Ramaswami, J.

(1) This appeal is presented on behalf of the defendants against the judgment and decree of the Subordinate Judge of Chapra dated 24-7-1948.

(2) The plaintiff Kashinath Jagnani and the defendants Ramnarain, Ramkumar and Dhanraj agreed to carry on a joint business in salt under the name of a partnership called Ramchandar Ramkumar of Mairwa. On 11-2-1944 the parties executed a deed of partnership according to which the share of the plaintiff was 12 annas and the share of the defendants was 4 annas. It was agreed that plaintiff would contribute the entire capital and the defendants would contribute skill and labour in carrying on the salt trade. The plaintiff agreed in the first instance to contribute an amount of Rs. 10,000, of which a sum of Rs. 5000 was paid by him as contribution towards the Red Cross Fund. The partnership had no smooth course. Ill-feeling arose between the partners and on 23-3-1943 the plaintiff complained before the Sub-divisional Officer of Siwan that the defendants had removed account books of the firm and prevented the plaintiff from making an inspection. The matter was compromised at the intervention of the Sub-divisional Officer and a fresh registered deed of partnership was drawn up on 12-4-194

5. It was now agreed between the parties that the plaintiffs share would be eight annas and not twelve annas in the profits and that the partnership would continue till the parties secured separate agencies for salt. The plaintiff alleged that subsequent to the execution of the deed of partnership the defendants attempted to monopolise the salt business and prevented the plaintiff from taking any part in the affairs of the partnership. On 12-9-1945 the defendants filed a petition before the District Magistrate asking that the plaintiff should be restrained from taking delivery of a consignment of salt which had been despatched in the name of the partnership of Ramchandar Ramkumar. The petition was forwarded by the District Magistrate to the Sub-divisional Officer who started proceedings under Section 144, Criminal P. C. The plaintiff appeared in response to the notice and claimed that the consignment of the salt should be delivered half and half to the parties since there was no dissolution of the partnership. The defendants filed a rejoinder petition stating that they had taken delivery of the whole consignment of salt. The proceedings were dropped by the Sub-divisional Officer but on 8-11-1945 the District Magistrate ordered that the salt agency would continue in the name of the firm Ramchandra Ramkumar and separate agency would not be granted to the plaintiff. As the partnership could not be continued in view of the strained feelings between the partners, the plaintiff instituted the present suit for dissolution of the partnership and for accounts to be taken of the partnership business. The defendants contested the suit mainly on the ground that the partnership was dissolved on 18-5-1945 and accounting was made and the dues of the plaintiff were fully paid off. It was claimed on behalf of the defendants that after 18-5-1945 till 10-9-1945 the parties carried on separate business in salt. It was admitted that after 10-9-1945 the plaintiff was not permitted to take delivery of any consignment of salt since the District Magistrate had refused to grant separate agency to the plaintiff. Upon a consideration of the oral and documentary evidence the learned Subordinate Judge held that the partnership was not dissolved on 18-5-1945 that the partnership was, on the contrary, still subsisting and that the plaintiff was entitled to a decree for dissolution of the partnership and for taking of the accounts of the partnership business from 12-4-1945 "up to the date of the actual dissolution of the business of the firm and the taking of the accounts by the pleader commissioner.

(3) The first and principal question in this appeal is whether there was dissolution of the partnership on 18-5-1945 and whether there was adjustment of accounts between the partners on that date. On this question the defendants placed much reliance on the khata bahis, exhibits E and C, which show that on 18-5-1946 there was settlement of accounts of the partnership and that as a result of the accounting a sum of Rs. 21/13/- was paid in cash and a sum of Rs. 5 was set off on account of the share of the defendants out of Rs. 20, being the price of two choukis. The Subordinate Judge held that the bahi khatas, exhibits B and C were forged on the ground that there were mistakes and alterations on several pages of the document. (His Lordship discussed the documentary and the oral evidence and proceeded as follows:) The Subordinate Judge has commented that neither D, W. 7 nor D. W. 8 impressed him as truthful or reliable person. It is not suggested on behalf of the appellants that the Subordinate Judge has omitted to notice any special feature in their evidence or that he has failed to assess the proper hearing of the other circumstances of the case. In a matter of this description, where there is conflict of oral evidence, great importance must be attached to the opinion of the trial Judge who had the privilege of seeing the witnesses and observing the manner in which their evidence has been given.

(4) Upon the review of the oral and documentary evidence I have come to the conclusion that there was no dissolution of the partnership on 18-5-1945 nor was there any adjustment of accounts between the plaintiffs and the defendants on that date.

