- (1.) IN this case a second appeal was preferred by defendant Deen Dayal, and a cross-objection by plaintiff Hanuman Sahai, against the appellate judgment and decree of the learned District Judge, Jaipur District, dated January, 6, 1959. The suit was for dissolution of partnership and rendition of accounts. It is admitted on behalf of the defendant that his appeal was dismissed in default of appearance on December 4, 1962, and that order has become final, so that I am concerned only with the plaintiff's cross-objection.
(2.) THE suit was instituted by plaintiff Hanuman Sahai in the court of Civil Judge, Tonk, on December 18, 1950, with the allegation that the parties and one Bholaram entered into a partnership in Phalgun Smt. 2004 for the purpose of establishing and running a flour, oil and ginning mill at Niwai. According to the plaintiff, it was agreed that while the share of Bholaram would be annas two in the rupee, the shares of plaintiff Hanuman Sahai and defendant Deen Dayal would be seven annas in the rupee each. THE plaintiff claimed that it was agreed between the partners that a sum of Rs. 200/- per mensem would be payable to Bholaram and Hanuman Sahai, as cash remuneration, in addition to their aforesaid shares in the partnership business. It is not disputed that the mill went into production on August 3, 1949, and was known as "shri Ganesh Oil, Ginning and Flour Mill". It is also not disputed that Bholaram withdrew from the partnership in Mangsir Smt. 2006, on payment of Rs. 8700/- on account of his share as well as profits. THE defendant, however, came to Niwai and began to manage the affairs of the mill from Baisakh Smt. 2007. It appears that there was some misunderstanding between the two partners Hanuman Sahai and Deen Dayal. , so that Deen Dayal gave notice Ex. P. A. 1 on November 18, 1950, asking Hanuman Sahai to withdraw his one-third share after settling the accounts. Hanuman Sahai gave reply Ex. P. G. dated 28th November, 1950, to that notice claiming that each of the partners had a one half share and calling upon Deen Dayal to withdraw his share if he so desired. Soon after, the plaintiff filed the present suit on December 18, 1950, stating that he had a half share in the partnership business from the date of Bholaram's withdrawal and praying for a decree for dissolution of the partnership and rendition of accounts. The defendant asserted in his written statement that the plaintiff's original share was seven annas in the rupee, but that it was reduced to a one-third share after the withdrawal of Bholaram so that the defendant had a two-third share in the business. He also pleaded that it was obligatory for the plaintiff to keep a standing deposit of Rs. 5,000/- according to the terms of the partnership and that as the firm had suffered a loss, the plaintiff had to pay Rs. 618/9/3. A number of issues were formed by the trial court and the case was decided by the learned Civil Judge, Jaipur District, by his judgment dated July 10, 1957. The learned Judge held that, before Bholaram's retirement, each of the parties had a share of seven annas in the rupee and Bholaram had a share of two annas. He also held that after Bholaram's retirement on September 21, 1950, the plaintiff's share fell to one-third while the defendant's share rose to two-third. On the other points of controversy, the learned trial Judge held that the plaintiff was entitled to charge interest at the rate of -/4/- per centum, per mensem, on the investment, that the plaintiff was entitled to salary at the rate of Rs. 200/- per mensem upto the date of Bholaram's retirement but not thereafter, and that the defendant was liable to render accounts after September 21, 1950 because the earlier accounts were already settled. As regards the duration of the partnership, the learned Judge held that it was a partnership at will and that it was dissolved on February 13, 1951 when the defendant filed his written statement. The defendant was therefore directed, under the preliminary decree of the trial court to render full accounts for the period commencing 5 or 7 days after the Diwali of Smt. 2007 upto date. Some other terms were incorporated in the decree, but it is not necessary to refer to them as they are not material for purposes of the present controversy. It may however be mentioned that inspite of the pronouncement in the plaintiff's favour that he was entitled to a salary at the rate of Rs. 200/- per mensem upto the date of Bholaram's retirement, that relief was not incorporated in the preliminary decree. An appeal was preferred against the aforesaid preliminary decree by defendant Deen Dayal, while a cross-objection was preferred by the plaintiff. The learned District Judge dismissed both of them by his judgment dated January 6, 1959, and this is how both the aggrieved parties approached this Court, but, as has been mentioned, the appeal of the defendant having been dismissed cannot now be heard and only the plaintiff's cross-objection remains to be decided. It has been argued by Mr. Agrawal in respect of the cross-objection that the finding of the learned District Judge upholding the decision of the trial court that the plaintiff had only a one-third share in the partnership business after the retirement of Bholaram on September 21, 1950, is vitiated by the fact that the learned Judge did not consider the evidence in coming to his decision. The learned counsel has taken me through the parol evidence bearing on the point, but I see no reason to differ from the view which has prevailed with the District Judge The reason is that defendant Deen Dayal has proved the genuineness of document. Ex. D. B. (a) which embodies the terms on which he and Hanuman Sahai continued to remain partners after the withdrawal of Bholaram. Nothing has been elicited in Deen Dayal's cross-examination to disprove his assertion. As a matter of fact, the plaintiff's denial of the execution of this document has been