[Cites 13, Cited by 0]

Kerala High Court

R.Madusoodanan Nair vs R.Suresh Kumar on 8 December, 2025

                                                          2025:KER:94981
RSA NO. 304 OF 2015
                                    1

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR. JUSTICE EASWARAN S.

MONDAY, THE 8TH DAY OF DECEMBER 2025 / 17TH AGRAHAYANA, 1947

                       RSA NO. 304 OF 2015
        AGAINST THE JUDGMENT AND DECREE DATED 01.10.2014 IN AS
NO.191 OF 2011 OF THE ADDITIONAL DISTRICT COURT-II (SPECIAL),
KOTTAYAM   ARISING    OUT   OF   THE    JUDGMENT   AND   DECREE   DATED
03.08.2011 IN OS NO.385 OF 2006 OF THE PRINCIPAL SUB COURT,
KOTTAYAM
APPELLANT/APPELLANT/1ST DEFENDANT:

           R.MADUSOODANAN NAIR
           AGED 59 YEARS
           S/O.K.RAMACHANDRA PANICKER, PATHAPALLI HOUSE,
           KOCHUKAVALA, VAIKKOM PO, NADUVILE VILLAGE,
           KOTTAYAM DISTRICT


          BY ADV SHRI.G.SREEKUMAR (CHELUR)
RESPONDENTS/RESPONDENTS/2ND DEFENDANT AND THE PLAINTIFF:

    1      R.SURESH KUMAR
           AGED 49, S/O.K.RAMACHANDRA PANICKER,PATHANPALLI
           HOUSE, KOCHUKAVALA,VAIKKOM PO, NADUVILE
           VILLAGE,KOTTAYAM DISTRICT 686 001

    2      R.MOHAN KUMAR
           AGED 56, S/O.K.RAMACHANDRA PANICKER,SREERANGAM
           HOUSE, KOCHUKAVALA, ARATTUKULANGARA,
           KIZHAKUMCHERY, THEKEMURY, NADUVILE
           VILLAGE,KOTTAYAM DISTRICT 686 001


           BY ADVS.
           R2 BY      SHRI.K.N.CHANDRABABU
                                                   2025:KER:94981
RSA NO. 304 OF 2015
                               2

                      SMT.T.K.SREEKALA
                      SMT.S.PARVATHI
                      SMT.NIKITHA SUSAN PAULSON
                      SMT.UTHARA ASOKAN
                      SHRI.K.I.MAYANKUTTY MATHER (SR.)

     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
08.12.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                          2025:KER:94981
RSA NO. 304 OF 2015
                                   3


                        EASWARAN S., J.
                  ------------------------------------
                       RSA No.304 of 2015
                 -------------------------------------
           Dated this the 8th day of December, 2025

                          JUDGMENT

The 1st defendant in O.S.No.385/2006 on the files of the

Principal Sub Court, Kottayam, in a suit for setting aside a partnership

deed and a declaration of existence of a partnership firm and also the

consequential relief in the form of injunction restraining defendants

from impairing the rights of the plaintiff over the firm, has come up in

the present appeal raising certain intricate questions regarding the

applicability of Section 69 of the Indian Partnership Act, 1932.

2. Brief facts necessary for the disposal of the appeal are as

follows:

The plaintiff and the defendants are brothers. The father of the

plaintiff and the defendants, named Sri.K.Ramachandra Panicker,

died on 8.12.1976. He was a dealer and licensee of a petrol bunk at

Vaikom, Valiyakavala junction with No.KL 182 under the name and 2025:KER:94981 RSA NO. 304 OF 2015

style 'M/s. K.R. Panicker and Sons'. On 29.5.1978, a partnership deed

was executed between the plaintiff and the 1st defendant, and that

being the eldest member of the family, the 1st defendant was managing

the affairs of the petrol pump. On 3.3.2004, the plaintiff received a

copy of an intimation issued by the BPCL (Bharat Petroleum

Corporation Limited), dated 27.2.2004, directing the partners to

furnish licence renewal form. When the plaintiff enquired about it

with the defendants, he was informed that the partnership deed of the

year 1978 was cancelled and the firm was reconstituted with a fresh

partnership deed dated 7.8.1984 and that the plaintiff has no right over

the partnership firm, since he has retired from the partnership firm.

