# RAMAGYA PRASAD GUPTA &: ORS v. MURLI PRASAD

- **Citation:** [1973] 1 S.C.R. 63
- **Court:** Supreme Court of India
- **Decided:** 1972-04-03
- **Bench:** C. A. Vaidialingam, D. G. Palekar, K. K. Mathew
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramagya-prasad-gupta-ors-v-murli-prasad-5698
- **Pages:** 20

## Headnote

Appeal-Abatement~gal representative of respondent not lmp/ead·
ed within period of limitation-Appeal when abates.
An electHcyty undertaking was purchased by M (respondent No. 1
herein) and by a notification of the Bihar Government dated 13-4-1945
he was made the sole licensee.
A partnership of five persons formed to
purchase and run the said undertaking was in 1950 enlar~ to consist
of ten partners, P, who held a one-anna share ill the partnership filed
a suit in 1954 tor dissolution of the partnership and lendition of accounts.
impleading as defendants
the
other
nine
partners
including
M.
He also impleaded as Defendant No. 10 T to whom he had allegedly
sold 3 pies share, out of his one-anna ·sh11te.
J and his two brothers
applied to the Coul:t to be mad•' party-defendants as they had a 6 pies
share in P's one-anna share in the partnership. According to them P's
share was held on behalf of a Hindu joint Family of which they had
been members. They challenged the alleged transfer of
3 pies share
to T. The trial court impleaded J and his brothers at Defendants 12
to 14.
M contested P's suit by .claiming that he was the sole proprietor
and licen_,e of the concern, that the alleged JY.lrtnership was in cbntravention of the Electricity Act and invalid, so that the plaintiff and the
other defendants had no lawful claim to the assets of the partnership.
The suit was decreed and Defendants 12 to 14 were held entitled to a
6 pies share. M's o\vn separate suit for a declaration that he was sole
proprietor was dismissed by the Court. M filed 'appeals against
the
<l·ocision in both the suits. The High Court allow"1 his appeals and held
the partnership to be illegal and M to be the sole proprietor of the con·
ccrn.
The present
appellants filed appeal, in this Court. J and
his
brothers were impl.,aded in the appeal arising out of P's suit.
But after
J's death in 1969 his legal representatives were not impleaded by the
appellants within the period of limitation. M contended that too appeals
had abated, not only against J but as a whole.
HELD : Per Vaidialingam and Palekar JJ :--The appeals could not
re proceeded with and must be dismissed.
As pointed out by this Court in Nathu Ram's case it is not correct to
say that the appeal abates against the other respondents.
Under certain
circumstances the appeal may not be proceeded with· and is liable to he
dismissed.
But that is not because of the procedural defect but, as Mulla
has pointed out, it is part of the substantive law.
No exhaustive statement can be n1ade as to the circumstances under 'h·hich an apepal in
such cases cannot proceed.
But the courts. as pointed out in the above
decision, have appfod one or the other of three tesk The Court will
not proceed with an appeal (1) when the success of the appeal mav lead
lo the court's coming to a decision which will be contradictory to the
d>cree which had become final with re·spect to the same subject matter
betweon the appellant and the deceased respondent : (2) when the appellant could not have brought th., action for the necessary relief against
those respondents alone who are still before the Court and (3) when the
64
SUPREME COURT .REPORTS
(1973] l S.C.R.
decree against the surviving respondents, if the appeal •uco,eds, be in··
cff~tive that is to say it could not be successfully ellecuted.
These thf""'
tests as pointed out by this Court in Pandit Sri Chand's case are not
cumulati~ tests.
Even if one of tlr.!m ls satisfied the Court may dismiss
the appeal. [ 69C-FJ
The State of Punjab v. Nathu Ram, [1962) 2 S.C.R. 636, applied.
Pcmdit Sri Chand and Ors. v, M/ S .lagdish Parshad Kishen Chand and
Ors., [1966] 3 S .C.R. 451 at 455, referred to.
