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Madras High Court · body

2014 DIGILAW 992 (MAD)

Syed Nizamuddin v. Shaik Akbar

2014-04-25

R.S.RAMANATHAN

body2014
JUDGMENT 1. The defendants 1, 2, 4, 5, 7 to 10 in O.S. No. 2579 of 1996 on the file of the learned V Additional Judge, city Civil Court at Chennai are the appellants in A.S. No. 874 of 2001 and the first respondent in I.A. No. 11233 of 2004 in O.S. No. 2579 of 1996 is the appellant in Tr.A.S. No. 919 of 2009. 2. The suit in O.S. No. 2579 of 1996 was filed by the plaintiffs for declaration that the plaintiffs are entitled to 2/14 share in one half of ‘A’ and ‘B’ schedule properties and after division of ‘A’ ‘B’ schedule properties by meats and bounds into two equal halves, allot to each of the plaintiffs 2/14th share in one such half share and also for declaration that they are entitled to claim Rs. 2 lakhs being the value of shares in one half of ‘c’ schedule property, for declaration that the first defendant/the first appellant shall render a true and proper account of the business of Rapid Industries on and from August 1973 from the plaintiffs and for costs. 3. The case of the plaintiffs is as follows: The plaintiffs, D11 to D14 are the children of A.R. Shaik Ahmed and Bee Bee Jan. The defendants 1 to 10 are the children of Syed Fakruddin and Azee Zunnisa and the sixth defendant died leaving behind the defendants 19 to 20 as his legal heirs. Bee Bee Jan was the sister of Syed Fakruddin and therefore, Syed Fakruddin was the brother-in-law of A.R. Shaik Ahmed. The third defendant the eldest daughter of Syed Fakruddin was given in marriage to the eldest son of A.R. Shaik Ahamed, the 13th defendant and thus the thirteenth defendant is the son-in-law of Syed Fakruddin. 4. The late Shaik Ahamed hereinafter referred to as Shaik and late Syed Fakruddin hereinafter referred to as Syed started business jointly and were doing the business in cycles, cycle spare parts under the name and style of Raja Cycle Company at Door No.8, Broadway, Madras – 1. They also acquired immovable properties such as nanja lands in the village of Periapannecheri, Sri Perambudur Taluk, Chengalpattu District to an extent of 6 acres and 9 cents under sale deeds dated 30.01.1947 and 12.02.1947, in their joint names. They also acquired immovable properties such as nanja lands in the village of Periapannecheri, Sri Perambudur Taluk, Chengalpattu District to an extent of 6 acres and 9 cents under sale deeds dated 30.01.1947 and 12.02.1947, in their joint names. They also jointly acquired punja lands in the same village to an extent of 0.40 cents under sale deed dated 29.05.1965 and the lands were purchased to expand their business as manufacturers of cycle spare parts and sparesetc. They also jointly acquired lands in Gerugambakkam Village to an extent of 0.89 cents under Document dated 02.09.1947. These properties were described in ‘A’ schedule of the plaint. 5. They also converted the joint business run by them under the name and style of Raja cycle Company into a partnership firm in or about 1953 and in the partnership firm each was having 50% share and also brought the properties jointly purchased by them, mentioned in ‘A’ schedule in plaint, as partnership properties. 6. They also built a factory in a portion of the land purchased in R.S. No. 1/1 in Peria Pannacheri Village for manufacture and sale of cycles and other allied articles and also made it a partnership concern under the name and style of Rapid Industries on the same terms and conditions of the partnership firm Raja Cycle Company. The factory premises together with building and the adjoining residential office building is described in ‘B’ schedule. The plants, machineries, accessories etc. in the said factory are set out in ‘C’ schedule. The construction of the factory and the plant machineries were made out of the partnership assets mentioned in ‘A’ schedule. 7. They also started another partnership concern known as ‘Liberty Enterprises’ which was intended to serve their business needs out of the surplus reserves of their partnership firms. in the said factory are set out in ‘C’ schedule. The construction of the factory and the plant machineries were made out of the partnership assets mentioned in ‘A’ schedule. 7. They also started another partnership concern known as ‘Liberty Enterprises’ which was intended to serve their business needs out of the surplus reserves of their partnership firms. When the partnership business namely Raja Cycle Company and Rapid industries prospered, both Syed and Shaik thought it fit to admit their eldest son as partners of the said firms and accordingly, in and about 1962 to 63, the eldest son of Shaik namely 13th defendant and eldest son of Syed i.e. the first defendant were admitted as partners in the partnership firms and the said firms were re-constituted with the addition of two more partners and each family was owning 50% share in the aforesaid partnership business and out of 50% share, the father was owning 42% and son was owning 8%. Till the factory was commissioned, Syed relied upon Shaik for advice and guidance as Shaik had good experience in that field. 