But, the plaintiff stated that he did not execute or sign any document

during the said period, and that he was away and did not know about

the new deed and hence, the suit. The plaintiff contended that the

partnership deed dated 7.8.1984 is a sham document executed by the

defendants, so as to deny any legal right to him, and that the same is

not liable to be acted upon and requires to be set aside. The defendants

resisted the suit and contended that the plaintiff had to be excluded 2025:KER:94981 RSA NO. 304 OF 2015

from the partnership deed of the year 1984 because he was employed

in the Indian Railways, and that, going by the Railway Services

(Conduct) Rules, 1966 an employee of the Railways cannot hold an

office of profit. Since the reconstituted firm was registered on 7.8.1984

and the original partnership deed was handed over to M/s. BPCL for

renewal of the licence, the plaintiff is not entitled to get any benefit out

of the first deed. It was further pointed out that a complaint was lodged

before the Police Authorities by the plaintiff, complaining that the

signature of the plaintiff had been forged, and the said complaint is

pending consideration. On behalf of the plaintiff, Exts.A1 to A13

documents were produced and PW1 was examined. On behalf of the

defendants, Exts.B1 to B6 documents were produced and the 1st

defendant was examined as DW1. The trial court, on consideration of

the oral and documentary evidence, decreed the suit and held that the

entire family members are entitled to get proportionate profit of the

firm from 29.05.1978 from the 1st defendant and that the plaintiff is

entitled to get 1/3 share, and others are entitled to 2/3 share. Since the

plaintiff had not remitted the court fee for the settlement of the 2025:KER:94981 RSA NO. 304 OF 2015

accounts, he was given liberty to institute a fresh suit for the settlement

of accounts. Aggrieved, the 1st defendant preferred AS No.191/2011

which was also dismissed by the Addl. District Court-II (Special),

Kottayam by judgment dated 1.10.2014 and hence the second appeal.

3. On 6.6.2016, this Court admitted the case on the following

substantial questions of law:

"(1) Whether the court below misunderstood the nature of the suit.

(2) whether the findings of the court below are perverse."

4. Heard Sri.Sreekumar G. (Chelur), the learned counsel

appearing for the appellant/1st defendant and Sri.K.I.Mayankutty

Mather, the learned Senior Counsel, assisted by Ms.Uthara Asokan, the

learned counsel appearing for the 2nd respondent/plaintiff.

5. Sri.Sreekumar G.(Chelur), the learned counsel appearing

for the appellant, raised the following submissions:

(a) The plaintiff had admittedly retired from the partnership

firm, and the firm was reconstituted on 7.8.1984. The reconstitution

of the firm was necessitated because the plaintiff had secured 2025:KER:94981 RSA NO. 304 OF 2015

employment in the Railways, and therefore, continuation of the

plaintiff in the partnership firm was not permissible in terms of the

Railway Services (Conduct) Rules,1966.

(b) The reliefs sought in the suit are hit by Section 69(1) of the

Indian Partnership Act, 1932. Admittedly, the partnership firm,

reconstituted in the year 1984, is an unregistered firm. Even in the

year of 1978, the partnership firm was also an unregistered firm and

therefore, the suit is not maintainable.

(c) In the absence of any documentary evidence to show the

nature of the sharing of the profits as regards the 1978 firm, the finding

of the courts below that the plaintiff is entitled to 1/3 share of the

profits is certainly rendered based on extraneous consideration.

(d) It is further pointed out that the finding of the courts below

that the plaintiff had not signed the 1984 partnership deed is per se

incorrect, because Ext.A1 document shows that the plaintiff had signed

the said document.

(e) The courts below had misread the case projected by the

plaintiff. The case of the plaintiff is that Ext.A1 partnership deed is a 2025:KER:94981 RSA NO. 304 OF 2015

forged document, but no steps were taken by him to send the document

for an expert opinion. The finding of the courts below that the plaintiff

is not a party to the partnership deed, is per se incorrect.

(f) Lastly, it is pointed out that the bar under Section 69 of the

Indian Partnership Act, 1932 is an institutional prohibition which

requires the court to take into consideration in a suit relating to a

partnership firm and therefore, the prohibition if any will cut to the

root of the case projected by the plaintiff and therefore, the suit is liable

to be dismissed.

