Kerala High Court
A.V.Mithra Devi @ Mithra R.Rao vs Sobhana V.Shenoy on 12 January, 2021
Author: T.V.Anilkumar
Bench: T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942
RFA.No.429 OF 2007
AGAINST THE JUDGMENT AND DECREE IN OS 342/1997 DATED 28-02-
2007 OF II ADDITIONAL SUB COURT,ERNAKULAM
APPELLANT IN RFA/PLAINTIFF IN SUIT:
A.V.MITHRA DEVI @ MITHRA R.RAO
D/O.A.L.VASUDEVA SHENOY, AGED 37, XL/4468,
OPP.CARMEL BUILDINGS, BANERJI ROAD, ERNAKULAM,
KOCHI-18, NOW RESIDING AT SATHYA SREE,
T.C.16/408, EASWARAVILASOM ROAD, EDAPAZHANJI,
THIRUVANANTHAPURAM-695014.
BY ADVS.
SRI.S.V.BALAKRISHNA IYER (SR.)
SRI.K.JAYAKUMAR (SR.)
SRI.P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
SRI.SABU GEORGE
SRI.P.B.SUBRAMANYAN
RESPONDENTS IN RFA/DEFENDANTS IN SUIT:
1 SOBHANA V.SHENOY
W/O.LATE A.L.VASUDEVA SHENOY, RESIDING AT
XL/4468, BANERJI ROAD, ERNAKULAM, KOCHI-18.
2 A.V.GOPALAKRISHNA SHENOY
S/O. DO. IN DO. DO., C/O.THE NEW GUNA SHENOY
COMPANY, BROADWAY, ERNAKULAM, KOCHI-31.
3 A.S.SASIDHARA SHENOY
S/O.LATE A.L.SREENIVASA SHENOY, XL/5540,
T.D.ROAD, ERNAKULAM, KOCHI- 35, C/O.THE NEW GUNA
SHENOY COMPANY, BROADWAY, ERNAKULAM, KOCHI-31.
4 A.S.NARAYANA SHENOY, S/O. DO. IN DO.
NOW REPRESENTED BY HIS POWER OF ATTORNEY HOLDER,
A.S.SASIDHARA SHENOY, C/O.THE NEW GUNA SHENOY,
COMPANY, BROADWAY, ERNAKULAM, KOCHI-31.
R.F.A.No.429 of 2007
& C.O.No.26 of 2008
:-2-:
5 A.S.SURESH SHENOY, S/O. DO. IN DO. DO.
C/O.THE NEW GUNA SHENOY COMPANY, BROADWAY,
ERNAKULAM, KOCHI-31.
6 A.S.GUNA SHENOY
S/O.LATE A.L.SREEDHARA SHENOY, XL/4467, BANERJI
ROAD, ERNAKULAM, KOCHI-18, C/O.THE NEW GUNA
SHENOY COMPANY, BROADWAY, ERNAKULAM, KOCHI-31.
7 DR.REMA PAI
W/O.LATE DR.KRISHNAND PAI, JAYA MANSION,
DR.PAI'S ROAD, POOJAPURA, THIRUVANANTHAPURAM,
NOW RESIDING AT FLAT NO.C8, LINK LAKSHMAN,
APARTMENTS, VALANJAMBALAM, KOCHI-16.
8 DR.RADHA SHENOY, W/O S.V.SHENOY
XL/5540, T.D.ROAD, ERNAKULAM, KOCHI-35 NOW,
RESIDING AT C/O.GLOBAL ENTERPRISE, P.B.NO.1925,
POSTAL CODE III, SEEB, SULTANATE OF OMAN,
REP.BY, HER P/A HOLDER, A.S.SASIDHARA SHENOY,
C/O.THE NEW GUNA SHENOY COMPANY, BROADWAY,
ERNAKULAM, KOCHI-31.
9 JAYA PAI, W/O.DR.RAJEEV PAI
JAYA MANSION, DR.PAI'S ROAD, POOJAPURA,
THIRUVANANTHAPURAM, REP.BY HER P/A HOLDER,
DR.REMA PAI, FLAT NO.C8, LINK LAKSHMAN
APARTMENTS, VALANJAMBALAM, KOCHI-16.
10 SHANTA S.SHENOY
W/O LATE A.L.SREENIVASA SHENOY, XL/5540,
T.D.ROAD, ERNAKULAM, KOCHI-35, NOW RESIDING AT,
FLAT NO.C8, LINK LAKSHMAN APARTMENTS,
VALANJAMBALAM, ERNAKULAM, KOCHI-16.
11 SUNIL G.SHENOY
S/O.A.S.GUNA SHENOY, RESIDING AT XL/4467,
BANERJI ROAD, ERNAKULAM, KOCHI-18, C/O.SHENOY
GARMENTS, SHENOY CHAMBERS, SHANMUGHAM, ROAD,
KOCHI-31.
R.F.A.No.429 of 2007
& C.O.No.26 of 2008
:-3-:
12 ANIL G.SHENOY
S/O.DO. IN DO. DO. DO., C/O.SHENOY GARMENTS,
SHENOY CHAMBERS, SHANMUGHAM ROAD, ERNAKULAM,
KOCHI-31.
13 AJITH G.SHENOY, S/O.A.A.GUNA SHENOY
IN DO. DO. LATE A MINOR NOW A MAJOR, C/O.THE
NEW SHENOY COMPANY, BROADWAY, ERNAKULAM,
KOCHI-31.
14 SREEDHAR G.SHENOY, S/O. DO.
LATE A MINOR NOW A MAJOR, IN DO., C/O.THE NEW
SHENOY COMPANY, BROADWAY, ERNAKULAM, KOCHI-31.
15 A.S.SATHEESH ANAND SHENOY
S/O.SASIDHARA SHENOY, LATE A MINOR, NOW A MAJOR,
RESIDING AT XL/5540, T.D.ROAD,
ERNAKULAM, KOCHI-35.
16 A.S.SADASIV SHENOY
S/O.DO., LATE A MINOR, NOW A MAJOR, IN DO. DO.
17 SUDHEER N.SHENOY, S/O.NARAYANA SHENOY
LATE A MINOR, NOW A MAJOR, IN DO. DO., REP.BY
HIS P/A HOLDER, A.S.SASIDHARA SHENOY, THE NEW
GUNA SHENOY COMPANY, BROADWAY,
ERNAKULAM, KOCHI-31.
18 RANJITH G.SHENOY
S/O.A.V.GOPALAKRISHNA SHENOY, LATE A MINOR, NOW
A MAJOR, RESIDING AT XL/4468, BANERJI ROAD,
ERNAKULAM, KOCHI-18.
19 M/S.LINK INDIA HOMES PVT.LTD.
A.V.S.BUILDING, XL/5886, M.G.ROAD, ERNAKULAM,
KOCHI-35, REPRESENTED BY MANAGING DIRECTOR.
20 THE NEW GUNA SHENOY COMPANY
BROADWAY, ERNAKULAM, KOCHI-31, REPRESENTED BY
ITS MANAGING PARTNER.
R.F.A.No.429 of 2007
& C.O.No.26 of 2008
:-4-:
21 SASIDHARA SHENOY & BROTHERS
C/O.SHENOY'S VISTARAMA THEATRE, M.G.ROAD,
ERNAKULAM, KOCHI, REPRESENTED BY ITS, MANAGING
PARTNER.
22 SHENOY GARMENTS SHENOY CHAMBERS
SHANMUGHAM ROAD, ERNAKULAM, KOCHI, REPRESENTED
BY ITS MANAGING PARTNER.
