G. Ramanujam, J.
1. The plaintiffs in O.S. No. 690 of 1969 on the file of the City Civil Court at Madras are the appellants. They filed the suit for partition and separate possession of their alleged 1/4th share in two items of properties. The first plaintiff and defendants 2 and 7 are the sons of the first defendant. Plaintiffs 2 to 7 are the sons of the first plaintiff. Defendants 3 to 6 are the sons of the second defendant. Defendants 8 and 9 are the sons of the 7th defendant. Suit item 1 is a house and ground bearing door No. 30, Aziz Mulk Second Street, Thousandlights, Madras and suit item 2 is the site and superstructure bearing door No 11/105, Mount Road, Madras.
2. The defendants did not resist the claim of the plaintiffs for partition and separate possession of their 1/4tb share in suit item 1 as also the site in item 2. They disputed the plaintiff's claim only in relation to the superstructure in item 2. Their case was that though the site in item 2 was the joint family property, it having been purchased by raising a mortgage loan over the suit item 1, the superstructure on suit item 2 did not belong to the joint family, that the first plaintiff and defendants 2 and 7 were carrying on business in partnership under the name and style of 'Cement article works', that the superstructure was constructed on the site in item 2 with the profits from the said partnership business, that the first plaintiff had later on released all his rights in the partnership in favour of defendants 2 and 7 on 1st August, 1960 for a consideration of Rs. 8,000 and therefore, none of the plaintiffs is entitled to claim a share in the superstructure an asset of the partnership which is still being carried on toy defendants 2 and 7. They also claimed to have obtained a lease of the site in item 2 from the first defendant as manager of the joint family for a period of 99 years from 6th July, 1955 under a lease deed dated 5th September, 1962 on a monthly rental of Rs. 95 that, therefore the plaintiff's right to a share in the site in item No.2 can only be subject to the said leasehold right of defendants 2 and 7 and, that the plaintiffs can at best claim only 1/4th share in the monthly rent of Rs. 95 paid by defendants 2 and 7 for the site.
3. On the materials adduced by the parties with respect of their respective contentions, the Court below held that the plaintiffs are entitled to partition and separate possession of their 1/4th share in suit item 1 and also in the site in item 2 and that they are not, however entitled to claim partition in respect of the superstructure on the site in item 2. In that view, the trial Court passed a preliminary decree for partition of the plaintiff's 1/4th share in suit item 1 as also in the site in item 2 and dismissed the plaintiff's suit so far as it related to the superstructure standing on the site in item 2.
4. In this, appeal the plaintiffs have, challenged the decision of the, lower Court in relation to the superstructure on the site in item 2. After due consideration of the pleading's and the evidence adduced in the case, I should say that the Court below has come to the right conclusion.
5. As regards the Superstructure on the site in item 2 the plaintiffs' case in the plaint is that it was put up from the income of the joint family business and by the joint earnings of the first plaintiff and defendants 1, 2 and 7. In his evidence as P.W. 1 the first plaintiff has deposed that the business carried on under the name and style of 'cement article works' originally in premises, No. 8/105, Mount Road and later in premises No. 11/105, Mount Road was being carried on by himself, defendants 1,2 and 7 as their joint family business and that from the Income of the said business the superstructure has been put up. If really the superstructure has been put up with the funds from the joint family business then, as members of the joint family, the plaintiffs are entitled to claim a share therein. However, in this case, the Court below has held that it has not been established that the business carried on under the name and style of 'cement article works' originally at No. 8/105, Mount Road and later at No. 11/105 Mount Road was the joint family business and in my view rightly.
6. As the plaintiffs' own case is that the superstructure was put up from the income from the business carried on under the name and style of 'cement articles works' the controversy between the parties is not as to the ownership of the said business. While the plaintiffs' case is that the said business is a joint family business, the case of defendants 2 and 7 is that the business was originally carried on by the first plaintiff and defendants 2 and 7 in a partnership and that later, after the retirement of the first plaintiff, both of them are carrying on the. said partnership business and therefore, they have become entitled to all the assets of the partnership. In view of the stand taker by defendants 2 and 7 the plaintiffs can succeed in claiming a share in the superstructure on the site in item 2 only if the business of 'cemment article works' was a joint fatally concern. On this aspect, Exhibit A-5, a copy of the notice dated 1st July, 1960 issued by the plaintiffs to the counsel for defendants 2 and 7 has to be referred to. In Exhibit A-5 it has not been claimed that the business of 'cement article works' was a joint family concern. In that notice it has been asserted by the first plaintiff that be had started his own business in making cement articles 8 years prior to 1958 when at the request of his parents, he took his younger brothers also as partners in his business and all his stock in trade, outstandings etc., were taken and used for the partnership. Therefore, Exhibit A-5 clearly shows that the first plaintiff's claim before the filing of the suit was that in the year 1958 he took defendants 2 and 7 as partners with him in his business and it was not his case then that the business carried on before 1958 was a joint family business. At the stage of the trial a suggestion has been made by the plaintiffs that a sum of Rs. 1,000 was given by the first defendant for starting and running the business of cement article works, and therefore, the joint family should be taken to have contributed the capital for the starting of the business. But significantly P.W. 1 has not mentioned in his evidence about the first defendant giving Rs. 1,000 to his sons for starting and running the business. Besides, there is no evidence at all in the case to indicate that a sum of Rs. 1,000 was ever contributed by the first defendant from the joint family funds for starting and running the business of cement articles works. Therefore, the first defendant's suggestion that the business was started with the joint family nucleus has no basis.
