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VARIOUS MODES
Raghvendra Singh Raghuvanshi & Nidhi Vaidya1
Table of contents
• Statement Of Purpose
• Introduction
• Meaning of Dissolution of a Firm
• Modes of Dissolution-
1. Dissolution by Agreement
2. Compulsory Dissolution
3. Dissolution on happening of certain contingencies
4. Dissolution by notice
5. Dissolution by Court
• Conclusion
1
The Authors are Lawyers practicing in High Court of MP, Indore, India and can be reached at
raghav_nliu@rediffmail.com.
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STATEMENT OF PURPOSE
The paper aims to study how and under what circumstances a dissolution can be
affected in a partnership firm and what can be the aftereffects of dissolution of
firm on the partners of the said firm? It can be broadly divided in to two parts. The
first part of the study describes the meaning of dissolution of a firm and second
part focuses on the various important modes under which partnership firm can be
dissolved.
INTRODUCTION
The Indian law of partnership in India is based on the provisions of the English law of
partnership. Until the English Partnership Act of 1890 was passed, the law of partnership
even in England was largely based on legal decisions and custom. There were very few
acts of parliament relating directly to partnership. The Indian Partnership Act of 1932
(Partnership Act) was the result of a Report of a Special Committee.
Prior to the enactment of the Partnership Act, the law relating to partnership was
contained in Chapter XI (sections 239 to 266) of the Indian Contract Act, 1872 (Contract
Act). These provisions contained in the Contract Act were not found adequate. As a
result, Chapter XI of the Contract Act was repealed and replaced by the Partnership Act
of 1932. The Partnership Act is a comprehensive framework for contractual relationships
amongst partners, and the basis for a most popular form of organization for small
businesses. It is interesting to note that the Partnership Act has not been subject to any
significant amendment since its enactment.
The Indian Partnership Act enacted in the Year 1932 defining the law relating to
partnership the relation between the persons who have agreed to share the profits of a
business carried on by all or any of them acting for all -- makes it obligatory to have a
partnership registered with the Registrar of Firms, failing which the firm is prohibited
from enforcing any right in a Court of Law. This Act defines the relationship of partners
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to one another and to third parties and lays down provisions as regards incoming and
outgoing partners, dissolution of a firm, etc. Under the Act partners are bound to carry on
the business of the firm to the greatest common advantage, to be just and faithful to each
other and to render true accounts and full information of all things effecting the firm to
any partner or its legal representative. A partner is liable to indemnify the firm for any
loss caused to it by his willful neglect in the conduct of the business of the firm. A
partner is the agent of the firm for the purpose of the business of the firm. The act also
provides for the sale of goodwill of the firm after its dissolution and the rights of the
buyer and seller of the goodwill.
The dissolution of partnership between all the partners of a firm is called the dissolution
of the firm. [Section 39]. - -. As per section 4, Partnership is the relation between persons
who have agreed to share profits of business carried on by all or any of them acting for
all. Thus, if some partner is changed/added/ goes out, the ‘relation’ between them
changes and hence ‘partnership’ is dissolved, but the ‘firm’ continues. Hence, the change
is termed as ‘reconstitution of firm’. However, complete breakage between relations of
all partners is termed as ‘dissolution of firm’. After such dissolution, the firm no more
exists. Thus, ‘Dissolution of partnership’ is different from ‘dissolution of firm’.
‘Dissolution of partnership’ is only reconstruction of firm, while ‘dissolution of firm’
means the firm no more exists after dissolution.