6. Per contra, Sri.K.I.Mayankutty Mather, the learned Senior

Counsel appearing on behalf of the 2nd respondent/ plaintiff, countered

the submissions of Sri.Sreekumar G. (Chelur) and raised the following

submissions:

(i) The bar under Section 69(1) of the Indian Partnership Act,

1932 is attracted only if a suit is instituted for enforcing a right under

a contract. In the present suit, what is claimed is the right flowing out

of an agreement itself and therefore, the bar is not attracted.

2025:KER:94981 RSA NO. 304 OF 2015

(ii) Insofar as Ext.A1 partnership deed is concerned, the

plaintiff is not a party and therefore, even if it is assumed that the said

partnership firm is not registered, the bar under Section 69(1) will not

apply.

(iii) The finding that the plaintiff has not signed Ext.A1

partnership deed is a finding of fact, which does not call for any

interference by this Court, especially since in none of the papers

explaining the text of the constitution of the firm, the sign of the

plaintiff is not seen to be found, whereas the signature of the plaintiff

is found only in the last page which is an unstamped paper and

therefore, the finding of the courts below that the document does not

contain the signature of the plaintiff, is correct.

(iv) As regards the prayer for a declaration that any transaction

after the constitution of the 1984 partnership firm is not binding on the

plaintiff is liable to be granted by the courts below in the light of the

specific admission in paragraph 13 of the written statement filed on

behalf of the 1st defendant.

2025:KER:94981 RSA NO. 304 OF 2015

(v) It is further pointed out that despite the so-called

reconstitution of the firm, by Ext.A12 letter, the plaintiff was addressed

by the 1st defendant to come forward for execution of the licence

renewal agreement for the purpose of running the petrol outlet. As a

matter of fact, if the partnership firm was reconstituted, then, the 1st

defendant had no occasion to send the said letter to the plaintiff.

7. In the light of these rival claims, this Court by a separate

order dated 27.10.2025, assigning reasons for framing an additional

substantial question of law, had framed an additional substantial

question of law as follows:

"3. Whether the suit is barred by Section 69 of the

Partnership Act, 1932, since admittedly the firm is an

unregistered firm."

8. I have considered the rival submissions raised across the

bar and perused the judgments rendered by the courts below and also

the records of the case.

9. Before proceeding to the intricacies of the arguments

raised in this appeal, this Court will first answer the additional 2025:KER:94981 RSA NO. 304 OF 2015

substantial question of law. This is because, once it is found that the

suit is barred under Section 69(1) of the Indian Partnership Act, 1932,

no further deliberation needs to be done in this appeal. If only this

Court finds that the objection raised by the learned counsel for the

appellant is unsustainable, then only this Court needs to proceed

further.

10. Sri.Sreekumar G.(Chelur), the learned counsel appearing

for the appellant/1st defendant raised his arguments relying on the

decision of the Calcutta High Court in Sri.Velji Narayan Patel v.

Sri.Jayanti Lal Patel [2008 SCC OnLine Cal 782]. Paragraph

No.9 of the said decision reads as under:

"9. Sub-section (1) of Section 69 disentitles a partner or a person on behalf of a partner to sue as a partner against the firm of a person allegedly to be a partner unless the firm is registered with the registrar of firms. Sub-section (2) similarly disentitles the firm to institute a suit against a third party unless the firm is registered. The common feature between sub-section (1) and sub-section (2) is that such suit must relate to enforcement of right arising out of a contract of conferred by the Act. If a suit by a partner against a partner or firm does not relate to enforcement of 2025:KER:94981 RSA NO. 304 OF 2015

a right arising out of a contract then there is no legal prohibition because the spirit of Section 69 either of sub-

section (1) or of sub-section (2) is that such suit must be related to enforcement of the right arising from a contract. Having gone through the plaint of the suit it clearly appears that the plaintiff instituted the suit as a partner for enforcement of his right arising out of the contract. The entire narrative of the plaint is for declaration that the plaintiff is the owner of 50 per cent of the share of the partnership business and for declaration that he is entitled to enjoy 50 per cent of the said business under the name and style of M/s. Bhagat & Company, for production of books of accounts, statement of accounts, balance sheet and other documents and for declaration that the defendant is liable to disburse and pay plaintiffs share of profit in the business. Plaintiff does not sue in his individual capacity. The prayers in the plaint are basically for enforcement of his right as embodied in the partnership deed which was executed by and between the parties on 15th of April, 2000. In such circumstances, the provision of sub-section (1) of Section 69 appears to have hit the plaint. Order 7, Rule 11(d) contains "where the suit appears from the statement in the plaint to be barred by 2025:KER:94981 RSA NO. 304 OF 2015

any law". It is not the case in the plaint that the firm was registered with the Registrar of Firms."

