: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.603 OF 1981 1. 1. 1. Bai Asmabai Moiz Matcheswala also of Bombay Muslim Inhabitant residing at 157, Nagdevi Street, 2nd Floor, Bombay-400 008. 2. 2. 2. (1) Bai Khatija Yusuf Bastawala also of Bombay Muslim Inhabitant residing at 239, Nagdevi Street, 4th Floor, Darukhanawala Bldg, Bombay. 3. 3. 3. (2) Bai Mariam Mohmed Hakim also of Bombay Muslim Inhabitant residing at 165, Vasi Building, 5th Floor, Nagdevi Street, Bombay ....Plaintiffs V/s. 1. 1. 1. Bai kulsumbaiwidow of Kurbanhusein Chatriwala of Bombay Muslim Inhabitant residing at Abbas Manzil, 4th Floor, Bhusari Moholla, Sarang Street, Bombay. 1(a) Mrs.Fatimabai Abdeali Dohandwala also of Bombay Muslim Inhabitant residing at Abbas Manzil, 4th Floor, Bhusari Moholla, Sarang Street, Bombay-400 003. 1(b) Bai Asmabai Moiz Matcheswala also of Bombay Muslim Inhabitant residing at 157, Nagdevi Street, 2nd Floor, Bombay-400 003. 1(c) Bai Khatija Yusufi Bastawala also of Bombay Muslim Inhabitant residing at 239, Nagdevi Street, 4th Floor, Darukhanawala Bldg, Bombay. 1(d) Bai Mariam Mohmed Hakim also of Bombay Muslim Inhabitant : 2 : residing at 165, Vasi Building, 5th Floor, Nagdevi Street, Bombay- 400 003. 2. 2. 2. (1) Mrs.Fatimabai Abdeali Dahodwala also of Bombay Muslim Inhabitant residing at Abbas Manzil, 4th Floor, Bhusari Moholla, Sarang Street, Bombay-400 003. (2) Moiz Salehbhai, 155 Husena House, Nagdevi Street, Mumbai-400 003 (2A) Fatema Salehbai Matcheswala 93 years old Indian Inhabitant residing at Swastik Chambers, N.B. Estate, Virar (West), 401 303, District Thane ....Defendants WITH SUIT NO.709 OF 1984 1. Kurban Husein Tayabally & Co. a partnership firm duly registered under the provisions of the Indian Partnership Act carrying on business at 246, Janjikar Street, Near Jumma Masjid, Bombay- 400 003. 2. Kulsumbai w/o Kurban Husein Chatriwala 3. Abdeali F. Dahodwala 4. Fakruddin Abdeali Dahodwala, All of Bombay Indian Inhabitants, residing at Abbas Manzil, 4th Floor, Bhusari Mohalla, Sarang Street, Bombay-400 003. ....Plaintiffs V/s. 1. Bai Asmabai Moiz Matcheswala, : 3 : of Bombay Muslim Inhabitant, residing at 157, Nagdevi Street, 2nd Floor, Bombay-400 003. 2. Bai Khatija Yusufi Bistwala, also of Bombay Muslim Inhabitant, residing at 239, Nagdevi Street, 4th Floor, Darukhanawala Building, Bombay-400 003. 3. Bai Marim Mohmed Hakim, also of Bombay Muslim Inhabitant, residing at 165, Vasi Building, 5th Floor, Nagdevi Street, Bombay-400 003. 4. Bai Fatemabai Abdeali Dohadwala, of Bombay Muslim Inhabitant, residing at Abbas Manzil, 4th Floor, Bhusari Mohalla, Sarang Street, Bombay-400 003. 5. The Court Receiver, High Court, Bombay. ....Defendants Mr.H.J. Thakkar with Mr.A.S. Chandurwala and Mr.C.M. Gaonkar i/b Desai & Diwanji for the Plaintiffs in Suit No.603 of 1981 and for the Defendants in Suit No.709 of 1984. Mr.A.N. Maniyar for the Defendants in Suit No.603 of 1981 and for the Plaintiffs in Suit No.709 of 1984. CORAM : S.J. VAZIFDAR, J. DATED : 5TH/6TH AUGUST, 2004. ORAL JUDGMENT : 1. By consent of the parties, both the suits will be disposed of by this common judgment. 2. At the out-set, it would be convenient to set : 4 : out the parties to the suit. I will first refer to the parties in Suit No.603 of 1981. One Kurbanhusein T. Chhatriwala (hereinafter referred to as the deceased) was the husband of original Defendant No.1 and the father of original Plaintiff No.1, and Plaintiff Nos.2 Bai Khatija Yusuf Bastawala and Bai Mariam Mohmed Hakim and Defendant No.2 Fatema Salebhai Matcheswala. 3. I will now refer to the parties in Suit No.709 of 1984. Plaintiff No.2 is original Defendant No.1 in Suit No.603 of 1981. Plaintiff Nos.2 and 3 are the husband and son of Defendant No.2 in Suit No.603 of 1981. Plaintiff No.1 is a firm of which the other Plaintiffs claim to be partners. Defendant Nos.1 to 4 are original Plaintiff No.1, Plaintiff Nos.2, 3 and original Plaintiff No.1 (a) in Suit No.603 of 1981. Defendant No.5 is the Court Receiver. . The heirs of the deceased parties were brought on record. Some of the heirs also having expired their heirs were brought on record. There is however some error in the manner in which they were impleaded. This however need not detain me as ultimately I intend declaring the share of each branch only viz. the branches of the original parties to : 5 : Suit No.603 of 1981 as this suit is for the administration of the estate of the deceased only. I may add here that counsel for all the parties stated that there are now neither any heirs of original Plaintiff No.1 nor any heirs of her heirs. 