A firm is not said to be dissolved by the fact of one or more members ceasing to be
partners in it while others remain, but only when all and every one of the members of the
firm cease to carry on its business in partnership. The law with respect to retiring partners
as enacted in the Partnership Act is to a certain extent a compromise between the strict
doctrine of English Common Law which refuses to see anything in the firm name but a
collective name for individuals carrying on business in partnership and the mercantile
usage which recognizes the firm as a distinct person or quasi corporation.1
1
CIT, West Bengal v. M/s AW Figgis & Co AIR 1953 SC 455
A deed of dissolution must necessarily cover other matters, which arise directly out of
dissolution, such as settlement of accounts, payment of amounts found due on such
settlement, closing down or continuation of business collection of outstanding and
payment of liabilities. Notwithstanding such clauses in a deed of dissolution, it would be
liable to payment of stamp duty under art 47, Sch I of the Bombay Stamps Act 1958 and
would not be subject to separate duty on such matters.2
If a new firm is formed by agreement between some of the former partners, it will
nonetheless be new, however closely that agreement may follow on the dissolution of the
old firm. Whether a new firm is formed or not is a question of fact.3
2
Santdas Moolchand Jhangiani & another v. Sheodayal Gurudasmal Massand
AIR 1971 Bom 237 (DB).
3
MM Valliamai Achai & ors v. KNPLV Ramanathan Chettiar & ors AIR 1969 Mad 257.
“A firm may be dissolved with the consent of all the partners or in accordance with a
contact between the partners”5
Although this is new in terms, however it is a quite familiar law. ‘Contact between the
partners’ obviously mean a contact already made; the most likely case is that of a clause
in the partnership articles providing for dissolution in certain events. In addition to a
dissolution clause where in a partnership deed reference is made to the Partnership Act,
that where special provision is not made in the deed the provisions of the Act shall apply,
it cannot be said that a partner of the firm is not entitled to ask for dissolution of the firm
and that only course open him is to retire as provided by another clause in the deed.6
The principle is well settled that it is on the examination of relevant documents and
relevant facts and circumstances that the court has to be satisfied in each case as to
whether there has been a succession or a mere change in the constitution of the
partnership. It cannot be disputed that ‘dissolution’ and ‘reconstitution’ are two distinct
legal concepts, for, dissolution brings the partnership to an end while a reconstitution
means the continuation of the partnership under altered circumstances. In law, there
would be no difficulty in the dissolution of a firm being followed by the constitution of a
new firm by some of the erstwhile partners who may take over the assets and liabilities of
the dissolved firm.8
5
Sec. 40, Indian Partnership Act.
6
Sheonarain Jaiwal & ors v. Kripa Shankar Jaiswal & anor AIR 1972 Pat 75
7
Underhill’s Principles of the Law of Partnership 11th edn. P 76; citing Peyton v. Mindham (1971) 3
All ER 1215.
8
CIT, West Bengal v. M/s Pigot Champan & Co. AIR 1982 SC 1085,1089
COMPULSORY DISSOLUTION
A firm is dissolved-
a) By the adjudication of all the partners or of all the partners but one as insolvent,
or
b) By the happening of any event which makes it unlawful for the business of the
firm to be carried on or for the partners to carry it on in partnership:
9
Hitchman v. Crouch Butlet Savage Associates (1983) 80 LS Gaz 550.
10
Kali Ram v. Ram Ratan AIR 1977 NOC 31 (Del)
Thus according to section 41, compulsory dissolution of a firm may take place on the
following two grounds -
As regards insolvency proceedings in a foreign country the view appears to be that they
would cause dissolution, at any rate if taken in the country in which the insolvent partner
is domiciled.3
A firm is dissolved by the adjudication of all the partners or of all the partners but one as
insolvent4. Reference may also be made here to section 34(1) which provides, where a
partner in a firm is adjudicated an insolvent, he ceases to b e a partner on the date on
which the order of adjudication is made, whether or not the firm is thereby dissolved.
Thus a partner is adjudicated an insolvent; he ceases to be a partner. One of the main
2
CIT Madhya Pradesh v. Seth Govindram Sugar Mills AIR 1966 SC 24.
3
Lindley on Partnership, 15th edn, pp 693-4.
4
Section 41(a).
In another case of Hudgell Yeafes & Co. v. Watson8 where A is a partner with ten other
persons in a certain business. An Act is passed which makes it unlawful for more than
two persons to carry on that business in partnership. The partnership is thus dissolved.
