Calcutta High Court
Hem Chandra Gupta vs Om Prokash Gupta on 11 October, 1985
Equivalent citations: AIR1987CAL69, AIR 1987 CALCUTTA 69
JUDGMENT R.N. Pyne, J.
1. This appeal is directed against the judgment and decree of Mrs. Padma Khastgir, J. dt. 31st August 1983. Shorn of unnecessary details the relevant facts of the instant case are as follows :
The respondent Om Prakash Gupta as plaintiff filed Suit No. 728 of 1980 (Om Prakash Gupta v. Hem Chandra Gupta) against the appellant Hem Chandra Gupta for a declaration that the appellant and the respondent were entitled equal one half share in the premises No. 37A, Tarachand Dutt Street, Calcutta (hereinafter referred to as 'the said premises'); partition of the said premises by metes and bounds in accordance with the draft deed or plan as approved by the parties and/ or in such manner as to this Court might deem fit and proper and for other consequential reliefs.
2. The respondent's case as made out in his plaint was that at all material times the parties to the suit were co-partners having equal shares in the firm of 'Hem Chandra Om Prokash' carrying on business at No. 37A Tarachand Dutt Street, Calcutta. The said premises No. 37A, Tara Chand Dutta Street. Calcutta was purchased by the parties lor a sum of Rs. 43,000/ - in their said firm name at a Court sale held by the Registrar, Original Side of this High Court on 6th July 1957. The Sale Certificate in respect of the said sale was issued on 24th Sept. 1957 in the name of the said firm of 'Hem Chandra Om Prokash'.
3. In the year 1978 being desirous of having the said property partitioned between the parties, the appellant caused a partition deed drawn and/or prepared and submitted the same to the respondent for his approval. The respondent in his turn broadly approved the said draft deed for all practical purposes but added a few suggestions. Inasmuch as the appellant refused to amicably partition the property the present suit had been filed by the respondent for partition and necessary reliefs as stated hereinbefore.
4. The appellant in his written statement denied that the parties to the suit were partners having equal shares in the firm 'Hem Chandra Om Prokash' (hereinafter referred to as 'the said firm') carrying on business at No. 37A, Tara Chand Dutta Street, Calcutta. The appellant married one Mohra Debi since deceased, the second sister of the respondent and on her death in the year 1946 the appellant again married one Ram Pali Devi, the youngest sister of the respondent in 1948. According to the appellant the members of the respondent's and the appellant's family had been residing in the said premises since 1949 on rental basis. The appellant having come to know of the sale of the said premises by public auction by this Court, bid for such sale and the property was sold to the highest bidder at Rs. 43,000/- which was offered by the appellant. Twenty five per cent of the sale price had to be deposited with fall of the hammer. Inasmuch as the appellant did not have the requisite amount he borrowed from the respondent by way of accommodation loan the balance amount of Rs. 750/- for the purpose of paying the 25% of the purchase price which was Rs. 10,750/- and after taking a further loan of Rs. 500/- from N. Dey. Advocate-on-Record of the appellant who was engaged by him to act on his behalf at such sale. At the request of the respondent and at his entreaty the appellant put his name as a joint purchaser with the appellant with the understanding that although the said premises would stand in the joint names of the parties the respondent would not have any claim of ownership or title over the same. It was further contended by the appellant that although the sale confirmation certificate in respect of the sale by public auction of the said premises recited that the same was given in favour of the said firm of 'Hem Chandra Om Prokash' but in fact on that particular day the said firm did not exist. It was also stated by the appellant that he repaid whatever amount he borrowed from the respondent for the purpose of purchasing the said premises. According to the appellant, after the purchase the respondent prevailed upon the appellant for entering into a partnership agreement between them for enjoying the rents, issues and profits of the said premises and upon such entreaties and persuasion of the respondent the appellant agreed to enter into a partnership with the respondent for sharing the rents, issues and profits of the said premises. It was the appellant's case that it was only on 3rd of Sept. 1957 the appellant and the respondent entered into a partnership at will for carrying on partnership business. In his written statement the appellant admitted that the sale certificate granted by this Court in the name of the partnership business of 'M/s. Hem Chandra Om Prakash' but on the day the sale was held the said firm of 'Hem Chandra Om Prokash' was not in existence. The appellant admitted that prior thereto, various other partnership businesses under the name and style of M/s. National Traders Agency, M/s. Impex Sales Corpn., M/s. Express Trading Corpn. etc. were commenced by the parties.
5. It was further alleged by the appellant in his written statement filed in the suit that in the year 1965 10 cottahs of land in premises No. 20, Belur Road, Liluah, Howrah was taken by the parties on lease for 20 years in the name of the firm of 'Hem Chandra Om Prokash', at a monthly rent of Rs. 50/- only. The appellant admitted in his written statement that the said partnership firm could not be carried on smoothly and faithfully due to the obstructive attitude taken by the respondent. As a result in 1978 the appellant made a proposal to the respondent that the respective right, title and interest of the parties in respect of the said four co-partnership business and two immoveable properties i.e., one at 37A, Tara Chand Dutta Street and another at Liluah belonging to the parties and/or their relations be divided and/or distributed and/ or partitioned. But as the respondent unreasonably and wrongfully refused to distribute either the assets of the aforesaid four co-partnership businesses the appellant withdrew his offer for partitioning the premises No. 37A, Tara Chand Dim Street, over which, according to the appellant, the respondent had no title whatsoever. The appellant's further case was that the partition suit was bad in law inasmuch as it did not comprise and/ or embrace all the joint properties belonging to the parties. Under the circumstances the appellant prayed for dismi-ssal of the suit.
6. Following issues were raised at the trial.
"1. Is the plaintiff entitled to partition in the suit as alleged in the plaint?
2. Is the suit maintainable inasmuch as the leasehold right of the parties in respect of 10 cottahas of land in premises No. 23, Belur Road, Liluah, Howrah has not been included in the suit for partition?
