UNIT-II

THE INDIAN PARTNERSHIP ACT, 1932

The law of partnership is contained in the Indian Partnership

Act, 1932, which came into
force on 1st Oct., 1932.This is based on the English Law on the subject
as contained in the
Partnership Act, 1890. The main principles arethe same. The most im
portant change is regarding provision for registration of firms.
Definition and Nature of Partnership : Section
4 of the Partnership Act defines Partnership as the relation
between persons who have agreed to share the profits of a business
carried on by all or any of themacting for all. The English Partnershi
p Act defines Partnership
as the relation which subsists between personscarrying on busines
s in common with a view
of profit. If we elaborate we find this definition points out thefollo
wing essential elements of partnership:
1. There must be at least two persons.
2. That it is the result of an agreement.
3. That it is organised to carryon a business.
4. That the persons concerned agree to share the profits of the busin
ess.
5. That the business is to be carried on by all or anyone of them act
ing for all.
1. Association of at least Two Persons: In order to constitu
te a partnership legally there
must be anassociation of at least two persons. Regarding the ma
ximum number of Partners
in a firm Sec. II of theCompanies Act provides that the number of
partners in a firm carrying
on banking business should notexceed 10 and in any other busin
ess 20.
2. Agreement: According to Section 5 a partnership is created by
contract and not by
status. It ishowever, not necessary that there should be a very for
mal or written agreement.
The agreement to createa partnership may as well arise from the
conduct of the parties
concerned. Where, the parties agree toenter into partnership at so
me future date, the relation
of partnership does not arise until that date.
3. Business: A partnership can be formed only for the purpose of
carrying on business. Business includesevery trade, occupation and
profession. The word business generally conveys the idea of running
businessinvolving numerous transactions. The business to be carri
ed on by the firm must be legal.
4. Sharing of Profits: The word Partnership is derived from the
word to part which
means to divide.Thus division of profits is an essential condition
of the existence of a
partnership. The object ofpartnership should be to make profits a
nd distribute among the partners.
5. Mutual Agency: The business of partnership may be carried o
n by all or anyone of
them acting for all.Thus, if a person carrying on the business acts
not only for himself but
for others also, so that they standin the position of principles and
agents, they are partners.
It is not necessary that all of them shouldactively participate in th
e affairs of business. The necessary element is that the business
must be carriedon, on behalf of all the partners.
Test of Partnership: In a partnership, all the elements mentioned
above must be present.
Thus, althoughsharing of profits is a strong evidence of the existen
ce of partnership, yet the
true test is the element ofagency. For this reason, creditor who
advances money on the
understanding that he would have a sharein the profits of business
in lieu of interest is not
a partner. Similarly, an employee getting a share ofprofits as a pa
rt of his remuneration, or
the seller of goodwill of the business receiving a portion of theprofit
s, is not a partner. In all these cases the third element of
partnership, namely, agency is absent.A creditor or an
employee or the seller of the goodwill cannot bind the firm by the
ir actions, can be calledpartners. Thus, in the absence of definite pa
rtnership agreement the Court, in order to determine the existenceo
f partnership, must take into account all the relevant circumstance
s, such as,
the conduct of parties; themode of doing business; who controls t
he property; the mode of keeping accounts; the manner of dist
ribution of profits; evidence of employees and correspondence
.
To sum up, for determining the existence of partnership, the foll
owing must be considered: (1) Theremust be an agreement-
oral or written;
(2) the agreement must be to share the
profits ;
(3) those profits must arise froma busine
ss; and
(4) that business must be carried on by all or anyone of them acting
for all.
Partnership distinguished from othe
r Associations
Partnership and Co-ownership : Co-
ownership means joint ownership. A and B jointly
buy a horsefor their riding. They are co-
owners of the horse and not partners.
(1) Co-
ownership is not always the result of agreement. It may arise by the oper
ation of law or from status, e.g., co-
heirs of a property, persons to whom property is jointly, given.
Partnership, on the other hand, is necessarily theresult of agreement, exp
ress or implied.
(2) Partnership necessarily involves working for profit. Co-
ownership does not.
(3) One co-owner
can, without the consent of the others, transfer his rights and interest t
o stranger; a partner
cannotdo so without the consent of all the partners (4) A partner is the age
nt of the partnership to bind the firm. A co-
ownerhas no implied authority to bind the other co-owners.
(5) Partnership always implies a business. Co-
ownership can exist without any business, e.g.,
joint ownership of aresidential house.
(6) A partner, being an agent of other partners has a
lien on the partnership property. A co-
owner has no such lien onthe joint property.
Partnership and Company :
The points of distinction between the two may be summed
up as follows :
1. A company comes into existence after registration under the Co
mpanies Act. In the
case of partnership,registration is not compulsory.
2. The maximum number of persons required to form a company is seven
in the case of public company and two in thecase of a private company.
A partnership can be formed with two persons.

3. A public company may have any number of members. A

private company cannot have
more than 50 members. Apartnership carrying on banking business cannot
have more than 10
members and a partnership carrying on any otherbusiness cannot have mor
e than 20 partners.
4. A company is regarded by law as a single person separate from the m
embers, who
constitute it. It has a legalpersonality. The partnership is a collection of
partners. It is not a
legal entity and has no rights and obligationsseparate from its partners.
5. The property of a partnership is the joint property of the partne
rs. Each partner has
authority to bindthe firm by his acts. The property of a company b
elongs to the company. A
shareholder in his individualcapacity cannot bind the company by
his acts.
6. A company has perpetual succession. The death or insolvency of
a member does not affect its existence.A partnership firm, in the
absence of a contract to the contrary, comes to
an end when a partner dies orbecomes insolvent.
7. The liability of partners for the debts of the firm is always unlimited.
The liability of the members of a company isusually limited.
8.
The creditors of a partnership firm are creditors of the individual par
tners, and a decree
obtained against afirm can be executed even against the individual
partners. The creditors of
a company are not creditors ofindividual shareholders. A decree obt
ained against a company
can be executed only against the company,and not against the sh
areholders.
9.
A partner of a firm cannot transfer his interest in the firm to an out
sider and make the
transferee apartner without the consent of all the others. A shareh
older of a company can
transfer his shares and thetransferee can become a member of th
e company.
Partnership and Joint Hindu Family Firm.
A joint Hindu family which carries on a
business handed down from its ancestors is called a Joint HinduFa
mily Firm. The interest in
the business passes by survivorship to the surviving members, and
everymember acquires by
birth an interest in the profits and assets of the business. This i
s not partnership,but a co-
parcenery, a relationship created by Hindu Law, and each member
is called a co-parcener.
Thepoints of distinction between Hindu family firm and a partnershi
p may be enumerated as follows:
1. A partnership is created by agreement: A Joint Hindu family firm
comes into existence
by operation of law.Membership of joint family firm is the result of
status, i.e. position of
the person concerned as member ofa joint family.
2. In a partnership, the death of a partner dissolves the firm, the death
of a coparcener does not dissolve the jointfamily firm.
3. In a joint family firm only the manager or Karta has authority to bind t
he members by his acts, in a partnership eachpartner can do this.
4. In a partnership every partner is personally liable to an unlimited exte
nt for the debts
of the firm. In a joint Hindufamily firm, only the Karta has unlimited lia
bility. The other
members are liable only to the extent of their sharein the joint family
business. Minor members are not liable.
5. Minor members of a joint family are members of the firm from the dat
e of their birth.