disproved by the fact that when he was cross-examined with regard to his signature (which has been marked in red chalk by the trial court) at its foot after concealing the text which preceded it, he was not able to deny that it was his signature There can be little doubt therefore that the defendant has succeeded in proving the genuineness of that document. It may also be mentioned that the defendant examined Krishna Behari Lal D. W. 3 as an expert and he has also stated that the signature on Ex. D. B. (a) had been made by the plaintiff. Thus, when the genuineness of that document has been fully established, the narration in it that the plaintiff had one-third share, after the withdrawal of Bholaram, has rightly been held to be correct and the argument to the contrary is of no avail. It has next been argued that the plaintiff was entitled to salary at the rate of Rs. 200/- per mensem not only upto September 21, 1950, when Bholaram withdrew from the partnership, but thereafter as well. Mr. Agrawal has rightly pointed out that while the trial court was inclined to grant that salary upto the date of Bholaram's retirement, it lost sight of the claim towards the end of the judgment as it got involved with the claim for a similar payment for the subsequent period. It is also correct that a similar mistake has been committed by the learned District Judge. A perusal of document Ex. D. B. (a) clearly shows that it was agreed between the parties that payment would be made to the plaintiff at the stipulated rate of Rs. 200/- per mensem, upto the date of Bholaram's withdrawal, but that the amount would be settled after making an enquiry from Binjraj. The payment is therefore admissible at the rate of Rs. 200/-per mensem upto September 21, 1950, but not thereafter, as the revised terms contained in Ex. D. B. (a) do not show that any further payment was contemplated. As the trial Judge committed an obvious and inadvertent mistake in negativing the plaintiff's claim for payment of Rs. 200/-per mensem upto September 2, 1950, and as the mistake was not corrected by the court of first appeal, it is necessary to modify the judgment and the decree under appeal so as to allow that claim of the plaintiff, if it is found, on going into the accounts, that he has not already received the payment of his salary at the rate of Rs. 200/- per mensem for the period ended September 21, 1950. The other question is whether the finding of the court below is correct about the date of dissolution of the partnership. There was no specific issue on this point, but the trial court has dealt with it while considering issue No. 3 which relates to plaintiff's claim for rendition of accounts. The learned Civil Judge reached the conclusion that the partnership was at will and that it was dissolved on February 13, 1951, when the defendant filed his written statement. The plaintiff feels aggrieved by this finding and it has been argued by Mr. Agrawal that as the partnership firm had been constituted to carry on a flour, oil and ginning factory, that factory was an 'adventure' or 'undertaking' within the meaning of clause (b) of sec. 42 of the Partnership Act and that the firm would be dissolved by completion of that adventure or undertaking. The learned counsel has tried to support his argument by a a reference to Ramnarayan vs. Kashinath Jagnarain (1 ). It is admitted before me that the parties have not led any evidence to show what was decided by them about the duration of the partnership or the mode of its determination. As such, there is no reason why the partnership should not be held to be a partnership at will within the meaning of sec. 7 of the Partnership Act. According to that section, a partnership is deemed to be a partnership at will if (i) no period has been fixed by the partners for its duration, or (ii) there is no provision in the partnership agreement for its determination. So a partnership will not be a partnership at will if an agreement has been made for the duration of the partnership, or if there is a provision for its determination. It is not necessary however that there should always be an express provision for the duration of the partnership or its determination and it is open to the court to decide whether any such stipulation could be inferred from an examination of the terms of the contract as a whole and the nature of the business to which it relates. The conduct of the partners is also a relevant factor for consideration, as the real test is the intention of the parties. It is however well settled that the burden of proving any such implied agreement is on the person who alleges it, for he cannot be allowed to deprive the other partner of his ordinary right to retire from, or dissolve a partnership firm, unless he can show that there is a provision for the duration of the partnership or its determination. In other words, the provisions relied on must be clearly inconsistent with the general right to dissolve a firm. A similar point arose for consideration before their Lordships of the Supreme Court in Karumuthu Thiagarajan Chettiar vs. E. M. Muthappa Chettiar (2) and their Lordships took the view that sec. 7 of the Partnership Act contemplates two exceptions to a partnership at will. The first exception is where there is a provision in the contract for the duration of partnership and the second exception is where there is provision for the determination of the partnership. Such a provision may be express, or it may be implied. Their"lordships have approved the view that where no term is Expressly limited for the duration of a partnership, and there is nothing in the contract to fix it, the partnership may be terminated at a moment's notice by either side. The same principle has been held to apply to a case of determination of the partnership so that if there is no express term for the determination of the partnership in certain circumstances, and no implied term as to when the partnership