R19 BY ADV. SRI.A.BALAGOPALAN
R19 BY ADV. SRI.IMTHIYAZ AHAMED
R1 TO R18 AND R20 TO R22 BY ADV.
SRI.E.K.NANDAKUMAR (SR.)
SRI.M.GOPIKRISHNAN NAMBIAR
SRI.T.KRISHNANUNNI (SR.)
R3, R5 & R6 BY ADV. SMT.MEENA.A.
R3, R5 & R6 BY ADV. SRI.VINOD RAVINDRANATH
R3, R5 & R6 BY ADV. SMT.M.R.MINI
R3, R5 & R6 BY ADV. SRI.ASHWIN SATHYANATH
R3, R5 & R6 BY ADV. SRI.ROHIT NANDAKUMAR
R3, R5 & R6 BY ADV. SRI.K.C.KIRAN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
22-12-2020, ALONG WITH CO.26/2008, THE COURT ON 12-01-2021
DELIVERED THE FOLLOWING:
R.F.A.No.429 of 2007
& C.O.No.26 of 2008
:-5-:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942
CO.No.26 OF 2008 IN RFA. 429/2007
AGAINST THE DECREE AND JUDGMENT IN OS 342/1997 DATED 28-02-
2007 OF II ADDITIONAL SUB COURT,ERNAKULAM
CROSS OBJECTORS/RESPONDENTS 1 AND 2 IN RFA/DEFENDANTS 1 AND
2 IN SUIT:
1 SOBHANA V.SHENOY, AGED 69 YEARS
W/O.LATE A.L.VASUDEVA SHENOY, RESIDING AT,
XL/4468, BANERJI ROAD, ERNAKULAM-18.
2 A.V.GOPALAKRISHNA SHENOY
AGED 52 YEARS, S/O.LATE A.L.VASUDEVA SHENOY,
RESIDING AT XL/4468, BANERJI ROAD, ERNAKULAM-18.
BY ADV. SRI.E.K.NANDAKUMAR (SR.)
RESPONDENTS/APPELLANT & RESPONDENTS 3 TO 22 IN
RFA/DEFENDANTS IN SUIT:
1 A.V.MITHRA DEVI ALIAS MITHRA R.RAO
D/O.A.L.VASUDEVA SHENOY, AGED 37 YEARS, XL/4468,
OPP.CARMEL BUILDINGS, BANERJI ROAD, ERNAKULAM-
682 018, NOW RESIDING AT SATHYA SREE, TC 16/408,
THIRUVANANTHAPURAM.
2 A.S.SASIDHARA SHENOY, S/O.LATE A.L.SREENIVASA
SHENOY, XL/5540, T.D.ROAD, ERNAKULAM, COCHIN-35,
C/O.THE, NEW GUNASHENOY COMPANY, BROADWAY,
ERNAKULAM, COCHIN-682 031.
R.F.A.No.429 of 2007
& C.O.No.26 of 2008
:-6-:
3 A.S.NARAYANA SHENOY
S/O.A.L.SREENIVASA SHENOY, XL/5540, T.D.ROAD,
ERNAKULAM, COCHIN-35, REPRESENTED BY HIS POWER
OF ATTORNEY HOLDER, A.S.SASIDHARA SHENOY,
C/O.THE NEW GUNASHENOY, COMPANY, BROADWAY,
ERNAKULAM, COCHIN-682031.
4 A.SURESH SHENOY,
S/O.LATE A.L.SREENIVASA SHENOY, XL/5540,
T.D.ROAD, ERNAKULAM, COCHIN-35, C/O.THE NEW GUNA
SHENOY COMPANY, BROADWAY,
ERNAKULAM, COCHIN-682 031.
5 A.S.GUNASHENOY,
S/O.LATE A.L.SREEDHARA SHENOY, XL/4467, BANERJI
ROAD, ERNAKULAM - 682018, C/O. THE NEW GUNA
SHENOY COMPANY, BROADWAY ,
ERNAKULAM, COCHIN 682031.
6 DR.RAMA PAI,
W/O.LATE DR.KRISHNANTHDA PAI, JAYA MANSION
DR.PAI S ROAD, POOJAPURA, THIRUVANANTHAPURAM NOW
RESIDING AT FLAT NO.C-8, LINK LAKSHMAN
APARTMENTS, VALANJAMBALAM, KOCHI-16.
7 DR.RADHA SHENOY,
W/O S.V.SHENOY, XL/5540, T.D.ROAD, ERNAKULAM,
KOCHI-35 NOW RESIDING AT C/O.GLOBAL ENTERPRISE
P.B.NO.1925, POSTAL CODE III, SEEB, SULTANATE OF
OMAN, REP.BY HER POWER OF ATTORNEY HOLDER
A.S.SASIDHARA SHENOY,C/O THE NEW GUANA SHENOY
COMPANY, BROADWAY ERNAKULAM, KOCHI-31.
8 JAYA PAI,
W/O.DR.RAJEEV PAI, JAYA MANSION, DR.PAI'S ROAD,
POOJAPPURA, THIRUVANANTHAPURAM, REP.BY HER POWER
OF ATTORNEY HOLDER DR.REMA PAI, FLAT NO.C8, LINK
LAKSHMAN APARTMENTS VALANJAMBALAM, KOCHI-16.
R.F.A.No.429 of 2007
& C.O.No.26 of 2008
:-7-:
9 SHANTA S.SHENOY,
W/O LATE A.L.SREENIVASA SHENOY, XL/5540,
T.D.ROAD, ERNAKULAM, KOCHI-35, NOW RESIDING AT
FLAT NO.C8, LINK LAKSHMAN APARTMENTS,
VALANJAMBALAM ERNAKULAM, KOCHI -682016.
10 SUNIL G.SHENOY,
S/O.A.S.GUNA SHENOY, RESIDING AT XL/4467,
BANERJI ROAD, ERNAKULAM, KOCHI -682018 ,
C/O.SHENOY GARMENTS, SHENOY CHAMBERS, SHANMUGHAM
ROAD, KOCHI- 682031.
11 ANIL G.SHENOY
S/O.GUNA SHENOY, RESIDING DING AT XL/4467,
BANERJI ROAD, ERNAKULAM - 682018, C/O.SHENOY
GARMENTS, SHENOY CHAMBERS, SHANMUGHAM ROAD,
KOCHI- 682031.
12 AJITH G.SHENOY,
S/O.A.S.GUNA SHENOY, RESIDING AT XL/4467 BANERJI
ROAD, ERNAKULAMA-682018, LATE A MINOR NOW A
MAJOR C/O.THE NEW SHENOY COMPANY, BROADWAY,
ERNAKULAM,KOCHI-31.
13 SREEDHAR G.SHENOY,
S/O.A.S.GUNA SHENOY, RESIDING AT XL/4467 BANERJI
ROAD, ERNAKULAMA-682018, LATE A MINOR NOW A
MAJOR C/O.THE NEW SHENOY COMPANY, BROADWAY,
ERNAKULAM,KOCHI-31.
14 A.S.SATHEESH ANAND SHENOY,
S/O.SASIDHARA SHENOY, LATE A MINOR NOW A MAJOR,
RESIDING AT XL/5540 T.D.ROAD, ERNAKULAM, KOCHI-
682031.
15 A.S.SADASIV SHENOY,
S/O.SASIDHARA SHENOY, LATE A MINOR NOW A MAJOR,
RESIDING AT XL/5540 T.D.ROAD,
ERNAKULAM,KOCHI-31.
