IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.01.2008 C O R A M THE HONOURABLE Mr.JUSTICE P.JYOTHIMANI W.P.No.27385 of 2007 and M.P.Nos.1 to 3 of 2007 M/s.Jeevandas Laljee & Son, 98/103, Govindappa Naicken Street, Chennai – 600 001. Rep. by its Partner Mr.Bhupan T.Asher. .. Petitioner -Vs- 1. State of Tamil Nadu, Rep by the Secretary to Government, Commercial Tax Department, Secretariat, Fort St. George, Chennai – 600 009. 2. The Registrar of Firms, North Beach Road, Chennai – 600 001. 3. The Inspector General of Registration, Santhome High Road, Chennai – 600 028. .. Respondents Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus calling for the records of the second respondent comprised in its order under Ref.Thi.Mu.No.4760/E4/07 dated 30.04.2007 as much as it is attached to the Form No.5 filed by the petitioner, refusing to take on record the notice under Form No.5 and the subsequent impugned order of the third respondent dated 26.06.2007 under Ref.L.Dis.No.21603/S1/07 and quash the same as arbitrary and illegal and contrary to the provisions of the Partnership Act and the Madras Partnership (Registration of Firms), 1951 and consequently direct the second respondent to forthwith take on record in notice dated 27.04.2007 filed by the petitioner in Form No.5 in terms of Rule 4 and make the record of such notice in entry relating to the petitioner's firm in the Register of Firms and file the same along with the statement relating to the firm filed under Section 59 of the Partnership Act. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.Satish Parasaran For Respondents : Mr.L.S.M.Hasan Fizal Government Advocate - - - - O R D E R This writ petition is filed challenging the order of the third respondent the Inspector General of Registration, Chennai dated 26.06.2007, in which the third respondent has refused to record the reconstitution of the registered partnership firm, which was filed in Form No.V bearing the signature of all the existing partners of the reconstituted firm, on the basis that Form No.V should also contain the signature of the partners who have retired in order to avoid any litigation in future between the partners. 2. The partnership firm was originally constituted with 5 partners namely Jamnadas Hansraj Asher, Bhupan T.Asher, Mihir Pratap Asher, Mrs.Vasant P Asher and Mr.Tricumsee Hansraj Asher and the said partnership firm was registered on the file of the Registrar of Firms and District Registrar, Chennai\North with S.No.2328 of 1948. Subsequently two of the partners namely Mihir Pratap Asher and Mrs.Vasant P. Asher have submitted their letters of retirement from the partnership firm on 06.08.2004. In these circumstances, the three remaining partners namely Jamnadas Hansraj Asher, Bhupan T.Asher and Tricumsee Hansraj Asher have reconstituted the firm in the same name and as per Section 63(1) of the Indian Partnership Act, 1932 have filed an application in Form No.V as prescribed under Rule 4 of the Rules made under Madras Partnership (Registration of Firms) Rules, 1951. The third respondent has refused to enter the Form No.V in the Register on the basis that the retired partners has not signed in the Form No.V. 3. The learned counsel appearing for the petitioner would submit that as per Section 63 of the Indian Partnership Act, when once the change occurs in the constitution of a registered partnership firm, any incoming, continuing or outgoing partner or any other person authorised by them may intimate the same to the Registrar in the prescribed form i.e. Form No.V as per Rule 4 of the Madras Partnership (Registration of Firms) Rules, 1951. It is only in cases where there is dissolution of partnership firm, which is a registered firm, the partner who goes out of the partnership firm or his authorised representative is expected to sign Form V. Further, the learned counsel appearing for the https://hcservices.ecourts.gov.in/hcservices/ petitioner would refer to Form No.V provided under Rule 4 of the said Rules. The said Form V consists of two parts, the first part relates to the change in the constitution of the partnership firm and the second part deals with the dissolution of the firm. When change occurs in the constitution of a registered firm on the retirement of the partners in which case the signature of the partners incoming, continuing or outgoing partner is required. In the present case the three partners are continuing as partners. Since Form No.V provides for signature of either the incoming, continuing or outgoing partner and it does not specifically state that the outgoing partners should sign Form V, which is prescribed under Rule 4 of the said rules. Further Section 63(1) of the Act does not insist the signature of the outgoing partners. 4. On the other hand the learned Additional Government Pleader would submit that the purpose of passing of the impugned order is to avoid any litigation in further between the partners. Further according to him the impugned order is not illegal or irregular and it is passed only in the interest of the partners and in order to avoid future litigation. 5. Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents. 6. It is well settled that as far as the partnership firm is concerned, Registration of the firm is only optional and accordingly the registration of a firm do not confer any legal status to the partnership firm. It is equally same in respect of registration of the partnership deed also. It is not in dispute that originally the partnership firm consisted of five partners and subsequently on 6.08.04 two of the five partners retired from the partnership firm and there is no dissolution of the partnership firm as it is seen in Form No.V filed by the petitioner and it is seen that after retirement of two of the partners from the partnership firm, the remaining three partners reconstituted the firm and they all signed Form No.V and intimated the same to the Registrar for registering the change effected in the reconstitution of the firm. 7. Section 63 (1) of the Indian Partnership Act reads as follows: "Section 63 Recording of changes in and dissolution of a firm.--(1) When a change occurs in the constitution of a registered firm any incoming, continuing or outgoing partner, and when a registered firm is dissolved any person who was a partner immediately before the https://hcservices.ecourts.gov.in/hcservices/ dissolution, or the agent of any such partner or person specially authorised in this behalf, may give notice to the Registrar of such change or dissolution, specifying the date thereof; and the Registrar shall make a record of the notice in the entry relating to the firm in the Register of Firms, and shall file the notice alongwith the statement relating to the firm filed under section 59." Thus Section 63(1) consists of two parts. The first part of Section 63 relates to the retirement of some of the partners which results in reconstitution of the partnership firm and secondly in cases where retirement of partners results in dissolution of the partnership firm. It is made very clear in the said section that after retirement of some of the partners, if the partnership firm is reconstituted and it is continuing then the same has to be intimated by the incoming partners, continuing partners or outgoing partners or by any person who is specially authorised by them to the Registrar. It is only in cases where there is dissolution of partnership firm which arises out of retirement of the partners then the retired partners have to sign the Form No.V. 8. Form No.V prescribed under Rule 4 of the Madras Partnership (Registration of Firms) Rules, 1951 is reproduced as under: "Rule 4. Form of intimation and notices under Sections 61, 62 and 63-- Intimation and notices under Sections 61, 62, 63(1) and 63(2) of the Act shall respectively be in Forms III, IV, V and VI annexed to these rules, with such variations as circumstances may require." FORM V (see Rule 4) Notice of the change in the constitution of the Firm or of the dissolution of the Firm Filing fee--Rs.1 Presented or forwarded to the Registrar of Firms for filing by-- Under Section 63(1) of the Indian Partnership Act, 1932, notice is hereby given that-- https://hcservices.ecourts.gov.in/hcservices/ (1) The constitution of the firm*________has been altered as follows: ----------------------------------------------------------------- Name and full address of the I Name and full address of the incoming partner and date I outgoing partner and date of his joining the firm I of his ceasing to be partner ----------------------------------------------------------------- I I ----------------------------------------------------------------- Station--- Date--- Signature of the incoming, continuing or outgoing partner or his special authorised agent. (2) The firm*__________ has been dissolved with effect from the___ Station--- Date--- Signature of the person who was a partner immediately before the dissolution or of his specially authorised agent. ----------------------------------------------------------------- N.B.-- Strike out item (1) or (2) not required *Here enter the name of firm. A reference to Form No.V makes it very clear that it contains two paragraphs. The first para related to first portion of the Section 63(1) wherein the partnership firm is reconstituted on the retirement of the partners in which case the incoming, continuing or outgoing partner have to sign. In the second para when the firm is dissolved it is stated that signature of the persons who was a partner immediately before the dissolution is required. It is also stated in Form V that the para (1) or (2) which is not applicable has to be struck out. 9. In these circumstances, the stand taken by the third respondent that to avoid any future litigation between the partners, signature of the outgoing partners is required has no legal basis at all. It is not for the third respondent to decide about the legal dispute between the partners as the disputes will be decided as per the partnership deed and it is not the concern of the third respondent at all. https://hcservices.ecourts.gov.in/hcservices/ 10. In view of the same, the impugned order is totally without jurisdiction and hence it is liable to be set aside and accordingly set aside. Consequently, the connected M.Ps. are closed. No costs. Kk Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Secretary to Government, Commercial Tax Department, Secretariat, Fort St. George, Chennai – 600 009. 2. The Registrar of Firms, North Beach Road, Chennai – 600 001. 3. The Inspector General of Registration, Santhome High Road, Chennai – 600 028. + 1 cc to Mr. Satish Parasaran, Advocate SR No. 1191 W.P.No.27385 of 2007 and M.P.Nos.1 to 3 of 2007 RS(CO) SR/11.1.2008 https://hcservices.ecourts.gov.in/hcservices/