RSA No. 2215 of 2007 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 2215 of 2007 Date of decision: January 21,2009 Rajan Dhiman son of late Shri Sumer Chand ..Appellant. Versus Mohinder Parshad and others ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. Krishan Singh, Advocate for the appellant. .... Rakesh Kumar Garg,J. This judgment shall dispose of RSA No.2215 of 2007 titled as Rajan Dhiman Versus Mohinder Parshad and others and RSA No.2703 of 2007 titled as Sumer Chand Versus Mohinder Parshad and others, which have arisen out of a common judgment passed in CA No.24/CA/2004 titled as Sumer Chand and another Versus Mohinder Parshad and others passed by Shri Harnam Singh Thakur, Additional District Judge, Jagadhri in an appeal against the judgment and decree dated 19.12.2003 passed by Civil Judge (Junior Division), Jagadhari whereby suit of the plaintiff-respondent was decreed partly. Mohinder Parshad respondent No.1 filed the present suit against Ved Parkash etc. (including the appellants) for separate possession of the suit property by way of partition by metes and bounds. He also sought the relief of recovery of any amount found due to him after rendition of accounts. As per the averments in the suit, the defendant Nos.1 and 2 were real brothers of the plaintiff whereas defendant No.3 was the mother. Plaintiff’s father, namely, Nathi Rai Dhiman along with him and the defendants Nos.1 and 2 were the partners of the firm having name and style as M/s Nathi Ram Dhiman and Sons, Yamuna Nagar. In that firm, said Nathi Ram was having 25 % share; Balak Ram having 20 % share, Sumer Chand 20 % share; Mohinder Parshad (Plaintiff) 20 % share and Ved Parkash 15 % share. Nathi Ram Dhiman and RSA No. 2215 of 2007 2 Balak Ram had expired, so their share had devolved upon him and defendant Nos.1 and 2. Therefore, he is entitled to 1/3rd share in the suit property. It is further averred that the suit property was purchased by the firm, i.e., Nathi Ram Dhiman and Sons Yamuna Nagar. The firm was receiving income from the property and the machinery. Defendant No.2 was liable to give total accounts. After the death of Nathi Ram Dhiman about two years back, the firm stood automatically dissolved but the assets of the said firm including the suit property and income was not partitioned, so the plaintiff is entitled to 1/3rd share out of the total assets of the firm. He requested the defendants so many times to partition his share but they did not acceded to his request. Hence this suit. Upon notice, defendants contested the suit by filing separate written statements. Defendant No.1 had admitted the claim of the plaintiff in toto. Defendant No.2 contested the suit. Relationship of the parties, partnership firm and status of the partners was admitted. The shares of the partners as described in the plaint were admitted. It was further stated that Balak Ram was unmarried and died issueless during his life time. He adopted Anil Kumar son of Sumer Chand Dhiman, defendant No.2 and share of Balak Ram devolved upon Anil Kumar. It was further stated that the firm was dissolved in the year 1986 as per dissolution deed dated 31.3.1986 and as per this deed, all the liabilities and assets were left with him. Defendant No.2 also raised additional plea to the effect that suit is not maintainable because the plaintiff got no right, title or interest in the suit property. Defendant No.3 contested the suit by filing separate written statement. She also took the same stand as defendant No.2 regarding the adoption of Anil Kumar by Balaka Ram and that the firm was dissolved by way of partnership deed dated 31.3.1986. She also stated that after the dissolution, the assets and liabilities of the firm was left with Sumer Chand and he became the sole proprietor of the said firm. In addition, she also took a stand that at the time of RSA No. 2215 of 2007 3 dissolution; the firm was having a liability of Rs. 70,000/-, which was paid by Susmer Chand. She also stated that her husband had executed a Will on 22.12.1992 leaving behind the suit property of her and the defendant No.1 had no concern with the property of the firm. Defendant No.4 has taken a stand that the suit property strictly belongs to the partnership firm. The firm was dissolved but the property had not been partitioned. He also stated that after the death of Balak Ram and Nathi Ram, he was entitled to 15 % share in the share of Balak Ram and Nathi Ram being the son of Nathi Ram and the brother of Balak Ram. He also stated that the Saw Mill and the other machinery were installed by the firm from its expenses and the defendant No.2 was illegally receiving the rent after dissolution of the firm from the tenants. On the pleadings of the parties, the following issues were framed by the trial Court:- 1. Whether the plaintiffs entitled to a separate possession by way of partition of the suit land? OPP 2. Whether the present suit is not maintainable in the present form? OPD 3. Whether the plaintiff has already separated from the joint family in the year 1973-74? OPD 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Whether the present suit has not been properly valued for the purposes of court fee and jurisdiction and it is liable to be dismissed? OPD 6. Whether the suit is without any cause of action? OPD 7. Whether the plaintiff has not come to the Court with clean hands hence, he is not entitled to the discretionary relief of injunction? OPD 8. Whether the defendant No.1 is also owner of 1/3rd share in the RSA No. 2215 of 2007 4 suit property? OPD 9. Relief. After considering the evidence on record and hearing the counsel for the parties, the trial Court observed as under:- “ In view of the above discussion, this Court is of the considered opinion that the firm M/s Nathi Ram and Sons was dissolved with the death of its partners Balak Ram on 5.10.1983. After the dissolution, Nathi Ram, Plaintiff Mohinder Parshad, defendant No.1 Ved Parkash and defendant No.2 Sumer Chand were having one share each in the partnership firm. Said Nathi had also expired and his Will is not proved. Accordingly, his