In a partnership a minor cannot be a partner, as a partnership is the re

sult of an agreement
and a minor does nothave capacity to enter into a contract.
6. The partners have a right to demand accounts of the partnersh
ip firm, a co-partner
cannot ask for anaccount of past dealings; his only right is to ask f
or partition of the assets of the firm.
7. A partnership is governed by the Partnership Act; a joint Hindu fa
mily firm is governed by Hindu Law.
Partnership and Club. A club is an association of persons for
med for social purpose.
It is not formedfor gain and is not, therefore, a partnership. A clu
b differs from a partnership in the following respects :
1. A club is not a business, and there is no motive of earning profi
ts and sharing them.
A partnership isformed to carry on business and to share profits of
the business. A club may
be having profit by running aclub canteen but it can not be called
partnership because its
object is not to carry on a business and shareits profits.
2. A member of a club is not the agent of the other members and
so members of a club
are not liable foreach others acts. A partner is an agent of the othe
r partners and all partners are liable for the acts of apartner.
3. A member of a club is not liable for the debts of the club, but a part
ner is liable for the debts of the firm.
4. The death or resignation of a member does not affect the exist
ence of the club. The death or insolvencyof a partner dissolves th
e firm .5. A member of a club has no transmissible interest in the
club so that onhis death his
heirs cannot claim to inherit any of his rights. A deceased partner
s heirs inherit his interest inthe partnership firm.
FORMATION OF PARTNERSHIP
In a contract of partnership all the elements of a valid contract must be
present. There
must be free consent,consideration, lawful object and the parties must
have capacity to
contract. Thus an alien friend can enter intopartnership, an alien enemy
cannot. A minor is
not competent to be a partner. A minor can, however, be admitted tothe b
enefits of partnership,
if all the partners agree to do so.A partnership agreement may be oral o
r it may beimplied or inferred from the conduct
of the parties. When it is reduced to writing it is incorporated in a docu
mentknown as the
Deed of Partnership or Articles of Partnership. The deed must be stampe
d according to the
provisions ofthe Stamp Act. Thereafter, the firm may be registered with
the Registrar of
Firms, although registration is notcompulsory. Because of the disabilitie
s suffered by an unregistered firm, it is advisable to register every firm.
According to S.58 the registration should be made in the form of a S
tatement signed by all the partners andgiving :
(1) the name of the firm;
(2) the principal place of business of the firm;

(3) name of the other place (if any) where the firm
carries on business;
(4) the date on which each partner joined the firm;
(5) the names in full and addresses of the partners;
(6) the duration of the firm. Furthermore, every change in th
e names and addresses of
the partnersor place of business should be notified to the R
egistrar of Firms from time to time.

REGISTRATION OF A FIR
M
Effect of Non-
registration of a Firm: Unlike English law registration is optional
under
Indian PartnershipAct, But it becomes indirectly necessary, so that i
f a firm is not registered, the following consequences willensue :
1.
A partner of an unregistered firm cannot file a suit against the fir
m or any partner to enforce a right arising from a contract o
r conferred by the Partnership Act [S.69(1)] Where A, B, C and
Darepartners in an unregistered firm. D is wrongfully expelled from t
he firm by the rest of partners. D can not filea suit for his wrongful
expulsion, the only remedy available to him is to file a suit for the
dissolution of firm.
2.
An unregistered firm cannot file a suit against any third party to
enforce a right
arising from acontract. [S. 69(2)]. This clause does not prohibit an
unregistered firm
to enter into contract with thirdparties, the bar is only against taki
ng action against
third parties. However, the third parties are free to takeaction agai
nst unregistered partnership.
3.
An unregistered firm cannot claim a set off above Rs.100 in a suit
[S.69(3)]. According to Section 69of the Partnership Act the non-
registration of a firm does not affect the following :
1. The right of a third party to sue the firm or any partner .
2.
The right of a partner to sue for dissolution of the firm or fo
r settlement of accounts
if the firm isalready dissolved or for his share of the assets
of the dissolved firm.
3.
The right of an unregistered firm to sue to enforce a right a
rising otherwise than out
of contract,e.g., for an injunction against a person wrongfull
y using the name of the
firm; or for wrongfulinfringement of a trade mark. Registrati
 on is not necessary for
a suit in respect of tort committedby a partner.
4.
The power of an Official Assignee or Official Receiver to real
ise the property of an insolventpartner.
5. A suit or set-off not exceeding Rs. 100 in amount.
6.
The rights of firms or partners of firms having no place of busi
ness in India.
Registration Time: An unregistered firm can get itself registe
red at any time before it
is actuallydissolved. But in any case it should be registered before
filling a suit in the court,
otherwise the court willreject such suit. In order to institute a su
it, not only the firm must

be a registered one, but all the partners suing must also be shown as p
artners in the register of firms.
Example: A partnership firm consisting of A, Band C as partners
was formed and it
commenced itsbusiness before getting itself registered. The firm fil
led a suit against X for
a claim of Rs.5000 for goodssupplied to him and immediately after
filling the suit, the firm
was registered. The court will dismiss the suitbecause the firm was
unregistered at the time
of filling the suit.But where a suit is dismissed because of the non-
registration of a firm or it is with-drawn
before it is dismissed by the court, the firm can subsequently get itselfreg
istered and file the
suit again provided the suit has not become time barred.

Firm and Firm Name: Persons who have entered into partnership
with one another are
called individuallypartners and collectively a firm, and the na
me under which their
business is carried on is called thefirm name (Sec. 4).A firm is no
t an artificial and legal person like a company. It is merely a collective na
me for thepartners. It is just a convenient way of describing the partn
ers. The rights and obligations of the partnership firmsare really the rig
hts and obligations of the partners constituting it.
Duration of Partnership: The parties may fix the duration of th
e partnership or say
nothing about it.Where the partners decide to carry on the busines
s for a certain period of
time, it is called a partnershipfor a fixed period. When the period
is over, the partnership
comes to an end. Where the partnership isformed for the purpose
of carrying on particular
venture, it is called a particular partnership. It comes toan end
on the completion of the
venture. It is also open to partners to say nothing about the dur
ation orto agree that the
business shall be carried on not for a fixed period, but so long as t
he partners are inclinedto
carry it on. Such a partnership is called Partnership at will. It is
dissolved by notice by a partner to hiscopartners.

Partnership Property: The property of the firm includes (i) all pr

operty and rights and
interests inproperty originally brought into the stock of the firm,
or subsequently added
thereto; (ii) the propertyacquired in the course of the business wit
h money belonging to the
firm; (iii) the goodwill of the business,the property of the firm is ac
quired to be used by the
partners for the exclusive use of the firm.
Examples of Partnership Property
(a)
A partnership is formed with A, Band C as partners. A contributes to the
stock of
the firm a plot of land. B amotor lorry and C the sum of Rs.10,000. Subse
quently,
the firm purchases, out of its earnings, a house. All theseproperties and th
e goodwill of the business are properties of the firm.
(b) A colliery owned by A was taken on lease by a firm consisting
of A and B as partners
and was worked.The profits were shared by the partners. The collie
ry was taken to
be property of the firm for the timebeing. But if the colliery were o
nly worked in partnership by
A and B who shared profits of the venture, thecolliery remained the
property of A, and did not become the property of the firm.

