GEORGE Vs. GEORGE

JUDGEMENT

(1.) The substantial questions of law framed for a decision are:

(2.) M/s. V.O. Vakkan & Sons (for short, "the firm") is a registered partnership firm which was engaged in the business of manufacturing, buying, selling and exporting coir, coirfibre, coir products, etc. While so as per Ext.B2, unregistered deed dated 08.09.1967 three of its partners - M/s. V.V. Antony, V.V. George and V.V. Job retired from the partnership with effect from that day and while making arrangements regarding liability of the retiring partners, made certain arrangements with respect to a few items of immovable properties (referred to in Annexures I to III of Ext.B2) which belonged to the retiring partners. In accordance with that arrangement the said properties were put in the possession of M/s. V.V. Joseph and V.J. George who continued as partners of the said firm. The said V.V. Joseph and V.J. George were authorised to deal with the said properties and if necessary encumber the same provided, no personal liability was created on the retiring partners. Accordingly, the said properties were subjected to an equitable mortgage in favour of the Syndicate Bank, Alappuzha (for short, "the Bank") on 16.10.1968 for a loan availed by the firm. The Bank filed O.S. No. 120 of 1972 in the Sub Court, Kochi against the firm, its then partners, M/s. V.V. Antony, V.V. George, V.V. Job and others for realisation of money by sale of the mortgaged properties. The Bank obtained a decree in its favour. In the course of execution of that decree the executing court permitted Shri V.V. Joseph to effect private sale of the said properties and liquidate the decree debt. Certain items of the said properties were sold and liability of the Bank was discharged. Shri V.V. Joseph and V.V. George applied to the executing court to direct the Bank to deliver to them Ext.B2 and the title deeds relating to the immovable properties subjected to the equitable mortgage. There were counter claims also for custody of the title deeds. The executing court as per order dated 17.6.1989 directed that the title deeds and Ext.B2 be delivered to the firm and its partners, Shri V.V Joseph and V.J. George making it clear that dispute regarding title to the properties shall be decided in appropriate proceeding. On 8.5.1992 Shri V.V. Joseph filed O.S. No. 120 of 1992 in the vacation Court (District Court Ernakulam to be filed in the Sub Court Kochi)against Shri V.V. George (one of the partners who retired from the firm as per Ext.B2 dated 8.9.1962) seeking a decree for prohibitory injunction against alienation of the suit property (which is included in Annexures I to III of Ext.B2), inducting strangers or disturbing peaceful enjoyment of the said property claiming title and possession of the said property. Shri V.V. George filed O.S. No. 282 of 1992 in the Sub Court, Kochi against Shri V.V. Joseph, V.J George and others for recovery of possession of the said property and for mandatory injunction on the strength of title claimed by him. Both the suits were tried jointly. Trial court allowed O.S. No. 282 of 1992 while O.S. No. 120 of 1992 ended in dismissal. Trial court took the view that title to the suit property remained with Shri V.V. George as Ext.B2, dated 8.9.1967 involved only an agreement to transfer the suit property in favour of Shri V.V. Joseph and Shri V.J. George and that plea of Shri V.V. Joseph and others that they are entitled to protect their possession under Section 53A of the Transfer of Property Act (for short, "the TP Act") and at any rate perfected title by adverse possession and law of limitation cannot be sustained. Shri V.V. Joseph and others took up the matter in appeal. In the meantime Shri V.V. Joseph expired and his legal heirs were impleaded. First appellate court observed that Ext.B2 cannot convey title over immovable properties without obtaining a formal sale deed, hence Shri V.V. Joseph could not become absolute owner of the suit property, and confirmed other findings, judgment and decree of the trial court. Hence these appeals.

(3.) Shri S.V. Balakrishnan Iyer, learned Senior Advocate appearing for appellants argued that finding of the courts below that Ext.B 2 did not confer title of the suit property in favour of the late V.V. Joseph is not sustainable in law or on facts. According to the learned Senior Advocate it is a case where the suit property was brought into the partnership at a time when Shri V.V. George (referred to hereinafter as the respondent) and the two others continued to be its partner and hence it became property of partnership as understood in Section 14 of the Act. Learned Senior Advocate would contend that when property, moveable immovable is brought into the common stock of the partnership and converter as its property, it did not require registration under the Registration Act. Learned Senior Advocate, Shri T. Krishnanunni appearing for respondent would contend that Ext.B2 only created an agreement for sale of the suit property in favour of the late V.V. Joseph and Shri V.J. George (appellant No. 1) in their individual capacity and not even as partners of the firm. According to the learned Senior Advocate Ext.B2 cannot be taken as a conveyance of the suit property in favour of said V.V. Joseph and V.J. George. Any rate, even if it is assumed that Ext.B2 is a conveyance in favour of the said persons so far the property is not brought into the common stock of the partnership consisting of respondent also question of treating the said property as partnership property under Section 14 of the Act did not arise and hence since Ext.B2 is not registered as required under the Registration Act it cannot affect right, title and interest of respondent in the suit property.