Subsequent registration of a firm under the Partnership Act cannot validate a suit instituted before the registration, as the prohibition in Section 69 of the Act is against the institution of the suit itself and not merely against the issuance of the first compulsory process to bring the parties into court.

Kapur, J.

1. This is a plaintiffs appeal against the judgment and decree of Mr. Jagan Nath, Senior subordinate Judge, Hissar, dismissing the plaintiffs suit.

2. The plaintiffs claiming to be a Joint Hindu family arm brought the suit, out of which this appeal has arisen, for recovery of Rs. 10,000/- on account of "non-delivery or mis-appropriation" of pledged goods. The defence inter alia was that the plaintiff-firm was not a joint faintly firm and no suit could be instituted because it was not a registered firm. The learned Judge raised two issues:

" 1. Is the plaintiff-firm a joint Hindu family business and does not require registration?

2. If not, should the suit fail?"

He held that it was not a Joint family firm and as it was admitted that it had not been registered under Section 69, Partnership Act it could not institute the suit and even" though the registration had been effected after the suit had been brought the defect of want of registration could not be rectified.

3. Counsel for the appellants has submitted in the first instance that the plaintiff-firm is a joint Hindu family firm and is not a contractual firm and, therefore, no registration was necessary.

4. There is a document, Ex. D-4, on the record, i.e., a letter signed by Mangal Chand and Chhabil Das addressed to the Agent of the Central Bank of India, Ltd., Hissar, dated 11-12-1945. In this it is stated:

"We, the undersigned, are the partners in the said firm.....The Bank may recover its claim from the estate of any or all of the partners of the firm. Whenever any change occurs in our partnership. ....We undertake to inform the Bank .....and our individual responsibility to the Bank will continue until....."

Mangal Chand plaintiff made a statement before Issues hi which he admitted that this document Ex. D-4, was signed by him and that their firm was not a registered firm and also that the firm had been started eight years ago. He made a supplementary statement In which he stated that the account-books were lost in the disturbances.

5. For the plaintiffs two persons were produced as witnesses. The first is Khushi Ram P. W. 1. He does not seem to be of much assistance to the plaintiffs as he does not say that the plaintiff-firm is a Joint Hindu family firm. All he says is that they, the brothers, are Joint. No stranger is a partner in it. And also that "the firm was started seven or eight years ago". This does not show that there is any Joint Hindu family firm. The other witness is P.W. 2 Tara Chand, who has stated that the plaintiff-firm is owned by Chhabil Das and Mangal Chand who are real brothers and are joint, that the firm is a joint Hindu family concern and no stranger is a partner in it. In cross-examination he said that Mangal Chands sons were joint with him.

6. It is significant that neither of the partners appeared as a witness to support the case that they were members of a joint Hindu family and their firm was a joint Hindu family firm. The books of account, which would have been the best evidence in favour of the firm being a joint Hindu family firm, were not produced on the ground that they had got lost during the disturbances. There Is no explanation as to why the plaintiffs described themselves as partners of a firm when they were executing Ex. D-4. On this evidence I would hold that the plaintiffs have not proved that the firm is a joint Hindu family firm and is not a contractual firm. In this connection counsel for the appellants relied on a judgment in -- Debi Sahai v. Gillu Mall, AIR 1938 Lah 563 (A), but there the learned Judge remarked that there was evidence which showed that the firm was a joint Hindu family firm. It was not decided as a mere question of law but on the evidence in that case it was held that the firm was a Joint Hindu family firm.

7. It was then submitted by Mr. Faqir Chand Mittal that as the firm was registered on 7-6-1948, which was about two months after the institution of the suit, the suit should not have be