A firm is dissolved by the happening of any event, which makes it unlawful for the
business of the firm to be carried on or for the partners to carry on in partnership.9
Proviso to section 41(b), however provides that, where more than one separate
adventure or undertaking is carried on by the firm, the illegality of one or more shall not
5
See Erach F.D. Mehta v. Minoo F.D. Mehta, AIR 1971 SC 1653; Commissioner of Income Tax, M.P. v.
Seth Govind Ram Sugar Mills, AIR 1966 SC 24.
6
15th edn, pp 89-91.
7
(1857) 7 E&B 763.
8
(1978) QB 451.
9
Section 41(b).
EFFECTS OF WAR
The first war brought the question of illegality based on alien enemy character back into
prominence after many years. Commercial relations involving subjects of a state which
has become hostile, or persons carrying on their business in the territory of such a state,
had to be considered in the light of two quite distinct rules of common law, one as to
personal disqualification, the other as to trading with enemies. There was considerable
doubt as to several doubts until the full court of appeal dealt with a group of cases early
in 1915.11 The result of that considered judgment, and of some others are as follows:
The term ‘alien enemy’ includes persons of any nationality voluntarily resident in a
hostile country.12 However, it does not include for the purpose of the common law rules,
a subject of an enemy state residing within the realm with the license of the Crown; and
registration of an alien under the Aliens Registration Act, 1914.
10
Proviso to Section 41(b).
11
Porter v. Freudenberg & Co., [1915] KB 857.
12
Sovfracht v. Van Uden’s Scheepvaart, [1943] AC 203.
In as much as a body corporate may be a partner, it has power to note that the friendly or
hostile character of such a body is not conclusively determined by the place of its
registration and its official seat, nor by the nationality of its members or the majority of
them. A company incorporated or registered here may be an enemy if it carries on
business in an enemy country, or if its business is under the control of persons resident in
an enemy country or adhering to or controlled by enemies; on which last question the
prevailing character of the shareholders is material though not conclusive.14
A firm is dissolved, if constituted for a fixed term, by the expiry of that term.15
It may be noted here that Sections 42(a) and 42(b) relating to completion of one or more
adventures or undertakings are subject to sections 42(c) relating to death of a partner and
42(d) regarding adjudication of a partner as an insolvent. If a partner dies or is
adjudicated as an insolvent, there in the absence of contrary contract between partners,
the partnership firm is dissolved. The term of the partnership being fixed is clearly not a
13
The Roumanian, [1915] 1 26.
14
Daimler Co’s case, [1916] 2 AC 307.
15
Section 42(a).
10
Section 42 (b) applies in such cases where the partnership firm has been
constituted for one or more adventures or undertaking although no period has been fixed.
In such cases the nature of the undertakings and the conduct of the partners are
considered. If it is found that the firm was constituted for one or more undertakings, the
firm is dissolved on the completion of one or more undertakings, as the case may be. But
when the partners install flourmill, oil mill etc, the question of completion of undertaking
does not arise and Section 42(b) will not apply.
Where a firm was constituted for a specific undertaking to supply certain quantity
of grain and the contract was prematurely terminated after supply of a part of the goods,
it was held that the partnership did not come to an end and was dissolved only on the
final realization of assets.18
16
Section 42(b).
17
AIR 1959 SC 781.
18
Basanthlal Jalan v. Chiranjilal sarawgi & others, AIR 1968 Pat 96.
11
The above view has been expressed by the full bench of Punjab and Haryana
High Court in M/s. Nandlal Sohanlal, Jullandar v. CIT, Patiyala22 thus on the death of
a partner the firm is dissolved provided that there is no contract to the contrary between
the partners. If the remaining or surviving partners continue the business of the firm, it
will be deemed that they have constituted a new firm by mutual consent.
19
(1968) 1 WLR 893; J&J Cunningham v. Lucas, (1957) 1 Lloyd’s Rep. 416.
