Kodandaramayya, J.:-
(1) Defendants 1 to 6 are the appellants in this appeal. The respondent - plaintiff filed the suit in o. S. No. 126 of 76 on the file of district munsif's court, nellore subsequently transferred to subordinate judge's court and numbered as o. S. No. 12/75 for dis solution of partnership between himself and the defendants and for settlement of accounts. The case of the plaintiff is that himself and defendants 1,2,4 and 5 were carrying on business in exhibition of cinematographic films at nellore in partnership under the name and style of vijaya mahal, nellore as per the partnership deed dated 15. 8. 1962. Subsequently the 3rd defendant also was admitted into partnership as per deed dated 2. 10. 1970 but the same was not given in effect to. The 2nd defendant is the managing partner and the plaintiff was receiving the profits of his share as per the deed dated 15. 8. 1962. However when the managing partner refused to furnish copy of the account for the year ending 31. 3. 1974 the plaintiff laid the suit for dissolution of partnership. It is also alleged in the plaint that the allegations in the reply notices issued by the defendants that he agreed to retire from the partnership are not true and the partnership deeds dated 5. 4. 1971, 9. 11. 1971, 16. 9. 1971 and 2. 2. 1974 are not known to him and the same are not binding on him. Hence the suit.
(2) The 2nd defendant filed a written statement and the same was adopted by defendants 1, 3 and 6. It is averred in the written statement that the partnership with the plaintiff was admitted as per ex. B. 7 but it is contended that the plaintiff and the 4th defendant gave up their shares and retired from the partnership as the plaintiff transferred his share to muppalla subbareddy and also the 3rd defendant and the 4th defendant transferred his share to the 2nd defendant and the same was evidenced by ex. B. 21 dated 5. 4. 1971. It was further alleged in the written statement that the defendants' family gave up their share in the other partnership venture in vijaya laxmi talkies and it is not true to say that the plaintiff continued as partner in the suit partnership of vijaya mahal though the partnership deed dated 5. 4. 1971 was not filed before the income tax authorities as desired by the plaintiff and the plaintiff is bound by the said deed as he and the 4th defendant, the retiring partners attested the same and in view of the fact ex. B. 21 was not filed before the income tax authorities a fresh deed was executed on 9. 11. 1971 which was also attested by the plaintiff and the 4th defendant wherein the wife of the 2nd defendant was also taken as a partner and subsequently the accounts of the plaintiff wei'e settled fully and he was. Paid off his entire dues in vijaya mahal on 16. 9. 1973 by which date reconstitution of the firm took place consisting of defendants 1, 2,5,6 and m. S. Reddy and the said deed was registered before the registrar and the same was filed before the income tax authorities and the said firm was again reconstituted on 2. 2. 74 as per ex. B. 29 consisting of defendants 1,3 and 6 and it is not possible for the plaintiff to ask dissolution of the partnership at this stage and consequently the suit is liable to be dismissed.
(3) The 4th defendant filed a separate written statement admitting the attestation of exs. B. 21'and b. 22 along with the plaintiff evidencing the retirement but contended that those deeds exs. B. 21 and b. 22 were not filed before the income tax officer as it was agreed that as and when the amounts due to the plaintiff and to him are paid they should be deemed to have been retired and he received the full consideration in 1973 and he also learnt that the plaintiff also was paid the amount due to him and he is an unnecessary party and the suit may be dismissed against him.
(4) The 5th defendant remained ex parte. The trial court framed only four issues: (1) whether the plaintiff retired from the partnership, m/s. Vijaya mahal, nellore from 1. 4. 1970, (2) whether the plaintiff's claim is barred by limitation? (3) whether the plaintiff is entitled to dissolution and accounting of the partnership? (4) to what relief?