At the time of filing his suit P was no longer the Karla of the family
and could not represent the interest of Defendants 12 to 14. When in the
suit Defendents 12 to 14 were made parties and after contest between
them and P their share had been awarded to tl1'm as against P, it would
be idle to say, as

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RAMAGYA PRASAD GUPTA &: ORS.
v.
MURLI PRASAD
April 3, 1972
63
[C. A. VAIDIALINGAM, D. G. PALEKAR AND K. K. MATHEW, JJ.J
Appeal-Abatement~gal representative of respondent not lmp/ead·
ed within period of limitation-Appeal when abates.
An electHcyty undertaking was purchased by M (respondent No. 1
herein) and by a notification of the Bihar Government dated 13-4-1945
he was made the sole licensee.
A partnership of five persons formed to
purchase and run the said undertaking was in 1950 enlar~ to consist
of ten partners, P, who held a one-anna share ill the partnership filed
a suit in 1954 tor dissolution of the partnership and lendition of accounts.
impleading as defendants
the
other
nine
partners
including
M.
He also impleaded as Defendant No. 10 T to whom he had allegedly
sold 3 pies share, out of his one-anna ·sh11te.
J and his two brothers
applied to the Coul:t to be mad•' party-defendants as they had a 6 pies
share in P's one-anna share in the partnership. According to them P's
share was held on behalf of a Hindu joint Family of which they had
been members. They challenged the alleged transfer of
3 pies share
to T. The trial court impleaded J and his brothers at Defendants 12
to 14.
M contested P's suit by .claiming that he was the sole proprietor
and licen_,e of the concern, that the alleged JY.lrtnership was in cbntravention of the Electricity Act and invalid, so that the plaintiff and the
other defendants had no lawful claim to the assets of the partnership.
The suit was decreed and Defendants 12 to 14 were held entitled to a
6 pies share. M's o\vn separate suit for a declaration that he was sole
proprietor was dismissed by the Court. M filed 'appeals against
the
<l·ocision in both the suits. The High Court allow"1 his appeals and held
the partnership to be illegal and M to be the sole proprietor of the con·
ccrn.
The present
appellants filed appeal, in this Court. J and
his
brothers were impl.,aded in the appeal arising out of P's suit.
But after
J's death in 1969 his legal representatives were not impleaded by the
appellants within the period of limitation. M contended that too appeals
had abated, not only against J but as a whole.
HELD : Per Vaidialingam and Palekar JJ :--The appeals could not
re proceeded with and must be dismissed.
As pointed out by this Court in Nathu Ram's case it is not correct to
say that the appeal abates against the other respondents.
Under certain
circumstances the appeal may not be proceeded with· and is liable to he
dismissed.
But that is not because of the procedural defect but, as Mulla
has pointed out, it is part of the substantive law.
No exhaustive statement can be n1ade as to the circumstances under 'h·hich an apepal in
such cases cannot proceed.
But the courts. as pointed out in the above
decision, have appfod one or the other of three tesk The Court will
not proceed with an appeal (1) when the success of the appeal mav lead
lo the court's coming to a decision which will be contradictory to the
d>cree which had become final with re·spect to the same subject matter
betweon the appellant and the deceased respondent : (2) when the appellant could not have brought th., action for the necessary relief against
those respondents alone who are still before the Court and (3) when the
64
SUPREME COURT .REPORTS
(1973] l S.C.R.
decree against the surviving respondents, if the appeal •uco,eds, be in··
cff~tive that is to say it could not be successfully ellecuted.
These thf""'
tests as pointed out by this Court in Pandit Sri Chand's case are not
cumulati~ tests.
Even if one of tlr.!m ls satisfied the Court may dismiss
the appeal. [ 69C-FJ
The State of Punjab v. Nathu Ram, [1962) 2 S.C.R. 636, applied.
Pcmdit Sri Chand and Ors. v, M/ S .lagdish Parshad Kishen Chand and
Ors., [1966] 3 S .C.R. 451 at 455, referred to.