20
Section 42 (c).
21
Dulli Chand Lakshminarayan v. CIT, Nagpur, AIR 1956 SC 354.
22
AIR 1977 P&H 320 at p. 324.
12
Facts: After the death of Kalooram Todi, his two sons by name Govindram and
Gangaprasad constituted a joint Hindu family which owned extensive property in Jaora
State and a sugar mill called "Seth Govindram Sugar Mills" at Mahidpur Road in Holkar
State. In the year 1942 Bachhulal filed a suit for partition against Govindram and
obtained a decree therein. In due course the property was divided and a final decree was
made. We are concerned in these appeals only with the Sugar mills at Mahidpur Road.
After the partition Govindram and Bachhulal jointly worked the Sugar Mills at Mahidpur
Road. After the death of Govindram in 1943, Nandlal, the son of Govindram, and
Bachhulal as kartas of their respective joint families, entered into a partnership on
September 28, 1943, to carry on the business of the said Sugar Mills. Nandlal died on
December 9, 1945, leaving behind him the members of his branch of the joint family,
namely, the three widows and the two minor sons shown in the genealogy. After the
death of Nandlal Bachhulal carried on the business of the Sugar Mills in the name of
"Seth Govindram Sugar Mills".
For the assessment year 1950-51, the said firm applied for registration on the
basis of the agreement of partnership dated September 28, 1943. The Income-tax Officer
refused to register the partnership on the ground that after the death of Nandlal the
partnership was dissolved and thereafter Bachhulal and the minors could be treated only
as an association of persons. On that footing he made another order assessing the income
of the business of the firm as that of an association of persons. Against the said orders,
two appeals - one being the Appeal No. 21 of 1955-56 against the order refusing
registration and the other being Appeal No. 24 of 1955-56 against the order of assessment
- were filed to the Appellate Assistant Commissioner.
The Appellate Assistant Commissioner dismissed both the appeals. In the appeal
against the order of assessment, the Appellate Assistant Commissioner exhaustively
23
AIR 1966 SC 24.
13
Decision of High Court: The High Court held that in the assessment year 1949-50 the
status of the assessee was that of a firm within the meaning of s. 16(1)(b) of the Income-
tax Act and thus it was a partnership firm.
Clause (3) of the partnership deed provided, "The death of any of the parties shall not
dissolve the partnership and either the legal heir or the nominee of the deceased partner
shall take his place in the provisions of the partnership."
Section 5 of the said Act says that the relation of partnership arises from
contract and not from status.
14
Section 42(c) of the Partnership Act can appropriately be applied to a partnership where
there are more than two partners. If one of them dies, the firm is dissolved; but if there is
a contract to the contrary, the surviving partners will continue the firm. On the other
hand, if one of the two partners of the firm dies, the firm automatically comes to an end
and, thereafter, there is no partnership for a third party to be introduced therein and,
therefore, there is no scope for applying cl. (c) of s. 42 to such a situation. It may be that
pursuant to the wishes or the directions of the deceased partner the surviving partner may
enter into a new partnership with the heir of the deceased partner, but that would
constitute a new partnership.
In this light Sec. 31 of the Partnership Act falls in line with Sec. 42 thereof. That section
only recognizes the validity of a contract between the partners to introduce a third party
without the consent of all the existing partners. it presupposes the subsistence of a
partnership; it does not apply to a partnership of two partners which is dissolved by the
death of one of them, for in that event, there is no partnership at all for any new partners
to be inducted into it without the consent of others.
24
AIR 1946 All. 259.
15
The same criticism applies to the decision of the Nagpur High Court in Chinkaram
Sidhakaran Oswal v. Radhakisan Vishwanath Dixit25 This question was directly raised
and clearly answered by a Division Bench of the Allahabad High Court in Mt. Sughra v.