8. After establishment of Rapid Industries and commencement of manufacturing process, Syed took control over the manufacturing unit and Shaik was left alone and was singled out in the business. As a matter of fact Syed requested Shaik to take care of Raja Cycle Company exclusively and took over the Rapid industries by stating that both the business are interdependent for their sustenance and believing the words of Syed, Shaik also agreed without knowing the consequences and mischievous plans of Syed. Later, Shaik realized that Raja Cycle Company cannot be run profitably without getting support from Rapid Industries and he was also getting support from Rapid Industries and in due course Raja Cycle Company became defunct for want of sustenance. The Rapid Industries was also not prospering well as expected and taking advantage of the ill-health of Shaik, Syed worked out his plans to ease out Shaik from business and his sister, who is the wife of Shaik, also supported him and Syed took absolute control of Rapid Industries and its properties and obtained release deed in January 1982 from Shaik releasing his rights in the partnership Rapid Industries and his assets. When the Rapid Industries was at its peak the retirement of Shaik was done to completely take over of business by Syed. When the Rapid Industries was at its peak the retirement of Shaik was done to completely take over of business by Syed. The late Shaik was not in sound mental state to understand the implication of release deed and he executed the same as per the dictates of Syed. Therefore, the release deed was vitiated by fraud, deception, coercion, duress and undue influence and absolutely void and inoperative. In any event, that would not affect the plaintiff’s share in the assets of the said partnership business. 9. The plaintiffs were kept in the dark about the business of the firm Rapid Industries ever since the death of the father Shaik in August 1973 till January 1982 when their mother died. After the death of the father Shaik the eldest son the 13th defendant and one of the partners of the business was giving out that he would take care of the interest of the family in the said business and the plaintiffs believed him and 13th defendant was extending financial help to the plaintiffs and therefore, everyone in the family of Shaik left it to the discretion of thirteenth defendant and were under the impression that he would take care of the interest of other legal heirs of Shaik. 10. Only after the death of the mother of the plaintiffs, the thirteenth defendant confessed about the fraudulent acts committed by his father-in-law late Syed to the plaintiffs and other members of the family and then only they came to know about the release deed alleged to have been executed by their father. They also came to know that the eighteenth defendant was one of the creditors and they took steps for recovery of money by sealing the schedule factory building with the machineries and accessories in the factory and the first defendant borrowed a sum of Rs. 1,33,000/- from the fifteenth defendant by creating mortgage by deposit of title deeds under a document dated 15.11.1979. The plaintiffs came to know that the amount payable to the fifteenth defendant was also paid and the first defendant sold practically all the machineries and accessories in the factory to discharge his dues to the creditors in respect of his personal borrowings and the mortgage in favour of the fifteenth defendant is not discharged. The seventeenth defendant filed the suit for recovery of amount in Sub Court, Chengalpet and the said suit is pending. The seventeenth defendant filed the suit for recovery of amount in Sub Court, Chengalpet and the said suit is pending. The plaintiffs therefore state that they along with the defendants 11 to 14 as legal heirs of A.R. Shaik Ahamed are entitled to 50% interest of their father’s share in the Rapid Industries as well as in the machineries and the immovable properties jointly purchased by Shaik and Syed and therefore, filed the suit for declaration that they are entitled to 2/14 shares in one half of ‘A’ and ‘B’ and half share in ‘C’ schedule properties. 