R.F.A.No.429 of 2007
& C.O.No.26 of 2008
:-8-:
16 SUDHEER N.SHENOY,
S/O.NARAYANA SHENOY, LATE A MINOR, NOW A MAJOR,
RESIDING AT XL/5540, T.D.ROAD, ERNAKULAM KOCHI-
682035 REPRESENTED BY HIS POWER OF ATTORNEY
HOLDER, A.S.SASIDHARA SHENOY THE NEW GUNA SHENOY
COMPANY, BROADWAY, ERNAKULAM,KOCHI-31.
17 RANJITH G.SHENOY,
S/O.A.V.GOPALAKRISHNA SHENOY, LATE A MINOR, NOW
A MAJOR RESIDING AT XL/4468, BANERJI ROAD,
ERNAKULAM KOCHI-681018.
18 M/S.LINK INDIA HOMES PVT.LTD.,
A.V.S.BUILDING, XL/5886, M.G.ROAD ERNAKULAM,
KOCHI -35, REPRESENTED BY MANAGING DIRECTOR.
19 THE NEW GUNA SHENOY COMPANY,
BROADWAY, ERNAKULAM, KOCHI-35 REPRESENTED BY ITS
MANAGING PARTNER.
20 SASIDHARA SHENOY AND BROTHERS
C/O.SHENOYS VISTARAMA THEATRE, M.G.ROAD,
ERNAKULAM, KOCHI REPRESENTED BY ITS MANAGING
PARTNER.
21 SHENOY GARMENTS,
SHENOY CHAMBERS, SHANMUGHAM ROAD, ERNAKULAM,
KOCHI, REPRESENTED BY ITS MANAGING PARTNER.
R18 BY ADV. SRI.IMTHIYAZ AHAMED
R1 BY ADV. SRI.K.JAYAKUMAR
R18 BY ADV. SRI.A.BALAGOPALAN
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY
HEARD ON 22-12-2020, ALONG WITH RFA.429/2007, THE COURT ON
12-01-2021 DELIVERED THE FOLLOWING:
R.F.A.No.429 of 2007
& C.O.No.26 of 2008
:-9-:
Dated this the 12th day of January, 2021
J U D G M E N T
The sole plaintiff in O.S.No.342 of 1997 before the IInd Additional Sub Judge, Ernakulam, is the appellant. Her suit for partition of plaint A schedule items to F schedule items and also for share of profits from the immovable properties as well as partnership assets held by her deceased father Sri.Vasudeva Shenoy, was partly decreed by the impugned judgment and decree.
2. Being aggrieved by the refusal of division of some of the plaint items and dismissal of claim for share of profits from partnership assets, she filed this appeal.
3. Defendants 1 and 2 in the suit are also partly aggrieved by the decree and hence they also filed Cross Objection No.26/2008. Both matters were R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-10-:
heard together.
4. The claims advanced by the appellant in the suit are briefly narrated below.
Appellant is the sole daughter of late Sri.A.L.Vasudeva Shenoy. He died on 14.02.1996 leaving behind the appellant-daughter, his wife- first defendant and the sole son-second defendant as his legal heirs. Plaint A schedule items 1 to 10 are landed properties that belonged to the joint family of Sri. Vasudeva Shenoy who are followers of Hindu Mitakshara law. In Ext.A2 partition deed dated 29.09.1950 executed between Sri.Vasudeva Shenoy, who was then a minor, Lakshmana Shenoy-his father, and his two elder sons Sreedhara Shenoy and Sreenivasa Shenoy, plaint A schedule items were allotted to Sri.Vasudeva Shenoy's share under plaint D schedule. After birth of second defendant, D schedule property became coparcenary property of R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-11-:
the father and son. The coparcenars subsequently divided the properties as between them under Ext.A7 partition deed dated 29.06.1972 and Ext.A6 partition deed dated 27.06.1974.
5. Plaint A schedule items 1, 2, 3, (5.665 cents), 4 and 8 became the separate properties of Sri.Vasudeva Shenoy following the said partition deeds. Appellant claims 1/3rd share in these items as class I heir under the Hindu Succession Act, 1956. She does not claim any right in respect of plaint A schedule items 6 and 7 as is obviously clear from the paragraph 27 of the plaint itself. Plaint A schedule 9 and 10 items were allotted to the share of second defendant under Ext.A2 while A schedule item No.5 was retained by Sri. Vasudeva Shenoy as his own share under the deed. Appellant concedes that she does not claim physical division of any of these three items since they have already R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-12-:
become the assets of D20, the New Guna Shenoy Partnership Firm, of which Sri. Vasudeva Shenoy was a partner till his death.
6. Even otherwise also, she cannot claim division of partnership assets in so far as the instant suit filed is not for dissolution of the Firm. D20 Firm is an on going Firm which cannot be dissolved otherwise than by consent of all partners as already agreed upon in the deed of partnership. Appellant is not admittedly a partner of the Firm. Moreover, substantial portion of plaint A schedule items 9 and 10 was already sold by the Firm converting its assets into cash. What the appellant therefore advances with respect to plaint A schedule items 5, 9 and 10 is 1/3rd claim purportedly made by her as the representative of deceased partner (Sri.Vasudeva Shenoy) under Section 37 of the Indian Partnership Act, 1932 (for R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-13-:
short, 'the Act') for such share of profit held by the deceased in the Firm since the date of death. That is how D20 Firm came to be made a party to the suit.
7. We are not concerned with plaint B schedule properties since concededly no relief is sought by the appellant in respect of these items.
8. Plaint C schedule items 1 to 4 are properties which appellant's grandfather Sri.Lakshmana Shenoy obtained under Ext.A2. He subsequently executed Ext.B3 registered Will on 30.06.1959 in favour of appellant's father, and his brother Sreenivasa Shenoy bequeathing these items to their joint share. After death of Sreenivasa Shenoy, his wife and children who are defendants 3 to 5 and 7 to 10 inherited the deceased. That is how they also came to be made parties to the suit. Appellant as class I heir of her deceased father, R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-14-:
claims 1/3 right over what Vasudeva Shenoy would have got under Ext.B3.
9. Plaint D schedule consists of five items.
Plaint E schedule item Nos.1 to 26 are investments of money made by Sri.Vasudeva Shenoy in various institutions. Plaint F schedule item Nos.1 to 14 are, according to the appellant, movable assets owned by father at the time of his demise. She therefore claims 1/3 share in respect of plaint E and F schedule items also.
10. Plaint D schedule item No.1 is a six storied building titled, 'Shenoy Chambers' and 28 cents in which the building is situated. The Shenoy Chambers is in the occupation of various tenants let out by the respective owners of the floors who consist of Sri.Vasudeva Shenoy also. The 28 cents in which the huge mansion is situated is owned by four different persons among whom also appellant's R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-15-:
late father includes. Out of 28 cents, Sri.Vasudeva Shenoy and his son, D2 each own 5.665 cents separately held by them under Ext.A7 partnership deed. D4 and D12 are other two owners who own the remaining extent of land. These owners along with some of the defendants in the suit who are non owners mutually agreed to construct a three storied flat entering into Ext.B6 unregistered agreement dated 07.02.1987 contributing their share of investment and apportion the income of the building among them at specified ratio. Subsequently, after completion of the floors, Ext.A8 construction agreement dated 26.06.1990 was entered into between the persons agreeing to allot specific portions in the constructed floors to persons named therein. Subsequently also, Ext.A9 agreement dated 23.12.1995 was similarly entered into between owners and non owners contributing their agreed R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-16-:
shares of investment for construction of additional stories upto the sixth floor. There was also specific agreement to allot new floors constructed, among them.