Partnership Deed. The agreement creating partnership may be e

xpress or implied, and
the latter may beconcluded from the conduct or the course of deali
ngs of the parties or from
the circumstances of the case.But it is in the interest of the partner
s that the agreement must
be in writing. The document which containsthis agreement is calle
d Partnership Deed. It
contains provisions relating to the nature and principal place ofbusin
ess, the name of the firm,
the names and addresses of the partners, the duration of the firm,
profitsharing ratio, interest
on capital and drawings, valuation of goodwill on the death o
r retirement of a partner,
management, accounts, arbitration, etc. The Indian Stamp Act, 18
89, requires that the Deed mustbe stamped.
Who can become a partner
Any person who is competent to contract can enter into partnershi
p agreement. The position of followingpersons need special considerati
on :
1. Minor: A minor is not competent to contract, hence he ca
n not enter into partnership
contract. However he may be admitted to the benefits of
partnership, if all the partners agree to do so.
 2. Alien: An alien enemy can not be partner in an Indian fir
m.
3. Person of unsound mind: A person of unsound mind,
not being competent to
contract cannot enter into a partnership contract.
4. Company: A company, if authorised by its articles of as
sociation can enter into
partnershipbecause it is a person competent to contract in
the eyes of law.
5. Firm: A firm can not enter into partnership contract. If
a firm, at all enters into
partnership inthat case, the members become partners in
the other firm in their individual capacity.
Position of a Minor admitted as a partner to the Benefits of
Partnership
We have seen earlier that partnership results from a contract. Co
nsequently, a minor
cannot enter into acontract of partnership as an agreement by a mi
nor is void. It follows that
a minor cannot become a partner,nor can a partnership be created
with a minor as a partner.
But if all the partners agree a minor may beadmitted to the benefi
ts of an already existing
partnership firm. It should be remembered that even aftersuch ad
mission the minor does not
become one of the group of persons called the firm.
Section 30 of the Partnership Act lays down the rights and liabilities
of a minor admitted to the benefits of apartnership as follows :
1.
The minor has a right to such share of the property and of t
he profits of the firm
as may beagreed upon by the partners.
2.
The minor has access to and inspect and copy any of the ac
counts of the firm.
3.
The minor is not personally liable for the debts and obligations of
the firm although
his share inthe profits and of the assets of the firm will be liable
for the same.
4. So long as the minor continues to be in the firm, he cannot file a
suit against the other partners for an account or for the payment
of his share of the property or profits of the firm. He can file s
uch a suitonly when he wants to severe his connection with the firm.

5. At any time within six months of his attaining majority, or of his obtain
ing knowledge
that he had been admitted tothe benefits of partnership, whichever d
ate is later, the minor
has to elect either to become or not tobecome a partner in the fir
m. Such election may be
made by a public notice. If he gives no notice to this effect heshall beco
me a partner in the firm on the expiry of the said six months.
6. A minor who thus becomes a partner will become personally liabl
e for all debts and
obligations of the firmincurred since the date of his admission to the be
nefits of partnership.
7. Where the minor elects not to become a partner the following rul
es will apply:
(a)
His rights and liabilities continue to be those of a minor upto the
date on which he
gives public notice to notto become its partner.
(b) His share will not be liable for any act of the firm done af
ter the date of the notice.
(c)
He can sue the partners for his share of the property and profits of
the firm.
Classes of Partners
A person who deals with a firm would like to know who are the partners
, and to what
extent they are liable to himfor his claim against the firm. The position
of different classes of partners may be examined as follows :
Actual Partner: A
person who has by agreement become a partner and who takes act
ual
part in the conductof partnership business is an actual and workin
g partner. He is the agent
of other partners for the purposesof the business. All his acts in th
e ordinary course of the
business bind him and the other partners to thirdparties.
Partner by Holding Out: A person may, under certain circumstan
ces, be liable for the
debt of the firmalthough he is not a partner. If a person by words
spoken or written, or by
conduct represents himself orknowingly permits to be represented,
to be a partner in a firm,
he is liable as a partner in that firm toanyone who has, on the fait
h of such representation,
given credit to the firm (Sec. 28), So, where a personconducts him
self as to lend another to
believe that he is a partner, although really he is not, and on thatb
elief the other person gives
credit to the firm, he is deemed to be a partner by holding out.
(a)
A, B and C carry on a business for profit. C contributes neither l
abour nor money,
and does not receive anyshare of the profits, but his name is us
ed as a partner in
the firm. He is liable to every outsider who givescredit relying on
his being there as partner.
(b) Suresh carried on business in the name of the business
as Ram Saran and Co.,
employed aperson named Ram Saran to act as manager of
the business. Ram Saran
was regarded as partnerby holding out or estoppel.
The position of a partner by holding out is peculiar. He is liable to make
good the loss
which the person giving creditto the firm may suffer, but he has no claim
upon the firm. A
partner who has retired from the firm but allows the useof his name to co
ntinue with the firm
may become liable to third parties by the principal of holding out.Exa
mple: Pretired from a firm consisting of PX and R as its partners.
He failed to give
notice of his retirement. Afterhis retirement S joined the firm and
the firm continued its
business under the old name. One creditor fileda suit for the recov
ery of his debt after the
retirement of P. It was held the creditor could make P and hisco-
partners and R liable for his
debt on the principle of estoppel. But he can not file a suit against
P, X, Rand S, all of them
together.Dormant or Sleeping Partner: A person who is in reality
a partner but whosename does
not appear in any way as partner, nor does he take part in the m
anagement of the business,
and is not, therefore, known to outsiders as partner in the firm, is c
alled a dormant or sleeping
partner. Sucha partner is liable to third parties who gave credit t
o the firm even without
knowing of his being partnerbut subsequently discovering the fac
t. A sleeping partners
liability rests on his being in the position of anundisclosed princip
al.One important distinction exists between a sleeping and active partne
r with regard to liabilitytowards third parties.
A sleeping partner is responsible for the debts of the firm taken
during the tenure of hispartnership like an active partner. But his liability
ceases immediately
on retirement and he is not supposed to give anotice on his retirement
like other active partners.

Partners in Profits only: A partner may stipulate with his co-

partners that he will be
entitled to a certainshare of the profits without being liable for loss
es. But he will be liable
to outsiders for all debts andobligations of the firm.
Sub-
partner : Where a member of a firm agrees to share the profit deri
ved by him from the firm with astranger, there arises a sub-
partnership between him and the stranger. Such
stranger is said to be a sub-
partner, although he is in no way a partner in the original firm,
has no rights against it, nor he is liable forits debts.
Incoming Partner: A person who is admitted as a partner into an
already existing firm
with the consent ofall the partners is called an incoming or new part
ner. The incoming partner
does not become liable for anyact of the firm done before he bec
omes partner, unless he
agrees to be so liable. His liability commencesfrom the date of ad
mission as a partner.
Retired or Outgoing Partner: A partner who goes out of a firm in
which the remaining
partners continueto carry on the business is called retired or out
going partner; A retired
partner continues to be liable forall debts and obligations of the fi
rm incurred before his
retirement.A, B and C are partners and D is thecreditor of the firm. A
retires from the firm. A
remains liable to D. Two years after As retirement the firm becomesinso
lvent. A wil1 be
liable for the debts existing at the time of his retirement.A retired partn
er will be liable for alldebts incurred after his retirement if he fails to giv
e
proper notice of his retirement. In that case he is deemed to bea partne
r by holding out. A
retiring partner will also be liable to third parties for all transactions of
the firm beganbut
unfinished at the time of his retirement, even though notice of his retire
ment is given to third
party.A retiringpartner may, however, be discharged from the liability by
the consent of the
creditors. The remaining partners will beliable in such a case. This rule is
the application of
the general rule of the law of contract known as Novation.
 Right after retirement to share profits or interest -
(Sec. 37)
Where a member of a firm ceases to be the partner of the firm and the c
ontinuing partner
carry on the business withthe property of the firm without any final settl
ement of accounts,
i.e., without the share of the assets of theoutgoing partner being paid o
ver, or without his
interest being purchased by the remaining partners, the estate of thepartn
er is entitled to share
in the profit earned with the aid of the assets of such outgoing partner,
or interest at 6%per
annum at the option of the out going partner. The option to claim a sha
re of the profits or
interest can beexercised only when the accounts of the subsequent busin
ess are made. But
a claim both for share of the subsequentprofits as well as interest will no
t be allowed. Also,
once the outgoing partner has decided, then he will not beallowed to go
back on it, nor he
be permitted to claim profits for part of the period and interest for rem
ainingperiod.