Babu26 against the legality of such a term of a contract of partnership consisting of only
two partners. Agarwala, J. neatly stated the principle thus:
"In the case of the partnership consisting of only two partners, no partnership remains on
the death of one of them and, therefore, it is a contradiction in terms to say that there can
be a contract between two partners to the effect that on the death of one of them the
partnership will not be dissolved but will continue…. Partnership is not a matter of
status; it is a matter of contract. No heir can be said to become a partner with another
person without his own consent, express or implied."
".......if one of the partners died, there will not be any partnership existing to
which the legal representatives of the deceased partner could be taken in. In such a case
the partnership would come to an end by the death of one of the two partners, and if the
legal representatives of the deceased partner joins in the business later, it should be
referable to a new partnership between them."
But Chatterjee J., in Hansraj Manot v. Messrs. Gorak Nath Pandey28 struck a different
note. His reasons for the contrary view are expressed thus:
"Here the contract that has been referred to is the contract between the two
partners Gorak Nath and Champalal ... Therefore, it cannot be said that the contract
25
AIR 1956 Nag. 46.
26
AIR 1952 All. 506, 507.
27
AIR 1959 Mad. 283, 284.
28
[1961] 66 C.W.N. 262.
16
Decision of the Supreme Court: It held that this Section does not apply to a partnership
of two partners. There cannot be a contract between the partners that on the d4eath of one
of them, the partnership will not be dissolved.
1. “Where the partnership is at will the firm may be dissolved by any partner
giving notice to all the other partners of his intention to dissolve the firm.”
2. “The firm is dissolved as form the date mentioned in the notice as the date of
dissolution or, if no date is so mentioned, as from the date of communication of the
notice.”
29
Section 42(d).
17
Under section 43(1), if the partnership is at will, any partner may dissolve the firm by
giving notice. But in order to dissolve the firm the following conditions must be fulfilled:
The Supreme Court observed that under section 43(2), notice must contain the date from
which the firm will be dissolved. The question of writing the date of dissolution in a
30
AIR 1963 SC 1165; (1964) 1 SCR 316.
18
In Mc Leod v. Dowling,32 it was held that if before such notice becomes operative an
event occurs which dissolves the partnership, the notice would become redundant since
there would exist no partnership on which it can operate.
In Moss v. Elphick,33 it was held that if there is an agreement that the partnership shall be
terminated by mutual agreement only, this right stands excluded.
In Banarsi Das v. Seth Kashiram34 The plaintiff Kundanlal and the defendants 1 to 5
Banarsi Das, Kanshi Ram, Kundan Lal, Munnalal, Devi Chand and Sheo Prasad are
brothers and formed a Joint Hindu Family till the year 1936. Amongst other properties
the family owned a sugar mill at Bijnor in Uttar Pradesh called "Sheo Prasad Banarsi Das
Sugar Mills". After the disruption of the family the brothers decided to carry on the
business of the said sugar mill as partners instead of as members of a Joint Hindu Family.
The partnership was to be at will and each of the brothers was to share all the
profits and losses equally. The mill was to be managed by one of the brothers who were
to be designated as the managing partner and the agreement arrived at amongst the
brothers provided that for the year 1936-37, which began on September 1, 1936, the first
defendant Banarsi Das, who is the appellant was to be the managing partner.
The agreement provided that for subsequent years the person unanimously
nominated by the brothers was to be the managing partner and till such unanimous
nomination was made, the person functioning as managing partner in the previous year
must continue.
31
Pratap Singh J. had also upheld this position in Venugopal v. Jaya, (1993) 2 Mad LJ 434.
32
(1927) 43 TLR 665.
33
[1910] 1 KB 465.