11. The appellant's case is that her father having contributed 5.665 cents and also expended amounts for construction, as per the agreements above, was to get 11% of the income accruing from the lease of the building and after father's death, she became entitled to 1/3rd of 11% of his share of income in respect of plaint D schedule item No.1. She also claims 1/3 share of ground rent which each of the four owners of 28 cents is entitled under Ext.A7 agreement, besides her 1/3 share of title to northern 5.665 cents that devolved on her as legal heir of Sri.Vasudeva Shenoy.
12. Plaint D schedule item No.2 extending to 68 cents in which the theatres "Shenoy's" and "Little R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-17-:
Shenoy's" are situated is claimed by the appellant to be the assets of D20 Firm. This property is stated to be acquired in the names of D2 to D5 under Ext.B12 registered deed dated 16.09.1966 while the assignees were minors as well as the partners of D20 to which they had already been admitted by virtue of Ext.B23 partnership deed dated 20.12.1965. Ext.B12, it is contended by the appellant, recites that consideration for acquisition was paid, out of the funds that belonged to the Firm. The claim that the appellant therefore advances is that as the legal heir of deceased partner, she is entitled to the share of profits which was due to Sri. Vasudeva Shenoy from the Firm.
13. Defendants 20, 21 and 22 respectively are the three registered partnership Firms. In each of these Firms, according to the appellant, her father R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-18-:
had 33%, 33% and 50% of share capital respectively at the time of his demise and therefore she is entitled to 1/3rd of the share of benefits which the deceased would have got. Referring to Ext.B21 partnership deed dated 01.04.1992, appellant contends that capital contribution made by Sri. Vasudeva Shenoy to D20 Firm was to carry interest at the rate of 18% per annum as stipulated therein.
14. Lastly it is contended that there is one more item of asset not scheduled in the plaint but earned by D20 Firm, named as 'Sreedhar theatre property', and comprised in 25 cents. It is submitted that Sri.Vasudeva Shenoy being a partner of D20 was entitled to due share of profits accruing from the said theatre also and consequently appellant is entitled to 1/3rd share thereof equal to D1 and D2.
15. Defendants 20, 21 and 22 partnership Firms R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-19-:
filed joint written statement. Defendants 1 to 7 and 10 to 18 also filed joint written statement.
16. These defendants are widows, children and grandchildren of deceased Sri.Vasudeva Shenoy, Sreedhar Shenoy and Sreenivasa Shenoy and most of them are partners of the Firm also. D19 is a builder who under Ext.B25 agreement constructed 'Link Lakshman' flat in plaint A schedule items 9 and 10. His contentions are, however, not presently relevant, since the flat constructed was admittedly sold away during the pendency of the suit itself.
17. The contentions raised by the contesting defendants are all common and mutually supportive.
18. The main contention raised in the written statement is that none of the plaint items is partible since deceased Sri.Vasudeva Shenoy had executed an unregistered Will (Ext.B4) dated 01.01.1995 bequeathing most of the plaint items in R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-20-:
favour of D1, D2 and D18 and his grandson, Rahul Shenoy who is not a party to the suit. Appellant though being one of the legatees under Ext.B4 Will, was not given any substantial share benefiting her.
19. It is contended by the defendants that some of the plaint properties do not at all exist and are not therefore available for partition.
Appellant's right to claim 1/3 of immovable assets was also disputed, even if it is conceded that Sri.Vasudeva Shenoy died intestate. It is seriously urged that appellant cannot seek any relief in the present suit with respect to partnership assets, since legal remedy in that respect lies in instituting a suit for final settlement of accounts under the provisions of the Partnership Act, as legal representative of the deceased partner. It is submitted that right to share of profits or 6% interest out of partnership assets claimable under R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-21-:
Section 37 of the Act and pursued by the appellant cannot be urged in the instant suit brought for partition and separate possession of the suit properties owned by the deceased partner in his individual name. The maintainability of suit claiming share in the benefits of deceased partner was seriously attacked by the contesting defendants.
20. In the plaint itself, the appellant denied execution of Ext.B4 Will and assailed its genuineness pointing out manifold suspicious circumstances centering around alleged execution.
21. The trial court raised as many as eight issues which comprised of maintainability of suit to the extent it contained claim for share of profits from partnership assets and also of bar of limitation. While the suit was held to be brought within time, claim made under Section 37 of the Act R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-22-:
was rejected. The appellant assailed Exts.A8 and A9 construction agreements as invalid under law and vitiated for several reasons. These agreements were held by the court below to be lawful and valid.
22. In appeal, the appellant gave up the plea attacking validity of Exts.A8 and A9 and accepted the correctness of the finding in that respect.
23. The three major issues which engaged the attention of the trial court are;
(1) Whether late Sri.Vasudeva Shenoy executed Ext.B4 Will and it was genuine ?
(2) Whether plaint schedule properties are partible under law and if so, what is the share in each item due to the appellant ?
(3) What are the equities and reservations to be considered during division and allotment of properties ?
24. In the process of resolving the issues R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-23-:
aforesaid, the trial court admitted documentary evidence consisting of Exts.A1 to A19 on the side of the appellant and Exts.B1 to B25 on the side of the respondents herein. Exts.X1 to X4 and Exts.C1 and C2 are the other documents relied on by the court below. Oral evidence adduced consists of PWs.1 to 3 and DWs.1 to 5 on the respective side of the parties.
25. Issue as to execution and genuineness of Ext.B4 Will was completely answered in favour of the appellant. The trial court did a laborious exercise in order to find out the genuineness of the disputed document and after referring to nine suspicious circumstances and discussing the evidence on record in great detail as evident from paragraph Nos.22 to 33 in the impugned judgment, held that Will was forged and it could not be relied on.
R.F.A.No.429 of 2007& C.O.No.26 of 2008
:-24-:
26. This finding was challenged by defendants 1 and 2 in the cross objection already referred to above contending that the finding was contrary to evidence and law. However, during the course of the arguments, the learned counsel for respondents 1 and 2 did not seriously pursue the contentions in the cross objection. Even otherwise also, on reappreciating the evidence and suspicious circumstances relied on by the court below, I am satisfied that the conclusion rejecting Ext.B4 is based on evidence and in accordance with law and consequently it does not call for any interference in the appeal.
27. Issue as to partibility of plaint items was not answered fully in favour of the appellant. The trial court refused to accept the plea as to partibility in regard to plaint A schedule item Nos.1 to 3 and also plaint C schedule item Nos.1 R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-25-:
and 3. While accepting the contention of appellant that plaint A schedule items 5, 9 and 10 are D20 Firm's property, the court below allowed her to work out her rights as the representative of the deceased partner in the manner provided by clauses 15 and 16 of Ext.B21 partnership deed which was in force on the date of demise of Sri.Vasudeva Shenoy.
28. The court below rejecting appellant's plea held that plaint D schedule item No.2 is not the asset of the Firm and she was not entitled to any relief in respect of that item.
29. Among plaint D schedule item Nos.3 to 5, which are mentioned to be capital contributions made by Sri.Vasudeva Shenoy in the three partnership Firms, no finding was entered into with respect to plaint D Schedule item No.5. No relief was also granted to appellant in respect of that item. Her claim as to plaint D schedule item No.4 R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-26-:
was rejected. In respect of plaint B schedule item No.3 also, the trial court did not award any substantial relief except directing the appellant to pursue rights conferred by clauses 15 and 16 of Ext.B21. After finding the plaint E and F schedule items to be partible by 1/3, relegated the question as to their availability for partition to the stage of final decree. So also, the aspects relating to equities and reservations were referred to the final decree proceedings.