Nominal Partner: If a persons name is used as a member of the

firm, although he is
not a real memberand not entitled to the share of profits of the fi
rm, is known a nominal
partner. Such a person is anecessary party only in cases of negoti
able instruments.
RELATION OF PARTNER
S Relation of Partners to OneAnother
The relation of partnership comes into existence by an agreement betwe
en the partners
and such an agreement usuallyprovides for the mutual rights and duties of
partners. The Deed
of Partnership usually contains the clauses with regard tothe conduct and
management of the
business, the contribution of capital by each partner, the proportion in w
hichprofits are to be shared, and the rights and duties of the partners i
n the business. If there is no writtenpartnership agreement, their relat
ions, will be governed by the course of dealing among themselves.
Wherepartners fail to provide for their relations the rules laid down in th
e Partnership Act
will apply. It should beremembered that the partners, relations whether
governed by written
articles of partnership or defined by thePartnership Act can be changed by
the consent of all the partners.
The Partnership Act lays down the rights and duties of partners as fo
llows :
Rights
1. Subject to any contract to the contrary, every partner has a right to
take part in the management of the business.
2.
Every partner has a right to be consulted and heard in all matters affectin
g the business
of the firm. In all mattersof importance and those affecting the policy
and nature of the
business or any change in the constitution of thefirm, all the partners
must agree, mere
majority will not be sufficient. But in ordinary routine matters the major
ityrule may apply.
3. Every partner, active or dormant, has a right of free access to all rec
ords, books and
accounts of the business andalso to examine and copy them.
4. Every partner is entitled to equal share in the profits, unless different
proportions are stipulated.

5. A partner who has contributed more than his share of the capital for t
he purposes of
the business is entitled tointerest at a rate agreed upon and where no rat
e is agreed upon, at6 per cent per annum. But a partner is notentitled t
o any interest on the capital subscribed
by him unless there is an agreement or a trade custom to thateffect exis
ts.
6. Subject to a contract to the contrary, a partner is entitled to be indem
nified by the firm
for all acts done by him inthe course of the partnership business, for all
payments made by
him to discharge the debts and liabilities of the firmand for expenses m
ade by him in an emergency.
7. Every partner is joint owner of the partnership property and is entitle
d to have the
property used exclusively forthe purposes of the partnership.
8. A partner has power to act in emergency for protecting the firm
form loss.
9. Every partner is entitled to prevent the introduction of a new partner
into the firm without his consent.
10. An incoming partner is not liable for any debts and obligations of the
firm incurred before he joined it, exceptingby his own consent.
11. Every partner has a right to retire from the firm.
12. Every partner has a right to continue in the partnership and not to b
e expelled from
it unless power of expulsionis provided in the partnership agreement.
13. Every outgoing partner has a right to carry on competing business, but
without using
the firms name and withoutsoliciting the customers. He may, however, a
gree not to do so for a specified period and within specified local limits.
14. Where a partner dies or otherwise ceases to be a partner because of
his retirement,
expulsion, insolvency,insanity, and the other partners carry on the busines
s with the property
of the firm without any final settlement ofaccounts, the estate of the dec
eased partner, or the
partner himself, as the case may be, is entitled to share in theprofit ear
ned with the aid of
the assets of the outgoing partner, or interest at 6 per cent per annum, if
so desired bythe legal
representatives of the deceased partner, or by the partner himself.
Duties of Partners
The relation of partners is based on mutual confidence and the law requir
ed that a partner
must act towards the otherpartners with the utmost good faith. In particu
lar, the Partnership Act provides for the following duties :
 1. Every partner must carry on the business of the firm to the greatest
common advantage.
2. Every partner must be just and faithful to the other partners.
3. A partner is bound to keep and render true, proper and correct ac
count of the partnership. He must permitthe other partners to inspe
ct such accounts and take copies of them. All money
of the firm that may come tohis hand must be handed over to the
firm.
4. Every partner is an agent of the other partners and as such is bou
nd to communicate
full information relatingto the business of the firm to the other partner
s.

5. Every partner is bound to indemnify the firm for any loss caused by
his fraud in
conduct of business. Also, if apartner commits a fraud on his co-
partner, he must indemnify him for any loss caused to him.
6. Every partner who is guilty of wilful neglect in the conduct of the bus
iness and the
firm suffers loss inconsequence, is bound to make compensation to the
firm and other partners.
7. Subject to a contract to the contrary, every partner is bound to share lo
sses equally with the others.
8. Every partner is bound to attend diligently to the business of the fir
m and in the
absence of an agreement tothe contrary, he is not entitled for any remu
neration; whether in
the form of salary, commission, or otherwise, onaccount of his own troubl
e in conducting the business of the firm.
9. In the absence of an agreement to the contrary, every partner is bound
to hold and use the partnership property forthe firm.
10.
A partner cannot make private gain by reason of his membership wi
th the firm. Thus,
where a partner inthe course of the business has received an infor
mation and uses it for his
personal gain as against theinterest of the firm, he must pay over
any benefits he may have obtained by the use of this information. H
ecannot bargain for a private gain from the customers of the firm.
11. No partner can carry on any business which is likely to compe
te with the business
of the partnershipexcept with the consent of the other partners. If
he does so, he shall have
to account for the profits ofsuch business to the firm, and also to
compensate the firm for
any loss sustained by his carrying on suchcompeting business.
12. Every partner is bound to act within the scope of the actual authority
conferred upon
him. If he exceeds hisauthority, he shall have to compensate the other
partners for any ensuing loss, unless they ratify his act.
13. No partner can assign or transfer his partnership interest to any other
person so as to
make him a partner in thebusiness. But a partner may assign his share in t
he profits and assets of the firm.
The assignee or transferee will have noright to ask for the accounts or to i
nterfere
in the management of the business. He can only share the actual profits.
On dissolution he
can ask for the share of the assets and also the accounts since the date
of dissolution.

Use of property of the firm exclusively for the firm. According

to Sec. 15, subject to
contract betweenthe partners, the property of the firm shall be hel
d and used by the partners
exclusively for the purposes ofthe firms business.

