JUDGMENT R.N. Ray, J.
1. Aggrieved by the judgment and decree passed by Sri Chandra Mohan, District Judge, Banda on 7-4-1977 in Original Suit No. 12 of 1973, defendant No. 1 as appellant has preferred this appeal. Respondent K.L. Bahri filed a suit restraining the defendant Mohan Lal Bahri, Madari Lal Bahri and GirdHar Lal by permanent injunction for using the lane for their individual benefits by transferring or constructing thereon, using etc. and also for injunction for demolition of the constructions shown as A B C D and boundary given in the plaint. The land in suit was the property of the firm M/s. K.L. Bahri & Co. Banda. The petitioner's case is that the plaintiff and defendants Nos. 1 and 2 are real brothers. They entered into partnership agreement on 20-2-53 by registered agreement to form a partnership to carry on whole-sale cloth busyness at Banda in the name and style of M/s. K. L. Bahri & Co. The share of each of the three partners were equal. Till the year 1959, the business was looked mostly by the plaintiff and defendant No. 1 and in the said year another separate business in the name and style of M/s Bahri Brothers was opened at Kanpur by the. plaintiff and other two brothers to carry on whole-sale cloth business by forming a separate partner ship and plaintiff was active partner there. The business of M/s. K.L. Bahri & Co. at Banda was mostly looked after by the defendants Nos. I and 2. In the year 1962, the partners of the firm thought to acquire their own business premises, and purchased the land in dispute which is only at a distance of 25 to 30 yards away from the old rented premises where from said partnership business was being carried. That land was purchased from Sri Anwaru-ur-zaman, Advocate, Banda, for a sum of Rs. 11,500/-. The land was purchased out of fund of M/s. K. L. Bahri for having their own business premises of the firm on that land but the defendant No. 1 in collusion with the defendant No. 2 got the sale deed executed and registered on 24-8-62 in his own name and kept the facts concealed from the plaintiff, who was at the relevant time, in Kanpur. On account of the disputes between the partners regarding the accounts, stocks, cash in hand and other assets and liabilities of the firm which arose amongst, the partners of the firm, said business at Banda stopped on I -7-65. Ultimately, the differences etc. were referred to the three arbitrators. The arbitrators could not successfuly arbitrate their disputes a.nd the order of the arbitrators was stayed under the order of the District Judge, Banda on 28-8-1973 and the learned District Judge was pleased to cancel the clause or arbitration as embodied in the partnership deed. As the plaintiff had to go to Srinagar (Kashmir) in connection with the marriage of his daughter and taking advantage of the temporary absence of the plaintiff, the defendant with the help of Sri Sohan Lal Sahgal and his son Narinder Kumar Sahgal and S. K. Agarwal, a P.W.D. Contractor 'started' raising unauthorised construction over the disputed land for their own benefit and also entered into an agreement to sell the disputed land to the defendant No. 3 without any right, title or interest, in respect of the disputed land, the disputed land belonged to the partnership firm only.
2. After having know ledge of these intentions conspiracy and the alleged fraudulent attempt of the defendant, the plaintiff filed the suit for the aforesaid reliefs.
3. It has been submitted that the defendant No. 1 Mohan Lal Bahri was highly educated amongst the brothers, who was M.A. LL.B. and was a very cunning man and he was dealing with the Income and Sales tax matters of the firm. The accounts were prepared underhis supervision, he used to look after and attend the business of the firm M/s K. L. Bahri & Co. and he had never intended nor thought to purchase the land for himself but subsequently the greed over-powered him and though it was purchased for constructing of the premises of the firm, he purchased the same in his own name, though money was funded by the partnership firm. Entry to that effect had been duly made in the accounts book of the partnership firm which has been duly exhibited. Defendant No. 2 Madan Lal Bahri had first supported the written statement of the defendant No. 1 but subsequently got his written statement amended on the allegation that the defendant No. 1 managed to got his signatures on some blank papers on the plea thai he would be doing needful for to safeguard his interest but misusing his good-faith of the defendant No. 2 and using undue influence upon the defendant No. 2, defendant No. 1 got the written statement filed on behalf of defendant 2 supporting the written statement of the defendant No. 1. In that amendment application, the defendant No. 2 contended that the disputed land was actually purchased from the fund of the firm and that purchase was made for the benefits and use of the firm.
