ORDER 1. We have heard the learned counsels for the parties and perused the relevant material. 2. The plaintiff's suit for declaration and partition has been decreed by the learned Trial Judge of the High Court and affirmed in appeal by the Division Bench. Aggrieved, the defendants are in appeal before us. 3. The short case of the original plaintiff- Ghendmal is that he alongwith his brothers Motilal (1 st Defendant) and Dadamchand (since deceased) was doing a business in partnership as Pearl Merchants under the name and style of M/s. Poonamchand Ghasilal. 4. According to the plaintiff the suit property at Chowpaty Sea Face admeasuring 774 square yards was purchased in the names of Dadamchand Ghasilal (Deceased brother of the original Plaintiff) and Motilal Ghasilal (1 st Defendant) out of partnership funds though it was intended to be on behalf of the three brothers/partners. 5. According to the plaintiff construction was raised on the suit land in which the three brothers had one flat each. The suit property was mortgaged on two different occasions in the years 1940 and 1951 and the mortgaged deeds were executed by all the three partners/brothers. The mortgages were redeemed subsequently and the release deeds were in favour of the three brothers also. It is in the aforesaid circumstances that the suit was filed claiming the reliefs earlier noticed. 6. The original defendant No.1 (Motilal) did not file a written statement. However, the legal representatives of defendant No.1 and other defendants filed written statement. According to the defendants the suit property was purchased by Motilal (1 st Defendant) and Dadamchand (since deceased) and they were the absolute owners thereof. Alternatively, according to the defendants if the suit property is held to be a partnership property the suit for partition would not be maintainable without a suit being filed for rendition of accounts. Hence the defendants prayed for dismissal of the suit. 7. The learned Trial Judge framed as many as 10 issues for trial which are set out hereunder:- 1) Do Plaintiffs prove that the suit property was purchased out of income pf partnership firm M/s. Poonamchand Ghasilal, of which Ghendamal, Dadamchand and Motilal were partners ? 2) If so, whether each of them has got 1/3rd share in the property? 3) Do Defendants prove that the suit property was purchased out of their personal capital account in the partnership? 2) If so, whether each of them has got 1/3rd share in the property? 3) Do Defendants prove that the suit property was purchased out of their personal capital account in the partnership? 4) Do Plaintiffs prove that conveyance was made in the name of Dadamchand and Motilal only for the sake of convenience? 5) Do Defendants prove that declaration dated 1.2.1951 and two mortgages, one dated 17.2.1940 in favour of Dayabhai Chaganlal and another one dated 3.2.1951 in favour of the Trustees of the Bombay Hospital Shri Rameshwar Birla and others, were made in the names of three brothers at the instance of the then Trustees of the Bombay Hospital ? 6) Whether Suit is maintainable under the provisions of Section 281A of the Income Tax and Benami Prohibition Act, 1988 as contended in para 2 of the Written Statement ? 7) Are Plaintiffs entitled to partition and separate possession ? 8) If so, what is their share ? 9) Do Plaintiffs prove that they are in possession and enjoyment and use of the suit property as tenants in common along with Defendants as alleged in para 11 of the Plaint? 10) What decree or order ? 8. It will be necessary to notice at this stage that no specific issue with regard to the maintainability of the suit on the ground contended by the defendants was framed for trial. 9. The learned Trial Judge on an elaborate consideration of materials on record took into account the recitals made in the mortgaged deeds and the release deeds to come to the conclusion that the said documents clearly proved and established that the suit property belonged to the three brothers as absolute owners. Though purchased out of partnership funds the suit property did not form a part of the partnership property. Accordingly the suit was decreed. In appeal, the Division Bench reiterated and reaffirmed the findings and also ventured into the question of maintainability by holding that the settled law with regard to requirement of a suit for rendition of accounts to make a suit for partition maintainable would not apply to the present case inasmuch as the documents i.e. mortgage deeds and release deeds clearly indicated that all the three brothers were absolute owners of the property in equal proportion. 10. 10. The Division Bench of the High Court also went on to elaborately debate on the question of the rights of the mortgagor after the demise of one of them (Dadamchand) and in this regard elaborately dealt with the concept of English Mortgage and several pronouncements in this regard including that of the Privy Council in the case of Ram Kinkar Banerjee and Others vs. Satya Charan Srimani and Others , (1939) AIR PC 14. 11. Having considered the matter we are of the view that the aforesaid part of the discussion of the High Court was wholly unnecessary as a conclusion with regard to the inter se rights of the parties could have been arrived at on the basis of the finding recorded by the High Court that the exhibited documents squarely indicated that the suit property belonged to the three brothers in equal proportion. 12. We have perused the said documents and we find therein a clear and unequivocal assertion of absolute ownership in the suit property in equal proportion though purchased out of partnership funds. If that is so, the claim of exclusive ownership of the defendants by virtue of the fact that initial purchase in the year 1935 was in the name of Motilal and Dadamchand (since deceased) would not be substantiated. 13. On the same reasoning the property will have to be held as belonging to all the three partners as absolute owners in equal proportion. The decree declaring the said right and the decree for partition, therefore, will have to be sustained which we accordingly do. Consequently, and for the reasons aforesaid, the appeal is dismissed.