7. The appellants would, however, contend that even if the business was not started with the joint family nucleus, as there was joint exertion by all the members of the family for the starting and running of the said business it should be taken to be a joint family business. Reliance is placed on the decision in Krishnan v. Rangachari : AIR1965Mad340 , and Santhalingam v. Meenakshi Ammal : (1970)2MLJ85 . Is these cases it was held that if the members of the joint family who are joint in status carrying on business and acquire property by their joint labour and exertions without the aid of any ancestral nucleus, the presumption is that the property so acquired by them would be joint family property unless it is that the acquires intended to own the property as co-owners between themselves in which case alone it will be joint property as distinguished from joint family property.
8. However, as it has not been shown in this case that the business was carried on with the joint exertions of all the members of the family and as it was carried on only as a partnership between three of the members of the family, the presumption that ft is a joint family business cannot be invoked. Therefore, the property acquired by the firm consisting of only three members of the joint family cannot be treated as a joint family property but can only be treated as a joint property. In a recent decision in Lakshmi v. Meenakshi : AIR1974Mad294 , a Division Bench of this Court to which I was a party has expressed the view that there is no presumption in Hindu Law that a business standing in the name of member of a Hindu family is joint family business even when that member is the manager or father and that unless it could be shown that the business in the hands of the co-parcener grew up with the assistance of the joint family or with the joint family funds, the business should be taken to be the separate property of the member who is carrying on the same. Reliance is placed by the Division Bench in that case on the decision in, Narayana Raju v. Chamaraju : 3SCR464 , in support of that view. In this case, apart from the first plaintiff and defendants 2 and 7, the first defendant who was the kartha and managing member of the family has not been shown to be a participant in the business. Though the first plaintiff as P.W.1 would asset that the first defendant was also a participant in the business and, therefore, the business should be taken to be run by the joint exertion, of all the members of the family, the materials produced in the case do not establish that case. As a matter of fact, the account books produced for the period prior to 1958 clearly show that the business was carried on by the first plaintiff and defendants 2 and 7 as partners. The first defendant has not been shown to be a partner in the accounts of the business. It is also significant to note that for the business conducted before 1958, the Hindu undvided family has not been assessed to income-tax, but the assessments have been made on the unregistered firm consisting of the first plaintiff and defendants 2 and 7 as is clear from Exhibit B-7. As it is the common case of both the parties that the superstructure on the site in item No. 2 was put up with the funds and income from the business of cement article works, the superstructure should be taken to belong to the firm which carried on the business of cement article works. There-fore the funds utilised for erecting the superstructure cannot be taken to be the joint earnings of all the members of the joint family as the first defendant has not been shown to be a participant in the business. Apart from this, the balance-sheets for the business of cement article works Exhibits B-21 and B-22 as on 31st March, 1960 show the superstructure as the asset of the partnership. P.W. 1 categorically admits this position but would state that only for purpose of income-tax such balance-sheets were prepared, though the superstructure really belonged to the joint family. In Exhibit B-32 the superstructure has been assessed to property tax on the firm. Though Exhibit B-32 came into existence after the release deed Exhibit B-35 executed by the first plaintiff, it is long before the suit was filed and, therefore, it cannot be ignored.