3. To what relief, if any, the plaintiff is entitled?"
7. In her judgment dt. 31st Aug. 1982 learned trial Judge Mrs. Padma Khastgir, answered issues Nos. 1 and 2 in the affirmative. Regarding issue No. 3 learned trial Judge was of the view that the respondent (the plaintiff in the suit) was entitled a decree as prayed for. Her Lordship passed a decree, inter alia, in terms of prayer (a) of the plaint and appointed a Commissioner of Partition to partition the said premises by metes and bound in terms of prayer (b) of the plaint.
8. According to the learned trial Judge in view of Section 66 of the Civil P.C. the appellant was debarred from contending that the purchase was made on his behalf and not by the respondent. Further, according to the learned trial Judge from the conduct of the defendant (appellant herein) it appeared that not only the defendant accepted the fact that the property was purchased in the joint names but the defendant also proposed a partition of the same between the plaintiff and the defendant in equal share as would be evident from the draft deed of partition prepared as per instructions of the defendant by Mr. N. De Solicitor. Learned trial Judge also did not accept the contention of the defendant that the suit was not maintainable because partition of Belur property was not included in the suit.
9. As already stated the defendant has preferred the instant appeal against the said judgment and decree dt. 31st Aug. 1982.
10. Counsel for the appellant has submitted that it is stated that the said premises belong to the partnership firm of 'Hem Chandra Om Prakash'. The firm has not yet been dissolved. Therefore, without claiming for a dissolution of the firm, accounts and distribution of surplus assets of the firm this suit for partition simpliciter is not maintainable. According to counsel without alleging dissolution of the said firm and claiming accounts of the dissolved firm and distribution of surplus thereof as also without alleging an agreement between the partners to divide the firm's property irrespective of dissolution or accounts the suit is wholly incompetent and is liable to be dismissed. It has been submitted that the deed of partnership has not been annexed to the plaint. In paras 14 and 15 of his written statement the appellant has expressly stated that the co-partnership business between the parties entered into on 3rd Sept. 1957 is still subsisting and the plaintiff-(respondent) has not claimed for dissolution of the said co-partnership in the suit and in the absence of any claim for dissolution of the said co-partnership the suit is not legally sustainable. Reference was made to the case of Addanki Naryanappa v. Bhaskara Krishnappa, has relied upon an alleged admission of the appellant regarding dissolution of the said firm in the draft partition deed containing the signature of the appellant. According to counsel the plaint does not contain any allegation about such admission. This case has not been pleaded in the plaint. Hence this case now sought to be made by the respondent is contrary to pleadings and cannot be considered. Variance between pleadings and proof should not be permitted. It has been submitted that admission, if any, by the appellant as alleged by the respondent cannot cure absence of proof or defect in the pleading.
12. Further submission of the counsel has been that it would be a travesty of justice if the alleged admission is allowed to be relied on in the facts and circumstances of this case. Learned trial Judge did not allow the appellant to raise the issue regarding dissolution being issue No. 4 of the issues suggested on behalf of the appellant during trial which is at page 206 of the paper book. The said issue was sought to be raised on the basis of averments made in paras 14 and 15 of the appellant's written statement filed in the suit. Learned trial Judge also disallowed Question No. 9 (page 38 of the paper book) in the examination-in-chief of the appellant and he was denied the opportunity to explain the alleged admission relied upon by the respondent. According to counsel, any admission is not conclusive unless estoppel operates. Reference was made to Section 31 of the Evidence Act, 1872. It has been submitted that the alleged admission, if any, may always be explained and shown to be wrong. Reference was made to the case of Nagubai Ammal v. B. Shama Rao, .
13. Counsel for the appellant has also submitted that deed of partition being Ext. 'D' was merely a proposal for settling the matter and not an admission and it was not accepted by the respondent. After acceptance of the proposal there would be an agreement and then recital in the draft would be taken as an admission. An unaccepted proposal cannot be relied upon as admission for any purpose regarding the dissolution of the firm.
14. Counsel for the appellant has also submitted that in para 2(m) of his written statement the appellant stated that in or about 1965 ten cottahs of land in premises No. 20, Belur Road, Liluah, Howrah (hereinafter referred to as 'Belur property') was taken by the appellant and the respondent on lease for a period of 20 years in the name of 'Hem Chandra Om Prokash' from Gopal Das Daga and otherrs at a monthly rent of Rs. 50/-. As Belur property has not been included in the suit it is a suit for partial partition. It is submitted that a lessee can always assign his interest in the leasehold property, in this connection reference was made to Section 108(j) of the T.P. Act and the commentary in Mulla's Transfer of Property Act (5th Edn.) pp. 696 to 706.
15. Counsel for the respondent has submitted that the Partition Suit No. 728 of 1980 which the respondent Om Prokash Gupta filed against the appellant Hem Chandra Gupta, on the Original Side of the Honourable High Court was a simple suit for the partition of one single property being premises No. 37A, Tarachand Dutt, Street, Calcutta, of which there were and are only two co-owners, viz. the appellant and the respondent and their respective shares in the suit property are one half each. The said property was purchased for Rs. 43,000/- by the partnership firm of 'Hemchandra Om Prokash' at a Court sale held on or about 6th July 1957 by the Registrar O.S. and the two partners having contributed the purchase money in equal proportion and the sale certificate was issued on the application of the parties in the name of the said partnership firm on 24th Sept. 1957. The two parties with their respective families occupied the said property as their dwelling house having equal share therein. In February 1978 the appellant wanted to have the said property divided amicably into 2 equal lots by a deed of partition which was prepared by the comon solicitor of the parties, Sri N. Dey, as per their instructions. The draft deed of partition was duly approved and signed by the appellant together with a plan annexed thereto and the same was submitted to the respondent for his approval. Ext. 'D' is the draft deed of partition duly singed by the appellant
16. It has been submitted that at the trial of the suit the Solicitor, Sri N. Dey, gave evidence on behalf of the respondent and he proved Exts. 'C' and 'D' which are the draft deeds of partition, one unsigned and the other duly signed; Ext. 'D' being signed by the appellant himself The relevant questions and answers of Sri N. Dey in his evidence before the trial Court are as follows :-
"19. On whose instruction was this plan prepared ?/ By Hemchandra Gupta.
