MUHAMMAD ISHAQUE Versus EROSE THEATRE

1. ANWARUL HAQ, J. -This judgment will dispose of two cross-appeals bearing Nos. K-9 and K-l0 of 1974, both of which are directed against the judgment and decree dated the 11th of May 1973 of a Division Bench of the High Court of Sind & Baluchistan in Letters Patent Appeal No. 38 of 1971.

2. The dispute relates to the identity of the partners of the Firm operating under the name and style of Messrs Erose Theatre. The Firm is running a cinema called the Erose Cinema, and is admittedly the owner not only of the business of the cinema but also of the building in which it is housed.

3. The cinema is eituated at No. 2 Preedy Quarters, Marston Road, Karachi. According to the averments made in the second amended plaint, forming the basis of Suit No. 159 of 1964, tried on the original side of the High Court, the Firm came into existence as a result of a partnership dated the 31st of December 1948 executed at Karachi between two sets of partners as follows :

4. First Set

1. Syed Abdul Momin Rizvi ????????????????????????????????????????????????????? 6 Annas share

2. His step-mother Mst. Bismillah begum ?????????????????????????????????? 1 Anna share

3. His sister Mst. Samad Begum ?????????? ??????????????????????????????????? 1 Anna share

5. ??????????? Total : ?????????????????????????????????????????????????? 8 Annas share

6. Second Set ;

1. Mohammad Casim Parekh ??????????????????????????????????????????????????? 4 Annas share

2. His wife Mst. Qamar Bano ?????????????????????????????????????????????????? 4 Annas share

7. ??????????? Total : ?????????????????????????????????????????????????????????????????????????? 8 Annas share

8. It was stated that Mst. Bismillah Begum and Mst. Samad Begum were benami for Rizvi whereas Mst. Qamar Bano was Benami for Casim Parekh. The partnership was for a period of thirty years. The Firm was registered with the Registrar of Finns, Karachi, on the 14th of February 1949. The two male partners were entitled to act on behalf of their respective female relations, and also had the authority to raise loans for the management of the partnership, and for that purpose to enter into any other arrangement with third parties. The partnership deed (Exh.34/6 on page 700) also provided, by its eighth clause, that upon the death of a partner during the subsistence of the partnership his heirs will get the assets and liabilities and shall continue as partners unless they decided otherwise.

9. On 6-5-1949, Rizvi and Parekh entered into a partnership, in respect of the running cinema business, with Haji Rehmatullab, Haji Muhammad and Ismail Hussain Casim, for a period of three years only for the purpose of raising finances for the business. The shares of all the five partners were specified, but the management was to remain exclusively in the hands of Rizvi and Parekh. A copy of this partnership deed is on the record as Exh. 70 on page 849.

10. On 6-10-1952 Rizvi and Parekh entered into still another unregistered sub-partnership with Manekji Dastur and his two sons, namely, Hoshang Dastur and Byramji Dastur for a fixed period of eight years, commencing retrospectively from the 1st of April 1952, for the purpose of running the cinema business and in order to raise a loan of Rs. one lac. Under this partnership the shares were to be as follows

1. M. C. Parekh ?????????????????????????????????????????????????????????? 6 Annas 6 Pais

2. Syed Abdul Momln Rizvi ????????????????????????????????????????? 6 Annas 6 Pals

3. Manekji Dastur ???????????????????????????????????????????????????????? 1 Anna

4. Hoshang Dastur ??????????????????????????????????????????????????????? 1 Anna

5. Byramji Dastur ???????????????????????????????????????????????????????? 1 Anna

11. A copy of this partnership deed is Exh. 24 on p. 638 of the Record.

12. Parekh died on 1-12-1953 leaving behind as his heirs two widows, namely. Mst. Qamar Bano and Mst. Amina Parekh, as well as five children, including three sons and two daughters. According to the plaint, all these persons became partners of the original Firm as well as of the sub-partnership dated the 6th of October 1952.

13. After Parekh's death, a gentleman by the name of Hassain Malik filed a suit (bearing No. 631/54) on 2-6-1954 on the original side of the then Chief Court of Sind, asking for the dissolution of the partnership and rendition of accounts ; or in the alternative for recovery of about Rs. 72,000. He cited Rizvi, the three Dasturs and the legal representatives of Parokh as the defendants. Malik Muhammad Ishaq (now deceased), predecessor. in-interest of appellants Begum Parveen Malik etc., joined the suit as intervenor. The Chief Court appointed a receiver for running the cinema, and he remained in possession of the same from the 18th of June 1954 to the 17th of April 1959. Hussain Malik's suit ended in a compromise, whereupon the receiver was discharged and the possession of the cinema was banded over to Rizvi on 17-4-1959. It was alleged in the plaint that on the same day Rizvi made over possession of the cinema to Malik Muhammad Ishaq, apparently in pursuance of an unwritten partnership between himself, Malik Muhammad Ishaq, and the Dasturs.

14. However, a formal written partnership deed (Exh. 27 on page 655) in favour of Malik Muhammad Ishaq, his son Riaz Malik and his wife Begum Parven Malik was executed by Rizvi and the three Dasturs on 6-6-1959. to take retrospective effect from the 17th of April 1959. The deed recited the payment of certain sums by Malik Muhammad Ishaq to the previous partners, and also stipulated that he was authorised to settle the disputes with regard to the old Firm with the heirs of M. C. Parekh, and that he shall also act as the Managing Partner of the Firm, and in the event of his absence or death his son Riaz Malik shall succeed. The shares of the new partners were spelt out as follows :

1. Malik Muhammad Ishaq ?????????????????????????????????????????? 2 Annas in the rupee

2. Riaz Malik ??????????????????????????????????????????????????????????????? 2 ????????? ?

3. Begum Parveen Malik ?????????????????????????????????????????????? 6 ????????? ?

4. Rizvi ???????????????????????????????????????????????????????????? 3 Annas 6 Pais

5. Manekji Dastur ???????????????????????????????????????????????????????? 1 Anna in the rupee

6. Moshang Dastur ?????????????????????????????????????????????????????? 6 Pais ?

7. Byramji Dastur ???????????????????????????????????????????????????????? I Anna ?

15. Total : ????????????????????????????????????????????????????????????????????????? 16 Annas

16. At about the same time Malik Muhammad Ishaq obtained deeds of assignment from Parekh's adult son Ahmed Parekh as well as from Parekh's two widows concerning their shares and those of their minor children. The deed of assignment by Mst. Qamar Bano is dated 6-5-1959, whereas by Mst. Amina Begum is dated the 10th of October 1959, and that by Ahmed Parekh is dated 23-9-1961. Ahmed Parekh is also a signatory to the assignment deed of his mother Mst. Qamar Bano (Exh. 28), purporting to alienate his own share as well.

17. The two ladies then made applications before the Karachi Bench of the High Court of West Pakistan for permission to sell the shares of their minor children, but subsequently they revoked the agreements of assignment on the allegation that they had been misled by Malik Muhammad Ishaq and that the agreements were prejudicial to the interest of the minors. The Court appointed its Official Assignee as the guardian of all the minor children of Parekh, whereupon he made an application for setting aside the deeds of assignment ex-cut-c', by the two widows on the ground that they had been induced to sign them by fraud and misrepresentation. This application was dismissed by a learned Judge of the High Court by his order dated 12-5-1961, but the Official Assignee took the mater in appeal to the Supreme Court, which allowed the appeal by its order dated 8-a-1963 and the assignments, in so far as they related to the shares of the minor children of Parekh, were set aside.

18. By another deed of assignment dated the 29th of December 1962, Rizvi also parted with his share in the Firm in favour of Begum Parveen Malik. Rizvi died at Karachi sometime in 1963.

19. Malik Mohammad Ishaq filed Suit No. 186 of 1960 in the High Court against Mst. Qamar Bano and her children for the specific performance of the agreement of sale, and the same was decreed as against Mst. Qamar Bano only. excluding the share of her minor children. A Letters Patent appeal filed by Mst. Qamar Bano was dismissed by a Division Bench of the High Court on 17-5-1968, and a time-barred petition for special leave to appeal (No. K-119 of 1969) was also dismissed by this Court on 1-2-1972.

20. Ishaq had also filed a similar suit for specific performance against Mst. Amina Parekh, but the same abated owing to his death.

21. It was in these circumstances that the heirs of Parekh filed the present suit on 18-11-1964 against Malik Muhammad Ishaq, his wife Begum Parveen Malik, his son Riaz Malik, the Dasturs, as well as the legal representatives o3 Rizvi, claiming the following reliefs :

(1) A declaration

(a) that the registered partnership deed dated 31-12-1948, for a fixed period of thirty years was subsisting and valid ;

(b) that the sub-partnership with the Dasturs dated 6-10-1952 had come to an end on 3I-3-1960 ; and

(c) that the agreements of assignment dated 6-5-1959 and 10-10-1955 executed by the two widows of Parekh were void and of no legal effect.

(2) Delivery of possession of Erose Theatre to the plaintiffs, or in the alternative joint possession to the plaintiffs or such of them as may be entitled to the extent of their shares in the Erose Theatre and its assets ;

(3) An order to reRtrair defendants, Malik Muhammad Ishaq, his son and wife from managing tire affair: of Erose Theatre or interfering with the management of the same by the plaintiffs and the legal representatives of Rizvi ; and

(4) A direction to the first three defendants to render accounts of the Erose Theatre from 17-4-1959 and a decree for the amount found due against there.

22. In the plaint no relief was sought against the legal heirs of Rizvi and his step-mother Mst. Bismillah Begum, who did not contest the suit after filing their written statements. However, they contended that Mst. Bismillah Begum arid Mst. Samad Begum were not benami partners.

23. The Dasturs did not file any separate written statement, but joined err the one filed by Malik Muhammad Ishaq, his son and his wife. These defendants denied the very existence of the partnership of 1948, and in the alternative they contended that it was illegal, being mainly for the purpose of evading income-tax, and that it bad not teen acted upon. They also submitted that it had been superseded by the partnership entered into between Rizvi and Parekh with the Dasturs in 1952 which was a full-fledged partnership and not a sub-partnership. They further pleaded that the heirs of Parekh had not become partners in the Erose Theatre after his death, with the result that the three Isbaqs had validly entered into a new partnership with Riavi and the Dasturs for running the Erose Theatre, and that under this partnership Malik Muhammad Ishaq was entitled to manage the affairs of the Firm. Finally, it was asserted that the deeds of assignment executed by the various parties in favour of the Ishaqs were valid and binding on the assignors.