4. Suit No.603 of 1981 is filed for the administration of the estate of the deceased; for ascertaining the shares of the parties in the estate of the deceased ; for a direction against Defendant No.2 to render to the Plaintiffs’ true and faithful accounts of the estate of the deceased on the footing of willful default ; for an order against the Defendants to forthwith disclose the whole estate of the deceased come to their hands and taken charge of by them and for all necessary directions. 5. Suit No.709 of 1984 is filed for a declaration that the first Plaintiff firm and its properties and assets are the assets of Plaintiff Nos.2, 3 and 4 as the partners of the first Plaintiff firm and that the same do not form a part of the estate of the deceased ; for a declaration that the amounts lying to the credit of the Plaintiffs’ firm with Grindlays Bank belongs to the first Plaintiff and that the amount of Rs.93,494=96 ps. drawn by the : 6 : Court Receiver from the said account pursuant to the order of this Court also forms part of the assets of the first Plaintiff firm and that the Plaintiffs are entitled to the refund of the same and for a decree in the sum of Rs.1,50,000/- as damages. 6. The decision in Suit No.603 of 1981 will affect the decision in Suit No.709 of 1984. I will, in this judgment, refer to the parties as they are arrayed in Suit No.603 of 1981. 7. The Plaintiffs’ case is that the deceased - Kurbanhusein died intestate in Bombay on 5th August, 1980 leaving his daughters, the Plaintiffs and original Defendant No.2 and his widow, original Defendant No.1, as his heirs and next-of-kin according to Shia Mohammedan Law ; that all the assets of the business and goodwill as also the personal properties of the deceased belong to the estate of the deceased and his heirs are entitled to the same in accordance with Shia Mohammedan Law by which the parties are governed. In Shia Mohammedan Law, original Defendant No.1 being the widow of the deceased, was entitled to a one eighth share in the estate of the deceased and his daughters were entitled to the balance equally. There is no dispute regarding the proportion of the : 7 : share of each of a parties in the estate of the deceased. . The Plaintiffs’ case is that the deceased was carrying on the business of umbrellas in the name and style of M/s.Kurbanhusein Tyaballi as the sole proprietor thereof. In addition thereto, the deceased left an immovable property viz. "Karim Building", Mumbai, a bank balance in the account with the Grindlays Bank Ltd., Mumbai and the stock of the said firm. The Plaintiffs’ case is that the original first and second Defendants failed and neglected to divide the estate of the deceased and give them their respective shares therein inspite of their demands by their advocate’s letter dated 11th March, 1981. It is in these circumstances, that the Suit No.603 of 1981 was filed. 8. The original Defendants filed a common written statement. In addition to certain formal grounds, their case therein was that the deceased was carrying on the business in partnership with defendant No.1 under a Deed of Partnership dated 11th January, 1980. Upon the death of the deceased, Defendant No.1, in accordance with clause 8 of the Deed of Partnership dated 11th January, 1980, became the sole proprietor : 8 : of the business and was accordingly entitled to continue the same. The Defendants’ case was that the estate is entitled to Rs.71,500/- being the amount due to the deceased as a partner of the firm. The Defendants admitted that the deceased left "Karim Building". It is admitted that the deceased died intestate. The Defendants further stated that upon the death of the deceased, Defendant No.1 observed Iddat (Seclusion) for a period of four and a half months. Upon coming out of the Iddat in January, 1981, the heirs decided to sell the immovable property and the sale thereof was entrusted to the husband of Plaintiff No.3. The Defendants’ case is that it was agreed between all the heirs that after disposing of the immovable property viz. "Karim Building", the sale proceeds would be added to Rs.71,500/- being the amount of the share of the deceased and the same would be distributed amongst the heirs according to law. 9. Thus far, it will be noticed that there are five facts admitted by all the parties. Firstly, the deceased was the husband of original Defendant No.1 and the father of the Plaintiffs and Defendant No.2. Secondly, during his life time and upto 10th January, 1980 at least, the deceased carried on the business of umbrellas in the name and style of M/s.Kurbanhusein : 9 : Tyaballi as the sole proprietor thereof. Thirdly, the deceased died intestate. Fourthly, the parties are governed by Shia Mohammedan Law under which the original Defendant No.1, widow of the deceased, was entitled to a one eighth share in the estate of the deceased and the Plaintiffs and defendant No.2 were entitled to an equal share in the remaining estate of the deceased. Lastly, the deceased was a tenant of the premises 246, Janjikar Street, Crawford Market, (near Jumma Masjid) Mumbai from where he carried on the said business. 