11. The first defendant admitted the relationship between the parties and contended that the suit is barred by limitation and there is no cause of action for the plaintiffs to maintain the suit and the plaintiffs are not entitled to the reliefs prayed for. It is stated that though the properties were purchased under three sale deeds dated 30.01.1947, 12.02.1947 and 29.05.1965 and acquired in the name of Shaik Ahamed and Syed, they were treated as assets of partnership firm. Therefore, ‘A’ and ‘B’ schedule properties were the properties of the partnership firm. 12. It is further stated that on 03.08.1953, Shaik and Syed commenced the business under the name and style of Rapid Industries and the properties purchased prior to the commencement of the partnership company were treated as the assets of the partnership firm and the two partners gave up their claims over the said properties and made those properties as partnership properties. The Rapid Industries were manufacturing different items namely Spare Parts, Allied Articles of cycle parts and also automobile fitting and Raja Cycle Company was also a partnership firm which was a thriving concern and the Rapid Industries faced many difficulties and was sustaining loss while the Raja Cycle company a trading firm was flourishing. The plaintiffs father prevailed over the first defendant’s father namely Syed to dissolve the firm Rapid Industries and Liberty Enterprises and accordingly the firm was dissolved on 30.12.1971 and new partnership was entered into between Shaik and Syed on 31.12.1971 to carry on the business in the name and style of Rapid Industries. 13. The first defendant has denied the allegations that there was change in the constitution of the partnership firm and the eldest son of each partner was inducted as partners along with Shaik and Syed. 13. The first defendant has denied the allegations that there was change in the constitution of the partnership firm and the eldest son of each partner was inducted as partners along with Shaik and Syed. The decline of trade business, the Raja Cycle Company, was the own making of the plaintiff’s father Shaik and he neglected the business Raja Cycle Company and thereafter, his sons the plaintiffs along with the defendants 11 to 14 started a new business under the name and style of New Raja cycle Company using the same name. It is also stated that even after the re-constitution of the partnership firm it did not prosper well and therefore, under the release deed dated 06.01.1972 Shaik released his rights in the assets of business and Liberty Enterprises which included the plaint ‘A’ ‘B’ and ‘C’ schedule properties. 14. It is further stated that on 05.02.1973 Rapid Industries was re-constituted with the induction of Mr. Jeyaraj S/o M.R. Rajagopal and Smt. Rani Shanmugavalli Devi w/o Raja Ravu Rangamannar Krishnan Ranga Roa and new Partner Jeyaraj has contributed Rs. 37,500/- each towards capital of the firm and on 05.02.1973 an agreement for dissolution of partnership was entered into between Shaik and Syed wherein it was stated that the defendant’s father should take over all the assets and liabilities of Rapid Industries in consideration of the plaintiff’s father relinquishing his rights in Rapid Industries and after execution of release deed, the plaintiff’s father Shaik became the owner of Raja Cycle Company. 15. It is further stated that after re-constitution and after induction of new partners, the business could not be run profitably. Therefore, on 01.09.1974 fresh partnership agreement was entered into between Syed and M.R. Jeyaraj and Rani Shanmugavalli Devi retired from the partnership firm. Unfortunately, the Rapid Industries business was also not making any profit and as a result misunderstanding arose between Syed and Jeyaraj and Jeyaraj filed O.S. No. 6971 of 1975 before VIII Assistant City Civil Judge, Madras, for dissolution of partnership and for taking of accounts and preliminary decree was passed on 26.04.1976 dissolving the firm the Rapid Industries and on 31.03.1977 a consent memo was filed by both parties for passing final decree. 16. 16. As per the final decree passed in I.A.No.12654 of 1979 in O.S. No. 6971 of 1975 all the assets and liabilities of the firm were taken over by the defendants 1 to 10. The defendants also denied the allegations that ‘C’ schedule properties are available for partition and Shaik died in the year 1973 and the suit was filed in the year 1983 and therefore, the suit is barred by limitation. The plaintiffs are not entitled to any share in the assets set out to Schedule A and C and the plaintiffs cannot also claim any right or share in the income from the schedule of properties. The partnership firm in the name of Rapid Industries in which Shaik and Syed were partners was dissolved in 1973 on the death of Shaik and re-constituted with other