him a share, since he is not a partner of the firm. Nothing is brought out during the cross-examination of DW.1 to show that there was an understanding between the remaining partners to continue the firm 'M/s. S.Shiva Raj Reddy & Brothers" after the death of Balraj Reddy or to show that it was reconstituted with enhanced share to his son Balraj Reddy (3rd defendant). The contention of the learned Additional Advocate General that since DW.1 in O.S. No. 67 of 1997 admitted that the firm M/s. S.Shiva Raj Reddy & Brothers, continued till 1991, it has to be taken that there was an implied contract between the remaining partners to continue the firm, has no force. The evidence of DW.1 is that he informed the plaintiff in 1991 that he was removed from partnership. It is necessary to mention here that O.S. No. 121 of 1997 was filed in 1991 as O.S. No. 754 of 1991 on the file of the Additional Judge, City Civil Court. After its transfer to Additional Chief Judge, it is renumbered as O.S. No. 121 of 1997. Along with that suit, plaintiff also filed a suit for partition in O.S. No. 755 of 1991 which was renumbered as O.S. No. 122 of 1997. Later he filed this suit O.S. No. 3 of 1996 on 3-12-1995 seeking dissolution of M/s. S. Shiva Raj Reddy & Brothers, which is later renumbered as O.S. No. 67 of 1997. In para 7 of the plaint in O.S. No. 67 of 1997 plaintiff alleged-
"It is humbly submitted that upon the said suits being instituted, the 2nd defendant adopting a vengeful attitude and in collusion with the defendants 3 and 4 has kept out the plaintiff from the 1st defendant firm and has malafidely denied the plaintiff any share of the profits from the 1st defendant firm since 1991, so also the plaintiff has also been denied access to not only the business and day-to-day affairs of 1st defendant firm but has also refused to let the plaintiff scrutinise the Accounts Books and related Books and vouchers in order to ascertain the true state of affairs".
It is thus clear that even according to the plaintiff he was kept out of the business of 'M/s. S. Shiva Raj Reddy & Brothers' from 1991, after he filed two suits O.S.Nos.755 and 757 of 1991 against Shiva Raj Reddy and others, and so it is clear that even in 1991 plaintiff knew that Shiva Raj Reddy expelled him from "M/s. Shiva Raj Reddy & Brothers" and was not giving him his share of profits, and was not allowing him to have access to the account books and properties of the said firm. Therefore, the cause of action, for his reinstitution as a partner, or for his seeking dissolution, and share of profits etc., in respect of the firm M/s. S.Shiva Raj Reddy & Brothers accrued to him in 1991. But, for the reasons best known to him, plaintiff did not think it to file a suit till 29-12-1995. The period of limitation for such suit is governed by the residuary Article 113 of Limitation Act i.e., 3 years from 1991, as held in DIN MOHAMMAD vs. KANSHI RAM, A.I.R.1930 Lahore 378 and NARSINGH DAS vs. BHAIRAN DAN, . Therefore, even from the averments in the plaint, the suit is barred by time.
19. There is also no evidence on record to show that the change in partnership was notified to the Registrar of Firms or the income tax authorities, though the original partnership was registered with the Registrar of Firms and under Income Tax Act. If there was a fresh agreement between the remaining partners of 'M/s. S.Shiva Raj Reddy and Brothers' to continue the firm subsequent to the death of Balraj Reddy who redefined shares an intimation they should have been sent to the Registrar of Firms and the Income Tax authorities also. In the absence of evidence to show that the remaining partners carried on business after taking a decision to continue the firm by readjusting the shares among themselves in the same name of 'M/s. S.Shiva Raj Reddy & Brothers'' the suit for rendition of accounts of such firm filed in 1995 when Balraj Reddy died in 1984 is hopelessly barred by time because as per Article 5 of Limitation Act such suit has to be filed within three years from the date of dissolution. Though plea of limitation is not taken in the written statement, since Section 3 of the Limitation Act injuncts the Court dismissing the suits filed beyond the period of limitation prescribed, in spite of defence of limitation not being taken, the suit has to be dismissed on the ground of limitation. So, I hold that plantiff is not entitled to any relief in O.S. No. 67 of 1997.
20. NAGUBAI AMMAL (23 SUPRA) AND MARUDANNA YAGAM PILLAI (25 supra) and various other decisions relating to admissions, relied on by Mr. Mahmood Ali have no application to the facts of this case. The ratio in SHIVRAM (24 supra) case is that though the entire statement containing the admission has to be considered, the Court is not bound to believe or disbelieve the statement as a whole, and where there is other evidence in the case, in the light of that evidence, the Court may believe one part of the statement and disbelieve the other. In SUNIL CHANDRA GHOSE (27 supra) case the Supreme Court held that the Court is entitled to accept a part and reject the other part of the testimony of a witness and that the plaintiff in a case cannot be allowed to dissect the written statement of the defendant and avail those parts favorable to him and discard the parts not favorable to him and plaintiff will not be allowed to succeed in view of the variance of the case of defendant in the written statement and evidence.