At the time of filing his suit P was no longer the Karla of the family
and could not represent the interest of Defendants 12 to 14. When in the
suit Defendents 12 to 14 were made parties and after contest between
them and P their share had been awarded to tl1'm as against P, it would
be idle to say, as was contended on behalf of the appellants that for the
purposes of the appeals Defendants 12 to 14 would not oo necessary
parties.
In the present appeals the Court had to proceed on the footing
that J had been declared to have a share in the partnership assets in his
own right. It is settled law that a suit brought for partnership accounts
aft.or a necessary party defendant has been omitted, is liable to be dismissed. The same consideration applies to an appeal arising out of a suit for
dissolution of partnership and
accounts.
Having fegard to the
clear
position of law in tb;s respect the failure to bring on record th., heirs
or legal representatives of deceased J--01', of the sharers in the subject
matter of the
suit-must inevitably
lead
to
the
di0 missal
of
the appeal.
That bring the case squarely in the second .test
referred
to in the decision of this• Court in Nathu Ram's case. [7!D; 7 ~E; 73B;
D·E; 74C]
Ramdoyal v. Junmenjoy Coondoo, I.L.R. 14, Cal. 791, Amir Chand
v. Baoji Bhai, A.LR. 1930 ~adras 714, Raj Chander Sen v. Gangadas
Seal and others,
31
Indian Appeals
71
and Kunj Behari
Lal v.
Ajodhia Prasad, XX! J.L. R. Lucknow 453, referred to.
In all such cases even the first test would· be satisfied. There is a
High Court decree which says that neither J nor anybody eise was entitlec:I
to a share in the subject matter as against M who is held to be the sole
proprietor of the business. If the present appellants were to succeed. it
would
lead to the Court's coming to a decision. That the deceased J
was entitled to a share in the subject matter of the ·suit as age.inst M 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 M and the
deceased respondent. [74D-El
Per Mathew J. (dissenting)-
It was a fallacy to think that if these appe.,Js were ~llowed the only
course open to this Court would be to pass a decree reversing the uecree
of the trial court which gave a share to J.
This Court can very well
pass an effective decree for dissolution of the partnership and declare the
shares to whiclt the partners are entitled in the partnership, leaving the
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legal representative of J and defendants 12 to 14 to a separate suit to
work out their rights in the one anna share of P.
Under Order 41 rule
33 of the Code of Civil Procedilre this Court, as appellate Court, has
H
power to pass any decree or make anv order ~s the case may require
The case therefore did not satisfy the first test mentioned in Nathu Ram's
case. [79E-GJ
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R. P. GUPTA v. MURLI PRASAD (Palekar, J.)
65
lt is settled law that when the manager of a joinJ family becomes .
partner in a firm the other members of the family do not thereby become
partners thr~rein
although they might have interest in his shafe in the'
partnership. The appdlants could have hrought an action for dissolution
of partnership and for rendition of accounts and obtained an eff£ctive
decree without J on the array of parties
Defendants 12 to 14 had no
right to a share in the partnership assets. It was the one anna share of
P that was divided between them and P.
That understanding must precede the process of judging whether J was a necessary party to the suit
or to these appeals. Looked at in this manner the second test in Nathu
Rani's case was also not satisfiel in this case. [80A-8lBJ
Apart from the above consideration there was no ab1tement of the
present appeals in view of the decision of this Court in Mahabir Prasad's
case. [81CJ
Mahabir Prasad
v.
Jage Ram and Others. [1971]
I S.C.C. 265,
applied.
C1v1L APPELLATE JuR1so1cnoN: C.As. Nos. 1711 of 1967
and 1985 of 1968.
Appeals from the Judgment and Decree dated the May 7, 1965
of the Patna High Court in Appeal from Original Decree Nos. 160
and 161 of 1959.
S. N. Prasad for the appellants (In C.A. No. 1711 of 1967).
U. P. Singh, for the appellants (In C.A. No. 1985 of 1968).
S. T. Desai and M. B. Lal, for respondent No. 1 (In both
the Appeals).
B. P. Singh, for respondent No. 2 (In both the Appeals).
P. C. Bhartari, for respondent Nos. 9 ad 10 (In C.A. No. 171 J
of 1967).