24. On these pleadings as many as eighteen issues were framed by the learned trial Judge, and by his judgment dated the 20th of Mardi 1971, Noorul Arfin, J, decided as follows .

(1) That the partnership deed dated the 20th of September 1948 had been duly proved on the record by the plaintiffs by tendering secondary evidence according to law ;

(2) That it was in fact acted upon, and was subsisting and valid for its stipulated term of thirty years, irrespective of the subsequent partnerships of 6-5-1949 and 6-10-1952 entered into by Parekh and Rini with third parties, and that these two partnerships could in fact be deemed to be in the nature of sub-partnerships for the purpose of running the cinema business only ;

(3) That the original partnership had not been shown to be illegal in any manner, as it was not proved that Mst. Bismillah Begum and Mst. Samad Begum were Benami for Rizvi, or that the number of partners exceeded the statutory limit of twenty on the death of Rizvi ;

(4) That on the death of Parekh his major heirs became partners in the Firm and the minor heirs stood admitted to the benefits of the partnership ;

(5) That the 1952 partnership being merely a sub-partnership between Rizvi, Parekh and the three Dasturs inter se, the Dasturs did not become partners in the Firm nor did the 1952 partnership lead to the re-constitution of the 1948 partnership ;

(6) That in any case with the expiry of the period of this partnership on the 31st of March 1960, the Firm reverted to the original position, and after this date the Dasturs ceased to be partners in the Firm at all, and were thenceforth entitled only to a share of three Annas in a rupee as mere creditors of the Firm in accordance with clause (14) of their partner ship deed (Exh. 24) ;

(7) That the partnership deed (Exh. 27) dated the 6th of June 1959 in favour of the three Ishaqs and the Dasturs was inoperative by reason of the provisions contained in section 31 of the Partnership Act, for want of consent on the part of Mst. Bismillah Begum, Mst. Samad Begum, Mst. Qamar Bano, Ust. Amen Parekh and Ahmed Parekh, who were partners of the original Firm at the relevant time ;

(8) That in so far as these defendants or any of them had obtained by assignment the share of any partner in the Firm, then under section 29 of the Partnership Act such an assignee would be entitled only to receive the share of profits of the transferring partner, but not be entitled to interfere in the conduct of the business or to require accounts, or inspect the books of the Firm, or even to be in possession of the Firm's assets ; in other words, the position of such an assignee would be merely that of a creditor of the Firm to the extent of the share of the transferring partner ; and

(9) That the assignments (Exh. 28 and Exh. 29) executed by Mst. Qamar Bano, her son Ahmed Parekh and Mst. Amina Parekh in favour of the Ishaq family were of no legal effect as against the assignors for the reason that they had been obtained by misrepresentation of facts concerning the true value of the assets of the Firm and its outstanding liabilities.

25. On these findings the learned Judge granted the necessary declarations to the plaintiffs, and also held that the defendants comprising the families of lshaqs and Dasturs were not entitled either to be in possession of Erose Theatre or its assets and properties ; or to manage the same ; nor were they entitled to interfere vrith the management of this cinema by the plaintiffs as well as the heirs of Rizvi. He further decreed that the Ishaqs and Dasturs were liable to render accounts to the plaintiffs of the business and income of Erose Theatre from 17-4-1959, and to pay the amount if any found due from them to the plaintiffs and the other partners. The learned Judge then went on to determine the individual shares of the heirs of Parekh. Finally, he directed that as the suit involved the interest of minors it would be just and convenient to appoint a receiver of the Erose Theatre, and also to appoint an Advocate of the High Court as Commissioner for taking accounts.

26. The contesting defendants filed an appeal under clause 10 of the Letters Patent which has been dismissed by a Division Bench of the High Court by its judgment dated the 11th of May 1973 with certain modifications in the decree. The main findings recorded by the learned trial Judge have been upheld with the following variations ;

(a) The defendants from among the family of Rizvi, who were minors on the date of the institution of the suit would only be entitled to the benefits of the 1948 partnership under section 30 of the Partnership Act, as there was nothing on the record to show that on attaining majority any one of them had exercised the option available under subsection (5) of the said section to join the Firm as a partner ; and

(b) The deeds of assignment (Exh. 27 and Exh. 28) executed by Mst. Qamar Bano and her major son Ahmed Parekh were binding and operative on the assignors in view of the judgment of the Supreme Court in Mst. Qamar Bano's petition for special leave to appeal, and the fact that Ahmed Parekh had not contested the validity of the assignments attributed to him. This finding was, however, not is affect the shares of the minor children of Mst. Qamar Bano, as assignment in respect thereof bad already been rejected by the Supreme Court.

27. The effect of the two judgments delivered in the High Court appears to be that the members of the Ishaq family had become assignees of the shares of the Firm to the extent of 81 Annas in the rupee, namely, (a) One half anna share of Mst. Qamar Bano ; (b) 11 Annas share of Ahmed Parekh son of Casim Parekh ; and (c) 6 Annas share of Rizvi ; and in this capacity they would be entitled only to receive the share of profits of the transferring partners, but not to interfere in the conduct of the business of the Firm or to be in possession of its assets.

28. On behalf of the appellants in Civil Appeal No. K-9 of 1974, who were the contesting defendants in the suit, a large number of contentions have been raised by Messrs A. K. Brohi, Sharifuddin Pirzada and Iqbal Qazi, which may he summarised as under ;

(1) That the partnership deed of 1948 has not been proved on the record by admissible evidence, as the deed was not properly :tamped and, therefore, secondary evidence was inadmissible ; and that the copies or documents tendered as secondary evidence were not duly proved ;

(2) That the said partnership deed was compulsorily regisetrable under section 17 of the Registration Act as it purported to convey rights in immovable property, and it could not be acted upon for want of registration

(3) That even in the deed be regarded as having been duly proved, it seas not a genuine partnership but an illegal association of persona intended merely for the evasion of income-tax ; and it was also illegal by virtue of its tenth clause being contrary to the provisions of Muslim Law inasmuch as it provided that on the deaths of Mst. Samad Begum and Mst. Bismillah Begum their shares would pass to the children of Rizvi ;

(4) That the said partnership was never acted upon, as the three ladies were mere benamis for their respective male relations, and the true partners were only Parekh and Rizvi, with the consequence that the subsequent partnerships entered into by these two persons were not sub. partnerships, but in the nature of successive reconstitutions of the main Firm ;

(5) That another consequence of the original partnership being between only Parekh and Rizvi was that on Parekh's death in 1953, the partnership came to an end and the Firm stood dissolved, with the result that Parekh's heirs could not step in as partners, even if clause (8) of the deed be interpreted as permitting the entry of heirs as partners, in the event of the death of one of the partners ;

(6) That in any case the High Court has misconstrued clause (8) of the partnership deed as meaning that the heirs of a deceased partner would automatically become partners in the Firm, whereas the true import of this clause is that the heirs would be entitled to the shares of the deceased partner, and the surviving partners would be competent to carry on the business of the Firm ; and this is exactly what has in fact happened in this case after the death of Parekh inasmuch as the surviving partners entered into successive partnerships with third parties ;

(7) That even if it be assumed that the 1948 partnership was genuine and legal and that it was act.-d upon, then at least in 1963 it ceased to be a legal entity for the reason that on Rizvi's death in that year the number of partners exceeded twenty in contravention of section 4 of the Companies Act ; and

(8) That the High Court has fallen in error in thinking that the various assignments in favour of the Ishaq family did not confer on the assignees any rights as partners or co-owners in the immovable property of the Firm, as in fact they were put in possession not only of the business but, also of the immovable property and assets of the Firm by the assignors.

29. In Civil Appeal No. K-) 0 of 1974, filed by the plaintiffs, the challenge is only to the finding of the learned Judges of the Division Bench as to the validity of the assignments made by Mst. Qamar Bano and Ahmed Parekh in favour of Malik Muhammad Ishaq. It is submitted that the learned Judges of the Letters Patent Bench have omitted to consider the fact that the joint agreement of assignment (Exh. 28) was procured by Malik Muhammad Ishaq by practising fraud and misrepresentation on Mst. Qamar Bano and Ahmed Parekh ; and that in the circumstances of the case the dismissal of Civil Petition for Special Leave to Appeal No. K-119 of 1969 by the Supreme Court did not operate as res judicata against Mst. Qamar Bano in the present suit, as the matter was not considered on merits on that occasion but simply dismissed on account of limitation. It is contended that the finding recorded by the learned trial Judge in respect of the invalidity of this assignment was based on cogent evidence, and there was no justification for the Division Bench to interfere with the same.

30. We shall first take up Civil Appeal No. K-9 of 1974.

31. It is common ground that the original partnership deed of 1948 was not produced at the trial by either of the parties, and instead reliance was placed on copies bearing Exhs. 34/6, 39, 67 and 79/3. The High Court has held that the original deed must have come into the possession of the late Malik Muhammad Ishaq, but he failed to produce it even when called upon to do so under section 66 of the Evidence Act. In these circumstances, the High Court has observed that it was open to the plaintiffs to tender secondary evidence to prove the contents of the partnership deed. Nothing was said in derogation of this finding, and the only question, therefore, is whether the production of secondary evidence was barred in this case under section 35 of the Stamp Act of 1899 for the reason that the original was not properly stamped with a stamp of Rs. 20 as required under Entry No. 46 of Schedule i to the Stamp Act, as it stood in 1948.

32. Copies bearing Exhs. 34/6, 67 and 79/3 show that the original bore a stamp of Rs. 2 only ; whereas copy marked Exh. 39 does not show the presence of any stamp at all. The High Court has expressed the view that as it was conceded by Mr. Sharifuddin Pirzada that documents like the partnership deeds were generally prepared in duplicate, it was possible that the copies brought on the record were those of the counterparts or duplicates mentioned under Entry No. 25 of Schedule I to the Stamp Act, and not of the original partnership deed itself mentioned under Entry No. 46 of the said Schedule. Under Entry No. 25. as it stood in 1948, a stamp of Rs.2 only was required on counterparts or duplicates.

33. It is contended on behalf of the appellants that the High Court was wrong in assuming that the copies tendered by the plaintiffs were of counterparts or duplicates of the original partnership deed, for in that case one such copy should have been in the possession of the heirs of Parekh, even though the original deed might be assumed to be in the possession of Ishaq. The learned counsel further contends that the deficiency in stamp could not be rectified by the imposition of a penalty under section 33 of the Stamp Act as the original was not forthcoming. In support of this proposition he has referred us to Rajah of Bobbli v. Inuganti China Sitarasami Garu 26 I A 262.