22. Does the document (i.e. the draft deed) contain the signature of the defendant?/ Yes.
42. On the last occasion you told about the draft partition deed prepared by you at the instance of the defendant? Yes.
50. You have said that you received instructions for acting on behalf of both the parties?/ Yes."
17. Two draft partition deeds being Exts. 'C' and 'D' at pages 187 and 195 of the paper book contain a recital to the following effect, viz-
"And Whereas the parties hereto since dissolved the said business under the name and style of Hemchandra Om Prokash and nothing is due and payable to each other and to and from any outsider, except the said property being premises No. 37A, Tarachand Dutt Street, Calcutta and which hitherto remains the joint property of the partners the parties hereto" (Sec p. 196 of the paper book)
18. According to Counsel from the above it is clear that although the said partnership firm of 'Hemchandra Om Prokash' purchased the said property at the sale held by the Registrar, O.S. nevertheless upon the dissolution of the said firm the same belonged to the two erstwhile partners in equal proportion and the respondent's case is that such property is liable to be partitioned by metes and bounds in equal proportion and the respondent's case is that such property is liable to be partitioned by metes and bounds in equal proportion and the shares therein should be allotted to the parties respectively. Counsel has submitted that because it has been pleaded that the said property belonged to the said partnership firm of which the appellant and the respondent were copartners and merely because it has not been further pleaded that the said partnership firm was dissolved and after taking accounts nothing remains due and payable by one partner to the other, it cannot be seriously argued that the suit for partition must fail 6n that ground. According to counsel, all the facts were before the trial court and are before the appeal court. There is the admission of the appellant in Exts. 'C' and 'D'. The appellant himself has also deposed and given evidence to the effect, inter alia, that the draft partition deed was prepared under his instruction and that he had approved and signed the document. Appellant's answers to questions 14 and 19 at p. 39 of the paper book were referred to. According to counsel no objection being raised at any stage in the correspondence with regard to the admitted dissolution of the said firm of 'Hemchandra Om Prokash', it is now too late in the day for the appellant to contend that the partition suit is not maintainable on the ground that the said firm is still in existence.
19. In support of the above submissions counsel for the respondent referred to the case of Surendra Nath v. Standard Vacuum Oil Co. where the Supreme Court has held that if all the facts are before it then merely because there is some lacuna in the pleading this would not be sufficient to dismiss the plaintiff's suit. In the above case the plaint was drafted in a confused manner and the Court did not have proper pleadings before it. But looking at the justice of the matter the court decreed the plaintiffs suit, overlooking the inartistic drafting slurring over the true nature of the claim and with the sole object of doing justice to the parties.
20. According to the counsel so far as pleadings are concerned Supreme Court has observed on more occasions than one that pleadings have to be interpreted not with formalistic rigour but with latitude or awareness of the low legal literacy of the people. This was the view taken in the case of Smt. Manjushri Raha v. B.L. Gupta, which has been followed, adopted and applied by a Division Bench of the Calcutta High Court in the case reported in (1982) 1 Cal HCN I (Union of India v. Narayan Chandra Chakraborty). It has also been submitted that it is equally well settled that pleadings in Court are loosely drafted and the Court should not scrutinise pleadings with such meticulous care so as to result in genuine claims being defeated on trivial grounds. This view was also taken in the case of Madan Gopal Kanodia v. Mamraj Maniram, .
21. Further submission of the counsel has been that there is another aspect of the matter and this has been highlighted by the Supreme Court in the case of Bhim Singh v. Kan Singh . In that case the Supreme Court laid down the proposition that even if a point is not specifically taken in the pleadings of the parties but if it appears that during the course of the trial and while leading evidence the parties knew what the question at issue really was then merely because there is no specific issue or a pleading to that effect, should not be permitted to stand in the way of the Court deciding in favour of the party who has not raised the issue specifically or pleaded the point in so many words. This rule has been stated by the Supreme Court as will appear from para 10 of the judgment at p. 741 of the report. In this case the Supreme Court quoted with approval its earlier decision in the case of Bhagwati Prasad v. Chandramul .
22. It is the submission of the counsel that applying the aforesaid rule to the facts and circumstances of the instant case it is clear that both the parties were aware and knew that the partnership firm of *Hem Chandra Om Prokash' had already stood dissolved and that nothing was due or owing from one partner to the other and accordingly, in view of the clear admission of the appellant in the recital clauses of the two draft partition deeds being Exts. 'C' and 'D', it is not open to the appellant to say that the point has not been pleaded or is not at issue. In this connection reference was made to the case of Bhim Singh v. Kan Singh .
23. It has been further submitted by the counsel for the respondent that the fact of the appellant's admission contained in Exts. 'C' and 'D' with regard to dissolution of the said firm of 'Hem Chandra Om Prokash' cannot be ignored. The appellant has signed the draft deed of partition, he has approved it and it was prepared by the common solicitor, Sri N. Dey according to the appellant's instructions. The opposite party can rely upon such admission which is the best evidence and although it is not conclusive, nevertheless such admission is decisive of the matter, unless successfully withdrawn or proved to be erroneous. According to counsel, this is the effect of Sections 17 and 58 of the Evidence Act, which respectively define what is an admission and that no fact which is admitted need be proved. This rule of admission is reinforced by the dictum of the Supreme Court laid down in the case of Bhogilal Chunilal Pandya v. State of Bombay, of the report following observations have been made by the Supreme Court.
"It is not disputed that statements made by persons may be used as admissions against them even though they may not have been communicated to any other person. For example, statements in the account books pf a person showing that he was indebted to another person are admissions which can be used against him even though these statements were never communicated to any other person. Illustration (b) of Section 21 of the Evidence Act also shows that the word "statement" used in these sections does not necessarily imply that they must have been communicated to any other person."
24. Therefore, according to counsel, in the above view of the matter appellant's contention that the suit is not maintainable because there was no pleading that the partnership firm of 'Hemchandra Om Prokash' has been dissolved and that no accounts remain to be taken and/or the respondent cannot succeed without asking for dissolution of the firm should not be accepted.