S. C. Agarwala and V. J. Francis, for respondent No. 17 (ln
C.A. No. 1985 of 1968).
The Judgment of Vaidialingam and Pale1car, JJ. was delivered
by Palekar, J. Mathew. J. delivered a dissenting opinion.
Palekar, J.-Civil Miscellaneous Petit1ions have been filed in
the above appeals for an. order that the appeals have abated.
A rew 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 the concern was put up for
sale by public auction by the Liquidator.
On 15-9-1944 one
Mudi Prasad gave the highest bid and with the consent of the State
66
SUPREME COURT REPORTS
[1973] l S.C.R.
Government the concern was purchased by Murli Prasad.
By a
notification dated 13-4-1945 Murli Prasad became the sole licensee.
The case was that for the purposes of purchas.ing the concern
and to carry oo the business some five persons entered into a part·
nership on 11-7-1945. The partners were (1) Murli Prasad, (2)
Ajodhya Prasad, (3) Parasnath Prasad, ( 4) Charbharan Sah anc1
(5) Nand Kishore Prasad.
In August 1950 the above partnership was dissolved and the
business was taken over b!Y a new partnership consisting of 10 partners.
In the re-constituted partrn;rship 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) Chandre5hwar
Prasad and ( 10) Kamleshwar Prasad.
On account of the reconstitution of the partnership the individual . shares were also
refilled.
The above R,jlmagya Prasad was entrusted with the
management of the concern.
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 9 partners or their heirs were made parties.
Parasnath claimed that in his own right u'!lde1 the parfnership agrP.e!llent
he was entitled to one lillna share and that out of his share of one
anna, a 3 pies share had been sold i:n a public auction and purchased
by one Th~kur Prasad.
Thakur Prasad was, therefore, made a
party to the suit as Defendant No. 10.
During the pendency of the suit, proceedings for the appointment of Receiver etc. were commenced, and seeing that the concern
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was not £unctioning in a proper manner the State Government
;;tepped in, revoked the licence imd took over the concern.
The
State Government also deposited in court Rs. 3 /- lakhs as com penF
sation.
The ·suit, thereupon, virtually became a suit for rendition
of account tilfthe date of deposit of the amount and for determining
the share of each of the partners in the amount so de~sited.
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.
In the course o( the suit three brothers viz. Kuldip Narain.
,.
Jagdish Narain aind Kedarnath applied to the court that they had
an interest in the partnership suit and should be made party defenH
~-
. dants. · They a]leged that Parasnath, the plaintiff, was not entitled
in his own right to the whole of the share of 1 anna but that he
was. a partner on behalf of the joint family of which they also bad
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R. P. GUPTA v. MVR.LI PRASAD (Palekar, !.)
67
been. meinbers. . They alleged that Parasnat'h was entitled to only
a 6 pies share while the three of them were erttitled to 2 pies share·
each.
They further contended that Thakur Prasad, defendant No.
10 had not really purchased the 3 pie11 share of the plaintifi :Parasnath and, therefore, the 1 anna share of Parasnath was liable to be·
divided only between Parasnath and themS'elves.
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 Prasad's 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.
Having regard to the above contest the Trial Court raised issue
No. 11 which is as follows :
"What is the share of plaintiff and defendants 1 to
15 in the partnership ?
On 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 intwhich 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 remain-·
ing 6 pies share out of the l ainna share claimed by Parasnath.
Thakur Prasad's claim to the 3 pies share was negatived.
From the above judgment and decree it was Murli Prasad alone
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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
Prasad's eontention that he was the sole licensee of the business and
the partners could ~.ot claim a lawful interest in the same.
Accordingly, the decree of the Trial Court was set aside and the suit of
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Parasnath was dismissed.
Parasnath did not come in appeal to this Court. But two other
partners have fi1ed two separate appeals.
Civil Appeal J 711 of
68
SUPREME COURT REPORTS
[1973] 1 S,C.R.
1967 is filed l:iy Ramagya Prasad to whom the Trial Court had
given 4 annas and 3 pies share in the partnership.