34. There is no merit in these submissions. Evidence was led 'at the trial; to show that Mr. Shah Yaqub. Advocate, who was acting for list. Qamar" Bano in this prolonged litigation, had at one stage seen the origins partnership deed, but he was not cross-examined by the appellants as to the, value of the stamp borne by the original. Even another witness by the name' of Zahoor Khan, a clerk of the Official Assignee, had also seen the original,; but he was also not questioned about the value of the stamp affixed on the original. It appears, therefore, that the High Court was right in taking the view that the copies tendered as secondary evidence of the partnership deed, were presumably copies of the counterparts or duplicates, which bore the correct stamp of Rs. 2 as prescribed under Entry No. 25 of the relevant Schedule to the Stamp Act. In these circumstances, no question arises of considering whether the deficiency in the stamp could he rectified under section 33 of the Stamp Act.

35. We consider, therefore, that the High Court was right in permitting secondary evidence to prove the contents of the partnership deed of 1948. The contention that these copies did not tally with each other in some material particulars, or that they were not duly proved by competent witnesses, has been considered at some length by the learned Judges of the Division Bench, and rightly rejected. A comparison of the copies produced by the Plaintiff-respondent ? clearly shows that the grain terms and conditions of the partnership of 1948 could be spelt out from them. The High Court was, therefore, right in acceptation then as secondary evidence of the contents of the original partnership deed.

36. It is next contended that the partnership deed of 1948 was compulsorily registrable under section 17 of the Registration Act, 1908, as it purported to convey, under its ninth clause, rights in immovable property to the partnership Firm It is submitted that the said clause would remain ineffective for want of registration in view of the provisions contained in section 49 of the Registration Act, and that the partnership would thereby be rendered illegal, and also inadmissible in evidence.

37. In order to fully appreciate this contention, it is necessary to reproduce here clause (9) of the partnership deed, and also to state certain facts. ,Clause (9) reads as under "That the incomplete construction work of the Cinema situated at Preedy Quarters, Marston Road, which is agreed to be purchased by S. A. M. Rizvi in his name from M. Y. Sitlani and Ghulam Waswani, is the property of the partnership and belongs to the partnership."

38. The relevant facts are that on the 20th of November 1946, two gentlemen by the name of Sitlani and Waswani obtained permission from the District Magistrate of Karachi to construct a Cinema on land they had taken on lease from one Mrs. Judd. They had not yet completed the construction of the Cinema building when partition of the country was announced. On the 20th of September 1948, Rizvi entered into an agreement with them for purchasing the incomplete building, and is said to have paid a sum of Its. 1.0,000 as earnest money. On 31-12-1948, the disputed partnership deed was drawn up between Rizvi and Parekh and the females related to them, and it was given retrospective effect from the 20th of September 1948, i.e.. the date on -which Rizvi had entered into the agreement for the purchase of the incomplete cinema building. It is stated that on the 14th of January 1949, the District authorities permitted Parekh and Rizvi to complete the Cinema building. It appears that at some subsequent date Rizvi had filed a suit for specific performance against the two vendors, after obtaining permission from the Custodian of Evacuee Property, and the same was decreed. It is stated by Mr. Sharifuddin Pirzada that no registered sale deed has yet been executed in favour of Rizvi or, the partnership Firm.

39. The question is whether, in the facts stated, the provisions of section 17 of the Registration Act were at all attracted to clause (9) of the partnership deed.

40. Section 17 of the Registration Act;' requires compulsory registration of documents which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future any right, title, or interest, whether vested or contingent, of ins value of one hundred rupees and up, wards, to or 'in immovable property. It will be seen that an essential pre-requisite for the application of this section is that the person transferring the right's must be in possession of such rights before he can convey them to the second party. The words "whether in present or in future" occurring in clause (b) of subsection (1) of section 17 have reference not to the title or interest of the transferor, but to the right to be created in favour of the transferee, thin .clearly allowing that as far as tile transferor is concerned, he should be in possession of the rights in the present and not in the future. See Imam Bakhsh Khan v. Karim Shah ? 16 P R 1893, Bhan Singh v. Thakur Day 89 P R 1908 and Ramdas v. Nadir Shah A I R 1919 Lah. 60.

41. The only other words requiring to be noticed are that compulsory registration applies not only in the case of transfer or declaration etc. of vested rights but also of contingent rights in immovable property. These terms have not been defined in the Registration Act itself, but according to section 19 of the Transfer of Property Act a vested interest accrues on a transfer of property when it is created in favour of a person without specifying the time when it is to take effect of in terms specifying that it is to take effect forthwith or on the happening of an event which must happen ; whereas a contingent interest, as defined in section 21 of the same Act, is an interest in property which is to take effect only on the happening of a specified uncertain event, or if specified uncertain event shall not happen. Such contingent interest can, however, ripen into a vested interest on the happening of the event or, in the second case, when the happening of the event becomes impossible.

42. Now, none of these concepts has any relevance to the facts we are considering. Rizvi had not acquired any interest in the immovable property comprising the Erose Theatre on the date he entered into the partnership dead with Parekh and the females. He had only entered into an agreement to purchase the property from Sitlani and Waswani. It is well-settled that a agreement to sell or purchase immovable property does not, by itself, create any present right in the property in question ; on the contrary it is a documents falling within the ambit of Exception V as enumerated in subsection (2) o section 17 of the Registration Act, namely, a document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, etc. such a right. In Kand Chandra v. Projendr Mohan A I R 1929 Cal. 186, Hukamchand v. Radha Kishen A I R 1930 P C 76 and Naba Kishore Lal Singh De v. Panchanan Matho A I R 1930 Pat. 601, such agreements were held not -to create or declare any present rights to or in immovable property.

43. As observed in Jafar Ali Khan v. Mt. Qamarunnissa A I R 1938 Oudh 119 and Kameshwar Singh v. Chaudhry Rajbansi Singh alias Raja Singh A I R 1943 Pat. 433, the test is whether the document or instrument brings about a definite change of legal relation ship in respect of the property by an expression of will embodied therein. In the case of an agreement to sell the legal relationship does not change until the agreement matures into a document of sale which then operates or purports to create, declare, assign, limit or extinguish any right, title or interest in immovable property. It follows, therefore, that on the date of the execution of the partnership deed Rizvi was not possessed of any right, title or interest in the immovable property known as the Erose Cinema, and he could not, therefore, in turn, create or convey any such right, title or interest in favour of the partnership Firm in the said building. That being so, the partnership deed was not compulsorily registrable under section 17 of the Registration Act simply on account of the inclusion of the ninth clause relating to this building.

44. Mr. Sharifuddin Plrzada referred us to Dr. Sardar Bahadur Sir Sunday Singh Majithia v. Commissioner of Income-tax, United and Central Provinces A I R 1942 P C 57 and Zainab Bai v. Ibrahimji P L D 1962 Kar. 209 in support of his contention that section 17 (2) was attracted even though Rizvi had not acquired proprietary rights in the building by the date of the execution of the partnership deed. A mere perusal of these two cases. however, shows that they do not lend support to any such contention.

45. In the first mentioned case, their Lordships of the Judicial Committee found, on facts presented to them, that although the partnership deed among the members of a joint Hindu family did not make any mention of the land and buildings comprising the factory in dispute, yet these were essential constituents of the factory, and it was an essential feature of the partnership agreement that the wife and sons had share in the immovables. These observations and conclusions have no relevance to the facts of the instant case, as we have found that Rizvi had not acquired any interest in the immovable property in question on the date the partnership deed was drawn up. In the second case, relied upon by Mr. Pirzada, it was held by a learned Judge of the West Pakistan High Court that "when immovable property belonging to a partner is by means of a deed brought into the common stock of the firm so as to become the property of all the partners in the firm registration of the document under section 17 (b) of the Registration Act, 1908, is compulsory. When, however, there is already an existing right in an immovable property and there is merely a declaration by way of a settlement this would merely amount to an acknowledgment of an existing right and the document containing such a declaration would not be compulsorily registrable." It will be seen that the very basis of the first part of this statement of the law is missing in the case before us.

46. Mr. Sharifuddin Pirzada also submitted that in the registered partnership deed dated the 6th of May 1949, drawn up between Parekb, Rrzvi, Haji Rehmatullah and two others, there is a clear stipulation, particularly in clauses (15) and (22), that Rizvi and Parekh would continue to be the exclusive owners of the building of the cinema with all its fixtures and good will etc. thus showing that the building had already become the property of the partnership Firm created in 1948. The argument of the learned counsel appeared to be that the recitals contained in these two clauses of the 1949 partnership deed were a correct reflection of the true state of affairs is relation to the immovable property of the Firm, and therefore we should invalidate the earlier partnership deed irrespective of the legal position of Rizvi in relation to the building of the cinema as prevailing in 1948. The argument has only to be stated to see that it has no merit and substance. Any amount of assertion of title or interest by Rizvi and Parekh cannot suffice to negative the legal position, namely, that at the time of the execution of the 1948 partnership deed Rizvi had not yet acquired any right, title or interest in the building of the Erose Cinema.

47. It may be added that the argument based on the requirement of compulsory registration of the partnership deed has really lost its relevance in view of the replacement of the original section 49 of the Registration Act by a new section by the Registration (Amendment) Ordinance, 1962. The former provision that an unregistered document creating, declaring or transferring a right in immovable property could not be received in evidence is no longer the law of the land, and the only penalty for non-registration is; that the document in ? question shall not he operative in respect of rights in immovable property. Even if, therefore, Mr. Sharifuddin Pirzada was right in contending that clause (9) of the 1948 partnership deed required registration it would not have affected the admissibility of the document in evidence.) Further, it also appears that the present appellants, particularly the heirs of Malik Muhammad Ishaq deceased, would be hit by section 89 of the Evidence Act, which enjoins that "the Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law." We have already mentioned the finding of the High Court that the original of the partnership deed must be presumed to have been in the possession of Ishaq, but he did not produce the same even after notice to do so. In these circumstances, the learned Judge of the Division Bench appear to us to be right in observing that it must be presumed that the said partnership deed had been properly attested, stamped and executed in the manner required by law, which would obviously also include any requirement as to compulsory registration. For this reason as well, we have no hesitation in agreeing with the High Court that the plaintiffs had succeeded in proving the existence and the terms of the 1948 partnership, deed, under which the original Firm was created.