(5) It was argued by the Advocate General that even if there was no dissolution of the partnership on 18-5-1945 the plaintiff was admittedly expelled from the affairs of the partnership on or about 10-9-1945 and that in law a dissolution of the partnership was effected on that date. I am unable to accept this argument. Reference was made to Section 33(1) of the Partnership Act which states that a partner may not be expelled from a firm by any majority of the partners, save in the exercise in good faith of powers conferred by contract between the partners. Section 33(2) states that the provisions of Sub-sections (2), (3) and (4) of Section 32 shall apply to an expelled partner as if be were a retired partner. It is obvious that Section 33 only applies where the power of expulsion has been reserved in the articles of the partnership and where the power has been exercised in good faith by all the partners whose concurrence might be necessary under the articles of the partnership. It is admitted in the present case that the plaintiff was not permitted to take part in the affairs of the partnership from September 194

5. The evidence leaves no manner of doubt that the defendants acted in breach of the contract of partnership in removing the entire quantity of salt consigned to the firm to the exclusion of the plaintiff. The defendants had admittedly applied to the Magistrate for an order under Section 144, Criminal P. C. restraining the plaintiff from interfering with the delivery of consignment of salt. Since the expulsion of the plaintiff from partnership was in direct breach of the contract of partnership, Section 38 of the Partnership Act has no application in this case. On the contrary, Sections 40 to 44 of the Partnership Act are relevant in this connection. Section 40 states that a partnership may be dissolved with the consent of all the partners or in accordance with the contract between, the partners. Section 41 relates to compulsory dissolution. Section 42 states that subject to contract between the partners a firm is dissolved--(a) if constituted for a fixed term, by the expiry of that term; Co) if constituted to carry out one or more adventures or undertakings, by the completion thereof; (c) by the death of a partner; and (d) by the adjudication of a partner as an insolvent. Section 43 refers to dissolution of partnership at will. Section 44 deals with dissolution of partnership by the Court. It is clear from a reading of these sections that partnership could be dissolved only in the mode prescribed by Sections 40 to 44 of the Act and not by forcible expulsion of a partner from the business in violation of the contract of partnership. The argument of the appellant, on this part of the case must therefore fail.

(6) The next question to be determined is whether there was dissolution of the partnership when the control of salt was lifted in January 194

7. On behalf of the appellants it was contended that the partnership was constituted to exploit the salt license which was granted to the firm of Ramchandar Ramkumar of Mairwa and after the salt control was lifted by the authorities there was a completion of the adventure within the meaning of Section 42 (b) of the Partnership Act and the partnership was dissolved by the operation of law. On behalf of the respondent Mr. P. R. Das addressed the argument that partnership was constituted not merely to exploit the license and agency in salt but to carry on the salt trade in Mairwa. The question therefore is whether the object of the partnership was to carry on business in salt or whether the object was merely to exploit the salt license and salt agency which Government had granted. The answer to the question depends upon the proper construction of the registered contract of partnership, exhibit 2 dated 12-4-194

5. The recital of the document states-

"Whereas the party of the first part and the party of the 2nd part had started in partnership with each other a firm named M/s Ramchandar Ramkumar Mairwa (which firm is altogether different and separate from the firm of the same name situated at Siwan) for carrying on joint business of salt...."

The recital continues :

"And whereas in pursuance of the terms of the aforesaid partnership deed and on conditions mentioned therein the aforesaid firm obtained a license for trading in salt at Mairwa and have been carrying on the trade and business in salt at Mairwa for the last 14 months (approximate)."

The recital further states :

"And whereas the party of the first part and the party of the 2nd part have now agreed to continue the business of salt dealing at Mairwa on a new and fresh basis."

On the basis of these recitals in the deed of partnership Mr. P. B. Das stressed the argument that the object of the partnership was to carry on trade in salt in Mairwa and not merely to exploit the salt license or salt agency. But the contention is not supported by operative portion of the deed of partnership. In Clause (4) the document states :

"This partnership business shall be carried on under the aforesaid name and style of Ram-chandar Ramkumar Mairwa in which name the agency in salt had been secured. Both the parties shall have right and title in the aforesaid agency and license to the extent of half and half and this proportion shall continue as long as the present agency license and the firm continue."

Paragraph 5 is also important-

"With a view to facilitate work the learned S. D. O., Siwan, has kindly agreed with the consent of the aforesaid parties to obtain by moving the higher authority agency of salt separately in the name of each of the parties to the extent of half and half of the total supply for Mairwa area (or to the aforesaid firm). And when these agencies are obtained in the names of the parties of the first part and the party of the 2nd part separately and when salt is supplied separately then the partnership shall be dissolved after final accounting and adjustment of account between the aforesaid parties. But up till then, that is until the aforesaid grant of separate agency and supply to each of the partners has been secured and the final accounts have been adjusted, the partnership business shall continue as per terms mentioned in this deed and none of the parties will be entitled of having any right to dissolve or lease off the partnership so long the present agency continues."

