Gujarat High Court

Splendid Infrabuild Llp vs Manuben Nanubhai Bharvad on 15 October, 2025

NEUTRAL CITATION

C/CRA/11/2023 JUDGMENT DATED: 15/10/2025

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 11 of 2023

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
================================================================
Approved for Reporting Yes No
Yes
================================================================
SPLENDID INFRABUILD LLP & ORS.
Versus
MANUBEN NANUBHAI BHARVAD & ORS.
================================================================
Appearance:
MR DHAVAL DAVE, SR ADV with MR DHAVAL SHAH(2354) for the Applicant(s) No. 1,1.1,1.2
MR SANJAY MEHTA, SR ADV with MR DM DEVNANI(5880) for the Opponent(s) No. 1,2,3,4,5,6
NOTICE ISSUED BY PUBLICATION for the Opponent(s) No. 10
NOTICE SERVED for the Opponent(s) No. 8
NOTICE SERVED BY DS for the Opponent(s) No. 11,12,13.1,13.2,9
PRITESH M SHAH(8405) for the Opponent(s) No. 1,2,3,4,5,6
SHRIKAR H BHATT(2573) for the Opponent(s) No. 7.1,7.2,7.3,7.4,7.5,7.6
================================================================
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 15/10/2025
ORAL JUDGMENT

TABLE OF CONTENTS
I. INTRODUCTION.....................................................................2

II. SUBMISSIONS OF THE DEFENDANT - PETITIONER.......................3

III. SUBMISSIONS OF THE PLAINTIFF - RESPONDENT......................16

IV. ANALYSIS................................................................................19

CAUSE OF ACTION..............................................................................21

Section 42(C)
of the Partnership Act..............................................................21
Suit of Specific Performance by the Plaintiffs not maintainable.............................23
Illusory Cause of Action................................................................................27
BARRED BY LAW................................................................................30
Limitation to seek specific performance -
Article 54..........................................
.30
Deemed Knowledge......................................................................................33
Plaintiff's basis of right and
Section 69
of the Partnership Act.............................36
RE: PART PERFORMANCE OF CONTRACT AND ANCILLARY RELIEF.......................42

V. JUDGMENTS CITED BY THE PLAINTIFF.....................................47

VI. CONCLUSION..........................................................................51
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I. INTRODUCTION

1. Rule returnable forthwith. Learned Advocates for the
respective parties waive service of notice of Rule. With the
consent of the parties matter is taken up for final hearing.

2. The present Revision Application has been filed to challenge
the order dated 21.10.2022, passed by the 18th City Civil and
Sessions Court in Civil Suit No. 220 of 2020, whereby the
Ld. Trial Court rejected the application, below Exhibit 80,
filed under the provisions of
Order VII Rule 11 of the Code
of Civil Procedure
, 1908 ("
CPC
").

3. For convenience, the parties are referred to by their status
before the Ld. Trial Court.

4. The brief facts leading to the present Revision Application
are as follows. The plaintiffs instituted Civil Suit No. 220 of
2020, contending that under a partnership deed dated
04.06.2003, the father of the plaintiffs and the father of
defendants Nos. 1/1 to 1/6 had constituted a partnership firm
under the name Tirupati Corporation. Upon the demise of
both the original partners, and in terms of Clause 12 of the
said partnership deed, the plaintiffs and defendants Nos. 1/1
to 1/6 became partners of the said firm. The plaintiffs filed
the suit seeking a declaration that, pursuant to the agreement
dated 19.12.1983, they hold an undivided share in the suit
property and further prayed for a direction to be issued to the
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defendants Nos. 3 and 4 to execute a sale deed in favour of
the Plaintiffs in respect of the said property.

5. The Plaintiffs also sought to challenge the sale deed, dated
18.11.2003, executed by defendant No. 4, in favour of
defendant No. 5, as well as the sale deed, dated 14.11.2008,
executed by defendants Nos. 1 and 2, in favour of defendant
No. 6. A prayer for permanent injunction in respect of the suit
property was also made. Subsequently, defendants Nos. 7 and
8 were joined as parties, as defendant No. 7 had purchased a
portion of the suit property on 26.07.2019, and defendant No.
8 had purchased another portion on 20.02.2021.

6. Defendant No. 7 thereafter filed an application under Order
VII Rule 11(d)
of the Code of Civil Procedure
, contending
that the suit was not maintainable as (i) it was barred by

Section 69
of the Indian Partnership Act, 1932, (ii) it was
barred by limitation, and (iii) the plaintiffs had no cause of
action to file the present suit. Upon consideration of the plaint
and the documents annexed thereto, the Ld. Trial Court, by
order dated 21.10.2022, dismissed the said application.
Aggrieved thereby, the present Revision Application has been
preferred.

II. SUBMISSIONS OF THE DEFENDANT - PETITIONER

7. Ld. Senior Advocate Mr. Dhaval Dave has submitted that the
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Application under
Order VII Rule 11 of the Code of Civil
Procedure
is based on three principal grounds: (i) that the Suit
is barred under
Section 69
of the Indian Partnership Act,
1932, (ii) that the plaint is barred by the law of limitation, and

(iii) that the Plaintiffs have no legal right or locus to institute
the Suit.

8. On the first submission, namely that the Suit is barred by

Section 69
of the Indian Partnership Act, 1932, the Ld. Senior
Advocate for the Defendant has advanced detailed arguments
by placing reliance on the cause title of the plaint. It is
pointed out that the Plaintiffs have described themselves as
the legal heirs of one of the original partners, namely
Nanubhai Ranchhodbhai Bharwad, whereas Defendant Nos.
1/1 to 1/6 are described as the legal heirs of the other partner,
namely Manibhai Chhaganbhai Patel.

9. It is submitted that a perusal of the Partnership Deed would
reveal that there were only two partners in the firm, Tirupati
Corporation. The Plaintiffs in the present Suit, while
asserting themselves to be the partners of the said firm, have
sought reliefs arising out of the said partnership deed. The
Suit, it is urged, proceeds on the footing that the Plaintiffs, as
partners of Tirupati Corporation, are entitled to specific
performance of the agreement dated 19.12.1983, which was
executed in favour of the said firm by Defendant No. 4.
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10. It is contended that, in view of the provisions of
Section 69(1)

of the Indian Partnership Act, 1932, the Plaintiffs, suing as
partners of an unregistered firm, cannot maintain the present
Suit against Defendant Nos. 1/1 to 1/6, who are also claimed
to be partners of Tirupati Corporation. The Plaintiffs have
sought a direction against Defendant Nos. 3 and 4 to execute
a sale deed exclusively in their favour, although they possess
no independent or individual right in the Suit property. Their
claim, it is submitted, is founded solely on the Agreement
dated 19.12.1983 entered into by the partnership firm.

11. It is further argued that, though the Plaintiffs have not sought
any specific relief against the other partners, namely
Defendant Nos. 1/1 to 1/6, the effect of the reliefs claimed is
that the Plaintiffs seek specific performance of the Agreement
in their own favour as partners of Tirupati Corporation. In
view of the admitted position that the said firm is
unregistered, the Suit, according to the Ld. Senior Advocate,
is squarely hit by
Section 69(1)
of the Indian Partnership Act,
1932, and is therefore not maintainable in law.

12. It is further contended by the Ld. Senior Advocate for the
Defendant that the Plaintiffs have sought to enforce rights
arising from the agreement dated 19.12.1983, against
Defendant Nos. 2 to 8, who are admittedly not partners of the
firm Tirupati Corporation and are complete strangers to the
said transaction. Since the firm is unregistered, any such
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attempt to enforce contractual rights on behalf of the firm is
expressly barred under
Section 69
of the Indian Partnership
Act, 1932, and the Suit is therefore liable to be rejected as
being barred by law.

13. Moreover, it has been urged that the Plaintiffs have also
prayed for reliefs challenging the sale deed dated 14.11.2008.
The said sale deed, however, was executed by the partnership
firm itself through its partner, namely the father of Defendant
Nos. 1/1 to 1/6. The Suit, therefore, is in essence one seeking
enforcement of contractual rights arising from transactions
undertaken by an unregistered firm. In view of the statutory
bar contained in
Section 69
of the Indian Partnership Act,
1932, such a Suit is not maintainable and must fail at the
threshold.