partners and therefore, the plaintiffs are not entitled to the reliefs prayed for. 17. The defendants 11, 12 and 14 filed a statement supporting the case of the plaintiffs. The thirteenth defendant filed a written statement stating that on 01.01.1964 he and the first defendant were admitted as partners in the partnership businesses and denied any knowledge attributed to him in the plaint such as in collusion with father-in-law Syed Fakruddin, he deprived the plaintiffs and the defendants 11, 12 and 14 of their due share in the profit as well as in the assets of the properties jointly purchased by Shaik and Syed. He further stated that Shaik was taking active part in the business of Raja Cycle Company and Rapid Industries till 1967 and thereafter, he slowly reduced his participation and died in the year 1973. The partnership firm the Rapid Industries ran into loses and Syed was not able to pay his creditors and they also threatened to initiate legal proceedings to declare him as insolvent and in such circumstances release deed was obtained between 1970 and 1972 and his father Shaik was bed ridden from 1970 till his death in August 1973 and the documents executed by Shaik purporting releasing his rights in the partnership business only for the limited purpose to establish that Shaik was having means and it was not his intention to release his right. In other words, he supported the case of the plaintiffs and prayed for the decree as being prayed for by the plaintiffs. 18. In other words, he supported the case of the plaintiffs and prayed for the decree as being prayed for by the plaintiffs. 18. The 17th defendant filed a statement stating that he gave financial facilities to Rapid Industries on various dates and they pledged the machineries and movables and also deposited title deeds in respect of nanja and punja lands in ‘A’ schedule and granted to Rapid Industries Rs. 3,36,000/- on 13.05.1970 and in December 1971 Rapid Industries firm was dissolved and new firm was reconstituted with the defendants 11 to 14, the plaintiffs 1 to 4. The bank filed O.S. No. 30 of 1978 before the Sub Court, Chengalpet for dues payable to the bank and Syed Fakruddin died on 17.02.1979 leaving behind the defendants 1 to 10 as his legal heirs. It is, therefore, contended by the 17th defendant that the properties are mortgaged to the bank and no one has title over the same. 19. The first defendant filed a written statement stating that the suit for partition is barred by limitation and the suit is liable to be dismissed on that ground. 20. The defendants 1 to 14 and 19 and 20 filed a memo stating that they also adopted the additional written statement filed by the first defendant. 21. On the basis of the above pleadings, the following issues were framed. 1. Whether the plaintiffs are each entitled to 2/14 share in one half of ‘A’ and ‘B’ schedule properties as prayed for? 2. Whether the plaintiffs are entitled to Rs. 2 lakhs as prayed for? 3. Whether the suit is barred by limitation? 4. Whether the plaintiffs have cause of action to file the suit? 22. On the side of the plaintiff, the first plaintiff was examined as P.W.1 and 8 documents were marked and no one was examined on the side of defendants and no document was marked. 23. The trial Court answered the issue No.1 in favour of the plaintiffs and held that the plaintiff has given up the claim as against the 17th defendant and the plaintiffs 1 to 4 being the sons of law of Shaik are entitled to claim partition and also for accounts of the partnership business and held that they are entitled to 2/14 share each in one half of A and B schedule properties. 24. 24. The trial court also held that the plaintiffs have got cause of action and answered the issue No.4 in favour of the plaintiffs and answered the issue No.2 holding that they are entitled to Rs. 2 lakhs and the issue No.3 was answered in favour of the plaintiff and held that the suit was not barred by limitation and preliminary decree was passed as prayed for. 25. Thereafter, I.A. No. 11233 of 2004 in O.S. No. 2579 of 1996 was filed by the plaintiffs for passing Supplementary Preliminary Decree stating that the some of the properties belonging to the partnership properties were not included in the suit and those properties may be included and supplementary preliminary decree was passed in respect of those properties by order dated 13.09.2006. 26. Against the preliminary decree passed in O.S. No. 2579 of 1996, A.S. No. 874 of 2001 was filed and against the supplementary preliminary decree passed in I.A. No. 11233 of 2004 in O.S. No. 2579 of 1996, Tr. A.S. No. 919 of 2009 was filed. 