Saji Koduvath, Advocate, Kottayam

Synopsis & Key Takeaways

General

• ‘Partnership’ is the relation between partners under an agreement to share profits in a business.
• A ‘Firm’ is the collection of partners (of the Partnership).
• A firm is not a juristic person.
• In law, it is a compendious name for all the partners.
• A partnership deed is not necessary to form a partnership.
• Registration of partnership (before the Registrar of Firms) is also not necessary.
• The liability of each partner is joint and several.

Order 30 CPC

• Rule 1 of Order 30 CPC provides only an enabling method to sue, or be sued, partners of a firm (both Registered and Unregistered), at the time of the accruing of the cause of action, in the name of the firm. Suit by or against a firm is suit by or against its partners.
  • Order 30 Rule 1 do not apply when suit is instituted not in the name of the firm (instead, suit by all partners).
  • One partner alone can sue, or be sued, in the firm name. Still, the decree binds all partners.
  • When all partners are in the party array (in a suit), impleading of the firm is surplusage,
• The purpose of using the name of the firm, in a suit, is merely to encompass all the partners (even if none of them is not named as parties to the suit).
• Though no partner need comes as a plaintiff (under Rules 1 of Order 30 CPC), if so demanded by the defendant, the names and details of such partners should be revealed, forthwith, by the plaintiffs (Rule 2 of Order 30).
• Rule 3 of Order 30 provides that summons to firm shall be served either-
  • (a) upon any one or more of the partners, or
  • (b) upon any person having the control or management of the partnership business, at the principal place at which the partnership business is carried:
• Judgment/Decree in the name of the firm (without joining any partner), has the same effect as a Judgment/ decree in favour of or against all its partners.
• The partners are not necessary parties in trial-stage, to proceed in execution against all partners. The question as to who are the persons who constitute the firm can be decided in execution proceedings (Order 21, Rule 50 CPC).

Section 69 Partnership Act

• Section 69(1) Partnership Act directs that the registration of the firm is mandatory, and a condition precedent, to institute a suit by one partner against the firm or another partner.
• Section 69(2) directs that registration of the firm is necessary for suit by or on behalf of a firm (i) against a third party (ii) to enforce a contract with the firm.
  • Note: Sec. 69 (2) is not attracted when a suit is filed against a third party for reliefs other than enforcement of contract – like enforcement of a statutory right (trade mark) or a common law right or a right under TP Act (eviction of tenant) or cause of action on dishonour of cheques.
• Section 69(3) directs that registration of firm is necessary for claiming ‘set off’.
  • Though the stipulation in Section 69 (which requires registration for filing certain suits) may appear harsh, the historical basis of this provision (enacted in 1932) justifies its legitimacy. English law, stood at that time, required compulsory registration of partnership, and contravention thereof was made punishable.
  • After independence also, the provisions as to registration of firms were not changed. Obviously, it is also because of the proclamations in Article 19(1) of the Constitution of India (in Fundamental Rights Chapter).
• Section 69 requires that (i) all the partners at the time of the institution of the suit must be parties to the suit and (ii) their names also be in the Register of Firms, to proceed to obtain the reliefs stated in Sec. 69 (though Or. 30 r. I enables – two or more partners to sue).
• Order 30 and Section 69(2) of the Partnership Act are independent provisions, that operate separately. They deal with different aspects.
• Both these provisions must be complied with, when a suit is instituted (i) to enforce a contract, (ii)  by or on behalf of a firm and (iii) against a third party.
• A partnership (that arises by an agreement to share profits or loss) cannot be put an end by a partner without consent of others; whereas in a co-ownership venture, a co-owner can transfer his interest. Because co-ownership activities are not governed by Partnership Act, Sec. 69 Bar is not applicable to the same.

Practical Note

• Under Order 30 Rule 1, to sue a firm, either the firm be made as a party, in addition to one or more of the partners; or
• the firm alone be made as the party, naming the (one or more) partners or any person having the control (or management of the partnership business, at its principal place of business) upon whom the summons be served by the conjuncture “by”, “through” or “represented by”; because, Order 30 rule 1 says – partners “may sue or be sued with (or, in) the name of the firm”.

Part I

Partnership Definition

Section 4 of the Indian Partnership Act, 1932, defines partnership as under:

• “4. Definition of ‘partnership’, ‘partner’, ‘firm’ and ‘firm name’—
• ‘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.
• Persons who have entered into partnership with one another are called individually ‘partners’ and collectively a ‘firm’, and the name under which their business is carried on is called the ‘firm name’.

‘Partnership’ and ‘Firm’ in Law

• ‘Partnership’ is the relation of persons under an agreement to share profits in a business.
• A ‘Firm’ is the collection of partners (of the Partnership).

Elements of Partnership

From the above definition, it comes out that the following are the essential elements of a Partnership:

• (1) Contract,
• (2) two or more persons,
• (3) business,
• (4) object of sharing profits and
• (5) business by all or any of them acting for all.

Co-ownership and Partnership: Distinction

Characteristics of a partnership, qua the Co-ownership, are the following:

• Partnership arises by an agreement to share profits or loss.
• It cannot be put an end by a partner without consent of others.
• A partner cannot transfer his interest in partnership, of his own.

The basic distinction between co-ownership and partnership is laid down in Dr. Ramji Singh Properties v. The Debts Recovery Tribunal, 2013 SCC OnLine All 13873, as under:

• The co-ownership is not necessarily the result of an agreement while the partnership is the result of an agreement.
• The concept of involvement of community of profits or loss is not attached with the concept of co-ownership.
• A co-owner can, without consent of others, transfer or discard his interest, but the result of the agreement for forming a firm does not allow a partner to transfer or discard his interest, unilaterally.

No Written or Registered Document is Needed to Contribute Land to Firm

In Dr. Ramji Singh Properties v. The Debts Recovery Tribunal, 2013 SCC OnLine All 13873, the decision, Firm Ram Sahay Mall Rameshwar Dayal v. Bishwanath Prasad, AIR 1963 Pat. 221, was referred which said as under:

• “The legal position, therefore, appears to be that no written or registered document is necessary for an individual to contribute any land or immovable property as a contribution against his share of the capital of a new partnership business. The same view was taken by a bench of the Calcutta High Court in Prem Raj Brahmin v. Bhani Ram Brahmin, ILR (1946) 1 Cal 191. It was held that a written document, and, consequently registration, is not necessary to bring in the separate properties of the partners into the partnership stock, and by virtue of Sections 14 and 46 of the Indian Partnership Act and certain provisions of the Indian Contract Act, they become the properties of the firm as soon as the partners intend to so bring them in and Treat them as such. It was further laid down by their Lordships that this sort of contribution or transfer is hot prohibited by the Transfer of Property Act, 1882 or the Indian Registration Act, 1908.”

Maximum Number of Partners in a Partnership is 50

Indian Partnership Act, 1932 does not limit the number of partners in a firm. 

• Sec. 464 of the Companies Act, 2013 provided that the maximum number of partners should not exceed one hundred; and it was left to the Government to fix the maximum (by rules). Rule 10 of the Companies (Miscellaneous) Rules, 2014, fixed the the maximum number partners as 50.
• Under the erstwhile Companies Act, 1956, maximum partners allowed in a partnership firm was 10 persons in a banking business; and 20 persons in other business.

Sec. 464 of the Companies Act, 2013 reads as under:

• Prohibition of association or partnership of persons exceeding certain number:
• (1) No association or partnership consisting of more than such number of persons as may be prescribed shall be formed for the purpose of carrying on any business that has for its object the acquisition of gain by the association or partnership or by the individual members thereof, unless it is registered as a company under this Act or is formed under any other law for the time being in force:
• Provided that the number of persons which may be prescribed under this sub-section shall not exceed one hundred.
• (2) Nothing in sub-section (1) shall apply to—
• (a) a Hindu undivided family carrying on any business; or
• (b) an association or partnership, if it is formed by professionals who are governed by special Acts.
• (3) Every member of an association or partnership carrying on business in contravention of sub-section (1) shall be punishable with fine which may extend to one lakh rupees and shall also be personally liable for all liabilities incurred in such business.

Kinds of Partnership (on duration)

• i. At will (when no fixed period is prescribed for the expiration)
• ii. Partnership for a fixed period

Kinds of Partners

• Active/managing partners
• Sleeping/Dormant partners
• Nominal partner (partner only by his name who has no real interest in the firm)
• Partner in profit only: (He is not liable for any)
• Minor partner (He will share the profit but his liability will be limited)
• Partner by estoppel (If one represented himself to be the partner, he may be estopped from denying the status)

Status of Partners in a Firm–Agent

Section 18 onwards declares Status of Partners in a Firm. They read as under:

Section 18: Partner to be Agent of the Firm.

• Subject to the provisions of this Act, a partner is the agent of the firm for the purposes of the business of the firm.

Property purchased in the name of one Partner

Property purchased in the name of one Partner can be parnership property if the accounts reveal it. Merely because a property of a partner is used for partnership business, it will not become partnership property.

Power of Attorney executed by a Partner authorizing an Individual Bind the Firm.

Under S. 18 of the Act a partner is an agent of the firm.  Power of Attorney signed by one partner will bind the firm. In Purushottam Umedbhai v. Manilal and Sons, AIR 1961 SC 325 our Apex Court held as follows:

• “One of the partners Manubhai Maganbhai Amin was the Manager of the firm Manilal & Sons. He had executed a Power of Attorney in favour of four persons including one Dunderdale. By this Power he authorized any one of these persons to sue for recovery of moneys due to the firm from the firm Purushottam Umedbhai & Co., the appellant. It also empowered these persons to appear and to represent the firm in any court, in any jurisdiction – civil, criminal, insolvency, original, appellate or otherwise-and before any official in any suit or proceeding or matter and to make, sign, verify, present and file any plaint. Dunderdale had signed and verified the plaint in the present case. We have no doubt, on a perusal of the Power of Attorney, that it authorized Dunderdale to file the plaint on behalf of the firm Manilal & Sons and also to verify it. It was suggested that this was a Power of Attorney by Manubhai Maganbhai Amin for himself and not for the firm of Manilal & Sons. As we understand the Power of Attorney that is not so. No doubt the Power of Attorney is not signed by all the partners of Manilal & Sons but only by Manubhai Maganbhai Amin. In our opinion, it was not necessary that the Power should have been signed by all the partners of the firm because Manubhai Maganbhai Amin was the manager of the firm. Under S. 18 of the Act a partner is an agent of the firm for the purposes of the business of the firm. Manubhai Maganbhai Amin was therefore the agent of the firm as well as its manager. It is to be noticed that under s. 19(2) of the Act instances are stated where, in the absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to do matters mentioned in cls. (a) to (h). It is significant that in these clauses there is no prohibition to a partner executing a Power of Attorney in favour of an individual authorizing him to institute a suit on behalf of the firm. In these circumstances, it cannot be said that at the time the plaint was filed it was defective because the Power of Attorney in favour of Dunderdale was not a Power of Attorney on behalf of the firm and its partners. As the High Court has pointed out, there is on the record now Powers of Attorney on behalf of all the partners of the firm.”