34
AIR 1963 SC 1165
19
On November 8, 1947, Sheo Prasad instituted a suit before the court of Civil Judge,
Bijnor against his brothers for a permanent injunction restraining Banarsidas from acting
as Receiver. The suit, however, was dismissed on March 3, 1948. On July 16, 1948, Sheo
Prasad transferred his 1/6th share to Banarsidas and since then Banarsidas has been
20
On July 30, 1949, Banarsidas filed his written statement but none of the other
defendants put in an appearance. On December 18, 1950, an application, which had been
made for the appointment of a Receiver, was dismissed on the ground that Kanshi Ram
who had been appointed as Receiver by the Lahore High Court continued to be the
Receiver. It may be mentioned that during the pendency of this suit the appellant
Banarsidas entered into an agreement with Devichand and Kanshi Ram where under he
took over all their rights and interests in the said mill for a period of five years
commencing from July 1, 1951. On February 19, 1951, he made an application to the
court for directing Kanshi Ram to give a lease of the mill to him for a period of five years
commencing from July 1, 1951. It may be mentioned that under an earlier arrangement
Banarsidas had obtained a lease for a similar term, which was due to expire on June 30,
1951. On April 26, 1951, one Mr. Mathur was appointed Receiver by the court and in
July 1951, he granted a lease for five years to Kundanlal on certain terms, which would
be settled by the court. It may be appropriate to mention here that issues in the suit
instituted by Kundanlal were framed on December 7, 1951, and one of the important
issues was whether the lease dated September 12, 1946, granted to Banarsidas was void
ab initio or was voidable and in either case what was its effect.
Contentions of Banarsidas:
(1) Under the Partnership Act, the partners are entitled to have the business of the
partnership wound up even though a suit for accounts is barred under Art. 106 of the
Limitation Act.
(2) Kanshi Ram having been appointed a Receiver by the Court stood in a fiduciary
relationship to the other partners and the assets, which were in his possession, must be
deemed to have been held by him for the benefit of all the partners. Therefore,
independently of any other consideration, he was bound to render accounts.
21
(4) The Court was wrong in holding that limitation for the suit commenced on May
13, 1944.
(5) The High Court was wrong in resorting to the provisions of O. 41, r. 33, of the
Code of Civil Procedure.
RATIO DECIDENDI:
“Even assuming, however, that the term "notice" in the provision is wide enough to
include within it a plaint filed in a suit for dissolution of partnership, the sub-section itself
provides that the firm will be deemed to be dissolved as from the date of communication
of the notice. It would follow, therefore, that a partnership would be deemed to be
dissolved when the summons accompanied by a copy of the plaint is served on the
defendant, where there is only one defendant, and on all defendants, when there are
several defendants. Since a partnership will be deemed to be dissolved only from one
date, the date of dissolution would have to be regarded to be the one on which the last
summons was served.”
DECISION:
The Supreme Court held that the High Court's decision must be set aside and that of the
trial court restored. We may, however, mention that some of the parties including the
appellant Banarsidas and the plaintiff-respondent, Kundanlal as well as the defendant-
respondent Kanshi Ram were agreeable to certain variations in the decree. But as there
22
While the members of a joint Hindu 2. But on the other hand, the partners of
family hold an undivided interest in the a firm hold interest only as tenants-in-
family property, common.
23
This rule makes the position clear. No doubt, this rule is of general application,
that is, to partnerships at will as well as those other than at will; but there are no
limitations in this provision confining its operation only to partnerships other than those
at will.
Section 43(1) of the Partnership Act does not say what will be the date from
which the firm will be deemed to be dissolved. For ascertaining that, we have to go to
Sub –Section (2).
35
Code of Civil Procedure, 1908.
24
"The firm is dissolved as from the date mentioned in the notice as the date of dissolution
or, if no date is so mentioned, as from the date of the communication of the notice."
Now, it will be clear that this provision contemplates the mentioning of a date
from which the firm would stand dissolved. Mentioning of such a date would be entirely
foreign to a plaint in a suit for dissolution of partnership and therefore such a plaint
cannot fall within the expression "notice" used in the sub-section. It would follow
therefore that the date of service of a summons accompanied by a copy of a plaint in the
suit for dissolution of partnership cannot be regarded as the date of dissolution of
partnership and s. 43 is of no assistance.
