Ashok Kumar Luria vs Abdul Majeed Ahmed and Others

V. Ramaswanu, J.—These two appeals have been filed against a common order in Applications Nos. 3444 and 3481 of 1983 in C.S. No.

40 of 1981. The said applications were filed u/s 3 of the Partition Act. 1893.

The subject matter of these proceedings is the property bearing new door No. 74 Godown Street. G.T. Madras, I and comprised in

Collector''s Certificate No. 3338, OId Survey No. 3076 and re-survey No. 11057 measuring north-south 42 feet and east-west 134feet. One

Perundevi Ammalhad life estate in this property. She died intestate on 17-111972 leaving behind her eight daughters and a son by name

Ramakrishnan. There is no dispute that each of. these eight daughters and the son Ramakrishanan had an absolute 1/9th share in the property.

Under a sale dee8 dated 10-4-1980 five of the daughters sold their 5/9th share in favor of M/s. H.M. Textiles, Madras. The other three daughters

.sold their respective undivided share in favor of three individuals, VIZ ..Abdul Maid Ahmed. ,Meera Ahamed and Abdul Razackooman.

H.M. Textiles filed on 28-9-1980 C.S. No. 463 of 1980 praying for partition and separate possession of their 5/9th share in the property.

Defendants I to 3 in this suit are the purchasers of the 3/9th share of the other three daughters and the fourth defendant is Ramakrishnan, the son of

Perundevi Ammal who had the remaining 1/9th share, In the plaint, the plaintiff H.M. Texciles has specifically stated that they had purchased the

5/9th share and they are the owners by purchase of those shares. The fourth defendant Ramakrishnan is ntitled to'' 1/9th share and the remaining

3/9th share belonged to defendants 1 to 3 therein.

When the said suit was pending, without asking for a partition and separate possession of his 1/9th share, the fourth defendant Ramakrishnan

filed **C.S. No. 40 of 1981, a separate suit for partition and separate possession of his 1/9th share in the suit property. In this suit, he has

impleaded his eight sisters as defendents 1 to 8, the three purchasers from three of the sisters as defendants 9 to 11 and H.M, Textiles which had

purchased 5/9th share as the 12th defendant. Both these suits were taken up or final disposal on 21-10 1981 and consent preliminary decrees

were made in each of these suits. InC.S. Nu. 463of 1980thedecree was for partition dad separate possession of the 5/9th share of H.M. Textiles.

The decree in C.S. No. 40 of 1981 was for partition and separate possession of the 1/9th share of Ramakrishnan, Ramakrishnan filed Application

No. 1731 of 1982 for appointment of a Commissioner for dividing the property in order to pass a final decree allotting 1/9th share to him. In the

affidavit filed in support of this application, he had referred to the preliminary decree passed in his suit as also the preliminary decree passed in C.S.

No. 463 of 1980 and had prayed for a division of the property into nine shares as for the preliminary decrees and for allotment of his 1/9th share.

A counter affidavit was filed by the respondents that the property is not capable of a division by metes and bounds and that therefore the

application for appointment of a Commissioner should be dismis5ed. The 12th defendant in C.S. No. 40 of 1981, that is the plaintiff in C.S. No.

463 of 1980also filed application No. 3332 of 1982 u/s 2 of the Partition Act praying for a direction to sell the property on the ground that a.

division by metes and bounds is not possible. Defendants 9 to 11 in C.S. No. 40 of 1.981 who are defendants I to 3 in "" C.S. No. 463 of 1980

(H.M. Textiles-Plff. v. Abdul Mazid Ahmed & 3 others Defendants) filed application No. 3444/1983 u/s 3 of the Partition Act praying for a

direction to value -the 5/9th share of H.M. Textiles and the 1/9th share of Ramakrishnan and to sell the same to them. A similar application under

S. 3 of the Partition Act was filed by Ramakrishnan in A. No. 3481 for 1983 praying for a direction to sell the shares of H.M. Textiles End & -

~,se of defendants 9 to 11 to him.. These applications filed under S. 3 of the Partition Act were heard together and by a common order dated 2-

8-1984, the learned single Judge of this court held that the property is not possible of a division by metes and bounds, that defendants 9 to 11 as

also Ramakrishna n are entitled to purchase the property and that therefore it should be sold to tile person who makes the highest bid over and

above the value fixed by the Commissioner. The learned Judge also appointed a Commissioner for valuing the property.