27. The learned counsel for the appellants in both the appeals submitted that the trail court without properly appreciating the pleadings erred in holding that the plaintiffs are entitled to declaration and other relief prayed for. He submitted that it is specifically stated in the plaint that the properties jointly purchased in the name of Shaik and Syed were brought in to partnership firm and therefore, the properties became the partnership properties and therefore, when the properties became the partnership properties there is no question of declaration as prayed for. He also submitted that in paragraph Nos. 5 and 6 of the plaint, it has been specifically stated that ‘A’ schedule properties were jointly acquired by Shaik and Syed and they became the assets of Raja Cycle Company and the factory constructed in the land in Survey No.R.S.1/1 Periappa Pannacheri Village also became the partnership property and the construction of factory and purchase of plant and machinery and accessories were made out of the income from the partnership assets of the lands. 28. 28. He further submitted that in paragraph No.7, it has been stated that the eldest son of both the partners were also inducted as partners in the two partnership firms and submitted that having regard to specific admission in the plaint, the properties became the properties of the partnership firm and the firm consists of four partners and therefore, the suit for declaration that the plaintiffs were entitled to 2/14 share of each ‘A’ and ‘B’ schedule properties was not maintainable and they will have to file a suit for accounts as per the provisions of Indian Partnership Act and they cannot treat the properties as the joint properties of Shaik and Syed. He also submitted that admittedly, Shaik died in the year 1973 and the suit was originally filed in the Original Side of this Court in C.S. No. 415 of 1983 on 30.03.1983. Even according to the plaintiffs, the partnership firm Raja Cycle Company was taken care of by Shaik and the Rapid Industries was taken care of by other partner Syed and Shaik executed release deed in respect of his share in the partnership firm and therefore, the suit was also barred by limitation. He therefore submitted that the trial court, without properly appreciating the pleadings, framed the issues which were not arising out of the pleadings and ought to have framed proper issues whether the suit for declaration treating the properties as private properties is maintainable or not and erred in holding that the plaintiffs are entitled to the reliefs prayed for. 29. He also submitted that once the preliminary decree passed in O.S. No. 2579 of 1996 is set aside holding that the suit for declaration treating the properties as joint properties of Shaik and Syed was not maintainable, the Supplementary Preliminary decree passed in I.A. No. 11233 of 20003 in O.S. No. 2579 of 1996 is also liable to be set aside. 30. On the other hand, the learned counsel for the respondents Mr. M.V. Venkataseshan submitted that no objection was raised by the appellants regarding the framing of issues and the appellants did not mark any documents to prove their contention and they did not even cross examine P.W.1 to substantiate their case and considering the documents filed on behalf of the plaintiffs and the evidence of P.W.1, the trial court has rightly passed the decree. He also submitted that admittedly the properties were purchased in the joint names of Shaik and Syed and those properties were described in ‘A’ schedule to the suit and in the absence of any evidence to the effect that those properties were treated as partnership properties, those properties continued to be the joint properties of Shaik and Syed and therefore, the plaintiffs and the defendants 11 to 14 who are the legal heirs of Shaik are entitled to claim their share in those properties and considering the same the trial court has rightly decreed the suit. He also submitted that some of the properties were not included in the plaint which were also liable to be partitioned and therefore, Supplementary Preliminary Decree was passed after amending the plaint and that Supplementary Preliminary Decree cannot also be challenged as the appellants have not disputed the character of the properties. 