14. Ld. Senior Advocate for the Defendant has relied on the
decision in the case of
Farooq vs. Shandhya Anthraper
,
(2018) 12 SCC 580 more particularly paras: 5 and 6 which
read as under:

"5. Having heard the learned Senior Counsel
appearing for the parties, it is clear that the plaint,
read as a whole, relied upon Clause 25(d) of the
partnership deed which specifically states that no
partners of the firm shall without the consent in
writing of the other partners be entitled to transfer
immovable property belonging to the firm. The
plaint then goes on to say that the suit schedule
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property was purchased out of the funds of the firm
for the purpose of development and sale. In Para 11,
the plaintiffs discovered that a sale deed has been
executed by the first defendant. It has been
specifically stated that the plaintiffs had never
consented to the same and the first defendant has no
authority to sell any immovable property belonging
to the firm.

6. The plaint, read as a whole, leaves no manner
of doubt that the basis for the suit is
Section 69
of
the Partnership Act read with Clause 25(d) of the
partnership deed dated 29-12-1995. Para 18 of the
plaint does not carry the matter further inasmuch as
the only sentence which could possibly be relied
upon, and which was relied upon by the High Court,
is that the plaintiffs are entitled to file the suit even
independently of the partnership firm. Having found
that the basis of the suit is the factume of
partnership and having relied upon Clause 25(d) of
the partnership deed, it is clear that the trial court
correctly found that the bar of
Section 69
of the Act
was attracted in the facts of this case."

15. Ld. Senior Advocate for the Defendant has relied on the
decision reported in in the case of Sri Velji Narayan Patel vs.
Sri Jayanti Lal Patel, AIR 2009 Cal. 164 more particularly,
Para 9, which reads thus:

"9. Sub-section (1) of
Section 69
disentitles a
partner or a person on behalf of a partner to sue as
a partner against the firm of a person allegedly to be
a partner unless the firm is registered with the
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registrar of firms. Sub-section (2) similarly
disentitles the firm to institute a suit against a third
party unless the firm is registered. The common
feature between Sub-section (1) and Sub-section (2)
is that such suit must relate to enforcement of right
arising out of a contract of conferred by the Act. If a
suit by a partner against a partner or firm does not
relate to enforcement of a right arising out of a
contract then there is no legal prohibition because
the spirit of
Section 69
either of Sub-section (1) or of
Sub-section (2) is that such suit must be related to
enforcement of the right arising from a contract.
Having gone through the plaint of the suit it clearly
appears that the plaintiff instituted the suit as a
partner for enforcement of his right arising out of
the contract. The entire narrative of the plaint is for
declaration that the plaintiff is the owner of 50 per
cent of the share of the partnership business and for
declaration that he is entitled to enjoy 50 per cent of
the said business under the name and style of M/s.
Bhagat & Company, for production of books of
accounts, statement of accounts, balance-sheet and
other documents and for declaration that the
defendant is liable to disburse and pay plaintiffs
share of profit in the business. Plaintiff does not sue
in his individual capacity. The prayers in the plaint
are basically for enforcement of his right as
embodied in the partnership deed which was
executed by and between the parties on 15th of
April, 2000. In such circumstances, the provision of
Sub-section (1) of
Section 69
appears to have hit the
plaint. Order 7, Rule 11(d) contains "where the suit
appears from the statement in the plaint to be barred
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by any law". It is not the case in the plaint that the
firm was registered with the Registrar of Firms."

16. The defendant has relied on the decision in the case of

Sunkari Tirumala Rao vs. Penki Aruna Kumari
, 2025 SCC
Online 125, more particularly Paras 8 and 9 which read thus:

"8. It is evident from a reading of sub-sections (1)
and (2) of
Section 69
that it assumes a mandatory
character.
Section 69(1)
prohibits a suit amongst the
partners of an unregistered partnership firm, for the
enforcement of a right either arising from a contract
or conferred by the Act, unless the suit amongst the
partners is in the nature of dissolution of the
partnership firm and/or rendition of accounts.

Section 69(2)
prohibits the institution of a suit by an
unregistered firm against third persons for the
enforcement of a right arising from a contract. As a
consequence, a suit filed by an unregistered
partnership firm and all proceedings arising
thereunder, which fall within the ambit of
Section 69

would be without jurisdiction.

9. This Court in
Seth Loonkaran Sethiya and Others
v. Mr. Ivan E. John and Others
reported in (1977) 1
SCC 379 had categorically held that
Section 69
is
mandatory in character and a suit instituted by a
plaintiff in respect of a right which was vested in
him by virtue of a contract and entered into in his
capacity as a partner of a partnership firm, would
be void, if such a firm was unregistered. The
relevant observations are as under:

"21. A bare glance at the section is enough to
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show that it is mandatory in character and its
effect is to render a suit by a plaintiff in respect
of a right vested in him or acquired by him
under a contract which he entered into as a
partner of an unregistered firm, whether
existing or dissolved, void. In other words, a
partner of an erstwhile unregistered
partnership firm cannot bring a suit to enforce
a right arising out of a contract falling within
the ambit of
Section 69
of the Partnership Act.
In the instant case, Seth Sugan Chand had to
admit in unmistakable terms that the firm
"Sethiya & Co." was not registered under the

Indian Partnership Act
. It cannot also be denied
that the suit out of which the appeals have
arisen was for enforcement of the agreement
entered into by the plaintiff as partner of
Sethiya & Co. which was an unregistered firm.
That being so, the suit was undoubtedly a suit
for the benefit and in the interest of the firm and
consequently a suit on behalf of the firm. It is
also to be borne in mind that it was never
pleaded by the plaintiff, not even in the
replication, that he was suing to recover the
outstandings of a dissolved firm. Thus, the suit
was clearly hit by
Section 69
of the Partnership
Act and was not maintainable."

17. Reliance has also been placed on the decision reported in in
the case of
Pathik Udayan Bhatt vs. Shakti Infotec and
Others
, 2024 SCC Online Guj 4221 more particularly Para
21 which reads thus:
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"21. With the help of learned advocate for the
petitioner, I have perused the plaint of Regular Civil
Suit No.600 of 2016 filed by the plaintiffs-

respondents, which is at Annexure-B to this petition,
and upon bare perusal of the entire plaint, I am
unable to find out anywhere in the plaint a single
averment that the respondent No.1- is a registered
firm, and as such, I find merit in the contention
canvassed by the learned advocate for the applicant
that in the absence of any assertion made in the
plaint by the respondents that their firm is a
registered firm, and in the absence of any
documentary evidence being produced by them in
support thereof, the suit instituted by the
respondents is hit by the provisions of
Section 69
of
the Indian Partnership Act, and when the suit is
barred by any law, as per Clause 11(d) of Order VII,
the same is required to be dismissed at the
threshold."

18. With regard to the contention that no cause of action has
arisen for the Plaintiffs to institute the present Suit, it has
been submitted by the Ld. Senior Advocate for the Defendant
that the Plaintiffs themselves have specifically pleaded in the
plaint that there were only two partners in the partnership
firm Tirupati Corporation as on 01.04.1982, each having a
50% share in the partnership property. The Plaintiffs claim to
have become partners of the said firm by virtue of Clause 13
of the partnership deed dated 04.06.2003, which provides that
upon the death of a partner, his legal heirs, if willing, may be
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inducted as partners of the firm.

19. It is further contended that the record clearly establishes that,
the father of the Plaintiffs, who was one of the two partners,
expired on 23.12.2010. Consequently, it is urged that in view
of there being only two partners, the partnership firm stood
automatically dissolved upon the death of one of them, by
operation of
Section 42(c)
of the Indian Partnership Act,
1932. The Ld. Senior Advocate has submitted that even if the
partnership deed contains a clause permitting legal heirs to be
admitted as partners, such stipulation cannot override the
statutory consequence of dissolution upon the death of one of
the two partners. A partnership consisting of only two
partners cannot, upon the death of one, continue as a validly
existing firm, nor can a third party be inducted thereafter,
since there remains no subsisting contract of partnership to
support such induction.