It may be mentioned at this stage that during the dependency of the application filed underS.,3of the Partition Act, Ramakrishnan sold his

undivided 1/9th share in favor of one C. Jawantraj Lunia. The purchaser lawantraj Lunia also, is stated to have died subsequent to the order dated

2-S-1984 but before the filing of these appeals, and the legal representative of the said Jawantraj Lunia has filed these appeals against the orders

made under S. 3 of the Partition Act.

The first submission made by the learned counsel for the appellant was thatH.M. Textiles and defendants 1 to 3 in C.S.No. 463 of 1980 who

are defendants 9 to 11 inC.S. NQ. 40 of 1981 are jointly entitled to8/9th share and that treating H.M. Textiles as owning 5/9th share and the other

as owning 3/9th share is a camouflage.this submission is made on the ground that H.M. Textiles is a partnership, and the three defendants 9 to

11who have purchased 3/9th share Lire also partners in that partnership, that probably with ulterior purpose instead of getting the sale deed

executed in favour of H.M. Textiles in respect of the entire 8/9th shares, they have shown H.M. Textiles as the 5/9th sharer and the remaining

3/9th share having been purchased by the other three persons. another words, according to the learned counsel though in form the sale deed

conveyed 5/9th share to H.M. Textiles and the remaining3/9th share to the other three persons, the real purchaser was H.M. Textiles itself and

defendants 9 to 11 have no separate title in the property. We are unable to accept this contention. First of all, there is no plea either in the plaint in

C.S. No. 40 of 1981 filed by Ramakrishnan or in any of the pleadings inC.S. No. 463 of 1980 that the partnership firmH.M. Textiles is the owner

of 8/9th share in the property. In fact, as already stated, in the suit C.S. No. 463 of 1980 filed by H.M.Textiles, they had claimed title only to an

extent of 5/9th share and had prayed for partition and separate possession of that share.In the plaint, they have specifically stated that of the

remaining 4/9th share, 3/9th share is owned by defendants I to 3 and 1/9th share is owned by Ramakrishnan the fourth defendant in the suit. Even

in C.S. No. 40 of1981,-Ramakrishnan had not stated that it is the firm which had purchased the property,,thought is in the name of defendants9 to

11.He had clearly stated that each of his sisters had sold her respective share to defendantsto 11, and the 12th defendant, and prayed for division

of the property into nine shares and allotment of one''such share to him. In the affidavits filed in support of the applications filed under S. 3 of the

Partition Act, there is also no plea that the partnership is the owner of 8/9th share. In the counter-affidavit filed by Ramakrishnan in the application

filed byH.M. Textiles for sale of the property. the ground that it is-riot divisible arid. it.is not possible for a division by metes and bounds, he had

also not taken any pleading that the firm was the owner of the 8/9th share. On the other hand, he had specifically stated that the 12th defendant

had purchased 5/9th share and defendants 9 to 11 partners -f the 12th defendant firm purchased 1/9th share each. In the absence of such

pleadings any where on .record, it is not possible for us to permit the appellant to raise this question. This is not a case where the plea could be

raised on the basis of the facts existing. Certainly, if this plea had been raised, an opportunity would have been given to the 12th defendant as also

the other defendants to accept or not to accept the contention. With out giving such an opportunity, it is not possible to permit such a plea to be

raised at this stage.

Another aspect of the same argument raised by the learned counsel is that defendants 9 to 11 are partners of, the 12th defendant H.M. Textiles

and since they have certain rights as partners in the 5/9th share, they will be persons holding collective interest within the meaning of S. 2 of the

Partition Act and that therefore they cannot be permitted to invoke the provisions of Section 3 of the Partition Act. We are unable to agree with

this contention also. There is a dispute whether all the three defendants 9 to I are partners in H.M. Textiles. But there is a statement in one of the

affidavits filed by Ramakrishnan that defendants 1) to I I are also partners in H.M. Textiles along with some other people. But for the purpose of

considering this argument, we will proceed on the assumption that among five partners of H.M. Textiles, there are defendants 9 to I also. But,

however, on that ground we cannot say that they are not entitled to invoke the provisions of S. 3 of the Partition. Act. They may be holding the

property relating to 5/9th share as partners. But that is entirely a different character.They further own also 1/9th share each. It is not as if in every

case where an individual is a partner, he cannot own individual properties. Though for the purpose of S. 2 of the Partition Act, they may be

considered as collective owner in respect of 5/9th share, when it comes to an application under S. 3, they are not claiming it as partners ,)f H.M.

