2004 INSC 0723
                                    SUPREME COURT OF INDIA

                                                 Bijendra Pd.

                                                      Vs.

                                              Duleshwari Devi

                                           C.A.No.6062 of 1998

                                  (S. N. Variava and Arijit Pasayat JJ.)

                                                 15.07.2004

                                                   ORDER

1. This Appeal is against the Judgment of the Patna High Court dated 7th January, 1998
wherein the Letters Patent Appeal has been dismissed mainly on the ground that the Suit was
barred by the provisions of Section 69 of The Indian Partnership Act, 1932 (hereinafter
referred to as "The Act"). The Court negatived an argument that there were number of other
issues which were required to be dealt with on the ground that when the Suit was not
maintainable under Section 69 of the Act, no question arose for considering the other issues.

2. It must be mentioned that even the First Appellate Court has dismissed the First Appeal on
the ground of the Suit was not maintainable under Section 69 of the Act. Of course, the First
Appellate Court has, in passing, mentioned that on the facts and circumstances of the case as
well as on evidence both oral and documentary they saw no reason to differ with the findings
of the Trial Court but there is no discussion on the evidence or on any other issue.

3. Undoubtedly, the Suit filed by the Appellants proceeds on the footing that there was a
partnership firm. The Appellants claim accounts and if necessary dissolution of that firm.
The Courts below have concluded that on the date the partnership was entered into, the
Appellants were minors and thus therefore there could be no partnership. This is a conclusion
with which we can find no fault.

4. But that does not make the Suit not maintainable. A question still arises whether there was
a joint venture between the parties. On this aspect Issues Nos. 7 and 8 had been raised. If it is
found that there was a joint venture, then even though there was no partnership a further
question would be whether the appellants are entitled to a share. These are matters which the
First Appellate Court should have decided on the basis of evidence led before the Trial
Court.

5. Once the conclusion was reached that by virtue of Section 30 of the Act there was no
partnership then the Courts erred in holding that the Suit was barred by Section 69 of the Act.
If there was no partnership, then Section 69 had no application at all. In that case, the Courts

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had to proceed to decide the above-mentioned issues on the basis of evidence. Both the First
Appellate Court and the High Court in Letters Patent Appeal have not dealt with these
aspects at all.

6. We, therefore, set aside the impugned Judgment as well as the Judgment of the First
Appellate Court and restore First Appeal No. 943/1971 to the file of the Patna High Court.
The High Court will decide on basis of available evidence and material whether the Trial
Court has correctly answered issue Nos.6, 7, 8 and 9. It is clarified that the question of
accounts under issue no.6 will only be on the footing that there was a joint venture and not
on footing of a partnership.

7. The Appeal stands disposed of accordingly. No order as to costs.

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