30. Appellant is not fully content with the preliminary decree though she accepted some of the findings in the impugned judgment. She seeks in this appeal modification of the impugned decree contending that she is entitled to increased number of shares in respect of a few items of plaint properties than those declared by the court below. She has another grievance also that instead of she R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-27-:
being directed to fall back upon clauses 15 and 16 in Ext.B21, the court below should have granted a decree declaring her 1/3 right in the share of profits due to Sri.Vasudeva Shenoy's estate in partnership Firm's assets in terms of Section 37 of the Act.
31. It is significant to note that in the cross objection filed by respondents 1 and 2, they do not appear to have raised any contentions attacking the preliminary decree except for the reason that finding as to Ext.B4 Will was illegal. But however, the said contention as to Will was not, as already mentioned by me, seriously pursued before me.
32. I heard Adv.Sri.Balakrishna Iyer, learned Senior counsel appearing for the appellant, the learned Senior counsel Adv.Sri.Krishnanunni who appeared for respondents 6, 20, 21 and 22 and also Adv.Sri.Gopikrishnan, the learned counsel appearing R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-28-:
for respondents 1 and 2.
33. During the course of the arguments, the learned Senior Counsel for the appellant submitted written notes, in which he stated that some of the conclusions recorded by the trial court with respect to a few plaint schedule items are correct and hence are not assailed in appeal.
34. It was submitted that conclusion of the court below that plaint A schedule item No.1 extending to 37 cents is not available for partition, is correct. That part of the decree is not challenged in the appeal. Plaint A schedule item Nos.6 and 7 are items for which no relief was claimed by the appellant in the plaint itself. Appellant's claim for 1/3 share in respect of plaint A schedule item No.8 was accepted by the court below as such and therefore, no challenge is taken with respect to that right.
R.F.A.No.429 of 2007& C.O.No.26 of 2008
:-29-:
35. Appellant's counsel submits that claim for partition in respect of plaint C schedule item Nos.1 an 3 was rightly refused by the trial court. Thus, there is no challenge as to that part of the decree also in appeal. Further, there is no challenge as to decree for division of plaint C schedule item Nos.2 and 4 also since 1/6 right of the appellant thereof was declared as per law. Same is the position in respect of finding as to plaint D schedule item No.4 also. The appellant does not propose to challenge the said finding by which relief respecting D schedule item No.4 was refused.
36. Points that arise for consideration in this appeal in the light of various factual and legal contentions raised by the learned counsel appearing on either side are the following;
(i) Whether the finding that appellant is entitled to 1/6th out of plaint A schedule items R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-30-:
2 and 4 in lieu of 1/3rd which she claimed, is legal ?
(ii) Whether the finding that plaint A schedule item No.3, i.e., 11 1/8 cents of land, is owned by D20 Firm, is legal ?
(iii) Is the appellant entitled to 1/3 of title to northern 5.665 cents of land held in the name of Sri.Vasudeva Shenoy and comprised in plaint A schedule item No.3?
(iv) Is she also entitled to 1/3 of joint rights held by Sri.Vasudeva Shenoy over the ground and fourth floors of Shenoy Chambers ?
(v) Is she also entitled to get 1/3 of the share in the ground rent of Shenoy Chambers due to Sri.Vasudeva Shenoy?
(vi) Is the finding of the court below leaving the appellant to pursue her rights as representative of deceased partner in D20 Firm R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-31-:
in terms of clauses 15 and 16 of Ext.B21 is legal ?
(vii) Is appellant's plea under Section 37 of the Act for share of profits of the deceased partner is legal and sustainable in the instant suit and if so, what is the extent of share of profits to which the deceased partner Sri.Vasudeva Shenoy could be held entitled to ?
(viii) Is appellant entitled to 1/6th share in the building situated in plaint C schedule item Nos.2 and 4 also ?
(ix) Is the finding that plaint D schedule item No.2 was not proved to be the asset of D20 Firm legal and correct? Is the appellant in that event entitled to demand her share of profits left by the deceased partner in terms of Section 37 of the Act ?
(x) Did Sri. Vasudeva Shenoy hold 33% of share R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-32-:
capital in D20 Firm and was entitled to 18% interest thereof in terms of stipulations made in Ext.B21 partnership deed ?
(xi) Is appellant entitled to claim 1/3 of benefits arising out of such share capital as the representative of Sri.Vasudeva Shenoy ?
(xii) Is appellant entitled to any share of profits respecting plaint D schedule item No.5 ?
(xiii) Is Sreedhar theatre located in 25 cents which is not scheduled in the plaint, asset of D20 Firm ?
(xiv) Whether plaint E and F schedules are available for partition ?
37. Point No.1 : The grievance of the appellant is that the court below after having found plaint A schedule items 2 and 4 to be partible, went wrong in restricting her share to 1/6 instead of her R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-33-:
lawful 1/3 share. These items are admitted ancestral properties of Sri.Sreenivasa Shenoy. They were allotted to him as per Ext.A2 partition deed under D schedule while he was a minor. After birth of son-D2, quite naturally the properties in the hands of father became coparcenary property. The father and son later through two subsequent partition deeds viz., Exts.A7 and A6 divided the coparcenary properties along with some other items whereunder plaint A schedule item Nos.2 and 4 came to be allotted to the share of Vasudeva Shenoy.
38. In other words, subsequent to Exts.A6 and A7, the coparcenary status of the parties changed and the items of property under partition deeds became the separate asset of Sri. Vasudeva Shenoy. The property could no longer continue to be impressed with the character of coparcenary after the change in the status of parties. Therefore, the R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-34-:
finding of the court below that D2, son also possessed half share in plaint A schedule item Nos.2 and 4 and he was, therefore, entitled to 1/6 is legally wrong. The learned counsel appearing for respondents 1 and 2 also could not legally support the finding of the court below. Plaint A schedule item Nos.2 and 4 thus being the separate properties of Vasudeva Shenoy, the appellant is entitled to equal 1/3 among the three legal Class I heirs of deceased.
39. The learned counsel for respondents 1 and 2 submitted that though A schedule item No.2 is described as 8 cents, what is actually available for partition at present is only a shop building. This was conceded by the learned counsel for the appellant also.
40. Learned counsel for respondents 1 and 2 made a further submission that plaint A schedule R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-35-:
item No.4 despite being described as having an area of 24 cents in the plaint, its actual extent is far less and limited to 16½ cents as per Ext.A7. What is the actual extent of property available for partition is ordinarily a matter liable to be ascertained at the time of final decree. It is, therefore, made clear that whatever be the available extent of item No.4, the legal heirs of deceased Vasudeva Shenoy would be entitled to claim equal rights among them.
41. The finding of the trial court that appellant is entitled only to 1/6th of plaint A schedule item Nos.2 and 4 is thus clearly wrong. Appellant, on the other hand, is held to be entitled to 1/3 of item Nos.2 and 4. Point No.1 is answered in favour of the appellant.
42. Point No.8 : It is submitted by the learned counsel for the appellant that 1/6th share declared R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-36-:
in favour of the appellant as per the impugned preliminary decree over plaint C schedule item Nos.2 and 4, should have ensured to the building therein also. This submission is by all means correct. It is obvious from Ext.B3 Will dated 30.06.1959 executed by father, Lakshmana Shenoy that these two items were allotted to the joint share of his two sons, namely, Vasudeva Shenoy and Sreenivasa Shenoy, along with the building also.
Necessarily, 1/6th right in favour of appellant should take in the building as well. No dispute was raised by the learned counsel for respondents 1 and 2 in this respect. The preliminary decree passed by the court below, therefore, requires to be slightly so modified as to take in the building also.