48. The next question requiring consideration is whether this partnership was, in any manner, illegal as being against public policy for the reason that it was intended to evade income-tax. It appears that this question was not specifically raised at the trial in these terms, and the only illegality alleged against the partnership was that the ladies were benamis for their respective male relations. This allegation was repelled by the learned trial Judge, except in relation to Mst. Qamar Bano who, as one of the plaintiffs, bad herself taken the stand that she and the other ladies were benamis for Rizvi and Parekh. This finding has been upheld by the learned Judges of the Division Bench, and we shall have occasion to examine this point further when we discuss the appellants' contention that the partnership was not acted upon. For the present, we wish to dispose of only the limited question whether the partnership could be declared to be illegal on the .ground that it was primarily intended to evade income-tax.

49. We find that the learned Judges of the Division Bench have refused to consider this contention on the short ground that it related to a question of fact, which was not specifically pleaded at the trial, as no particulars of the alleged fraud were given. It was also observed by the Division Bench that in any case an allegation that a partner in a firm is a benami partner did not make the firm illegal. They might have added that a benamindar has to be regarded as the owner or partner against the whole world, except the real owner or partner.

50. The learned counsel for the appellants did not advance any plausible reason for their failure to raise this specific contention before the trial' Court ; nor did they satisfactorily explain the failure of the appellants to give the necessary particulars of the alleged fraud in their written statement, or during their evidence at the trial. For this reason, we consider that the learned Judges of the Division Bench were right in refusing to examine this contention.

51. Even otherwise, as observed by their Lordships of the Privy Council in the case of Dr. Sardar Rahadur Sir Sunder Singh Majithia earlier referred to by us in another context, the question whether an instrument purporting to be a partnership deed is intended by the parties to have real effect as governing their rights and liabilities Inter se in relation to the :business or whether it has been executed by way of pretence in order to escape liability for tax and without intention that its provisions should in truth have effect as defining the rights of the parties as between themselves, is a question of fact. Although the precise question whether the partnership deed was intended as a device for evading income-tax was not raised in the Courts below, and has not, therefore, been specifically answered, yet there is a concurrent finding that the ladies except Mst. Qamar Bano were not Farzi or benami partners Ordinarily this finding of fact could not be re-opened in the present appeal, and should op.-rate against the contention we are now considering.

52. However, learned counsel appearing on behalf of the appellants contended that the following pieces of evidence appearing on the record had not been properly considered by the Courts below, namely :

(a) An admission by Mst. Qamar Bano (the senior widow of Parekh) that she and the other two ladies, namely, Mst. Samad Begum and Mst. Bismillah Begum were benamis for Parekh and Rizvi respectively;

(b) An admission by Mst. Amine Bai (the junior widow of Parekh) that she was once told by her husband that Mst. Qamar Bano was Farzi partner only to save income-tax; and

(c) Certain admissions made by counsel for the parties in Letters Patent Appeal No. 54 of 1965 relating to the appointment of a receiver in the main suit.

53. It was submitted that these facts were sufficient to show that the real purpose of the 1948 partnership was to defraud the public exchequer in the matter of the payment of income-tax on the business of the Erose Theatre.

54. It is true that in the plaint Mst. Qamar Bano had taken the stand that she and the other two ladies were benami partners, and she re-affirmed this position in her examination-in-chief at the trial, , but she also went on to state that "my husband and I each had a four 'Annas' share. Mr. Rizvi had a six Annas' share and Mst. Samad Begum and Mst. Bismillah Begum had each one Anna share." At atill,another place she asserted that "Samad Begum and Bismillah Begum and I were benami partners in the partnership firm of 1948 but I deny that this means that Samad Begum and Bismillah Begum and I had no interest in the partnership. It is not correct that Samad Begum and Bismillah Begum and I were not partners in the partnership firm or that our names were only Farzi". On further questioning she reiterated that "the real partners of the Firm of 1948 were Mr. Rizvi and my husband", but again added that "on the death of Samad Begum, Bismillah Begum or on my death, our heirs would be entitled to be partners of the 1948 Firm." It will be seen that this poor lady did not have any appreciation of the true position occupied by her and the other two ladies in the partnership firm, and it would accordingly be unfair to base any final conclusions on this kind of evidence. However, as already stated, we have to examine this point still further for deciding whether this partnership was indeed acted upon or not.

55. As regards the evidence of the junior widow Mst. Amine Bai that she had been told by her husband that the name of Mst. Qamar Ran o was shown as a partner only to save income-tax, the correct position appears to be that this statement is trot admissible under any of the clauses of section 32 of the Evidence Act. Even otherwise, a perusal of the length. statement made by this lady leaves no doubt that she had no first-hand knowledge of the affairs of her husband, and a finding as to the legality o otherwise of the 1948 partnership could hardly be based on her evidence. She did not even remember as to when she married the late M. C. Parekh. We would not, therefore, attach any importance to any admission elicited from her on the question of the evasion of income-tax.

56. Coming now to the last piece of evidence relied upon by Messrs Brohi and Sbarifuddin Pirzada, there is indeed a statement appearing in paragraph 3 of the order made by a Division Bench in Letters Patent Appeal No. 54 of 1965 on 5-1-66 to the effect that in counsel for the parties have admitted that the three women whose names are also mentioned in the partnership deed were not real partners but were included in it for extraneous considerations ;" but the question is whether the respondents before us or the counsel now representing them are bound by such an admission. The respondents were represented by the late Mr. Z. H. Lari; and at this point of time it is not possible to ascertain what persuaded him to make an admission contrary to the stand otherwise adopted on behalf of Mst. Bismillah Begum and Mst. Samad Begum, We also find that the phrase "extraneous considerations" was not explained any further, and it cannot be said that it referred only to the evasion of income-tax and to nothing else. Finally, we see no warrant in law for the proposition that the counsel now appearing for the respondents are bound by this admission, made during the course of arguments in a miscellaneous appeal relating) to the interim appointment of a receiver of the business during the pendency of the suit.

57. It has also to be observed that there is nothing on the record to show that during the lifetime of Rizvi and Parekh, there was indeed any attempt at evasion of income-tax by the adoption of the device so vehemently emphasized by the learned counsel for the appellants. On the contrary, , it appears that only Parekh and Rizvi had registered themselves as partners of the firm with the income-tax authorities, thus negativing the allegation that there was any design by all to evade income-tax. This position is confirmed by the accounts of the Erose Theatre for the year ending 31st of March 1952 (Exh. 74/1 on page 876), which show equal distribution of profits between Parekh and Rizvi, excluding the females. Whatever the other effect of this document, it at least suffices to repel the contention that the partnership was a deliberate device to evade income-tax by including the female relations in the Firm.

58. Mr. Sharifuddin Firzada referred us to Ismail v. Shorat Banoo P L D 1960 Kar. 852 and also to the judgment of this Court in the same case reported as 1968 S C M R 574, in support of his submission that a partnership created for the purpose of avoiding heavy incidence of income-tax was not a real partnership. There can hardly b.- any dispute with this proposition of law, but it has no application to the facts before us, as the allegation made by the appellants has not been proved on the record.

59. The legality of the partnership deed has also been attacked on the ground that clause (10) thereof was opposed to the Mualim Law of inheritance inasmuch as it provided that in the event of the death of Mst. Bismillah Begum or Mst. Samad Begum their shares of assets and liabilities of the Firm would go to all the children of Rizvi, even though they were not the direct heirs of these ladies. Relying on the authority of Purna Seshi Bhallacharji v. Kalidhan Rai Chowdhuri 38 I A 112 Madan Lal v. Labbu Ram A I R 1922 Lah. 421 and Amtul Habib v. Musarrat Parveen P L D 1974 S C 185 it is contended that the patties to the partnership deed bad no power to change the taw of succession which would otherwise be applicable to the event of the death of the two ladies in question.

60. It is conceded that this point was not raised in the written statement, or at any stage during the trial and appeal proceedings in the High Court; nor has it been raised in the grounds of appeal in this Court. It is, however, submitted that it being a question of law ought to be allowed to be raised even at this late stage. As the Contention does indeed raise a pure question of law, we have allowed it to be argued on merits.

61. Mr. Sharifuddin Pirzada is right in submitting that the parties to the partnership deed of 1948 had no power to change the law of succession which was to apply in the event of the death of Mst. Bismillah Begum and Mst. Samad Begum. As observed by the Judicial Committee in the case of Purna Seshi Bhallacharji following their earlier decisions in the Tagore case (1872) L R Ind. Ap. Supp. 41 as well as in Soorleemoney Dossee v. Denabundoo Mullick (1856) 6 Noo. Ind. App. 555 "inheritance does not depend upon the will of the individual owners; transfer does. Inheritance is a rule laid down (or in the case of custom recognised) by the State, not merely for the benefit of individuals, but for reasons of public policy. A private individual who attempts by gift or will to make property inheritable otherwise than the law directs, is assuaging to legislate, and in these circumstances the gift must fail and the inheritance take place as the law directs." Their Lordships added that "amman cannot create new form of estate or alter the line of succession allowed by law, for the purpose of carrying out his own wishes of views of policy." This view was followed in the other two cases mentioned by Mr. Pirzada. It is clear, therefore, that if indeed clause (10) of the partnership deed constitutes a departure from the personal law of inheritance applicable to the two ladies in question, then to that extent the clause would have to be struck down as being against public policy. However, this cannot invalidate the entire partnership deed or the existence of the partnership firm created by this deed. At best, the shares held by the two ladies would devolve under the Muslim Law, and not in accordance with clause (l0) of the partnership deed.

62. On this view of the matter, it is not necessary to say anything more on the subject, except to point out that it was stated at the Bar that Mst. Samad Begum, who died in 1950, was a real sister of Rizvi, and had no other heirs except Rizvi. It is, therefore, possible to regard the clause in question in the partnership deed as being in the nature of his rights by Rizvi in favour of his own children, a course permissible under the Muslim Law. Similarly, in regard to Mst. Bismillah Begum, who died in 1971, it was stated that she was the step-mother of Rizvi, and did not have any personal heirs of her own. This statement, made on behalf of the respondents, was not controverted by the learned counsel appearing for the appellants. Such being the case, succession to the share of Mst. Bismillah Begum :would be governed by paragraphs 80 and 82 of Mohammedan Law by Mulls? and the provision embodied in the tenth clause of the partnership deed could be regarded as either an arrangement of succession by contract, or a bequest by Mst. Bismillah Begum in favour of the children of Rizvi. In either case the arrangement would appear to be permissible under the Hanafi Law as applicable to Mst. Bismillah Begum. While this appeal to be the position in regard to the succession to the shares held by both these ladies, it is not necessary for us to decide the point finally as it has no bearing on the disposal of the appeal under consideration.