Section 19 Implied Authority of Partner as Agent of the Firm.

• (1) Subject to the provisions of section 22, the act of a partner which is done to carry on, in the usual way, business of the kind carried on by the firm, binds the firm.
• The authority of a partner to bind the firm conferred by this section is called his “implied authority”.
• (2) In the absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to –
• (a) submit a dispute relating to the business of the firm to arbitration,
• (b) open a banking account on behalf of the firm in his own name,
• (c) compromise or relinquish any claim or portion of a claim by the firm,
• (d) withdraw a suit or proceeding filed on behalf of the firm,
• (e) admit any liability in a suit or proceeding against the firm,
• (f) acquire immovable property on behalf of the firm,
• (g) transfer immovable property belonging to the firm, or
• (h) enter into partnership on behalf of the firm.

Section 20 Extension and Restriction of Partner’s Implied Authority.

• The partners in a firm may, by contract between the partners, extend or restrict the implied authority of any partner.
• Notwithstanding any such restriction, any act done by a partner on behalf of the firm which falls within his implied authority binds the firm, unless the person with whom he is dealing knows of the restriction or does not know or believe that partner to be a partner.

Section 21 Partner’s Authority in an Emergency.

• A partner has authority, in an emergency, to do all such acts for the purpose of protecting the firm from loss as would be done by a person of ordinary prudence, in his own case, acting under similar circumstances, and such acts bind the firm.

Section 22 Mode of Doing Act to Bind Firm.

• In order to bind a firm, an act or instrument done or executed by a partner or other person on behalf of the firm shall be done or executed in the firm-name, or in any other manner expressing or implying an intention to bind the firm.

Section 23 Effect of Admission by a Partner.

• An admission or representation made by a partner concerning the affairs of the firm is evidence against the firm, it is made in the ordinary course of business.

Section 24 Effect of Notice to Acting Partner.

• Notice to a partner who habitually acts in the business of the firm of any matter relating to the affairs of the firm operates as notice to the firm, except in the case of a fraud on the firm committed by or with the consent of that partner.

Section 25 Liability of a Partner for Acts of the Firm.

• Every partner is liable jointly with all the other partners and also severally, for all acts of the firm done while he is a partner

Section26: Liability of the Firm for Wrongful Acts of a Partner.

• Where, by the wrongful act or omission of a partner acting in the ordinary course of the business of a firm or with the authority of his partners, loss or injury is caused to any third party, or any penalty is incurred, the firm is liable therefor to the same extent as the partner.

Part II

Suit Against Firm or Partners

The liability of each partner is unlimited, under Sec. 25. There being joint and several liability, suit can be filed invoking Order 1 Rule 6, C.P.C.

Order 1 Rule 6 reads as under:

• “The plaintiff may at his option, join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on anyone contract, including the parties to bills of exchange, hundis and promissory notes”. 

Section 42 of the Indian Contract Act states as under:

• “When two or more persons have made a joint promise, then, unless a contrary intention appears by the contract, all such persons, during their joint lives, and, after the death of any of them, his representative jointly with the survivor or survivors, and, after the death of the last survivor the representatives of all jointly, must fulfil the promise.”

Order 30 Rule 1: Suing of partners in name of firm

• (1) Any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued with the name of the firm (if any) of which such persons were partners at the time of accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct.
• (2) Where persons sue or are sued were partners in the name of their firm under Sub-rule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice if such pleading or other document is signed, verified or certified by any one of such persons.

Rule 1 of Order 30 allows the partners to sue or be sued in the name of the firm which they were a part of the firm when the cause of action arose (Bharat Sarvoday Mills Co. Limited v. Mohatta Brothers, AIR 1969 Guj 178).

Characteristics of a firm

• A firm is not a juristic person.
• It is a compendious name for all the partners.
• The purpose of using the name of the firm is merely to encompass all the partners (even if all of them are not named).
• Rules 1 of Order 30 CPC provides only an enabling method to sue, or be sued, partners of a firm (both Registered and Unregistered), at the time of the accruing of the cause of action, in the name of the firm.
  • Order 30 Rule 1 do not apply when suit is instituted not in the name of the firm (instead, suit by all partners).
  • When all partners are in the party array (in a suit), impleading of the firm is surplusage,
• The purpose of using the name of the firm, in a suit, is merely to encompass all the partners (even if none of them is not named as parties to the suit).
• Though no partner need comes as a plaintiff (under Rules 1 of Order 30 CPC), if so demanded by the defendant, the names and details of such partners should be revealed, forthwith, by the plaintiffs (Rule 2 of Order 30).
• Judgment/Decree in the name of the firm (without joining any partner), has the same effect as a Judgment/ decree in favour of or against all its partners.
• The partners are not necessary parties in trial-stage, to proceed in execution against all partners. The question as to who are the persons who constitute the firm can be decided in execution proceedings (Order 21, Rule 50 CPC).

Therefore, it is clear:

• A firm can sue or be sued in its name of the firm.
• Pleadings can be signed by any one of the partners.
• One partner alone can sue, or be sued, in the firm name (AIR 1931 Sind 121). Still, the decree binds all partners.
• Even if all the partners are made parties to the suit, it can be taken that they represent the firm.

The Delhi High Court held in Shanker Hoursing Corporation v. Mohan Devi, AIR 1978 Del 255 (D.B), as under:

• “(15) Order 30 of the Code of Civil Procedure was added newly in the Code of Civil Procedure, 1908. Normally, when a person wishes to obtain a decree against several persons, or when several persons wish to obtain a decree against a person, al1 the said persons must be made parties to the suit. Similarly, when a person makes a promise to more than one person, the right to enforce the promise rests with them all under the provisions of Section 45 of the Indian Contract Act, so that all of them are necessary parties to a suit to enforce the promise. It was, therefore, held in some decisions under the old Code of 1882 which did not contain any provisions corresponding to the present Order 30, that in suits by or against firms, all the partners of the firm were necessary parties. It was to enable two or more partners alone to sue or be sued, as a kind of exception to the provisions of Section 45 of the Contract Act, that the present provisions in Order 30 were introduced in the Code of 1908. It is, however, provided in Rule I of Order 30 that any two or more persons claiming or being liable as partners may sue or be sued in the name of the firm (if any) of which such persons were partners aft the time of the accruing of the cause of action. As stated by us earlier, a firm is not under the law a juristic person, but is a compendious name for all the persons who are members of the firm (partners). The effect of using the name of the firm, as provided in Rule I, is merely to bring all the partners before the Court and the procedure indicated in Rules 1 and 2 of Order 30 is only a convenient method for showing the persons who constituted the firm at the time of the accruing of the cause of action, and a decree in favour of or against a firm, in the name of the firm, has the same effect as a decree in favour of or against all the partners. The various rules of Order 30 make this clear. Rule 1 of Order 30, in providing the mode or form of the suit, prescribes a requirement that the two or more persons who, claiming or being liable as partners, sue or be sued in the name of the film must be persons who were partners at the time of the accruing of the cause of action.

Order 30 Rule 2. Disclosure of partners’ names

• (1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their pleader shall, on demanding writing by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted.
• (2) Where the plaintiffs or their pleader fail to comply with any demand made under sub-rule (1) all proceedings in the suit may, upon an application for that purpose, be stayed upon such terms as the Court may direct.
• (3) Where the names of the partners are declared in the manner referred to in sub-rule (1) the suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint:
• Provided that all proceedings shall nevertheless continue in the name of the firm, but the name of the partners disclosed in the manner specified in sub-rule (1) shall be entered in the decree.

Names of the Partners disclosed shall be entered in the Decree

Though the suit can be proceeded without joining all partners, proviso makes it clear that ‘the name of the partners disclosed in the manner specified in sub-rule (1) shall be entered in the decree’.

Order 30 Rule 3. Service

• Where persons are sued as partners in the name of their firm, the summons shall be served either-
• (a) upon any one or more of the partners, or
• (b) at the principal place at which the partnership business is carried on within India upon any person having, at the time of service, the control or management of the partnership business, there, as the Court may direct; and such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without India:
• Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within India whom it is sought to make liable.

Order 30 Rule 4. Rights of suit on death of partner

• (1) Notwithstanding anything contained in section 45 of the Indian Contract Act, 1872 (9 of 1872) where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit.
• (2) Nothing in sub-rule (1) shall limit or otherwise effect any right which the legal representative of the deceased may have-
• (a) to apply to be made a party to the suit, or
• (b) to enforce any claim against the survivor or survivors.

Order 30 Rule 5. Notice in what capacity served

• Where a summons is issued to a firm and is served in the manner provided by rule 3, every person upon whom it is served shall be informed by notice in writing given at the time of such service, whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters, and, in default of such notice, the person served shall be deemed to be served as a partner.

Order 30 Rule 6. Appearance of partners.

• Where persons are sued as partners in the name of their firm, they shall appear individually in their own names, but all subsequent proceedings shall, nevertheless, continue in the name of the firm.

Order 30 Rule 7. No appearance except by partners.

• Where a summons is served in the manner provided by rule 3 upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a partner of the firm sued.

