Case: Ramagya Prasad Gupta and Others and Braham Prasad Gupta and Others Vs. Shri Murli Prasad

appeal defendants 19 to 14 would not be necessary parties. There are two ways of looking at it would it be possible for defendants 12 to 14 to file a separate suit against Parasnath or the sub-share in the partnership ? could Murli Prasad, whose claim to the whole of the subject matter of the suit had been negatived, have filed an appeal without making defendants 12 to 14 parties to the appeal ? The answer could only be in the negative. Having successfully claimed relief against Parasnath in the partnership suit and obtained it from the court, the decision would be final between them and defendants 12 to 14 would not be able to claim the same relief against Parasnath in a separate suit. Similarly Murli Prasad who was a co-defendant with defendants 12 to 14 could not have obtained relief without filing an appeal to which defendants 12 to 14 were made parties. Therefore it is quite clear that though in theory it may be possible to contend that, as a matter of law, defendants 12 to 14 including Jagdish Narain need not have been made parties in the partnership suit the very fact that their claim to relief against Parasnath in the partnership suit has been granted with a view to make a complete adjudication between the parties to the suit would make defendants 12 to 14 necessary parties in any appeal filed by a party aggrieved by the decision of the Trial Court. In fact they were made co-respondents in Appeal No. 161/1959 to the High Court filed by Murli Prasad and even in the present appeals. That was on the basis that they were necessary parties to the appeal in view of the Trial Courts decree which gave them a substantial share in the subject matter of the partition suit. For the purpose of the appeals (Civil Appeal 1711/67 and the Civil Appeal 1985/68 arising out of Parasnaths Civil Suit 68/1954) we must proceed on the footing that Jagdish Narain (Original Defendant No. 13) had been declared to have a share in the partnership assets in his own rights.22. And now the question is whether the appellants who, in these appeals, have asked for the restoration of the decree of the Trial Court can be permitted to proceed with these appeals without deceased Jagdish Narain being represented. We think that the law on the point is quite clear; it was held as far back as in 1887 that suit brought for partnership accounts after a necessary party-defendant has been omitted, is liable to be dismissed. See : Ramdoyal vs. Junmenjoy Coondoo. The above decision was followed in Amir Chand vs. Raoji Bhai with the observation that no dissent had ever been expressed from the above decision. It was held that a suit for accounts cannot be maintained between some of the partners of the firm but every partner must be made a party. The same consideration applies to an appeal arising out of a suit for dissolution of partnership and accounts. See : Raj Chunder Sen vs. Gangadas Seal & others. In that case A sued his partners, B, C, D & F for dissolution and for accounts of the partnership. A decree was passed in the suit by which it was ordered that a sum of Rs. 9, 000/- should be contributed by A, B & C and that out of that sum Rs. 1.740/- should be paid to D and the rest to F. A appealed from the decree making B, C, D & F party-respondents. B and C also appealed from the decree making A, D & F party-respondents. Pending the appeal D died. No application was made by the appellants in either appeal to bring on the record the legal heirs of D within the period of limitation. It was held that the appeal was not competent for as the suit was for partnership accounts, it was not one in which the appellants could proceed in the absence of the legal representatives of D. Their Lordships observed that in the absence of the legal representatives of one of the partners the court had no option and the appeals were perfectly idle. This decision of the Privy Council along with several others of High Courts in this country were followed in Kunj Behari Lal vs. Ajodhia Prasad wherein the head note is as follows :"Where in an appeal arising out of a suit for accounts and partition of partnership property, which cannot be determined in the absence of all the parties interested, some of the respondents die and their legal representatives are not brought on the record within limitation and the right to sue does not survive against those respondents alone whose names are already on the record, the appeal fails in toto."Having regard to the clear position of law in this respect the failure to bring on record the heirs or legal representatives of deceased Jagdish Narain - one of the sharers in the subject matter of the suit must inevitably lead to the dismissal of the appeals. That brings the case squarely in the second test referred to in the decision of this Court in Nathu Rams case referred to above.23. In all such cases even the first test would be satisfied. There is a High Court decree which says that neither deceased Jagdish Narain nor anybody else was entitled to share in the subject matter as against Murli Prasad who is held to be sole proprietor of the business. If the present appellants were to succeed it would lead to the Courts coming to a decision that the deceased Jagdish Narain was entitled to a share in the subject matter of the suit as against Murli Prasad and the other alleged partners - a decision which would be in conflict with the decision of the High Court and will be contradictory to it has become final with respect to the subject matter between Murli Prasad and the deceased respondent.