P L D 1962 (W (PLP)

11. It was alternatively pleaded that the plaintiff's suit was time‑barred. It was alleged that the Immovable properties Nos. 1 and 2 mentioned in Schedule A were in the possession of the firm of Abdul Husain Karimjee Marvi & Sons from 1930 which always remained in possession and collected rent and profits thereof and property No. 3 in Schedule A at no time belonged exclusively to the deceased but was acquired out of the partnership firm. It was for these reasons stated that the deceased had no subsisting interest in the properties at the time of the death of Abdul Husain Marvi. Likewise, the plaintiff's claim in respect of the business of the firm of Abdul Husain Karimjee Marvi & Sons was also time‑barred as was the claim in respect of the mortgage amounts. The cause of action was denied and it was denied that any demand was made by the plaintiff as alleged in 1954.

12. In para. 15 of the written statement it was alleged that the suit for partition was not maintainable and the suit was not properly valued, nor was the Court‑fee paid proper, as the properties and other assets were in the exclusive possession of the defendants.

13. The following issues, which were submitted by the Advo cates of the parties, were adopted by the Court:‑ "(1) To whom the suit property belonged ? (2) Was there any partnership between the defendants as alleged and late Abdul Husain Marvi ? (3) Were any of the properties mentioned in Schedules A & B of the plaint properties of the partnership firm ? If so, what is its effect ? (4) Was there a deed of dissolution between the late Abdul Husain Marvi and the defendants ? If so, is it a valid document ? (5) Was the alleged Waqf made by Abdul Husain Marvi valid and binding on the plaintiff? (6) To what share, if any, is the plaintiff entitled ? (7) Are the defendants liable to render accounts of the property ? (8) What is the interest of the plaintiff in the mortgage loan stated in para 7 of the written statement ? (9) Is the suit time‑barred ? (10) To what reliefs is the plaintiff entitled or what should the decree be ?"

14. It has been noticed in the pleadings that Schedule A of the plaint contains three items of immovable property. Of these Items Nos. 1 and 2 admittedly were two of the five properties which were awarded to Abdul Husain in the award, Exh. P‑13, which had been made on 10th November 1924, in an arbitration proceeding between Abdul Husain son of Karimjee Marvi on the one hand and his brother Tayabali on the other. The defendant No. 1, Ibrahimjee, has admitted the correctness of this award in his evidence. It was admitted by Ibrahimjee that his father Abdul Husain and his brother Tayabali were working together in the hardware business since the year 1900 and that Tayabali had claimed share in all the properties including the business and all this was a subject of the arbitra tion on which the award was made. It was, however, the case of Ibrahimjee that he and his brother Ghulam Husain were also working with their father since 1915 so that in the year 1930 when the partnership deed, Exh. D‑21, was drawn and an admission in that deed was made that these two properties and one more, which has since been sold away, were the properties of all the three partners, namely, Abdul Husain, Ibrahimjee and Ghulam Husain, the declaration in that deed was merely a statement of a fact which had already existed and it did not create or transfer any interest in immovable property. It has already been noticed that in the year 1924 Abdul Husain had parted with his brother Tayabali as a result of the arbitration award, Exh. P.

13. It was stated by the defendant Ibrahimjee that items 1 and 2 of Schedule A of the plaint were purchased in the year 1920 and that his father must have purchased these properties out of the income of the business which he was carrying on with Tayabali. After the partition between the two brothers of the business and all the properties as a result of the award the first partnership deed which came to ' be executed was the one of year 1930, Exh. D.

21. In this deed it is recited that the father and the two sons above‑named had been carrying on business in partner ship in the name of Abdul Husain Karimjee Marvi & Sons but had not executed any partnership deed between themselves and whereas they were desirous of having a formal partnership being drawn up and executed it was mutually agreed etc. And then follow the terms of the partnership According to the evidence of Ibrahimjee the business until 1924, so long Tayabali was working with Abdul Husain, was carried on in the name of Abdul Husain Karimjee Marvi and it was after 1924 that the name was changed to Abdul Husain Karimjee Marvi & Sons. In this partnership deed, Exh. D. 21, paragraph 3 recites as follows:‑ "The capital of the partnership shall be the stock‑in‑trade of the existing business its outstandings and moneys in the bank and the credit of the partnership in all which each partners has and shall have equal 1/3rd share fn the profits and loss as defined fn para 4 below and also in all the immovable properties described in the Schedule A hereto annexed. Though the immovable properties all stand in the name of Abdul Husain Karimjee Marvi each partner has an equal 1/3rd share therein as is hereby admitted by Abdul Husain Karimjee Marvi." The schedule of the Immovable properties attached to this partnership deed contained 3 properties, 2 of which are the items 1 and 2 of the Schedule A of the plaint. This admission in the partnership deed was strongly relied upon on behalf of the defendants In order to establish the ownership of the two sons in the said Immovable properties and it was contended, and rightly so, that as Abdul Husain was a party to this admission the burden of proof that this was not correct must be on the plaintiff. I shall now proceed to examine whether this admission has been disproved.