In Devi Textiles v. S. Suganthi36 there was a partnership at will and both the partners
(plaintiff and defendant) had 50% shares in the firm and both agreed to have the firm
dissolved and thereafter partners did not have good relationship, but the defendant
continued the business of the firm as if nothing happened and it is still in existence.
Decision: In such circumstances, it was held that the appointment of a receiver would be
proper for rendition of accounts and for completing winding up process.
DISSOLUTION BY COURT
This declaration of the grounds for judicial dissolution corresponds, with verbal variation
and additional provision adapted to Indian procedure, to section 35 of the English Act,
which was itself a somewhat enlarged version of section 254 of the Contract Act . The
section confers a right to pray for dissolution on any of the grounds specified therein
notwithstanding any term of the partnership deed.
36
AIR 2000 Mad. 62, at p. 65.
25
At the suit of a partner, the court may dissolve a firm on the ground that a partner has
become of unsound mind, in which case the suit may well be brought as well by the
next friend of the partner who has become of unsound mind as by any other partner.37
Since a person of unsound mind cannot perform the works of a partnership firm, it is
in the interest of such a person as well as other partners that the firm be dissolved. Hence
the next friend of unsound partner or any other partner may through a suit request the
court to dissolve the firm.
At the suit of a partner, the court may dissolve a firm on the ground that a partner,
other than the partner suing, has become in any way permanently incapable of
performing his duties as partner.38
If the incapacity is temporary or is such that does not affect the duties of a partner, the
firm cannot be dissolved on this ground. For example there is fracture of the bone of leg
or hand and there is every likelihood of it being rectified or where a partner suffers from
paralysis or he is improving speedily by treatment, the firm cannot be dissolved on this
ground. In order to dissolve the incapacity must be permanent.39
37
Section 44(a), The Indian partnership Act, 1932.
38
Section 44(b), The Indian Partnership Act, 1932.
39
Whitewell v. Arthur, (1865) 147 RR 73, 55 ER 848.
26
At the suit of a partner, the court may dissolve a firm on the ground that a partner, other
than the partner suing, is guilty of conduct, which is likely to affect prejudicially the
carrying on of the business regard being had to the nature of the business.40
• The first thing to be noted in section 44(c) is that if the partner filing the suit
himself is guilty of conduct which is likely to affect prejudicially the carrying on of the
business, the court will not order the dissolution of the firm.
“No party is entitled to act improperly and then to say that the conduct f the partners and
their feelings towards each other are such that the partnership can no longer be
continued and certainly this court would not allow any person so as to act and thus to
take advantage of his own wrong.”
40
Section 44(c), The Indian Partnership Act, 1932.
41
[1856] ALL ER 945.
27
Reasoning + Decision: The court dismissed the suit holding that it cannot be said that a
customer’s money is not safe because one of the partners of the firm is guilty of adultery.
Though the court condemns the act of adultery of a person but this cannot be a ground for
the dissolution or expelling the partner.
Undoubtedly in some cases the moral conduct of a person may prejudicially affect
the business of a firm. For example, if a doctor enters into a partnership with another
doctor to run the clinic and it is found that he is immoral towards some patients,
partnership firm may be dissolved on this ground. But this is not so in the case of
business of bankers because in tit he moral conduct of a partner is not likely to affect
prejudicially the business of the firm.
But if the moral conduct of a partner is likely to affect prejudicially the business of the
firm even though the crime is less serious, keeping in view the business of the firm the
court may dissolve the firm. For example, if a partner in a firm of drapers is found
without ticket and is convicted, the firm may be dissolved.43 Similarly, if the conduct of a
partner is such that partners may lose faith in each other the firm may be dissolved.44
At the suit of a partner, the court may dissolve a firm on the ground that a partner,
other than the partner suing, willfully or persistently commits breach of agreements
42
(1868) 18 LT 142.
43
See Carmichael v. Evans, (1904) 90 LJ 573; (1904) 1 Ch. 486.
44
Supra note 18.
