QURUSHIDDAYYA KALKAYYA Vs. SHAH HIRACHAND VANECHAND AND CO

JUDGEMENT

(1.) This is an appeal brought by defendants 1, 3, 6 and 7 in forma pauperis against the judgment and decree dt. 30-11-1965 passed by the Civil Judge, hubli, in Spl. S. No. 15 of 1963 decreeing the suit for sale on the basis of a mortgage executed by the defendants in favour of the plaintiff ' Sha hirachand Vanchand and Co. ' which is a registered partnership firm carrying on business at Hubli. Defendants 2 to 7 are the sons of Deft. 1 and they are members of a joint Hindu family. The family of the defendants was carrying on business in Hubli; in respect of the dealings carried on with the plaintiff firm, a sum of Rs. 33,197-6-0 was found due according to the accounts. As the defendants were unable to pay the said amount, they executed on 20-10-1959 a mortgage of the suit properties in favour of the plaintiff firm for Rs. 34,000. The consideration for the mortgage was the sum of Rs. 33,197-60 due on accounts and a further sum of Rs. 802-10-0 paid in cash before the Sub Registrar at the time of the registration of the document. Under the terms of the mortgage, the mortgagee was to remain in possession of the mortgaged properties and allowed to appropriate the rents and profits in lieu of interest. The mortgagors agreed to redeem the mortgage by paying Rs. 34,000 within two years of the date of the mortgage. It was also provided in the deed that if the mortgagors failed to redeem the mortgage within the time stipulated, the mortgagee shall

(2.) Be at liberty to recover the mortgage money. On the date of the mortgage, one Vanechand was a partner of the plaintiff firm. He died on 12-7-62 leaving his wife Mittubai. On 13-7-1962 the plaintiff firm was reconstituted by taking Mittubai as a partner in place of her deceased husband Vanechand. Mittubai's name was entered in the Register cf Firms as a partner on 24-7-1963. The suit was instituted on 4-1-1963 in the name of the firm Shah Hirachand Vanechand and Co. ' as plaintiff for recovery of Rs. 34,000 by sale of the mortgage property. The defendants contested the suit raising various contentions. Briefly stated, their contentions were : (1) that Vanechand who was a partner of the firm died on 12-7-1962 with the result that the firm was dissolved and the plaintiff cannot file a suit on behalf of the dissolved firm; (2) that on the date of the mortgage, there was an attachment of the mortgage properties by one Siddaramappa Shivappa Walli in L. C. No. 146 of 1956 and therefore the mortgage is not according to law; (3) that the defendants are only 'wahiwatdars' of the properties and that one Sattawwa Kom Godgaya Salimath is the owner; (4) that the plaintiff has recovered Rs. 32,000 by way of rent from the mortgaged properties and therefore it is liable to account for the said mm; (5) that the real consideration for the mortgage is only Rs. 802-10-0 and that the rest of the amount shown as debt due by the defendants comprises of compound interest and therefore an account should be taken of the actual amount due to the plaintiff; and (6) that the mortgage was taken by misrepresentation. On the pleadings the learned trial Judge settled the following issues: (i) Whether the plaintiff is registered firm and has the right to sue on the suit mortgage bond (ii) Whether the plaintiff firm is dissolved after the death of Vanechand (iii) If, so whether the present partners of the plaintiff firm have the right to sue on the suit mortgage bond (iv) Do defendants prove want of consideration for the mortgage bond (v) Do defendants prove that the mortgage has not been executed through their consent (vi) Is Sathawwa Kalimath a necessary party to the suit mi) Whether it is for the default of the defendants that the plaintiff has not been able to realise the rent from the tenant and some of the mortgage properties (viii) If so, is plaintiff entitled to claim damages from the defendants (ix) To what damage is plaintiff entitled in this behalf (x) What is due to the plaintiff on the suit mortgage bond (xi) What decree the first contention was given up by the defendants and consequently issues 1, 2 and 3 were not pressed. But on the application of the defendants the following additional issues were raised: (1) Whether the widow Mittubai was included as partner of the firm after the death of Vanechand If so, whether her name was entered in the register at the time of suit (2) If her name is not entered then whether the suit is maintainable on additional issue No. 1, the trial Judge recorded a finding to the effect that on 13-7-1962 Mittubai became a partner of the reconstituted firm and that her name was not entered in the Register of Firms on the date of the institution of the suit. On the additional issue No. 2, relying on "the decision in Chaimanlal Vs. Firm New India, Traders, AIR 1962 Pat. 25 he held that 'the fact that the name of Mittubai did not appear in the certificate of the registration of the firm on the date of the suit is no bar under S. 69 (2) of the Indian Partnership Act, 1932 (hereinafter called 'the Act') for the maintainability of the suit by the registered firm.

(3.) The bar of S. 69 (2) was the most serious contention urged in the trial court and also in this Court. The rest of the contentions on the basis of which issues 4, 5, 6 and 10 and additional issue No. 3 were framed were found against the defendants, with the result that the plaintiff's suit for recovery of the mortgage money by sale of the mortgage properties was decreed. The main question that arises for determination in this appeal is whether the suit is not maintainable because the name of Mittubai was not shown in the the Register of Firms as a partner on the date of the institution of the suit.