TMI Blog1959 (12) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 dated 27-8-1936 under an unregistered karar. The plaintiffs in reply stated that Ex-B-18 was not a genuine document, that it was not acted upon and above all, that it was inadmissible in evidence for want of registration. These legal objections were found against by the Courts below. The execution of the document, however, was held to be proved. When the matter came up in second appeal, the question abont the genuineness of the document was not canvassed, there having been a concurrent finding of its having been executed. The question as to whether it was acted upon was also not pressed and the only objection on which arguments were advanced before the learned Judge was that the document was inadmissible in evidence, for want of registration. 2. It is admitted that what the plaintiffs purported to relinquish and assign to the 1st defendant under Ex. B-18 related to property worth more than ₹ 100/-. It may be mentioned that the Madras High Court in an earlier case in Venkataratnam v. Subba Rao, ILR 49 Mad 738: (AIR 1926 Mad 1040) held the view that a document which is executed by a partner of a partnership whereby he relinquishes his share in the partnership property, doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the purview of Section 17(1) (b) of the Registration Act. There can be no doubt that if by this document the interest in immovable property is sought to be extinguished then it is compulsorily registrable. The question, therefore, is what is the nature of the interest of a partner in the partnership property, where the partnership property consists of movable and immovable property, would the relinquishment of a right or interest in immovable property or could it be described as a benefit arising out of land within the meaning of immovable property as defined in Section 3 of the General Clauses Act? It has to be observed that the law relating to partnership has now been embodied in the Partnership Act, Act IX of 1932. Prior to this Act the law relating to partners and their rights inter se was governed by Chapter XI of the Indian Contract Act (as it then stood). Section 253 of the Contract Act related to the rights determining the partners' mutual relations and Sub-section (7) of Section 253 enacted that if from any cause whatsoever any member of partnership ceases to be so, the partnership automatically dissolves as between all other members. While this was the position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re in the assets of the partnership and it is governed by Sections 46, 48 and 49 of the Partnership Act. It would, therefore, follow that a partner cannot predicate of a definite share in immovable property which he could transfer or give up. 7. Questions have arisen incidentally though not directly in this form, but the decisions in those cases lend further support to the view that the interest of a partner under the partnership assets which include immovable property cannot be regarded as an interact in immovable property. In a suit for dissolution of partnership which owned a factory, the question arose as to whether the suit fell under Clause (a) or (d) of Section 16, C. P. C. It was held that a suit for dissolution of partnership was not a suit for the determination of any right to or interest in immovable property within the meaning of Clause (a) or (d) of Section 16 C. P. C. Vide Durga Das v. Jainarayan, AIR 1919 All. 350, the ratio decidendi of this decision being that a decree could only be for the immovable property belonging to a partnership being sold and the sale proceeds being disposed of in accordance with the rule in Section 46 of the Partnership Act and the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm. Later on another partner who had a half share in the V. S. R. S. Firm and the plaintiff dissolved their partnership and it was arranged that the debt due from the R. S. Firm should be taken over by the plaintiff. The plaintiff tried to recover this amount. Among the various objections raised by the defendant, one was that the document Ex. K. under which the defendant took over the liability of the R. S. Firm was compulsorily registrable and, therefore, could not be received as evidence of any transaction affecting immovable property. The learned Judges did not agree with the view taken in ILR 49 Mad 738: (AIR 1926 Mad 1040), for the reason that according to them, in that case the provisions of Section 253 (7) of the Contract Act were not considered and lost sight of. Section 253(7) says If from any cause whatsoever any member of a partnership ceases to be so, the partnership is dissolved as between all the other members. The learned Judges who decided the case of ILR 55 Mad 72: (AIR 1931 Mad 580), opined that where there was a partnership of three persons and one went out the whole partnership was dissolved and if the two remaining persons resume business as the partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he partners was entitled to a share in the immovable property that remained after the taking of accounts, they held Section 17 of the Registration Act applied. In our opinion this case is distinguishable From the case before us for the reason that there has been no dissolution of the partnerhip as such. We may point out that in ILR 55 Mad 72 : (AIR 1931 Mad 580), the document was an agreement whereby the partnership was dissolved and by the severance of their interests, specified assets in the two distinct partnerships were assigned to each of them and these assets included immovable property and under those circumstances, where the assets were assigned to the individual partners who retired, it amounted to a declaration of a right in immovable property and as it affected immovable property the document was compulsory registrable. The learned Judges dealing with that case, in not approving of the previous decision in ILR 49 Mad 738 : (AIR 1926 Mad 1040) were influenced by the fact that the former decision did not take note of the provisions of Section 253(7) of the Contract Act whereby a complete dissolution followed on the retirement of a partner, for their Lordships observe as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of Section 14 of the Partnership Act of 1932 which replaced the provisions of law of partnership in the Contract Act though slightly different did not make any difference in principle. We do not think that that decision dealt with the question directly at issue in this case and, therefore, is not in point. 12. In determining whether transfers of shares of partnerships which hold immovable property among other assets, require registration the Court must be influenced by the policy of the Partnership Act. The legal conception of the share of a partner in a partnership cannot be assessed in our opinion, by reference to the possibility of his getting a share' in the immovable property possessed by the partnership, for his getting a share in the immovable property is only an uncertain factor. 13. A Full Bench of the Lahore High Court in the case of Ajudhia Pershad v. Shamsunder, ILR (1947) Lah 417: (AIR 1947 Lah 13) held that the interest of a partner in partnership assets comprising of movable and immovable property would be treated as movable property. We are in agreement with the view expressed in the above. 14. Our answer to the question referred to is that the int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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