share shall be equally distributed amongst the present plaintiff, defendant No.1 and defendant No.2.It is the admitted case of the parties that the partner Balak Ram had died unmarried and issueless, so his share also be distributed in equal share by the partners of the partnership firm. Accordingly, the issue No.1 is decided in favour of the plaintiff, Issue No.3 is decided against the defendants and Issue No.7 is decided partly in favour of the defendants.” As a result of the aforesaid findings, the suit of the plaintiff- respondent was decreed as under:- “It is ordered that the suit of the plaintiff partly succeeds and the same is hereby partly decreed with costs. The plaintiff was originally entitled to 20 % share in the suit property as well as in the amount of rent collected by defendant No.2 from 1.4.1986 till its realization. After the death of Balak Ram his share was inherited by defendant No.2 Krishna Wanti being his class-I legal heir. After the death of Nathi Ram his 25 % share was inherited by the defendant No.3 Krishna Wanti, Plaintiff Mohinder Parshad, defendant No.1, Ved Parkash defendant No.2, Sumer Chand and Sat Pal being his RSA No. 2215 of 2007 5 legal heirs. In this manner 5 % share out of the 25 % of Nathi Ram was inherited by Mohinder Parshad and in this manner he has become entitled to 25 % in the suit property as well as in the amount of rent as described above. The defendant has admitted that he has been receiving the amount of Rs. 2500/- per month as rent regarding the suit property w.e.f. 31.3.1986. There is nothing on file to suggest the rent prior to 31.3.1986 and the person by whom the same was received. The plaintiff is also entitled to 25 % share in the amount of rent received by the defendant No.2 Sumer Chand from 1.4.1986 till its realization calculating at the rate of 2500/- per month. A preliminary decree to the effect that the plaintiff is entitled for separate possession of the suit property to the extent of 25 % share in the suit property and for rendition of account regarding the collection of rent by the defendant No.2 so that 25 % share of the collection in the amount so collected as rent by defendant No.2 can be ascertained. Remaining relief declined. Feeling aggrieved from the judgment and decree of the trial Court, defendant Nos.1 and 3 filed appeal. Plaintiff and defendant No.2 and 4 also filed cross-objections against the judgment and decree of the trial Court to the extent it has gone against them. The lower Appellate Court on appreciation of evidence recorded a finding of fact to the effect that the firm stood dissolved automatically on the death of Balak Ram in the year 1983 and the dissolution deed dated 31.3.1986 Ex.D2 is a false and frivolous document which cannot be relied upon.The lower Appellate Court also determined the respective share of the parties as under:- Mohinder Parshad 25 % Smt. Krishnawanti 25 % (Now by Rajan Dhiman) Ved Parkash 20 % Sumer Chand 25 % RSA No. 2215 of 2007 6 and Sat Pal 5 % The lower Appellate Court further decided that Will Ex. DW1/A executed by defendant No.3 Krishna Wanti in favour of appellant Rajan Dhiman is proved. Thus, the lower Appellate Court vide impugned judgment and decree dated 24.3.2006 dismissed the appeal as well as cross-objections filed by the plaintiff-respondent. However, cross objections on behalf of defendant Nos.2 and 4 i.e., Ved Parkash and Sat Pal for determination of their share in the suit property were allowed. Still not satisfied by the judgment and decree of the lower Appellate Court, defendant No.1 and Rajan Dhiman legal heir of defendant No.3 have filed the instant appeals challenging the judgment and decrees of the courts below. I have heard learned counsel for the appellant. I find no merit in this appeal. It is relevant to mention here that before the courts below, mainly two points arose for determination “Firstly whether the firm Nathi Ram and sons stood dissolved vide dissolution deed Ex. D2 ? Secondly; what are the respective shares of the parties in the assets and liabilities of dissolved firm ? Although, it is the case of the appellants that the aforesaid firm stood dissolved with effect from 31.3.1986 on the basis of dissolution deed Ex.D2 but this contention of the appellants is without any force as the document Ex.D2 has not been proved at all as none of the attesting witness and scribe of the said document have been examined by the appellant. Admittedly, Balak Ram one of the partners had expired on 15.10.1983, therefore, his presence and signatures on Ex.D2, alleged dissolution deed, could not have been possible at all. The courts below have thus rightly discarded the aforesaid dissolution deed Ex.D2 and no fault can be found with the findings of the courts below in this regard. RSA No. 2215 of 2007 7 It is an admitted fact that initially the firm Nathi Ram and Sons was a registered firm and in total there were five partners in the said firm to the extent of their respective shares as under:- Nathi Ram Dhiman(since deceased) 25 % Balak Ram (since deceased) 20 % Sumer Chand 20 % Mohinder Parshad 20 % Ved Parkash 15 % It is also an admitted fact that Balak Ram died unmarried/issueless in the year 1983, therefore, his 20 % share was inherited by Krishna Wanti defendant No.3 being mother and only Class I legal heir of Balak Ram. Similarly, Nathi Ram the other partner died in the year 1983, therefore, his 25 % share will be equally inherited by his four sons, namely, Sumer Chand, Mohinder Parshad, Ved Parkash and Sat Pal along with his widow Krishna Wanti to the extent of 5 % each as the Will Ex.D4 alleged to be executed by him in favour of Krishna Wanti was not proved. Thus, upon the death of Nathi Ram, the shares of the parties have been determined correctly by the lower Appellate Court and no fault can be found in this regard. In fact the learned counsel for the appellant was unable to challenge the findings of the courts below. No substantial question of law arises in both the appeals. Consequently both the appeals are dismissed. January 21, 2009 (RAKESH KUMAR GARG) nk JUDGE