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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:-

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"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

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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.

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