(COURT OF APPEAL)*

SID AHMED EL HUSSEIN SHAMI and Others ……………Appellants

and

HEIRS OF MOHAMMED MALIK ……Respondent.

(AC.APP-24.1956)

Principles

·  Partnership—Change of Partners—Death of Partner—Dissolution of Partnership

Although death will terminate a partnership automatically the dissolution of a partnership by the retirement of a partner Cannot be kept a secret from remaining partners nor can a new partner be admitted to the partnership without the consent of all other partners

Appeal

By defendants from a Preliminary Decree. The facts are full set out in the Judgment of Soni J

Advocates: Abdel Wahab ………………...for Appellants

Roushdi ………………………………...for Respondents

(*)        Court            .Nur, R.C. Soni .J ; Abu Gazaleh P.J.

Soni J.: - This is an appeal from a preliminary decree passed on 4 August, 1956, by the trial Judge in a suit between the parties No.100 of 1954 from Merowe declaring that the Plaintiffs were entitled to 1/4 (intending 1/6th. share) share in the partnership known as “Scheme Mohd. El Hussein Shami & Co.”, and ordering Defendants to render accounts for the period of 1948 to 1954.

The facts are simple. Originally the partnership started in 1936. In 1942, a new partnership came into being by the share of an outgoing partner having been taken over (with the consent of all partners) by the Deceased whose heirs are now the Plaintiffs. It was alleged by the first two defendants that this partnership was dissolved in 1950 when accounts were taken in June of that year. The reason given for the dissolution was that the authorities insisted that a new pump should be installed as the old pump had became unserviceable. The Deceased was told this, but he refused to contribute to the expenses of the new pump. His share was taken over by the first Defendant. This is the story given by the first two Defendants in their evidence before the Court. A curious part of this story is that this matter was kept secret from the third Defendant. The third Defendant in his evidence says that he never knew that the deceased has ceased to be a partner, or that his share had been taken over by the first Defendant. According to him he continued to regard the deceased as a partner till he died in 1953. It is obvious that a partnership cannot be dissolved in secret, or a new partner allowed to go and his rights taken over without the consent of all the partners. The first two defendants stand condemned out of their own mouths when they say that the matter was kept secret from the third Defendant. It was urged that final accounts were taken in June 1950, and the third defendant must be presumed to have knowledge. But how can that position be maintained when the first two Defendants themselves say that the matter has been kept secret, and the third  Defendant asserts that he never knew about the change, and always regarded the deceased as a partner. The taking of the accounts could only be regarded as up to June 1950. It was urged that the deceased never claimed any profits. But that is a mere matter of detail. It does not mitigate against the legal position of his still remaining a partner.

We, therefore, hold that the partnership continued with the three Defendants and the Deceased forming the partnership till it came to an end at his deal in 1953.

Nur J.                           :I concur

Abu Gazaleh P.J.      :I concur

                                                                                                (Decree Variea)