4. On the pleadings of the parties, issues were framed and in this appeal, there was no argument by any parties that there was any error in framing the issues resulting miscarriage of justice thereby. The learned Court below held that the vendor Sri Anwarazaman executed Ext.A which shows that Rs. 500/- was paid as advance as sale consideration and the remaining part of the sale consideration i.e. Rs. 11,000/- was paid to the vendor through Cheque No. HO/1830 of Allahabad Bank, Banda, and;that Cheque No. HO/1830 was encashed and credited to the account of the firm with the Allahabad Bank, Banda. Ext. 10 is certified copy of the account book of the Allahabad Bank with regard to the account book of M/s. K.L. Bahri & Co. Banda. In these account, a sum of Rs. 11,000/- had been shown to have been withdrawn by the firm through cheque No. HO/1830 and that withdrawl was made on 25th August, 1962. The defendant No. 1 Mohan Lal Bahri was examined himself as DW 2 who stated on oath that the land was purchased by him personally and the sale consideration was paid by him out of his personal account. He claimed that the land in suit was his personal property. Vendor Anwar-ur-zaman was not examined by any party. Be that as it may, DW 2 filed certified copy of the application for construction of the house over the land along with the map, as well as, photostat copy of the payment of water tax ranging from 23-4-67 to 4-9-74. The certified copy of the judgment of Sri B.K. Sharma, learned District Judge, Banda on 28-8-73 in the arbitration case has also been filed and marked as Exhibit. On behalf of the defendant No. 2 Madan Lal Bahri, he examined himself as DW 2. He stated that the land in suit was purchased with the funds of the firm, he signed on the original written statement dated 2-2-74 under the influence of defendant No. 1 Sri Mohan Lal Bahri, but subsequently he got his written statement amended on his own initiative. The plaintiff a'so examined himself. All those witnesses were cross-examined by the Court.
5. The learned Court below held that the suit land was purchased in the name defendant No. 1 Mohan Lal Bahri who was one of the partners but the sale consideration of Rs. 11,000/- was paid through cheque of the Allahabad Bank, Banda. The claim of the defendant No. 1 that he had paid this amount of sale consideration out of his own personal account but the learned Court held that it could not be substantiated by cogent evidence because proper entries of the account books of the firm has not been proved in the suit. The learned Court below further went to hold that even assuming that the sale amount of Rs. 11,000/- was paid by the defendant No. 1 from his personal account, sti!I it could not be held that the payment was not made in his individual capacity but it was made as a partner of the firm. Unless there was an individual agreement between the partners, the defendant No. 1 was not entitled to withdraw Rs. 11,000/- from his personal account from the partnership fund account in view of Clause (7) of the partnership deed which was marked as Ext. 1. That Clause (7) provided that every partner was entitled to draw any sum or sums for his private expenses with mutual consent of other partners. The defendant No. 1 has not been able to allege or prove any mutual consent of the partners allowing him to withdraw this huge amount of Rs. 11,000/- for purchase of the land in suit for his individual benefit and use. In this connection, it should be taken into account that in the partnership deed, it is mentioned that a share capital of each partner was Rs. 20,000/- and in such a business, according to the learned Court below it was very difficult to believe that the defendant No. 1 could withdraw Rs. 11,000/- without the consent of the other partners, when there was stipulation, as provided in Clause (7) that he could not do so without the consent of the other partners. The fact further revealed that the goods of the firm were pledged with the Bank for obtaining this amount out of cash credit account to the firm. According to him, it was very difficult to believe that the goods of the firm were pledged and secured a money of Rs. 11,000/- from the Bank by burdening the firm to pay interest to the Bank for individual benefit of defendant No. 1 without the consent of the other partners. From the godown register for cotton-price goods maintained by the Bank in respect of M/s. S.K.L. Bahri & Co., it appeared that on 20-8-62 the value of the goods pledged by the firm was of Rs. 22,782/- and on 30-8-62 goods worth more goods were together pledged with the Bank, the value of the goods pledged with the Bank on 31-8-62 amounted to Rs. 29,483/-. From this also it could be inferred that the defendant No. 1 had no right under the partnership deed to withdraw the amount of Rs. 11,500/- for purchase of the land for his own benefit without the consent of the other partners. The learned Court below also took into consideration of para 2 the Section 14 of the Indian Partnership Act and it has been held by the learned Court below that the defendant No. 1 could not prove by cogent evidences that the said purchase was not made in the interest of the firm but he purchased the same for his own interest while taking money from the firm on his own ledger account.
6. The learned counsel for the appellant submitted that the land was purchased in the name of the defendant No. 1 so it was for the plaintiff to rebut the presumption arising out of the sale deed. It was for the plaintiff to prove that the purchase was made by the firm. He submitted that the plaintiff failed to prove the same and it has been further submitted that from the Income Tax return, it would appear from the assessment year for the year 1964-65 (Ext. A-1) and the balance-sheet of the firm as stood on 30-6-63, which has marked as Ext. A-13, that the land in suit had not been shown in the list of assets of the firm, so it has to be presumed that all the partners had acknowledged of the account books and they did not put any objection for not entering the disputed land in the firm register because they knew that it was the land purchased by the defendant No. 1 for his own interest and from his personal account, maintained in the partnership firm, as per practice.