10. Thus, declaring the shares of the parties in the estate of the deceased poses no difficulty. It is in fact admitted. Three critical questions common in both the suits are : i) Whether in fact the deceased and original Defendant No.1 entered into a partnership business on the terms and conditions contained in and as evidenced by a Deed of Partnership dated 11th January, 1980. ii) Assuming that the answer to the first question is in the affirmative, whether the said premises was brought into the alleged : 10 : partnership firm by the deceased, and iii) The effect of the death of the deceased on the alleged firm qua the rights of the estate of the deceased therein. The answer to this question will depend upon the construction to be placed on Clauses 8 and 9 of the Deed of Partnership dated 11th January, 1980. 11. D.K. Deshmukh, J. settled the following issues :- . Issues in Suit No.603 of 1981 : 1) Whether the suit as filed lacks cause of action alleged in para 1 of the written statement ? 2) Whether the suit is not properly valued as alleged in para 2 of the written statement ? 3) Whether the firm of M/s.Kurbanhusain Tyaballi and Co. was a genuine partnership firm constituted under a deed of partnership : 11 : dated 11.1.1980 and consisting of the deceased Kurbanhusain and the deceased defendant No.1 as alleged in para 3 of the written statement ? 4) Whether the deceased Kurbanhusain carried on business till his death as a sole proprietor of M/s.Kurbanhusain Tyaballi and Co. in a shop at 246, Janjikar Street, Near Juma Masjid, Bombay as alleged in para 1 of the plaint ? 5) Whether the decease Kurbanhusain had left a bank account with large balance in Grindlays Bank Ltd., Princess Street Branch as alleged in para 5 of the plaint ? 6) What share each of the Plaintiffs and the Defendants are entitled to in the estate of deceased Kurbanhusain ? 7) What reliefs ? 12. Smt.K.K. Baam, J. settled the following issues :- : 12 : . Issues in Suit No.709 of 1984 : 1) Whether the suit is not maintainable and liable to be dismissed with compensatory costs as alleged in paras 20 and 23 of the written statement ? 2) Whether the Defendants prove that the deceased was lying ill under Mazzul - Maut for nearly one year prior to his death as alleged in paras 1 and 14 of written statement ? 3) Whether the said deceased took the Plaintiff No.2 as his partner in his business of Umbrellas and entered into Deed of Partnership as alleged in para 2 of the Plaint ? 4) Whether the business of M/s.Kurban Husain Tayaballi was continued after the death of Kurban Husain by the Plaintiffs 2, 3 and 4 as partners as alleged in para 9 of the Plaint ? 5) Whether the first Plaintiff firm and its properties and assets do not form part of the : 13 : estate of the said deceased as alleged in para 13 of the Plaint ? 6) Whether the Plaintiffs are entitled to claim damages to the extent of Rs.1,50,000/- from the Defendants as alleged in para 14 of the Plaint ? Issue No.2 is recast today. (17.2.2003) 7) Whether the alleged Partnership Deeds dated 11.1.1980 and 10.1.1981 relied upon by the Plaintiffs and Defendant No.4 are not valid and binding upon the Defendant Nos.1 to 3 for the reasons alleged in para 1 and 14 of the Written Statement ? 8) Whether the Deed of Partnership dated 10th January, 1981 was bogus and got up by the Plaintiffs 2, 3 and 4 in an attempt to deprive the Defendants of their share in the business of the deceased as his heirs as alleged in paras 7, 8, 12, 14, 15 and 16 of the Written Statement ? 9) Whether the deceased left a large bank : 14 : balance in his account with Grindlays Bank at Princess Street Branch and stock of umbrellas of the business of Kurbanhusain Tayaballi and Co. as alleged in para 2 of the Written Statement ? 10) Whether the Mama Traders has been allowed to carry on business in half the portion on ground floor of the premises as licensees and failed to pay royalty amount at the rate of Rs.4000/- per year for the last six years and became trespassers as alleged in para 13 of the Written Statement ? 