25. Regarding the case of Addanki Nara-yanappa v. Bhaskar Krishnappa cited on behalf of the appellant counsel for the respondent has submitted that the said case has no relevance to the facts and circumstances involved in the instant appeal because that case deals with partnership disputes and the effect of dissolution of partnership. The instant case is not a case of dissolution of partnership nor of partnership disputes and as such the said case is distinguishable and is of no assistance to the appellant.
26. Counsel for the respondent further submitted that on behalf of the appellant reliance was placed on the case of Nagubai v. B. Shama Rao, . The Head Note of the report which reads thus :
"It is no doubt that what a party himself admits to be true may reasonably be presumed to be so. But before this rule can be invoked, it must be shown that there is a clear and unambiguous statement by the opponent, such as will be conclusive unless explained."
27. Counsel for the respondent does not dispute the above observation of the Supreme Court. According to him the above principle helps the respondent rather than the appellant on whose behalf the said decision was cited. Applying the aforesaid ratio of the Supreme Court decision it is obvious that there is a clear and unambiguous statement in Exts. "C" and "D" that the partnership firm of 'Hemchandra Om Prakash' was already dissolved and that nothing remains due and payable by one partner to the other. The said firm had or has no debtor or creditor in the market. These two documents being Exts. "C" and "D" were prepared, under the instruction of the appellant, by his own solicitor, Sri N. Dey, and in the course of his evidence given before the trial Court the appellant admitted the correctness of the statements contained in the said two exhibits. Under these circumstances according to counsel the above observations made by the Supreme Court really help the respondent rather than the appellant.
28. Further submission of the counsel is that no ground has been taken anywhere, either in the written statement or in the Memorandum of Appeal that the said recital contained in the said two documents being Exts. "C" and "D" were mistake or erroneous. In fact learned trial Judge in her judgment at page 7 of the supplementary paper book has recorded, inter alia, that the solicitor Sri N. Dey was instructed to prepare the draft deed of partition by the appellant Hemchandra Gupta who also instructed him that the firm of 'Hem Chandra Omprakash' was already dissolved and it did not carry on any business save and except for the purpose of purchasing the suit property. Further, there was no argument in the trial Court that the said firm was not dissolved or that the suit property could not be partitioned. On the contrary, the appellant's case in the written statement and in the argument at the bar before the trial court was that the said premises did not belong to the said firm because the firm came into existence on 3rd Sept., 1967 and the said premises was purchased on an earlier date viz. 29th Aug., 1957. This case was ultimately jettisoned by counsel for the appellant in the appeal court, obviously on the ground that such an argument has no legs to stand upon.
29. Further submission of respondent's counsel has been that the real ground on which the appellant's case should fail is that admittedly the said premises belongs in equal share to the two parties to the suit, that there is no other property in Calcutta or elsewhere which belongs to the former partnership firm of 'Hemchandra Omprakash' (since dissolved) and that there is no impediment to the partition of such property. According to counsel the ground that because of the lack of pleading regarding dissolution of the said firm, the plaint does not disclose a cause of action or that the suit is not maintainable is hyper-technical and cannot be sustained in the facts and circumstances of the case, where all the relevant and material facts are before the Court and careless drafting of the plaint should not defeat the genuine and just claim of the respondent.
30. Admittedly premises No. 37A, Tara Chand Dutt Street (hereinafter referred to as "the said premises") was purchased by the appellant and the respondent at the Court sale for Rs. 43,000/- and each of them contributing half share of the said purchase price. On the application of the parties made on 22nd Aug., 1957 (Ext. 'B' paper book p. 161) sale certificate dated 29th Aug., 1957 in respect of the said premises was issued in the name of their firm of 'Hem Chandra Om Prokash' although the date of establishment of the said firm was 3rd Sept., 1957 as will appear from the certificate of registration of the said firm dt. 4th Sept., 1957 being Ext. 'A' (at pp. 55-57 of the paper book). The said firm was a partnership at will and it had two partners viz., parties to this appeal. The appellant's contention is that the said firm not yet being dissolved its asset viz. the said premises cannot be partitioned between its two partners i.e. parties to this appeal. It has been contended that before any asset of the partnership is divided or partitioned the firm has to be dissolved, its account has to be taken and only after meeting its debts, if there is any asset of the partnership the same shall be distributed between its partners. The certificate of registration does not show that the said firm has been dissolved.
31. The respondent's case is that the said firm has already been dissolved and nothing is due and payable to either of its partners and any outsider and the only asset now remaining of the said firm is the said premises in which the parties to the appeal are entitled to equal share. Hence inasmuch as the parties in this appeal are the joint owners of the said premises the respondent was and is entitled to have the same partitioned. Therefore, the question that arises for determination is whether the said firm had been dissolved and nothing is due to or payable by any of the two partners and outsiders and the only asset thereof is the said premises which is to be divided between the parties to this appeal.
32. In support of his above contention the respondent has mainly relied on a recital contained in the two draft deeds of partition being Ext. 'C' (paper book p. 187) and Ext. 'D' signed by the appellant (paper book p. 195). The relevant recital contained in the said two deeds has been extracted earlier. The question is whether such recital amounts to an admission by the appellant. According to the appellant, the said two drafts are merely proposals and not being a contract the said recital is not binding on the appellant notwithstanding the fact Ext. 'D' was signed by him.
33. In our view the said recital in the two draft deeds (Exts. 'C' and 'D') is binding on the appellant. According to Section 17 of the Evidence Act (hereinafter referred to as 'the said Act') "an admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact and which is made by the persons, and under the circumstances hereinafter mentioned."
34. Section 58 of the said Act provides that-
"No fact need be proved in any proceeding which the parlies thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings :
Provided that the Court may in its discretion, require the facts admitted to be proved otherwise than by such admissions."