7. The learned counsel for the plaintiff, referred a decision, as reported in (1908) 10 Bom LR (Vol.X) 811 (Daji Abaji Khare v. Govinti Narayan Bapat) wherein it has been held that the partnership book being accessible to all the partners and being kept more or less under the surveillance of them, so prima facie it was to be inferred that all of them had the knowledge of the entries of the asset register and account books of the firm when there was no complaint that the books of account were not tampered or fabricated. In this particular case, it is not the case of the parties as per plaint or evidence on record that the account books were false or false entries were made. Simply the plaintiff had asserted that accounts.book were being maintained and entries were made under the supervision of the defendant No. 1, who was looking after the business at Banda and he was M.A.LL.B. and highly educated amongst the brothers and was entrusted for looking of the income tax and sales tax matters.
8. The learned counsel for the respondents supported the judgment more or less on the same reasons as given by the learned Court below and in support of his contention, he referred a ruling as reported in 1983 All WC 217 : (1983 All LJ 400) (Ram Prasad Gupta v. Firm Seth Murlidhar Ram Chandravijai and Ors.). He referred another ruling as reported in AIR 1952 Punjab 284 (Debi Ptasad v. Jai Ram Dass). The Division Bench of Punjab High Court held that the land bought in the name of one partner and paid for by the firm out of the profits of the partnership business, is partnership property unless a contrary intention appeared or proved. Another decision as reported is a decision of the Hon'ble Supreme Court as reported in (1993) 1 SCC 589 : (1993 AIR SCW 570) (S.V. Chandra Pandian v. S.V. Sivalinga Nadar), where their Lordships were pleased to hold that in view of provisions of Section 48(b)(iv), the entire property whether brought by any of the partners on constitution of the partnership or acquired in course of business of me partnership would constitute property of the firm. It was further held that during the subsistence of the partnership, partners entitled to an undefined share in such property but after dissolution and settlement of accounts, partners entitled to proportionate share in residue of the property. In that decision, the Hon'ble Supreme Court was also discussed the provisions of Section 45(4) and Section 2(47) of the Income-tax Act, 1961. Another decision referred to by the learned counsel for the respondents is a decision as reported in (1994) 5 JT (SC) 277 : (AIR 1994 SC 2694) (P.V. Shankara Kurup v. Leelavathy Nambiar).
9. Duly considered the submissions of both the sides and perused the decisions, as cited by the learned counsel for the parties.
10. It is true that the partners used to get some money personally from the accounts of the firm maintained in the personal ledger of each of the partners of that partnership firm but the facts of the cases are little different. Huge amount of articles had been pledged with the Bank to secure a loan of Rs. 11,000/- and that money was withdrawn by a cheque of the accounts of the firm with the Allahabad Bank at Banda and there was no consent by any of the partners which was contrary to the provisions of Clause (viii) of the, partnership deed. In view of Sec, 14 of the Partnership Act and in view of the materials before the Court, the Court had rightly held that the property was purchased in the interest of the firm because the firm was running in rente'd house and the total capital of the firm was Rs. 60,000/-initially and there was no such evidence that said firm flourished so much that the extent of Rs. 11,000/- was an insignificant amount in view of the transactions and profits made by the firm. It has been abundantly proved that the plaintiff had to stay at Kanpur and it was not disputed that the defendant No. 1 was the principal personlooking after the business of the firm at Banda and in his supervision, Income Tax returns used to be filed and the books of the accounts were maintained So, non-inclusion of such property in the assessment register of the firm per se does not prove that the property was not purchased for the interest and benefit of the firm but it was purchased by the defendant No. 1 for his personal interest in his personal capacity. The vendor was not examined who could throw some light to the nature of the transaction but the fact remained that huge sum of money was paid from the partnership account with the Allahabad Bank at Banda, as interest and there was no consent by the other partners, as required under Clause (VII) of the Partnership Deed, the learned Court below was perfectly justified in decreeing the suit holding that the disputed property was the property of the partnership firm. From the whole of the ledger account maintained by the parties, there was never any payment of money to any of the partners to the individual ledger account, kept in the partnership firm for a huge amount over Rs. 4000/- what to speak of an amount of Rs. 11,000/- at any point of time. So, I do not find anything wrong with the findings of the learned Courts below and as such I concur with the findings of the learned Courts below and the judgment and decree, as passed by the learned Courts below, are hereby affirmed.
11. The appeal is dismissed on contest with costs.