28
At the suit of a partner the court may dissolve a firm on the ground that a partner
other than the partner suing has in any way transferred the whole of his interest in the
firm to a third party, or has allowed his share to be charged under the provisions of Rule
49 of Order XXI of the First Schedule to the Code of Civil Procedure, 1908, or has
allowed it to be sold in the recovery of arrears of land revenue or of any dues
recoverable as arrears of land revenue due by the partner.46
If a partner transfers whole of his interest to a third party he will have no interest
left in the firm and therefore, any other partner can get the firm dissolved by filing a suit
in court on this ground. Such a third party or transferee does not thereby become a
45
Section 44 (d), The Indian Partnership Act, 1932.
46
Section 44 (e), The Indian Partnership Act, 1932.
29
In A.Chinna Ramanatham Naidu v. B. Subbarami Reddy50 the court held that under
section 44 if grounds for dissolution of the firm sought by a particular party are
numerous, it could be open to such party to approach a competent civil court, so that a
entire matter could be decided by that court on the basis of oral and documentary
evidence. Even if one of the clauses of partnership deed envisages referring the disputes
to the named arbitrators, then also the fact that arbitrators are chosen by both the parties
and a date was also fixed for arbitration proceedings, cannot be ground for a seeking stay
of further proceedings in a regular suit filed for a comprehensive relief.
f. PERPETUAL LOSS
At the suit of a partner, the court may dissolve a firm on the ground that the business of
the firm cannot be carried on save at a loss.51
47
Section 29(1), The Indian Partnership Act, 1932.
48
Section 29 (2).
49
AIR 2003 SC 668.
50
AIR 1994 AP 26
51
Section 44(f).
30
Section 44(g) gives very wide powers to the court. Whenever a case is brought to the case
under section 44(g), the court has to decide whether it would be ‘just and equitable’, to
dissolve the firm and such matters cannot be left for decision or award of the
arbitration.53
Under section 44(f), 6the court has to decide according to its discretion but this discretion
cannot be restricted by rigid or inflexible rules. The court has to use its discretion on the
basis of facts and circumstances of the case. For example, in one case 4 out of 9 partners
wanted dissolution of the firm and their shares in the firm were 7/9. There was no co-
operation and mutual faith between the partners. There were many and long-persisting
disputes among them. The court held that it would be just and equitable to dissolve the
firm.
52
Section 44(g).
53
Nainder Singh Randhava v. Hasrdial Singh Dhillon, AIR 1985 P&H 41; See also Kalpana Kothari v.
Sudha Yadav, (2002) 1 SCC 203; AIR 2002 SC 89.
31
Last but not least, it may be noted that Section 44 is not subject to contract between
partners. It confers right on the partners to file suit for the dissolution of the firm on the
ground mentioned in the Section.
STAY OF ARBITRATION
Last but not least, it may be noted that Section 44 is not subject to contract between
partners. It confers right on the partners to file suit for the dissolution of the firm on the
ground mentioned in the Section.
54
Oliver v. Hillier, [1959] 2 All ER 220.
32
The firm is dissolved when all the partners of a firm is called the “dissolution of the
firm”. Thus we can conclude that the firm is dissolved when all the partners stop carrying
on the partnership business. If some partners dissociate from the firm and the remaining
partners continue the business of the firm, the firm is not dissolved. The dissolution of a
firm is distinct from the retirement of a partner because in latter situation others or
remaining partners continue the business of the firm and the firm is not dissolved. Thus
dissolution of partnership between all the partners of a firm is called dissolution of the
firm.
The dissolution of the partnership brings about a change in the relations between partners
but partnership between them does not completely end. The partnership continues for the
purpose of realization of assets or properties of the firm.
Further, after the dissolution of a firm the authority of each partner to bind the firm, and
the other mutual rights and obligations of the partners, continue notwithstanding the
dissolution, so far as may be necessary to wind up the affairs of the firm and to complete
transactions begun but unfinished at the time of the dissolution, but not otherwise.
33