Order 30 Rule 8. Appearance under protest

• (1) Any person served with summons as a partner under rule 3 may enter an appearance under protest, denying that he was a partner at any material time.
• (2) On such appearance being made, either the plaintiff or the person entering the appearance may, at any time before the date fixed for hearing and final disposal of the suit, apply to the Court for determinig whether that person was a partner of the firm and liable as such.
• (3) If, on such application, the Court holds that he was a partner at the material time, that shall not preclude the person from filing a defence denying the liability of the firm in respect of the claim against the defendant.
• (4) If the Court, however, holds that such person was not a partner of the firm and was not liable as such that shall not preclude the plaintiff from otherwise serving a summons on the firm and proceeding with the suit; but in that event, the plaintiff shall be precluded from alleging the laibility of that person as a partner of the firm in execution of any decree that may be passed against the firm.]

Order 30 Rule 9. Suits between co-partners

• This Order shall apply to suits between a firm and one or more of the partners therein and to suits between firms having one or more partners, in common; but not execution shall be issued in such suits except by leave of the Court, and, on an application for leave to issue such execution, all such accounts and inquiries may be directed to be taken and made and directions given as may be just.

Order 30 Rule 10. Suit against person carrying on business in name other than his own

• Any person carrying on business in a name or style other than his own name, or a Hindu undivided family carrying on business under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature of such case permits, all rules under this Order shall apply accordingly.

Suit Against Deceased Partner – Not be necessary to join the legal representatives

On the death of a partner, the partnership business will not come to an end (unless otherwise provided in the partnership-deed); the partnership business may continue.

Rule 4 (1) of Order 30, C.P.C. stipulates that it shall not be necessary to join the legal representative of the deceased as a party to the Suit on death of a partner, whether before the institution or during the pendency of any suit. Rule 4 (1) reads as under:

• “Notwithstanding anything contained in Section 45 of the Indian Contract Act, 1872 (9 of 1872) where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any one of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the Suit”.

The Supreme Court in Upper India Cable Co. v. Sri Krishna, AIR 1984 SC 1986, it is held as under:

• “Now the question is where the suit is instituted against the firm and partners are impleaded as proper parties, in the event of death of a partner so sued, would the suit or appeal, as the case may be, abate if heirs and legal representatives of the deceased partner are not substituted within the prescribed period of limitation. There is a twofold answer to this question. Order 30 Rule 4 provides that notwithstanding anything contained in Section 45 of the Indian Contract Act, 1872, where two or more persons are sued in the name of the firm under the enabling provisions of Order 30, and any such person dies whether before the institution of the suit or during the pendency of any suit, it shall not be necessary to join the legal representatives of the deceased as a party to the suit. Secondly death of a proper party would have no impact on the suit more so where on death of a partner the partnership may stand dissolved or heirs do not desire to join the firm. Both these aspects were overlooked by the High Court”.
• “On the death of two of the proper or formal parties impleaded in their capacity as partners by the plaintiff along with the firm, in the absence of substitution of heirs and legal representatives the appeal abates”? I may even go a step further in stating that even on the death of two necessary parties who are partners of a firm and the suit was filed against the firm, the impleading of legal representatives of the deceased as a party to the suit shall not be necessary as it is stated in Rule 4 of Order 30, C.P.C. The language in Rule 4 is unambiguous which states, “Whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit.”

Decree Obtained Against a Partner Cannot be Executed Against Legal Heirs

In SP Misra v. Mohd. Laiquddin Khan, (2019) 10 SCC 329, it is held that a partnership firm stands dissolved, on the death of a partner, by operation of law under Section 42(c) of the Indian Partnership Act, 1932; and therefore, the decree obtained against a partner cannot be executed against his legal heirs.

When all Partners are Necessary Parties

• Partition of partnership property
• Suit for settling the accounts of the dissolved firm
• When firm constituted to take up a venture – after the completion of such venture.

Apex Court Impleaded Partners, Suo Moto, as Proper Parties, in eviction Case

In Richard Lee v. Girish Soni, (2017) 3 SCC 194, our Apex Court it was ruled that there was no doubt that all the partners are not necessary parties ‘form the point of view of the eviction petitioners’ and that both the firm and all its partners should be on the array of parties as proper party for properly adjudicating the issue before the Rent Controller in view of the contentions taken by the parties. The Apex Court impleaded the partners suo moto observing that the Court has a duty to see whether the presence of the proper parties would facilitate the complete determination of the matter in dispute.

Clauses impose obligations to legal heirs are opposed to public policy

In SP Misra v. Mohd. Laiquddin Khan, (2019) 10 SCC 329, it is held as under:

• “When such legal representative are not parties to the contract, such contract cannot confer rights or impose obligations arising under it on any third party, except parties to it. No one but the parties to the contract can be entitled under it or born by it. Such principle is known as ‘Privity of Contract’. When the partnership stands dissolved by operation of law under Section 42(c) of the Indian Partnership Act, 1932, the question of execution in pursuance of the decree does not arise. There cannot be any contract unilaterally without acceptance and agreement by the legal heirs of the deceased partner. If there are any clauses in the agreement, entered into between the original partners, against the third parties, such clauses will not bind them, such of the clauses in the partnership deed, which run contrary to provisions of Indian Partnership Act, 1932, are void and unenforceable. Such clauses are also opposed to public policy.”

Bar under Sec. 69 Partnership Act is absolute

A partnership deed is not necessary to form a partnership. The deed, if any, also need not be registered. (However, it must be made on Proper Stamp). But:

• Section 69(1) Partnership Act directs that the registration of a firm is mandatory, and a condition precedent, to institute a suit by one partner against the firm or another partner.
• Section 69(2) directs that registration is necessary for suit by or on behalf of a firm (that is, by the firm or its partners) (i) against a third party (ii) to enforce a contract with the firm.
  • Note: Sec. 69 is not attracted when a suit is filed against a third party or reliefs other than enforcement of contract – like, enforcement of a statutory right (trade mark) or a common law right or a right under TP Act (eviction of tenant).
• Section 69(3) directs that registration is necessary for claiming ‘set off’.

Sec. 69(2) and Order 30 Rule 1 deal with different aspects and operate separately

• Rules I of Order 30 deals with the mode or form in which the suit to be instituted. It requires that the ‘persons suing in the name of the firm‘ should be partners at the time of the accruing of the cause of action.
• Section 69(2) of the Partnership Act should be satisfied in order that a suit can be instituted. That is, to institute a suit (i) to enforce a contract  (ii) by or on behalf of a firm  (iii) against a third party, (a) the registration of a firm is a condition precedent, and (b) the name of the partners suing must have been shown in the Register of Firms.
• In short, these two independent provisions must be complied, when a suit is instituted (i) to enforce a right from a contract (ii) (in a contract) with the firm and (iii) against any third party.
• Section 69 requires that (i) all the partners at the time of the institution of the suit must be parties to the suit and (ii) their names also be in the Register of Firms- to proceed with the matters stated in Sec. 69 (though Or. 30 r. I enables – two or more partners to sue). (See: Firm of V. Ramchandraiah Gupta v. Ravula Venkat Reddy, 1970 (1) Andhra WR 243 Hansraj Manot’s (1962) 66 Cal WN 262; Sohanlal Basant Kumar vs Umraomal Chopra, 1985 (1) WLN 791.
• Note:
  • If the partners at the time of accruing of the cause of action (to enforce a contract) and the partners at the time of instituting the suit are different, to institute a suit in the name of the firm, against a third party following persons must be in the party array –
    • (i) all partners at the time of cause of action and
    • (ii) all partners at the time of filing the suit.
  • Note – Rule 1(1) of Order 30 CPC says – “with the name of the firm” and Rule 1(2) says – “in the name of their firm“.
• The firm can be made as a party, in a suit, in addition to the partners; or the firm alone be made as the party, naming the partners thereafter followed by the words – “represented by”.

Plaint must be signed by Partners in the Register of Firms on the DATE OF THE SUIT

In M/s. Shreeram Finance Corpn. v. Yasin Khan, AIR 1989 SC 1769,  the Supreme Court has held that the plaint verified and signed by the partners as on the date of the suit who were not shown as partners in the register of firms, is not maintainable in view of S. 69(2) of the Indian Partnership Act. In para 6 of the judgment the Supreme Court has observed as follows:

• “6. In the present case the suit filed by the appellants is clearly hit by the provisions of sub-s. (2) of S. 69 of the said Partnership Act, as on the date when the suit was filed, two of the partners shown as partners as per the relevant entries in the Register of Firms were not, in fact, partners, one new partner had come in and two minors had been admitted to the benefit of the partnership firm regarding which no notice was given to me Registrar of Firms. Thus, the persons suing, namely, the current partners as on the date of the suit were not shown as partners in the Register of Firms. In the result is that the suit was not maintainable in view of the provisions of sub-s. (2) of S. 69 of the said Partnership Act and the view taken by the Trial Court and confirmed by the High Court in this connection is correct”.

S. 69(2) directs ‘all partners’ must sue

Prior to M/s. Shreeram Finance Corpn. v. Yasin Khan, AIR 1989 SC 1769 (supra), there was difference of opinion as to ‘persons suing’ in Section 69(2) –

• (i) it is the partners on the date of the institution of the suit. (Shanker Housing Corporation v. Mohan Devi, AIR 1978 Del 255. Also see decisions referred to therein – given below)
• (ii) it is the partners (also) at time of the accruing of the cause of action (Bharat Sarvodaya Mills Co. Ltd. v. Mohatta Brothers, AIR 1969 Guj 178; Gandhi Company v. Krishna Glass Pvt. Ltd. (1983) 85 BomLR 179; Gurushiddayya Kalkayye Delimath v. Shah Hirachand Venechand and Co., AIR 1972 Mys 209; Sohanlal Basant Kumar v. Umraomal Chopra, 1985 (1) WLN 791)
  • The line of decisions in this way are not good law in the light of M/s. Shreeram Finance Corpn. v. Yasin Khan, AIR 1989 SC 1769.

In Shanker Housing Corporation v. Mohan Devi, AIR 1978 Del 255 (D.B), it is held that the expression ‘persons suing’ in Section 69(2) of the Partnership Act means “all the partners of the firm who are its partners at the time of the institution of the suit“. But, Rule I of Order 30 CPC provides that two or more partners can sue.