(5) As the plaintiff denied the attestation of exs. B. 21 and b. 22 the documents were sent to the expert and the expert was examined as d. W. 4. The court below found that the attestation of the two documents by the plaintiff is proved but held that the plea set up by the defendants that the plaintiff was paid his share and the account was settled is not true and cannot be accepted and hence the plaintiff continues to be the partner of the firm and consequently decreed the suit for dissolution as prayed for. It also held that the plaintiff's suit is not barred by limitation. Against the said judgment and decree the defendants filed the above appeal. The 5th defendant who remained ex parte also joined the appellants in this appeal.
(6) It is in evidence to show that the partners are closely related and the 1st defendant and the plaintiff are sons by sisters. The plaintiff's family and the defendants' family were members of a composite family for a long time till the division took place in 1955 and both the families are having two ventures one vijaya mahal and vijaya laxmi talkies evidenced by exs. B. 7 and b. 19 respectively. Defendants 2 and 3 are the sons of defendant no. 1. Defendants 4 and 5 are brothers and they gave their sister to the 2nd defendant in marriage and the 6th defendant is the father - in - law of the 3rd defendant. Lt is also in evidence to show that the firm carrying on the business in vijaya laxmi talkies was reconstituted on 14. 4. 71 with effect from 1. 4. 71 on the same day when the firm carrying on the business in vijaya mahal was reconstituted as evidence by ex. B. 21 and defendants 1,2,4 and 5 gave up their rights in vijaya laxmi talkies, and the plaintiff and his son and daughter - in - law alone have become the sole partners of that firm and similarly according to the defendants the plaintiff gave up his share in vijaya mahal and defendants 1,2,3,5 and m. S. Reddy became partners in vijaya mahal. It is natural in the normal course of events that each family may think of owning these cinema halls separately.
(7) .the learned counsel for the appellants sri ramachandra reddy urged that once the court below found exs. B. 21 and b. 22 are true and the plaintiff is bound by the recital and has got knowledge of the contents of those documents and is estopped from contending that he did not retire from the partnership firm and consequently even assuming that the finding of the trial court that the accounts were not settled, and no amount was paid to the plaintiff as per the agreements exs. B. 21 and b. 22 is true, the remedy of the plaintiff is only to ask for accounting but not for dissolution.
(8) Sri ramana reddy, the learned counsel for the plaintiff contended that exs. B. 21 and b. 22 are not true and that even assuming that they are true, in view of the finding that no amount was paid and no account was settled, there cannot be any cessation of jural relationship and his client continued to be a partner and hence a decree for dissolution is valid.
(9) Sri ramachandra reddy relied upon three judgments of the madras high court in ramaswamy sounder v. Anantapadmanabha iyer, (1971) 1 mlj 392; muthian v. Peter nadar, (1974) ii mlj 404 and jayarama chandra iyer v. Thulasi ammal, (1975) 2 mlj 167: 88 lw 549: a. I. R. 1976 mad. 17 in support of his contention that if the attestor of a document has an existing interest in the property dealt within the document it has always been treated by courts that the attestation has been taken in order to bind him as to the correctness of the recitals therein. It is true that in the earlier judgments of the madras high court in kandasami v. Nagalinga, (1912) 23 mlj 301: ilr 36 mad. 564 and narayana v. Rama, (1913) 25 mlj 219: ilr 38 mad. 396. Sadasiva ayyar, j. Referring to the practice in the presidency of taking the attestation from a person in order to bind him regarding the recitals in the deed observed:
"i am also of opinion that having regard to the ordinary course of conduct of indians in this presidency, attestation by a person who has, or claims, any interest in the property, covered by the document must be treated prima facie as a representation by him that the title and other facts relating to title recited in the document are true and will not be disputed by him as against the obligee under the document"
(vide kandasami v. Nagalinga, (1912) 23 mlj 301= ilr 36 mad. 564
(10) However this dicta is very much shaken in view of the judgment of the privy council in pandurang krishnaji v. Markandeya tukaram, ilr 49 calcutta 334: lr 49 ia 16= 42 mlj 436= 15 lw 486= air 1922 pc 20 wherein their lordships observed:
"before their lordships consider the circumstances in which that attestation took place, they think it is desirable to emphasize once more that attestation of a deed by itself estops a man from denying nothing whatever excepting that he has witnessed the execution of the deed. It conveys, neither directly not by implication, any knowledge of the contents of the document, and it ought not to put forward alone for the purpose of establishing that a man consented to the transaction which the document effects. It is, of course, possible, as was pointed out by their lordships in the case of benga chandra dhur biswas v. Jagat kishore chowdhuri, (1916) ilr 44 cal. 186: l. R. 43 i. A. 249;
31 mlj 563=
4 lw 458=
air 1916 pc 110 that an attestation may take place in circumstances which would show that the witness did in fact know of the contents of the document, but no such knowledge ought to be inferred from the mere fact of the attestation."