11. Section 69 of the Indian Partnership Act, 1932 creates a bar

insofar as the institution of a suit is concerned. Section 69 of the Act

reads as under:

"69. Effect of non-registration.--(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.

(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.

(3) The provisions of sub-section (1) and sub-section (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect,--

2025:KER:94981 RSA NO. 304 OF 2015

(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or

(b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909, or the Provincial Insolvency Act, 1920, to realise the property of an insolvent partner.

(4) This section shall not apply--

(a) to firms or to partners in firms which have no place of business in the territories to which this Act extends, or whose places of business in the said territories are situated in areas to which, by notification under section 56, this Chapter does not apply, or

(b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency- towns, is not of a kind specified in section 19 of the Presidency Small Cause Courts Act, 1882, or, outside the Presidency-towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887, or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim."

2025:KER:94981 RSA NO. 304 OF 2015

12. A reading of the provision shows that Section 69 of the

Indian Partnership Act, 1932 has two parts. The first part deals with

the maintainability of a suit to enforce a right arising from a contract

or conferred by this Act by or on behalf of any person suing as a partner

in a firm against the firm. The second part of Section 69 deals with the

maintainability of a suit to enforce a right arising from a contract by or

on behalf of a firm against a third party. Since this Court is concerned

about the first part of Section 69(1) alone, it is felt expedient not to deal

with the latter part of Section 69(1).

13. The first part of Section 69 (1) of the Indian Partnership

Act, 1932 could be deciphered into two parts; (a) a suit to enforce a

right arising from a contract, or (b) conferred by the Act. No doubt,

Section 69(1) specifically provides that no such suit is maintainable in

a court by or on behalf of any person suing as a partner in a firm against

the firm unless the firm is registered. Now, the pertinent question

before this Court is whether in the nature of the reliefs sought for in

the plaint, the suit is maintainable. In order to consider the said

question, one needs to look into the reliefs sought for in the plaint, 2025:KER:94981 RSA NO. 304 OF 2015

which, according to the learned counsel for the appellant, would attract

the bar under Section 69. The reliefs sought for in the plaint are

extracted as below:-

"1. To declare that the partnership deed dated 7/8/04 is a redundent document, and is not binding to the plaintiff and partnership firm

2. To declare that the partnership deed of M/s K.R. Panicker and Sons dated 29/5/78 is still in force and the plaintiff is still continues as partner of the said partnership and the liabilities created by the defendants by using the partnership deed dated 7/8/84, is to be cleared by the defendants and the plaintiff has no liability to clear it and to declare that the entire family members are entitled to get the proportionate profit of the firm from 29/5/78 onwards.

3. Direct the defendants to furnish the true and correct account of the firm from 29/5/78 onwards.

4. Pass a permanent prohibitory order of injunction restraining the defendants from doing anything impairing the right title etc. of the plaintiff over the said M/s K.R.Panicker and Sons Patrol Pump.

5. To direct the first defendant to produce the partnership deed dated 29/5/78 before this Honourable 2025:KER:94981 RSA NO. 304 OF 2015

Court.

6. Allow the entire cost of these proceedings.

7. Such other order or orders as are deemed nust and proper to meet the ends of justice may also be passed."

14. The first relief sought for is to declare that the partnership

deed dated 7.8.1984 is a redundant document and is not binding on

the plaintiff and the partnership firm. Admittedly, the plaintiff is not

a partner of the 1984 firm. Therefore, the bar under Section 69(1) of

the Indian Partnership Act, 1932 is not attracted qua the first relief.

15. Coming to the second relief, a declaration is sought for to

the effect that the plaintiff continues to be the partner of M/s. K.R.