Personal profits earned. Subject to contract between the partner

s if a partner derives any
profit for himselffrom any transaction of the firm, or from the use o
f the property or business
connection of the firm or firmname, he shall account for that profit
and pay it to the firm.Secondly, if a partner carries on any business of
thesame nature as and competing with
that of the firm, then he shall account for and pay to the firm, all profits
made byhim in that business.
It is open to partners to determine by agreement amongst them as to w
hat shall be the
property of the firm andwhat shall be the separate property of one or m
ore of the partners.
Subject to a contract amongst the partners, theproperty of the firm incl
udes :
(a)
all property and rights and interests in property acquired by purchase or
otherwise, by or for the firm;
(b) all property and rights and interests in property originally bro
ught into the common stock of the firm;
(c)
all property and rights and interests in property acquired for the purpose,
and in the course of the business of thefirm;
(d) goodwill of the business of the firm.

SELF CHECK TEST

(a) A partner without the knowledge of his co-
partners obtains for his own benefit the
renewal of the lease of thebusiness promises of the firm. Will he be able
to enjoy the lease?
(b)
B and C were partners, and C was employed to buy sugar for the f
irm. C with Bs knowledge, sold hisown sugar to the firm at the mark
et price and made a considerable profit. Advise C.
(c)
Partnership Deed, signed by Band C, gave B power to introduce into the pa
rtnership
any of his son on their attainingthe age of 21, Bs son D attained 21 and B
proposed
to make him a partner. C refused to consent. Could C prevent Dfrom
being a partner?
(d)
A was a common partner is two firms publishing newspapers. He
communicated
information and newsof one firm to the other. Can he be prevented
from doing so?
(e)
A, B and C were partners in a firm By his wilful neglect and misconduct B
caused
serious loss to the business ofthe firm. After several warnings to B, A and
C passed
a resolution expelling B from the firm. B objects to his expulsion.Is he le
gally entitled to do so?
Answer :
(a) No, the lease so renewed was partnership property,
(b) C must account for to the firm for the profit made,
(c)
No, C could not prevent D from being introduced as a partner, as the pa
rtnership
deed signed by him and Boperated as a consent by both partners.
(d) Yes, A can be prevented by Injunction from doing so. He ma
y also be required to
compensate the firmfor any loss caused to it by his misconduct.
(e)
No, B cannot object to his expulsion by the other partners. He has miscond
ucted and
caused serious loss to the firmand, in spite of several warnings, has not m
ended his ways.

RELATION OF PARTNERS TO THIRD P

ARTIES

Power of partner to bind the firm: Every partner is the agent

of the firm and his
copartners for thepurposes of the business of the firm. When two
or more persons agree to
carry on a partnership businessand share its profits, each is a prin
cipal and each is an agent
for the others. Each is bound by the otherscontract in carrying on
the business, just as a
single principal would be bound by the acts of an agent. Theprincip
al of agency governs the
relationship between the partners. It is because of this that the la
w ofpartnership is said to
be a branch of the law of agency.The authority of a partner to act on
behalf of the firmmay either be express or implied.
Any authority which is expressly given to a partner by agreement of par
tnership iscalled
Express Authority. The firm is bound by all acts done by a partner by virt
ue of any express
authority given tohim. Implied Authority means the authority to bind the
firm which arises by implication of law-from the fact ofpartnership.

IMPLIED AUTHORITY OF A PART

NER

Section 19(1) and 22 read together provide that the act of a partner which
is done to carry
on, in the usual way,business of the kind carried on by the firm, binds the
firm, provided that
the act is done in the firm name or in anymanner expressing or implying a
n intention to bind
the firm. Such an authority of a partner to bind the firm is calledthe imp
lied Authority of a
partner.Therefore the test, to judge whether a transaction entered into b
y a partner comeswithin
his implied authority is quite simple. For successful application of this test
the following three
conditions must befulfilled. Absence of even one condition will vitiate th
e transaction and
will not come under the ambit of impliedauthority of a partner. These c
onditions are :
1. The nature of the transaction
ls to carry on business of the kind carried on by the firm?
2.
The manner in which the transaction has been transacted
Is it done in the usual way?
3. In whose name the transaction has been done-
ls it done in the name of the firm ?
Or is the intention to bind the firm clear?
 Every partner has an implied authority to bind the firm by the
following acts :
(1) He may sell the goods of the firm.
(2) He may purchase on the firms behalf goods of the kind
usually employed in the firms business.
(3) He may receive payment of the firms debts and
give receipt for them.
(4) He may engage servants for the partnership busi
ness.

(5) Accept, make and issue negotiable instrument (cheques, bills o

f exchange, promissory notes) in thefirms name.

(6) Borrow money on the firms credit and pledge the firms go
ods to effect that purpose.
(7) Buy goods on credit for the firm.
(8) Engage and instruct an advocate in a suit by or against
the firm for a trade debt. (A trading firmis one which carries o
n the business of buying and selling of goods).
Examples :
(a)
A, the partner of a firm of confectioner, buys sugar on credit in the firm
name. The firm is bound to pay for thesugar.
(b) A, the partner of a firm of bankers, accepts a bill of exchange
on behalf of the firm
does not inform thefirm of this receipt and afterwards the money is
appropriated by
A for his own use. The firm is liable tomake good the payment.
(c)
A and B are partners. A, with the intention of cheating B, purchases on
behalf of
the firm. The goods were ofthe type used by the firm. He uses the good
s for his personaluse.
The firm is liable to pay for the price of the goods.If a partner pledges t
he credit of the firm for a purpose apparentlynot connected with the
firms ordinary business the firm is not bound unless he was specially aut
horised by other
partners. The partner is personally liable, although his act may subsequent
ly be ratified by the firm.
(a)
A, the partner of a firm of confectioners, buys a horse on credit in the fir
ms name.The firm is not bound to paythe price of the horse, as this act
does not fall within the scope of a confectioners business.
(b) B, the partner of a firm of solicitors, accepts a bill of exchan
ge on behalf of the
firm. The firm is notbound to pay the bill, as it is no part of ordina
ry business of
a solicitor to draw, accept or endorse bills ofexchange.

Limitations of Implied Authority of a Partner:

Section 19 (2) of the Partnership Act

expressly provides that in the absence of usage or custom of trade
tothe contrary the implied
authority of a partner does not empower him to :
(a) submit a dispute relating to the business of the firm to arbitration;
(b) open a banking account on behalf of the firm in his own name;
(c) compromise or relinquish any claim or portion of a claim by the firm;
(d) withdraw a suit or proceeding filed on behalf of the firm;
(e) admit any liability in a suit or proceeding against the firm;
(f) acquire immovable property on behalf of the firm; or
(g) transfer immovable property on behalf of the firm;
(h) enter into partnership on behalf of the firm.According to S.20 of the
Partnership Act, it is open to the partners byexpress agreement
to extend or limit the implied authority. The third parties will be bound b
y express limitation
onlywhen they have notice of such limitation or curtailment of the impli
ed authority.

According to sec. 21 a partner has authority to do all such acts during e

mergency which
are necessary to protect thefirm from loss. In such a case, the firm would
be liable even for the unauthorised acts of a partner.