It is further observed adverting to the practice of obtaining such attestation:
"if in fact there be a practice, as is suggested from the evidence, that when the consent of parties to transactions is required, it can be obtained by inducing them by one means or another, to attest a signature of the executing parties, the sooner that practice is discontinued the better it will be for the straight forward dealing essential in all business matters."
So it is clear the attestation by itself is not sufficient to impute the knowledge of contents; muchless the consent. In fact the earlier judgments of the privy council in h. K. Bhagat v. Kashi pershad, (1915) 42 i. A. 64= 28 mlj 565= 2 lw 219= air 1914 p. C. 90 and banga chandra v. Jagat kishore, (1916) 43 ia 249=31 mlj 563= 4 lw 458= air 1916 p. C. 110 held that mere attestation does not necessarily import concurrence or consent on the part of the attestor of the contents of the deed. So by independent evidence it must be established the attestor has knowledge of the contents of the deed and the attestation is one of the circumstances to prove such knowledge and consent. (see bhagwan singh v. Ujagar singh, (1928) 54 mlj 254= 27 lw 672= air 1928 pc 20. This court in gangadhara rao v. G. Gangarao, ilr (1970) ap. 933: air 1968 a. P. 291 also held that when a person attested the document with full knowledge of its contents the principle of estoppel can be invoked.
(11) It is admitted that the auditor is common for the. Plaintiff and the defendants and he was examined as d. W. 3 in the case. It. Is he who has furnished the draft of exs. B. 21 and b. 22 and also ex. B. 20. Both in exs. B. 20 and b. 21 the same method of obtained the signatures of retiring partners was adopted. Ex. B. 21 was attested by the plaintiff and 4th defendant, the retiring partners. Similarly ex. B. 20 was attested by defendants 2 and 4. The plaintiff attested not only ex. B. 21 along with 4th defendant but also attested ex. B. 22 an 9. 11. 1971 which recited his retirement along with 4th defendant. - he admitted having come to the knowledge of the subsequent partnership deed prepared by the same auditor as per ex. B. 26 he did not question him and did not enquire about the change in the firm's pattern and hence we have no doubt that the signature of the plaintiff is due to the consent secured from him independently and the evidence and other surrounding circumstances show that the attestation was taken in order to secure his consent. Instead of figuring as a party to the documents we find in exs. B. 20, b. 21 and b. 22 the peculiar method of the retiring partners figuring as a witness seems to have been adopted by the* auditor - adviser while reconstituting the firm of vijaya mahal and vijaya laxmi talkies. Hence we hold that the plaintiff has agreed to sell his share and the agreement is binding on him and it was affirmed twice both in exs. B. 21 and b. 22.
(12) The court below directed enquiry on the question whether the plea of settlement of accounts raised by the defendants is true or not. It found categorically that plea is not proved. It also found that no payment was made to the plaintiff. In fact as already stated that finding was not challenged before us by the learned counsel for the appellants. There is no recital of consideration agreed to be paid or payable towards the share of the plaintiff either in ex. B. 21 or b. 22. The registered notices also do not state the consideration for which the shares were sold. The written statement of the 2nd defendant who is the managing partner also did not state the consideration for which the plaintiff's share was agreed to be sold. In view of these circumstances the , evidence of the managing partner was rightly rejected by the court below when he stated that the amount was paid and we have to proceed on the basis that the plaintiff's account was not settled and consequently he is entitled for the accounting and also for delivery of his share.