Civil Appeal
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. >3 m 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 oi the respondents in these appeals, that the appeals have
abated as a whole or are otherwise incompetent.
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 proceedings. When Civil Suit
~o. 68/ 1954 was pending, Murli Prasad filed a suit for a declaration that he was the sol~ 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 Suit 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 Pras~d's 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 Order of 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 Prasad's contention, the trial
court's decree in Suit No. 68/1954 had.to be set aside and Murli
Prasad's suit for declaration, suit No. 94/ 1956, that he was the
full owner decreed.
From the latter decree two ap!Jl'als have been
filed-one by Ramagya Prasad and the other by Brahamdeo Prasad.
No. 1986/68 is by Brahamdeo Prasad.
We are <not concerned
with those two appeals at this stage because J,agdish 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 is the contention of learned counsel for Murli Prasad who is
a respondent in the two a·ppeals (Civil Appeal No. 1711 /67 and
Civil Appeal No. 1985/68 arising out of Suit No. 68/54 and High
_Court Appeal No. 161 of 1959) that Jagdish Narain who was
declared to have a share in the partnership assets had been made
.a party in these appeals and yet after his death on 8-12-1969 no
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R. p GUPTA v. MURLI PRASAD (Palekar, !.)
69
attempt was made in time to bring his heirs on record. Consequently the appeals not only abated against the deceased Jagdish
Narain but that the two appeals abated as a whole.
Uintler Rule 4(3) r/w Rule 11 of Order XXII C.P.C. the
appeal abates as against the deceased respondent wh .. re within the
time limited by law no application is made to ~ing his heirs or
legal representatives on record.
As pointed out by this Court in
The State of Punjab v. Nathu Ram ( 1) it is not correct to say that
the appeal abates against the other respondents.
Under certain
circumstances the appe<il may not be proceeded with and is liabie
to be dismissed.
But that is so not because of the procedural defect
but because, as Mulla has pointed out, it is part of the substantive
law.
(See Mul!a C.P.C. Vol. 1 Thirteenth Edition p. 620 under
note Non-joinder of Parties).
No exhaustive statement can be
made as to the circumstances under which an appeal in such cases
cannot proceed.
But the courts, as pointed out in the above decision, have applied one or the other of three tests.
The courts will
not proceed with an appeal ( 1) when the success of the appeal
may lead to the court's coming to a deci6ion which be in conflict
with the decision b~twccn the appellant and the deceased respondent and, therefore, it would lead to the court's passing a decree
which will be contradictory to the decree which had become final
with respect to the same subject matter between the appellant and
the deceased respondent; (b) when the appellant could not have
brought the action for the nccessury reliei against those respondents
alone who are still before the court and
(c) when the decree
against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed. These
three tests, as pointed out by this Court in Pandit Sri Chand and
Ors. v, M/s. Jagdish Parshad Kishan Chand and Ors.( 2 ) are not
cumulative tests. Even if one of them is sa1isfied, the Court may
dismiss the appeal.
It is contended by Jearend counsel for Murli Prasad that this
case is covered by the first two tests.
His client Murli Prasad has
now obtained a decree from. the High Court holding that he is
entiiled to the whole of the subject matter of the suit and no one
else, including the deceased Jagdish Narain, is entitled to claia1
any share in the same against him.
This is a decree which is passed
in his favour so far as deceased Jagdish Narain is concerned and
it has 1*come final as the heirs of Jagdish Narain are not on record
in these appeals.
On the other bane, if the present appellants were
to succeed and be entitlt1d, as they claim, to the decree of the Triai
Court being restored, it will have to be said th2t the
deceas~d
Jagdish Narain was entitled to a share as awarded by the Tri~i
Court.
And since the various parties in these appeals and the sun
-----------
(I) [1962] 2 S.C.R. 636.
(2) [1966]) S.C'.R. 4S1at45<
70
SUPREME COURT REPORTS
[1973] l S.C.R.
stand both in the position of a plaintiff and a defendant the decision
will lead to decell$ed J agdish Narain beirlg given a sb,are in the
subject imatter of the suit which would be in conflict with the decree
passed by the High Court and has become final as between himseif
and deceased J agdish Narain.