31. The learned counsel for the respondents relied upon the judgment in M.S. Boda Narayana Murthy and Sons v. Valluri Venkata Suguna and Others, AIR 1978 Andhra Pradesh 257 and in Lachhman Das and Another v. Mt. Gulab Devi and Others, AIR 1936 Allahabad 270 in support of his contention that in the absence of any agreement between the persons who purchased the property in their joint names to treat the properties as partnership properties, the properties continued to be the individual properties of those persons in whose name the properties were purchased and therefore, the trial court has rightly decreed the suit. 32. The learned counsel for the respondents also submitted that admittedly P.W.1’s evidence was not challenged and no evidence was let in by the appellants to substantiate their case and therefore having regard to the nature of properties as evidenced by Ex.A2 and A8 the trial court has rightly held that the properties continued to be the joint properties of two persons and the plaintiffs as legal heirs are entitled to the declaration of their right to have 2/14 share in each to the plaintiffs in one half of ‘A’ and ‘B schedule properties. 33. He also relied upon the judgment reported in Commissioner of Income-Tax, Madhya Pradesh, Nagpur and Bhandara v. Dewas Cine Corporation, AIR 1968 SC 676 that upon dissolution of partnership firm the rights of the partners are adjusted in the assets of the partnership firm and that does not amount to transfer of assets. 33. He also relied upon the judgment reported in Commissioner of Income-Tax, Madhya Pradesh, Nagpur and Bhandara v. Dewas Cine Corporation, AIR 1968 SC 676 that upon dissolution of partnership firm the rights of the partners are adjusted in the assets of the partnership firm and that does not amount to transfer of assets. He also relied upon the judgment in Jagatram Ahuja v. Commissioner of Gift-tax, Hyderabad, AIR 2000 SC 3195 and Addanki Narayanappa and Another v. Bhaskara Krishnappa (dead) AIR 1966 SC 1300 in support of his contention that there was no transfer of assets upon dissolution of the partnership firm. He also submitted that the suit was not barred by limitation and even according to the appellants, the properties were purchased in the joint names of two persons and therefore, the parties were enjoying the properties as co-owners and in the absence of any plea of ouster by one co-owner against other co-owner, the possession of the properties by one co-owner is deemed to be that of the other co-owner. Considering all these aspects, the court rightly held that the suit is not parred by limitation. 34. I have carefully considered the submissions made on both sides and perused the materials placed on record. 35. On the basis of the submissions of the learned counsel appearing for both sides, the following points for consideration arise in these appeals: 1) Whether the suit as framed is maintainable? 2) Whether the plaintiffs having pleaded that the properties were the properties of the partnership firm can file a suit for declaration that they are entitled to 2/14 share each in one half of ‘A’ and ‘B’ schedule properties, without seeking relief under provision of Partnership Act? 36. It is the contention of the respondents/plaintiffs that when issues were framed by the trial court there was no objection and evidence was let in by P.W.1 to the effect that the properties were the joint properties of Shaik and Syed and there was no cross examination and in the absence of any contra evidence adduced by the appellants, it is not open to the appellants to contend now that the suit as framed was not maintainable. 37. In this connection, it is pertinent to refer to the judgment of the Hon’ble Supreme Court inBalraj Taneja and Another v. Sunil Madan and Another, AIR 1999 SC 3381 : (1999) 8 SCC 396 . 37. In this connection, it is pertinent to refer to the judgment of the Hon’ble Supreme Court inBalraj Taneja and Another v. Sunil Madan and Another, AIR 1999 SC 3381 : (1999) 8 SCC 396 . In that case, the Hon’ble Supreme Court held that in a suit for specific performance the plaintiff has to prove his readiness and willingness to perform the contract and the suit cannot be decreed on the ground that the written statement was not filed and while passing the decree the court has to satisfy itself about the readiness and willingness and when the plaint itself indicates there are disputed questions involved in a case and two different versions are set out in the plaint, it would not be safe for the court to pass judgment without requiring the plaintiffs to prove the factual controversy. 