20. On that basis, it is argued that the Plaintiffs, who claim to be
the legal heirs of the deceased partner, cannot assert any right
as partners of Tirupati Corporation, as the firm itself ceased
to exist upon the death of their father. Consequently, the
Plaintiffs could not have instituted the present Suit on the
footing that they are partners of the said firm or that the firm
continues to subsist. It has therefore been strongly urged that
the plaint discloses no cause of action in favour of the
Plaintiffs and that the Suit, having been filed by persons who
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have no legal capacity to sue in the name of a non-existent
partnership, is liable to be rejected under
Order VII Rule 11
of the Code of Civil Procedure
.

21. The Ld. Senior Advocate for the Defendant has further
contended that the plaint is hopelessly barred by limitation. It
is submitted that the Plaintiffs seek specific performance of
an agreement dated 19.12.1983, along with a declaration to
cancel the sale deed dated 18.11.2003 executed by Defendant
No. 4 in favour of Defendant No. 5, and to set aside another
sale deed dated 14.11.2008, executed by Defendant Nos. 1
and 2 in favour of Defendant No. 6. It is pointed out that a
bare perusal of the sale deed dated 14.11.2008 makes it
evident that it was executed by the partners of the firm
Tirupati Corporation itself. Hence, it is submitted that the
Plaintiffs were fully aware of the said transaction, and
therefore, the plea of ignorance or discovery at a later stage
cannot be sustained.

22. The Ld. Senior Advocate for the Defendant has also
submitted that a plain reading of the plaint would reveal that
the Plaintiffs are challenging sale deeds executed as far back
as the year 2003, while the present Suit has been instituted
only in the year 2020. It is emphasised that the plaint is
entirely silent as to when the Plaintiffs first acquired
knowledge of the impugned transactions. The record further
indicates that the father of the Plaintiffs passed away in the
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year 2010, and even during his lifetime, he had not sought
specific performance of the agreement dated 15.12.1983.

23. It is urged that the Plaintiffs have, with a view to circumvent
the bar of limitation, inserted vague and general averments in
the plaint without any specific or concrete disclosure of dates
or events. Such vague assertions, it is contended, are
insufficient to extend or save limitation under law. In the
absence of specific pleadings disclosing how and when the
cause of action arose, or when the Plaintiffs allegedly came to
know of the impugned transactions, the Suit cannot be treated
as within limitation. Hence, it is submitted that the plaint is
liable to be rejected as being barred by the law of limitation.

24. Tirupati Corporation, the firm, had jointly instituted Civil
Suit No. 1435 of 2003, in which Defendant No. 5 was also
impleaded. That Suit sought injunctive relief but did not
include any prayer for specific performance of the agreement
dated 19.12.1983. This, according to the Ld. Senior
Advocate, clearly establishes that even as early as the year
2003, the parties were aware of the execution of the sale
deeds and the transactions concerning the suit property.

25. It has also been contended that the entire case of the Plaintiffs
is founded upon the agreement dated 19.12.1983, entered into
between Defendant No. 3 and the partnership firm. However,
Defendant No. 3 himself was not the owner of the suit
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property and had independently instituted Civil Suit No. 2231
of 2003 seeking specific performance of the said agreement,
which was ultimately dismissed for default. Therefore, the
cause of action, if any, for seeking specific performance arose
in favour of the partnership firm as far back as 15.12.1983.
The present Suit having been instituted only in the year 2020,
after an inordinate lapse of nearly thirty-seven years, is
clearly barred by limitation, and the plaint deserves to be
rejected on that ground alone.

26. In that view of the matter it has been argued that as the main
relief sought in the plaint being barred under the provision of
Section 69 of the Indian Partnership Act, 1832 and the
ancillary relief with respect to challenge to sale deed is also
barred by law of limitation and in view of the death of
original partners i.e., father of plaintiff and the father of
defendant no.1/1/ to 1/6, no cause of action has arisen for the
plaintiff to file the suit, the order that has been passed by trial
Court is not reasoned order and the trial Court has not dealt
with arguments as to how the plaint is maintainable in view
of Section 69 of the Indian Partnership Act, 1832 and

Limitation Act
and in view of facts stated in the application,
the plaintiff has no cause of action to file the suit, the trial
Court could not have rejected the application and the present
Civil Revision Application is required to be allowed and the
plaint is required to be rejected.
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III. SUBMISSIONS OF THE PLAINTIFF - RESPONDENT

27. Per Contra, Ld. Senior Advocate Mr. Sanjay Mehta,
appearing for the Plaintiffs, has submitted that while
considering an Application under
Order VII Rule 11 of the
Code of Civil Procedure
, the Court is required to confine its
examination to the averments made in the Plaint and the
documents annexed thereto. It is only upon such
consideration that the Court can determine whether the plaint
is barred by law.

28. It is submitted that, in the present case, there is no dispute
that both the original partners namely, the father of the
Plaintiffs and the father of Defendant Nos. 1/1 to 1/6 have
passed away, resulting in the dissolution of the partnership
firm. The Plaintiffs, being the legal heirs of one of the
partners, have instituted the present Suit seeking reliefs in
respect of the property belonging to the dissolved firm.
Therefore, the bar under
Section 69
of the Indian Partnership
Act, 1932, would not apply to the present case, as the Suit
does not concern the enforcement of contractual rights arising
out of a subsisting partnership, but rather relates to the
division and distribution of assets belonging to the dissolved
firm. Hence, the present property will have to be divided
between the Partners.

29. Mr. Mehta has further drawn my attention to Paragraph 4 of
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the Plaint, wherein it has been specifically averred that by an
Agreement dated 15.12.1983, Defendant No. 3 entered into
an Agreement with the Plaintiff. It is pointed out that
Defendant No. 4, being the owner of the suit property, had
earlier entered into an agreement with Defendant No. 3 on
12.02.1982. Relying upon the terms and conditions of the
Agreement dated 15.12.1983, it is submitted that the said
agreement expressly records that Defendant No. 3, as the
signatory, was under an obligation to execute a sale deed in
favour of the Plaintiff and/or his nominee.

30. Further, placing reliance on the Agreement dated 19.12.1983
(entered into between the Plaintiff and Defendant No. 3), it is
submitted that an additional sum of Rs. 1,00,000/- was paid
by the Plaintiff to Defendant No. 3. Consequently, possession
of the suit property was handed over to the Plaintiff in
pursuance thereof. On the basis of these recitals, it is
contended that possession of the suit property continues to
remain with the Plaintiff, and hence, the reliefs sought in the
Suit are also for protection of such lawful possession in
addition to the other consequential declarations.

31. The Ld. Senior Advocate for the Plaintiff has further invited
the attention of this Court to Civil Suit No. 1435 of 2003,
which was instituted by the partners of the firm, Tirupati
Corporation, seeking a decree of permanent injunction. It is
submitted that although the said Suit was filed jointly by both
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partners, the surviving partner subsequently withdrew the
same on 03.08.2012, without impleading or joining the legal
heirs of the deceased partner. The Plaintiffs, contended that
there were neither aware of the filing of the said Suit nor of
its subsequent withdrawal, and they first came to know of
these facts only at a later stage. It is therefore submitted that
the Plaintiffs cannot be non-suited on the basis of
proceedings of which they had no knowledge or participation.

32. The Ld. Senior Advocate for the Plaintiff has further drawn
the attention of this Court to Civil Suit No. 2231 of 2003,
which had been instituted by Defendant No. 3, the executor
of the agreement dated 15.12.1983. It is submitted that the
said Suit was one for specific performance of the contract
executed by the original owner, Defendant No. 4, in favour of
Defendant No. 3. The said Suit, however, came to be
dismissed for default, and an Application for its restoration is
presently pending adjudication.

33. The Ld. Senior Advocate has also invited attention to the sale
deed dated 14.11.2008, which was executed by the father of
Defendant Nos. 1/1 to 1/6, in his capacity as a partner of
Tirupati Corporation, jointly with one Rajnikant Becharbhai
Patel (HUF), in respect of the partnership property. It is
contended that, in view of
Section 19
of the Indian
Partnership Act, 1932, such a transaction could not have been
lawfully executed by a single partner without the consent of
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the other partner(s). Hence, the present Suit has been filed to
challenge the said sale deed, being an unauthorised and
invalid act in law.

34. Placing reliance on the aforesaid judgments and in view of
the submissions made, it has been urged that no error has
been committed by the Ld. Trial Court and the present Civil
Revision Application is required to be rejected.