:Et is further contended that the
second test is also satisfied because the two appellants before us
could not have brought aJl1 appeal for the relief claimed by lhtrn
against only the surviving sharers to the exclusion of deceased
Jagdish Narain, in view of the fact that Jagdish Narain has been
d.eclared to be owner of a shar11 along with other partners.
.
In this connection attention is invited to the following passage
m Nathu Ram's case at page 640 :
"The abatement of an appeal means not only that
the decree between the appellant and the deceased respondent has become final, but also, as a ·necessary corollary, that the appellate Court cannot, in any way, modify
that decree directly or indirectly.
The reason is plain.
It is that in the absence of the legal representatives of
the deceased respondents, the appellate court cannot
determine anytl\ing between the appellant and the legal
representaitves which may affect the rights of the legal
representatives under the decree.
It is immaterial that
the modification which the Court will do is one to which
exception can or cannotl be taken."
These observations have been made with reference to the appellant
and the deceased respondent but they are equally applicable where
a decree is passed between a respondent and a deceased respondent
in a partnership suit.
Mud! Prasad the respondent has obtained
a decree from the High Court to .the effect that deceased Jagdish
Narain can claim no share agaLnst him and ifthe appellants were
to succeed in these appeals it will inevitably lead to the conclusion
that deceased Jagdish Narain would have a share against Murli
Prasad and the appellate court would not be in a position to modify
the High Court decree directly or indirectly s.ince that decree has
become final as between Murli Prasad and the deceased Jagdish
Narain.
It was contended on behalf of the appellants that there is no
bar to proc"eding with the appeals in spite of the legal heirs of
deceased Jagdish Narain not having been brou~ht on record.
In
the first place, it was contended that though Jagdish Narain is deaJ
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 per-
. sonal heirs of Jagdish Narain on record.
Secondly it was contended that Jagdish Narain was not himself a partner in the partnerA
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R. P. GUPTA v. MURLI PRASAD (Palekar, 1.)
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ship and since a stranger to the partnership is not entitled to join
as 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 u_p 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 party
to the suit, it was su'bmitted, he cannot claim to be a necessary
party to the appeal.
We do oot think that there is .any su~stance 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 ii!lto 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 o)lly amongst themselves but also from
Parasnath.
There was an award dated 30-4-1949 and on the basis
of the award a compromise decree was passed on 20-9-1951. 1he
· 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 evoo in the present appeals the share of Jagdish Narain
and his tv{o brothers as awarded 1>y 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 folly represented by Parasnath or anybody else.
As to the second contention that Jagdish Narain was not a
necessary party to the suit and, therefore, to the appeal, it is enough
to say that such a contentiilil is n.o longer permissible.
J agdish
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 fo 14.
Parasnath did not admit, in the first
instance, that defeilda,nts 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.
72
SUPREME COURT REPORTS
[1973] l S.C.R.
There was, however, a second point of contest and that had to be
decided on merits.
l:'araS'1lath 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.
Defenda:nts 12 to 14 challenged this
sale alleging that 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 011 behalf of the joint family .itself. This
plea was accepted by the Trial Coμrt which negatived the case of
Paras:nath and Thakur Prasad that the latter was entitled to a 3 pies
share out of Parasnath's 1 anna share.
The whole share of 1 anna
of Parasnath in the partnership was divided between Parasnath, the
plaintiff, and defenda:nts 12 to 14 half and half.
From this finding
after contest, 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 i'llcluding Jagdish Narain, on the
other, became final and in these circumstances it woold be iinpossih!e to say that Jagdish Narain was just a proper party to the suit.
Indeed if J agdish Narain and his two brothers ( defenda:nts 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 foll one anna share in the partnership suit and it would
have been open to defendants 12 to 14 to make their claim ~gainst
Parasnath in an indepe11dent suit or proceeding.
But when in the
suit defendants 12 to 14 were made prties 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 P•!rposes
of the appeal defendants 12 to 14 would not be necessary parties.