Panicker & Sons dated 29.5.1978 and the partnership deed continues

to operate and any liability created pursuant to the partnership deed

dated 7.8.1984 is not binding on him. In paragraph No.13 of the

written statement filed on behalf of the 1st defendant, there is a clear

admission regarding this declaration sought for. Therefore, this Court

fails to comprehend as to how the second relief is also hit by Section

69(1) of the Indian Partnership Act, 1932.

2025:KER:94981 RSA NO. 304 OF 2015

16. Insofar as the reliefs 3 to 5 in the plaint are concerned, the

bar under Section 69 of the Indian Partnership Act, 1932 may have a

bearing on the entitlement of the plaintiff to maintain the suit. The

thrust of the arguments raised by both counsel across the bar revolves

around the entitlement of the plaintiff to maintain relief Nos.3 to 5 in

the suit. Apart from supporting his case based on the decision of the

Calcutta High Court in Sri.Velji Narayan Patel v. Sri.Jayanti Lal

Patel (supra), the learned counsel Sri.G. Sreekumar (Chelur) had

placed reliance on the decision of the Supreme Court in Sunkari

Tirumala Rao and others v. Penki Aruna Kumari [2025 SCC

OnLine SC 125] and contended that a suit filed by partners of an

unregistered firm against another partner is not maintainable because

of the bar under Section 69 of the Indian Partnership Act, 1932.

Placing reliance on the decision of the Division Bench in Capithan

Exporting Co. v. New India Assurance Co. Ltd. [2024 (6)

KHC 69 (DB)], an argument is advanced by Sri.Sreekumar

G.(Chelur) that the bar under Section 69 is an institutional bar which 2025:KER:94981 RSA NO. 304 OF 2015

would require the courts to examine suo motu as to whether the suit is

maintainable or not.

17. But one must remember that the Supreme Court in

Raptakos Brett and Co. Ltd. v. Ganesh Property [(1998) 7 SCC

184] held that when a declaratory relief is sought for to the effect that

a person continues to be a partner of the partnership firm, the bar

under Section 69(2) is not attracted.

18. The larger question to be considered by this Court in the

light of these conflicting claims is whether the plea that the suit is

barred under Section 69 of the Indian Partnership Act, 1932 can be

permitted to be raised for the first time at the second appellate stage.

No doubt, this Court had framed the additional substantial question of

law by stating reasons as to why the said question is being framed by

this Court. But that by itself does not mean that this Court should

necessarily answer the same in the affirmative, especially when the

pleadings in this case disclose that the objection as regards the

maintainability of the suit was not raised in the written statement.

2025:KER:94981 RSA NO. 304 OF 2015

19. In Venugopal Company (M/s.) v. G.Sasikumar and

Others [2022 (1) KHC 169], a Single Bench of this Court held that

the plea that the maintainability of a suit by a partner of an

unregistered firm cannot be gone into if there are no proper pleadings

with regard to the said contention in the written statement.

20. A Division Bench of this Court in Nortrans Marine

Services (P) Ltd. and another v. Cargo Care International and

Others [2020 KHC 804] held that in order to consider the question

of maintainability of the suit under Section 69 of the Partnership Act

1932, the same should be raised in the written statement.

21. However, a subsequent Division Bench in Capithan

Exporting Co. v. New India Assurance Co. Ltd. [2024 (6)

KHC 69 (DB)] without noticing the earlier Division Bench decision

in Nortrans Marine Services(P) Ltd (supra) held that the bar

under Section 69 of the Partnership Act, 1932 is an institutional bar

and the suit cannot be saved.

22. In light of the conflicting views, the learned counsel for the

appellant submitted that the reference to a larger bench is inevitable to 2025:KER:94981 RSA NO. 304 OF 2015

resolve the conflict. But then, this Court must consider whether the

bar under Section 69 actually arises in this case and if so, whether this

is a fit case for reference before the larger bench.

23. Before considering the said issue, it will be worthwhile to

note that the Supreme Court in Sundeep Kumar Bafna v. State of

Maharashtra & Anr [(2014) 16 SCC 623], held that in a case of

conflicting views expressed by a Bench of co-equal strength, if the

subsequent decision does not take note of the earlier binding decision,

the subsequent decision cannot have any precedential value. This

Court, however, is not venturing into the question as to whether it can

hold the decision in Capithan Exporting Co. (supra) as per

incurium qua Nortrans Marine Services (P) Ltd. and another

(supra). Suffice to say that the Division Bench in Capithan

Exporting Co. (supra) did not take note of the binding precedent in

Nortrans Marine Services(P) Ltd. (supra). Hence, this Court is of

the considered view that applying the ratio decidendi culled out by the

Supreme Court as above, reference to a larger bench is unnecessary.