The contention raised in the case (the court rejected it) was the following-

• “Rule I of Order 30 requires that the ‘persons suing in the name of the firm’ should be partners at the time of the accruing of the cause of action, and, therefore, the same meaning should be given to the words “persons suing” in Section 69(2) of the Partnership Act, 1932, and the “persons suing” in requirement (b) therein means the person who were partners at the time of the accruing of the cause of action and not on the date of the institution of the suit and it is sufficient for the purposes of requirement (b) if they have been shown in the Register of Firms as partners in the firm.”

The Delhi High Court pointed out that Section 69(2), makes the registration of a firm a condition precedent to the institution of a suit by or on behalf of a firm against a third party. It deals with the question as to when a firm can sue, or be sued by, a third party in respect of a right arising from a contract, and provides certain requirements as conditions precedent for the institution of the suit, viz.. (a) that the firm is a registered firm, and (b) the persons suing are or have been shown in the Register of Firms as partners in the firm. On the other hand, Rules I and 2 of Order 30 of the Code of Civil Procedure provide the mode or form and the procedure for suits by or against a firm. In other words, the requirements in Section 69(2) should be satisfied first in order that a suit can be instituted, and then the provisions of Rules I and 2 of Order 30 are attracted as regards the mode or form in which the suit may be instituted as well as the procedure applicable to the said suit. In providing the mode Rule I prescribes a certain requirement, viz., that the persons mentioned therein must have been partners at the time of the accruing of the cause of action.

Then the court observed as under:

• (16) Thus, the provisions in Section 69(2) of the Partnership Act and those in Rule 1 of Order 30 deal with different aspects and operate separately. The former deals with the question as to when a firm can sue or be sued by a third party in respect of a right arising from a contract and prescribes certain requirements for the same, while the latter deals with the mode or form and the procedure for suits by or against firms, and prescribes a certain requirement for the same. It would not, therefore, be correct to interpret the. words “persons suing” in Section 69(2) and the point of time at which the requirements in Section 69(2) are to be fulfilled, by referring to the provision in Rule 1 of Order 30. In our opinion, the scope and effect of the two sets of provisions may be stated thus :
• (17) Under Section 69(2), a suit to enforce a right arising from a contract can be instituted by or on behalf of a firm against any third party only if (a) the firm is registered and (b) the persons suing, i.e., the persons suing, i.e., all the partners of the firm at the time of the institution of the suit, are or have been shown in the Register of Firms as partners in the firm, while under Rule I of Order 30 two or more persons who claim as partners may sue, or who are liable as partners may be sued, in the name of the firm (if any), provided such persons were partners at the time of the accruing of the cause of action. It the facts in a given case are such as to attract the applicability of the provisions in both Section 69(2) and Rule I of Order 30, the requirements in both the provisions should be fulfilled. In such a case, if a suit to enforce a right arising from a contract is to be instituted by or on behalf of a firm against any third party, the firm has to be a registered firm, and the partners ‘ of the firm as on the date of the institution of the suit must have been shown in the Register of Firms as partners in the firm, and further they must have been partners of the firm at the time of the accruing of the cause of action.
• (18) As regards the scope and effect of Section 69(2) of the Partnership Act, at view similar to the one expressed by us above baa been taken in the following decisions, vide-
• (1)Firm Manghoomal Jethamal v. Finn Aratmal Satramdas Air 1922 Sind 13 ;
• (2)Pratapchand Ramchand &Co. v. Jehangiriji Air 1940 Bom 257;
• (3)Sri Meenakshi Mills v. C. Swaminatha Mudaliar and Bros. AIR 1944 Mad 443;
• (4)Bank of Koothathikulam v. Itten Thomas. Air 1955 Travancore-Cochin, 155.
• (5)Dr. V. S. Bahl v. M/s. S. L. Kapur ami Co., AIR 1978 Delhi 255;
• (6)Kesrimal v. Dalichand A.IJt. 1959 Raj 140;
• (7)Hansraj Manot. M/s. Goraknatth Champalal Pandey, 66 C.W.N. 262;
• (8)Firm Buta Mal Dev Raj v.-Chanan Mal and others. A.I.R. 1964 Punjab 270;
• (9)Firm Alwar Iron Syndicate v. Union of India, AIR 1970 Raj 86,
• (10)M/s. Badrimal Ramcharan & Co. v. M/s. Gana Kaul & Sons Air 1971 J&K 109;
• (11)M/s. Chandrabhan Bansilal Ramratan Dass v. Municipal Council, Bikaner, AIR 1975 Raj 35 and
• (12)Ram Kumar Shew Chandrai v. Dominion of India. AIR 1977 Cal 37.”

In Firm Buta Mai Dev Raj v. Chanan Mai, AIR 1964 Punj 270 it was pointed out that in order to institute a suit, a partnership firm must not only be a registered firm but also all the persons who are partners in the firm at the time of the institution of the suit must be, or have been, shown as such in the Register. The expression “the persons suing” in Section 69(2) must mean the partners in the firm. The use of the plural “persons” is obviously deliberate, since -while a singular may also mean the plural, the plural can never mean, singular. When a suit is instituted in the name of a firm the suit is on behalf of all the partners, and not only such of them as are shown, in the Register as such, and all the partners must be “the persons suing” contemplated in Section 69(2).

In Firm Alwar Iron Syndicate v. Union of India, AIR 1970 Raj 86, it is observed as under:

• “6. It appears to me, however, that there is really no room for any controversy in regard to the correct meaning and purpose of Sub-section (2) of Section 69. It is well settled that a firm as such is not an entity in aw and is not a “person” within the meaning of Section 4 of the Partnership Act. Its name is therefore a mere abbreviated name of all its partners: Dulichand Laxminarayan v. Commr. of Income-tax, Nagpur, AIR 1956 SC 354. It is for this reason that special provisions have been made in Order 30, P. C. regarding suits by or against firms and persons carrying on business in names other than their own. So it is beyond doubt that even if a suit is brought in the name of a firm, it is really a suit by all its partners under the firm name. In other words, the persons suing are all the partners of the firm at the relevant date and none of them can, or obvious reasons, be left out for purposes of the suit. So it is incorrect to say that subsection (2) of Section 69 merely requires that only the person or persons actually signing the plaint on behalf of the firm should be shown in the Register of Firms as its partners. The word “persons” in the subsection has been used in the plural by design and serves an important purpose for it brings, out the real nature of a partnership firm which cannot consist of a single person. This is the view taken in –
• Kapur Chand Bhagaji, Firm v. Laxrnan Trimbak, AIR 1952 Nag 57 and
•  Dr. VS Bahal v. SL Kapur, AIR 1956 Punj 24.
• The decision in Dr. VS Bahal’s case, AIR 1956 Punj 24 does not appear to have been noticed in AIR 1959 Punj 530 on which reliance has been placed by Mr. JP Jain, but it has been followed in AIR 1964 Punj 270.
• It has also been followed in Hansraj Manot v. Gorak Natb Champalal Pandey, (1962) 66 Cal WN 262 and, if I may say so with respect, these judgments lay down the correct law on the point.”

Defect (not signing by Partner) Cannot be Cured by Amendment of Plaint

The plaintiff in Popular Automobiles v. Chami, was a partnership firm and the plaint is verified, signed and filed by the Manager claiming that he had been authorised by one of the partners. The Kerala High Court (1 February, 2001) relying on M/s. Shreeram Finance Corpn. v. Yasin Khan, AIR 1989 SC 1769, held that the suit was filed in violation of the mandatory provisions of S. 69(2) of the Indian Partnership Act; and therefore, the petition to amend the plaint was not sustainable.

If the parties were not properly described, it will be allowed to be corrected

In M/S CS Company v. The Kerala State Electricity Board (2022) it is held by the Kerala High Court that it was open to the court to allow to amend the pleadings if the parties were not properly described or if there was a defective description of the parties. Such defect cannot be said to be fundamental or in the nature which cannot be permitted to be corrected. Therefore, it was held that if at all there was a defect in the cause title, an amendment could have been permitted by the court below. Such defect if any cannot be made a ground to hold the suit to be not maintainable.

Registration of the Firm Must be proved by Certified Copy of Register

Nagpur High Court in Kapurchand Begaji Firm v. Laxman Triabuk, AIR 1952 Nag 57, held that the Register of Firms being a public document the requirements of Section 69(2) were to be complied with by producing a certified copy of an entry from that register; and that the oral evidence of the plaintiff-partner is not admissible as secondary evidence. The same view was taken in Chhotelal Darbarilal v. Mohammed Hussain AIR 1955 VP 44, M/s Badrimal Ramcharan and Co. v. M/s. Gama Kaul and Sons, AIR 1971 J&K 103; Sohanlal Basant Kumar vs Umraomal Chopra, 1985 (1) WLN 791.

Firm Need not be a Party

In M.S. Pearl Sound Engineer v. M/s. Poonam Chand, it was held that when the suit is instituted by all the partners, it was not necessary to implead the firm, and impleading the firm was merely a surplusage. (Referred to in: Sohanlal Basant Kumar vs Umraomal Chopra, 1985 (1) WLN 791).

Death of a Partner in the Registered Firm

In M/s Durga Das Janak Ram v. Preete Shah Sant Ram, AIR 1959 P H 530, Punjab High Court, following the decision of the Bombay High Court in Pratapchand Ramchand & Co. v. Jahangirji Bomanji, AIR 1940 Bom 237 held that the firm continued to be registered in spite of the death of one of the partners (and non-reporting of this fact to the Registrar) and the remaining partners were was entitled to institute a suit. But, in Krishna Chandra Agarwalla v. Shanti Prasad Jain, AIR 1981 Cal 199, it was held that if firm could not be maintained without the son of the deceased partner and his name did not appear in the Register of Firms, the suit filed by the firm could not be proceeded with. (See also: Maddi Sudarsanam v. Borogu Viswanadham Brothers, AIR 1955 AP 12; Sohanlal Basant Kumar vs Umraomal Chopra, 1985 (1) WLN 791).