(13) The question of limitation also was not challenged before us.
(14) The next question would be whether it is permissible under law to grant a decree to the share of the particular partner without dissolution.
(15) It is true the partnership act makes no provision for the separation of the share of the retiring partner and the intention of the farmers of the act appears to be that it shall be determined by agreement between the partners. A partner who is not a minor and has not obtained agreement of the other partners to severance of his share, can only secure separate possession of his share by seeking dissolution. (see ajudfiia pershad ran pershad v. Sham sunder, a. I. R. 1947 lahore 13. It is pertinent to note a passage from lindley on partnership. Thirteenth edition, page 440 to the same effect. "in the absence of a special provision enabling a partner to retire, there is no method by which he can do so without a general dissolution and winding up of the firm; unless, of course, some agreement can be made between all the partners at that time of retirement". It is useful to refer in this contention clause 12 of the partnership deed dated 15. 8. 1962 ex. B. 7 in the case. It states "that no partner shall be entitled to sell, transfer or otherwise without the previous written consent of the other partners, to any outsider, but any partner may transfer or sell or alienate his share to any other partner of this partnership without the consent of the remaining partners". Thus the deed also envisages sale of the share of one partner to othe. R partners.
(16) Once we hold that the retirement was obtained by consent of all partners section 32 (a) of the partnership act is attracted and a retirement with the consent of all the other partners can be effected without dissolution. The failure on the part of the remaining partners to settle the accounts of the retiring partner would make them liable for the decree for accounting. As held by the supreme court in laxidas dayabhai v. Nanabhai, (1965) 1 scj 1= (1964) 2 scr 567= air 1964 sc. Ll, section 37 of the act lays down the substantive law relating to the liability of surviving or continuing partners who carry on the business without settling the accounts of the retiring partner. Hence we do not see any infirmity in granting a decree for accounting including delivery of the share of the plaintiff without dissolution of the firm as such.
(17) In fact we have adjourned the case to enable the parties to come to an agreement regarding the value of the share of the plaintiff and also the amount due to him towards profits. But since there is no agreement between the parties, we have to proceed to out judgment.
(18) The defendants having raised the plea that there cannot be dissolution but the plaintiff can only ask for accounting, cannot escape the liability to pay his share and also settle the accounts. They cannot have the cake and eat it too. Hence we have no hesitation to pass a decree for directing delivery of the share of the plaintiff.
(19) One m. Subbareddy to whom the plaintiff is said to have agreed to sell his share filed an application in this appeal to implead him as a party respondent. As he is not a party in the trial court we have dismissed the same. Now as we are directing a preliminary decree for accounting we direct the trial court to implead him as a party - defendant in the suit if the other defendants agree with prejudice to the rights of the plaintiff to enforce the decree against the original defendants so that the said subbareddy may share the burden along with the other defendants if the other defendants are so willing.
(20) Accordingly, we set aside the decree directing accounting against defendants 1 to 5 and also for the payment of the value of the plaintiff's share of 25% in the suit firm. The court below should determine the value of the share of the plaintiff. The learned counsel for the plaintiff - requested to give a direction regarding the date on which the valuation of the plaintiff's share shall be arrived at. However, as we are directing the trial court to make enquiry into valuation we shall direct the trial court itself to decide that question under the facts and circumstances of the case taking into account that his share was not paid till now. The plaintiff is entitled to interest at 6% per annum from the date of the final decree till the date of payment. No relief is granted against the 6th defendant and the suit is dismissed against him without costs. The appeal is allowed in part accordingly. We make no order as to costs. Appeal allowed in part.