2025:KER:94981 RSA NO. 304 OF 2015

24. It is indisputable that, in the facts of this case, the

contention regarding the maintainability of the suit under Section

69(1) of the Indian Partnership Act, 1932, was not raised by the

appellant in his written statement. Going by the bench decision of this

court in Nortrans Marine Services (P) Ltd. (supra), the

maintainability of the suit for want of registration under Section 69(1)

of the Partnership Act, 1932 must be raised in the written statement

and without which the said question cannot be raised for the first time

in the second appeal.

25. Nevertheless, this Court has examined the question as to

whether the bar under Section 69(1) actually arises in this case. In the

nature of the reliefs claimed by the plaintiff, it must be held that as far

as the relief No.1 is concerned, the same is not hit by the bar under

Section 69(1) of the Indian Partnership Act, 1932 going by the

principles laid down by the Supreme Court in Raptakos Brett and

Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184].

26. Thus the additional substantial question framed by this

court is answered as follows:

2025:KER:94981 RSA NO. 304 OF 2015

"The suit is not barred under Section 69(1) of the Indian

Partnership Act, 1932 and that in order to raise the said plea,

there should be a specific pleading in the written statement

in terms of Order-VIII Rule-2 of the Code of Civil Procedure,

1908."

27. Having found that the suit is not barred under Section 69

of the Indian Partnership Act 1932, this Court must decide i) whether

the suit as such framed is maintainable, ii) whether the finding of the

courts below is perverse. As far as the declaratory relief sought for by

the plaintiff that he is not liable for the subsequent liability created

pursuant to the reconstituted firm, the 1st defendant had already

admitted that the said declaration can be granted. Therefore, the

decree could be sustained based on the admission under Order-XII

Rule-6 of the Code of Civil Procedure, 1908.

28. However, insofar as reliefs 3 to 5 are concerned, it cannot

be said so. Admittedly, the partnership deed of the year 1978 has not

seen the light of the day. For reasons unexplained, both parties failed

to bring the same on record. Since the plaintiff is claiming that he 2025:KER:94981 RSA NO. 304 OF 2015

continues to be the partner of the firm and that he requires the profit

to be distributed in terms of the said deed, it was incumbent upon him

to have produced the deed. But since the 1st defendant also failed to

produce the said deed, the nature of the sharing of the profits between

the partners remained in the dark. But, despite these infirmities, the

trial court proceeded to find that the plaintiff is entitled to 1/3 share,

whereas the other family members are entitled to 2/3 share. On what

basis, the said finding was rendered is not clear to this Court. Insofar

as the reconstituted partnership deed is concerned, this Court is not

inclined to interfere with the concurrent findings of fact because, even

after the firm is stated to be reconstituted, the appellant had addressed

to his brother to come forward and sign the agreement for renewal of

license with the BPCL. On what basis the said letter was issued is not

satisfactorily explained. Therefore, at this distance of time, it will be

wholly inappropriate for this Court to unseat the concurrent findings

as regards the applicability of the 1984 partnership deed because of a

voluntary act of the 1st defendant. Moreover, as rightly found by the

courts below, a reading of Ext.A1 would show that the signature of the 2025:KER:94981 RSA NO. 304 OF 2015

plaintiff is seen only on the last page, which is an unstamped paper,

which is not explained by the 1st defendant. It is also not explained as

to why the plaintiff is retiring from the firm. Though an explanation is

given that he had secured a job in the Railways, and therefore, as per

Rule 15 of the Railway Services (Conduct) Rules, 1966 there is a bar to

continue with an office of profit. But, one fails to comprehend, despite

this embargo on the plaintiff to continue as a partner of the firm, why

the 1st defendant still chose to address the plaintiff under Ext.A12. The

content of Ext.A12 reads as under:

"The BPCL has forwarded the application form for renewal of the petrol pump (dealership) licence.

You are requested to meet me in person and put your signature in the application from. They have given us only 15 days time to execute the agreement. Therefore you are requested to execute the same within 23rd August 2003."

