Delhi High Court
Deshraj Gupta & Ors. vs Shivraj Gupta & Ors. on 5 September, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 753/2017
% 5th September, 2017
DESHRAJ GUPTA & ORS. ..... Appellants
Through: Mr. G.K. Mishra, Advocate.
versus
SHIVRAJ GUPTA & ORS. ..... Respondents
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular First Appeal under Section 96 of Code of
Civil Procedure, 1908 (CPC) is filed by three defendants in the suit
impugning the judgment of the trial court dated 27.7.2017 by which
the trial court has passed a preliminary decree in a suit for dissolution
of partnership and rendition of accounts and has ordered that 20%
share of the deceased partner late Sh. Lala Hansraj Gupta will stand
devolved upon his legal heirs and to whom accounts have to be
rendered by the remaining partners of the partnership firm. The
operative para 35 of the impugned judgment reads as under:-
"35. In view of the above, plaintiff no. 1; plaintiff no. 2; plaintiff no. 3;
LRs of plaintiff no. 4 jointly; defendant no. 1 and defendant no. 4 are
entitled to 1/6th of 20% share of late Lala Hansraj Gupta in the partnership
business of M/s Mridul Enterprises as on 03.07.1985 i.e date of death of
Lala Hansraj Gupta. It is also held that the said LRs will also be entitled to
simple interest on the ascertained share amount of late Lala Hansraj Gupta
in the partnership firm, M/s Mridul Enterprises @ 6% per annum from
03.07.1985 till its realization. Preliminary decree sheet be prepared
accordingly."
2. The facts of the case are that there was a partnership firm
in the name of M/s Mridul Enterprises and which carried on business
since or about 1.11.1977. Partnership was duly registered with the
Registrar of Firms on 21.3.1978 under Registration No. 817/78.
Partnership deed dated 1.11.1977 was entered into between the parties.
There were three partners in the partnership firm, namely, Sh. Lala
Hans Raj Gupta/first party (the deceased partner), Sh. Deshraj
Gupta/second party and Sh. Uday Raj Gupta/third party. The profit
sharing ratios of these three persons were in the ratio of
20%:60%:20%, respectively. Sh. Lala Hans Raj Gupta expired at
Delhi on 3.7.1985. As per the plaintiffs/respondents Sh. Lala Hans
Raj Gupta died intestate. The appellants/defendant nos. 1, 2 and 5
relied upon a Will dated 28.5.1985 of late Sh. Lala Hans Raj Gupta.
However, it is noted that the probate case bearing no. 62/1985 filed by
the appellants was dismissed by the High Court in terms of its
judgment dated 11.5.2009 (Ex.PW1/3), appeal there against by the
Division Bench was dismissed vide judgment Ex.PW1/4 in FAO (OS)
No.237/2009 and Supreme Court also dismissed the SLP
No.28437/2010 vide its order Ex.PW1/5. Therefore, late Sh. Lala
Hans Raj Gupta is taken to have died intestate.
3. It was an undisputed fact before the trial court that there
was a partnership deed between late Sh. Lala Hans Raj Gupta, Sh.
Deshraj Gupta and Sh. Uday Raj Gupta. Profit sharing ratios of the
partners was as stated in para 6 of the partnership deed and is already
stated in para 2 above. Once late Sh. Lala Hans Raj Gupta died
intestate then his share will naturally devolve upon his legal heirs.
4. Trial court has accordingly and rightly passed a
preliminary decree holding that the existing partners after the death of
late Sh. Lala Hans Raj Gupta, one of the partners, will be the
accounting parties, and they would account for the 20% share of late
Sh. Lala Hans Raj Gupta in the partnership firm.
5. Learned counsel for the appellants argued that late Sh.
Lala Hans Raj Gupta initially did not contribute any capital in the
partnership firm and therefore late Sh. Lala Hans Raj Gupta is not
entitled to 20% share in the profit as also the assets ,and therefore his
legal heirs have no rights to the 20% share in the assets of the
partnership firm, however, this argument is misconceived because it is
admitted during the course of arguments that subsequently an amount
of Rs.30,000/- was shown as capital contributed by late Sh. Lala Hans
Raj Gupta in the balance sheet of the partnership firm on 3.7.1985. In
any case, in my opinion, this argument is also absolutely frivolous to
say the least because the concept of profit sharing ratio is a technical
and legal concept and the effect of there being a profit and loss sharing
ratio is that once the firm is dissolved then to the extent of percentage
of profit sharing ratio a partner or his legal heirs would be entitled to
that portion of the net assets being the net assets available after the
dissolution process is complete in terms of the provision of Section 48
of the Partnership Act, 1932 and which section provides the mode of
settlement of accounts between the partners.
6. There is no error in the impugned judgment. Dismissed.
SEPTEMBER 05, 2017 VALMIKI J. MEHTA, J
AK