63. Having found that the partnership deed of 1948 stands duly proved on the record, and that it did not suffer from any legal infirmity, we now proceed to consider whether it was in fact acted upon or not and whether the three ladies were mere benamis for their respective male relations. There is a slight divergence or contradiction between the submissions made in this behalf by Messrs A. K. Brobi and Sharifuddin Pirzada, both appearing for the appellants constituting the Ishaq family. While they are united in contending that the three ladies were benamis, Mr. Brobi went to the extent of asserting that in fact the 1948 partnership was never acted upon, and the firm was not originally constituted as a result of this partnership. However, the position taken by Mr. Sharifuddin Piraada appears to be that the original firm was constituted between Parekh and Rizvi under the 1948 partnership deed.

64. We have already stated that both the Benches of the High Court have recorded a concurrent finding that the 1948 partnership was in fact acted upon, and that Mst. Bismillah Begum and Mst. Samad Begum were not benamis for Rizvi, but Mst. Qamar Bano has to be held to be a benarni for her husband Parekh as that was the stand taken by her in the plaint as well as at the trial. In coming to these findings the learned Judges in the High Court have placed reliance on the following facts and circumstances :-

(a) The certificate of registration of the firm issued by the Registrar of Firms on the 14th of February 1949, showing that the firm consisted of five partners, namely, Rizvi and Parekh and the three ladies;

(b) An admission by the late Malik Mohammad Ishaq in the course of cross-examination that Rizvi bad told him that his step-mother Mst. Bismillah had a claim of Rs. 40,000 against Riavi, thus showing that she was a lady- of means in her own right, and could have contributed her share in the partnership firm ;

(c) That event though the books and accounts of the firm were in the possession of the appellants, they did not rely upon them to show that Mst. Samad Begum's share was not contributed by her ? brother Rizvi

65. .

(d) That as Rizvi had several children of his own, it would not be natural for him to show his sister and step-mother as benami partners in his share of the firm;,

(e) That the documents relied upon by the appellants, namely, certain applications to the district authorities for the completion of the cinema and the grant of a licence for its running, as well as the accounts showing only Rizvi and Parekh as the partners. were not dependable documents, and were in any case not conclusive on the point in question ; and

(f) That the exclusion of the ladies from the subsequent partnerships entered into by Parekh and Rizvi was consistent with the arrangements ? envisaged in the partnership deed outhorizing the male partners to manage the affairs of the firm and to enter into fiscal arrangements with third parties for running the business of the firm.

66. It will be seen that the questions whether the partnership of 1948 was acted upon or not, and whether the three ladies were benami partners, are pre-eminently questions of fact; and, following the practice of the Privy Council, as set out in Allen v. Qubec Warehouse Co. (1887) 12 A C 101, Bibhabati v. Ramendra Narayan A I R 1947 P C 19 and Federation of Pakistan v. All Ihsan P L D 1967 S C 249 this Court would not normally go behind a concurrent finding of fact recorded by the Courts below, unless it can he shown that the finding is on the face of it against the evidence or so patently improbable, or perverse that to I accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any misapplication of a principle relating to appreciation if evidence, or, finally, if the finding could be demonstrated to be physically impossible. This being the practice and the rule of the Court in civil appeals, the burden lies rather heavily on the appellants to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us.

67. The main contentions advanced on behalf of the appellants are that the plaintiffs themselves stated in the plaint that the ladies were benamis for Parekh and Rizvi ; that in the successive partnership deeds executed by Parekh and Rizvi no mention was at all made of the 1948 partnership ; that in the accounts of the prose Theatre for the year ending 31st of March 1952 (Exh. 74/ 1) the profits were equally divided between Parekh and Rizvi excluding the female; that in the litigation commenced by Hussain Malik in 1954 the ladies did not figure anywhere; that no claim to the assets and profits of the firm was ever made by the heirs of Parekh after his death; that in the suit filed by Mst. Bismillah Begum, Rizvi had denied her status as a partner in the firm; and that in the written arguments submitted by the late Mr. Z. H. Lari, counsel for the respondents, in the High Court the benami status of the ladies was conceded.

68. A perusal of the two judgment] delivered in the High Court shows that all these arguments were examined at length by the learned trial Judge as well as by the learned Judges, who heard and decided the Letters Patent Appeal filed by the present appellants. We have already listed the facts and circumstances on the basis of which the learned Judges came to the conclusion that the 1948 partnership was acted upon and the ladies were not benami partners for their respective male relations. Our own examination of the contentions advanced by the learned counsel for the appellants also inclines us to the same conclusion.

69. It will be seen that the partnerships of 1949 and 1952 in favour of the Rehmatullahs and the Dasturs related merely to the running business and not the building and the immovable property of the firm. If indeed there had not been any previous partnership of 1948, or if it had not been acted upon, then these two partnership deeds could not have stipulated that the building of the cinema shall remain the property of Parekh and Rizvi. Even the accounts produced and relied upon by the appellants for the year ending 31st of March 1952 clearly show that at least Parekh and Rizvi were the partners in a firm which existed independently of the partnerships of 1949 and 195? Again, the learned Judges in the High Court have rightly taken note of the admission made by the late Mohammad Ishaq in cross-examination that Rizvi had told him about the existence o1 the 1948 partnership. Even Hoshana Dastur had to admit at the trig: that the 1948 partnership firm bad come into existence and was running the business of the Erose Theatre.

70. Another aspect of the matter is that in a purely legal sense, under section 4 of the Partnership Act, partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any .of them acting for all. Under section 6 of the Act, in determining whether a group of persons is or is not a firm, or whether a person is or is not a partner in a firm, regard shall be had to the real relation between the parties as shown by all relevant facts taken together. Now, in the present case it is common ground between the parties that when the Rehmatullahs, Dasturs and the Ishaqs came into the picture Parekh and Rizvi were already running the Erose cinema and the building thereof had been constructed or completed. This fact alone would suffice to show that the 1948 partnership had been acted upon and the firm created thereunder was carrying on business as a partnership.

71. The appellants while denying the 1948 partnership have not suggested under what other arrangements Parekh and Rizvi had come together to construct the building of the Erose cinema and to start operating the business under the name and style of the firm Erose Theatre. In these circumstances, 9t was indeed appropriate for Mr. Sharifuddin Piraada to concede that the 1948 partnership had been acted upon at least in so far as the male partners were concerned. No objection can, therefore, be taken to the conclusion recorded by the Coarse below that the 1948 partnership had indeed been acted upon.

72. The only question now is with regard to the status of the female partners. On this point, there is, in the first place, the certificate on registration issued by the Registrar of Firms in 1949, which shows the three ladies as partners. A presumption of correctness attaches to this document sander section 68 of the Partnership Act, and the onus lies on the appellants to displace that presumption. The fact that the ladies do not figure in the subsequent partnerships is, as rightly observed by the High Court, easily explained by reference to the seventh clause of the partnership deed under which Parekh and Rizvi were authorised to make appropriate arrangement for the financing of the business. Similarly, the High Court seems to us to be right in saying that the accounts statement for the year ending 31-3-52, excluding the ladies from the profits of the business, cannot be regarded as conclusive on the point we are discussing here for the reason that the accounts were prepared in 1956 and only one of the Dasturs identified Rizvi's signatures thereon. All the surrounding circumstances in which these accounts were prepared and the ladies were excluded from sharing in the profits, although figuring in the certificate of registration as partners of the firm, therefore, remained unexplained on the record.

73. Nothing was said at the Bar to show that the High Court was in error in taking the view that Mst. Bismillah Begum, the step-mother of Rizvi, was possessed of private means of her own, thus showing that she was in a position to contribute towards her share in the partnership. We find that in a counter affidavit dated 21-9-1960 filed by Rizvi as defendant No. 4 in Mst. Bismillah Begum's Suit No. 159 of 1960 he admitted that he had received Rs. 25,000 from Mrs. Bismillah Begum, and that there was an account between him and her and he used to pay her a monthly amount, and further told her that as the cinema business was new and there were huge liabilities, he could not pay her more. We think that these admissions made by Rizvi strongly support the conclusion reached by the High Court that v 1st. Bismillah Begum was not a benami partner in the 1948 firm.

74. As regards Mst. Samad Begum, it is correct that no positive evidence was produced to show that she had invested any capital in the partnership firm, but the burden lay on the present appellants to disprove the presumption arising from the certificate of registration, and they failed to discharge this burden. As already stated, they did not produce any account books, which were all along in their possession, to show that the capital for Mst. Samad Begum was provided by Rizvi. It is interesting to find that in the deed of assignment executed by Rizvi on 29-12-1962 (Exh. 79/8) Rizvi specifically undertook to settle all the claims of Mst. Bismillah Begum and the heirs of Mst. Samad Begum out of the amount received by him from Mst. Parveen Begum wife of Malik Muhammad Ishaq. This undertaking by Rizvi, even though accompanied by an assertion that the 1948 partnership was not acted upon, does go to show that these ladies were partners of the firm which came into existence in 1948. The High Court has also very appropriately observed that if indeed Rizvi wanted any benami partner then he would not have chosen hiss sister or step-mother as he had several children of his own who could have been shown as benami.

75. The contention that the admission in the plaint to the effect that the three ladies were benami for their respective male relations should operate against Mst. Samad Begum and Mst. Bismillah Begun is misconceived for the reason that these two ladies were not co-plaintiffs with Mst. Qamar Bano. On the contrary Mst. Bismillah Begum took the trouble of filing a written statement and denying the allegation that she was a benami partner. Mr. Brohi rightly contended, on the authority of Khairul Nisa v. Muhammad Ishaque PLD1972SC25 that the written statement filed by Mst. Bismillah Begum could not be treated as substantive evidence on her behalf, as she did not appear as a witness at the trial 1 but the finding of the High Court regarding her status is not based only on her denial in the written statement. The High Court has. on the other hand, taken note of all the surrounding circumstances before coming to its conclusion regarding her status. As no relief was claimed by the plaintiffs against her, she was not obliged to take any other steps in the suit.