There are two ways of looki,rig at it: ( 1) would it be possible to
defendants 12 to 14 to file a separate suit against Parasnath for
the sub-share in the partnersllip? and (2) could Murli Prasad
whose claim to the whole of the subject matter of the suit had been
negatived have filed an appeal without making defend·mts 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 deienda'!lts 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 reli~f 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 Ji to 14 necessary parties
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R. P. GUPTA v. MURLI PRASAD (Palekar, J.)
73
in any appeal filed by a party aggrieved l:Ay 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 Court's decree which .gave
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them a substantial share in the subject matter of the partition suit.
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For the purpose of the appeals (Civil Appeal 1711/67 and Civil
Appeal 1985/68 arising out of Parasnath's 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 tl<e partne-ship
assets in his own right.
· And now the question is whether the appellants who, in these
appeals, have asked for the restoration of the decree Qf 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 a suit brought for partnership accounts after a necessary party
defendant has been omitted, is liable to be dismissed.
See :
Ramdoyal v. Junmenjoy Coondoo('1).
The above decision was
followed in Amir Chand v. Raoji Bhai(2) with the observation that
no dissent had ever been expressed from the above decision.
It
was held that a suit for accounts cannot b<.. maintained between
some · nly of the partners of the !inn 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 v. Gangadas Seal and others('). In t.hat 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/- shoPld be contributed by
A, B & C and that out of. that sum Rs. 1, 7 40 / - should be paid to
D and the rest to F. A appealed from the decree making B, C, D
& F party respondents.
B & 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 ot 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
fo!lowed in Kunj Behari Lal v. Ajodhia Prasad(') wherein the
headnote is as follows :
(I) LL.R. 14, Cal. 791.
(3) 31 Indian Appeals 71.
, -LI 20s Sup er /72
(2) A.LR. 1930 Ma<lrns 714.
(4) XXT I.LR. T.uckncw 4'.3.
SUPREME COURT :REPO:RTS
[1973] l S.r:.R
"Where in an appeal arising out of a suit for accounts
and partition of partnership property, whi.ch ~annot be
dete~mined in the absence of all the parttes mterested,
some of lhe 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 oi
deceas~
Jagdish Narain-one of the -sharers in the subject matter of the .suit
must inevitably lead to the dismissal of the appe_als.
Tba~ ~nngs
the case squarely in the s~cond test referred to m the decmon of
this Court in Nathu Ram's case referred to above.
In all such cases even the first test would be satisfied.
There
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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 M urli Prasad who is .held to be the sole proprietor
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of the business.
If the present appellants were to succeed it would'
lead to the court's 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
E
to the subject matter between Murli Prasad and the
d~r-case<I
respondent.
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.
·
Mathew, J. The question is, whether the appeals have abated,
for failure of the appellants to implead the legal represe'.ltative of
Jagdish Narain who was the 13th defendant in Suit·No. 68 of 1954
and the 17th respondent in Civil Appeal No. 17ff of 1967 and
the 19th respondent in Civil Appeal No. 1985 of 1968".
To decide the question itis necessary to look into the nature
of the suit, the decree passed therein, and the matter in issue in the
appeals in question, for, as observed by this Court in State of
Punjab v. Nathu Ram(") the question whether a Court can deal
with an appeal in the absence of the legal representative of a dc:eased respondent will depend essentially upon the facts of the case.
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Suit No. 68 of 1954 was instituted by one Parasnath Prasad
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for the dissolution of a partnership called the "Chapra Electric
·"
(I) [1962] 2 S.C.R. 636.
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75
Supply Works" constituied under an agreement dii!td Aitgusf 31, :
1950. There were IO partners in the firm ineludiiig the i'{aintiff.
Parasnath Prasad, the plaintiff, had one anna stiike and defendants
I to 9 had the remaining 15 annas share in the. partnership, After .
the institution of the suit, defendants 12 to 14 were impleaded on
the basis that Parasnath Prasad, the plaintiff was the Manager of a
joint family and that those defendants, being members of the
family, were also entitled to a share in the one anna share ol' Parasnath Prasad in the partnership.
