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PETITIONER: GANGADHAR MADHAVRAO BIDWAI

       Vs.

RESPONDENT: HANMANTRAO VYANKATRAO MUNGALE

DATE OF JUDGMENT07/12/1994

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) VENKATACHALA N. (J)

CITATION:  1995 SCC  (3) 205        JT 1995 (1)   118  1994 SCALE  (5)149

ACT:

HEADNOTE:

JUDGMENT: R.M. SAHAI, J.: 1.      The only question that arises for  consideration  is whether the recital in a Deed of Dissolution of partnership, Ext. 48, that Survey Plot No. 699 was a partnership property was admissible in evidence. 2.     Both the plaintiff-appellant and defendant-respondent were  partners  in Messers Maharashtra  Metal  Manufacturing Company.  The partnership was formed in 1952 and  it  lasted till 1959.  In 1955 the plot in dispute was purchased by the defendant. At the time of dissolution a Partition Deed, Ext. 46,  was  executed.  A Deed of  Dissolution,  Ext.  47,  was executed on 1st August, 1961 and another Deed, Ext. 48,  was executed  on 1st September, 1961. In all these  Deeds,  this plot  was  mentioned. In the last Deed the recital  read  as under:- 119               "We both have been carrying on the business of               making  and  selling lotas (a)  of  copper  in               partnership  for  a long time in the  name  of               "Messers   Maharashtra   Metal   Manufacturing               Company" Pune.  We have duly recorded the deed               of dissolution of partnership on the date 1-9-               1961.  There  were factories  running  at  two               places  and belonging to the our  partnership.               Similarly  there is a plot bearing Survey  No.               699  of  the  ownership  of  our  parruership,               situated  near  Saibaba  Temple,  Satam  Poona               Road,  Swargate and we both reside there.  The               places of both the factories are taken on rent               and  the  same  were also  (included)  in  our               partnership." In  the  schedule  appended to the  Partition  Deed  it  was mentioned that the said property together with the structure standing  thereon, the well and the motor fixed on the  said well would be treated as joint or common property.  Since in

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the  Deed  of  Dissolution  of  1st  August,  1961  it   was mentioned,               "Survey No. 699 has been purchased in the name               of  No.  1  Mungale.   No.  1  Mungale  should               execute a sale deed of half share in this land               in   favour  of  No.  2  Bidwai  at   Bidwai’s               expense." the appellant issued notice for execution of the sale  deed. But  when  the defendant neglected to do  so  the  appellant filed  the suit for partition by metes and bounds. The  suit was  dismissed  by  the  trial  court.  The  two  Deeds   of Dissolution of pannership were held inadmissible for want of registration.  The order was upheld in appeal.  It was  held that the recital in Exts. 46 and 47 with regard to terms  of dissolution  of  partnership did not  require  registration. But so far as it sought to effect the interest of  defendant in  the  non-partnership immoveable  property  the  document being  unregistered was inadmissible.  In respect of  Ext.48 the High Court held that the recital in the document that it was partnership property did not appear to be correct. 3.     Sri Ashok Sen, the learned senior counsel urged  that the law is settled that no registration was required of  the partnership property as it did not result in transfer of any interest.   Reliance  was placed on S.V. Chandra  Pandian  & Ors. v.S.V. Sivalinga Nadar & Ors., 1993 ( 1 ) SCC 589.  The learned  counsel  urged that in any case Section 14  of  the Partition   Act   indicated  that  any   property   acquired subsequently becomes partnership property. Sri Tarkunde, the learned  senior counsel supported the findings  recorded  by the  High Court. He submitted that the documents, Exts.  46, 47  and  48,  did  not  establish  that  Plot  No.  699  was partnership  property.   He urged that in Ext. 46  the  mala (garden  land)  and  the  present  suit  property  had  been separately  mentioned.  Therefore, it was clear that it  was not  partnership  property. Learned counsel urged  that  the High   Court  having  found  documentary  evidence   to   be insufficient or inadmissible examined the oral evidence  and held  that the land was not partnership property as such  it was  not  an  appropriate case in which  this  Court  should exercise   its  jurisdiction  under  Article  136   of   the Constitution. The learned counsel argued that the respondent having proved that the land was purchased by him, it was for the appellant to prove that the property belonged to both. 4.     The real question that arises for consideration is if the  recital  in  the Deed  of  Dissolution  dated  1.9.1961 showing  that  plot  no. 699 was  partnership  property  was inadmissible for want of registration.  It 120 was found by the High Court and could not be disputed by the respondent that if plot no. 699 was held to be a partnership property  then it did not require registration. It  is  true that  this  plot  was purchased in 1955  by  the  respondent alone,  but he was not precluded in law from bringing it  in the  partnership. The circumstances and the three  documents indicate  that  even though the land was  purchased  by  the respondent,  it appears both the parties have been  treating this  property as being in joint ownership .of  both.   This may  have been due to good relations which  existed  between them  prior to 1959 but there appears no reason  to  discard the recital in these documents which unequivocally establish that  the properly at the time of dissolution was  owned  by the  partnership. The recital in the Deed of Dissolution  of partnership  of  September, 1961 that it was  a  partnership property,  could   not  be  ignored.   Apart  from  it,  the appellant  had filed earlier suit in which the claim of  the

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appellant  that these documents were obtained  under  duress was  not  accepted. Even though the suit  was  dismissed  on ground  of limitation, but the genuineness of the  documents was  not  doubted. If that be so, then the  recital  in  the Dissolution  Deed could not be ignored.  The High Court  was in  absence  of any challenge to Ext. 48  not  justified  in recording the finding that recital in the Deed did not carry out  intention  of  executants.   Sri  Sen  was  correct  in submitting  that  once  it was held that Plot  No.  699  was partnership property then there was no need for registration and the appellant’s suit was liable to be decreed. 5.      In the result, this appeal succeeds and is  allowed. The  judgments  of  the  two  courts  below  dismissing  the plaintiff’s suit are set aside and the suit for partition is decreed. There shall be no order as to costs. 121