43. Points 2 to 5 : Plaint A schedule item No.3 extends to 11 1/8 cents of land. In fact, the entire 11 1/8 cents are not owned by Vasudeva R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-37-:
Shenoy. Under Ext.A7 partition deed effected between Vasudeva Shenoy and D2, the former was allotted northern 5.665 cents and the latter, southern 5.665 cents. What appellant claims is 1/3 of title held by deceased father. This claim was refused by the trial court taking the view that the whole property already became the assets of D20 Firm.
44. After hearing both counsel, I am of the opinion that this finding is clearly wrong and illegal. None of the parties has a case in their pleadings that either the landed property aforesaid or the building therein named Shenoy Chambers (plaint D schedule item No.1) was ever assigned to the Firm or for any purpose connected with the use of the Firm at any point of time. None of the documents produced by parties also discloses that either 5.665 cents obtained by Vasudeva Shenoy or R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-38-:
plaint D schedule item No.1, building in the said land, was ever used as asset of the Firm. DW3, the second defendant in his examination also admitted that plaint A schedule item No.3 did not belong to the Firm.
45. It was contended by the learned counsel for respondents 1 and 2 relying on Exts.A8 and A9 construction agreements executed by Vasudeva Shenoy and some of the defendants who are non owners of the land in which the building is situated, that Sri.Vasudeva Shenoy ceased to hold title to 5.665 cents after execution of the construction agreements above.
46. It is a fact that plaint D schedule item No.1 Shenoy Chambers was constructed in an area having an extent of 28 cents which were jointly contributed by four persons including Vasudeva Shenoy. The other contributors who owned portions R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-39-:
of 28 cents are D2, D6 and D12. Some of the defendants in the suit who are non owners of the land also joined these four persons and agreed under Ext.B6 agreement dated 07.02.1987 to contribute this specific shares also for construction of Shenoy Chambers. Under clause 11 of Ext.B6, each of the contributors agreed to apportion net income and loss arising out of leases of apartments to tenants. The court below held on the basis of clause 11 of Ext.B6 that Vasudeva Shenoy was entitled to 11% of income from out of the lease of Shenoy Chambers and appellant being one of the legal heirs would be entitled to 1/3rd thereof. This finding appears to be legal and appellant also accepts it to be correct. Even otherwise also, the correctness of this finding of the trial court is not challenged by the defendants in the cross objection.R.F.A.No.429 of 2007
& C.O.No.26 of 2008
:-40-:
47. The contention of respondents 1 and 2 that Ext.B6 did not survive after execution of Exts.A8 and A9 and was superseded does not appear to be factually correct since these three documents were executed at different times for different purposes in the common interest of all persons who contributed to the setting up of Shenoy Chambers. There is nothing in any of these three documents to indicate that Sri.Vasudeva Shenoy either relinquished or parted with his title or interest in 5.665 cents owned by him nor that he diverted his title or allowed the non owners to acquire right in the land. A person building on a land not of his own with the permission of real owner, will not ipso facto acquire right in the soil also unless rights in the land are assigned to him. No such assignment of interest or title in the land in favour of non owner defendants could be deciphered R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-41-:
from any of the documents on record. It is clear from the wholesome reading of Exts.B6, A8 and A9 that Vasudeva Shenoy retained and continued to held his title to land.
48. Ext.A8 agreement makes it further clear that each of the four land owners was empowered to collect ground rent also besides the building rent, as per separate agreements to be executed between them in future. DW3 in the cross examination admitted that subsequent to Ext.A8 agreement, document for collecting and sharing ground rent was executed between the owners. Though no document has been produced by either of the parties, in view of Ext.B6 and admission made by DW3, it has to be held that Sri.Vasudeva Shenoy obtained right to collect ground rent also and that 1/3rd of right devolved on the appellant as legal heir.
49. I am satisfied from the foregoing R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-42-:
discussion that appellant is entitled to 1/3rd share of title over northern 5.665 cents in plaint A schedule item No.3 as well as to 1/3rd of deceased's right to collect ground rent.
50. The learned counsel for the appellant further contended relying on Exts.A8 and A9 that she is also entitled to 1/3rd of rights held by Vasudeva Shenoy in the ground floor and fourth floor of plaint D schedule item No.1 building. This contention merits acceptance. It could be seen from Ext.A8 that ground floor of the building was allotted to Vasudeva Shenoy jointly with two other sharers, immediately upon completion of first phase of construction. In the second phase, after construction being completed, the fourth floor was allotted to Vasudeva Shenoy along with other two persons to their joint share. That means, in each of the floors afore mentioned, Vasudeva Shenoy was R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-43-:
only holding 1/3rd right. The appellant therefore is entitled as legal heir, to 1/3rd share of what her deceased father actually owned in both floors.
51. Incidental questions also arise as to who withheld rent due to the share of appellant after father's death, both in respect of building rent and ground rent. No definite allegation is made in this respect in the plaint except a general statement that some of the defendants are collecting rent which Vasudeva Shenoy was receiving during his life time. Those persons, whoever they may be, are, no doubt, in the position of trustees and are liable to account for payment of the share to the person entitled, with reasonable interest. Having regard to the conduct of the parties and nature and circumstances of the case, I am of the opinion that the defendant or defendants who are presently receiving the rent due to appellant's R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-44-:
share shall release the arrears of rent with 12% interest per annum to her from the date of demise of Vasudeva Shenoy till realisation.
52. Points 6, 7 and 9 to 13 : The appellant's claim for partition of plaint schedule item Nos.5, 9, and 10 was rejected by the court below holding that these items also become the assets of D20 Firm as proved by Ext.B18 partnership deed dated 05.08.1951 and Ext.B25 agreement dated 03.04.1995. The appellant does not challenge this conclusion to be wrong and has chosen to accept this finding as legal. Respondents also do not question this finding in the cross objection filed by them.
53. Plaint D schedule item No.2, 68 cents was also held not available for partition for different reasons. The appellant had advanced a case before the court below that 68 cents were purchased in the names of D2 to D5 while they were minors and also R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-45-:
partners of D20 Firm, with the funds of the Firm itself and consequently, this item of property had become the assets of the Firm. Appellant relies on Ext.B12 acquisition deeds taken in the names of D2 to D5 which discloses that substantial amount of consideration was paid by a cheque issued by the Firm. But the court below did not accept the appellant's contention and it rather found the property to be not part of the asset of the Firm. This finding is very seriously assiled in appeal on facts and law.
54. While considering appellant's claim as representative of Vasudeva Shenoy for benefits arising out of plaint D schedule item No.3, i.e., contribution to Firm's capital (33%), the court below did not examine in detail the amount of share capital contributed by Vasudeva Shenoy. It did not consider the recitals in Ext.B23 partnership deed R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-46-:
dated 20.12.1965 and Ext.B24 declaration made by him in this respect. However, the conclusion arrived at by the court below is to the effect that Sri.Vasudeva Shenoy had made major contribution towards the capital of D20 Firm. Appellant's claim in the suit for division of income from share of Vasudeva Shenoy was, however, refused advising her to exercise options conferred on her by clauses 15 and 16 in Ext.B21. Similar view based on Ext.B21 was taken in respect of plaint schedule item Nos.5, 9 and 10 also. This finding is also under serious challenge in this appeal.
55. The learned Senior counsel appearing for the appellant submits that the trial court having found plaint A schedule item Nos.5, 8, 10 to be partnership assets, instead of unjustifiably referring the appellant to clauses 15 and 16 of Ext.B21, ought to have granted a decree in terms of R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-47-:
Section 37 of the Partnership Act, allowing her to recover her lawful share of profit from the assets of the deceased partner as his representative or to recover 6% interest per annum on such amount of share of profit of the deceased partner. Relying on clause 12(b)(i) of Ext.B21, he submitted that appellant was entitled to 18% interest per annum on plaint D schedule item No.3 capital contribution made by Sri.Vasudeva Shenoy.