During the pendency of this Suit,
Mur!i Prasad, <i11e of the partners and defendant No. 8 in Suit No.
68 of 1954, filed a suit (Suit No. 94 of 1956) for a declaration
that he was the sole licencee and the owner of the electrical undertaking and not the partnership and, therefore, he was entitled to the
money payable by the Government for the acquisition of the electrical undertaking.
In this Suit, the partners in the firm alone were
parties. Defendants No. 12 to 14 in Suit No. 68 of 1954 were
not made parties.
Since .Suit No. 68 of 1954 and Suit No. 94 of 1956 were units
in respect of the assetS of the same undertaking viz.. "Chapra
Electric Supply Works", the two suits were tried together.
Issue
No. 11 in Suit No. 68 of 1954 was,
"What is the share of the plaintiff anci defendant>
1 to 15 in the share of the partnership ?"
The Court passed a preliminary decree in Suit No. 68 of 1954 dissolving the partnership and declaring the shares of the plaintiff and
defendants I to 9 and 12 to 14.
Suit No. 94 ot 1956 was dismissed .. Against these decrees, Murli Prasad filed two
a;ipeals
before the High Court of Patna : appeal No. 160 of 1959 against
the decree in. Suit No. 94 of 1956 and appeal No. I 61 of 1959
against the decree in Suit No. 68 of 1954.
In appeal No. 160 of
1959 also. defendants 1 '.< to 14 in Suit No. 68 of 1954 "e•e nat
parties.
His contention in appeal No. 161 of 1959 was that Suit
No. 68 ot 1954 was incompetent as the partnership which was
sought to be dissolved was illegal and, therefore, no suit for dis,olution of it Jay, and that in appeal No. 160 of 1959 was that he was
the sole owner of the undertaking and as such he was entitled 10
get the compensation amount for the acquisition of the undertaking.
The High Court allowed bath the appeals and dismi;sd
the suit for dissolution of the partnership (Sult .No. 68 of 1954)
and decreed Suit No. 94 of 1956.
The two appeals in question were filed by two partners o.f the
firm and arise from the decree passed in appeal No. 161 of 1959
bv the' High Court from the decree of ,the trial Court No. 68 d
1954.
In these appeals, Jagdish Narain, the 13th defendant in
Suit No. 68 of 1954, was impleaded as a respondent.
He L1ied
76
SUPREME COURT REPORTS
[1973] 1
during the pendency of the appeals, and his legal representatives
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were not brought on record within the period of limitation prescribed.
So, the question is raised by Murli Prasad, that the appeals
have abated.
In a suit for dissolution of a partnership and for account, the
partners are necessary parties but not persons who might be claiming some right under one partner.
Jagdish Narain was not a
partner in the firm sought to be dissolved.
He was not, therefore,
a necessary party to the suit. In fact, he was not made a party to
the suit when it was instituted.
Kuldip Narain (12th defendant),
Jagdish Narain (13th defendant) and Kedar Nath Shah (14th
defendant) were members of the joint family of which Parasnath
Prasad, the plaintiff, was the manager and they cll!imed that each
of them was entitled to a share in the one anna share of Parasnath
Prasad in the partnership.
They were allowed to be impleaded
not because they were necessary parties to the suit but only to avoid
multiplicity of suits as otherwise they would have had to file another
suit for declaration of their rights in the one man share of Parasnath Prasad and for partition thereof. In vther words, they were
impleaded not because the suit, as instituted, was defective for nonjoinder of necessary parties, but only for adjudication of their rights
vis-a-vis Parasnath Prasad, the plaintiff, and to avoid another suit.
The other partners, namely, defendants 1 to 9 were not interested
in the question that arose for consideration as between Jagdish
Narain and defendants 12 and 14 on the one hand, and the Plaintiff
on the other.
In the State of Punjab v. Nathu Ram('') this Court explained
the tests applicable In considering whether an appeal abates in its
entirety when it has abated qua one of the respondents.