Textiles, and by their possessing two distinct and independent characters or status in respect of title to the property t heir right as absolute owner of

3/9th share to file an application u/s 3 of the Partition Act could not be denied.

Learned counsel also contended in this connection that under the Indian law, partnership a~ such does not exist as a corporate body apart from

the partners consisting of the same and that in view of this position, the partnership as such could not be considered as owning the property, but it

is only the individuals who own the property. In our view, this is not a fully accurate statement of the law. Though the partnership is not treated as

an entity, there could be no doubt that the partnership could own the property. There could be assets belonging to the partnership and liability to

the partnership. The partnership as such could own properties, and in fact even m this case, H.M. Textiles purchased the 5/9th share in the

property. The sale deed shows the purchaser as H.M. Textiles and not the individual partners. It has not been contended that the sale deed in the

name of the ,partnership firm is not valid. A May be at a Given point of time, the then partners will be considered as persons interested. With the

reconstitution of the firm, the interests will also vary. But till a dissolution takes place. the partnership will continue to be the owner though

technically we may consider that the partners are the owners. They canot however claim any property as belonging to them individually nor a

partner claim any partcular property. On dissolution, the firm ceased to exist and the individual partners charge as a group owning the property j

ointly. When the partnership is dissolved, and the partners tke their shares, there is no transfer of the asset from the partnership to the individual

partner. It is something in the nature of a division and each of the partners take theirshare. But that is the peculiarity of the partnership law. But it

does not in any way show that the partnership could own any property, or that any individual partner is the ower of any particular property. In fact,

~''or certain purpose as in Income Tax and Sales tax, a partnership is treated as an assessable entity. Even a partner could be a debtor creditor of

the firm. We are therefore unable to growth the learned counsel that on the ground that defendants 9 to 11 are partners of H.M. Textiles. the are

not entitled to invoke Section 3 of & Partition Act,

It was then contended by the learned counsel for the appellant that Ramakrishnan''s share alone had been declared and given in the decree in

C.S.No. 40 of 1981 and that since the rights of the defendants had not been separately declared for Partition and separate possession,

Ramakrishnan alone was entitled to invoke the provisions of S. 3 of the Partition Act. Factually this is not a correct statement. As clearly stated

H.M. Textiles who are the owners of 5/9th share first filed the suit C.S. No. 463 of 1980. In that suit, they had prayed for partition anti separate

possession of the 5/9th share. To that suit. defendants 9 to 11 in C.S. No. 40 of 1981 were impleaded as defendants 1 to 3 and their share was

shown as 3/9th share. Ramakrishnan, the plaintiff in C.S. No. 40 of 1981 was shown as entitled to 1/9thshare and impleaded as the fourth defend-

ant. It was not necessary for Ramakrishnan to have filed a separate suit. He could have asked for his 1/9th share to be declared and allotted in

C.S. No. 463 of 1980 itself. It was open to him'' also to have filed a separate suit and asked for his share instead of claiming his rights declared in

the same suit. He had chosen the latter option 6f filing a separate suit and claimed his 1/9th share. H.M. Textiles and Ramakrishnan have prayed

for partition and separate possession of their respective shares in separate suits. The only persons who have not asked for partition and separate~-

possession are defendants 9 to 11 who were owning 1/19th share. The suits were taken up jointly and were decreed as prayed for. Therefore,

there are decrees declaring the shares of H.M. Textiles and Ramakrishnan. The,- owners of the remaining 3/9th share have not asked for partition

of their share mutuallyamong them. It was not necessary for them to have asked for their. share to be divided as among them and give to them.

