JUDGMENT :

Prayer: Second Appeal is filed under Section 100 of C.P.C. against the judgment and decree dated 04.12.2007 made in A.S.No.99 of 2007 on the file of the I Additional Sub Court, Coimbatore confirming the judgment and decree dated 04.06.2007 made in I.A.No.110 of 2006 in O.S.No.2449 of 2004 on the file of the II Additional District Munsif Court, Coimbatore.

This Second Appeal is filed against the judgment and decree dated 04.12.2007 made in A.S.No.99 of 2007 on the file of the I Additional Sub Court, Coimbatore, confirming the judgment and decree dated 04.06.2007 made in I.A.No.110 of 2006 in O.S.No.2449 of 2004 on the file of the II Additional District Munsif Court, Coimbatore.

2. This appeal raises an interesting question of law. The point being, if a person seeks for declaration that he is a partner of a Firm and that Firm is unregistered, whether the suit is hit by virtue of Section 69(1) of the Partnership Act, 1932.

The short facts leading to this appeal are:

3. On 12.05.1975, a firm was commenced bearing Registration No.278/1975, under the name and style of Asoka Service. The purpose of the firm was to run the business of buses. At the time of formation, the firm consisted of two partners, namely the 2nd plaintiff Mirsath Begum and one Ponnusamy. This firm was dissolved in and by way of a Deed of Dissolution dated 27.01.1978, with effect from 31.12.1977.

4. It is the case of the plaintiffs that on 02.02.1978, the aforesaid Mirsath Begum and one M.Saburath Begum formed a partnership under the same name. The firm continued and it was re-constituted on 19.08.1989. On that day, R.Muthukrishnan and T.V.Subramaniam, who are the 4th and 5th plaintiffs became partners of the firm.

5. It is the plaintiffs case that in order to get finance for the purpose of running the business, they approached the defendants. Prior to this event, the plaintiffs have pleaded that the partnership firm, on the strength of the permits granted by the State of Tamil Nadu, has not only changed the route bus, but also substituted the said bus with other one. The plaintiffs pleaded that the 1st defendant has arranged finance from one Vinayagar Finance at Vellur. The amount borrowed was Rs.3,00,000/-. According to the plaintiffs, they had been servicing the interest on regular basis. On 28.11.1998, they received a Telegram from the financier by name Velusamy, calling upon them to settle the amounts fully and finally. The plaint proceeds to read, when the plaintiffs approached the financier to make the payment and it was then to their shock and surprise, they came to know that the 1st defendant had paid a sum of Rs.2,00,000/-, leaving a balance of Rs.1,00,000/-. The plaintiffs expressed surprise that while the loan was taken from the aforesaid Vinayagar Finance by the partners, the payment had been made by the 1st defendant to the financier. Be that as it may, with only Rs.1,00,000/- remaining with Vinayagar Finance, she paid the same and settled the amount in full quit with the said financial entity.

6. On 23.12.1998, the two plaintiffs approached the 1st defendant to make the payment of Rs.2,00,000/- [total loan is Rs.3,00,000/- less Rs.1,00,000/- paid by the plaintiffs to Vinayagar Finance] being the amount paid by the 1st defendant. The latter refused to receive the payment and demanded that the bus should be left in his custody. On verification of the records, she came to understand from the blank papers given to the 1st defendant, at the time of receipt of the loan, he had created a fraudulent partnership deed, showing as if the 1st defendant had joined the partnership on 01.07.1998 along with plaintiffs 2 & 3 and had created yet another document dated 30.01.1999, under which the plaintiffs 2 & 3 are said to have retired from the firm.

7. On the basis of the aforesaid documents, it is the case of the plaintiffs that forcible possession of the bus was taken by defendants on 24.02.1999. Immediately, the plaintiffs lodged a Police complaint on 25.02.19