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]14. In order to make the statement of relevant facts complete we may also refer to certain other proceedings though the question now involved does not arise in those proceeding. When Civil Suit No. 68/1954 was pending, Murli Prasad filed a suit for a declaration that he was the sole proprietor of the concern and the others could not claim any legal interest. That suit was suit No. 94/1956. Since the suit involved the same issue as in Civil No. 68/1954, that suit was heard along with suit No. 68/1954. Since the Trial Court held that the partnership was legal it decreed suit No. 68/1954 and dismissed Murli Prasad suit No. 94/1956. Murli Prasad, therefore, had to file two appeals one from the Order passed in suit No. 68/1954 and the other from the Ordered dismissal of suit No. 94/1956. The appeal to the High Court from suit No. 68/1954 was Civil Suit 161/1959 already referred to and the appeal from suit No. 94/1956 was Civil Appeal No. 160/1959. Since the High Court accepted Murli Prasads contention, the trial courts decree in Suit No. 68/1954, had to be set aside and Murli Prasads suit for declaration, Suit No. 94/1956, that he was the full owner decreed. From the latter decree two appeals have been filed one by Ramagya Prasad and the other by Brahamdeo Prasad. Civil Appeal 1711/1967 is by Ramagya Prasad and Civil Appeal No. 1985/68 is by Brahamdeo Prasad. We are not concerned with these two appeals at this stage because Jagdish Narain had not been made a party to the Original Suit filed by Murli Prasad nor had he applied to be made a party. Consequently Jagdish Narain does not and did not figure in the appeals from the decree passed in Suit No. 94/1956.It was contended on behalf of the appellants that there is no bar to proceeding with the appeals inspite of the legal heirs of deceased Jagdish Narain not having been brought on record. ln the first place, it was contended that though Jagdish Narain is dead he is fully represented because he was a member of the joint family of which Parasnath was the Manager and since Parasnath is a respondent in these appeals it was not necessary to bring the personal heirs of Jagdish Narain on record. Secondly it was contended that Jagdish Narain was not himself a partner in the partnership and since a stranger to the partnership is not entitled to join a party to the suit his omission in appeal is not fatal.Admittedly Jagdish Narain was not a party to the partnership deed of 1950 and whatever interest he had as a member of the joint family of which Parasnath was the Manager he could look up only to Parasnath for his interest. It may be that he was permitted to be made a defendant in the suit. He was merely a proper party to the suit and not a necessary party and since he was not a necessary part to the suit, it was submitted, he cannot claim to be a necessary party to the appeal.20. We do not think that there is any substance in either of the two contention. So far as the first contention is concerned it is true that Parasnath represented the joint family when the partnership had come into existence but much water had flown under the bridge thereafter. Jagdish Narain and his two brothers Kuldip and Kedar had applied to be made parties to the suit on the ground that they had separated not only amongst themselves but also from Parasnath. There was an award dt.and on the basis of the award a compromise decree was passed onThe suit had been filed in 1954 and at the time of the suit, Parasnath, the plaintiff in the suit, was no longer the karta of the family and could not represent the interest either of Jagdish Narain or his two brothers Kuldip and Kedar. As a matter of fact, as already shown in the narrative of facts, they raised a serious contest to the suit of Parasnath on the ground of conflict of interest and the Trial Court had held in their favour. Parasnath did not appeal against the decree and even in the present appeals the share of Jagdish Narain and his two brothers as awarded by the Trial Court is not challenged. In fact they have asked that the decree in favour of Murli Prasad given by the High Court be set aside and the decree of the Trial Court be restored. Under these circumstance, it will be wrong to say that in the present appeals the interest of deceased Jagdish Narain is fully represented by Parasnath or anybody else.21. As to the second contention that Jagdish Narain was not a necessary party to the suit and, therefore, to this appeal, it is enough to say that such a contention is no longer permissible. Jagdish Narain and his two brothers contested the suit filed by Parasnath for dissolution and rendition of accounts. Initially they were not made parties but they applied to the court and were made parties as defendants 12 to 14. Parasnath did not admit, in the first instance, that defendants 12 to 14 had any interest in the subject matter of the suit. He claimed that he had supplied his own funds to the partnership and had, therefore, become a sharer in the partnership to the extent of 1 anna. At the hearing, however he agreed that the other members of the family, namely, defendants Nos. 12 to 14 were together equally entitled with