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1994 Supreme(Guj) 16

Gujarat High Court
Judgename :A.N.Divecha
ARMANAND VADILAL VASANI - Appellant
Versus
STATE - Respondent
S.C.A. 4468 of 1987
Decided On : 01/25/1994

Advocates Appeared: A.J.PATEL, D.C.DAVE

Headnote:Indian Partnership Act, 1932 - Partnership - Death of either partner - Firm automatically stands dissolved and partnership assets would devolve upon its partners or representatives of partners as tenants- in-common. The position of law emerging would be that, when a partnership consists of only two partners, on the death of either partner, the firm automatically stands dissolved as there could not be a partnership with only one person as a partner. In view of the relevant provisions contained in sections 46 and 48 of the Partnership Act, on dissolution of the firm, the partnership assets would devolve upon its partners or the representatives of the partners as tenants-in-common. It would mean that each person getting his or her share in the partnership assets would be getting his distinct share therein even if the partnership assets remain undivided.

       [Para 3] Urban Land (Ceiling & Regulation) Act, 1976 - Section 8(4) - Declaration of holding to be in excess of the ceiling area - Finding of - Disputed land admeasured 4359.73 squaremetres of which father of petitioners had only 1/2 share as partnership assets - Each petitioner and the mother of the petitioners will have 1/3 share in that which would come to 725 squaremetres approximately much below the ceiling limit fixed for that area under the Act - In view of the matter impugned order as affirmed in appeal can not be sustained - Order quashed & set aside.It is needless to say that registration of a partnership firm under sec.69 of Partnership Act is not compulsory. Such registration enables the partnership firm to file a suit with respect to certain transactions connected with the contract with the partnership firm as mentioned therein. An unregistered firm will not be in a position to file such suit. Non-application of mind on the part of the appellate authority in that regard has resulted in an erroneous conclusion that the existence of a partnership firm cannot be taken note of in absence of its registration. [Para 4]Indian Partnership Act, 1932 - Section 69 - Registration of a partnership - Not compulsory - Such registration merely enables the partnership firm to file suit with respect to certain transactions connected with the contract with partnership firm - it is erroneous to hold that existence of a partnership firm can not be taken note of in absence of its registration. The disputed lands in all admeasured 4359.73 squaremetres. The deceased father of the petitioners was survived by the petitioners and their mother. They will be the heirs falling in Class I in the Schedule appended to the Hindu Succession Act, 1956, and as such they would inherit the property of the deceased in equal share. As pointed out hereinabove, the father of the petitioners had only 1/2 share in the partnership assets. The one-half of the area of the disputed lands would therefore come to 2179.96 squaremetres approximately. Each petitioner and the mother of the petitioners will have the 1/3rd share therein. Such 1/3 share would come to roughly 725 squaremetre approximately. This was very much within the ceiling limit fixed for that area under the Act. In view of that the impugned order as affirmed in appeal by the appellate order qua the present petitioner cannot be sustained in law and deserves to be quashed and set aside.[Paras 5 & 6]

DIVECHA, J.

( 1 ) THE order passed by the Competent Authority at Bhavnagar on 7/07/1984 under Sec. 8 (4) of the Urban Land (Ceiling and regulation) Act, 1976 (the Ceiling Act for brief) as affirmed in appeal by the common order passed by the Urban Land Tribunal (the Appellate authority for convenience) on 26/05/1987 inter alia in Appeal No. Bhavnagar-1318 of 1984 is under challenge in this petition under Art. 227 of the Constitution of India. By his impugned order, the Competent Authority declared the holding of the petitioners to be in excess of the ceiling area by 4749. 69 square metres.

( 2 ) THE disputes arising in this petition centre round four parcels of land bearing Plots Nos. 885 admeasuring 1071. 24 square metres, 886 admeasuring 1003. 35 square metres, 888 admeasuring 1449. 01 square metres and 1100 admeasuring 836. 13 square metres situated in Bhavnagar (the disputed lands for convenience ). The aforesaid block of four lands was taken on lease for 99 years by the deceased father of the petitioners alongwith one Nandlal prabhudas sometime in 1954. A copy of the necessary communication in that regard is at Annexure a to this petition. The terms of the partnership between the father of the petitioners and said Nandlal Prabhudas were not reduced to writing. The father of the petitioners herein breathed his last sometime on 23/08/1973. Since there were only two partners in the partnership firm and since one partner died leaving behind only one partner in the partnership firm and since there cannot be a partnership firm of only one partner according to law, the partnership in question automatically stood dissolved on the death of the father of the present petitioners. It is the case of the petitioners that both the partners in the said partnership firm had equal share and the leasehold rights in the disputed lands were inherited by the branch of the deceased partner and the other partner in equal share. On coming into force of the Ceiling Act, the petitioners were required to file the required form under Sec. 6 (1) thereof. Both the petitioners filed their separate form for the purposes of the Act. So far as the disputed lands are concerned, each petitioner showed his 1/3rd share in 50% thereof. In other words, each petitioner showed his 1/6th share in the disputed lands alongwith his other properties. On the basis of the aforesaid form, one draft statement was prepared by the Competent Authority and served to the petitioners and their mother as the heirs and legal representatives of their deceased predecessor-in-title. Its copy is at Annexure c to this petition. On behalf of the petitioners, a reply thereto was filed on 17/10/1981. Its copy is at Annexure d to this petition. It appears that in the meantime the other partner of the deceased father of the petitioners also breathed his last. He was survived by his own heirs and legal representatives. They appear to have formed one partnership firm in the name and style of Gokuldas Prabhudas and Bros. After the reply at Annexure d to this petition was received by the Competent Authority, it appears that another draft statement was prepared treating the disputed lands as belonging to the heirs of both the partners of the dissolved partnership firm in their capacity as an association of persons. That draft statement was served to the petitioners as well as the partnership firm formed by the heirs and legal representatives of the other partner as required by Sec. 8 (3) of the Ceiling Act. Its copy is at Annexure E to this petition. On behalf of the petitioners, the necessary objections were raised. A copy of their objections is at Annexure f to this petition. Strangely enough, the competent Authority thereupon registered in all five cases on the basis of the reply at Annexure f to this petition. One case was registered even against the father of the petitioners though he was no longer alive on the appointed day for the purposes of the Ceiling Act. By his common order passed on








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