Paragraph 6 states :

"The parties shall have no right to change the constitution of this firm or terminate it or in any way to give up or interfere with the agency In salt without the consent of both given jointly till separate agency is secured in the name of each of the partner."

For a proper interpretation of the document the statements in the recital must be read in the setting and context of the statements in paras. 4, 5 and

6. It is manifest that the object of the partnership was to exploit the salt license and the salt agency and that the salt agency was the substratum or the underlying basis of the contract of partnership. It is clear that the intention of the parties was that the partnership should continue so long as the agency of salt continued or till separate agencies were obtained by the parties in their respective names. If this interpretation is right there was a dissolution of the partnership under the provisions of Section 42 (b) of the Partnership Act as soon as salt control was lifted in January 1947 and the agency and license granted to the firm of Ramchandra Ramkumar of Mairwa came to an end,

(7) Upon this finding it was argued by the Advocate General that the plaintiff was not entitled to a decree lor taking of accounts after January 1947 when the partnership was dissolved. It was contended that the Court cannot order investigation of accounts beyond January 1947 and that the plaintiff was not entitled to any interest even if it should be found on taking of accounts that a certain sum of money was due to him in January 194

7. There is one decisive answer to this argument. Section 37 of the Partnership Act states that if a partner has died or otherwise has ceased to be a partner, and the surviving partner carries on the business of the firm with the property of the firm without any final settlement of accounts, the outgoing partner of his estate is entitled to such share of the profits made since he ceased to be a partner as may be attributable to the use of his share of assets or to interest at the rate of six per cent, per annum of the amount of his share of assets. In this connection], Mr. P. R. Das argued that even if Section 37 was non-existent, plaintiff would be entitled to a share of the profits of the salt business attributable to the use of the assets of the plaintiff. In support of his contention, counsel referred to -- Crawshay v. Collins, (1808) 15 Ves. Jun 218 (A), in which Sir Samuel Romilly argued that profits are accretions to property which has yielded them, and ought to belong to the owner of such property, in accordance with the maxim, accessorium sequitur suum principale. In that case a partnership had been dissolved by the bankruptcy of one partner and it was held that the assignees of the bankrupt are entitled beyond an account and distribution of stock to a participation of subsequent profits made by the other partners, carrying on the trade with the capital.

(8) But the doctrine of accession is not, in my opinion, the true principle on which Section 37 of the Partnership Act is based. I think that the true principle is that there exists a fiduciary relation-ship between the surviving partner and his former partner or the representative of that former partner. The relationship is a fiduciary relationship and in a matter of this description the authorities establish that equity will never permit the person standing in that relationship to another person to trade with the property of that other person for his own profit. He must hold the profit he is making in trust for the owner of the property, the use or which produced the profit. In --Featherstonhaugh v. Fenwick, (1810) 17 Ves Jun 298 (B), a partnership for a term certain was continued after the expiration of the term without any new articles having been entered into. It consequently became a partnership at will terminable on reasonable notice being given by any one of the partners. Some difference arose between the partners, and two of them proposed to their then co-partner that they should take the partnership property at a valuation; or if the latter objected he should take his share off the premises. He refused, and the three continued to carry on the partnership business. Featherstonhaugh, having filed a bill died, and the suit was revived by his representative. The defendants insisted that by reason of the offer they had made they were not accountable for the profits earned since then by means of the partnership property, but only for the value of that property at the date of the dissolution. Sir William Grant, then Master of the Rolls, dealing with this contention said :

"The next consideration is, whether the terms, upon which the defendants proposed to adjust the partnership concern, were those, to which the plaintiff was bound to accede. The proposition was, that a value should be set on tile partnership stock; and that they should take his proportion of it at that valuation; or that he should take away his share of the property from the premises. My opinion is clearly, that these are not terms to which he was hound to accede. They had no more right to turn him out than he had to turn them out, upon those terms. Their rights were precisely equal; to have the whole concern wound up by a sale, and a division of the produce. As therefore they never proposed to him any terms, which he was bound to accept, the consequence is, that con-tinuing to trade with his stock, and at his risk, they came under a liability for whatever profits might be produced by that stock."

The same principle was enunciated by the House of Lords in -- Hugh Stevenson (Hugh) and Sons Ltd. v. Aktiengesellschaft Fur Cartonnagen-In-dustie, (1918) A C 239 (C), in which an English company and a German company carried on a partnership business in England until the outbreak of war between Great Britain and Germany, which operated as a dissolution of the partnership. After the outbreak of the war the English company continued to carry on the business and to use the partnership plant for that purpose. It was held by the House of Lords that the German company were entitled to a share of the profits made after the dissolution by the carrying on of the business by the English company with the aid of the German companys share of the capital.