21. The averments in the written statement filed by Shiva Raj Reddy in O.S. No. 121 of 1997 i.e., C.C.C.A. No. 40 of 1999 show that the factum of the plaintiff being a partner in the firm is admitted. The only contention of Shiva Raj Reddy in that case is plaintiff did not contribute any amount, he cannot seek any relief as a partner of the firm. As stated earlier contribution of capital by a partner is not a condition precedent for a person to become a partner in a firm, or his being given a share in the profits therein. Ex.B1 in O.S. No. 121 of 1997 shows that 9 persons, including the plaintiff, entered into a partnership to carry on business in the name and style of 'S.Shiva Raj Reddy and Brothers and B. Arjun Reddy and Co.,'. Ex.A5, a copy of the Reconstitution Deed of Partnership between the parties, also shows that plaintiff as a partner in the reconstituted firm. Therefore, it is clear that plaintiff is a partner of the firm covered by O.S. No. 121 of 1997.
22. Exs.A6 to A13 in O.S. No. 121 of 1997 have no relevance for deciding O.S. No. 121 of 1997 because they are certified copies of the plaint, written statement, deposition of DW.1 in O.S. No. 67 of 1997, Exs.A1, A4, A18 and A19, and deposition of DW.1 in O.S. No. 122 of 1997 and have no bearing on the issue in this case. They are unnecessarily allowed to be brought on record and thereby the record is burdened. In fact Exs.A8 and A13 certified copies of the deposition of Shiva Raj Reddy in O.S.Nos.67 of 1997 and 122 of 1997 ought not to have been allowed to be brought on record in view of Section 33 of Evidence Act. They could at best be used for contradictions if any under Section 145 of evidence Act.
23. Coming to oral evidence, plaintiff as PW.1 stated that after receipt of Ex.A4 he filed the suit seeking dissolution of the firm. PW.2 is the Chartered Accountant of the firm. His evidence is that he has been filing income tax returns on behalf of the firm, which was registered under the provisions of the Income Tax Act, from 1983 and the firm was making profits. Nothing useful was elicited during his cross-examination. The evidence of Shiva Raj Reddy as DW.1 is that he and 5th defendant (Arjun Reddy) contributed equal amounts and purchased a site and constructed Aradhana theatre in that site, and that the plaintiff did not contribute any amount and that he issued Ex.A4 in the capacity as Managing Director. During cross-examination he stated that plaintiff's share was being shown in the income tax returns of the firm till 1991, and after removal of the plaintiff, the firm was not reconstituted. The said evidence does not establish the contention that plaintiff is not a partner of the firm. Moreover, Ex.A1 cuts at the root of the case of appellants, that plaintiff is not a partner of the firm. If plaintiff is not a partner, questioning his expulsion from the firm does not arise.
24. The evidence of DW.1 that he and 5th defendant (Arjun Reddy) purchased the site in their name is contrary to the recital in Ex.B1. The specific recital in Ex.B1 is that a bid to purchase the site was given through the part of the first part (i.e., S.Shiva Raj Reddy) and party of the 6th part (i.e., B. Arjun Reddy) and that 'M/s. S.Shiva Raj Reddy & Bros., and B. Arjun Reddy and Co.,' was declared as the highest bidder, and auction was confirmed by the Hyderabad Urban Development Authority. In view of that above recital in Ex.B1, oral evidence of DW.1 to the contra cannot be believed or accepted, as it is hit by Sections 91 and 92 of the Evidence Act.
25. The cause of action for the suit as per the plaint in O.S. No. 121 of 1997 arose on 17-8-1991 i.e., date of Ex.A1. As per Section 33 of the Partnership Act, a partner cannot be expelled from the firm by majority of partners except in good faith, and when such power is conferred as per the contract between the partners. Exs.B1 and A5 do not contain a provision for expulsion. Therefore, the question of Shiva Raj Reddy exercising the power to expel the plaintiff from the partnership does not arise.
26. The firm is one at will. Therefore as held in BANARASI DAS vs. KANSHI RAM, it stood dissolved on the date on which summons accompanied by a copy of the plaint was served on the defendants. The record of the trial Court in O.S. No. 121 of 1997 shows that by 25-11-1991 some defendants were served and by 16-12-1991 all the defendants were served with summons in the suit. Therefore, it should be taken that the firm stood dissolved on 16-12-1991.
27. Plaintiff cannot seek rendition of account for a period of more than three years prior to the date of suit. In any event since admittedly the firm was submitting income tax returns, the share of profit of the plaintiff would be the share as shown in the income tax returns. Since DW.1 stated that he did not pay the share to the plaintiff his share, plaintiff can seek rendition of account for a period of three years prior to the filing of the suit and not beyond a period of three years prior to the filing of the suit.
28. In view of the above discussion, I find no grounds to interfere with the decree for dissolution of the firm passed by the trial Court in O.S. No. 121 of 1997. So, I find no merits in C.C.C.A. No. 40 of 1999.
29. In the result, C.C.C.A. No. 35 of 1999 is allowed with costs and C.C.C.A. No. 40 of 1999 is dismissed with costs.