will determine is to be found in the contract, the partnership will be"a partnership at will and it can be determined by a similar notice from either party. As there is nothing in the present case to show that the intention of the parties was to have a partnership of some duration, and as they did not make any provision for its determination, the partnership must be held to be a partnership at will within the meaning of sec. 7 of the Partnership Act. The conduct of the partners in terminating Bholaram's partnership in the manner mentioned above, also lends support to this view. The argument of Mr. Agarwal that the partnership was constituted to carry out the adventure or undertaking of establishing and running a flour, oil and ginning factory at Niwai within the meaning of clause (b) of sec. 42 of the Partnership Act and that the firm could be dissolved only on completion of that undertaking or adventure, is not tenable. What that clause really lays down is that. , in a given case, a term or terminus ad quem may be inferred from the nature of the adventure or undertaking even though no express term was fixed for it. Thus, that clause would be attracted to a case where several adventures or undertakings are carried on by the partnership firm and the nature of those adventures or undertakings leads to the conclusion that the partnership with another person was for particular adventure or undertaking only, and not over the whole field of the persons with whom a person enters into a particular partnership. In such a case the terms of the agreement of partnership, the nature of the adventure or undertaking and the conduct of the partners have to be examined. , and if it is found that the particular partnership was made for the purpose of carrying on only one particular adventure or undertaking, the firm would be dissolved on the comple-tition. This is why in Karumuthu Thiagarajan Chettiar's case (2), which related to a partnership for carrying-on the managing agency of certain mills, it was held, on a consideration of all the facts and circumstances, that the partnership was to determine when the managing agency determined. But as there is no evidence to show that the present partnership was for the purpose of carrying out any particular adventure or undertaking, it is futile to argue that the partnership should continue until the "completion" of the mill. As has been mentioned, the partners set up a flour, oil and ginning factory at Niwai and there could be no question of a "completion" of that business so as to justify the application of clause (b) of sec. 42. Ram Narayan vs. Kashinath Jagnarain (l) cited by Mr. Agrawal is of no avail because the object of the partnership in that case was to exploit a salt license and the sale agency in the name of the partnership, and the intention of the parties was that the partnership should continue so long as the agency of salt continued or till separate agencies were obtained by the parties in their respective names. That case was therefore based on quite different facts. It would thus appear that sec. 7 of the Partnership Act covers the present case, so that the partnership has rightly been held to be a partnership at will, and, by virtue of sec. 43, the firm could be dissolved by any partner giving notice in writing to the other partner of his intention to dissolve the firm. In such an event, the firm is dissolved as from the date mentioned in the notice as the date of dissolution, or, if no date is mentioned, from the date of the communication of the notice. However, it has been decided in the present case that the partnership was dissolved on February 13, 1951, which is a later date, and as that finding has become final so far as the defendant is concerned because of the dismissal of his appeal, it is not open to him to obtain a relief from this Court for advancing the date of dissolution to the date when the defendant first gave his notice for that purpose. As has been shown, the plaintiff's contention that the partnership could be dissolved only under sec. 42 (b) of the Partnership Act, is not justified, so that the finding of the courts below that the firm stood dissolved on February 13, 1951 will remain unaltered.
(3.) IT may be mentioned that Mr. Datt raised an argument on behalf of the defendant - appellant that even though his appeal had been dismissed, the defendant's whole case should be re-heard by virtue of the provisions of Order XLI, rule 33 C. P. C. while considering and deciding the plaintiff's cross-objection. The argument is without substance because in the present case an appeal was preferred by the defendant, but it was dismissed, so that there is really no scope for the application of order XLI rule 33 C. P. C. The object of the rule is to enable the appellate court to do complete justice between the parties and to avoid contradictory and inconsistent decisions on the same question in the same suit, but this power u/r. 33 has to be exercised only where the portion of the decree against which the cross-objection has been filed is so inseparably connected with the portion for which an appeal is not maintainable that justice cannot be done unless the latter portion is also interfered with. As this is not so in the present case the general rule that an appellate court must not vary or reverse a decree in favour of a party who has not preferred an appeal, or whose appeal has been dismissed, must have its full application. In the result, the cross-objection succeeds only to the extent that the plaintiff is allowed payment at the rate of Rs, 200/- per mensem upto September 21, 1950, if it is found, on going into the accounts, that he has not been paid for that period. The impugned judgment and decree of the learned District Judge are modified accordingly. In other respects, the cross-objection fails and is dismissed. In the circumstances of the case, I would leave the parties to bear their own costs in this court. .;