76. In the light of all this evidence and the facts and circumstances emerging therefrom, we are satisfied that no justification is made out for our interference with the concurrent finding recorded by the High Court to the effect that the 1948 partnership had been fully acted upon, and that Mst. Bismillah Begum and Mst. Samad Begum were not benami for Rizvi.

77. The next question that falls for consideration is regarding the nature and validity of the successive partnership deeds executed by Parekh and Riavi jointly, or by Rizvi alone alter the death of Parekh, with third parties, including the appellants. It will be recalled that there are three such partner. ships, namely, the one dated 6-5-1949 with Haji Rehmatullah and others ; the second dated 6-10-1952 with the Dasturs ; and the third dated 6-6-19.39 with the Dasturs and the Ishaq family. As the 1949 partnership was only for a period of three years for the purpose of raising finances for the business, and the parties to that partnership, namely, Haji Rehmatullah and his two associates are not before us in the present proceedings, it is not necessary to examine the effect of this partnership deed. However, the other two partnership deed require a detailed consideration.

78. As regards the partnership deed dated 6-10.1952, entered into between Rizvi and Parekh on the one hand and tae three Dasturs on the other for a fixed period of eight years commencing retrospectively from the 1st of April 1952, the learned Judges of the High Court have held that it was in the nature of a sub-partnership, with the necessary consequence that the Dasturs did not become partners in the -firm and on the expiry of the stipulated period the firm reverted to its original position under the 1948 partnership, and the Dasturs were entitles only to a share of three annas in the rupee as mere creditor in the firm in accordance with clause (14) of their partnership deed. The learned counsel appearing for the Dasturs contends that these findings of the High Court are incorrect, as this partnership deed did not deal with the spare of an, partner or partners of the firm but with the entire business thereof, thus showing clearly that it was not in the nature of a sub-partnership, but instead a re-constitution of the old firm. He submits that under clause (7) of the 1948 partnership deed it was open to Parekh and Rizvi to make any arrangements they thought necessary for running the business of the firm, and these arrangements could include a reduction in the term of the partnership from 30 years to 8 years, and also exclusion of the ladies altogether from the partnership. He further submits that the High Court was also in error in thinking that this partnership or the Dasturs had nothing to do with the immovable property of the firm, as clause (10) of this partnership deed clearly makes the Dasturs responsible for paying the balance of the purchase price of the building. It appears to the learned counsel that in these circumstances the 1946 firm was re-constituted with the Dasturs as the main partners along with Parekh arid Rizvi to the entire exclusion of the three ladies, and accordingly there is no question of the Dasturs being treated merely as creditors of the firm with no right or interest in its assets.

79. In order to resolve the issue of the nature of the 1952 partnership one has to bear in mind the-essential principle underlying the concept of partnership business. Section 5 of the Partnership Act makes it clear that "the relation of partnership arises from contract and not from status ;" and section 4 of the same Act, as already stated in one of the preceding paragraphs, defines partnership as being the relation between persons who have agreed to share the profits of a business carried by all or any of them acting for all. Section 31 of the Act clearly enjoins that "subject to contract between the partners and to the provisions of section 30 no person shall be introduced as a partner into a firm without the consent of all existing partners. Section 30 deals with the position of minors, and is not relevant here.

80. The reason for the rule embodied in section 31 of the Act has been appropriately stated by Lindley as follows :

81. "When persons enter into a contract of partnership, their intention ordinarily is that a partnership shall exist between themselves and themselves alone. The mutual confidence reposed by each in the other is one of the main elements in the contract, and it is obvious that persons may be willing enough to trust each other and yet be unwilling to place the same trust is anyone else. Hence, it is one of the fundamental principles of partnership law, expressly recognised by the Partnership Act, 1890, that no person may be introduced as a partner without the consent of all existing partners." (Lindley on Partnership, p. 435, 10th Edition).

82. Now, we have already upheld the finding of the High Court that the, partnership as originally constituted in 1948 comprised not only Parekh an Rizvi, bat also at least two of the ladies, namely, Mst. Bismillah Begum an Mst. Samad Begum, even though Mst. Qamar Bano may be excluded on the basis of her own averment that she was a mere benami for her husband Parekh. Such being the case, Parekh and Rizvi were not competent under the law to induct new partners into the firm, without the consent of at least! these two ladies. It is an admitted position that these ladies ? never consented to any such induction. In the circumstances, there cannot be any question of the re-constitution of the main firm, and the only position which can be assigned to the 1952 partnership is that of a sub-partnership, which has been defined as a partnership within a partnership. Such an arrangement presupposes the existence of a partnership to which it becomes subordinate, and it is generally in the nature of an agreement to share profits between the parties thereto, but the sub-partners do not become partners in the main firm, they have no demand against it nor can they demand accounts from the main firm.

83. The question is whether this legal position stands modified in any manner on account of the considerations mentioned by the learned counsel for the Dastur family.

84. We may, in the first instance, consider the effect of clause (7) of the 1948 partnership deed which provides that Rizvi and Parekh would have the right to raise a loan with or without security for the better and efficient management of the partnership, and for that purpose to enter into any other arrangement with any party or parties for the benefit of the partnership. It will be seen that this clause gives power to Rizvi and Parekh to act in the interest of the partnership firm ? and not to vary the constitution of the firm or to abridge the period of partnership envisaged ? by the five signatories, namely, thirty years from the date of its commencement. It follows, therefore, that acting under this clause Rizvi and Parekh had no power to take any view partners into the parent firm so as to change its constitution ; all that they could do was to enter into financial arrangements for the benefit of, and within the framework of, the parent partnership firm. If, therefore, the 1942 partnership had the effect of changing the constitution of the parent firm then it clearly went beyond the authority given to Rizvi and Parekh by clause (7) aforesaid and the only way to look at this document is to treat it as a sub-partnership entered into between Rizvi and Parekh alone.

85. The learned counsel for the Dasturs is obviously on weak ground when he contends that. the 1952 partnership also extended to the immovable property of the Erose Theatre. The very opening clause of this agreement makes it clear that it way for the purpose of running the cinema. It is true that under clause (10) the Dasturs were made liable so contribute towards the purchase price of the building, but by clause (14) it was agreed and declared that in the event of the dissolution of the partnership the Dasturs would be entitled only to claim a share of Annas three in the rupee in the valuation of the assets but will not la,, any clam to the assets themselves.

86. It follows from what we have said in the preceding paragraphs that the High Court was right in regarding the 1952 partnership as being in the nature of a sub-partnership which did not affect the parent firm. Even if the alternative view expressed by the learned Single Judge regarding the re-constitution of the firm for the limited period of eight years is endorsed, it would only mean that after the expiry of this period the firm reverted to its original shape, including the lady partners. The Dasturs could, therefore, be treated only as creditors of the firm and not as partners thereof.

87. It now remains to consider the legal discussion, of the 1959 partnership relied upon by both the Ishaqs as well as the Dasturs for the purpose of establishing their interest in the Erose Theatre. However, before doing so we have, of necessity, to examine the effect of the death o: 1st. Samad Begum in 1950 and of Parekh in 1953.

88. ??????????? There has been considerable discussion at the Bar on the question whether a two-men partnership survives after the death of one of the partners, and whether in such a case the heirs of the deceased partner can succeed as member of the partnership with the surviving partner on the terms and condition as were applicable to the deceased. It is obvious that the discussion proceeded on the assumption that the 1948 partner was only between Rizvi and Parekh, excluding the three ladies. There is undoubtedly a conflict of judicial authority on this question, but this discussion has become unnecessary on the present case owing to the fact that we have already reached the conclusion that this was not a two-man partner- ship as at least Mst. Bismillah Begum and Mst. Samad Begum were also partners besides Parekh and Rizvi ;and there is in addition the further fact that clause (8) of the partnership deed clearly provides, besides stipulating the entitlement of the legal heirs of a deceased partner, that the firm shall continue in the event of the death of one of the partners. This provision is consistent with section 42 of the Partnership Act, which enjoins that a firm shall stand dissolved on the death of a partner but this result can be avoided by an agreement to the contrary between the contracting partners. Such a contrary agreement is clearly contained in the said clause.

89. The next question which requires examination is regarding the effect of the aforesaid clause (8) of the partnership deed as to the right and interest which would devolve on the heirs of the deceased partners, namely, Parekh and Mst. Samad Begum. There is no dispute as to the identity of these heirs in the case of Parekh ; whereas in regard to Mst. Samad Begum, we have already held, in an earlier part of the judgment, that under clause (10) of the partnership deed Mst. Samad Begum's share was to devolve on the children of her brother Rizvi . It will be recalled that we have expressed the view that this clause was not inconsistent with the provision of the Muslim Law, as Rizvi was the only heir of his sister arid could forego his rights in favour of his own children.

90. Clause (8) of the 1948 partnership in the following terms :-

91. "If during the pendency of the partnership any party dies his share of assets and liabilities of the partnership will go to the heirs aria legal representatives of the said deceased partner ; and if the heirs and legal representatives are not willing to continue, the remaining partner shall make up and clear the account of the deceased partner and at such time the valuation of the property of the partnership will be taken into account according to the book value of the same, and the value of the whole goodwill will be taken at Rs.1000 fixed, and the same will be paid to them according to their shares after taking a due discharge from them, and the firm shall continue"

92. The High Court has held that this clause conferred a right on the heirs of a deceased partner to become partners of the firm, and this position was conceded before the Letters Patent Bench by Mr. Sharifuddin Piraada. However, Mr. Brohi took pains to argue to the contrary. He submitted that, w the fist place. the clause in question does not stipulate in specific terms that the heirs and legal representatives of a deceased partner shall become partners in the firm ; and that is any case the clause had to be read in the light of the statutory provisions contained in section 37 of the Partnership Act, which only make the heirs of a deceased partner entitled to tie share of the profits as may he attributable to the deceased. The learned counsel emphasized the concept that partnership was a matter of contract and not of status.

93. Section 37, which is directly relevant to the question of the entitlement (if the legal representatives of a deceased partner, may be reproduced sere with advantage:

94. "37. Where any member of a firm has died or otherwise ceased to be a partner, and the surviving or continuing partners carry on the business of the firm with the property of the firm without any final settlement of accounts as between them arid the outgoing partner or his estate, then, in the absence of a contract to the contrary, the outgoing partner, or his estate, is entitled at the option of himself or his representatives to such share of the profits made since he ceased to be a partner as may be attributable to the use of his share of the property of the firm or to interest at the rate of six percent. per annum on the amount of his share in the property of the firm."

