Court rules on partnership continuity post-death, discrepancies in commission rates, and apportionment of appeal costs.

The court found that the original partnership was not dissolved upon the death of one partner, but a new partnership was formed with the heirs and son of the deceased partner. The court ruled in favor of the defendant for discrepancies in commission rates charged by the deceased partner, decreeing an amount to be recovered from the deceased partner's assets. The court upheld the accounting based on the actual commission rate. The court modified the lower court's decree, directing costs of the appeal to be borne by the parties due to partial success and failure on both sides.

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Issues Involved:
1. Dissolution of partnership on the death of a partner.
2. Accounting of the partnership business and the rate of commission charged.

Issue-Wise Detailed Analysis:

1. Dissolution of Partnership on the Death of a Partner:
The primary issue was whether the partnership was dissolved upon the death of Abdul Shakoor in 1938. According to Section 42 of the Partnership Act, a firm is dissolved by the death of a partner unless there is a contract to the contrary. The plaintiffs argued that the partnership continued after Abdul Shakoor's death, while the defendant contended that a new partnership was formed.

The court noted that the general rule is that a partnership is dissolved upon the death of a partner unless there is a contract stating otherwise. The court found that the original partnership consisted of only two partners, Abdul Shakoor and Wali Mohammad. Therefore, it was impossible for the partnership to continue after the death of one partner, as a partnership requires at least two partners. The court stated, "One partner cannot, by his own contract, impose a partnership upon his heirs or legal representatives."

However, the court also recognized that the business continued with the heirs of Abdul Shakoor and Wali Mohammad's son. It was concluded that a new partnership was created after Abdul Shakoor's death, and the old partnership was not dissolved by his death. The court ruled that the right to have the accounts taken from the commencement of the old partnership was not affected by the creation of the new partnership. The court cited Aabdul Jaffar v. K. Venugopal Chettiar and Ahinsa Bibi v. Abdul Kader to support this view.

2. Accounting of the Partnership Business and the Rate of Commission Charged:
The plaintiffs sought an accounting of the partnership business, claiming that the partnership account books were in the possession of Wali Mohammad and later his son, Babu. The defendant admitted the partnership but alleged that Abdul Shakoor misappropriated the assets and charged a higher commission than recorded in the books.

The trial court appointed a Commissioner to determine the amounts due from the commencement of the partnership until Abdul Shakoor's death and from then until the date of accounting. The Commissioner found discrepancies in the commission rates recorded and charged, concluding that Abdul Shakoor charged Rs. 2-8-0 per score of goats but entered Rs. 1-3-0 in the books. The trial court decreed in favor of the defendant for Rs. 11,700, to be recovered from Abdul Shakoor's assets in the plaintiffs' hands.

On appeal, the plaintiffs argued that the partnership was dissolved upon Abdul Shakoor's death, and no accounting for the period before his death should be considered, as the suit was filed more than three years later. The court rejected this argument, stating that the business continued with the same rights and liabilities, implying an agreement that the partnership would not be dissolved by Abdul Shakoor's death.

The plaintiffs also contended that since the partners conspired to cheat the Income-tax Department by recording false commission rates, one partner could not claim accounting based on the actual higher rate. The court dismissed this plea as it was not raised in the lower courts and involved factual investigation. The court upheld the accounting based on the actual commission rate of Rs. 2-8-0 per score of goats.

Conclusion:
The court modified the lower court's decree, maintaining the amount due to the defendant from the assets of Abdul Shakoor in the hands of the plaintiffs. The liability of the minor heirs was confined to their shares in the partnership assets. The court directed the costs of the appeal to be borne by the parties due to partial success and failure on both sides.

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