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6. Section 14 of the Indian Partnership Act describes what can be the property of a partnership firm. Property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of the business of the firm, constitute the property of the partnership. Property and rights and interests in property acquired with money belonging to the firm are also deemed to have been acquired for the firm, unless the contrary intention appears. In other words, either the partners can contribute property and their rights and interests in property to the partnership, or the partnership may acquire after its formation by purchase or otherwise any property. In the instant case the leasehold was acquired by the plaintiff and the defendant as co-lessees from the Jharkhand Mines and Industries, Ltd. by a registered indenture on the 8th of June 1951 for 99 years. This was a sub lease. The agreement of partnership between the plaintiff, defendant and another person Shibtara Banerji was formed on the 12th June, 1957 by a registered instrument. Shibtara Banerji retired soon after from the firm. Neither the deed of lease nor the partnership agreement mentioned that the sub-lease was taken by the plaintiff and defendant as partners or for the partnership. Learned Counsel for the defendant-respondent referred to paragraphs 4, 5 and 6 of the plaint and contended that they show that the sub-lease of the suit mining area was taken by and for the partnership. I cannot read either those paragraphs or the plaint as a whole to mean that.

7. Learned counsel for the defendant urged that an implied contribution of the mining leasehold to the partnership business by the two partners (plaintiff and defendant) should be assumed in this case as admittedly the coal mining business for which the partnership was formed was being operated upon this lease-hold property right from the beginning. Persons may be mere co-owners of property and may yet be partners in the profits made from its use. Thus, persons may be co-owners of a coal-mine--take the case of two brothers to whom it may have been devised by the will of their father. The mere fact that they work the mine in partnership as a colliery business, does not make the mine part of the partnership property. A mere user of a property by the partnership for its business does not make the property as belonging to the partnership. In support of this I can usefully refer to the case of Davis v. Davis, (1894) 1 Ch 393; Lachhman Das v. Mt. Gulab Devi, AIR 1936 All 270; Miles v. Clarke, (1953) 1 All ER 779. From the materials placed before us we do not find anything which would show that there was any intention on the part of the plaintiff and the defendant sub-lessees to contribute or to make the lease-hold property as that of the partnership firm. It is very significant that this basic fact has not been whispered at any place so far by the defendant in any of his statements filed in court. That was also not the case of the plaintiff. In that view the trial court was entirely wrong in assuming that the mining lease-hold was the property of the 1957 partnership.

8. There is another serious difficulty which the trial court has overlooked. If it is assumed (though I do not see any justification for that) that the plaintiff and the defendant brought the base-hold to the stock of the firm in 1957 when they constituted the partnership, that would be nothing but a kind of transfer of the mining sublease. Although the formalities of a written and registered instrument are not required for such kind of contribution of immoveable property or interest therein to partnership, yet such a transaction is nothing but a transfer. The Transfer of Property Act is not exhaustive about the modes of transfer. The learned Judges of the Division Bench of this Court also held in the case of AIR 1963 Pat 221 such contribution to be a transfer. There can be little doubt that the change of ownership from that of individuals to a partnership firm will be a a transfer. What will be the ultimate fate of such property on the dissolution of the partnership will not affect the nature of the transaction at the time such property is brought to the stock of the partnership. Rule 37 of the Mining Concession Rules, 1960, made under Section 13 of the Mines and Minerals (Regulation and Development) Act, 1957, prohibits any transfer of mining lease (which includes a sublease also) or any right, title and interest therein to any person (partnership is one in that sense) without the previous consent of the State Government in writing. Section 19 of the Act lays down that any mining lease granted, renewed or acquired in contravention of any provisions of the Act or the rules and orders made thereunder will be void and of no effect It follows, therefore, that before any partner could bring his mining leasehold property or interest therein to the stock of a partner-ship, he must obtain the consent of the State Government in writing previous to that. If it is not done, then such transfer will be void and the leasehold interest will remain where it was before such transfer. On this test the suit partnership constituted on the 12th of June 1957 cannot be said to have included in its stock either by contribution or acquisition, express or implied, the mining leasehold property. In that view the plaintiff remained a co-lessee with the defendant for that property even though both of them formed a partnership, that is, they continued as joint tenants. If file plaintiff did not transfer his leasehold interest to the defendant by the deed of release executed by him on the 1st of July, 1961, then he has still a subsisting title as a sub-lessee in the suit property and that would show a strong prima facie case in his favour in the present suit.

9. Both parties agree that there was no transfer of the sub-lease or any right, title or interest therein by the plaintiff under the deed of release. Their reasons, however, are entirely different. The defendant contends that on the assumption that the leasehold belonged to the partnership, the share and interest of the plaintiff as a partner will be only his proportion of the partnership assets after they are realised and converted into money and the debts of the partnership are discharged, if during the continuance of the partnership, a partner transfers his share and interest in the partnership, it will be not the transfer of any interest in immoveable property owned by the partnership but the transfer will be regarded only as of a moveable property; therefore, by the deed of release the plaintiff did not, as he could not, transfer his interest in the leasehold. Plaintiff's contention is that a deed of release is only a disclaimer and not a conveyance of title in immoveable property; secondly, if it purported to be a conveyance of leasehold interest, it was void for its contravention with Rule 37 of the Mineral Concession Rules, 1960; partnership is a relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all, and persons who have entered into partnership are known individually as partners and collectively as a. firm; in that view immoveable property owned by or belonging to a partnership is nothing but a property owned by joint owners; if a partner contributes or transfers his immoveable property or his interest therein to the partnership, he still continues to be one or the joint owners with other partners, and, as such, he can transfer his interest in the immoveable property during the continuance of partnership though subject to the terms of the agreement of partnership in regard to such property; in the present case the deed of release being a registered instrument if taken as a transfer of the plaintiff's interest in the leasehold as a partner, that will be void as it was without the previous consent of the State Government. Learned counsel for either side cited several decisions in respect of their respective contentions, but I do not think it necessary at this stage to refer to or deal with them. For whatever reason, if the parties accept the position that by the deed of release the plaintiff did not part with his leasehold interest, then that interest of his still subsists on the finding that the leasehold aid not become the stock the partnership firm.