IV. ANALYSIS

35. Having heard the Ld. Senior Advocates for the respective
parties and upon a perusal of the Plaint in the present Suit
along with its documents, the following position emerges on
record:

i. The Suit has been instituted by the partners of Tirupati
Corporation, and a categorical assertion is made in
Paragraph 2 of the Plaint that the Plaintiffs are
partners of the said firm. Defendant No. 1 has been
impleaded in the Suit in the capacity of being a partner
of Tirupati Corporation.

ii. It is further stated in the Plaint that the partnership
firm Tirupati Corporation has not been dissolved.

iii. Though the Agreement of 1983 was entered into
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with the Partnership Firm, the reliefs prayed for in
the Plaint include a decree for specific performance of
the agreement dated 19.12.1983, claimed exclusively
in favour of the Plaintiffs.

iv. The Plaint itself records that Tirupati Corporation
consisted of only two partners, namely, Nanubhai
Ranchhodbhai Bharvad, the predecessor of the
Plaintiffs, and Manilal Chhaganlal Patel, the
predecessor of Defendant No. 1, and that both the said
partners have since expired.

v. The Plaint also discloses that Defendant Nos. 1/1 to
1/6 have been joined in the present proceedings in
their capacity as partners of the firm, having
succeeded to the interest of the deceased partner,
Manibhai Chhaganbhai Patel.

vi. The Plaintiffs have instituted the present Suit as the
legal heirs of Nanubhai Ranchhodbhai Bharvad. The
reliefs claimed, however, are not for specific
performance of the agreement dated 19.12.1983 either
in favour of the partnership firm Tirupati Corporation
or jointly in favour of the legal heirs of both deceased
partners, but solely in favour of the Plaintiffs.

vii. The Suit pertains to enforcement of the Agreement
dated 19.12.1983, which was executed by Defendant
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No. 3 in favour of the Plaintiffs. The record further
indicates that Defendant No. 3 had earlier filed a
separate Suit for specific performance of the
agreement executed in his favour by Defendant Nos. 4
and 5, which came to be dismissed (Restoration
Application for which, is pending).

viii. It is also an admitted position that a separate Civil
Suit, being Civil Suit No. 1435 of 2003, had been
instituted by the partnership firm Tirupati Corporation
seeking injunctive relief. However, even at that stage,
no relief for specific performance of the agreement
dated 19.12.1983 had been sought for and on behalf of
the partnership firm and the said Suit was
subsequently withdrawn on 03.08.2012.

36. The Plaintiff asserts his right of possession over the suit
property on the basis of the agreement executed on
19.12.1983, claiming that such possession flows from and is
protected under the terms of the said Agreement.

Cause of Action

Section 42(C)
of the Partnership Act

37. First and foremost, under the provisions of
Section 42(c)
of
the Indian Partnership Act, 1932, a partnership stands
dissolved by the death of a partner unless there exists a
specific contract to the contrary. The statute proceeds on the
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principle that a partnership is founded upon mutual trust,
confidence, and personal consent among the partners.
Consequently, when one of the partners dies, the relationship
of mutual agency, which is the essence of a partnership,
ceases to exist. In the absence of a clear agreement permitting
continuation after the death of a partner, the dissolution
occurs automatically by operation of law.

38. In the present case, the partnership firm Tirupati Corporation
consisted of only two partners, namely Nanubhai
Ranchhodbhai Bharvad, the predecessor of the Plaintiffs, and
Manilal Chhaganlal Patel, the predecessor of Defendant No.

1. Upon the death of either partner, the firm could not legally
continue to exist because a partnership requires at least two
living persons to constitute its foundation. The clause in the
partnership deed permitting induction of legal heirs upon the
death of a partner cannot revive or reconstitute a partnership
that has already stood dissolved. Such induction can only
occur where the partnership continues to exist.

39. Therefore, upon the death of either partner, the firm stood
dissolved under
Section 42(c)
of the Indian Partnership Act,
1932. Once dissolved, the partnership firm ceased to have
any legal existence, and no partner or legal heir could
maintain or defend any proceedings in the name of that firm.
The Plaintiffs' claim, therefore, proceeds from a non-existent
entity and cannot be sustained in law.
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Suit of Specific Performance by the Plaintiffs not
maintainable

40. Considering the aforesaid undisputed facts, it is evident that
the dispute in the present proceedings arises out of claims
advanced by the partners of the firm Tirupati Corporation,
who have filed the Suit asserting rights derived from the
Firm. The Firm has a Contract/Agreement with Defendant
No. 3.

41. The Plaintiffs further seek to assert possession and ownership
by invoking the principle of part performance under the
supplementary agreement dated 19.12.1983, which too was
executed by Defendant No. 3. Consequently, the Plaintiffs
have sought specific performance of the agreement dated
19.12.1983 in their favour.

42. It further appears from the record that the Plaintiffs have
instituted the present Suit in their capacity as partners of the
firm Tirupati Corporation, yet the relief sought is for specific
performance of the agreement dated 19.12.1983 exclusively
in their own favour. The agreement, however, was executed
with the partnership firm and not with the individual partners.
Therefore, while the Plaintiffs claim to represent the firm, the
reliefs prayed for are personal in nature and not on behalf of
the firm, thereby creating an inconsistency between the
capacity in which the Suit is filed and the nature of the reliefs
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sought.

43. At the present juncture, it is apposite to refer to
Section 15
of
the Specific Relief Act, 1963:

15. Who may obtain specific performance. --

Except as otherwise provided by this Chapter, the
specific performance of a contract may be obtained
by--

(a) any party thereto;

(b) the representative in interest or the principal, of
any party thereto:

Provided that where the learning, skill, solvency or
any personal quality of such party is a material
ingredient in the contract, or where the contract
provides that his interest shall not be assigned, his
representative in interest or his principal shall not
be entitled to specific performance of the contract,
unless such party has already performed his part of
the contract, or the performance thereof by his
representative in interest, or his principal, has been
accepted by the other party;

(c) where the contract is a settlement on marriage,
or a compromise of doubtful rights between
members of the same family, any person beneficially
entitled thereunder;

(d) where the contract has been entered into by a
tenant for life in due exercise of a power, the
remainderman;

(e) a reversioner in possession, where the agreement
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is a covenant entered into with his predecessor in
title and the reversioner is entitled to the benefit of
such covenant;

..."

44. However, the record makes it abundantly clear that the
partnership firm Tirupati Corporation is no longer in
existence, having stood dissolved upon the death of its two
partners. There is no dispute between the parties on this.
Since there were only two partners, the demise of one
resulted in the automatic dissolution of the firm.

45. That having dissolved, there is no disclosure of any cause of
action for the Plaintiff to seek specific performance of the
Contract. That too, only qua the Plaintiffs. Therefore, in
essence, it is not even a specific performance of the said
Contract. This is because, there is no Contract with the
Plaintiff, of which the Plaintiff can seek performance.

46. In Round the Clock Stores Ltd. v. Aggarwal Entertainment
Pvt. Ltd., 2008 SCC Online Del 1786, the Delhi High Court
on interpretation of
Section 15
of the 1963 Act held as under:

7. So far as adjudication in the present
application is concerned, it becomes necessary to
examine the necessary provisions which stipulate as
to who would be a proper party in a suit for specific
performance.
Section 15
of the Specific Relief Act,
1963 clearly stipulates that only the two persons
who have entered into the alleged
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contract/agreement, specific performance whereof
is sought, are necessary and proper parties in a suit
for specific performance. By virtue of
Section 15
of
the Specific Relief Act, 1963, specific performance
of a contract can be obtained by any party thereto
or by the representative in interest or the principal,
of any party thereto or by the persons who have
been set out in
Section 15
of the statute.

47. However, the term "representative in interest" has been
interpreted by the Hon'ble Apex Court in several judgments
and the present Plaintiffs do not fall in the said category [see:

Kapilaben and Ors. v. Ashok
kumar Jayantilal Sheth,
(2020) 20 SCC 648 Para 24].
It does not even appear to be
the Plaintiff's case that they are representatives in interest of
the Firm. Had that been so, even the Defendant Nos. 1/1 to
1/6 would stand on a similar footing.

48. One other strange relief as sought for in the Plaint is to grant
specific performance of the Contract qua the Plaintiffs only.
Therefore also, the prayer in effect, is not of specific
performance of the Contract. This is because, the Contract as
entered into between the parties is required to be enforced.
The Plaintiff cannot seek enforcement of the said Agreement
in its favour alone. Therefore also, the present suit does not
disclose any cause of action.

