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High Court Of Calcutta
AJIT KUMAR SENGUPTA , K. M. YUSUF
BRIJMOHANLAL RATHI - Appellant
Versus
GITA DEVI RATHI - Respondent
Suit 950 Of 1987
Decided On : 11/08/1990
SUIT FOR LAND - LEAVE UNDER CLAUSE 12 OF LETTERS PATENT - REVOCATION - PARTNERSHIP FIRM - SUIT FOR DECLARATION OF TITLE AND POSSESSION OF PREMISES PURCHASED FROM FUNDS OF FIRM - WHETHER SUIT FOR LAND - INTERPRETATION OF CLAUSE 12 OF LETTERS PATENT.
Fact of the Case:
Plaintiff, a partner in a partnership firm, filed a suit for declaration of title and possession of premises purchased from the funds of the firm. The premises were registered in the name of one of the partners, Ganeshlal Rathi, who was now deceased. The defendants were the heirs of Ganeshlal Rathi. The plaintiff claimed that the premises were an asset of the firm and that he was entitled to them under a deed of dissolution. The defendants contended that the suit was a suit for land and that leave under Clause 12 of the Letters Patent was required. The plaintiff contended that the suit was not a suit for land as the premises were an asset of the firm and not an immovable property.
Finding of the Court:
The court held that the suit was a suit for land and that leave under Clause 12 of the Letters Patent was required. The court held that the premises were an immovable property and that the plaintiff's claim was for determination of title and possession of the premises. The court also held that the suit was not a suit for specific performance of a contract as the plaintiff was not seeking to enforce a personal covenant of Ganeshlal Rathi, but was seeking to establish his title to the premises.
Issues: 1. Whether the suit was a suit for land. 2. Whether leave under Clause 12 of the Letters Patent was required.
Ratio Decidendi: The court held that the suit was a suit for land and that leave under Clause 12 of the Letters Patent was required. The court held that the premises were an immovable property and that the plaintiff's claim was for determination of title and possession of the premises. The court also held that the suit was not a suit for specific performance of a contract as the plaintiff was not seeking to enforce a personal covenant of Ganeshlal Rathi, but was seeking to establish his title to the premises.
Final Decision: The court dismissed the appeal and held that the suit was a suit for land and that leave under Clause 12 of the Letters Patent was required.
( 1 ) THIS appeal is directed against the judgment and order dated 26/08/1988 passed by the learned single Judge on an application of the respondents/defendants under O. VII, R. 11 of the Code of Civil Procedure, inter alia praying for revocation of the leave granted under Cl. 12 of the Letters Patent. By the said judgment and order, the learned single Judge allowed the application of the respondents and dismissed the suit on the ground that it was a suit for land, which is situate beyond the jurisdiction of this Court.
( 2 ) TO appreciate the contentions raised in this appeal, it is necessary to summarise the case made out by the plaintiff in the plaint. According to the plaintiff, he was a partner along with some other defendants and one Ganeshlal Rathi of a partnership-firm named Venkatesh Steel Co. Out of the funds of the firm a building and land was purchased at 7 Hanuman Road, New Delhi for and on behalf and account of the said firm. Although the said premises stood and stands registered in the name of Ganeshlal Rathi (since deceased), the said premises were and are in fact an asset of the firm. The firm was dissolved by a deed of dissolution. Under the said deed, the plaintiff became entitled to, inter alia, the said premises. The respondents are in possession of the said premises in trust and for the benefit of the plaintiff. The respondents are denying and or interested in denying the right, title and interest of the plaintiff in the said premises.
( 3 ) ON the basis of the allegations contained in the plaint, the plaintiff has made, inter alia, the following prayers :a) Declaration that the plaintiff under the said deed of dissolution is entitled to the premises No. 7, Hanuman Road, New Delhi. b) Decree directing the first 8 defendants and each of them, their servants, agents and/or assigns to execute and sign all necessary documents and deeds and do all such other acts or things as may be necessary for registering the said premises in the name of the plaintiff. c) If the aforesaid defendants fail and neglect and make default in executing any document or deed or to do any such act or thing as is necessary, the Registrar of this Court be directed to do so for and on behalf of the said defendants. d) Perpetual injunction restraining the first to eight defendants and each of them, their servants, agents and/or assigns from in any way or manner acting in derogation of or in a manner inconsistent with the right, title and interest of the plaintiff under the said deed of dissolution to and in respect of the aforesaid premises.
( 4 ) AT the hearing before us it has been contended on behalf of the appellant that the instant suit in fact and in essence is a suit for enforcement of the right of the appellant under the said deed of dissolution dated 13/11/1976, described as the deed of retirement. The said deed, inter alia, provided that the partnership-firm Venkatesh Steel Co. , of which several of the Rathi Brothers were partners, would be dissolved and the business would be carried on by the appellant Brijmohanlal Rathi alone and that he would alone be responsible for meeting the liabilities of the business. It was agreed by and between the Rathi Brothers that all the assets of the firm would be collected by the appellant and he should pay all the liabilities including the claims of the bank incurred in connection with the business of the firm. Our attention has been drawn to three clauses which, according to the appellant, are the most important clauses of the said deed. These are reproduced hereinafter :"clause 1 : The Partnership business between the parties hereto under the name and style of Messrs. Venkatesh Steel Company is hereby declared to have been dissolved by mutual consent on and from the 1st day of November, 1976 and the said business is to be carried on by the continuing partner alone as the sole proprietor thereof on and from the 1st day of November, 1976. Clause 2 : The retiring part
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