Court will have no jurisdiction to entertain a suit in violation of Section 69(1)

In Abani Kanta Pal v. Unknown, AIR 1986 Cal. 143, it is stated as under:

• “9. In our opinion, it may be that S. 13(6) of the West Bengal Premises Tenancy Act puts an embargo on the plaintiff and does not oust the jurisdiction of the Court. A defendant in a suit for eviction may waive service of a notice under Section 13 (6). Section 69 (1) of the Partnership Act, however, stands on a different footing. The embargo that has been put on the plaintiff under sub-sections (1) and (2) of Section 69 is not for the purpose of protecting the interest of any party, but it is based on public policy. The requirements of sub-sections (1) and (2) of Section 69 cannot be waived by the defendant, and the Court is debarred from entertaining a suit ignoring the fulfilment of such requirements. So, if a firm is not registered, excepting a suit as contemplated by Section 69 (3), the Court will have no jurisdiction to entertain a suit in violation of Section 69(1). In other words, the plaint that has been filed by the plaintiff will be considered a void plaint, if it contravenes the provisions of sub-sections (1) and (2) of Section 69 of the Partnership Act. This view finds support from a decision of the Supreme Court in Loonkaran Sethia Vs. Ivan E. John, AIR 1977 SC 336. In that case, sub sections (1) and (2) of Section 69 were involved. The Supreme Court made the following observations;
  • “A bare glance at the section is enough to show that it is mandatory in character and its effect is to render a suit by a plaintiff in respect of a right vested in him or acquired by him under a contract which he entered into as a partner of an unregistered firm, whether existing or dissolved void. In other words, a partner of an erstwhile unregistered partnership firm cannot bring a suit to enforce a right arising out of a contract falling within the ambit of Section 69 of the Partnership Act.”

 “Share between the parties” is a prayer for “Dissolution”

In Mukund Balkrishna Kulkarni v. Kulkarni Powder Metallurgical Industries, (2004) 13 SCC 750, the Supreme Court considered the applicability of Section 69(1). The suit was for declaration that the respondent no. 1 was a partnership business in which both the appellant and the respondent no. 2 had equal shares along with the prayer for dissolution of the firm and rendition of accounts.

Section 69(1) Partnership Act directs that the registration of a firm is mandatory, and a condition precedent, to institute a suit  by one partner against the firm or another partner.

It was pointed out that the two embargoes which must co-exist for the plaintiff to be non-suited under Section 69(1) would be that:

• .i. The suit should be filed by a person “suing as a partner in a firm” and;
• ii. The suit must be to enforce a right arising from a contract.

The High Court held that the prayer of the appellant, namely,

• for a declaration of the existence of the partnership and
• the share between the parties

was a suit to enforce a right under a contract against the firm.

Allowing the appeal the Apex Court held as under:

• “A prayer for such declaration could not be said to be made by person suing as a partner. It was a prayer to be a partner and is therefore not debarred under the provisions of Section 69(1). Furthermore, what was in fact being prayed for by the appellant was a declaration of the existence of a contract between the parties. That could not be said to be a suit to enforce a right arising from a contract. The second prayer of the appellant was not to continue as a partner of the firm but to dissolve the firm. To that extent the appellant was suing “as a partner”.
• This he was entitled to do under Section 69(3)(a) which insofar as it is relevant, reads as follows:
  • “69. (3) The provisions of sub-sections (1) … shall not affect—
  • (a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm;”
• This decision is referred to in: Sunkari Tirumala Rao vs Penki Aruna Kumari (2025 INSC 92).

Sunkari Tirumala Rao v. Penki Aruna Kumari on 17 January, 2025

Our Apex Court, in Sunkari Tirumala Rao vs Penki Aruna Kumari (2025 INSC 92, 17 January, 2025), the plaintiffs filed the suit for recovery of money in their capacity as partners of an unregistered partnership firm, against the defendant in her capacity as a partner of the same unregistered partnership firm. The Apex Court (referring Seth Loonkaran Sethiya v. Mr. Ivan E. John, (1977) 1 SCC 379 and Mukund Balkrishna Kulkarni v. Kulkarni Powder Metallurgical Industries, (2004) 13 SCC 750) found –

• (i) a partner of an unregistered Partnership cannot sue against the firm or its partners for recovery of money and
• (ii) instead, the petitioner should have preferred a suit for dissolution of the partnership firm and rendition of accounts.

It is held as under:

• “8. It is evident from a reading of sub-sections (1) and (2) of Section 69 that it assumes a mandatory character. Section 69(1) prohibits a suit amongst the partners of an unregistered partnership firm, for the enforcement of a right either arising from a contract or conferred by the Act, unless the suit amongst the partners is in the nature of dissolution of the partnership firm and/or rendition of accounts. Section 69(2) prohibits the institution of a suit by an unregistered firm against third persons for the enforcement of a right arising from a contract. As a consequence, a suit filed by an unregistered partnership firm and all proceedings arising thereunder, which fall within the ambit of Section 69 would be without jurisdiction.
• 15. It is a clear as a noon day that the present suit had not been instituted by or on behalf of the firm against any third persons so as to fall under the ambit of  Section 69(2). The petitioners have also not filed the instant suit for enforcing any statutory right conferred under any other law or a common law right so as to exempt the application of  Section 69. Hence, the rigours of  Section 69(1) would apply on such a suit and the partnership firm being unregistered would prevent the petitioners from filing a bare suit for recovery of money from the respondent.
• 16. It would have instead been appropriate for the petitioner to have preferred a suit for dissolution of the partnership firm and rendition of accounts, especially considering that the factum of non-registration of the partnership firm would not have acted as bar in a suit for dissolution in light of the exception carved out under  Section 69(3). The defence that the partnership business had not yet commenced and thus, such a suit for dissolution could not have been preferred, would not be of any avail to the petitioners, particularly for overcoming the jurisdictional bar under  Section 69(1). The High Court is right in taking the view that a suit of such nature could not be said to be maintainable in the absence of the registration of the partnership firm.”

Part III

Unregistered Partnership Firm Cannot Bring A Suit for Enforcement of Contract

A suit hit by Sec. 69 Partnership will be struck off at the threshold – Mr. S.Thiagarajan v. M/S.Supreme Pipe Syndicate, 2018-1 Civil CC 775.

In Loon Koran v. Ivan E. John, AIR 1977 SC 336, it is observed as under:

• “A bare glance at the section is enough to show that it mandatory in character and its effect is to render a suit by a plaintiff in respect of a right vested in him or acquired by him under a contract which he entered into as a partner of an unregistered firm whether existing or dissolved, void. In other words, a partner of a erstwhile unregistered partnership firm cannot bring a suit to enforce a right arising out of a contract falling within the ambit of section 69 of the Partnership Act.” (quoted in: V.A. Abdul Wahab Sahib v. Abdul Subhan Sahib, (1998) 2 MLJ 720).

A co-ownership venture is not a Partnership; It is not Affected by Sec. 69 Bar

A partnership (that arises by an agreement to share profits or loss) cannot be put an end by a partner without consent of others; whereas in a co-ownership venture, a co-owner can transfer his interest. Because co-ownership activities are not governed by Partnership Act, Sec. 69 Bar is not applicable to the same.

Bar under Section 69 to ‘Other Proceedings’ also – to Get Rent Reduced

A suit by a tenant to get the rent reduced is thus a suit to enforce a right arising out of a contract of tenancy. The suit therefore falls under Section 69 of the Partnership Act. See: Gappulal Gordhandas v. Chunilal Shyam Lal, AIR 1961 Raj 286.

Bar to Claim Restoration of Benefits under S. 65 Contract Act

According to Section 65 of the Indian Contract Act, when an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it. Because of the bar under the provisions of Section 69 of the Partnership Act, it is found in Bijendra Prasad v. Smt. Duleshwari Devi, AIR 1998 Pat 122, that the partners of the unregistered partnership cannot claim benefits under Sec. 65 of the Contract Act.

Partnership Cannot Amend to Become a Proprietorship

S. Krishnan v. Aruna and Associates, (1979) 2 MLJ 1, it is held that a suit filed as a partnership cannot amend to become a proprietorship. It is observed as under:

• “When once he takes up a stand that it is a partnership firm, he should stand by it. Once he takes up the position that it is a dissolved firm, equally he should be prepared to substantiate it. But he cannot have a third way out of it by bringing in a person who was a quondam partner of the unregistered firm as if he has become the proprietor thereto on dissolution. This metamorphosis is not available in law.”

The Supreme Court Haldiram Bhujiawala v. Anand Kumar Deepak Kumar, in (2000) 3 SCC 250, observed as under:

• “The points that arise for consideration are:
• (I)Whether Section 69 (2) bars a suit by a firm not registered on the date of suit where permanent injunction and damages are claimed in respect of a trademark as a statutory right or by invoking common law principles applicable to a passing-off action?
• (II) Whether the words “arising from a contract” in Section 69 (2) refer only to a situation where an unregistered firm is enforcing a right arising from a contract entered into by the firm with the defendant during the course or its business or whether the bar under Section 69 (2) can be extended to any any contract referred to in the plaint unconnected with the defendants, as the source of title to the suit property?

On question No. 1 the Supreme Court held as under:

• “(9) The question whether Section 69(2) is a bar to a suit filed by an unregistered firm even if a statutory right is being enforced or even if only a common law right is being enforced came up directly for consideration in this Court in Raptakas Brett Co. Ltd. Vs. Ganesh Property, (1998) 7 SCC 184. In that case, Majumdar J.. speaking for the Bench clearly expressed the view that Section 69 (2) can not bar the enforcement by a way of a suit by an unregistered firm in respect of a statutory right or a common law right. On the facts of that case, it was held that the right to evict a tenant upon expiry of the lease was not a right ” arising from a contract” but was a common law right or a statutory right under the Transfer of Property Act. The fact that the plaint in that case referred to a lease and to its expiry, made no difference. Hence, the said suit was held not barred. It appears to us that in that case the reference to the lease in the plaint was obviously treated as a historical fact. That case is therefore directly in point. Following the said judgment, it must be held in the presence case too that a suit is not barred by Section 69 (2) if a statutory right or a common law right is being enforced.

