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

1. Civil Miscellaneous Petitions have been filed in the above appeals for an order that the appeals have abated.2. A few facts are necessary to be stated. The Chapra Electric Supply Works Limited had a licence from the Government of Bihar for the electrification of the Chapra town, In 1944 the Company went into voluntary liquidation and concern was put up for sale by public auction by the Liquidator .On 15-9-1944 one Murli Prasad gave the highest bid and with the consent of the State Government the concern was purchased by Murli Prasad. By a notification dated 13-4-1945 Murli Prasad became the sole licensee.3. The case was that for purposes of purchasing the concern and to carry on the business some five persons entered into a partnership on 11-7-1945. The partners were (1) Murli Prasad, (2) Ajodhya Prasad, (3) Parasnath Prasad, (4) Gharbharan Sah and (5) Nand Kishore Prasad.4. In August 1950 the above partnership was dissolved and the business was taken over by a new partnership consisting of 10 partners. In the re-constituted partnership Nand Kishore Prasad was dropped and the remaining four partners of the old partnership were joined by (5) Ramsaran Sah Gupta, (6) Ramagya Prasad. (7) Brahmdeo Prasad, (8) Dharnidhar Prasad, (9) Chandreshwar Prasad and (10) Kamleshwar Prasad. On account of the reconstitution of the partnership the individual shares were also refixed. The above Ramagya Prasad was entrusted with the management of the concern.5. On 22-5-1954 Parasnath Prasad filed Suit No. 68/1954 for the dissolution of partnership and rendition of accounts. To this suit the remaining a partners or their heirs were made parties. Parasnath claimed that in his own right under the partnership agreement he was entitled to one anna share and that out of his share of one anna, a 3 pies share had been sold in a public auction and purchased by one Thakur Prasad. Thakur Prasad was, therefore, made a party to the suit as Defendant No. 10.6. During the pendency of the suit, proceedings, for the appointment of Receiver etc. were commenced and seeing that the concern was not functioning in a proper manner the State Government stepped in, . revoked the licence and took over the concern. The State Government also deposited in court Rs.3/- lakhs as compensation. The suit, thereupon, virtually became a suit for rendition of accounts till the date of deposit of the amount and for determining the share of each of the partners in the amount so deposited.7. The suit was vehemently contested. Murli Prasad, who was defendant No. 8, claimed that he was the sole owner of the business and licensee from the Government and the rest of them had no. lawful interest in the same in view of the provisions of the Electricity Act.8. In the course of the suit three brothers viz. Kuldip Narain, Jagdish Narain and Kedarnath applied to the court that they had an interest in the partnership suit and should be made party defendants. They alleged that Parasnath, the plaintiff, was not entitled in his own right to the whole of the share of anna but that he was a partner on behalf of the joint family of which they also had been members. They alleged that Parasnath was entitled to only a 6 pies share while the three of them were entitled to 2 pies share each. They further contended that Thakur Prasad, defendant no, . 10 had not really purchased the 3 pies share of the plaintiff Parasnath and, therefore, the 1 anna share of Parasnath was liable to be divided only between Parasnath and themselves. Since a dispute was raised, they were added as defendants 12, 13 and 14. Jagdish Narain, with whom, we are principally concerned, was defendant no. 13. It would appear from the judgment of the Trial Court (see paragraphs 12 and 70 to 74) that Parasnath, the plaintiff, had contended in the first instance that defendants 12 to 14 had no. interest in the share of 1 anna owned by him though later, at the time of the hearing he admitted that they were entitled to a 6 pies share. He, however, insisted that the sale of 3 pies share in favour of defendant no. 10, Thakur Prasad, was not nominal and thus supported Thakur Prasads case that he was entitled to a 3 pies share Defendants 12 to 14, however, contested this. In other words, there was a real contest in the suit between the plaintiff Parasnath and defendant no. 10 Thakur Prasad, on the one hand, and defendants 12 to 14, on the other.9. Having regard to the above contest the Trial Court raised issue no. 11 which is as followsis the share of plaintiff and defendants 1 to 15 in theOn a detailed consideration of the evidence the Trial Court negatived the contention of Murli Prasad that he was the sole proprietor of the concern. The court held that the business was owned by a partnership, Accordingly, a preliminary decree was passed on February 10, 1959 in which the respective shares of the various partners or their heirs were declared and an account was ordered. The plaintiff Parasnath was declared to be the owner of a 6 pies share and defendants 12 to 14 were held to be entitled to the remaining 6 pies share out of the 1 anna share claimed by Parasnath. Thakur Prasads claim to the 3 pies share was negatived.11. From the above judgment and decree it was Murli Prasad alone who appealed to the High Court. That was Civil Appeal No. 161/1959. To this appeal Parasnath and the rest of the defendants were made respondents. The High Court accepted Murli Prasads contention that he was the sole licensee of the business and the partner could not claim a lawful interest in the same. Accordingly, the decree of the Trial Court was set aside and the suit of Parasnath was dismissed.12. Parasnath did not come in appeal to this court. But two other partners have filed two separate appeals, Civil Appeal 1711 of 1967 is filled by Ramagya Prasad to whom the Trial Court had given 4 annas and 3 pies share in the partnership. Civil Appeals No. 1885 of 1968 is filed by Brahamdeo Prasad to whom the Trial Court had given a 2 annas share. These appeals were filed in 1967 and 1968 respectively and it is to be noted that Jagdish Narain, who was defendant no. 13 in the Trial Court, was made a party.Jagdish Narain who is respondents nos. 17 and 19 respectively in the above two appeals died on 8-12-1969. His legal heirs have not been brought on record and it is the case of Murli Prasad, who is one of the respondents in these appeals, that the appeals have abated as a whole or are otherwise incompetent.

Reasoning:
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.