35. In his evidence respondent's witness Nandadulal Dey has stated that the said property was purchased in an auction sale jointly by the appellant and the respondent and at that point of time he was acting on behalf of both of them, (Nandadulal Q. 4, paper book p. 22). The witness prepared the draft partition deed under the instruction of the appellant. The witness prepared the original partition deed (Fxt. 'C'). A plan was annexed to the draft deed but he had no copy with him. Looking at the plan (at p. 24 of the Brief of Documents) the witness said that it was annexed to the draft deed of partition. The plan was prepared under the instruction of the appellant. The plan was taken by the appellant for showing it to the other partner. The witness proved another draft deed (Ext. 'D') and the signature of the appellant appearing therein. (See Nandadulal -- Q.Q. 11 to 26, paper book pp. 23-25). The witness proves the joint petition made by both the parties and affirmed by the appellant on 19th Aug., 1957 (Ext. 'B\ paper book p. 171). He drafted the petition correctly under the instructions of both the parties according to law, (Nandadulal Q.Q. 31-35, paper book p. 27). According to the witness the respondent all along including at the time of trial was ready and willing to the terms of the partition deed, (Nandadulal -- Q.Q. 47 and 48, paper book p. 29).
36. In his cross-examination in answer to Q. 61 (paper book p. 31) Nandadulal said that the appellant told the witness to prepare a draft deed of partition. The appellant told the witness that the said firm was dissolved and that both the parties had no business at all in the name of the firm of 'Hemchandra Om Prakash'. It was only for the purpose of purchasing the said property the partnership was constituted. The witness made the draft accordingly. Looking at the document (P.D. 3) the witness said that the date of establishment of the firm 'Hem Chandra Om Prakash' was 3rd Sept. 1957 and the date of its registration was 4th Sept. 1957, (Nandadulal Q.Q. 67 and 68, paper book pp. 32-33). Nandadulal further said that both the parties told him that the firm of 'Hem Chandra Om Prakash' was dissolved. Regarding dissolution of the partnership the appellant told him first and the respondent came to him and said that whatever was written in the draft deed was correct and they had no business in the name of 'Hem Chandra Om Prakash', (Nandadulal Q.Q. 72 to 74, paper book pp. 33-34).
37. The appellant deposed at the trial. He said that various corrections in the draft of partition (Ext. 'D') were in the handwriting of Nandadulal, (Hem, Q.Q. 5 and 6, paper book p. 37). The appellant admitted his endorsement on the draft (Hem Q. 8, paper book p. 37). The appellant further said that he gave instruction for preparing the draft deed of partition. Deed of partition was not given effect to. He sent the draft to the respondent but he did not approve of it, (Hem Q.Q. 13-16, paper book pp 39-40).
38. In his cross-examination the appellant admitted that he approved and signed the draft deed of partition being F.xt. 'D'. (Hum Q.Q. 17& 19, paper book p. 39). According to the appellant he waited for a long time and thereafter cancelled the draft deed by writing a letter to the respondent who accepted the cancellation (Hem Q.Q. 20 & 21, paper bonk pp. 29 & 40). The appellant further said that he did not reply to the letter dt. 27th June 1980, (Ext. 'E' paper book p. 150). After sending the letter Mr. N. Dey rang up the appellant and asked him to go to Mr. Dey's office. The appellant told Mr. Dey that the partition would take place if all the other issues were settled and the appellant was assured by Mr. Dey that a reply would be given to him, but no reply was received by the appellant. The appellant was however unable to show anything in writing (See Hem Q.Q. 22-24, paper book p. 40). To the questions put by the Court the appellant said that he could not give instruction to his lawyer about the above fact as cross-examination was going on. He further said that he was sitting in Court when cross-examination of Mr. Dey was going on but he was unable to give that-instruction (Hem Q.Q. 26-27, paper book pp. 40-41). When the appellant was asked if he had any objection to the partition of the said premises he said that all issues should be settled, (Hem Q. 32, paper book p. 42). To the question put to the appellant that at the time when the draft deed of partition was approved by him there was no question of other alleged issues being settled and only Tarachand Dutt Street property was the subject matter of the draft deed he answered 'situation always changes', (Hem Q. 33, paper book p. 42).
39. From the above it appears that the two draft deeds of partition being Exts. 'C' and 'D'were prepared by Mr. Dey, according to the instruction of the appellant. Draft deed of partition being Ext. 'D' was approved and signed by the appellant. The said two drafts (Exts. 'C' and 'D') contain a recital that the said firm of 'Hem Chandra Om Prakash' had been dissolved and nothing was due and payable to either of the partners and to and from an outsider except the said property which remained the joint property of the partners and the parties to the said deed, i.e., parties to this appeal. The draft deed (Ext. 'D') might not amount to a contract as it was not signed by both the parties. But as it was approved and signed by the appellant the said recital in Ext. 'D' would amount to an admission of the appellant. The statement in the recital suggests an inference as to the fact in issue or relevant facts, viz., the said partnership stood dissolved and only asset thereof was the said premises. The said fact being admitted by the appellant in the draft deed being Ext. 'D' as also in his evidence was not required to be proved by the respondent. Apart from above not only Mr. Dey proved that the said premises was jointly purchased by the parties but in the petition for issuance of the sale certificate parties admitted that the same was jointly purchased by them. It is undisputed that both parties have equal share in the said premises.
40. On behalf of the appellant reliance was placed on Section 31 of the said Act which provides that admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions of the Act. In the instant case the appellant has not produced any material to show that estoppel would arise from the said admission. The appellant did not dispute the siad draft deeds but on the contrary admitted that he approved and signed the draft deed being Ext. 'D'. In the above circumstances we are of the view that the said premises is a joint property of the parties, each having half share therein. Hence the said property is liable to be partitioned according to the shares of the parties to the appeal.
41. The appellant has relied on the case of Addanki Narayanappa v. Bhaskara Krish-nappa, . In the facts and circumstances of the instant case that case does not help the appellant. This case deals with the partnership disputes and effect of dissolution of partnership. Further, in this case it has been observed that no doubt, since a firm has no legal existence, the partnership property will vest in all the partners and in that sense every partner has an interest in the property of the partnership. Instant case is distinguishable on facts. In the instant case the said premises was purchased by the parties paying equal share of the purchase price but they got the sale certificate issued in the name of the partnership 'Hem Chandra Om 'Prakash'. The partnership was formed only to purchase the property. Appellant admitted that the partnership stood dissolved and no partner had any claim against the other and neither anything is due from or payable to any outsider. Hence both the parties had only interest in the said property. Therefore, the parties to the appeal only having equal interest in the said premises and the same being an immovable property it is liable to be partitioned between the parties to the appeal.