49. Therefore, there cannot be specific performance or
enforcement of a Contract unless it is sought for in the same
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form as it was entered into. There is no manner in which the
specific performance of the Contract can be sought qua the
Plaintiffs alone.

50. If the argument of the Plaintiff is that the Contract had
stipulated that sale deed can be executed qua anyone that the
proposed vendee stipulates, it cannot be countenanced
because, the Plaintiff is not the proposed vendee in its
individual capacity, but the Firm.

Illusory Cause of Action

51. A further aspect that merits consideration is the conduct of
the Plaintiffs, which reflects clear approbation and
reprobation. On one hand, for the purpose of overcoming the
statutory bar under
Section 69
of the Indian Partnership Act,
the Plaintiffs seek to disown the existence of the firm Tirupati
Corporation, contending that the firm stood dissolved upon
the death of its partners and that the present Suit is filed in
their individual capacity. On the other hand, for the purpose
of asserting cause of action and claiming rights under the
agreements dated 15.12.1983 and 19.12.1983, the Plaintiffs
project themselves as partners of the same firm and seek
specific performance of contracts executed in favour of that
firm.

52. Such contradictory pleas cannot be permitted in law. A party
cannot be allowed to approbate and reprobate in the same
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breath, to deny the existence of the firm when faced with the
bar of
Section 69
, yet affirm its existence when asserting
rights allegedly flowing from its agreements. The principle of
consistency and fairness demands that a litigant cannot take
mutually destructive stands in order to derive advantage from
both. Once the Plaintiffs themselves admit that the
partnership firm has ceased to exist, they cannot
simultaneously claim contractual rights in its name or through
its agreements.

53. This inconsistent approach clearly demonstrates that the Suit
is based on contradictory and self-defeating pleadings,
creating no enforceable right in law. Such litigation, founded
on shifting stands and mutually irreconcilable contentions,
falls squarely within the mischief of Order VII Rule 11(d)
of
the Code of Civil Procedure
and deserves rejection at the
threshold.

54. The Plaint, on a plain reading, discloses no real or subsisting
cause of action. The Plaintiffs have sought to assert a right on
the basis of an agreement allegedly entered into by the
partnership firm Tirupati Corporation on 15.12.1983 and
19.12.1983. However, the firm itself stands dissolved upon
the death of its partners, and the Suit has been filed many
decades thereafter. The claim founded upon such
extinguished rights is ex facie barred under
Section 69
of the
Indian Partnership Act as well as under the provisions of the
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Limitation Act
. Even if the averments made in the Plaint are
taken at their highest value, the cause of action so pleaded is
illusory, and does not create any enforceable right in law.

55. In the present case, it is evident from the averments in the
Plaint that the Suit is hopelessly barred by limitation. The
Plaintiffs and their predecessors were aware of all material
facts, including the agreements of 1983 and the subsequent
sale deeds executed in 2003 and 2008. The record also
reflects that the erstwhile partners themselves filed a Civil
Suit in 2003, but did not claim specific performance at that
time. It is, therefore, clear that the present Plaint has been
drafted merely to create an artificial and non-existent cause of
action in an attempt to overcome the statutory bar. Such a
fictitious or illusory cause of action cannot confer jurisdiction
upon the Court to entertain the Suit.

56. The legislative intent behind Order VII Rule 11(d)
of the
Code of Civil Procedure
is to prevent the abuse of the judicial
process and to protect litigants from being subjected to
needless trials in cases where the plaint, on its face, is barred
by law. When the plaint itself reveals that the claim is legally
untenable, it becomes the duty of the Court to reject it at the
threshold. Courts must not permit litigants to engage in
speculative or vexatious litigation, which only serves to
prolong proceedings and harass the opposite party.
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57. In this context, it has been repeatedly emphasised by the
Hon'ble Supreme Court that the power under Order VII Rule
11(d) is intended to strike down sham, frivolous and
vexatious claims at inception. To allow such suits to proceed
despite clear legal bars would defeat the very object of the
provision and burden the judicial system with unnecessary
trials. The Court is not expected to permit a litigant to rely
upon a hollow or illusory cause of action to gain entry into
the judicial process. In the present case, therefore, the plaint
being barred by limitation and by the provisions of
Section 69

of the Partnership Act, and disclosing no legally sustainable
cause of action, deserves to be rejected at the threshold.

Barred by Law

Limitation to seek specific performance -
Article 54

58. Apart from the fact that the there was no cause of action for
the Plaintiff to sue the Defendants seeking specific
performance of the Contract qua the Plaintiffs alone, such an
action is also barred by limitation on the following count.

59. As on today, the Partnership Firm does not exist. This has
been admitted by both the parties. This is in view of
Section
49(C)
of the Partnership Act. By operation of law, this
Partnership stood dissolved. Once the Partnership stood
dissolved, there is no manner in which a dissolved entity can
seek any specific performance of the said Contract.
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60. However, even during the subsistence of the Partnership
Firm, a Suit had been instituted as Civil Suit No. 1435 of
2003 by Tirupati Corporation, represented by the
predecessors of the Plaintiffs and Defendant No. 1. In that
Suit, Defendant Nos. 3 to 5 were also parties, yet no relief for
specific performance of the agreement was sought. This
circumstance indicates that even during the lifetime of the
original partners, the partnership firm did not claim any
enforceable right arising from the agreement dated
19.12.1983.

61. Therefore, it is clear that at least in the year 2003, the
Partnership Firm (through its partners) was aware and had
knowledge of the Agreement and fact that the same was not
specifically enforced.

62.
Article 54
of the
Limitation Act
is reproduced hereinunder
for ready reference:

Particulars Period Time from which the period
commences to run

For specific Three years The date fixed for the
performance of performance, or, if no such
a Contract date is fixed, when the
plaintiff has notice that
performance is refused.

63. Naturally, when the Firm had filed the suit in the year 2003, it
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was aware that there was no sale deed has been executed by
the Defendant No. 3 in its favour. Having known the same
and being aware of it, the Firm at the relevant time did not
seek specific performance of the Agreement of 1983.

64. Though the Hon'ble Apex Court has held that cause of action
for filing a suit for injunction and specific relief is separate
and distinct, Order II Rule 2 may not apply to bar a later suit
for specific performance. However, the limitation to file such
a suit for specific performance cannot be stopped by any of
the parties.

65. The said previous Suit was instituted by the Firm only for the
purpose of seeking an injunction and was ultimately
withdrawn on 03.08.2012. This clearly establishes that the
fact of execution of the agreement was well within the
knowledge of the erstwhile partners of the firm Tirupati
Corporation. Despite such knowledge, no Suit for specific
performance was instituted by them within the prescribed
period of limitation as contemplated under
Article 54
of the

Limitation Act, 1963
.

66. In view of these facts, it cannot be accepted that the Plaintiffs
were unaware of the existence or execution of the agreements
dated 15.12.1983 and 19.12.1983 or of the refusal by
Defendant No. 4 to execute the sale deed. The cause of action
for seeking specific performance, therefore, clearly accrued in
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the year 1983 itself and, at the latest, in the year 2003 when
the earlier Suit was filed. Hence, the ratio laid down in
Bardoli Shreerang Exhibitors Private Limited (supra) would
not assist the Plaintiffs, as the plea of lack of knowledge is
not supported by the record or the conduct of the erstwhile
partners of the firm.

Deemed Knowledge

67. In the present case, if the distinct causes of action pleaded in
the Plaint are considered, two aspects emerge clearly: (i) the
relief for specific performance of the agreement executed in
the year 1983 is ex facie barred by limitation. From the facts
stated hereinabove, it is evident that the Plaintiff was, at all
times, aware that the original owner, Defendant No. 4, had
refused to execute the sale deed pursuant to the said
agreement, at least by the year 2003, when the erstwhile
partners of the firm Tirupati Corporation had filed a Civil
Suit concerning the same property.

