BIJENDRA PRASAD Vs. DULESHWARI DEVI

JUDGEMENT

(1.) Letters Patent Appeal is directed against the judgment and decree dated 21st August, 1997, whereby the plaintiffs have been non-suited, inter alia, on the ground that the suit as framed and filed for seeking relief for partition, accounts and dissolution of the firm was not maintainable in view of the provision of Section 69 of the Indian Partnership Act, 1932 (hereinafter referred to as 'the Partnership Act'), which envisages that registration of a firm is a condition precedent to maintain the suit. Thus, in nutshell in the absence of registration of the firm, the Court gets no jurisdiction to proceed with the trial of the suit.

(2.) The pleadings as set out by the appellants/plaintiff are that one Hari Mohan Prasad and his three minor sons, namely, Bijendra Prasad, Birendra Prasad and Kali Shankar Prasad, claimed that a partnership firm was constituted by a deed dated 3-7-1954 (the deed was unregistered) wherein minor plaintiffs Nos. 2 to 4 under the guardianship of their father Hari Mohan Prasad as well as respondents/defendants 1 and 2 were the partners to the extent of half and half share in the cinema business. Though learned counsel appearing for the appellants disputes this fact contending that it has been inadvertently mentioned in the plaint, but paragraph 3 of the plaint reveals this fact and it cannot be said that inadvertently it has been mentioned in the plaint. It is necessary to reproduce paragraph 3 of the plaint which reads as under :-"That there was a deed of partnership executed between plaintiffs 2 to 4 under the guardianship of plaintiff No. 1 and defendants 1 and 2 on 3-7-1954 by which it was agreed that the plaintiffs 2 to 4 shall have -/8/- eight annas share and defendants 1 and 2 shall have -/8/- eight annas share in the cinema business."Ex facie, perusal of paragraph 3 of the plaint reproduced above makes it abundantly clear that a deed of partnership was executed between plaintiffs Nos. 2 to 4, i.e., minor son under the guardianship of plaintiff No. 1 Hari Mohan Prasad and defendants Nos. 1 and 2 on 3-7-1954 (unregistered deed) whereby it was agreed that the plaintiffs, i.e., minor sons, plaintiffs Nos. 2 to 4 shall have half share and defendants Nos. 1 and 2 shall have half share in the cinema business. It appears that defendants Nos. 1 and 3 remained absent throughout despite summons and defendants Nos. 2 and 4 had filed joint written statement and while contesting the suit raised all legal and factual pleas inasmuch as the suit as framed and filed was not maintainable in view of the provisions of Sections 30, 48 and particularly 69 of the Partnership Act for want of registration.

(3.) For the purpose of disposal of this appeal, the other factual and legal pleas raised by the defendants-respondents are not necessary to be gone into. Therefore, this Court is only dealing with the impact of non-compliance of the provisions of Section 69 of the Partnership Act. A bare reading of the provisions of Section 69 of the Partnership Act envisages that in a suit based on partnership firm the Court gets jurisdiction only if the firm is registered under the Partnership Act meaning thereby that registration of a firm is condition precedent to derive right to institute a suit and the Court gets jurisdiction to proceed with the suit only when the condition precedent enumerated under Section 69 of the Act is fulfilled. This proposition of law has no two opinion. In the case of Loonkaran Sethia v. Ivan E. John, AIR 1977 SC 336, their Lordships of the Apex Court held that Section 69 is mandatory in character and its effect is to render a suit by a plaintiff in respect of a right vested in him or acquired by him under a contract which he entered into as a partner of an unregistered firm, whether existing or dissolved, void. In other words, a partner of an erstwhile unregistered partnership firm cannot bring a suit to enforce a right arising out of a contract falling under the ambit of Section 69.