95. It will be seen that the provisions of section 37 came into play only in the absence of a contract to the contrary. Now, in the instant case, we have a specific contract to the contrary in clause (8) of the partnership which, read as a whole, leads to the only conclusion drawn by the Courts below, namely, that the heirs and legal representatives of a deceased partner were to become partners of the firm, and the accounts of the deceased partner shall be made up only a these heirs were not willing to continue as partners. We can readily agree with Mr. Brohi that the clause could have been much better worded, but the clumsiness of the draughtsman has not succeeded in concealing the true meaning of the contracting parties. It follows, therefore, brat on the death of Mst. Samad Begum in 1950 and of Parekh in 1953 their heirs and legal representatives became partners in the firm subject to the restrictions contained in section 30 of the Act in respect of those who were minors. and could be admitted only to the benefits of the partnership but not to its membership.

96. Reverting now to the 1959 partnership, we find that on this date the firm consisted not only of Rizvi and Mst. Bismillah Begun; but also of the heirs and legal representatives of Mst. Samad Begum and P4rekh. Among tire heirs of Parekh at least his two widows, namely, Mat. Qamar Bano and Mst. Amine Bai and one of his sons, namely, Ahmed Parekh were adults. Some of the children of Rizvi as heirs of Ust. Sanrad Begum might also have attained majority on the day this partnership deed was drawn up, but a clear indication in this behalf does , of appear to be readily available on the record. In order, therefore, drat the Dasturs and the Ishaqs might be admitted as partners of the parent firm, it was necessary that the consent of all these persons, besides Mst. Bismillah Begum, should have been obtained in terms of subsection (1) of section 31 of the: Act, but this was not done. From among the original partners only Rizvi became a party to this new partnership deed. It is true that the Dasturs also subscribed to it, but we have already discussed and examined their position in the parent firm, and have found that they were not partners therein. Their consent, therefore, to their own inclusion or that of the members of the Ishaq family was irrelevant in so far as the parent firm was concerned. As a result, we cannot but endorse the finding of the High Court that the 1959 partnership could at best be regarded, like the 1952 partnership, as being in the nature of a sub-partnership between Rizvi, Dasturs and the Isbaqs. having no demands on the parent firm. It is completely ineffective as against the original firm and it cannot amount to a re-constitution thereof. No rights, therefore, accrued to the Ishaqs or the Dasturs on the basis of this partnership deed, to meddle with the affairs of the Erose Theatre.

97. In both the judgments delivered in the High Court, there is a fairly lengthy discussion as to whether Ishaq or any other members of his family had become partners in the parent firm in 1953 by virtue of oral consent given by the heirs of Parekh, but fortunately the learned counsel appearing for the appellants did not dwell upon this aspect of the case during their submissions before us. They also mercifully did not refer to a fairly large volume of correspondence which had passed between the District authorities of Karachi on the one hand, and Rizvi, Dasturs and Malik Ishaq on the other, as to the licensing of the cinema business. All these documents were irrelevant in so far as the legal constitution or re-constitution of the parent firm was concerned, for the simple reason that such a process needed the consent of all the partners of the firm as it stood on the date of the execution of the 1959 partnership, namely, the 6th of June 1959. In this partnership deed there was no mention at all of any earlier oral partnership or consent by Rizvi or the other partners of the firm.

98. It was next contended on behalf of the appellants that even if the 1948 partnership was a genuine affair, had been acted upon, and did not suffer from any illegality at the time of its inception, it became an illegal association of persons in 1963 on the death of Rizvi as be left behind a large number of children, thus swelling the number of partners to 26 in contravention of the statutory bar contained in subsection (z) of section 4 of the Companies Act, which limits the maximum number of member of non-banking partnerships to 20 persons. It was submitted that in these circumstances no relief could be afforded to the plaintiffs by way of a declaration of their membership of a legal partnership, entitled to manage the business of the firm, as the firm had ceased to be a legal entity.

99. It may be stated that it is an admitted position that out of the heirs and legal representatives left behind by Rizvi ten were minors on the date of the institution of the suit. During the pendency of the Letters Patent Appeal in the High Court the appellants had made applications on the 23rd of August 1972 and the 24th of January 1973 pointing out that nine out of ten minors bad attained majority, and praying that the memorandum of appeal may be permitted to be amended accordingly, but both these applications were rejected by the learned Judges, on the ground that the suit ought to be decided with reference to the facts as prevailing on the date of the institution.

100. Section 4 of the Companies Act reads as under :

101. "4.-(1) No Company, association or partnership consisting of more than ten persons shall be formed for the purpose of carrying on the business of banking unless it is registered as a Company under this Act, or is formed in pursuance of an Act of Parliament of the United Kingdom or some other Indian Law or of Royal Charter or Letters Patent.

(2) No Company, association or partnership consisting of more than twenty persons shall be formed for the purpose of carrying on any other business that has for its object the acquisition of gain by the Company, association or partnership, or by the individual members thereof, unless it is registered as a Company under this Act, or is formed in pursuance of an Act of Parliament of the United Kingdom or some other Indian law or of Royal Charter, or Letters Patent.

(3) This section shall not apply to a joint family carrying on joint family trade or business and where two or more such joint families form a partnership, in computing the number of persons for the purposes of this section, minor members of such families shall be excluded.

(4) Every member of a Company, association or partnership carrying on business in contravention of this section shall be personally liable for all liabilities incurred in such business.

(5) Any person who is a member of a Company, association or partnership formed in contravention of this section shall be punishable with fine not exceeding one thousand rupees."

102. It would be seen that the statutory prohibition contained in subsection (2) of the aforesaid section relates in terms to the forming of a partnership consisting of more than twenty persons, and does not specifically deal with a situation where the number of partners exceeds the limit of twenty by w operation of law or the happening of a certain event consequent to the formation of the original partnership. However, we were referred to Nibaran Chandra Shaha v. Lalit Mohan firindaban Shaha A I R 1939 Cal. 187 for the proposition that this section governs not only the first formation of the Company, association or partnership but also rules its continuance. We think it is not necessary for us to decide. this point finally, as the matter can be disposed of on another ground, namely, the incapacity of a minor to become a partner in a firm. Assuming, therefore, that the prohibition continues to apply during the entire existence of the partnership, the pertinent question in the present case is whether the ten minor children of Rizvi could be regarded as being members of the partnership within the mischief of the subsection concerned. It is clear that the provisions of section 4 of the Companies Act have to be read along with those of section 30 of the Partnership Act for the purpose of determining whether the partnership has come to consist of more than twenty persons. The contention that even a minor is a person is entirely miss conceived and irrelevant, for the prohibition is against a partnership consisting of more than twenty persons, and if a minor cannot be a partner, under the relevant provisions of the Partnership Act then his being a person in the physical or juridical sense is immaterial, as he would then not count as a partner in the questioned partnership. The observations of the Privy Council in Senaji Kapurchand v. Pannaji Devichand A I R 1930 P C 300 that the word 'person' in section 4 of the Companies Act denotes individuals and does not include bodies of individuals forming unregistered partnerships has no relevance in the present context, for if a minor cannot be a partner, then he cannot just be counted for the purpose of determining the number of persons who comprise the partnership.

103. A reference has already been made to section 30 of the Partnership Act which imposes certain disabilities on membership of minors in partnership firms. Subsection (1) of this section enjoins that "a person who is a minor according to the law to which he is subject may not be a partner in a firm, but with the consent of all the partners for the time being he may be admitted to the benefits of the partnership." According to the report of the Special Committee which drafted the Partnership Act, this provision was included in view of section 11 of the Contract Act and the decision of the Privy Council in Mohri Bid's case 1903 L R 114 as to the general incapacity of an infant to enter into a contract. It follows from this provision that a minor cannot become a partner in a firm, and that bang so, he cannot be counted while determining the member of persons who comprise the partnership. On this view of they matter, it will be seen that up to the date of the institution of the suit the`' partnership consisted only of sixteen partners, with ten minors entitled to the benefits of the partnership but not to its membership. There was thus no conflict with the prohibition embodied in section 4 of the Companies Act.

104. Another interesting feature appears to be that even if it be assumed that the minor children of Rizvi would automatically be admitted as members of the partnership on attaining majority, then this process would, by law, come to a halt once the number of partners reaches twenty, as automatic admission of the next minor attaining majority would then be hit by the provisions of subsection (2) of section 4 of the Companies Act. Learned counsel for the appellants referred us to Surajmall Nagoramull v. Triton Omsiramce Co. Ltd. A. I R 1925 P C 83. in support of the proposition that no Court can enforce as valid that which competent enactments have declared shall not .he valid. This proposition has hardly any relevance to the question we ate considering here.

105. The true position which, therefore, emerges is that while undoubtedly the word `person', as used in subsection (2) of section 4 of the Companies Act refers to individuals, yet the prohibition is in regard to the number of persons who are partners of a firm, and accordingly only those persons are to be counted who are not under any legal disability from becoming partners. As a minor cannot become a partner in view of the provisions contained in subsection (1) of section 30 of the Partnership Act, he cannot be counted as a person for the purpose of determining whether the number of partners exceeds she statutory limit of twenty. To put it differently, the position simply is that a minor not being a partner but only entitled to the benefits of a partnership does not count at all for the purposes of subsection (2) of section 4 of the Companies Act.

106. This interpretation is also in consonance with the express stipulation contained in subsection (3) of section 4 of the Companies Act, which directs that while counting the number of persons comprising a partnership of two or more joint families minor members of such families shall be excluded. There is no reason why minors should be counted in other partnerships when legally they cannot become members thereof.

107. On this view of the matter, the member of persons in the present case was only sixteen at the time the suit was instituted, as ten of the children of Rizvi were still minors on that date. The partnership in question did not, therefore; fall within the mischief of the aforesaid subsection.