68. Moreover, cause of action pertains to the challenge of the sale
deeds executed by Defendant No. 4 in favour of Defendant
No. 5, and by Defendant Nos. 1 and 2 in favour of Defendant
No. 6, in the year 2008. The fact remains that the sale deed
executed by Defendant Nos. 1 and 2 in favour of Defendant
No. 6 was executed in their capacity as partners of the
partnership firm Tirupati Corporation, and being a registered
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document, it carries deemed notice to the Plaintiffs.
Therefore, the Plaintiff could not have filed the Suit beyond
the period of limitation prescribed under
Article 59
of the

Limitation Act
. Moreover, the sale deed executed by
Defendant No. 4 in favour of Defendant No. 5 in the year
2003 is also a registered document, constituting deemed
knowledge in law, and hence, the Plaintiff cannot be heard to
say that the cause of action to file the present Suit has
subsequently arisen

69. This Court in M/s.
Vraj Developers v. Rameshbhai
Gopalbhai Patel
and ors., CRA 26 of 2017 has held as
follows:

Genesis of this doctrine or proposition seems to lay
in the fact that a person cannot after an indefinite
period of time rise to challenge everything or every
document which has been executed while that
person was in a slumber. Therefore, some questions
which can legitimately arise such a situation are (i)
Whether the Plaintiff could have reasonably known
about a transaction? (ii) Could that factum of
execution of the transaction be discovered by the
Plaintiff by due diligence? (iii) What is the nature of
right that the Plaintiff claims to hold over the
property? (iv) Is his claim of belated knowledge
consistent with such right that the Plaintiff professes
to have?, etc.
...
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Having noticed the aforesaid position of law on the
aspect of 'deemed knowledge' the following
principles can be culled out:

1) Prima Facie, there is a presumption that a
registered document has been validly
executed [Prem Singh (supra)].

2) Registration of a document, (unless rebutting
the presumption of knowledge) gives notice to
public about such registration [Suraj Lamps
(supra) Para 17].

3) Whenever a document is registered the date
of registration becomes the date of deemed
knowledge. In other cases where a fact could
be discovered by due diligence then deemed
knowledge would be attributed to the Plaintiff
[Dilboo (supra)].

4) After this stage, two outcomes may occur.

i. The Plaintiff has validly pleaded
material and exact dates of acquiring
knowledge, etc. and has pleaded a
cause of action which is triable [cases
to the likes of Daliben, Chhotanben,
etc.]
ii. The Plaintiff has made vague
averments, pleaded illusory cause,
inasmuch as has pleaded such
averments which outright show that
the date of knowledge as pleaded by
the Plaintiff is a false contention by
way of clever drafting.
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5) Therefore, at this juncture, under Order VII
Rule 11, it is important to examine and
scrutinize the cause of action so pleaded. If
the cause of action is illusory, vexatious or
frivolous as being outright sham.

70. In the present case, the plea of the Plaintiffs that they were
unaware of the execution of the sale deeds cannot be
accepted. The sale deed executed by Defendant No. 4 in
favour of Defendant No. 5 in the year 2003 and the
subsequent sale deed executed by Defendant Nos. 1 and 2 in
favour of Defendant No. 6 in the year 2008 are both
registered documents, forming part of the public record.
Under settled law, registration of a document constitutes
deemed notice to all persons claiming any interest in the
property. The Plaintiffs, being successors of the original
partners of Tirupati Corporation, were bound to be aware of
transactions affecting the property that formed part of the
firm's assets. The record further shows that even in the year
2003, a Civil Suit was filed by the erstwhile partners
concerning the same property, thereby affirming their
knowledge of the transactions. Hence, the Plaintiffs cannot
now claim ignorance or seek to revive their right after
decades. The deemed knowledge of the registered
instruments squarely bars the present Suit under
Articles 54

and
of the
Limitation Act
.

Plaintiff's basis of right and
Section 69
of the Partnership
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Act

71. Another relevant aspect that requires consideration is that the
present Suit has been instituted by the Plaintiffs claiming
rights on behalf of the partnership firm. A reading of the
averments in the Plaint makes it evident that the Plaintiffs
assert their entitlement to the suit property by virtue of the
Partnership Deed, under which they claim to have become
partners upon the demise of their father.

72. Reliance has been placed on Clause 12 of the said partnership
deed to contend that, as the legal heirs of the deceased
partner, the Plaintiffs have stepped into his shoes and thereby
acquired the rights and interests of a partner in respect of the
suit property.

73. If the partnership deed and the existence of the partnership
firm are excluded from consideration in the Suit, the
Plaintiffs would have no independent or individual right in
the suit property. Their entire claim is founded upon the
rights allegedly flowing from the partnership firm and the
partnership deed. In the absence of such partnership or any
contractual nexus directly conferring ownership or possessory
rights upon the Plaintiffs, no personal or separate entitlement
in the suit property can be said to exist in their favour.

74. When the partnership firm itself has ceased to exist, no
individual partner can maintain a claim for specific
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performance in his personal favour in respect of a contract
executed with the firm. The rights and obligations under such
an agreement vest in the firm as a collective entity, and once
the firm stands dissolved, those rights cannot be individually
enforced by a former partner, especially qua themselves
alone. Any attempt by a partner to seek specific performance
in a personal capacity, in relation to a contract entered into
with the firm, is impermissible.

75. In this background, it is apposite to consider
Section 69
of the
Partnership Act into account:

"69. Effect of non-registration. --(1) No suit to
enforce a right arising from a contract or conferred
by this Act shall be institutes in any Court by or on
behalf of any person suing as a partner in a firm
against the firm or any person alleged to be or to
have been a partner in the firm unless the firm is
registered and the person suing is or has been
shown in the Register of Firms as a partner in the
firm.

(2) No suit to enforce a tight arising from a contract
shall be instituted in any Court by or on behalf of a
firm against any third party unless the firm is
registered and the persons suing are or have been
shown in the Register of Firms as partners in the
firm.

(3) The provisions of sub-sections (1) and (2) shall
apply also to a claim of set-off or other proceeding
to enforce a right arising from a contract, but shall
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not affect--

(a) the enforcement of any right to sue for the
dissolution of a firm or for accounts of a dissolved
firm, or a ay right or power to realise the property
of a dissolved firm, or

(b) the powers of an official assignee, receiver or
Court under the
Presidency-towns Insolvency Act,
(2 of 1909), or the
Provincial Insolvency Act,
(5 of 1920), to realise the property of an
insolvent partner.

..."

76. The fact remains that the present Suit has been instituted to
enforce rights arising out of a contractual obligation and has
been filed by persons suing in the capacity of partners of the
firm. However, such a Suit is not maintainable unless the
partnership firm is duly registered and the persons suing are
shown as partners in the Register of Firms, as contemplated
under the
Indian Partnership Act, 1932
. In the present case,
the Plaintiffs are admittedly not recorded as partners in the
Register of Firms, and since the firm itself is unregistered, the
Suit could not have been instituted in law.

77. Moreover, in view of sub-section (2) of
Section 69
of the
Indian Partnership Act, 1932, the Plaintiffs are seeking to
enforce a right arising out of a contract against Defendant
Nos. 2 to 8. As the firm in question is unregistered, such
enforcement is expressly barred under the said provision.
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Hence, the Suit is barred by law, as consistently held by the
Courts in similar circumstances.

78.
In
Farooq v. Sandhya Antraper
, 2018 (12) SCC 580, it has
been held at paragraph No. 5 and 6 as under:

"5. Having heard the learned Senior counsel
appearing for the parties, it is clear that the plaint,
read as a whole, relied upon clause 25 (d) of the
Partnership Deed which specifically states that no
partners of the firm shall without the consent in
writing of the other partners be entitled to transfer
immovable property belonging to the firm. The
plaint then goes on to say that the suit schedule
property was purchased out of the funds of the firm
for the purpose of development and sale. In
paragraph 11, the plaintiffs discovered that a sale
deed has been executed by the first defendant. It has
been specifcally stated that the plaintiffs had never
consented to the same and the first defendant has no
authority to sell any immovable property belonging
to the firm.

6. The plaint, read as a whole, leaves no manner
of doubt that the basis of the suit is
Section 69
of the
Partnership Act read with clause 25 (d) of the
Partnership Deed dated 29th December, 1995.
Paragraph 18 of the plaint does not carry the matter
further inasmuch as the only sentence which could
possibly be relied upon, and which was relied upon
by the High Court, is that the plaintiffs are entitled
to file the suit even independently of the partnership
firm. Having found that the basis of the suit is the
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factum of partnership and having relied upon clause
25 (d) of the Partnership Deed, it is clear that the
Trial Court correctly found that the bar of
Section
of the Act was attracted in the facts of this case.