42. The appellant has also relied upon the case of Nagubai Ammal v. B. Shama Rao. . Head note (e) of the report reads thus :--
"It is no doubt true that what a party himself admits to be true may reasonably be presumed to be so. But before this rule can be invoked, it must be shown that there is a clear and unambiguous statement by the opponent as will be conclusive unless explained."
According to the appellant's counsel it would be travesty of justice if the admission in the said draft deeds (Exts. 'C' and 'D') is allowed to be relied in view of the fact that raising of issue regarding dissolution i.e. issue No. 4 of the suggested issue (Paper book p. 206) was disallowed and question No. 9 put to the appellant (paper book p. 38) was disallowed by the learned trial judge and thus the appellant was denied an opportunity to explain the alleged admission.
43. The said suggested issue was for the purpose of establishing whether the suit was maintainable in the absence of the dissolution of the firm of 'M/s. Hem Chandra Om Prakash'. Although this particular issue was not allowed to be raised by the trial Court yet this point was argued before the trial Court as also before us extensively. On the facts of dissolution of the partnership questions were put to the witness who deposed at the trial. As stated hereinbefore the appellant in his evidence before the trial Court admitted that the two draft deeds of partition were prepared under his instruction by Mr. N. Dey, then the common lawyer of the parties and the appellant approved and signed the draft deed being Ext. 'D' (See Hem Q.Q. 17 and 19, Paper book page 39). The question whether in the absence of a dissolution of the said firm the suit for partition is maintainable or not has been argued in detail before us. We have considered the question and discussed the same hereinbefore. In these circumstances it cannot be said that the appellant has suffered any prejudice.
44. In question No. 9 put to the appellant at the trial Counsel for the appellant referring to the relevant recital in the draft deed of partition (which has been set out earlier) asked the appellant whether the partnership firm of 'Hem Chandra Om Prakash' was dissolved. In para 3 of the written statement appellant stated that he agreed to share the said premises with the respondent in equal half share. In paragraph 9 of his written statement the appellant stated, inter alia, that the said premises should be divided.
45. In this connection it should be noted that it must be remembered in this context that there is no ground taken anywhere, either in the written statement or in the Memorandum of Appeal that the said recital contained in the said two documents being Exts. 'C' & 'D' were mistake or erroneous. In fact the learned Trial Judge in her judgment at page 7 of pt. II of the paper book has recorded, inter alia, that the solicitor Sri N. Dey was instructed to prepare the draft deed of partition by the appellant Hemchandra Gupta who also instructed him (Mr. Dey) that the firm of 'Hem Chandra Omprakash' was already dissolved and it did not carry on any business save and except for the purpose of purchasing the suit property. Further, there was no argument in the trial court that the said firm was not dissolved or that the suit property could not be partitioned. On the contrary the case of the defendant in the written statement and in the arguments at the bar in the trial court was that the suit property did not belong to the said firm because the firm came into existence on 3rd Sept., 1967 and the suit property was purchased on an earlier date viz. 29th Aug., 1957. This case was ultimately jettisoned by counsel for the appellant in the appeal court, obviously on the ground that such an argument had no force.
46. Considering the facts and circumstances of the case and the arguments advanced on their behalf we are of the opinion that the appellant's abovementioned contention cannot be accepted because in our view the partnership of 'Hem Chandra Om Prakash' stood dissolved, accounts were taken and it had no creditor or debtor and it had no asset save and except the said premises wherein both the parties have equal share. Hence there is no impediment to the partition of the said premises. The ground that because of lack of pleading regarding dissolution of the said firm, the plaint does not disclose a cause of action or that the suit is not maintainable, is hyper-technical and cannot be sustained in the facts and circumstances of the case, where all the relevant and material facts are before the Court and careless drafting of the plaint should not defeat the just and genuine claim of the respondent.
47. Counsel for the respondent has further submitted that the instant appeal is time barred as will appear from the list of dates relevant to the question of limitation which the appellant has set out at p. 26 of the supplementary paper book. The appeal was admitted under order of the Division Bench dt. 6th Sep., 1982 (p. 23 of the supplementary paper book) subject to the 3 usual undertakings, one of which was that the appellant would file the certified copy of the decree within the period of limitation (see p. 24 of the supplementary paper book). The appellant has not complied with this undertaking as will appear from the said list of dates stated at p. 26 of the supplementary paper book because although the decree was signed by the learned trial Judge on 10th Aug., 1983 the same was not filed until 9th Nov., 1983, which was more than 30 days from the date of signing of the decree. The said period of 30 days, which is the requisite period of limitation for the filing of an appeal expired on 10th Sept., 1983 but the appellant did not file the decree on or before I0th Sept., 1983, but the decree was actually filed long afterwards on 9th Nov., 1983. According to counsel, it is well settled by a long series of decisions of this Court that it is for the appellant to be diligent in taking the necessary steps leading to the filing of the decree and that any time taken by the appellant which need not have expired if the appellant had been diligent, would not be "time required" within the meaning of Section 12 of the Limitation Act, 1963. That being the position according to counsel the time taken by the appellant from I0th Aug., 1983 up to 9th Nov., 1983 cannot be excluded in computing the period of limitation and the said period being more than 30 days the appeal is time barred and the appellant has not carried out his undertaking to file the certified copy of the decree within the period of limitation. In this connection reference was made to the cases of Kamruddin Hyder v. M. N. N. Mitter, AIR 1925 Cat 735; Commr. of Income-tax v. Santosh Debi Chamaria, and Smt. Annada Sundari Saha v. Monoharan Saha, . According to counsel the principle laid down in the above cases is that unless the appellant carries out his undertaking and unless the appellant is diligent, the appeal is not maintainable and must be deemed to be time barred and, therefore, is to be dismissed.