38. In this case as stated supra and as rightly submitted by the learned counsel for the appellants in paragraph Nos. 5 of the plaint it is specifically admitted that the two persons namely Shaik and Syed converted the joint business into a partnership in and about 1953 with equal rights for them in the partnership firm. The properties acquired jointly by them are mentioned in ‘A’ schedule and by the admission in paragraph No.5 those properties were made as partnership properties. Similarly, in paragraph No.6 it is further stated that they built their factory in a portion of the land purchased by them in R.S.No.1/1 for manufacture and sale of cycle and cycle parts and other allied articles and made it a partnership concern in the name and style of Rapid industries in the same terms and conditions as Raja Cycle Company and the plant and machineries accessories and the construction of factory were made out of partnership assets of the lands. In paragraph No.7 it is also stated that the eldest son of two partners were inducted into the partnership firm and the new partnership deed was executed. Therefore, it is admitted by the plaintiffs in the plaint that the properties became the partnership firm and that was also admitted by the defendants in the written statement and they only disputed the other allegations regarding the exclusive management of Raja Cycle Company by Shaik and Rapid Industries by Syed. Therefore, it is admitted by the plaintiffs in the plaint that the properties became the partnership firm and that was also admitted by the defendants in the written statement and they only disputed the other allegations regarding the exclusive management of Raja Cycle Company by Shaik and Rapid Industries by Syed. Therefore, having regard to the specific case of the plaintiffs that the properties were the properties of the firm it is no longer open to the plaintiffs to contend now that the properties were joint properties of Shaik and Syed and therefore, they are entitled to claim partition of the properties. P.W.1 also admitted in evidence that immovable properties mentioned in ‘A’ schedule were purchased from and out of profit from Raja Cycle Company and that business was later converted into partnership firm and each of them were having equal share and factory was constructed in those properties and Rapid industries was a partnership firm. Further having pleaded that ‘A’ schedule properties and ‘B’ schedule properties were treated as partnership properties, it is not open to P.W.1 to give contra evidence and unfortunately these aspects were not properly appreciated by the court below. No doubt issues were not framed to that effect. However, the specific pleadings were made by the plaintiffs as well as the defendants admitting that the properties were the properties of the partnership properties and therefore, even in the absence of any issue being framed, the issue regarding the maintainability of the suit can be considered, having regard to the pleadings and the appellants are entitled to canvass the same in the first appeal as the first appeal is only the continuation of the suit. 39. The Judgment relied upon by the learned counsel for the respondent that there must be evidence to prove that the properties purchased jointly were made as properties of the firm and in the absence of such evidence, the properties continue to be the individual properties of the persons in whose name the properties are purchased, the said argument is liable to be rejected having regard to the pleadings in paragraph Nos. 5,6 and 7 of the plaint as referred to above. 5,6 and 7 of the plaint as referred to above. Further as held by the Hon’ble Supreme Court in the judgment inBalraj Taneja and Another v. Sunil Madan and Another (supra)when facts are disputed a duty is cast upon the court to give a finding in respect of those aspects even though the written statement is not filed by the defendants. In this case written statements were filed by defendants admitting the case of the plaintiffs that the properties were the properties of partnership firm and therefore, the court ought to have held that the suit for partition in respect of partnership properties is not maintainable. 40. The other decisions cited by the learned counsel for the respondent reported in Jagatram Ahuja v. Commissioner of Gift-tax, Hyderabad (supra) and Mohammad Laiquiddin and Another v. Kamala Devi Misra (Dead) by Lrs and Others, (2010) 2 SCC 407 : (2010) 2 MLJ 820 are not relevant for the purpose of deciding the points for consideration in these appeals. Further in the judgments reported in M.S. Boda Narayana Murthy and Sons v. Valluri Venkata Suguna and Others (supra) and in Lachhman Das and Another v. Mt. Gulab Devi and Others (supra) it is only held that there is no presumption that the properties jointly purchased by the partners would become the properties of the partnership firm. As stated supra, it is specifically admitted by the plaintiffs that the immovable properties jointly purchased were made the properties of the firm. Further, in the judgment in Addanki Narayappa and Another v. Bhaskara Krishnappa (supra), it is held that interest of a partners in a partnership firm is in the nature of movable property and therefore, when a partner relinquishes his share in respect of his interest in the partnership property it does not require registration as there is no transfer of immovable property. That judgment is also not relevant to decide the point for consideration in these appeals. 