Kerala High Court
A.V.Mithra Devi @ Mithra R.Rao vs Sobhana V.Shenoy on 12 January, 2021
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.
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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.
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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.
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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
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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.
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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.
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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.
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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
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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
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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
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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
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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
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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,
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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
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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
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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.
cents in which the theatres "Shenoy's" and "Little
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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
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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
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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
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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
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& C.O.No.26 of 2008
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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
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& C.O.No.26 of 2008
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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
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& 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
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& 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
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& C.O.No.26 of 2008
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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
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& C.O.No.26 of 2008
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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
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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
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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
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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
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
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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
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& C.O.No.26 of 2008
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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/
