• If a partner becomes mentally incompetent

My elder brother, now seventy years old, is a partner in our joint family venture. He is physically handicapped since birth. Though mentally quite alert,  he could get very little formal education. Because of this inability he did not marry and to look after him properly, we three brothers (a fourth one is abroad and rarely visits) remained in a joint family, even after 30 years of the death of our parents, though our children are married and well settled. He has tantrums, but we manage in our day to day life and business, as our employees are considerate and compassionate.
	For the last couple of years, his tantrums have increased and have become unbearable. Often he becomes violent and inspite of his failing health, attacks the servants. In day to day life we still manage, but when it comes to business, it becomes impossible. As a business partner he has to sign cheques and other documents and appear in offices, whenever required. But now he becomes stubborn and refuses to discharge these duties. This problem is getting worse and worse.
	What is the legal remedy to this ? How can we remove him from the business, as he has every right in the business and the property ? Health and moral problems apart, I need your legal opinion on this point.
Asked 9 months ago in Business Law from Nainital, Uttarakhand
1)  have yo got your brother medically examined by doctor? 

2) what is the medical report? 

3) is he suffering from any mental health problems . please clarify 

4)  Section 2(l) of the Mental Health Act, 1987 defines mentally ill person as follows:-

(l) mentally ill person means a person who is in need of treatment by reason of any mental disorder other than mental retardation;

5) you will have to apply to court for your appointment as guardian under the provisions of the Mental Health Act, 1987.

6) if on other hand your brother is mentally retarded his case would fall under the provision of National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999

7) The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 further provides for appointment of a guardian to a person with disability

8) In the event of death, desertion, conviction of both the parents, the siblings (including half and step-siblings) jointly or singly (by reason of single application to be explained separately), may apply for guardianship of a disabled Member of the family.to he local level committee apointed under the act 
Ajay Sethi
Advocate, Mumbai
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Any question of taking in or retirement or removal of a partner would be within the purview of the partnership deed entered into between the  partners. If there is no partnership deed then provisions of the Indian Partnership Act would govern w.r.t. the removal/dissolution/retirement of a partner. A partner can not be expelled from a firm by any majority of the partners, unless the agreement of partnership provides so; or when there is a case of charge on him having acted against the interest of the partnership. However in either case ,retirement or expulsion, he shall have a right of full and fare final accounting and accordingly to give to or take from the firm.
And in either case of fore going event,his rights and liabilities shall be governed for future as provided in subsection (2)to (4)of section 32 of the partnership Act. 
Ashish Davessar
Advocate, Jaipur
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What is the legal remedy to this ? How can we remove him from the business, as he has every right in the business and the property ? Health and moral problems apart, I need your legal opinion on this point.
As you said that your brother is suffering from mental stability and his tantrums are beyond tolerance, it is not advisable to perform business keeping him as a partner anymore, however you cannot even remove him from the partnership since he has rights in the business.  You can get a medical certificate regarding his worsening mental health condition and mental inability to take any decision in the company affairs.  With this certificate, you may apply for court guardianship, get a court guardian appointed to take care of all his needs including the business and his properties. 
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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Will an FIR with the police will be required, before taking any legal action ?
Tantrums means a violent demonstration of rage or frustration; a sudden burst of ill temper or an emotional outburst like an adamant child;  It is short lived, in fact the individual even wont be able to realise what is doing during such circumstances.  Therefore do not take any such legal action, he is like a child, so bear with his tortures. 
T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0

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