DESAI, C.J. - (1.) I agree with the answer proposed by my brother, Brijlal Gupta. There is no doubt whatsoever that the latter partnership, which is sought to be registered, is a partnership consisting of 3 individuals, 3 Hindu undivided families consisting of 4 adult coparceners and 6 firms consisting of 14 partners. The partnership deed was signed by the 3 individual, 3 kartas of Hindu undivided families and 6 persons acting as representatives or agents of the firms, that is, by 12 persons. From the recitals in the partnership deed itself it is clear that the kartas entered into the partnership not as individuals but as representatives of the Hindu undivided families and that the 6 partners entered into the partnership as representing the 6 firms, i.e., the partners of the partnership in dispute were 3 individuals, 3 Hindu undivided families and 6 firms.
(2.) A Hindu undivided family cannot be a partner; this proposition admits of no doubt. The Income-tax Act does not recognise a partnership of which a Hindu undivided family is a partner. A karta of a Hindu undivided family may be a partner, but, so far as the Partnership Act is concerned and the Income-tax Act is concerned, only he will deemed to be the partner and not the Hindu undivided family, nor its coparceners. Really he is a partner as an individual and, it is only by virtue of the Hindu law, that his partnership becomes a joint family property or his interest in the partnership is held to be that of the Hindu undivided family. A Hindu undivided family is not a juristic person and cannot be a partner. What has happened in this case is that 3 of the partners are not kartas as individuals but Hindu undivided families consisting of 4 adult coparceners. Instead of the 3 kartas being the partners, 4 adult coparceners are the partners. A firm also cannot be a partner of another partnership. A partnership is not a juristic entity, it being only a compendious name for all the partners. Where one speaks of a partnership, one really speaks of all the partners. Therefore, when in the partnership in dispute 6 persons representing 6 firms are said to be the partners, it is really the 14 persons among the firms who are the partners. The result is that the partnership in dispute consists of 21 partners and is thus an illegal partnership which cannot be registered. Another defect is that the application for registration is signed by only 12 out of the 21 partners. An application for registration must be signed by all the partners; it cannot be signed by agents of partners.
(3.) ANOTHER defect in the deed of partnership and the registration application is that the individual shares of the partners are not specified. The share of each of the 21 partners ought to have been specified in both the documents. Specifying the share of a Hindu undivided family, or of a partnership, is not enough, because neither a Hindu undivided family nor a partnership can be, or is, a partner. The shares of the real partners ought to have been specified. Sri V. P. Tewari relied upon certain observations made by Malik C.J. and Bhargava J. in In re Ram Kumar Ramniwas, but they were obiter. There a Hindu undivided family was a partner and the learned judges held that it could not be a partner and went on to deal with a case in which a karta of it might have been a partner. All the reference to the law in respect of a karta being a partner was nothing but obiter. In the case of Firm Bhagat Ram Mohanlal the Supreme Court did not discuss whether the karta was partner, or the Hindu undivided family, of the earlier partnership and assumed that the karta was the partner. It is, therefore, no authority in support of the contention advanced before us that the three kartas, and not the Hindu undivided families, were partners of the partnership in dispute. The observation on pages 525-526 that where a karta is a partner he alone is the partner and his coparceners are not partners has no application when a Hindu undivided family and not the karta is a partner. There is a real distinction between a karta being a partner and a Hindu undivided family being a partner; the distinction is not imaginary. When the law prohibits a Hindu undivided familys being a partner but permits its kartas being a partner it confirms the distinction between the two. There would have been no sense in prohibiting a Hindu undivided familys being a partner if there was no such thing, as distinct from its kartas being a partner, i.e., if its being a partner were the same as its kartas being a partner. In Lachhman Das v. Commissioner of Income-tax the Supreme Court held that there can be a partnership between a karta and a coparcener and did not consider the validity of a partnership between a Hindu undivided family and a coparcener. A partnership between a karta and a coparcener was recognised because it is not a partnership between the Hindu undivided family and its coparcener. It is pointed out that when a karta is a partner the Hindu undivided family does not become a partner. Here, though nominally the three kartas were said to be the partners, really the three Hindu undivided families were the partners. Even if it be said that the three kartas were partners as individuals, there was still the fatal defect that the partners of the 6 firms did not sign the application for registration and their shares were not specified. The earlier deed of partnership suffers from the same defect but in an aggravated form. Therefore, both the partnerships were rightly refused registration.;