him to a share. There was, however, a second point of contest and that had to be decided on the merits. Parasnath had alleged that a 3 pies share out of his 1 anna share had been sold in public auction and purchased by Thakur Prasad, defendant No. 10 and hence Thakur Prasad was entitled to a 3 pies share. Defendants 12 to 14 challenged this sale alleging the sale was nominal in favour of Thakur Prasad and that, as a matter of fact, the 3 pies share which was sold in auction had been purchased on behalf of the joint family itself. This plea was accepted by the Trial Court which negatived the case of Parasnath and Thakur Prasad that the latter was entitled to a 3 pies share of 1 anna of Parasnaths 1 anna share. The whole share of 1 anna of Parasnath in the partnership was divided between Parasnath, the plaintiff, and defendants 12 to 14 half and half. From this finding after consent, Parasnath did not appeal at all Therefore, the decree passed by the Trial Court as to the share of Parasnath, on the one hand, and defendants 12 to 14 including Jagdish Narain, on the other, became final and in these circumstances it would be impossible to say these Jagdish Narain was just proper party to the suit. Indeed if Jagdish Narain and his two brothers (defendants 12 to 14) had not applied to the court to be made party, defendants there could be no doubt at all that Parasnath would have been entitled to claim the full one anna share in the partnership suit and it would have been open to defendants 12 or 14 to make their claim against Parasnath in an independent Suit proceeding. But when in the suit defendants 12 to 14 were made parties and after contest between them and Parasnath their share has been awarded to them as against Parasnath it would be idle to say that for the purposes of the appeal defendants 19 to 14 would not be necessary parties. There are two ways of looking at it would it be possible for defendants 12 to 14 to file a separate suit against Parasnath or thein the partnership ? could Murli Prasad, whose claim to the whole of the subject matter of the suit had been negatived, have filed an appeal without making defendants 12 to 14 parties to the appeal ? The answer could only be in the negative. Having successfully claimed relief against Parasnath in the partnership suit and obtained it from the court, the decision would be final between them and defendants 12 to 14 would not be able to claim the same relief against Parasnath in a separate suit. Similarly Murli Prasad who was awith defendants 12 to 14 could not have obtained relief without filing an appeal to which defendants 12 to 14 were made parties. Therefore it is quite clear that though in theory it may be possible to contend that, as a matter of law, defendants 12 to 14 including Jagdish Narain need not have been made parties in the partnership suit the very fact that their claim to relief against Parasnath in the partnership suit has been granted with a view to make a complete adjudication between the parties to the suit would make defendants 12 to 14 necessary parties in any appeal filed by a party aggrieved by the decision of the Trial Court. In fact they were madein Appeal No. 161/1959 to the High Court filed by Murli Prasad and even in the present appeals. That was on the basis that they were necessary parties to the appeal in view of the Trial Courts decree which gave them a substantial share in the subject matter of the partition suit. For the purpose of the appeals (Civil Appeal 1711/67 and the Civil Appeal 1985/68 arising out of Parasnaths Civil Suit 68/1954) we must proceed on the footing that Jagdish Narain (Original Defendant No. 13) had been declared to have a share in the partnership assets in his own rights.22. And now thequestion is whether the appellants who, in these appeals, have asked for the restoration of the decree of the Trial Court can be permitted to proceed with these appeals without deceased Jagdish Narain being represented.We think that the law on the point is quite clear; it was held as far back as in 1887 that suit brought for partnership accounts after a necessaryhas been omitted, is liable to be dismissed. See : Ramdoyal vs. Junmenjoyregard to the clear position of law in this respect the failure to bring on record the heirs or legal representatives of deceased Jagdish Narainone of the sharers in the subject matter of the suit must inevitably lead to the dismissal of the appeals. That brings the case squarely in the second test referred to in the decision of this Court in Nathu Rams case referred to above.23. In all such cases even the first test would be satisfied. There is a High Court decree which says that neither deceased Jagdish Narain nor anybody else was entitled to share in the subject matter as against Murli Prasad who is held to be sole proprietor of the business. If the present appellants were to succeed it would lead to the Courts coming to a decision that the deceased Jagdish Narain was entitled to a share in the subject matter of the suit as against Murli Prasad and the other alleged partnersa decision which would be in conflict with the decision of the High Court and will be contradictory to it has become final with respect to the subject matter between Murli Prasad and the deceased respondent.24. In view of the position discussed above it must be held that the appeals cannot be proceeded with and must be dismissed. No order as to costs.