It is held while answering question No. 2:

• “The above provision clearly signifies that the right that is sought to be enforced by the unregistered firm and which is barred must be a right arising out of a contract with a third party – defendant in respect of the firm’s business transactions….. The real crux of the question is that the legislature when it used the word “arising out of a contract” in Section 69(2), it is referring to a contract entered into in course of business transaction by the unregistered plaintiff firm with its customers – defendants and the idea is to protect those in commerce who deal with such a partnership firm in business. Such third parties who deal with the partners ought to be enabled to know what the names of the firm are before they deal with them in business.”

In this case our Apex Court pointed out as under:

• if the firm is not registered on date of suit and the suit is to enforce a right arising out of a contract with the third party- defendant in the course of its business, then it will be open to the plaintiff to seek withdrawal of the plaint with leave and file a fresh suit after registration of the firm subject of course to the law of limitation and subject to the provisions of the Limitation Act. This is so even if the suit is dismissed for a formal defect. Section 14 of the Limitation Act will be available inasmuch as the suit has failed because the defect of non-registra-tion falls within the words “other cause of like nature” in section 14 of the Limitation Act, 1963. See Surajmal Dagduramji Shop v. M/s. Srikishan Ram Kishan, AIR (1973) Bom. 313.”

In Ramachandraiah Gupta v. Ravula Venkat Reddy, 1971 Andhra WR. 243 (Justice O. Chinnappa Reddy) held as under:

• “Now, a firm is not a legal entity at all, but is a mere abbreviated name for the several partners of which it consists. Ordinarily, therefore, a suit may not be brought by a firm in its own name but a suit may be brought by all the partners acting together or by some of the partners only but impleading the other partners also as parties to the suit. However Order 30, Rule 1 of the Civil Procedure Code prescribes a special procedure by which a suit may be brought in the name of the firm. It provides that any two or more persons claiming or being liable as partners and carrying on business may sue or be sued in the name of the firm of which such persons were partners at the time of the accruing of the cause of action and that in such a case it shall suffice if one of such persons signs, verifies or certifies any pleadings or document required by the Code to be signed, verified and certified by the plaintiff or the defendant. The effect of a suit instituted in the name of the firm in the manner, prescribed by Order 30, Rule 1 is as if the suit is filed by all the partners collectively. Whether the suit is filed by all the partners collectively or by some only of the partners impleading the rest as parties to the suit or whether it is filed in the name of the firm prescribed by Section 69(2) must be fulfilled. They are (1) that the firm must be registered and (2) that the persons suing are or have been shown in the Register of Firms as partners in the Firm….”

S. 69(2) No Bar for Enforcement of a Statutory Right or a Common Law Right

Section 69(2) of the Act of 1932 is not a bar to a suit filed by an unregistered firm, if the same is for enforcement of a statutory right (like, trade mark) or a common law right or a right under TP Act (like, eviction of tenant – Govindaraja Naicker v. Sapthagiri Complex, ILR 1994 Kar 1832).

To attract the bar of Section 69(2) of the Act of 1932, the contract in question (i) must be the one entered into by firm with the third-party defendant and (ii) must also be the one entered into by the plaintiff firm in the course of its business dealings.

• Raptakos Brett & Co. Ltd. v. Ganesh Property: (1998) 7 SCC 184, Haldiram Bhujiawala v. Anand Kumar Deepak Kumar: (2000) 3 SCC 250. Referred to in: Shiv Developers v. Aksharay Developers, 2022 SCC OnLine SC 114.

S. 69(3) – No Bar for Suit for Dissolution

Sec. 69(3)(a) reads as under:

• (3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect,—
• (a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, 

See: Sharda Ginning Pressing & Oil Mills v. Smt. Bimla Devi, (2007) 146 PLR 807

S. 69(2) Bar – Contract must be one in the Course of the Business Dealings

In Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184, it is held as under:

• “23 The further and additional but equally important aspect which has to be made clear is that the contract by the unregistered firm referred to in Section 69(2) must not only be one entered into by the firm with the third-party defendant but must also be one entered into by the plaintiff firm in the course of the business dealings of the plaintiff firm with such third-party defendant.
• 24… The real crux of the question is that the legislature, when it used the words “arising out of a contract” in Section 69(2), it is referring to a contract entered into in course of business transactions by the unregistered plaintiff firm with its defendant customers and the idea is to protect those in commerce who deal with such a partnership firm in business. Such third parties who deal with the partners ought to be enabled to know what the names of the partners of the firm are before they deal with them in business.”
• 25 Further, Section 69(2) is not attracted to any and every contract referred to in the plaint as the source of title to an asset owned by the firm. If the plaint referred to such a contract it could only be as a historical fact. For example, if the plaint filed by the unregistered firm refers to the source of the firm’s title to a motor car and states that the plaintiff has purchased and received a motor car from a foreign buyer under a contract and that the defendant has unauthorisedly removed it from the plaintiff firm’s possession — it is clear that the relief for possession against the defendant in the suit does not arise from any contract which the defendant entered into in the course of the plaintiff firm’s business with the defendant but is based on the alleged unauthorised removal of the vehicle from the plaintiff firm’s custody by the defendant. In such a situation, the fact that the unregistered firm has purchased the vehicle from somebody else under a contract has absolutely no bearing on the right of the firm to sue the defendant for possession of the vehicle. Such a suit would be maintainable and Section 69(2) would not be a bar, even if the firm is unregistered on the date of suit. The position in the present case is not different. (Quoted in: Shiv Developers v. Aksharay Developers, 2022 SCC OnLine SC 114)

In Shiv Developers v. Aksharay Developers, 2022 SCC OnLine SC 114, it is held as under:

• “The relevant principles, when applied to the facts of the present case, leave nothing to doubt that the transaction in question was not the one entered into by the plaintiff firm during the course of its business (i.e., of building construction); and it had been an independent transaction of sale, of the firm’s share in the suit property, to the contesting defendants. The bar of Section 69(2) is not attracted in relation to the said sale transaction. Moreover, the subject suit cannot be said to be the one for enforcement of right arising from a contract; rather the subject suit is clearly the one where the plaintiff seeks common law remedies with the allegations of fraud and misrepresentation as also of the statutory rights of injunction and declaration in terms of the provisions of the Specific Relief Act, 1963 as also the Transfer of Property Act, 1882 (while alleging want of the sale consideration). Therefore, the bar of Section 69(2) of the Act of 1932 does not apply to the present case.”

Cause of action on dishonour of cheques & contract under Sec. 69

• In Afsal Baker vs. Maya Printers, 2016 SCC OnLine Ker 29914, it is held that the suit on the cause of action on dishonour of cheques can be brought independent of Sec. 69 of the Partnership Act, as it is not on a ‘contract’ stated in Sec. 69.

Suit by Sole (remaining) Partner Maintainable

In Gujarat Water Supply and Severage v. Sundardas Hukumatram Shivanani, AIR 1991 Guj 170, a contract was entered into by a partnership firm with the Government. One among the three partners of the firm was the plaintiff. Before filing the suit, other two partners had been retired. The plaintiff filed the suit for recovery of rights and liabilities of the dissolved firm. The High Court held that the suit was maintainable though the partnership firm was not registered.

A suit by one partner against another for damages on the grounds of the misconduct of his partner was held to be maintainable in Navinchandra Jethabhai v. Moolchand Sadaram Gindodiya, AIR 1966 Bom 111.

No Bar to Arbitration

It is held by our Apex Court in Kamal Pushp Enterprises v. DR Construction Company, AIR 2000 SC 2676, that Section 69(3) of the Partnership Act has no application to proceedings before an Arbitrator; and therefore, an Arbitration and Award would not be vitiated. (But see: Jagdish Chander Gupta v. Kajaria Traders (India) Ltd., AIR 1964 SC 1882)

Subsequent Registration Will Not Cure the Defect

In Delhi Development Authority v. Kochhar Construction Work, (1998) 8 SCC 559, following Shreeram Finance Corporation, it was held that proceedings under  the Arbitration Act were ab initio defective for the firm was not registered; and that the subsequent registration of the firm could not cure that defect. (Followed in U.P. State Sugar Corporation Ltd vs Jain Construction Co. (2004) 8 SCC 559) See also: Haldiram Bhujiawala v. Anand Kumar Deepak Kumar, 2000(3) SCC 250.

In Dwijendra Nath Singh v. Govinda Chandra, AIR 1953 Cal 497 (Dasgupta, G Ray, JJ.) the suit was brought by two persons who are described as the owners of the firm Samanta Naskar and Co. When the suit was instituted this firm had not been registered. It however was registered before the suit came to be heard. It was held following Firm Laduram Sagarmal v. Jamuna Prasad, AIR 1939 Pat 239 and Varadarajulu v. Rajmanika, AIR 1937 Mad 767, that a suit which was not maintainable by reason of non-compliance with S. 69 of the Partnership Act cannot become maintainable at a later stage by reason of registration and the subsequent registration cannot cure the initial defect.

Part IV

Benefits of Registration Partnership

The Partners of a registered partnership alone can –

• 1. file suits against third parties to enforce rights arising from a contract
• 2. claim set-off on such contracts.
  • (Note: A third party is free to file suits against a Firm irrespective of its registration status.)
• 3. sue Co-partners (or firm) for enforcing the clauses of Partnership Deed.
  • (Note: The Partners of an unregistered Partnership cannot enforce the clauses of Partnership Deed.)

When can a Partner of an Unregistered Firm File Suits against a Firm

The Partners of an unregistered firm can file suits against a firm  (i) for accounts of a dissolved firm, (ii) for the dissolution of a firm or (iii) for realising the property of a dissolved firm.

Effect of Non-Registration of a Firm

Section 69 deals with it. It reads as under:

• 69. Effect of Non-registration
• 1. No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.
• 2. No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.
• 3. The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect,—
  • (a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or
  • (b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909 (3 of 1909) or the Provincial Insolvency Act, 1920 (5 of 1920) to realise the property of an insolvent partner.
• 4. This section shall not apply,—
  • (a) to firms or to partners in firms which have no place of business in[the territories to which this Act extends], or whose places of business in [the said territories], are situated in areas to which, by notification under [section 56], this Chapter does not apply, or
  • (b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency-towns, is not of a kind specified in section 19 of the Presidency Small Cause Courts Act, 1882 (5 of 1882), or, outside the Presidency-towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim.