Liability of Partner for Acts of the firm:

Section 25 of the Act lays down the general
rule that every partner is liable for all acts of the firm donewhile he
is a partner and that the
liability is joint and several.An act of the Firm is an act or commission
by allthe partners or by any partner or agent
of the firm which gives rise to a right enforceable by or against the firm
.Itfollows that all partners are liable jointly or severally for all acts or
commissions
binding on the firm. In order thatan act done may be an act of the firm an
d, therefore binding
on all and every partner, it is necessary that the partneror agent doing t
he act on behalf of
the firm must have done that act in the name of and on behalf of the f
irm andnot in his
personal capacity, and the act must have been done in the ordinary cours
e of the business of the firm.
Examples :
(a)
A, the partner of a firm of cloth merchants, buys cloth from a mill on cr
edit. This is an act of the firm and allpartners are liable to pay the pric
e jointly as well as severally.
(b) A, the partner in the above mentioned firm, orders on credit
5 cases of Kashmir
apples on his owninitiative, but sends the order on the firms letter
head and in the
firms name. The firm is not liable to payfor the apples, as the ord
er is not for the
purpose of the business of the firm of cloth merchants. A
ispersonally liable to pay.
Liability for Wrongful Acts of Partner: Every partner is liable fo
r the negligence and
fraud of the otherpartners in the course of the management of th
e business.
Examples :
(a) A, the partner of a firm, bribed the clerk of a rival firm
and obtained certain
confidential information.The firm was held liable for the wrongfu
l act of A.
 (b) A, the partner of a firm of taxi drivers, injures P by his n
egligent driving. The firm
was held liableto pay damages to P.
(c) A, the partner of a firm of jewellers, misappropriates Rs.10,0
00 which P had deposited with him forbuying gold and making o
rnaments. The firm is liable.

Dissolution of Partner
ship
OR Reconstitution of
the Firm

When there is a change in the relations of partners and the firm continues
as a new firm,
then it is called dissolution ofthe partnership or reconstitution of the firm
. Reconstitution of the firm may take place in various ways, namely;
(1) by admission of a partner,
(2) by retirement of a partner
(3) by expulsion of a partner,
(4) by insolveney of a partner,
(5) by death of a partner and
(6) by transfer of a partners share.

1. Admission of a partner (31)

A new partner can be introduced in a firm with consent of all the existin
g partners
of the firm. This is because therelations of partners are based on mut
ual trust and
confidence, as such, only that person can be admitted as a newpartner
who enjoys the
confidence of all the partners. A new partner can also be introduced in t
he firm if there
is acontract between the partners in this regard. Therefore, it means tha
t a new partner
can be admitted either with the consent of all the partners or in accord
ance with the contract. A new partner is also called incoming partner.L
iability of a new partner according to Sec. 31
(2), Subject to provisions of Sec. 30, a person who is introduced as a par
tner
into a firm does not thereby becomeliable for any act of the firm done be
fore he became
a partner. This means the liability of a new partner starts fromthe date o
f his admission.
However, the new partner may agree with his partners to be liable for th
e liability of the
firm incurred by the firm before the date of his admission. But such an
agreement is
finding only between the newpartner and existing partners, and does not
give any right
to the creditor to sue the new partner for part debts of thefirm. But a n
ew partner may
be made liable to the creditors of the firm for the past debts of the fir
m only, if,
(a) The new partners or the reconstituted firm should have assumed the
libility of the past debs.
(b) The creditors should be informed of the new arrangement. The
new partner becomes liable to those ofthe creditors who expressly
or impliedly accept the new arrangement.
2. Retiring partner
The retirement of a partner from a firm takes place when he lea
ves the firm. When a partner retire or withdraws from the firm and
the remaining partners continue with the
firm, reconstitution of the firm takes place. Apartner may retire fro
m the firm
(a) where all the partners give their consent to retirement.
(b) where it is a partnership agreement that a partner mig
ht retire without seeking the dissolutionof the firm.
(c) where partnership is at will, by giving notice to all other partn
ers of his intention to retire.
Liability of a retiring partner. This may be discussed under two h
eads
(i) Liability for the acts of the firm done before retirement.
Accoring to sec. 32 (2),
a retiring partnerremains liable to the creditors of the firm for all th
e acts of the firm
done by the firm done before the date ofretirement. In addition, he
will also be liable for all the transactions of the firm begun but remai
n unfinished atthe date of retirement.However, a retiring partner be di
scharged from such liabilities if there is an agreement
in thisconnection between the retiring partner, the remaining partners and
the creditors of the
firm. This agreement is called'novation'. But in order to discharge him fro
m the creditors by novation two things must be fulfilled
(i)
The remaining partners must have agreed with the retiring
partner to release him from existingdebts and liabilities.

(ii)
The creditors must be informed of the retirement and the new arr
angement. After
this the retiringpartner will be released from liability to the credit
ors who have expressely or impliedly agreed to release the reti
red partner and to accept the reconstituted firm as their debtor
. An implied agreementarises when a creditor
continues to deal with reconstituted firm after notice.

(iii) Liability for the Acts of the firm done after retirement (sec. 3
2 (3)The retiring partner remains liable to third parties for the
acts of the firm done after his retirement
until a public notice of his retirement given.This liability of the retir
ing partner is
based on the principle of holding out. But the act should be within
thescope of the
authority of the partner doing it. But the retiring partner is liable
only to those
persons whodeal with the firm under the assumption that the retir
ing partner was
still a partner. But he is not liable tothe third parties who have no
knowledge that
he was a partner. However, a public notice is not required incase
of a sleeping
partner and he will not be liable for the acts of the firm done after
his retirement.
Thisis because such a partner is not known to the third parties.
3. Explusion of a partner (sec. 33)
Ordinarily a partner cannot be expelled from the firm by any majority of t
he partners. But
the authority of expulsioncan be given to the majority only by an expres
s provision in the
partnership agreement. But this power of expulsioncan be exercised if th
ree conditions are satisfied. These conditions are :
(a)
the right of expulsion should be given to the partners by an express cont
ract,
(b) the power of explusion should be exercised by a majority of partne
rs,
(c)
the power should be exercised in good faith. The test of good faith is tha
t, first, the
expulsion must be in theinterest of the firm, two, that the partner to be
expelled is
served a notice and three, that he is given an apportunityto explain his
position.
Where the expulsion of a partner takes place without satisfying any of t
he conditions
mentioned above, the expulsionis irregular. In such a case, the expelled
partner may either claim re-
instatement as a partner, or sue for the refundof his share of capital and
profits in
the firm. An irregular expulsion is ineffective and inoperative and the ex
pelledpartner does
not cease to be a partner. But while expelling a partner it must be ensur
ed that all the three
conditionshave been satisfied to make it a proper and regular expulsion. T
hen the rights and
liabilities of an expelled partner arethe same as those of a retired partn
er.
4. Insolvency of a Partner (sec. 34)
Where
a partner in a firm is declared insolment, he remains no more a partner on
the date
on which the order ofdeclaring him insolvent is made, whether the firm is
thereby dissolved
or not. The other effects resulting from theinsolvency of a partner are :
(a)
The firm is dissolved on the date of order of insolvency but the partne
rs may
specifically provide that on suchan event the firm shall not be dissolved.
(b) The estate of the insolvent partner shall not be liable for the
acts of the firm done
after the date ofthe order. A public notice of the order of adjudicati
ng insolvent is not required.
(c) the firm is not liable for the acts of the insolvent partner after the
date of order.
5. Death of a partner (sec.s.35 and 42 (c).
A firm is dissolved, subject to contract between the partners, by the death
of a partner.
However, when under a contractbetween the partners the firm is not disso
lved, the estate
of the deceased partner is not liable for any act of the firmdone after his
death. Further, no public notice is required of the death of a partner.
6. Transfer of a partners Interest (sec. 29).
A partner may transfer his interest in firm by sale, mortgage or charge
. But the
transfree is not entitled tointerfree in the conduct of the business of the
firm, to require
accounts of the firm and to inspect the books of thefirm. When the partne
r transfers the
share, the transferee only becomes entitled to receive the share of profit
of thepartner
who has transfered his share. But he has to accept the account of profits
provided by the
partners. [Sec. 29 (1)]If the firm is dissolved or if the transfering partner
ceases to be a partner, the transferee
is entitled to receive thetransfering partners share in the assets of the fir
m. For knowing
that share, he is entiled to an account from the dateof dissolution. [sec.
29 (2)]
DISSOLUTION OF FIR
M
Dissolution of a firm: Dissolution of a firm means the end of a fir
m by the break up of
the relation ofpartnership between all the partners But where the r
elation between only some
partner is broker it is calleddissolution of partnership. For example,
where A, B and C were
partners in a firm and A died or retired orwas adjudged insolvent, t
he partnership firm would
come to an end. But if the partners had agreed thatdeath, retireme
nt or insolvency of a partner would not dissolve the firm, then
on the happening of any of these contingencies the partnershi
p would certainly come to an end, but the firm might continueun
der the same
name. It would be a reconstituted firm; for where A had gone o
ut of the firm on account
of any reason; the relationship between A, B and C is broken up
and a new relationship
between B and Cis created. Therefore, dissolution of partnership i
nvolves a change in the
relation of the partners, but itdoes not mean the end of the partn
ership firm.A firm may be dissolved on any of the following grounds :
1. By Agreement: A firm may be dissolved with the consent of al
l the partners of the
firm, partnership iscreated by contract. It can be terminated by co
ntract (S. 40).
2. By Notice: Where the partnership is at will, the firm may be dis
solved by any partner
giving notice inwriting to all the other partners of his intention to
dissolve the firm. The dissolution takes place from thedate mentio
ned in the notice, or, if no date is mentioned then
from the date of communication of the noticeto the other partners
(S. 43).
3. On the happening of certain contingencies: (S.42) : Subje
ct to contract between
the partners tocontinue the business in spite of the contingency, fi
rm is dissolved
(a)
if formed for a fixed term, by the expiry of that
term;
(b) if formed to carry out one or more adventures or undert
aking, by the completion thereof;