56. The learned Senior counsel for the appellant continued to submit that there is clear evidence on record to prove that plaint D schedule item No.2 was purchased in the names of D2 to D5 with the funds supplied by D20. Relying further on Section 14 of the Partnership Act, it was submitted that the property purchased with the Firm's funds shall belong only to the Firm, unless the parties had a contrary intention. In order to substantiate R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-48-:
this legal position, the text books on Law of Partnership by two authors, Lindley and Dr.Avtar Singh and various decisions rendered by different High Courts in India were relied on. The above legal position is not disputed by the learned counsel for the respondents also. It goes without saying that if purchase of plaint D schedule item No.2 as per Ext.B12 was with Firm's funds, normally it should belong to and become the assets of the Firm unless circumstances indicate a different intention of parties. I do not, however, intend to decide this factual issue canvassed before me but I am only inclined to leave it there in the nature of view which I propose to take below.
57. The gist of the submission made by the learned Senior counsel for the appellant is that once plaint D schedule item No.2 and Sreedhar theatre property are also found to be Firm's R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-49-:
assets, appellant will be entitled to inherit the share of profits or 6% of interest on such amount of share of the deceased partner availed for Firm's business, as stipulated by Section 37 of the Act.
58. The learned counsel for respondents 1 and 2, 6 and 20 to 22, on the other hand, submitted that the plaint is wholly silent about the claim now being made under Section 37 of the Act and further there are no adequate and requisite pleadings also, on which, such a relief could be claimed or adjudicated. It is submitted that the plaint does not at all disclose the amount of capital contribution made by the deceased partner to the Firm, nor does it disclose the profit sharing ratio, on the basis of which, share of profit could be so ascertained as to enable the appellant to claim such a relief under Section 37.
59. According to the learned Senior counsel for R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-50-:
respondents 6, 20 to 22, the only right available to appellant as representative of the deceased partner is provided by clauses 15 and 16 of Ext.B21 as rightly accepted by the court below. It is therefore contended that if the appellant is not content with the option which could be exercised under clauses 15 or 16, the only legal course open to her is to sue for final settlement of accounts of the deceased partner. It is also contended that plaint D schedule item No.2 is not the Firm's asset. Likewise, Sreedhar theatre property is also contended to be not the asset of the Firm.
60. The gist of the submission made by the learned Senior counsel for respondents is that when some of the plaint items are denied and disputed to be the assets of the Firm and a decision on the dispute is yet to be taken, relief provided under Section 37 of the Act to a representative of R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-51-:
deceased partner cannot be pleaded, urged or considered in a suit instituted otherwise than for final settlement of entire assets and accounts.
61. Expatiating on the principles underlying Section 37 of the Act, the learned counsel for the appellant took the court through commentaries on the Law of Partnership, a text book Fourteenth Edition by Lindley, a text book Twentieth Edition by Lindley & Banks on Partnership and the Law of Partnership Third Edition authorised by Dr.Avtar Singh, a few decisions of High Courts reported in Kasi alias Alagappa Chettiar and others v. Rm.A.Rm.V.Ramanathan Chettiar alias Sreenivasan Chettiar and another (AIR(36) 1949 Madras 693) and Arunagiri Goundan v. Vasantharaya Koundan and others (AIR(36) 1949 Madras 707) and decisions of Apex Court reported in Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala and others (AIR 1964 R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-52-:
SC 11), Pamuru Vishnu Vinodh Reddy v. Chillakuru Chandrasekhara Reddy & ors. (2003 SAR (Civil) 253), Khushal Khemgar Shah and others v. Mrs.Khorshed Banu Dadiba Boatwalla and another (AIR 1970 SC 1147), Addanki Narayanappa and another v. Bhaskara Krishnappa (dead) (AIR 1966 SC 1300) and Gannmani Anasuya and others v. Parvatini Amarendra Chowdhary and others [(2007)10 SCC 296].
62. The learned Senior counsel for respondents 6 and 20 to 22 also relied on a text book by JP Singh, Sixth Edition containing commentaries on Section 37 of the Act and cited a few decisions throwing light on the principles underlying Section
37. The decisions cited by the learned Senior Counsel are Barclays Bank Trust Co.Ltd. v. Bluff [(1982)Ch.172] and P.Kesanna v. Boya Bala Gangappa and anr.(AIR 1947 MADRAS 297).
63. In so far as I understand, the scope of R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-53-:
Section 37 in the light of the Scheme envisaged by the Partnership Act, admits only a temporary or provisional relief to the representative of a deceased partner till the accounts with the Firm are finally settled. It is difficult to accept the proposition that Section 37 provides for a substantive relief or an independent right for settlement of accounts under law. What Section 37 provides for is that when the Firm continues to exist and makes use of the share of the estate of the deceased partner, his representative will be entitled to such share of profits earned by the Firm utilising the estate of the deceased or otherwise to interest at the rate of 6% per annum on such share of the deceased partner. Section 37 implies that right of the representative to claim such share of profits or interest will cease, the moment the accounts are taken and finally settled R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-54-:
in accordance with the relevant provisions of the Partnership Act. The Section itself indicates that the right of the representative is to the share of profits of the Firm rather than of loss. The Section does not make provision for sharing of loss.
64. The provision therefore purports to compensate the representative for a temporary period for the alleged delay on the part of the Firm in considering the demand for settling the accounts of the deceased partner. That appears to be the reason why the proviso to Section 37 takes away the right of the representative to get share of profits or to interest if a surviving or continuing partner opts to purchase the share of the deceased partner in accordance with the provisions of the Partnership agreement if such an agreement has been made between parties and is in R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-55-:
force.
65. It is not necessary that the representative should inevitably sue for dissolution of Firm also as a condition for maintaining action for settlement of accounts. Even while a Firm continues to be in existence as an ongoing concern, a representative of deceased partner could as of right demand settlement of accounts under law and I notice that in this respect, no case law laying down a contrary legal position has been brought to my notice.
66. In short, a claim made by representative of deceased partner for share of profits out of the partnership assets of the deceased in terms of Section 37 cannot be equated to a suit for settlement of accounts brought under the relevant provisions of Partnership Act or relevant law. Many disputes may arise between the representative of R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-56-:
the deceased partner, on the one hand and the Firm on the other hand, when a claim is made in respect of the share of income of the deceased and in such disputed cases, the questions that may arise could be well adjudicated only in a duly instituted suit brought for settlement of accounts. If Section 37 is misconstrued as a remedy providing permanent relief to the representative, the Firm will then have to keep on accounting share of profits claimed endlessly even at a stage when the Firm may be running at a loss leaving the things at the mercy of the representative to sue for final settlement of accounts at his sweet will.
67. In the instant case, there are rival disputes between appellant and D20 Firm as to whether a few of the suit items are owned by the partnership or not. Appellant has not in precise terms pleaded the profit and loss sharing ratio but R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-57-:
she sought to rely on Ext.B21 in the course of evidence in order to contend that Vasudeva Shenoy was having 6/12th share in the income of partnership Firm's assets. Same is the position with respect to the amount of investment of share capital made by Vasudeva Shenoy in the Firm. These disputes could be properly and infallibly decided only in a properly constituted suit for settlement of accounts against the Firms. Nothing prevented the appellant from suing for settlement of accounts after death of her father.