11) What orders ? 13. J.A. Patil, J. (as he then was) recorded in the notes of evidence of 17th February, 2003, that the parties had agreed that the evidence recorded in each suit, may be read as evidence recorded in the other. Issue Nos.3 and 4 in Suit No.603 of 1981 and 2, 3, 7 and 8 in Suit No.709 of 1984 : 14. The main question is whether the Deed of Partnership dated 11th January, 1980 was entered into : 15 : between the deceased and original Defendant No.1. After the death of the deceased, it is alleged that Plaintiff Nos.2, 3 and 4 in Suit No.709 of 1984 constituted a fresh partnership under a Deed of Partnership dated 10th January, 1981 and carried on the business in the name and style of Plaintiff No.1. The Plaintiffs in suit No.603 of 1981 are not concerned in any manner with the Deed of Partnership dated 10th January, 1981. The same cannot, therefore, affect the rights of the Plaintiffs in Suit No.603 of 1981 in any manner whatsoever. This is even assuming that the Deed of Partnership dated 10th January, 1981 is not bogus or a got up document. The main controversy between the parties is whether the business premises of which the deceased was a tenant, was brought into the stock of the partnership constituted between himself and his wife. If the answer to that question is in the negative, the Deed of Partnership dated 10th January, 1981 can confer no rights in respect of the said premises in favour of the Plaintiffs in Suit No.709 of 1984 in any manner and to any extent, for the Plaintiffs in Suit No.603 of 1981 were not parties therein nor acquiesced thereto. 15. The main question, therefore, is whether the : 16 : deceased and Defendant No.1 constituted themselves as partners on the terms and conditions contained in and evidenced by the Deed of Partnership dated 11th January, 1980. 16. In the first instance, Mr.Maniyar, the learned counsel appearing on behalf of the Defendants in Suit No.603 of 1981 and on behalf of the Plaintiffs in Suit No.709 of 1984 relied upon an extract from the Registrar of Firms. It has been marked in evidence as Exhibit 14. I invited the attention of both the counsel to the provisions of Sections 58 and 59 of the Indian Partnership Act, 1934 as well as the judgment in the case of - Firm Het Ram Padam Chand versus Firm Subhag Chand Rikhab Das and others, A.I.R. 1941 Oudh 376 where it was held as under :- "It was strongly argued that the certificate of registration is of no evidentiary value because it is not proved that the application for registration bore Het Ram’s signature. But we see no reason to reject the view taken by the District Judge on this point that the registration of a firm raises a presumption that the parties shown as members of the firm and registered as such are actually members of it. The presumption is no doubt rebuttable, but the appellant made no attempt to rebut it. If in fact Padam Chand was not Het Ram’s partner, there might have been some indication of this in Het : 17 : Ram’s private accounts, but those accounts were not produced. Section 58, Partnership Act, provides that for the registration of a firm an application must be made to the Registrar in a certain form giving certain particulars, and the statement must be signed by all the partners, or their agents specially authorized in this behalf. Each person signing the statement must verify it in the manner prescribed. Section 59 provides that when the Registrar is satisfied that the provisions of S.58 have been duly complied with, he shall record an entry of the statement in a register called the register of firms, and shall file the statement. Section 68 provides that a certified copy of an entry relating to a firm in the register of firms may be produced in proof of the fact of the registration of such firms, and of the contents of any statement, intimation or notice recorded or noted therein. We have given full consideration to the argument advanced by the learned counsel for the appellants that nevertheless it was necessary for the respondents to prove that the application for registration bore Het Ram’s signature, but we are unable to accept it. In our opinion no further proof was necessary in the absence of any evidence to the contrary." 