(c) by the death of partner; and

(d) by the insolvency of a partner.

4. Compulsory Dissolution: According to Section 41 the dissolutio

n of a firm is automatic under the following circumstances :
(a) If all the partners of a firm or if all the partners except one be
come insolvent, there
must necessarilybe dissolution of the firm. When a partner is decl
ared insolvent, then he
ceases to be a partner from thedate of such declaration, since, th
ere must be at least two
partners in a firm, if all partners or all thepartners except one beco
me insolvent then the firm is dissolved.
(b) By business becoming illegal : A firm is in every case disso
lved if the business of
the partnership isprohibited by law, i.e., the object for which the p
artnership was formed is
unlawful, or becomes illegal as aresult of some subsequent events
. This is by operation of
law. But if the firm is carrying on more than onebusiness, if one b
usiness becomes illegal the firm is not dissolved.
5. Dissolution through the Court (S.44) : At the suit of a partne
r, the Court may dissolve
a firm onanyone of the following grounds :
(a)
If a partner becomes of unsound mind. The suit for dissolution may be fil
ed by the next in kin of the insanepartner or by any other partner.
(b)
If a partner becomes permanently incapable, of performing his dut
ies as a partner,
e.g., he becomesblind, or paralytic, etc., The suit will be filed by a
partner other than the partner who has becomeincapable.
(c)
If a partner is guilty of misconduct which is likely to prejudice the busine
ss of the
firm, the court may dissolvethe firm at the instance of the other partners.
The Court
will order dissolution if the act complained of is likely toaffect the cre
dit and
customers of the partnership business. Gambling by the partner, misappli
cation of clients moneyby a solicitor are the examples of misconduct.
(d)
If a partner wilfully and persistently commits breach of the partne
rship agreement
regardingmanagement, and the other partners find it impossible t
o carry on the
partnership business, the Courtmay order dissolution of the firm at
the instance of any of the other partners. For example, consta
nt refusal to perform duties, or continuous, quarrels, or errone
ous accounts by a partner are good grounds for dissolution.
(e)
If a partner has transferred the whole of his interest in the firm to an out
sider or has
allowed his interest to besold in execution of a decree, the other partner
s may sue for dissolution.
(f)
If the business of the firm cannot be carried on except at a loss, th
e court may order dissolution.
(g)
Where the court considers it just and equitable to dissolve the firm.
It may do so at
the instance ofany partner. Dissolution has been granted under thi
s clause in the
following cases: deadlock in themanagement; complete destructio
n of confidence between the partners that they are not even on spe
akingterms any more; the substance of the business gone, etc.
Dissolution of partnership and Dissolution of Firm
It is said that dissolution of partnership does not necessarily lead to disso
lution of firm,
whereas dissolution of firmdoes lead to dissolution of partnership. It is b
ecause :
(1) Dissolution of firm means the complete break down of
partnership relation.Dissolution ofpartnership simply means a change in
the relation or constitution of partners. Even after dissolution of par
tnership, the partners may agree among themselves to continue the
business.
(2) Dissolution of a firm means closing down the business of the fi
rm. But in dissolution of partnership, thebusiness continues as befo
re except the firm is re-constituted,
(3)
In case of dissolution of partnership, a partner retires, dies or beco
mes insolvent but
in case of adissolution of firm, there is complete termination of rel
ation between partners.
(4)
When the firm is dissolved, its assets are realised and distributed
among partners.While in case ofdissolution of partnership, only thing
to be done is the ascertainment of the share of the outgoing partn
er,because the business continues as before.
Consequences of Dissolution
1. On the dissolution of a firm, it comes to an end and its affairs have t
o be wound up according to the rules laiddown in the
Act. The assets of the firm to be collected and applied
in payment of the debt and liabilities. Thedeficit, if any is to be distri
buted among the
partners according to their rights. The deficit, if any, is to be paid bythe
partners according
to the terms of the agreement of partnership. These proceedings are call
ed winding up.

2. Until public notice is given of the dissolution, the partners continue to b

e liable to third
parties for all acts done inconnection with the affairs of the firm.

3. Notwithstanding the dissolution, the authority of each partner to bi

nd the firm continues
(i) so far as may be necessary to wind up the affairs of the firm, an
d
(ii) to complete transactions
begun but unfinished at the time of dissolution.

4. If any partner makes any profit from any transaction connected with th
e firm after its
dissolution, he must share itwith the other partners and the legal repre
sentatives of the deceased partners.

5. Where a partner has paid premium on entering into partnership for fixe
d term, and the
firm is dissolved before theexpiration of that term otherwise than by the
death of a partner
he shall be entitled to repayment of the premium orof such part thereof a
s may be reasonable,
according to the terms of admission and the unexpired period of the term
.But he will not get
anything if the dissolution is due to his misconduct or it is in pursuance
of an agreement
containing no provision for the return for the premium or any part of it.