Execution Against a Partner who was not a Party in Trial

In J.K. Jute Mills Co. Ltd. v. Firm Birdhichand Sumermal (Mukerji, Beg, Agarwala, JJ), AIR 1958 All 176, while interpreting Order 21, Rule 50 CPC, Beg, J. (concurred by Mukerji, J.) referring earlier judgments, it was held that all the partners were not necessary parties in trial, to proceed in execution. Beg, J. summed up his Judgment observing the following:

• The decree can be satisfied not only from the property of the partnership, but also from the personal property of each of the partners.
• The question as to who are the persons who constitute the firm can be decided in execution proceedings.
• Order 21, Rule 50 is designed to define the scope and to lay down the mode and method of such an enquiry.
• Effect of Contrary View: If a partner (not impleaded or served) succeeds when re-agitate in execution proceedings, he would be fully bound by the decree which has already been passed in the suit against the firm, yet according to the order of the same Court at the execution stage in the same suit, he would not be so bound.
• A contrary view might result in a conflict between the findings at the trial and at the execution stage in the same case.
• Further, in such a case he would have to be held to be immune from personal liability as a partner even though his property as a partner would be liable for the satisfaction of the decree under Order 21, Rule 50(1) (a).
• Again, if a partner not impleaded or served in the suit is allowed to re-agitate the whole matter on merits, then it would be open to him to raise again the same pleas which were raised by other partners who were served in the suit.
• If the decision in the suit is not to be treated as res judicata against all partners, then it would be open to the same Court at the execution stage to take a different view of the same plea.
• The result would be that on the same point there would be two conflicting findings at two stages of the same case.
• Moreover, as a result of his objection at the execution stage, the claim might be found to be good against the firm only partially, even though the decree in the suit might postulate the liability in respect of the entire claim.
• The contrary view might result not only in a conflict between the decree in the suit and the order in execution proceedings in the same suit, but also in a conflict between various orders at the execution stage itself.
• Thus, where the number of partners who had not been served in the proceedings and against whom applications under Sub-rule (2) might be given is a very large and they are allowed to re-agitate the whole matter, the result would be that each time a fresh application against each of such persons is made, fresh objections might be taken.
• If this procedure is allowed, then there would neither be any consistency in findings nor would there be any finality of decisions in the same matter. The situation thus created would be a highly embarrassing and confusing one.
• If collusion, the matter has to be re-agitated either by a separate suit to have the decree set aside or by reviving the proceedings in the same suit itself.
• The Legislature has, also, provided some safeguard by making the leave of the Court necessary for proceedings under Sub-rule 2.
• Where facts are such as to raise the suspicion of collusion between the parties, the Court may refuse such permission. The enquiry contemplated against a person proceeded against under Sub-rule (2) was of a restricted character.

Order 21 Rule 50 CPC Reads As Under:

“50. Execution Of Decree Against Firm.

• (1) Where a decree has been passed against a firm, execution may be granted-
  • (a) against any property of the partnership;
  • (b) against any person who has appeared in his own name under rule 6 or rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner;
  • (c) against any person who has been individually served as a partner with a summons and has failed to appear:
• Provided that nothing in this sub-rule shall be deemed to limit or otherwise affect the provisions of section 30 of the Indian Partnership Act, 1932 (9 of 1932).
• (2) Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-rule (1), clauses (b) and (c), as being a partner in the firm he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined. 
• (3) Where the liability of any person has been tried and determined under sub-rule (2) the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. 
• (4) Save as against any property of the partnership, a decree against a firm shall not lease, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer. 
• (5) Nothing in this rule shall apply to a decree passed against a Hindu Undivided Family by virtue of the provision of rule 10 of Order XXX.”

Indian Law and English Law on Registration of Partnership Firm

English law required compulsory registration of partnership; contravention was punishable. In India it is optional. The Supreme Court, in Haldiram Bhujiawala v. Anand Kumar Deepak Kumar, (2000) 3 SCC 250, referred the Report of the Special Committee (1930-31, consisted of Sir Brojendra Lal Mitter, Sir Dinshah F. Mulla, Sir Alladi Krishnaswamy Iyer and Mr. Arthur Eggar.) which examined the draft Bill and made recommendations to the legislature. Para 17 of the Report reads as under:

• “17. The outlines of the scheme are briefly as follows. The English precedent, in so far as it makes registration compulsory and imposes a penalty for non-registration has not been followed, as it is considered that this step would be too drastic for a beginning in India, and would introduce all the difficulties connected with small or ephemeral undertakings. Instead, it is proposed that registration should lie entirely within the discretion of the firm or partner concerned; but, following the English precedent, any firm which is not registered will be unable to enforce its claim against third parties in the civil Court; and by partner who is not registered will be unable to enforce his claims either against third parties or against fellow partners”.

The Apex Court further pointed out that changes were made to the English law. The Court said:

• “Business Names Act, 1985 has replaced the above Act of 1916 and Section 4 of the new Act refers to the ‘Civil Remedies for breach of Section 4’. It provides for dismissal of the action ‘to enforce a right arising out of a contract made in the course of a business’ if the firm is not registered.”

Conclusion

Considering the Indian situations, while enacting the Partnership Act for India, in 1932, registration of firms was not made compulsory. After independence also, the provisions as to registration of firms were not changed. Obviously, it is also because of the proclamations in Article 19(1) of the Constitution of India (in Fundamental Rights Chapter) which read as under:

• (1) All citizens shall have the right
  • (a) to freedom of speech and expression;
  • (b) to assemble peaceably and without arms;
  • (c) to form associations or unions;
  • (d) to move freely throughout the territory of India;
  • (e)to reside and settle in any part of the territory of India; and
  • (f) (omitted)
  • (g) to practise any profession, or to carry on any occupation, trade or business.

‘Right to property’ was a Fundamental Right under Article 19(1)(g) of the Constitution of India. By the Constitution (Forty-fourth Amendment) Act, 1978, this right was omitted; and the right to property was belittled to a ‘Constitutional Right’ under Article 300A. It reads as under:

• “No person shall be deprived of his property save by authority of law.”

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End Notes

Dissolution of Partnership

Withdrawal of some Partners, and not by all, will not dissolve the firm. When any of the partner dies, retires or incapacitated and the remaining partners continue the business there will not be dissolution of the firm. Section 39 of the Partnership Act, 1932, as to the ‘dissolution of the firm’ says as under:

“39. Dissolution of A Firm:

• The dissolution of a partnership between all the partners of a firm is called the ‘dissolution of the firm’.”

Dissolution of a Partnership firm – Two Ways

• Dissolution otherwise than the intervention of the Court.
• Dissolution by Court.

Provisions of the Partnership Act

Sections 40 to 43 of the Partnership Act are the relevant provisions as to dissolution ‘otherwise than through the intervention of the Court’. They read as under:

Section 40: Dissolution By Agreement:

• A firm may be dissolved with the consenas to dissolution otherwise than through the t of all the partners or in accordance with a contract between the partners.  

Section 41: Compulsory Dissolution:

• A firm is dissolved (a) by the adjudication of all the partners or of all the partners but one as insolvent, or (b) by the happening of any event which makes it unlawful for the business of the firm to be carried on or for the partners to carry it on in partnership :
• Provided that, where more than one separate adventure or undertaking is carried on by the firm, the illegality of one or more shall not of itself cause the dissolution of the firm in respect of its lawful adventures and undertakings

Section 42: Dissolution on the Happening of Certain Contingencies: 

• Subject to contract between the partners a firm is Dissolution On The Happening Of Certain Contingencies dissolved (a) if constituted for a fixed term, by the expiry of that term; (b) if constituted to carry out one or more adventures or undertakings, by the completion thereof; (c) by the death of a partner; and (d) by the adjudication of a partner as an insolvent.

Section 43: Dissolution By Notice of Partnership At Will:

• (1) Where the partnership is at will, the firm may be dissolved by any partner giving notice in writing to all the other partners of his intention to dissolve the firm.
• (2) The firm is dissolved as from the date mentioned in the notice as the date of dissolution or, if no date is so mentioned, as from the date of the communication of the notice.

Dissolution by the Intervention of Court

Section 44: Dissolution By The Court:

• At the suit of a partner, the Court may dissolve a firm on any of the following grounds, namely:
• (a) that a partner has become of unsound mind, in which case the suit may be brought as well by the next friend of the partner who has become of unsound mind as by any other partner;
• (b) that a partner, other than the partner suing, has become in any way permanently incapable of performing his duties as partner;
• (c) that a partner, other than the partner suing, is guilty of conduct which is likely to affect prejudicially the carrying on of the business regard being had to the nature of the business;
• (d) that a partner, other than the partner suing, wilfully or persistently commits breach of agreements relating to the management of the affairs of the firm of the conduct of its business; or otherwise so conducts himself in matters relating to the business that it is not reasonably practicable for the other partners to carry on the business in partnership with him;
• (e) that a partner, other than the partner suing, has in any way transferred the whole of his interest in the firm to a third party, or has allowed his share to be charged under the provisions of rule 49 of Order XXI of the First Schedule to the Code of Civil Procedure, 1908, or has allowed it to be sold in the recovery of arrears of land revenue or of any dues recoverable as arrears of land revenue due by the partner;
• (f) that the business of the firm cannot be carried on save at a loss; or
• (g) on any other ground which renders it just and equitable that the firm should be dissolved.