108. The last point raised on behalf of the appellants is that the High Court has fallen in error in thinking that the various assignments in favour of the Ishaq family did not confer of the assignees any rights as partners or co-owners in the immovable property of the firm; as in fact they were put in Possession not only of the business but also of the immovable property and assets of the firm by the assignors. It may be stated that the argument relates to four assignments, vie. :

(a) Assignment (Exh. 28) dated the 6th of May 1959 by Mst. Qamar Bano in favour of the late Malik Muhammad Ishaq in regard to her one-half Anna share as an heir of her husband Parekh and also the share of her minor children ;

(b) Assignment by means of registered deed Exh. 79/9 dated the 23 rd of September 1961 by Ahmed Parekh, major son of Casim Parekh. regarding his share of one Anna and nine Paisa in favour of Malik Muhammad Ishaq ;

(c) Assignment deed (Exh. 29) dated 10-10-1959 by Mst. Amina Bai in favour of Malik Muhammad Ishaq regarding her one-half Anna share ; and

(d) Assignment deed (EXh. 79/8) dated 29-12-19(32 by Rizvi regarding his 8 Annas share in favour of Mst. Parveen Begum wife of Malik Muhammad Ishaq.

109. It has already been stated that in so far as the assignment regarding the share of the minor children of Parekh is concerned, it has been set aside by this Court by its order dated 8-4-1963, and is, therefore, no longer open for re-consideration.

110. As regards the assignment of Mst. Qamar Bano's share, the same has. been upheld by the learned Judges of the Division Bench on account of the fact that Mst. Qamar Bano's civil petition for special leave to appeal directed against the judgment of the High Court was dismissed by the Supreme Court on 1-2-1972, with the result, this assignment in favour of the late Malik Muhammad Ishaq holds good and its effect needs to be considered.

111. While the learned trial Judge has set aside the assignment made by Ahmed Parekh, the learned Judges of the Division Bench have reversed this finding on the ground that Ahmed Parekh had never agitated against the tame, and it could not be set aside fourteen years after it had been made. As a result, this assignment also stands.

112. The assignment made by Mst. Amina Bai on 10-10-1959 in favour of Malik Muhammad Ishaq is no longer in the field for the reason that his suit for specific performance instituted against Mst. Amina Bai had abated on his death. However, the last assignment made by Rizvi in favour of Mst. Parveen Begum has been held to be operative in regard to his six Annas share in the partnership firm, although he had purported to convey an eight Annas share to the assignee.

113. The High Court has taken the view that the matter is governed entirely by section 29 of the Partnership Act, with the result that the assignees. would be entitled only to receive the share of profits of the transferring partners but not be entitled to interfere in the conduct of the business, or even to be in possession of the firm's assets. It is contended by Mr. Sharifuddin Pirzada that in arriving at this conclusion the High Court has overlooked the fact that the assignees had become co-owners of the running business of the firm as well as of its immovable property, and that they had been put in possession thereof, with the result that the matter was not at all governed by section 29 of the Partnership Act, and the assignees could be dispossessed only through a suit for partition. The learned counsel further contends that in fact the immovable property of the firm belonged only to Parekh and Rizvi as co-owners, and was different from the business of the partnership firm. In support of this assertion Mr. Pirzada places reliance on the averments contained in clause (15) of the Partnership deed dated the 6th of May 1949 between Parekh and Rizvi and the Rehmatullahs. He next contends that even Mst. Qamar Bano had put the assignee into possession of her share of the property, and, therefore, the matter would be governed by the law of property and real estate and not by that of partnership. Finally, Mr. Pirzada contends that in so far as the share of Rizvi is concerned, his heirs have nothing to do at all with the firm, as he had, shortly before his death in 1963, parted with his entire share in favour of Mst. Parveen Begum wife of Malik Muhammad Ishaq, with the result that she alone became his legal representative and a partner in the parent firm. In support of his submissions, learned counsel has referred us to Bentley v. Pates 54 Rev. Rep. 465, Muhammad Nawaz v. Abdul Latif 1971 S C M R 198 and Yaqoob v. Additional Settlement Commissioner 1973 S C M R 116.

114. After giving our careful consideration to the several contentions advanced on behalf of the appellants, we are of the view that they cannot prevail.

115. The Partnership Act contains a specific provision on the question of the rights of a transferee of a partner's interest, and it is clear that ordinarily all such transfers would be governed by this provision, unless legal justification can be made out for a departure therefrom. Subsection (1) of section 29 enjoins that "a transfer by a partner of his interest in the firm either absolute or by mortgage, or by the creation by him of a charge on such interest, does not entitle the transferee, during the continuance of the firm, to interfere in the conduct of the business, or to require accounts, or to inspect the books of the firm, but entitles the transferee only to receive the share of profits of the transferring partner, and the transferee shall accept the account of profits agreed to by the partners." Subsection (0 of the same section lays down that "if the firm is dissolved or if the transferring partner ceases to be a partner, the transferee is entitled as against the remaining partners, to receive the share of the assets of the firm to which the transferring partner is entitled, and for the purpose of ascertaining that share, to an account as from the date of the dissolution."

116. In an earlier part of this judgment, we have referred to a statement appearing in Lindley's Book on Partnership, outlining the principle on which such a provision is based, namely, that a stranger cannot be foisted upon the partners against their will, and it is for this reason that even where partner transfers his interest in a firm the transferor does not cease to be a partner nor does the transferee become one. The same principle has been re-armed in Sunder Bat v. Ram Lal 1942 N L J 229, Bianco v. Demarco 136 1 C 396 and DhmrnaJt v. Gulab Chand 88 I C 605.

117. The facts in Bentley v. Bates, relied upon by Mr. Sharifuddin Pirzada, are clearly distinguishable, as in that case the Court was dealing with the position of a mortgagee of the share of one tenant in common of a coal. mine, which had been jointly taken on lease by four persons. Their Lordships expressed the view that there was a distinction between a mercantile partnership and a partnership in land, observing that "now nothing is better known at law than that such a partnership has not all the incidents of a common mercantile partnership . . That shows that the partners in this concern do not stand in the same situation as ordinary partners. The nature of their obligations is different ; their implied obligations are different ; though in some cases it is useful to apply the principle of partnership to their proceedings." it seems to us that this case cannot be of any benefit to the appellants, for in the first place, its starting point is a joint lease in the name of four persons ; and secondly, it has never been their case that the partnership joined by them was not an ordinary mercantile partnership governed by the provisions of the Partnership Act, 1932.

118. The contention that the immovable property in this case was in fact the property of Parekh and Rizvi and not of their partnership firm, has obviously no foundation. The terms of the original 1948 partnership deed have already been referred to by us which show that Rizvi and Parekh intended to make the immovable property as the property of the partnership firm, and, therefore, the recital in clause (15) of the partnership deed dated the 6th of May 1949, running counter to the original partnership deed, is of no avail to the appellants, especially when it is remembered that they are not claiming under this deed. The High Court has rightly observed that "there is not a shred of evidence to support the contention that the building of the Erose cinema was owned by the partners of the 1948 partnership firm as co-owners and not as partners." The position in this case seems to be analogous to the one obtaining in Yaqoob v. Additional Settlement Commissioner in which it was held that every partner is, in the absence of any special agreement to the contrary, equally interested in the whole of the partnership assets, and accordingly the leasehold interest of one partner became the asset of the firm. There is no doubt that in the present case the immovable property had become the asset of the partnership firm, and its disposal has to be in accordance with the provisions of the Partnership Act.

119. The contention that Rizvi or Mst. Qamar Bano had delivered possession to the assignees of their share of the immovable property and the assets of the partnership firm has to be rejected for more reasons than one. In the first place, this is a question of fact which was not raised in these terms in the High Court with the result that there is no finding on it, and it will not be appropriate for us to embark on any such factual inquiry at this late stage in the proceedings. In the second place, the partners themselves not being legally in a position to claim any asset of the partnership firm as. exclusively their own until a distribution of the same had taken place, they q were not competent to deliver possession of any such share to the assignees, and even if they bad purported to do so, such an act would not confer any right on the appellants.

120. It follows, therefore, that the legal position of the assignees has been correctly described by the High Court, namely, that the matter is governed entirely by section _29 of the Partnership Act, with the result that the assignees were not entitled to interfere in the conduct of the business or to require accounts or to inspect the books of the firm, but only entitled t receive the shares of the profits of the transferring partner or partners, and C to accept the account of profits agreed to by the partners. Their right and interest in the event of the dissolution of the firm or their transferors ceasing to be partners in the firm, shall be governed by subsection (2) o section 29 of the Act. This incidentally also disposes of Mr. Sharifuddin Pirzada's contention regarding the consequences of the death of Rizvi in 1963 after he had parted with his six Annas share in the firm. The matter would be governed by subsection (2) of section 29 read with section 37 of the Partnership Act, and it is not necessary for us to say anything more in this behalf, except to add that there is no question of Mst. Parveen Begum's becoming an heir or legal representative of Rizvi. She remains an assignee and nothing more.

121. For the foregoing reasons we would uphold the findings recorded by the High Court as to the existence, validity and implementation of the 1948 partnership deed, as well as regarding the status of Ust. Bismillah Begum and Mst. Samad Begum as partners of the parent firm, and the nature of the subsequent partnerships entered into by Parekh and Rizvi with third parties, including the two sets of appellants. We also endorse the view expressed by the learned Judges of the Division Bench in regard to the validity or otherwise of the various assignments relied upon by the Ishaqs, and their effect. As a result, we would dismiss Civil Appeal No. K-9 of 1974 with costs.

122. In regard to Civil Appeal No. K-10 of 1974 filed by the plaintiffs it has to be observed that the learned Judges of the Division Bench were undoubtedly right in giving effect to the order of this Court dated the 1st of February 1972 in Civil Petition for Special Leave to Appeal No. K-119 of 1969 filed by Mst. Qamar Bano to challenge the appellate decision of the High Court dated the 17th of May 1968, by which Malik Muhammad Ishaq's suit for specific performance, in regard to the assignment of her share stood decreed. The submissions regarding the absence of Mst. Qamar Bano's counsel to India and his inability to return in time were not accepted by this Court on the previous occasion, and they had earlier been repelled by a Letters Patent Bench of the High Court In these circumstances, we are not persuaded that the matter could be re-opened. Mst. Qamar Bano is, therefore, bound by the assignment of her share in favour of Malik Muhammad Ishaq.

123. As regards the share of Ahmed Parekh, the adult son of Parekh, the learned Judges of the Letters Patent Bench again appear to us to be right in taking the view that this gentleman had never agitated for several years against the assignment made by him in favour of Malik Muhammad Ishaq, and any considerations that might have obtained in the case of a pardanashln lady could not obviously apply in his case. We think that he has also been rightly held to be bound by the assignment voluntarily made by him in favour of Malik Muhammad Ishaq.

124. As a result, we see no merit in this appeal as well and dismiss the same with costs.

125. S. A. H. ?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.