48. Referring to an unreported judgment of a Division Bench of this Hon'ble Court in the case of Jawala Prasad Khemka v. Ram-chandra Bhotika counsel for the respondent has submitted that the Division Bench has laid down the rule that it is the duty of the appellant to file the decree because he has given an undertaking to that effect and if the appellant does not file the decree within 30 days from the date when the the decree is signed by the trial Judge, then any time taken beyond the said period of 30 days would not be "time requisite" and, therefore, the appellant cannot get the benefit of exclusion of such time. It has been further submitted that in the instant case the period of near about three months from 10th Aug. up to 9th Nov. 1983 cannot be excluded in computing the period of limitation for filing the appeal. Therefore, according to counsel, the instant appeal is not maintainable. As there is no competent appeal before the Hon'ble Court it is liable to be dismissed on the ground of limitation and/or breach of undertaking.
49. Counsel for the respondent has further submitted that the undertaking of the appellant at the time of admission of appeal is to set out a list of all dates relevant to the question of limitation and if the appellant has not given the date as to when the decree was ready for filing, then the respondent cannot be put to blame for such lacuna. According to counsel it was the duty of the appellant to state when the decree was ready for filing. The appellant has deliberately omitted to state this date because the decree was ready for filing long ago but the same was negligently not filed by the appellant within the said statutory period of 30 days. It has been submitted that normally, a decree is ready for filing as soon as it is signed by the learned Judge. In the instant case the learned trial Judge signed the decree on 10th Aug. 1983 and it was completed on 9th Nov. 1983. It has been not explained why the decree which was signed by the learned trial Judge on the 10th Aug. 1983 was not completed until 9th Nov. 1983. Hence contrary to his undertaking the appellant did not file the decree until 9th Nov. 1983. According to counsel, Puja vacation of the High Court in 1983 did not commence until the early part of Oct. 1983, so that if the appellant so desired he could have filed the decree within 30 days of the date when the decree was ready for filing, which date fell long before the commencement of the annual vacation of the High Court.
50. Further submission of the counsel for the respondent has been that the appellant must the diligent in the matter of having the decree drawn up, completed and filed so that the certified copy thereof may issue in due course; it is the duty of the appellant to file the decree because it is the appellant who has given the undertaking to the Hon'ble Court to have the decree filed within the period of limitation and any delay on the part of the appellant in having the decree filed which need not have elapsed if the appellant had been diligent, would not be "time requisite", within the meaning of Section 12 of the Limitation Act.
51. It has been submitted by the Counsel that in the Original Side of the Hon'ble Court unless the appellant takes the necessary steps the decree cannot be filed and a certified copy thereof cannot be issued by the department. Further, unless the appellant complies with each one of the undertakings given by him, particularly the undertaking relating to the filing of the decree within the period of limitation, the appeal itself would be incompetent and not maintainable and would be liable to be dismissed in limine, because not only would there be no proper appeal in the eye of law but also because the appeal would be time barred. The appellant has the carriage of proceedings in the prosecution of his appeal and all the requisite steps are to be taken by him for having the decree filed and obtaining a certified copy thereof, and only the delay, if any, on the part of the departmental officers of the Hon'ble Court in the matter of assessment of folios, etc. cannot be counted against the appellant because such delay would be "time requisite" within the meaning of Section 12 of the Limitation Act. Any other delay on the part of the appellant cannot be excluded in computing the period of limitation for filing the appeal which under Article 117 is only 30 days from the date of the decree, subject to the exclusions, of time which are available to the appellant under Section 12 of the Limitation Act as being time requisite.
52. According to Counsel, in the facts and circumstances of this case it should be held that as the appeal is barred by limitation, it is incompetent and not maintainable.
53. Regarding the point of limitation raised on behalf of the respondent, counsel for the appellant has submitted that in the list of relevant dates for the purpose of computing the period of limitation of the appeal printed at page 26 of the supplementary paper book a material date viz., the date for completion of the decree has been omitted due to inadvertence. It is submitted that decree was completed on 9th Nov. 1983 and on the same date it was filed. Counsel for the appellant gave us a list of dates for the purpose of showing that the appeal is not barred by limitation. The relevant dates appearing from the said list are as follows :
"Judgment and decree dated ... 31-8-1982 Memorandum of Appeal presented in Court on ... 6-9-1982 Date of furnishing requisition for certified copy of the decree ... 1-9-1982 Requisition for certified copy of the decree ... 1-9-1982 Decree signed by the learned Judge ... 10-8-1983 Decree completed ... 9-11-1983 Decree filed on ... 9-11-1983 Folios assessed on ... 16-11-1983 Stamps furnished on ... 16-11-1983 Certified copy of the decree made ready for delivery ... 28-11-1983 Certified copy of the decree filed in the Appeal Section ... 1-12-1983"
54. Counsel for the appellant has submitted that the time gap between 10th Aug. 1983 when the decree was signed by the learned Judge and 9th Nov. 1983 when the same was completed was not due to any inaction on the pan of the appellant.
55. It has been submitted that the said date for completion of the decree, i.e., 9th Nov. 1983 be incorporated in the list of dates relevant on the question of limitation at page 26 of the supplementary paper book by necessary amendment.
56. The controversy between the parties is whether the instant appeal is barred by limitation. Article 117 of the Limitation Act, 1963 provides that the period of limitation for filing an appeal from a decree or order of High Court to the same Court is 30 days from the date of the order or decree. Section 12 of the Limitation Act, 1963 provides, inter alia, as follows : --
"12. (1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.
(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.
(3)-(4) ***** Explanation.-- In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be excluded".
57. In the instant case a dispute has arisen between the parties as to whether after deducting the period of 'time requisite' under Section 12 of the Limitation Act the appeal has been filed within the time. We have already set out hereinbefore list of dates submitted by the appellant for the purpose of establishing that the appeal was filed in time.
58. According to Counsel for the respondent as stated earlier even after giving credit for the period of 'time requisite' under Section 12 the instant appeal is time barred.
59. In the above view of the matter we asked for a report from the Appeal Section for the purpose of deciding the question as to whether the above appeal was filed in time or not.
60. Pursuant to our direction the following report was given by the Appeal Section of the Original Side of this Court. The said report reads thus : --
"Article 117 of the Limitation Act provides 30 days' time to prefer appeal against decree or order as the case may be excluding the period or time taken by the office of the Court to draw up, complete the decree or order and to issue certified copy thereof.
In the instant appeal, the list of dates relevant to the question of limitation is set out hereinbelow showing the period of delay caused by the laches on the part of the appellant.