In Sohanlal Basant Kumar v. Umraomal Chopra, 1985 (1) WLN 791, after referring various previous decisions the Division Bench of the Rajasthan High Court (D P Gupta, K Lodha, JJ.) came to the following conclusions:

• A firm is not a legal entity at all but is the collective term or an abbreviated name for all the persons who are partners thereof.
• All such persons who have entered into a partnership with one another are individually called partners and collectively they are called a firm and the name under which their business is carried on is called the firm name.
• Ordinarily, a suit may not be brought by a firm in its own name but a suit may be filed by all the partners acting together or by some of the partners only, but impleading the remaining partners also as parties to the suit.
• However, Order 30 Rule 1 of the Code of Civil Procedure prescribes a special procedure by which a suit may be brought in the name of the firm.
• Order 30 Rule 1 of the Code of Civil Procedure enables two or more persons, claiming or being liable as partners and carrying on business in partnership, to sue or be sued in the name of the firm, of which such persons are partners at the time of the accrual of the cause of action.
• Any party to a suit, in such a case, may apply to the court for a statement of the names and addresses of the persons who were at the time of the accrual of the cause of action partners in such firm.
• Where persons sue or are sued as partners in the name of the firm, it shall suffice if any of the partners may sign, verify or certify any pleadings or other documents required under the Code of Civil Procedure to be signed, verified or certified by the plaintiff or the defendant, as the case may be.
• If a demand is made as mentioned above, in the case of a suit instituted by the partners in the name of the firm, the plaintiffs shall forthwith declare in writing the names and places of residence of all partners constituting the firm on whose behalf the suit is instituted.
• Thus, there can be no doubt that a suit brought in the name of the firm is actually one by all the persons who were partners of the firm at the time of the institution of the suit.
• Thus although the firm is not a legal entity, yet the provisions of Order 30 Rules 1 and 2 C.P.C. enable several persons doing business as partners to sue or be sued in the name of the firm.
• The effect of a suit instituted in the name of the firm in the manner prescribed by Order 30 Rule 1 C.P.C. is as if the suit is filed by all the persons collectively.
• Whether the suit is filed by all the partners collectively or by some only of the partners impleading the rest as parties to the suit or whether it is filed in the name of the firm by one or more partners in the manner indicated by Order 30 rule I C.P.C. the conditions prescribed by Section 69(2) must be fulfilled.
• They are:
  • (1) that the firm must be registered; and
  • (2) that the persons suing are or have been shown in the Register of Firms as partners in the Firm.
• The second condition requires that the names of the persons suing are presently shown or have been previously shown in the Register of Firm as partners in the firm. That appears to fallow pliantly from the provisions of Section 69(2).
• The use of the conjunction ‘and’ shows that both the aforesaid conditions must exist together on the date of the institution of the suit.
• As a matter of fact, these two requirements constitute the conditions precedent to the institution of the suit.

• It may be pointed out that merely filing a statement under Section 58(1) of the Act in the office of the Registrar of Firms in the prescribed form, giving the particulars of the partnership firm and its partners together with the prescribed fee would not be enough for the fulfillment of the aforesaid conditions.
• A certificate of registration in the prescribed form should be made available to the partners of the firm and an entry of the statement filed under Section 58(1) should be recorded by the Registrar in the Register of Firms before the institution of the suit.
• Thus, even if the certificate of registration is made available, yet the second requirement of Sub-section (2) of Section 69 cannot be fulfilled merely by sending or delivering to the Registrar of Firms the statement required by Section 58, but it must also be shown that an entry of the statement so furnished was made by the Registrar in the Register of Firms before the date of the institution of the suit.
• Similar is the position of a statement sent to the Registrar under Section 65 of the Act intimating the alterations or changes occurring in the constitution of the firm on account of addition, death or retirement of some of the partners.
• Use of the expression ‘person suing” in Section 69(2) of the Act is significant.
• Ordinarily a singular used in an enactment includes a plural, but the use of the word ‘persons’ in the aforesaid provision indicates that the legislature intended to refer to all those persons who are the partners of the firm at the time of the institution of the suit.
• The reason is simple, as all these persons who desire to obtain a decree in their favour in a suit must become plaintiffs in the suit and all those persons against whom a decree is to be passed must similarly be made defendants in the suit.
• When the suit is filed by or on behalf of the partnership firm, either all the partners of the firm should individually be named as plaintiffs in the suit or some of them maybe named as plaintiffs, while the remaining partners may be named as proforma defendants in the plaint.
• Another alternative mode has been provided by Order 30 Rule 1 C.P.C. in such cases and the suit may be filed in the name of the firm, which name collectively represents all the partners of the firm at the time of institution of the suit.
• Such a suit filed in the name of the firm shall be deemed to be a suit on behalf of all the partners of the firm.
• The other limb of the requirement contained in Sub-section (2) of Section 69 is that all such persons who are partners of the firm at the time of the institution of the suit must be or have been shown in the Register of Firms as partners of the plaintiff firm.
• The expression “is or have been” refers to such persons whose names were entered in the Register of Firms as partners in the firm at the time of accrual of the cause of action and continues to remain so entered in the Register of Firms at the time of the institution of the suit. _{(It stands contrary to M/s. Shreeram Finance Corpn. v. Yasin Khan, AIR 1989 SC 1769.)}
• Thus either the persons whose names were entered in the Register of Firms as partners in the firm at the time of the accrual of cause of action and continued to remain so entered therein until the institution of the suit or persons whose names were entered in the Register of Firms as partners of the firm at the time of the institution of the suit could maintain a suit in the name of the firm or on behalf of the firm.
• It has also been held in some of the cases that all the persons whose names were entered in the Register of Firms on the date of the institution of the suit could file a suit notwithstanding the fact that the names of some other persons also find place in the Register of Firms as partners of the firm, who have either died or have since retired and thus ceased to be partners of the firm at the time of the institution of the suit.
• The crux of the matter is that the names of all those persons, who continued to hold together as partners of the firm at the time of the institution of the suit must be shown to be entered in the Register of Firms on the date of the institution of the suit.
• If the relevant entry in the Register of Firms containing some other names of persons who have either died or have retired from the partnership, the same would not affect the maintainability of the suit, in as much as the suit in the name of the firm could be filed only by or on behalf of the surviving partners of the firm.
• But if the name of one or more of the existing partners of the firm at the time of institution of the suit does not find place in the Register of Firms on that date, then the suit by or on behalf of the partnership firm is not maintainable.
• It is also clear that no oral evidence can be taken for the purpose of deciding as to who were the partners of the plaintiff firm at the time of the institution of the suit and the names of the persons suing must be shown in the Register of Firm as partners of the plaintiff firm at the time of the institution of the suit, as the suit in the name of the firm is virtually a suit by all the partners of the firm and in order to prove the fact as to who were the partners of the plaintiff firm at the time of the institution of the suit, the only evidence admissible is a certified copy of the relevant entry in the Register of Firms.
• Thus the only possible interpretation to be placed on the expression ‘are or have been shown in the Register of Firms’ could be the persons suing must either be presently shown in the Register of Firms as partners of the firm at the time of the institution of the suit or they must have been earlier shown in the said Register of Firms as partners of the firm, no other interpretation is possible so as to give a rational meaning to the provision.

Read in this Cluster:

Civil Procedure Code

• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant

Power of attorney

• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Permission when a Power of Attorney Holder Files Suit

Title, ownership and Possession

• POSSESSION is a Substantive Right in Indian Law
• Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law

Principles and Procedure

• Will – Probate and Letters of Administration
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Who has to fix Damages in Tort and Contract?
• Admission, Relevancy and Proof
• Relevancy, Admissibility and Proof of Documents
• Proof and Truth of Documents
• Production, Admissibility & Proof Of Documents
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant

Land Laws/ Transfer of Property Act

• Transfer of Property with Conditions & Contingent Interests
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE

Evidence Act – General

• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Best Evidence Rule in Indian Law
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• Sec. 65B
• Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• Law on Documents
• Time Limit for Registration of Documents
• Registration of Documents Executed out of India
• Are RTI Documents Admissible in Evidence as a ‘Public Documents’?
• Oral Evidence on Contents of Document, Irrelevant
• Marking Documents Without Objection – Do Contents Stand Proved?
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents: Presumption, Rebuttable
• Presumptions on Registered Documents & Collateral Purpose
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Presumptions on Documents and Truth of its Contents
• Proof and Truth of Documents
• Unstamped & Unregistered Documents and Collateral Purpose
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Relevancy, Admissibility and Proof of Documents
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Can an Unregistered Sale Agreement be Used for Specific Performance

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Can an Unregistered Sale Agreement be Used for Specific Performance

Easement

• What is Easement?
• Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Stamp Act

• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose

Will

• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Religious issues
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Knanaya Endogamy & Constitution of India
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

Book No. 3: Common Law of CLUBS and SOCIETIES in India

• General
  • General Features
  • Bye Laws Fundamental
  • Effect of Registration of Societies and Incorporation of Clubs
  • Societies and Branches
• Property & Trust
  • Vesting of Property in Societies and Clubs
  • Incidents of Trust in Clubs and Societies
• Juristic Personality
  • Juristic Personality of Societies and Clubs
  • Legal Personality of Trustees and Office Bearers
• Suits
  • Suits and Criminal Complaints By and Against a Company
  • Suits By or Against Societies, Clubs
  • Court’s Jurisdiction to Interfere in the Internal Affairs
  • How to Sue Societies, Clubs and Companies
• Amendment and Dissolution
  • Amendment of Bye laws of Societies and Clubs
  • Dissolution of Societies and Clubs
• Rights and Management
  • Rights & Liabilities of Members of Clubs and Societies
  • Individual Membership Rights in Societies & Clubs
  • Management – Powers of General Body and Governing Body
  • Expulsion of Members & Removal of Office-Bearers
  • Law on Meetings: An Overview
• Election
  • Election & Challenge in Societies and Clubs
  • Court Interference in Election Process
• State Actions
  • State-Interference in Affairs of Societies & Clubs

Book No. 4: Common Law of TRUSTS in India

• General Principles
  • What is Trust in Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
  • Trustees and Administration of Public Trusts
  • Alienation of Public Trust Property
  • Extinction, Discharge, Revocation, etc. of Public Trusts
• Breach of Trust
  • Breach of Trust and Removal of Trustees
• Suits by or against Trusts
  • Suits By or Against Trusts and Trustees
  • Remedies Under Sec. 92 CPC
• Law on Hindu Religious Endowments
  • Philosophy of Idol Worship
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • Knanaya Endogamy & Constitution of India
  • State & Court – Protectors of All Charities
• Ayodhya and Sabarimala Disputes
  • Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
  • Sabarimala Review Petitions & Reference to 9-Judge Bench
  • SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• General
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions