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2010 Supreme(Ker) 274

High Court of Kerala
THE HONOURABLE MR. JUSTICE THOMAS P. JOSEPH
V.J. George Others
Versus
V.V. George Others
SA.No. 339 of 2001
Decided On : 09-04-2010

Advocates Appeared:
For the Petitioners:S.V. Balakrishna Iyer (Sr.), P.B. Krishnan, Advocates.
For the Respondent:T. Krishnan Unni (Sr.), Saju, Advocates.

Headnote:

Partnership Act, 1932 - Section 14 - Registration Act, 1908 - Section 17(1)(b) - On a true construction of Ext.B2, was not the suit property and other items included in Annexures I to III thereof thrown into the firm by the retiring partners with anintention to henceforth treat the same as property of the partnership as newly constituted and in view of S.14 of the Indian Partnership Act is the said document compulsorily registerable under the Indian Registration Act - Is not a mere intention to treat individual properties as partnership properties sufficient to treat such properties as having been transferred to the partnership firm and is it legally necessary to execute any formal conveyance - Are not the covenants in Ext.B2 to execute conveyances, powers of attorney or to subscribe signatures by the retiring partners at some future point of time as and when called upon to do so by the continuing partners by way of abundans cautela non nocet, so as to ensure utilization of individual properties of the outgoing partners for purposes of the business of the firm, represented by the continuing partners - Held, what is pleaded by the Bank is that equitable mortgage was created by defendant Nos.2 to 6 therein (who are parties of the first and second parts in Ext.B2) on 16.10.1968. Thus as per Ext.A4, the parties of first part including the respondent also had joined in creating equitable mortgage over Annexures I to III properties referred to in Ext.B2 - There is no contra evidence - going by the evidence on record it is a case where deposit of title deed in respect of the suit property with the Bank was made by or, at any rate with the junction of the respondent which also indicate that title of the suit property remained with the respondent - Appeals Dismissed.

Judgment :

The substantial questions of law framed for a decision are:

i. On a true construction of Ext.B2, was not the suit property and other items included in Annexures I to III thereof thrown into the firm by the retiring partners with an intention to henceforth treat the same as property of the partnership as newly constituted and in view of Section 14 of the Indian Partnership Act (for short, "the Act") is the said document compulsorily registerable under the Indian Registration Act (for short, "the Registration Act")?

ii. Is not a mere intention to treat individual properties as partnership properties sufficient to treat such properties as having been transferred to the partnership firm and is it legally necessary to execute any formal conveyance?

iii. Are not the covenants in Ext.B2 to execute conveyances, powers of attorney or to subscribe signatures by the retiring partners at some future point of time as and when called upon to do so by the continuing partners by way of abundans cautela non nocet, so as to ensure utilization of individual properties of the outgoing partners for purposes of the business of the firm, represented by the continuing partners?

2. M/s.V.O.Vakkan & Sons (for short, "the firm") is a egistered partnership firm which was engaged in the business f manufacturing, buying, selling and exporting coir, coir fibre, oir products, etc. While so as per Ext.B2, unregistered deed ated 08.09.1967 three of its partners - M/s.V.V.Antony, .V.George and V.V.Job retired from the partnership with effect rom that day and while making arrangements regarding iability of the retiring partners, made certain arrangements with respect to a few items of immovable properties (referred to in Annexures I to III of Ext.B2) which belonged to the retiring partners. In accordance with that arrangement the said properties were put in the possession of M/s.V.V.Joseph and V.J.George who continued as partners of the said firm. The said V.V.Joseph and V.J.George were authorised to deal with the said properties and if necessary encumber the same provided, no personal liability was created on the retiring partners. Accordingly, the said properties were subjected to an equitable mortgage in favour of the Syndicate Bank, Alappuzha (for short, "the Bank") on 16.10.1968 for a loan availed by the firm. The Bank filed O.S.No.120 of 1972 in the Sub Court, Kochi against the firm, its then partners, M/s.V.V.Antony, V.V.George, V.V.Job and others for realisation of money by sale of the mortgaged properties. The Bank obtained a decree in its favour. In the course of execution of that decree the executing court permitted Shri V.V.Joseph to effect private sale of the said properties and liquidate the decree debt. Certain items of the said properties were sold and liability of the Bank was discharged. Shri V.V.Joseph and V.V.George applied to the executing court to direct the Bank to deliver to them Ext.B2 and the title deeds relating to the immovable properties subjected to the equitable mortgage. There were counter claims also for custody of the title deeds. The executing court as per order dated 17.06.1989 directed that the title deeds and Ext.B2 be delivered to the firm and its partners, Shri V.V. Joseph and V.J. George making it clear that dispute regarding title to the properties shall be decided in appropriate proceeding. On 08.05.1992 Shri V.V. Joseph filed O.S. No.120 of 1992 in the vacation court (District Court, Ernakulam to be filed in the Sub Court, Kochi) against Shri V.V. George (one of the partners who retired from the firm as per Ext.B2 dated 08.09.1962) seeking a decree for prohibitory injunction against alienation of the suit property (which is included in Annexures I to III of Ext.B2), inducting strangers or disturbing peaceful enjoyment of the said property claiming title and possession of the said property. Shri V.V.George filed O.S. No.282 of 1992 in the Sub Court, Kochi against Shri V.V. Joseph, V.J George and others for rec




























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