(9) The principle is recognised in Section 88 of the Trusts Act which reads as follows :

"Where a..... partner..... or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantages so gained."

Illustration (f) to the section is as follows :

"A and B are partners. A dies. B instead of winding up the affairs of the partnership retains all the assets in the business. B must account to As legal representatives for the profits arising from As share of the capital."

(10) The principle was applied by the Judicial Committee in -- Ahmed Musaji v. Hashim Kbra-him. AIR 1915 P. C. 116 (D). In that case, after the dissolution of a partnership by the retirement of a partner, the other partners continued the business of the firm using its assets for that purpose. In a suit brought against them by the legal representatives of the retired partner they were ordered by the trial Judge Fletcher, J. to account for such assets with interest thereon from the date of dissolution. That decree was affirmed in appeal by Sir Lawrence Jenkins C. J. and Wood-roffe, J. A further appeal was taken to the Judicial Committee and Lord Sumner in dismissing the appeal observed:

"It is well settled that, in certain cases, when on the dissolution of a firm one of the partners retains assets of the firm in his hands without any settlement of accounts and applies them in continuing the business for his own benefit, he may be ordered to account for these assets with interest thereon, and this apart from fraud or misconduct in the nature of fraud."

(11) It is manifest that Section 37 of the Partnership Act applies to the present case and the plaintiff is entitled to his proper share of the profits which may have been earned in the salt business by the use of the property of the firm between the date when the plaintiff ceased to be a partner and the date when the final account is settled. On behalf of the appellants, it was contended that there is no specific claim under Section 37 of the Act to be found in the plaint and no such relief ought to be granted to the plaintiff. I am unable to accept this argument. Section 37 is based on the equitable jurisdiction of the Court to grant relief in a case where the surviving partner has carried on the business of the firm with the property of the firm without any final settlement between him and the outgoing partner. The Court has jurisdiction to grant such relief if the necessary facts are found and it is immaterial that the plaintiff has not asked for relief under Section 27 in the plaint. Mr. Untwalia stated that his client has elected under Section 37 to take interest at 6 per cent. per annum with effect from January 1947 on such assets as may be found to be payable to the plaintiff on that date. In view of this statement of Mr. Untwalia, it is not necessary to direct that there should be an enquiry into the partnership accounts so as to compute profits from January 1947 up to date.

(12) The result is that the plaintiff would be granted a decree that the partnership has been dissolved with effect from 31-1-1947 and a Commissioner should be appointed to examine the accounts of partnership business from 12-4-1945 till 31-1-1947 for which period the plaintiff is entitled to 8 annas share of the profits and to recoup the amount of capital he had contributed in accordance with the terms of the contract of partnership. If on the basis of this accounting any amount is found due to the plaintiff from the defendants on 31-1-1947 the plaintiff would be entitled to 6 per cent, interest from 31-1-1947 till the date of payment under the provisions of Section 37 of the Partnership Act.

(13) Subject to this modification in the decree I would dismiss this appeal with costs.

(14) The application in revision is directed against an order of the Subordinate Judge dated 19-1-1950 holding that the defendants were liable to render account till Samvat 200

6. The application is filed on behalf of the defendants Ramnarain, Ramkumar and Dhanraj. It is alleged on their behalf that the Subordinate Judge should have directed the pleader commissioner to take accounts for the period up till Diwali of Samvat 2005 and not up till Diwali of Samvat 200

6. It is said that there was a bona fide mistake on the part of the defendants when they agreed that the pleader commissioner should take accounts up till Diwali of Samvat 200

6. It is alleged that the pleader commissioner has subsequently corrected his report and informed the Court that he really meant that account should be taken for the period up till Diwali of Samvat 200

5. There is no merit in this argument of the defendants. The decree of the lower Court directed that the partnership would stand dissolved from the date of decree and that the defendants were liable to account for the partnership business to the plaintiff from 12-4-1945 "up to the date of the actual dissolution of the business of the firm and taking of the accounts by the pleader commissioner" This really means that the defendants ought to render account from 12-4-1945 up to the date of the winding up of the business of the firm. There is a verbal mistake in the decree of the lower Court; but the intention is clear that the defendants were asked to render accounts up to the date of the actual winding up by the pleader commissioner. In any event the application in revision is infructuous since the decree of the lower Court has been modified in the appeal and it is now made clear that the defendants should render accounts for the period from 12-44945 till 31-1-19-17 and on the basis of such account if any amount is found due to the plaintiff from the defendants the plaintiff would be entitled to 6 per cent interest under Section 37 of the Partnership Act. The application in revision accordingly fills and must, be dismissed.