HEIRS OF BHULABHAI SOMABHAI Vs. HEIRS AND L.RS. OF DECD. ISHWARBHAI SOMABHAI AND MANIBEN WDO. AND OTHERS

JUDGEMENT

(1.) The appellants, who are the legal heirs of the deceased Bhulabhai Somabhai Patel (original defendant No.1) have preferred the instant First Appeal under section 96 of the CPC challenging the judgment and preliminary decree dated 21.11.1984 passed by the Additional Principal Judge, Court No.2, Ahmedabad (hereinafter referred to as ' the trial Court- ) in Civil Suit No. 2242 of 1979, whereby the trial Court while decreeing the suit has held that ? ..? portion of the land bearing Survey No. 38/2/3/B situated at village Achar, Sabarmati, was the property of the partnership firm, named Suryodaya Rice and Flour Mills (hereinafter referred to as ' the said firm), and that the plaintiff, the deceased-defendant No.1, the deceased Kalidas Devidas and the deceased Manilal Cheldas, each had ? share as partners in the said property. It was further declared that the said firm had stood dissolved from the date of the suit i.e., 09-07-1979, and that all the partners shall render accounts in respect of the partnership firm, and that the defendant No.1 and his heirs shall render all accounts of the expenditure that might have been incurred by the deceased-defendant No.1 out of his pocket for the purpose of litigation in respect of the said land.

(2.) The respondent No.1 in the present appeal-Shri Ishwarbhai Somabhai (original plaintiff) had filed the suit before the trial Court seeking dissolution of the said partnership firm, and seeking accounts in respect of the properties of the firm including the land in question, as prescribed in para 6 of the plaint, and seeking his share in the said properties and/or recovery of the amount in respect of his share with interest @ 9% per annum. It was alleged in the plaint inter alia that one Prabhudas Gatordas and deceased Kalidas Devidas had entered into a partnership on 27.10.1954 in the name and style of Suryodaya Rice Flour Mills for carrying on the business of milling paddy etc. The said firm was registered on 13.10.1955 under the Indian Partnership Act. Thereafter on 12.11.1956, the said Prabhudas Gatordas had retired, and the surviving partners Kalidas had taken the plaintiff Ishwarbhai Somabhai, his brother Bhulabhai Somabhai and one Manilal Cheldas as partners with equal share in profits and losses of the firm. It was further alleged that the defendant No.1 Bhulabhai was managing the affairs of the firm, and the plaintiff Ishwarbhai Sombahai, and Manilal Cheldass were doing the agriculture work. It was agreed amongst the partners that in case of the death of any partner, his heirs would be entitled to the share of the deceased partner, and the firm would be continued. Thereafter one partner named Kalidass Devidass died on 05.06.1969, and the other partner Manidass Cheldass died on 20.03.1978. Therefore the suit was filed by the plaintiff Ishwarbhai against the said Bhulabhai Somabhai - the defendant No.1, against the defendant Nos. 2 to 5, who were the legal heirs of the deceased Kalidas Devidas and against the defendant Nos. 6 to 11, who were the legal heirs of the said deceased Manilal Chheldas. The said defendant No.1 Bhulabhai Somabhai also expired pending the suit and therefore, his heirs were brought on record as the defendant Nos.1/1 to 1/8, who are the appellants herein.

(3.) It was alleged in the suit by the plaintiff Ishwarbhai that the defendant No.1 Bhulabhai being the elder member of the family and experienced person, was managing the affairs of the firm, and the amounts withdrawn by each partner of the firm, were being debited to the accounts of the respective partners in the books of accounts of the firm. Since the firm ran into financial difficulties, the mill was attached by the Income Tax Department and put to sell in March, 1974. Many suits were filed by and against the firm, and though the business came to a standstill, the firm was not dissolved nor the accounts were settled. It was further alleged that 4/5 portion of the land bearing Survey No. 38/2/5/B admeasuring 39 gunthas situated at Acher, Sabarmati was agreed to be purchased by the partnership firm in the name of the defendant No.1-Bhulabhai Somabhai under the agreement dated 06.08.1957, and remaining ? ..? portion of the said land was agreed to be purchased jointly by Prabhudas Gatordas and Manilal Cheldass. It was further alleged that the defendant No.1 Bhulabhai had filed the suit being Civil Suit No. 94 of 1960 (781 of 1961) against the vendors of the said land, and ultimately under the decree of the Court, the sale deed was executed on 21.01.1978 in favour of the said Bhulabhai by the Court Commissioner. According to the plaintiff, though the sale deed was executed in the sole name of defendant No.1 ' " Bhulabhai, the said purchase of land was made for and on behalf of the partnership firm, and therefore the defendant No.1 was not the exclusive owner of the said land. The amount of sale consideration paid by the defendant No.1, was not debited to his personal account maintained in the firm, but was debited to a separate account specifically opened in the name of Bhulabhai Somabhai, Sabarmati Land Plot. As the income tax returns of the firm were filed only upto 1969, the said land was not shown therein, the same having been purchased only on 21.01.1978. According to the plaintiff, the defendant No.1 was only a Benamidar of the firm, however, he with the mala fide intention, and taking undue advantage of the situation, was attempting to deal with the said property as the owner, and therefore, the plaintiff had published a notice in the local daily ' Sandesh on 07.02.1979. The defendant No.1 also through his Advocate had issued a title clearance notice in respect of the said land on 21.05.1979 inviting objections. The plaintiff, therefore, had filed the Suit for the dissolution of partnership firm and for accounts and also for his share in the properties of the firm.