41. I therefore, hold that the suit for declaration filed for declaration that the plaintiffs are entitled to 2/14 share in one half of ‘A’ and ’B’ schedule properties and for declaration that they are entitled to Rs. That judgment is also not relevant to decide the point for consideration in these appeals. 41. I therefore, hold that the suit for declaration filed for declaration that the plaintiffs are entitled to 2/14 share in one half of ‘A’ and ’B’ schedule properties and for declaration that they are entitled to Rs. 2 lakhs is not maintainable having regard to the specific plea that the properties became the properties of the partnership firm and when partnership firm got dissolved by the death of one of the partners they will have to take recourse as per the provision of the Indian Partnership Act. They cannot treat those properties as the joint properties of the persons in whose name the properties were purchased. I therefore answer the points for consideration 1 and 2 in favour of the appellants and hold that the suit as framed is not maintainable and the properties became the properties of the partnership properties as clearly admitted by the plaintiffs in the plaint. 42. In the result, the judgment and decree of the trial court in O.S.No.2579 of 1996 is set aside and A.S. No. 874 of 2001 is allowed. Tr.A.S.No.919 of 2009 is filed against the Supplementary Preliminary decree passed in I.A. No. 11233 of 2004 in O.S. No. 2579 of 1996. As the Preliminary passed in O.S. No. 2579 of 1996 is set aside holding that the suit as framed is not maintainable as the properties became the properties of the partnership firm, the supplementary preliminary decree is also liable to be set aside and the same is hereby set aside. Tr.A.S.No. 919 of 2009 is allowed and the appeals are allowed. 43. The Memos dated 11th November 2013 filed by the appellants are recorded. 44. C.M.P. No. 205 of 2013 is filed to receive some documents as additional documents on the side of the appellants. It is the contention of the appellants that O.S. No. 6981 of 1975 was filed by one Jeyaraj who became the partner of the Rapid Industries and the said firm is dissolved by the decree passed in that suit and therefore, final decree in O.S. No. 6981 of 1975 and the various correspondence between the Government officials and the appellants in respect of the properties of Rapid Industries are relevant for the purpose of disposal of the appeal. As the appeals are allowed on the ground that the suit framed was not maintainable and the properties were the properties of the partnership firm. Therefore, the additional documents now sought to be produced would not advance the case of the plaintiffs and hence, the application in C.M.P. No. 205 of 2013 is dismissed. 45. C.M.P. No. 254 of 2011 was filed by the respondents to receive certain documents as additional evidence and having regard to the finding given in the appeal those documents will not help the court to decide the controversy in issue therefore C.M.P.No. 254 of 2011 is also dismissed. 46. C.M.P. No. 1934 of 2009 was filed by the appellants to receive the release deed dated 06.01.1972 executed by Shaik and his son in favour of the Syed Fakruddin and the agreement for release deed dated 30.12.1972 entered into between Shaik and Syed. Admittedly, the partnership deed dated 30.12.1972 was marked as Ex.P.4 in I.A. 11233 of 2004 which is the subject matter of Tr.A.S. No. 919 of 2009 and deed of release executed by Shaik and his son the 13th defendant releasing the rights in the Rapid Industries partnership firm in favour of Syed Nizamuddin and his son the first defendant and the said documents was also referred to in the plaint and the written statement and therefore, if these documents were received in evidence no prejudice would be caused to the respondents. The only objection raised by the respondents regarding the receipt of release deed dated 06.01.1972 was the document is unregistered and having regard to the judgment reported in Addanki Narayappa and Another v. Bhaskara Krishnappa (supra) and Jagatram Ahuja v. Commissioner of Gift-tax, Hyderabad (supra), there is no question of transfer of immovable properties when one partner release to another partner his right in the partnership assets and therefore, the document does not require registration and hence, the document is admissible in evidence. The document date 06.01.1972 would also prove that the properties were dealt with as partnership properties and hence, C.M.P. No. 1934 of 2009 is allowed and the documents are marked as Ex.B.1 and B.2. There is no order as to costs. Appeal allowed.