1. Requn. for drawing given on ... 1-9-82
2. Reqn. for C/C given on ... 1-9-82
3. Signed by the Judge on ... 10-8-83
4. Decree made ready for filing ... 25-8-83
5. Decree filed ... 9-11-83
6. Folios assessed on ... 16-11-83
7. Stamps furnished ... 16-11-83
8. C/C. Decree ready on ... 28-11-83
9. C/C. Decree filed on ... 1-12-83
10. Memo presented on ... 6-9-82 There was 1 day's delay in furnishing Requisition for drawing up and obtaining certified copy of the decree, 76 days' delay in filing the decree though the same was lying ready for filing in the Court's department on 25-8-^83, the same being filed on 9-11-83 and a further 3 days' delay in filing the certified copy of decree.
From the list of dates set out hereinabove, it appears that there was a total delay of 80 days. The appellant did not care to file the decree till 9-11-83 although the same was lying ready for filing on and from 25-8-83.
In this connection it may be stated that in 1983, the Court's long vacation started on and from 6th Oct. and ended on 7th Nov., both days inclusive. Had the decree been filed on 8th Nov., 1983, being the re-opening day the appellant could save himself from being hit by the law of limitation."
61-62. It, therefore, appears from the above report that after giving credit to the appellant for the period of 'time requisite' under Section 12 of the Limitation Act still there has been a delay in filing the appeal. From the report of the Appeal Section it appears that there was total delay of 80 days in filing this appeal against the decree dt. 31st Aug. 1982. The decree was passed on 31st Aug. 1982 but requisition for drawing up the decree was given on 1st September 1982. Hence there was a delay for 1 day. Decree was made ready for filing on 25th Aug. 1983. In 1983 Court reopened on 8th Nov. 1983 after long vacation. Although the decree was made ready for filing on 25th Aug. 1983 it was not filed on the date of re-opening of Court on 8th Nov. 1983 but it was filed on 9th Nov. 1983. Hence the appellant was not entitled to get credit for the period from 25th Aug. 1983 to 8th Nov. 1983. Hence there was delay for 76 days on the part of the appellant. Again certified copy of the decree was made ready on 28th Nov. 1983 but it was filed on 1st Dec. 1983. Here there was delay of 3 days on the part of the appellant. Thus for not taking action in time by the appellant there was delay for 80 days and such period cannot be said to be time requisite under Section 12 of the Limitation Act. Therefore, the instant appeal is time barred.
63. According to the respondent's counsel the submission made on behalf of the appellant that the leasehold property at Belur has not been included in the properties sought to be partitioned although, according to the appellant, it is also a partnership property and hence there cannot be a suit for partial partition of one property by excluding another property is fallacious and ought to be rejected. Counsel for the respondent has submitted that it clearly appears from the deed of lease dt. 9th Feb. 1965 (Ext. 'A', paper book p. 152) that the same has been made between Sm. Champa Devi, Gopal Das Daga, Nawal Kishore Daga and Jugal Kishore Daga as lessors and two individuals viz., Sri Hemchandra Gupta and Sri Om Prokash Gupta as lessees. Neither the partnership firm of 'Hemchandra Om Prokash' is a party to the lease nor does it appear from the said deed of lease that the said firm is the lessee. Therefore, according to the respondent's counsel the above objection of the appellant is not sustainable.
64. According to counsel Clause 9 of the said deed of lease (paper book p. 156) provides that-- "The lessee shall not sublet, under-let or assign or part with the possession of the leasehold property or any portion thereof to anybody for whatsoever purpose and that any breach of this condition will lead to the forfeiture of the lease".
65. Therefore, according to counsel, Section 108(j) of T. P. Act which has been relied upon on behalf of the appellant does not help him. According to counsel Section 108 starts inter alia, with the opening words in the absence of a contract or local usage to the contrary, the lessor and lessee of the immovable property will have rights and be subject to the liabilities as mentioned in the said section. Hence the lessee's right under the said lease cannot be transferred or assigned as contended on behalf of the appellant.
66. On the question whether for non-inclusion of the leasehold property at Liluah this suit is bad as being a suit for partial partition there is good deal of force in the argument of the counsel for the respondent set out hereinbefore. In para 2(m) of his written statement the appellant has stated that the Belur property was taken by the parties on a lease for 20 years in the name of 'Hem Chandra Om Prakash' from Gopal Das Daga and others at a monthly rent of Rs. 50/-only. This statement is not factually correct. The Deed of Lease dated 9th Feb. 1965 is between Sm. Champa Debi, Gopal Das Daga, ~ Nawal Kishore Daga and Jugal Kishore Daga as lessors and Hem Chandra Gupta and Om Prakash Gupta in their personal capacities as lessees. The partnership firm of 'Hem Chandra Om Prakash' is not a party to this lease. Clause 9 of the Lease (paper book p. 156) provides that-- "The lessee shall not sublet, under-let or assign or part wit the possession of leasehold property or any portion thereof concerned, to anybody for whatsoever purpose except to his associated concern, the same is necessary and it is expressly agreed by and between the lessors and the lessee that any breach of this condition will, lead to the forfeiture of the lease hereby granted." Therefore, there is a bar against assignment of interest of the lessees.
67. In view of the opening words of Section 108(j) of the T.P. Act as stated earlier and the covenant and condition contained in Clause 9 of the said lease the lessees (i.e. parties to the suit and this appeal) were and are not entitled to assign or transfer their rights under the said lease. Further, Belur property is outside the Original Side jurisdiction of this Court.
68. On the above point we respectfully agree with the finding of the learned trial Judge and the reasons therefor in her judgment appealed against. Hence, in our view, for non-inclusion of the Belur property in the suit it cannot be said that it is not maintainable.
69. For all the reasons stated above, in our view, the appeal should fail. The appeal is, therefore, dismissed with cost. The Commissioner of Partition appointed by the trial Court will submit his return within 3 months from the date of service of the ordering portion of this judgment upon him. Parties and the Commissioner of Partition will act on a signed copy of the ordering portion of this judgment.
Prabir Kumar Majumdar, J.
70. I agree.