Therefore, there are now three parties in the partition, viz., the 5/9th sharer and the second the 1/9th sharer, and after giving their shares, the

remaining is held by the 3/9th sharers. Therefore, it, is not possible to contend that the rights of H.M. Textiles have not been either defined or

declared in the suit. H.M. Textiles, was, therefore. entitled to file an application under S. 2 of the Partition Act, because they are holding more than

a moiety in the property. Ramakrishna who is entitled to 1/9th share is entitled to file an application under S. 3 of the Partition Act.. Equally

defendants 9 to 11, in our opinion, are entitled to file an application under S. 3 of the Partition Act because as in the case Of two Parties if one

party is divided the remaining goes to the second, in the-case of three parties, if the shares of two people are defined and divided the remaining

belongs to the third. In fact, the application has been filed jointly by defendants 9 to 11 and in the circumstances, we cannot say that the application

filed by defendants 9 to 11 is not maintainable.

In this connection the learned counsel for the appellant- referred to two decisions in support of his contention that unless there is a declaration

of the right of defendants 9 to 11. they could not file an application under S. 3 of the Partition Act. The deisions are S.V. Muthu Vs. Veerammal,

and Sarbeswar Panda and Others Vs. Bibhabasu Panda, . The decision in S.V. Muthu Vs. Veerammal, is by one of us. In that case, there was a

suit f or partition. Preliminary decree was passed. A certain sum of money was brought to the credit of the suit. Defendants 1 to 4 in the suit filed

applications for payment out. It was resisted on the ground that without payment of Courtfee, they cannot be permitted to withdraw the money. It

was contended on behalf of the defendants who filed the applications for payment out that no court-fee was payable since according to them on

the separation of the share of the plaintiff, the, share of the defendantsalso getascertained and separated and that there was no need theref ore for

the petitioners to pay court-fee on their share and pray for its separationas well.. It was held that once an amount had come to court, in view'' of-

the language used in S. 37 of the Court-fees Act, without payment of thecourtfee, the payment out could not be ordered. It was not decided

in~thisdecision that the share of the defendants is not separated when the ascertained shares of all the others are determined and separated. What

all that was decided was that when an amount -in apartition suit is available in the suit and one of the defendants applies for payment out, unless he

paid court-fee relating to his share, it is not possible to direct a payment out. In other words, the assistance of the! court could not be given by such

direction relating to the payment out without complying with the provisions relating to payment of court-fee. We are therefore of opinion that this

decision does not support the contention of the learned counsel that defendants 9 to 11 could not claim '' their share of the property as belonging to

them on the ground that the shares of the plaintiff alone are declared in the suits.

The other decision in Sarbeswar Panda and Others Vs. Bibhabasu Panda, also in our opinion does not help the learned counsel. In thatcase,

the plaintiffs had prayed for partition and separate possession of their 4/5th share out of 1/4th share belonging to the predecessors-in-title of that

share

The remaining 1/5th share out of the 1/4th share belonged to defendants 1 to 14, in that suit.Defendants I to4 whoclaimed the 1/5th share in the

1/4th share claimed by the plaintiffs filed an application for partition and separate possession of their shares. That was denied on the ground that

not only they have not prayed for the allotment of shares separatelyin their written statement, butalso it is not possible because that was not the

remaining share alone because that remaining share will have to be divided from the total 3/4th share held by the other people. In the

circumstances, the learned Judges held that theyshouldhave prayed fora separate prayer is such. We are unable to agree that this decision in any

way holds that persons Hkethe defendants 9 to 11 in this case could not claim the 3,19th share in the property as belonging to them. The result is

that there are three parties who own the property, viz., H.M. Textiles 5/9th share, Ramakrishnan 1/9th share and defendants 9 to 11 3/9th share.

Since H. M. Textiles was the owner of more than a moiety, they are entitled to file the application for sale under S. 2 of the Partition Act. Since

defendants 9 to 11 are also persons entitled to a share in the property, they are entitled to invoke the provisions of S. 3(2) of the Partition Act

along with the said Ramakrishnano, the plaintiff In C.S. No. 40 of 1981.

On the question whether the property is possible of division by metes and bounds, it is represented by the learned counsel that there was an

order by the learned single Judge in Applications Nos. 1731 of 11382 and 3332 of 1982 holding that the pkc-perty is not capable of division by

metes and bounds and that the said order of the learned Judge has become final and not appealed against. In the circumstances therefore 1.here

are no grounds to interfere with the order of the learned single Judge. Accordingly, these appeals fail and they are dismissed. There will, however,

be no order as to costs in any of these appeals.

Appeals dismissed.