Case: Ramagya Prasad Gupta &amp; Ors Vs. Murli Prasad

other members of his family were interested in his one-anna share in the partnership whether he had formed a sub-partnership, or whether he had entered into an agreement with defendants 12 to 14 as regards his share in the partnership were all questions in which the appellants were not concerned for the simple reason that Parasnath Prasad alone was a partner in the firm. It is settled law that when the manager of a joint family becomes a partner in a firm, the other members of the family do not thereby become partners therein although they might have interest in his share in the partnership." If.....a partner has agreed to share his profits with a stranger, and the latter seeks an account of those profits, he should bring his action against that one partner alone, and not make the others parties" (Lindley on Partnership, 12th Edn. P. 494). The reason is that there is no. privity of contract between the other partners and the stranger. Likewise, for the same reason, when a partner files a suit for dissolution of the partnership and for account, the stranger in whose favour there is an agreement by a partner should not be made a party. It is, no. doubt, true the trial Court, by its decree, declared shares of Jagdish Narain and defendants 12 and 14 in the partnership assets. But that was not because they were partners entitled to share in the assets of the partnership but because the court thought that if their shares are declared, it would avoid another litigation between them and Parasnath Prasad. In other words, Jagdish Narain had no. right to a share in the partnership assets in any independent capacity, but he derived his right only through the plaintiff in the suit. It is a mistake to suppose that Jagdish Narain had been declared entitled to a share in the partnership assets in his own right. That Jagdish Narain and defendants Nos. 12 and 14 derived their right to share in the partnership assets through Parasnath Prasad, the plaintiff , and that there shares were carved out from the one anna share of Parasnath Prasad is clear form Para 11 and the decretal portion of the Judgment of the trial Court in Suit No. 68 of 1954. It was the one anna share of Parasnath Prasad that was divided between Parasnath Prasad and defendants 12 to 13 half and half. A mechanical reading of the decree will not throw any light on this question. As justice Brandeis said, "knowledge is essential to understanding and understanding should precede judging" (1923) 264 US 504 at p. 520 Jay Burns Baking Co. v. Charles W. Bryan Knowledge of the reasons by the trial Court impleaded Jagdish Narain as a party to the suit can be obtained only by reading the judgment of the trial Court. That knowledge alone will read to an understanding of the reason why the Court passed a decree declaring that Jagdish Narain was also entitled to a share in the partnership and the character in which or the basis on which he was declared entitled to a share in the partnership assets. That understanding must precede the process of judging whether he was a necessary party to the suit or to these appeals.36. Leaving aside all these considerations, let me assume that Jagdish Narain was interested in the assets of the partnership jointly with the other partners, even so, I should think these appeals have not abated. If under Order 41, Rule 4 of the Code of Civil Procedure. It was open to the appellants to appeal to this Court from the whole decree, for the reason that the decree proceeded on a ground common to all the respondents before the High Court, namely, that the partnership was illegal and, therefore, no. suit for dissolution of it lay, and, for this Court to reverse or vary the decree in favour of a non-appealing respondent and, therefore, set aside the decree against Jagdish Narain passed by the High Court, then it would be clear from the ruling of this Court in Mahabir Prasad v. Jage Ram, (1971) 1 SCC 265 = (AIR 1971 SC 742 ) that there will be no. abatement of these appeals, even if the legal representatives of Jagdish Narain were not impleaded in the appeals. The facts of that case were : one Mahabir Prasad, his mother Gunwanti Devi and his wife Saroj Devi (Plaintiffs) got a decree against Juge Ram and two others (defendants) for the amount of rent due from them. Their application for execution was dismissed by the learned Subordinate Judge, Delhi. Mahibir Prasad alone preferred an appeal to the High Court against the order and impleaded Gunwanti Devi and Saroj Devi as party-respondents. Saroj Devi died and the legal representatives were not brought on record within the period of limitation and her name was struck off from the array of respondents "subject to all just exception". The High Court dismissed the appeal on the ground that it abated in its entirety. Mahabir Prasad appealed to the Supreme Court. Shah, C. J., speaking for the Court, after observing that the power of the appellate Court under Order 41, Rule 4, to vary or modify the decree of a subordinate Court arises when one of the persons out of many against whom a decree or an order has been made on a ground which was common to him and others has appealed, said :"Competence of the Appellate Court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost merely because of the person who was jointly interested in the claim has been made a party respondent and on his death his heirs have not been brought on the record."37. I would hold that the appeals have not abated.ORDER BY THE COURT

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

Explanation:
0[ds]20. We do not think that there is any substance in either of the two contentions. 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. 30-4-1949 and on the basis of the award a compromise decree was passed on 20-9-1951. The 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 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 circumstances it will be wrong to say that in the present appeals the interest of deceased Jagdish Narain is fully represented by Parasnath or anybodyregard 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.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 a share in the subject matter as against. Murli Prasad who is held to be the 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 though 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.