6. Where a contract creating partnership is rescinded on the groun

d of the fraud of any
of the partiesthereto, the party entitled to rescind it is entitled
(a) to a lien on the assets of
the firm remaining after the debts of the firm have been paid, for
any sumpaid by him for the purchase of a share in the firm and for th
e capital contributed by him;
(b) to rank as a
creditor of the firm in respect of any payment made by him towards the d
ebts of the firm; and
(c) to be indemnified by the partner guilty of the fraud against all the deb
ts of the firm (S.52).

7. After a firm is dissolved, every partner or his representative may, in t

he absence or a
contract between thepartners to the contrary, restrain any other partner
from carrying on a
similar business in the firm name or from usingany of the property of the
firm for his own
benefits, until the affairs of the firm have been completely wound up. Bu
ta partner who has
purchased the goodwill of the firm, cannot be restrained from using the
firm name (S. 53).

8. Partners may, upon or in anticipation of the dissolution of a firm, mak

e an agreement
that some or all of themwill not carryon a business similar to that of t
he firm within a
specified period or within specified local limits. Suchan agreement will n
ot be void on the ground of restraint of trade (S. 54).

Partners lien -
Section 46 provides to the same effect and lays down the rule tha
t on
dissolution of a firm,for the discharge of the liabilities, each partner
or his representatives has
a right to have the property of thefirm applied in payment of the d
ebts of the firm. If there
is any surplus asset, a partner has a right tohave the accounts ad
justed and the net assets
divided among the partners according to their rights. Or, hehas a ri
ght to have whatever may be due from co-
partners deducted from what would be otherwise payableto them i
n respect
of their shares. This right of a partner is often called a partners li
en.

Goodwill -
It is an important item in a partnership. It may be sold either sep
arately or along with the other property of the firm. Its
valuation will depend upon the facts and
circumstances of each case. Incase of Page vs. Ratliffe (1896), 75
L T. 173, it was observed
that the value of the goodwill could bedetermined and taken equal t
o the total of three years
net profits. It is up to a partner to decide topurchase the goodwill
of the firm and carry on the business under the firm.
 Settlement of Acco
unts
Usually the Partnership Deed contains an accounting clause according t
o which the
final accounts between thepartners are settled. But in the absence of any
agreement between
the partners the rules stated in Sec. 48 of the Actapply. Accordingly the
mode of settlement
of accounts between the partners after dissolution is as follows :
1.
Where the firm has suffered losses, or where capital has dwindled, i
n either case, the
undistributed profits,if any, are first of all to be applied to the pay
ment of such losses or to
the making up the deficiency ofcapital. If the profits prove insuffici
ent, the capital must be
applied for the payment of the losses. If eventhen there is loss,
partners must contribute
individually in proportion to the profit sharing ratio.

2. The assets of the firm including any sums contributed by the pa

rtners to make up
deficiencies of capital,must be applied in the following manner and
order :
(a) in paying the debts due to third parties;
(b) in paying to each partner rateably what is due to him fro
m the firm for advances as
distinguishedfrom capital contributed by them;
(c)
in paying to each partner rateably what is due to him on account of
capital; and
(d) the residue, if any, must be divided among the partners i
n the proportion in which
they wereentitled to share profits.

3. If a partner becomes insolvent or otherwise cannot pay his share of th

e contribution,
the capital of the solventpartners cannot be returned in full. In this case,
the solvent partners must share rateably the available assets (incl
uding their own contribution to the capital deficiency), i.e., the av
ailable assets will be distributed inproportion to the original capital.
Example :
A, Band C are three partners in a firm who have agreed to share profit
s and losses equally. Their capitalcontributions are: A- Rs.10,000 ; B-
Rs.5,000 ; C -Rs.1,000, making a
total capital of Rs.16,000.On dissolution it isfound that reliable assets
are Rs.20,000 and debts payable are Rs.13,000 with the result that
the availableassets are Rs.7 ,000. Therefore, capital deficiency is Rs
.9,000.
According to Rule 1 stated above, eachpartner must contribute Rs.
3,000 capital deficiency,
because they share profits equally.The final position willbe that A is t
o pay Rs.3,000 and receive Rs.10,000: B is to payRs.3,000 and receive Rs
.5,000; C is to pay Rs.3,000 andreceive Rs.1,000.Consequently, C contribu
tes Rs.2,000. This contribution together with the available assets
of Rs.7,000amounts to Rs.9,000. Out of this amount A gets Rs.7,000 and
B gets Rs.2,000.If C is insolvent (Rule 3); he will paynothing. The available
assets will be Rs.7,000 plus
Rs.6,000 (the contribution of A and B), i.e., in all Rs.13,000. Thisamount
will be divided
between A and B in the ratio of 2 : 1 which is the ratio between their
capital. A will get Rs.8,666.67 p. and B will get Rs.4,333.33 P.

Payment of debts of the firm and

private debts

Where
there are joint debts due by the firm, and separate debts due from any pa
rtner, the
partnership creditors shouldbe paid first out of the partnership assets, an
d similarly private
creditors should be paid first out of the private assetsof the partner. In
both cases, if there
be surplus, the other set of creditors will be entitled to share in it.A an
d B arepartners and become insolvent. A's private debts are Rs.10,000 an
d Bs Rs15,000. The partnership debts are Rs.50,000,and the assets Rs.
60,000. The partnership
creditors will be paid in full, and the 8.urplus of Rs.10,000 will be divided
among the private
creditors of A and B in proportion of their rights in the partnership prop
erty.
SELF CHECK TEST

(a) A and B were partners under an agreement which provided th

at the partnership
should be terminated bymutual agreement only. Can A
terminate the partnership by giving notice to B ?
(b) A, an Indian, and B, a Chinese subject, are partners in trad
e. War breaks out between India andChina. What is the positio
n of the partnership ?

(c) A and B were partners, and A was convicted of traveling on the rail
way without
ticket and with intent todefraud. Will the Court order dissolution of the
firm ?
(d) A and B carried on business as partners. After some
time the relations between them became so strained that ne
ither would speak to the other.
Communications having to be conveyedbetween them through the
accounts clerk.
The firm had made and continue to make large profits. Canthe c
ourt order its dissolution ?
(e) A and B carried on business in partnership. On Bs death the pa
rtnership was
dissolved but A carried on thebusiness for a further period of one year. Ho
w should the profits earned since B's death be divided ?
(f)
B, C and J carried on a business as J & Co. J retired and Band C car
ried on business
under a new namewith the addition of Late J & Co. J found a new
firm carrying
on the same kind of business in premisesadjoining the old firms p
remises in the
name of J & Co.; and sent circulars about his business to thecusto
mers of the old firm. What are Js rights and those of Band C ?
Answers :
(a) No, A cannot terminate the partnership by giving notice. He must g
et Bs consent to do so.
(b) The partnership becomes unlawful and is dissolved.
(c) Yes, the court would order dissolution of the firm. The conviction was
for dishonest
and calculated to bedeterimental to the partnership business,
(d) Yes, the court would order dissolution of the firm on just an
d equitable ground, deadlock betweenthe partners had arisen.
(e) Bs estate is entitled to share in such part of the profits as were ea
rned by the use
of the partnership assets,proportionate to his share in the total partners
hip assets.
(f)
J could carry on his new business in competition with the old fir
m and in the
immediate vicinity, butwithout soliciting the customers of the old fir
m. The old firm
could restrain him from convassing theircustomers. Further, althou
gh his name was
J, he could not carry on his new business in the name of J &Co., a
s the old firm had retained J & Co., as part of its name.