(sic)

29. Since the appellant himself has addressed to the plaintiff

to come forward to execute necessary licence agreement with the BPCL 2025:KER:94981 RSA NO. 304 OF 2015

Company, this Court is inclined to think that the 1984 partnership deed

has not taken effect. Therefore, the findings rendered by the courts

below concurrently on the subsistence of 1978 partnership deed and

also the effect of 1984 partnership deed do not call for any interference.

30. However, the said reasoning cannot be applied insofar as

reliefs 3 to 5 in the plaint are concerned. There is no explanation from

the side of the plaintiff as to how he is claiming 1/3 share of profit of

the partnership firm. Equally so, there is no explanation as to how the

other family members are entitled to the remaining shares. This

obscurity cannot be resolved finally by this Court in the absence of the

partnership deed dated 29.5.1978. Even assuming that this deed was

available, even then, the plaintiff will have to necessarily sue for

dissolution of the firm and also for sharing of the profits. Therefore, it

is clear that the framework of the suit itself is bad and that the finding

of the courts below as regards the sharing of the profits of the firm is

certainly perverse.

31. It is pertinent to mention that the plaintiff did not remit

any court fee for the settlement of the accounts. It is also beyond doubt 2025:KER:94981 RSA NO. 304 OF 2015

that from 1984 onwards till 2018, he was employed in the Railways.

Therefore, even assuming that a declaratory relief is granted to him, he

can continue only as a dormant partner, thereby indicating that he is

not entitled to any profit for the said period. In such circumstances, in

the absence of any clear evidence as regards these aspects, a remand

by this Court is inevitable. In this context, this Court finds

considerable force in the submissions of the learned Senior Counsel

appearing for the 2nd respondent/plaintiff that even if the latter part of

the reliefs under 3 to 5 is held against the plaintiff, then, his remedy to

institute a separate suit for settlement of accounts having been

reserved by the courts below, such right will have to be left open by this

Court. Alternatively, it is also pleaded that since the parties have been

litigating from 2006 onwards, let the suit be remanded for the limited

purpose of considering the settlement of accounts alone, enabling the

plaintiff to remit the court fee for the said purpose.

32. In view of the fact that the appellant and the respondents

are brothers, it is only just and proper for this Court to grant an

opportunity for the plaintiff to have the accounts of the firm settled by 2025:KER:94981 RSA NO. 304 OF 2015

an appropriate measure in the present suit and not to drive the parties

to a fresh litigation. In the above circumstances, the substantial

questions of law framed by this Court are answered as follows:

i) The framework of the suit is not proper inasmuch as,

apart from the declaratory relief, none of the reliefs could be

sustained.

ii) The finding of the courts below that the plaintiff is

entitled to ⅓ share and the other family members are entitled

to proportionate ⅔ share is perverse and liable to be set aside.

33. As an upshot of this discussion, the judgment and decree

dated 3.8.2011 in O.S.No.385/2006 on the files of the Principal Sub

Court, Kottayam as affirmed by judgment dated 1.10.2014 in

A.S.No.191/2011 by the Additional District Court-II (Special),

Kottayam are liable to be interfered for the limited purpose and the

suit, O.S.No.385/2006 on the files of the Principal Sub Court,

Kottayam is liable to be restored, with the following directions:

2025:KER:94981 RSA NO. 304 OF 2015

(a) The finding of the courts below that the partnership deed

dated 7.8.1984 is inoperative insofar as the 2nd respondent

/plaintiff is concerned, is sustained.

(b) All other findings regarding the respective shares of the

parties in the partnership deed are set aside.

(c) O.S.No.385/2006 shall stand restored to the files of the

Principal Sub Court, Kottayam.

(d) The 2nd respondent/plaintiff, if so advised, may remit the

court fee for the purpose of settlement of accounts and also

for dissolution of the firm by incorporating suitable relief.

(e) The appellant/1st defendant is given liberty to produce a

copy of the partnership deed dated 29.5.1978 and also the

profit and loss account of the firm.

(f) Since the plaintiff was a Government employee employed

in the Railways from 1984 till 2018, and having not

participated in the profit sharing of the firm, while

settlement of the accounts is being carried out, the plaintiff 2025:KER:94981 RSA NO. 304 OF 2015

will not be entitled to any profit derived from the firm for

the period 1984 to 2018.