Shamsher Bahadur, J. - (1.) THE sole question for determination in this appeal is whether the sale by the Appellant, who is the Custodian of Evacuee Property, Delhi State, Delhi, on behalf of Hakim Hafiz Mohd. Sayeed of one -half share of the business assets of Hamdard Dawakhana in favour of the Respondent Hakim Haji Abdul Hamid included the share of profits which accrued to the evacuee after his migration to Pakis -tan and before the date of sale?
(2.) THE establishment of Hamdard Dawakhana was originally owned by the two brothers, Hakim Hafiz Mohd. Sayeed and Hakim Haji Abdul Hamid, who is the first Respondent, in equal shares Hakim Haji Mohd. Sayeed having migrated to Pakistan was declared an evacuee by an order of the Assistant Custodian passed on 6th of August, 1949. Thereafter, the same officer by his order of 11th of February, 1950 (Exhibit P -5) declared that the "half share of the Hamdard Dawakhana business, factory and stock in trade" belonging to Mohd. Sayeed was to be notified as an evacuee property In the Extraordinary Gazette of India. The first Respondent, Hakim Abdul Hamid was directed to render the accounts of the Hamdard Dawa -khana on 20th of February, 1950 and to deposit half the income of the establishment in the Central Chest of Custodian Evacuee Property's office. The first Respondent was also directed to act as Manager of the Hamdard Dawakhana on behalf of the Custodian. On 13th of February, 1950, the Assistant Custodian recorded the order (Exhibit P -9) asking the Assistant Custodian (Moveables) to take over half the share in the factory, stock in trade etc. of the Hamdard Dawakhana and also "necessary surety on the appointment of Hakim Abdul Hamid as manager on behalf of the Custodian etc., as early as possible". Thereafter, the first Respondent moved through his counsel an application on 20th of February, 1950 (Exhibit P -1) that the submission of accounts may be postponed for a month as they were under preparation. On that date, another order was passed by the Assistant Custodian that charge should be taken of the stock of the Hamdard Dawakhana and a security of Rs. 50,000/ - should be obtained immediately from the first Respondent. The security bond for Rs. 50,000/ - was lodged by one Shambhu Nath on 28th of February, 1950, and the Respondent in his letter of the same date (Exhibit P -2) expressed his readiness and willingness "to act as a Manager of the evacuee property provided it is without prejudice to his rights to take any legal action by way of appeal revision etc., in order to get the accounts order annulled or modified". It is common ground that the first Respondent continued the business of the Hamdard Dawakhana till the half share of the establishment which had vested in the custodian was transferred to him on payment of Rs. 71,810/ -. No transfer deed or sale deed was executed at the time and the only document is the receipt (Exhibit D -2) which was executed by the Assistant Custodian on 22nd of June, 1950. The receipt is worded as follows: Received from H. Abdul Hamid.... Rs. 71,810/ -, an account of sale price of 1/2 share of H. Mohd. Sayeed declared evacuee in the business of Hamdard Dawakhana. Subsequently, the first Respondent was asked by the Appellant to render accounts of the profits which had accrued as the share of the evacuee in the business of Hamdard Dawakhana from 1st of January, 1949, to 22nd of June, 1950. The demand not having been acceded to, the Custodian brought a suit for this purpose on 7th of January, 1953. This suit having been dismissed by the learned Subordinate Judge, the Custodian has come in appeal to this Court.
(3.) THE decision of this case turns on the question whether the transfer of half share of the business include the half share of the profits and also the consequential right to ask for accounts? It is not disputed that at the time of sale the assets of the business were valued both by the first Respondent and Hakim (sic) -ui -Rehaman on behalf of the Custodian. The difference in their valuation was slight and half share of the business was computed at Rs. 71,810/ - which was paid by the Respondent to the Custodian. The statement of law with regard to the share of partner in such a situation is given in Lindley on Partnership (eleventh edition) at page 42/, in chapter v, dealing with shares in partnerships. According to the proposition: What Is meant by the share of a partner is his proportion of the partnership assets after they have been an realised and converted into money, and all the partnership debts and liabilities have been paid and discharged. This It is, and this only, which on the death of a partner passes to his representatives or to a legatee of his share.... This is of course, subject to any contrary intention which may be evinced by the contract between the parties concerned. The assets of a partnership include not only the stock In trade and goodwill but also the profits which have already accrued and have been thrown in the common account. It would be useful to manor to the leading English authority of the House of Lords in Rodaguez v. Speyer Brothers 1919 AC 59, to which reference has been made in Lindley on Partnership at page 427 said lord. Finally at page 68: There is another consideration to be taken into account if the co -contractors were partners. When a debt due to the first is got in no partner has any definite share or interest in that debt, his right is merely to have the money so received applied, together with the other assets, in discharging the liabilities of the firm, and to receive his share of any surplus there may be when the liquidation has been completed. His interest can be finally ascertained only when the liquidation has been completed, and it consists of his share of the surplus. He may be benefited as a consequence of the action by the reduction of his indebt ness to the firm as a whole or conceivably by his getting some part of any surplus when the winding up has been completed. But he has no right to any part of the sum recovered.;