68. The present suit is not a proceeding initiated for final settlement of accounts. Had the suit been for final settlement of accounts, then the court could have been justifiably called upon to award an interim relief under Section 37 of the Act as a compensatory measure upon the ground that the Firm was delaying taking and settling of R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-58-:
accounts inspite of demands being made by the representative. In the instant suit on hand, the appellant demands reliefs under Section 37 of the Act as if it is a permanent measure or remedy. This is quite impermissible and it may, if permitted, go to the extent of defeating the very object and scheme of the Act itself. This being the legal position, it has to be held that the consideration of the disputed questions as to whether plaint D schedule item No.2 and Sreedhar theatre in 25 cents are assets of D20 Firm is out of the scope of the present suit.
69. The court below, which refused to accept the claim of the appellant for share of profits made under Section 37, however, permitted her to resort to clauses 15 and 16 in Ext.B21 and seek her remedies thereunder.
70. Clause 15 in Ext.B21 provides an option to R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-59-:
the representative of the deceased partner to succeed to the share as a sleeping partner without having any authority to interfere with the administration of the Firm. If no such option is exercised by the representative, then clause 16 comes into operation. This clause provides option to the surviving partners to purchase the share of the deceased upon such terms and conditions with the consent of the representative.
71. Looking at clause 15, it is obvious that once appellant becomes a sleeping partner upon exercising option thereunder, she would be entitled not only to the share of profits but also be liable to suffer losses in the same way the deceased partner used. The appellant has not hitherto exercised the option under clause 15 nor she sued for enforcement of clause 15. Once she exercises the option and becomes a sleeping partner of the R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-60-:
Firm also, she cannot demand any relief under Section 37 unless she asks for settlement of accounts or her request was turned down or delayed.
72. The court below after finding that Ext.B4 Will is ingenuine and invalid under law, permitted appellant through the impugned preliminary judgment to exercise options available under clauses 15 and
16. Appellant instead of pursuing clauses 15 and 16 has chosen to demand for share of profits in terms of Section 37. I have already explained the reasons why she is not entitled to such a relief in the instant suit. Her demand for share of profits as representative of the deceased Vasudeva Shenoy is only liable to be rejected.
73. Having due regard to the nature of grievances raised by appellant, she could according to me, avail two choices under law, i.e., either to submit to clauses 15 and 16 as held by the trial R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-61-:
court or to sue for final settlement of accounts. If demand made for share of profits is valid but it is either unattended or delayed, she can ask for a temporary relief under Section 37 of the Act in a suit brought for final settlement of accounts.
74. Respondents have no contention that suit for settlement of accounts could not be maintained without suing for dissolution of Firm also. Nor do they have a contention that a well constituted suit for settlement of accounts at this distant point of time will be barred by limitation also. The cause of action for a suit for settlement of accounts is continuous as per decided case law. In view of the continuing nature of cause of action, appellant could bring forth a suit for settlement of accounts at this point of time uninhibited by provisions of law of limitation.
75. Point No.14 : Plaint E schedule items are R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-62-:
investments made by Vasudeva Shenoy in his name. Appellant's 1/3rd share in these items was upheld as per the impugned preliminary decree while question as to their actual availability for partition was left open to be determined at final decree stage. The learned Senior counsel for the appellant submits that when there is sufficient evidence, the direction relegating the question of availability to the final decree proceedings is illegal.
76. It is conceded that claims as to plaint A schedule item Nos.6, 7, 8 and 24 are not pressed by the appellant.
77. With respect to item Nos.1 and 2 which relate to investment of Vasudeva Shenoy in D20 Firm, I am of the opinion that appellant's claim in that regard could be allowed to be decided in a properly constituted suit for settlement of accounts.
R.F.A.No.429 of 2007& C.O.No.26 of 2008
:-63-:
78. In respect of item No.3, discussion was already made while dealing with point Nos.2 to 5. Therefore, it is not repeated here.
79. DW3, the second defendant, in his cross examination stated that item Nos.4 and 5 are available for partition. The amounts in these items were already transferred to the mother, DW2. The witness admitted availability for partition of items 9, 10, 11, 12, 16 and 17 also in his examination. The current value of the amounts, however, is a matter which may be ascertained at the final decree proceedings. Item No.23 is duplication of item No.12 and therefore it is rejected.
80. Appellant could not bring forth evidence of her own to prove availability of item Nos.13, 14 and 15. But I do not think that existence of these items could be disputed by respondents 1 and 2 R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-64-:
insofar as they were items which formed the subject matter of Ext.B4 Will relied by respondents 1 and
2. There is no impropriety, in my opinion, in placing reliance on Ext.B4 for the limited purpose of proving the existence of item Nos.13, 14 and 15.
81. No evidence is, however, forthcoming in proof of availability of item Nos.18 to 22. Therefore, the claim for partition of these items is rejected. Same is the view to be maintained with respect to item Nos.24 and 25 also. I hold that they too are not available for partition.
82. Plaint F schedule items are claimed to be movable assets which Vasudeva Shenoy possessed at the time of demise. But no satisfactory evidence is brought forth to establish that they are still available for partition. However, I agree with the view taken by the court below that the question of availability could be deferred to the stage of R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-65-:
final decree. Point No.14 is answered in the above terms.
83. In view of the factual and legal discussions made above, the impugned preliminary judgment and decree are liable to be modified. In the result, appeal is allowed in part modifying the preliminary decree as follows;
(i) Appellant is entitled to 1/3rd share in the shop building situated in plaint A schedule item No.2 as well as in the available extent of land in plaint A schedule item No.4. The actual extent of these items shall be ascertained in the final decree proceeding.
(ii) She will get 1/6th share in the building situated in plaint C schedule item Nos.2 and 4 besides the land therein.
(iii) She will get 1/3rd share of title to northern 5.665 cents out of 11 1/8 cents in R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-66-:
plaint A schedule item No.3.
(iv) She will get 1/3rd share of title out of 1/3rd right held by Vasudeva Shenoy over the ground and fourth floors in Shenoy Chambers situated in plaint D schedule item No.1 twenty eight cents.
(v) Appellant will also get 1/3rd share out of 11% of income from Shenoy Chambers situated in plaint D schedule item No.1 with 12% interest per annum from the date of death of Sri.Vasudeva Shenoy till realisation.
(vi) She will also get 1/3rd of Vasudeva Shenoy's share of the ground rent with 12% interest per annum from the date of his death. The share of ground rent which Vasudeva Shenoy was entitled shall be fixed by the final decree court.
(vii) She will get her share of profits, if any, from plaint A schedule item Nos.2 and 4, plaint R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-67-:
C schedule item Nos.2 and 4 and the quantum thereof shall be determined in the final decree.
(viii) Appellant's prayer under Section 37 of Partnership Act for division of profits from the share held by the deceased partner in respect of partnership assets is dismissed. The dismissal, however, will not affect her right either to exercise options under clauses 15 and 16 of Ext.B21 or to file a well constituted suit for settlement of accounts against the Firms.
(ix) The questions as to whether plaint D schedule item No.2 and Sreedhar theatre are assets of D20 Firm and also as to the actual amount of capital investment made by Sri.Vasudeva Shenoy in D20, are left open to be considered in a duly constituted suit for R.F.A.No.429 of 2007 & C.O.No.26 of 2008 :-68-:
settlement of accounts.
(x) It is declared that plaint E items 4, 5, 9, 10, 11, 12, 13, 14, 15, 16 and 17 alone are available for division and the appellant will get 1/3rd share thereof. The current value of the amounts in E schedule investments shall be ascertained in the final decree proceedings.
(xi) The availability of movables described in plaint F schedule for division shall be decided at the final decree stage on evidence.
(xii) Cross-Objection is dismissed.
(xiii) Appellant will apply for final decree within a month. No costs.
All pending interlocutory applications are closed.
Sd/-
T.V.ANILKUMAR JUDGE ami/