17. I am in respectful agreement with the ratio of this case. There is no provision in the Indian Partnership Act to the effect that the certificate of registration is conclusive proof of the particulars stated therein. The provisions of the said Act do not : 18 : warrant such a conclusion by necessary intendment either. In fact the procedure for registration clearly establishes that the presumption as to the correctness of what is stated in the certificate of registration is rebuttable. There is every possibility of a person furnishing incorrect information to the Registrar of Firms. The procedure prescribed for registration does not prescribe adequate, much less an absolute, safeguard against such registration especially qua third parties. The provisions of Section 68 clearly support this view. Section 68 reads as under :- "68. Rules of evidence. - 68. Rules of evidence. - 68. Rules of evidence. - Any statement, intimation or notice recorded or noted in the Register of Firms shall, as against any person by whom or on whose behalf such statement, intimation or notice was signed, be conclusive proof of any fact therein stated. (2) A certified copy of an entry relating to a firm in the Register of Firms may be produced in proof of the fact of the registration of such firm, and of the contents of any statement, intimation or notice recorded or noted therein." . Thus under sub section (1) once it is established that a person had signed a statement, intimation or notice which was recorded or noted on : 19 : the Register of Firms the contents thereof constitute "conclusive proof" against such person and not against third parties. This is clearer from the fact that on the other hand under sub section (2) such contents of the said documents are not conclusive proof. Had it been otherwise the language of sub section (2) would have been different. In the circumstances, it follows that the presumption as to the correctness of the contents of the certificate of registration under the Indian Partnership Act is rebuttable. 18. The position therefore is that there is a presumption in favour of the Defendants that a partnership as contained in the Deed of Partnership dated 11th January, 1980 was entered into. The presumption is however rebuttable. In that case, however, it is clear that the parties made no attempt to rebut the presumption and there was a clear finding that there was absence of any evidence to the contrary. For that reason, the Division Bench sought no reason to reject the view taken by the District Judge on the point that the registration of the firm raised a presumption that the parties shown as the members of the firm and registered as such were actually the members of it. : 20 : . It is necessary therefore, to see whether in the facts and circumstances of the present case, the presumption has been rebutted by evidence to the contrary. I have come to the conclusion that it has. 19. On behalf of the Defendants, Fakhruddin Abdeali Dohadwalla (Plaintiff No.4 in Suit No.709 of 1984) was examined. Fakhruddin filed four affidavits by way of examination-in-chief dated 23rd September, 2002, 24th February, 2003, 4th March, 2003 and 28th November, 2003. In paragraph 1 of his affidavit dated 23rd November, 2002, he stated that the deceased was carrying an umbrellas business under the name and style of Messrs Kurbanhusen Tayaballi from the said premises. In paragraph 2, he stated that on 11th January, 1980, the deceased entered into a partnership agreement with Defendant No.1 and that they continued to carry on the business of umbrellas in partnership from the said premises till the death of the deceased. He produced the original Deed of Partnership dated 11th January, 1980 from the custody of the Court Receiver and stated that the context thereof are true and correct. He stated : "I identify the thumb impression of the said deceased and the signature of Kulsumbai - original Defendant No.1 on the said partnership agreement dated 11th January, 1980". On : 21 : this statement, the learned Judge who recorded the evidence admitted the Deed of Partnership and marked it as Exhibit-8 in evidence. 20. It did not take much for Mr.Thakkar, the learned Senior counsel appearing on behalf of the Plaintiffs in Suit No.603 of 1981 and on behalf of the Defendants in Suit No.709 of 1984, to destroy this testimony. In paragraph 3 of the cross-examination, Fakhruddin admitted that he was neither a party nor a witness to the Deed of Partnership dated 11th January, 1980. He admitted that he was not present when the document was executed. He admitted that the thumb impression appearing thereon was not put in his presence. He admitted that he had not studied the science of finger prints. Nor was he in a position to identify the thumb impression of the deceased. Thus it was conclusively established that Fakhruddin had no personal knowledge whatsoever of the execution of the Deed