9. There is some controversy between the parties as to when the business of cement article works was started. According to the plaintiffs the business was started in the year 1951-52 but according to the defendants it was started in the year 1956. In support of their case, the plaintiffs rely on Certain entries in pages 3, 5, 7, 11 and 13 of Exhibit B-12, the day book for the accounting year 1956-57 which are entries or payment of sales-tax for the earlier years. But a perusal of the said entries relied on by the plaintiffs throws considerable doubt as to their genuineness. The entries appear to be recent and there is no evidence as to who made the entries and when they were made. Neither the first plaintiff nor the second defendant has spoken about those entries. Even assuming that the entries are genuine, they are consistent with the first plaintiff's, case, as set out in his notice Exhibit A-5 that a business in cement articles had been carried on by him for eight years till 1958 when it was taken over by the partnership firm consisting of himself and defendants 2 and 7. Even if the business was commenced from 1952-58 it cannot be taken to be a joint family business unless it is shown that the business was conducted with the joint family nucleus or with the joint exertion of all the adult members of the family. As already stated, the first defendant who is the kartha of the family has not been shown to have participated in the business and the business has been carried on only by the first plaintiff and defendants 2 and 7 in partnership. It is not in dispute that the business of, cement article works was originally carried on in a rented, premises at No. 8/105, Mount Road, Madras. The evidence of P.W. 1 as well as D.W. 1 shows that the superstructure on the site in item 2 was constructed only from the income and materials of the business of cement article works which was carried on in No. 8/105 Mount Road. Exhibit B-15, the partnership ledger for 1958-59 at page 18 contains 'building account' and the fact that the materials used for the building were taken from the materials purchased by the firm for the purpose of its business is clear from page 25 of the ledger. This was at a time when the first plaintiff was a partner of that business and before any dispute arose between the parties. It is, therefore, clear that the superstructure has been put up on the site of suit item 2 only by the firm of cement article works in or about the year 1957 that the said firm consisted of the first plaintiff and defendants 2 and 7 as partners and that therefore, it is a partnership asset. Admittedly the first plaintiff has executed a release deed Exhibit B-3 dated 1st August, 1960 relinquishing all his rights in the partnership after receiving a sum of Rs. 8,000. Therefore, once it is held that the superstructure is an asset of the firm, the first plaintiff has no right to claim any share in it as be had gone out of the partnership.
10. On behalf of the first plaintiff, it is however contended that if the release deed Exhibit B-3 is construed as amounting to a relinquishment of his rights in the superstructure which is embedded on the earth, and as such an immoveable property, it is invalid and ineffective for want of registration and reliance is placed on a Bench decision of this Court in Samuoier v. Ramasubbier I.L.R.(1932) Mad. 72 : 60 M.L.J. 527 : 33 M.L.W. 376 : 132 Ind.Cas. 305 : A.I.R. 1931 Mad. 580. But it has been categorically stated in Commissioner of Income-tax, West Bengal v. Juggilal : 63ITR292(SC) , that a deed of relinquishment under which the partners relinquished their individual interest in moveable or in immoveable assets of the partnership in favour of other partners does not require registration. In that case the Supreme Court has referred to with approval a decision of the Full Bench of the Lahore High Court in Ajudhia Pershad Ram Pershad v. Sham Sunder A.I.R. 1947 Lah. 13 , wherein it was held that the interest of a partner in a partnership is to be regarded, as move-able property even though the partnership assets may include within it immovable properties. The principle laid down in Commissioner of Income-tax, West Bengal v. Juggilal : 63ITR292(SC) , has also been reite rated by the Supreme Court in its subsequent decision in Ratanlal v. Purushottam : 3SCR109 as follows:
It is well-settled now that the share of a partner in the assets of the partnership which has also immovable properties is moveable property and the assignment of the share does not require registration under Section 17, Registration Act. See Ajudhia Pershad Ram Pershad v. Sham Sudder A.I.R. 1947 Ladh. 13 , Narayanappa v. Bhaskara Krishnappa and Commissioner of Income-tax, West Bengal, Calcutta v. Juggilal, Kamalapet : 3SCR400 .
In view of the above decision of the Supreme Court it is beyond any doubt that the release deed Exhibit B-3 executed by the first plaintiff in favour of the other partners relinquishing all his interest in the partnership business of cement article works is valid notwithstanding the fact that it has not been registered.
11. The learned Counsel for the appellants then contends that the release deed Exhibit B-3 cannot be taken to deprive the appellants of their interest in the superstructure as the superstructure has not been specifically mentioned therein. I am not able to accept this contention. The first plaintiff has released all his rights in the partnership for a consideration of Rs. 8,000 and it is not necessary that every item of the partnership assets should be included in the release deed. Notwithstanding the fact that the release deed does not specifically refer to the superstructure as an item of partnership, if it is found that the superstructure is an asset of the firm, then the first plaintiff should be taken to have relinquished his rights therein under the terms of the relabeled.
12. The result is the decision of the lower Court is upheld and the appeal is dismissed. No costs.