79. In the present case, the Plaintiffs have not instituted the Suit
in their individual capacity but have done so in their capacity
as partners of the firm Tirupati Corporation. This position is
evident from the averments made in the Plaint, which clearly
state that the Suit has been filed by the Plaintiffs as partners
of the said firm. Consequently, in view of the admitted fact
that the partnership firm stands dissolved upon the death of
the original partners, the Plaintiffs could not have maintained
the present Suit in law.

80. This is also because, if the Plaintiffs do not claim through the
Firm, they do not obtain any right to sue. Hence, it is done
only with the reason to

81. Moreover, the principle
laid down by
the Hon'ble Gujarat
High Court in
Pathik Udayan Bhatt v. Sakti Infotech and
Others
, 2024 SCC OnLine Guj 4221, applies in the present
case.

"21. With the help of learned advocate for the
petitioner, I have perused the plaint of Regular Civil
Suit NO.600 of 2016 filed by the plaintiffs-
respondents, which is at Annexure-B to this petition,
and upon bare perusal of the entire plaint, I am
unable to find out anywhere in the plaint a single
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averment that the respondent No.1-is a registered
firm, and as such, I find merit in the contention
canvassed by the learned advocate for the applicant
that in the absence of any assertion made in the
plaint by the respondents that their firm is a
registered firm, and in the absence of any
documentary evidence being produced by them in
support thereof, the suit instituted by the
respondents is hit by the provisions of
Section 69
of
the Indian Partnership Act, and when the suit is
barred by any law, as per Clause 11(d) of Order VII,
the same is required to be dismissed at the
threshold."

82. Therefore also, as there are no averments in the Plaint that the
suit is filed by the firm which has been registered under the

Partnership Act
, the plaint ought to have been rejected by the
trial Court even on this count.

83. Therefore, in the absence of any averment in the Plaint to the
effect that the Suit has been instituted by a firm duly
registered under the provisions of the
Indian Partnership Act,
, the Suit is rendered not maintainable in law. The Ld.
Trial Court ought to have rejected the Plaint on this ground
alone, as the statutory bar under
Section 69
of the Indian
Partnership Act operates squarely against the maintainability
of a Suit filed by or on behalf of an unregistered firm.

Re: Part performance of Contract and Ancillary Relief

84. In the present case, the principal and substantive relief sought
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by the Plaintiff is one for specific performance of the
agreement dated 19.12.1983. The relief relating to protection
of possession over the suit property, as pleaded in the Plaint,
is merely incidental or ancillary to the claim for specific
performance. Once it is held that the primary relief for
specific performance is barred by limitation, any
consequential or ancillary relief which is dependent upon the
success of that principal claim cannot independently survive.
The law is well settled that where the main relief is barred,
the ancillary or consequential relief automatically falls.

85. It further appears from the record that the Plaintiff seeks to
protect his possession over the suit property by invoking the
doctrine of part performance under
Section 53A
of the
Transfer of Property Act, 1882. The Plaintiff's case is that
possession was handed over to him pursuant to the
supplementary agreement dated 19.12.1983, and therefore,
his continued possession deserves protection. However,

Section 53A
of the Transfer of Property Act does not confer
ownership or any enforceable title; it merely protects the
possession of a transferee who has acted in part performance
of a contract.

86. The scope of Section 53A has been judicially defined by the
Hon'ble Supreme Court to mean that the provision operates
only as a shield and not as a sword. It can be used as a
defence to resist dispossession but cannot be invoked as a
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basis to assert ownership or to seek affirmative relief such as
specific performance or declaration of title. The Plaintiff,
therefore, cannot rely on Section 53A to found a cause of
action for enforcement of any contractual right.

87. This is for a simple reason. If the Plaintiff is seeking a relief
of protection of possession on the strength of an Agreement
to Sell, it is claiming the benefit by operation of
Section 53A

of the Transfer of Property Act, 1882 ("
TP Act
"). However,
the benefit of
Section 53A
of the TP Act is not available to an
Unregistered Agreement to sell holder. Albeit it is true that
since the document has been executed before 2001, according
to Section 17A the same is not required to be registered.

88. In light of the above settled position, the Plaintiff's reliance
on
Section 53A
of the Transfer of Property Act to sustain his
claim or protect his possession is legally untenable. Once the
primary claim for specific performance is barred by
limitation, the ancillary plea for protection of possession
under Section 53A must also fail.

89. The Plaintiffs however, have tried to come out of the rigours
of
section 54
of the Transfer of Property Act, by stating that
since there are other reliefs regarding protection possession of
the suit property. However, when the main relief of
declaration and cancellation of the sale deed itself is not
maintainable, it cannot be said that the Plaintiff had any cause
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of action for seeking other reliefs namely, injunction.

90. It is pertinent to note that when the main relief of specific
performance is not available to the Plaintiff on account of
non-disclosure and non-existence of cause of action, for the
same, the consequential relief of injunction cannot be said to
be available to the Plaintiff on similar count. Therefore, when
the relief of injunction is not an independent relief, there is no
question of rejection of the Plaint, since the main relief itself
is not maintainable in the present case.

91. Hon'ble Apex Court in the case of Padhiyar Prahladji
Chenaji (Deceased) through L.Rs. vs. Maniben Jagmalbhai
(Deceased) through L.Rs. and Ors. MANU/SC/0272/2022
held as follows:

11. From the impugned judgment and order passed
by the High Court, it appears that the High Court
has not properly appreciated the distinction between
a substantive relief and a consequential relief. The
High Court has observed that in the instant case
the relief of permanent injunction can be said to be
a substantive relief, which is clearly an erroneous
view. It is to be noted that the main reliefs sought
by the Plaintiff in the suit were cancellation of the
sale deed and declaration and the prayer of
permanent injunction restraining Defendant No. 1
from disturbing her possession can be said to be a
consequential relief. Therefore, the title to the
property was the basis of the relief of possession. If
that be so, in the present case, the relief for
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permanent injunction can be said to be a
consequential relief and not a substantive relief as
observed and held by the High Court. Therefore,
once the Plaintiff has failed to get any substantive
relief of cancellation of the sale deed and failed to
get any declaratory relief, and as observed
hereinabove, relief of injunction can be said to be a
consequential relief. Therefore, the prayer for
permanent injunction must fail. In the instant case
as the Plaintiff cannot be said to be in lawful
possession of the suit land, i.e., the possession of the
Plaintiff is "not legal or authorised by the law", the
Plaintiff shall not be entitled to any permanent
injunction.

11.1 An injunction is a consequential relief and in a
suit for declaration with a consequential relief of
injunction, it is not a suit for declaration simpliciter,
it is a suit for declaration with a further relief.

Whether the further relief claimed has, in a
particular case as consequential upon a declaration
is adequate must always depend upon the facts and
circumstances of each case. Where once a suit is
held not maintainable, no relief of injunction can
be granted. Injunction may be granted even against
the true owner of the property, only when the person
seeking the relief is in lawful possession and
enjoyment of the property and also legally entitled to
be in possession, not to disposes him, except in due
process of law.

92. Therefore, it is clear that the Plaintiff has sought relief of
injunction as a mere consequential relief, which cannot
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sustain once the main relief of cancellation of sale deed has
been held to be not maintainable. Therefore, there is no
question of the suit being sent for trial when there was no
cause of action to seek the main relief of cancellation of the
sale deed.

V. JUDGMENTS CITED BY THE PLAINTIFF

93. The Plaintiffs have relied on the following judgments (i)
(1965) 57 ITR 510 in the case of
Commissioner of Income
Tax, MP, Nagur and Bhanda v. Seth Gonvindram
Sugarmills
, (ii) (2010) 2 SCC 407 in the case of Mohamad
Liaquiddin & Anr. v. Kamladevi Misra, (iii) 2021 SCC
OnLine GUJ 3285 in the case of
Bardoli Shreerang
Exhibitors Private Limited v. Maheshbhai Babubhai
Hirapara
, (iv) Civil Appeal No.785 of 2022 in the case of
Shive Developers throgh its
Partner Sunibhai Somabhai
Ajmeri v. Aksharay Devlopers & Ors.
, (v) 2024 INSC 1049
in the case of Daliben Valjibhai & Ors. v. Prajapati
Kodarbhai Kacharabhai & Anr., (vi) Civil Appeal No.5622
of 2025 (2025 INSC 598) in the case of
P.
Kumarakurubaran v. P. Narayanan & Ors.
, (vii) Civil
Appeal No.7019 of 2025( 2025 INSC 772) in the case of
Vinod Infra Developers Ltd. v. Mahavir Lunia & Ors.,
wherein also it has been held that when there are two
surviving partners and on death of one partner, the
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partnership would come to an end.

