Subsequent registration of a partnership does not cure the initial defect in the institution of a suit under Section 69(2) of the Partnership Act.

Bhagwati, J.

1. This is a second appeal from a decision of the learned Assistant Judge, Thana, who allowed the appeal from a decision of the Joint Civil Judge, Junior Division, Thana, dismissing the plaintiffs suit.

2. This second appeal raises a short point as to the effect of registration of a partnership after the institution of the suit. The plaintiffs were partners carrying on business as such and in the course of the partnership had dealings with the defendants. The suit was filed by the plaintiffs for recovery of possession from the defendants of suit property and also for recovery of past rents and future mesne profits. The partnership was not registered on or before 10-10-1944, when the plaint was presented at the Court at Andheri. It was subsequently registered on 16-3-1945, and the plea which was taken on behalf of the plaintiffs was that this subsequent registration of the partnership was enough to enable the plaintiffs to maintain the suit, notwithstanding the provisions of Section 69 (2), Partnership Act. The learned trial Judge, following the decision of the Madras High Court in Ponnuchami v. Muthusatni, A. I. R. (29) 1942 Mad. 252 : (I. L. R. (1942) Mad. 355) held against this contention of the plaintiffs and dismissed the plaintiffs suit. The lower appellate Court, however, followed the Full Bench decision of the Lahore High Court in Nazir Ahmad v. Peoples Bank of N. I., A.I.R. (29) 1942 Lah. 289 : (I. L. R. (1942) Lah. 517 F. B.) and held that the subsequent registration of the partnership cured the defect and validated the suit as had been instituted, allowed the appeal and passed a decree in favour of the plaintiffs. This second appeal has been filed by the original defendant 1 against this judgment of the lower appellate Court. The second appeal came on for hearing in the first instance before Dixit J. sitting alone, and in view of the conflict of authorities which was pointed out to him he referred it to a Division Bench. The appeal has accordingly come up before us for hearing and final disposal.

3. The terms of Section 69 (2), Partnership Act, may be set out at this stage, and they are:

"No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persona suing are or have been shown in the Register of Firms as partners in the firm."

There is no decided case of our High Court on the construction of Section 69 (2), Partnership Act. Speaking for myself, I may say that this point has been urged before the Judges of the Original Side of this High Court on a number of occasions and on a plain construction of Section 69 (2), Partnership Act, suits instituted by partnership firms without the same being registered have been invariably dismissed for want of registration of the partnerships before the institution of the suit. A plain reading of the terms of Section 69 (2) of the Act, without anything more clearly shows that the institution of a suit to enforce a right arising from a contract is barred unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. No words could be clearer than these to prevent a suit being instituted by or on behalf of a firm unless the firm was registered, and it is really surprising to find even the few authorities that have been cited against this proposition. There are, however, three cases which have been reported and which go to support this contention, viz., a subsequent registration of the partnership firm can cure the initial defect in the institution of a suit. These authorities are, Jakiuddin v. Vithoba, A.I.R. (26) 1939 Nag. 301: (186 I. C. 670); Radha Charan v. Matilal, 41 C. W. N. 534 and Varadarajulu Naidu v. Rajamanika Mudaliar, (1937) 2 M. L. J. 273 : (A. I. R. (24) 1937 Mad. 767). All these authorities were, however, considered by the learned Judges of the Madras High Court in a decision