BHUWAN CHANDRA TEWARI Vs. HARIKISHAN TEWARI & SONS

JUDGEMENT

(1.) THIS second appeal is preferred under Section 100 of the Code of Civil Procedure, 1908, and is directed against the judgment and decree dated 13 -03 -2003 passed in Civil Appeal No. 09 of 2001 by Shri V.K. Jain, the then learned District Judge, Almora.

(2.) THE factual matrix of the case are that the plaintiffs -appellants filed Civil Suit No. 78 of 1998 before the trial Court for rendition of accounts against the partners of the partnership firm M/s Harikishan Tiwari and Sons. As per the plaint allegations, Shri Hariklshan Tewari, the grandfather of the plaintiffs -appellants, owned land and houses in Village Ratighat, Padll, District Nainital and he also owned shops In Sadar Bazar, Ranikhet, District Almora, apart from running the petroleum business in the name and style of 'M/s Harikishan Bhawani Dutt' since 1932. Shrl Hari Kishan Tewari died in the year 1951 leaving behind his six sons as legal heirs shown in the pedigree in para 1 of the plaint. It is pleaded in the plaint that after death of Shri Harikishan Tewari, the petroleum business was being run by all the sons. On 02 -04 -1957, the name of the firm changed with the new name and style as 'M/s Hariklshan Tewari and Sons' with all the six sons as partners. It is 'further pleaded in the, plaint that the firm was' not to be dissolved due to the death of any of the partners, rather on the death of any of the six partners his heirs were to be deemed new partners of the firm. The firm was got registered by defendant No. 1 (through Shri Amba Dutt Tewari) with the Income -tax Office, Bareilly (now at Almora). A family settlement regarding entire movable and Immovable properties of the business of late Hari Kishan Tewari was thereafter arrived at on 31 -08 -1959. In said settlement, as per the plaint, it was never mentioned if plaintiffs father Shri Ishwari Dutt Tewari (now dead) had ceased to be partner in the firm. Rather, the defendant. No.1 issued a letter on 21 -10 -1963 to the State Bank of India, Branch Ranikhet, showing that the petroleum business is being run by all six sons of late Shri Hari Kishan Tewari. Shri Pitambar Dutt Tewari, one of the sons of Hari Kishan Tewari died in 1990. The second son, Narain Dutt Tewari died in 1974. The third son, Devi Dutt Tewari died in 1996, while the plaintiffs father Shri Ishwari Dutt Tewari has already died in 1964. Even after death of plaintiffs father, the defendant No. 1 and defendant No. 2 and 3 represented to the Income -tax Officer, Almora, and State Bank of India, Branch Ranikhet, that the firm is being run by all the sons except Shri Pitamber Dutt Tewari. Finally, last family settlement of heirs of late Shri Hari Kishan Tewari, In respect of his movable and immovable properties, took place on 22 -04 -1996, in which the petroleum business of Hari Kishan Tewari was still shown to be run by the partnership firm. Plaintiff No.1 (Attorney holder of plaintiff No.2) had further pleaded that due to the financial problems, he joined Army in July 1980 and got discharged from the Army in August 1984. However, he was not given his share of profits by the firm and had ultimately got issued notices dated 08 -06 -1988 through his counsel for payment of his share as well as share of his brother. On this the plaintiffs and defendant No. 2 agreed that Rs. 600/ - per month shall be paid to the plaintiffs from 1976 up to March 1988 In ten instalments, and thereafter rent shall be paid on year to year basis. As per the plaint, defendant No. 2 also agreed to pay profits out of the total income of petroleum business from th~ year 1978 -79 at the rate of 33% of the profits. However, the defendant No.2 failed to comply the terms of the compromise. On this, the plaintiffs sent a notice on 06 -02 -1989 to State Bank of India with a request to stop payment of the firm M/s Harikishan Tewari and Sons, on which the payment was stopped and defendant Nos. 2 and 3 filed a suit No. 41 of 1989 against the State Bank of India. However, the same was dismissed In default and since then the defendant -firm has neither paid any share from the Income of the firm nor accounts were shown to the plaintiffs. Hence, the suit was filed by the plaintiffs before the trial Court.

(3.) THE defendants filed written statement and contested the suit with the pleadings that plaintiffs are not the partners of firm 'M/s Harikishan Tewari and Sons'. It is further pleaded that with the family settlement on 31 -08 -1959, the firm stood dissolved and the business of petroleum was allotted to the share of defendant Nos. 2 and 3, who are now sole owners and partners of the firm. However, it is further pleaded in the written statement that several members were shown as partners only to adjust the tax liability. It is further pleaded in the written statement that the plaintiffs are taking undue advantage of said fact. The maintainability of the suit was challenged also on the ground of limitation.