94. Learned Senior Advocate for the Plaintiff has also placed
reliance on the judgment reported in 2021 SCC OnLine Guj
3285 in the case of
Bardoli Shreerang Exhibitors Private
Limited v. Maheshbhai Babubhai Hirapara
, wherein the
Hon'ble Court held that when there is a specific case pleaded
by the Plaintiff that he became aware of the impugned deeds
only upon the filing of the Written Statement in the earlier
Suit, then, though such averment may or may not ultimately
be proved, the issue of limitation cannot, at the threshold, be
pressed against the Plaintiff.

95. However, in the present case, the Plaintiffs are asserting
rights as alleged partners of the dissolved firm Tirupati
Corporation and are seeking to derive title and possession on
the strength of agreements dated 15.12.1983 and 19.12.1983.
It is an admitted position that the original partners of Tirupati
Corporation had already asserted their alleged rights under
the same agreements, and even at that point of time, they had
not sought specific performance. The Civil Suit No. 1435 of
2003 filed by the partnership firm was only for injunction,
and no relief for specific performance was claimed. This
clearly indicates that the original partners were fully aware of
the execution of the agreements as well as the conduct of the
original owner, Defendant No. 4, who was not a signatory to
either of the agreements and had never agreed to execute a
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sale deed in favour of Tirupati Corporation.

96. With respect to the judgment relied upon by the learned
Senior Advocate for the Plaintiff in the case of Shiv
Developers through its
Partner Sunilbhai Somabhai Ajmeri
v. Aksharay Developers and Others
, the same will not be
applicable to the facts of the present case. The Suit filed by
the Plaintiff is for enforcement of rights arising from a
contract and not based on any allegation of fraud or
misrepresentation.

In
Shive Developers
(supra), the Court was
dealing with a situation where the Suit was grounded on
allegations of fraud, concealment and deceit, which is not the
position in the present matter. The Plaintiff's claim is purely
contractual and, therefore
,
the said decision
does not assist
the Plaintiff.

97. The judgment relied upon in the case of Daliben Valjibhai
and Others v. Prajapati Kodarbhai Kacharabhai and
Another is also not applicable. In that case, the Plaintiff had
specifically contended that she became aware of the
impugned sale deed only in the year 2004, and it was her case
that the document contained forged signatures and thumb
impressions. The issue there related to the computation of
limitation in cases involving fraud under
Section 17
of the
Limitation Act. In the present case, however, the erstwhile
partners of Tirupati Corporation were fully aware of the
agreements dated 15.12.1983 and 19.12.1983 and had even
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filed Civil Suit No. 1435 of 2003 for injunction, which was
later withdrawn. Therefore, the Plaintiffs, claiming through
the same partners, cannot assert lack of knowledge. The right
to sue arose much earlier, and the Suit filed in 2020 is clearly
barred by limitation.

98. Reliance placed on
P. Kumarakurubaran v. P. Narayanan
and Others
is also misplaced. The said case concerned a
challenge to a General Power of Attorney alleged to have
been fraudulently executed. The Court examined limitation in
that factual background. In the present case, the original
owner, Defendant No. 4, was not a signatory to the
agreements entered into between Defendant No. 3 and the
partnership firm in 1983. The erstwhile partners never sought
specific performance of those agreements despite being aware
of the refusal of Defendant No. 4. The record shows that the
partners had knowledge of such refusal at least since the year
2003. Therefore
,
the said judgment
does not assist the
Plaintiffs.

99. As regards reliance on Vinod Infra Developers Ltd. v.

Mahavir Lunia and Others, where the Hon'ble Supreme
Court held that a plaint can only be rejected if it is manifestly
vexatious or discloses no cause of action, the principle does
not help the Plaintiffs. In the present case, there are two
distinct causes of action: one for specific performance of the
1983 agreement, and another challenging sale deeds executed
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in 2003 and 2008. Both causes of action are barred by
limitation. The registered sale deeds of 2003 and 2008 are
public documents, and the Plaintiffs are deemed to have
knowledge of their execution. The sale deed of 14.11.2008
was executed by Defendant Nos. 1 and 2 in their capacity as
partners of Tirupati Corporation, which imputes constructive
notice to the Plaintiffs. Similarly, the sale deed executed by
Defendant No. 4 in favour of Defendant No. 5 in 1983 was a
registered document, creating deemed knowledge under law.
Therefore, the Plaintiffs cannot claim ignorance or a fresh
cause of action. The Suit is clearly barred by limitation under

Article 59
of the
Limitation Act
and discloses no existing
right to sue.

VI. CONCLUSION

100. Upon careful consideration of the pleadings, documents, and
reliefs sought in the Plaint, this Court finds that the Suit
suffers from fundamental legal infirmities and discloses no
genuine cause of action. The summary reasoning for the same
may be set out as follows:

101. Firstly, the Suit is based on agreements dated 15.12.1983 and
19.12.1983, which were entered into not with the Plaintiffs in
their individual capacity but with the partnership firm
Tirupati Corporation. The Plaintiffs, however, have sought
specific performance of those agreements in their personal
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favour. Such a pleading reflects an inherent inconsistency.
The Plaintiffs cannot claim rights under agreements executed
with the firm and simultaneously sue in their own names.
This conduct amounts to clear approbation and reprobation
seeking to rely on the firm when it suits their purpose and to
disown its existence to avoid the statutory bar under
Section
of the Indian Partnership Act, 1932. Such mutually
destructive pleas cannot stand together and render the cause
of action wholly illusory.

102. Secondly, the partnership firm Tirupati Corporation stood
dissolved upon the death of its two partners, in terms of

Section 42(c)
of the Indian Partnership Act, 1932. Once the
firm was dissolved, no legal relationship survived between
the erstwhile partners, nor could any rights or liabilities be
enforced in the name of the firm. The Plaintiffs, claiming
through the deceased partners, cannot maintain a Suit on
behalf of a non-existent entity or claim personal reliefs
flowing from contracts executed in its name.

103. Thirdly, even assuming the agreements to be validly
executed, the Suit is hopelessly barred by limitation under

Article 54
of the
Limitation Act
. The right to seek specific
performance accrued in 1983 when the agreements were
executed, and, at the latest, in 2003 when the erstwhile
partners filed Civil Suit No. 1435 of 2003 without seeking
such relief. The subsequent sale deeds executed in 2003 and
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2008 are registered public documents, and the Plaintiffs are
deemed to have had constructive notice of their execution.
Hence, the plea of lack of knowledge or recent discovery is
untenable.

104. Fourthly, the Suit is expressly barred under
Section 69(1)

and (2) of the
Indian Partnership Act, 1932
, since the
partnership firm was unregistered and the Plaintiffs are not
shown in the Register of Firms as partners. The statutory bar
is absolute and goes to the root of the maintainability of the
Suit.

105. Fifthly, the cause of action, as pleaded, is artificial and
illusory. The Plaintiffs have attempted to resurrect stale and
extinguished rights (that too of the dissolved firm) through
vague averments. The Suit, therefore, represents a clear
instance of an illusory cause of action. Allowing such a Suit
to proceed would amount to permitting abuse of the judicial
process.

106. In view of the above, this Court finds that the Plaint is devoid
of merit and discloses no legally enforceable right. The Suit
is barred both by limitation and by the provisions of
Section
of the Partnership Act, 1932. The cause of action being
illusory and inconsistent, the Plaint deserves to be rejected at
the threshold under Order VII Rule 11(a) and (d)
of the Code
of Civil Procedure
.
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107. Accordingly, the Civil Revision Application is allowed. The
impugned order passed by the Learned Trial Court below
Exhibit 80 is quashed and set aside. The application under
Order VII Rule 11 is allowed, and the Plaint in Civil Suit No.
220 of 2020 stands rejected. No order as to costs.

(SANJEEV J.THAKER,J)

Manoj Kumar Rai
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