15. It has been admitted that these Immovable properties were purchased in the year 1920, out of the Income of the business which Abdul Husain was carrying on with Tayabali. In the award, which is a very exhaustive document, there is no mention of the two sons of Abdul Husain and admittedly they were not parties to these arbitration proceedings. By this award the entire immovable property which was held by the two brothers jointly and of the business carried on by them In the name of Abdul Husain Karimjee Marvi in partnership between the two brothers, was partitioned between the two of them. The entire property which was the subject of the partition was valued at Rs. 4,05,

000. From this was deducted the sum of Rs. 1,05,000 which was the liability of the joint business thus leaving property of the value of Rs. 3,00,

000. Out of this, property of the value of Rs. 1,60,000 was awarded to Abdul Husain and the remaining property of Rs. 1,40,000 to Tayabali. If Ibrahimjee and Ghulam Husain had been partners in this business they would have been joined as parties in these arbitra tion proceedings and in any case there would have been mention of them in the award, but nothing of the kind happened. It must also be noted that on Ibrahim's own admission he was only about 17 or 18 years of age when these immovable properties had been purchased which was in the year 1920. The other brother Ghulam Husain was even younger than Ibrahim so that it is impossible to hold that they bad made any contribution towards the acquisition of these properties, and even if these two brothers attended the shop before 1924‑a fact of which I am very doubtful‑it is plain that they had not become partners in the business. Partnership is a matter of an agreement and it is hard to believe that these two young boys would be made partners at a time when neither of them had any capital of his own nor would be in a position to make any other contribution worth the name to the business of the firm. The Issue is further clinched by the fact that neither of them had either been parties to the arbitration proceedings nor did they get anything in the award. That was the position till November 1924 and I do not think that there was any partnership between 1924 and 1930, between Abdul Husain and his aforesaid two sons. In fact, on the first day when Ibrabimji gave evidence he made a categorical admission that there was no partnership between him and his father before 1930. When he came on the following day he attempted to dilute this admission by saying what he had meant was that there was no written partnership until 1930. I do not accept this explana tion and I am of the opinion that his earlier unequivocal statement that there was no partnership between him and his father before 1930, represents the true state of affairs. I, there fore, hold that there was no partnership between Abdul Husain and his two sons namely, Ibrahimjee and Ghulam Husain before the year 1930, and the admission to the contrary in the partner ship deed stands rebutted. In fact, the admission is only that they had been carrying on business in partnership but it was nowhere said as to since when they had been so carrying on the business and, therefore, even if they became partners in 1924 after Tayabali had parted that would not entitle them to claim that the immovable properties bad been acquired jointly by them or they had any right or share in it. In fact the quotation from the partnership deed, Exh. D‑21, which has been reproduced above, does not say that these two sons have been joint owners of these immovable properties, much less than they had jointly acquired them with the father. All that it says is that all the three partners have equal 1/3rd share in these properties.

16. This conclusion is further strengthened by the fact that on 11th November 1939, two other sons of Abdul Husain, namely, Hatim Bhai and Fida Ali, defendants 2 and 3 who had by then become majors, were also taken in the partnership business of Abdul Husain Karimjee Marvi & Sons and in the new deed of partnership which was executed on 6‑2‑1940, Exh. D‑22, the share of the father and the two senior sons, in the immovable properties was reduced from 1/3rd to 1/5th so that all the 5 partners according to this new partnership deed were to have equal 1/5th share in the business as well as In the immovable properties described in Schedule A of that deed. That schedule contains the two immovable properties viz., items 1 and 2 of the Schedule A of the plaint which are the subject‑matter of the present discussion. If these properties had been jointly acquired by the father and the two elder sons, long before 1930, or if the two sons had become sole owner of 1/3rd share in those two immovable properties according to the partnership deed, Exh. D.‑21, they would not have allowed it to be split up between Hatimali and Fida Ali who had only on attaining majority joined this firm in 1939. From all the circums tances of the case I have reached the conclusion that these properties had not been jointly acquired by Abdul Husain, Ibrahimjee and Ghulam Husain and that Abdul Husain had never intended to give away 1/3rd share in the immovable properties to the two sons in 1930, or 1/5th to the four sons in the year 1940. These properties which had been acquired long before this partnership between the father and the sons came into existence remained the property of the father notwithstanding these partnership deeds and the fact that they were shown as partnership property in the Record‑of‑Rights.

17. It was then contended on behalf of the defendants that by virtue of the partnership deed, Exh. D.‑21, dated 21‑1‑1930, and by the subsequent deed of partnership, Exh. D. 22 dated 6‑2‑40, these two items of property had become the property of the firm Abdul Husain Karimjee Marvi & Sons and on the dissolution of that firm would be liable to be distributed among3t the partners in terms of their share which was 1/5th each, and this is what happened when the dissolution in this case took place on 31‑6‑45, by Exh. D.‑25 which has to be read with the waqf dated 13‑6‑45, Exh. D.‑

24. It was further contended that to bring certain immovable property into a firm no writing or registration is required. There is no doubt that this contention of Mr. Ramchandani finds support from a decision of the Calcutta High Court reported in Premraj Brahmin v. Bhaniram Brahmin (49 C W N 799). In that case relying upon section 253 of the Contract Act, which was replaced by section 14 of the Indian Partnership Act, and section 265 of the Contract Act, which was replaced by section 46 of the Partnership Act, it was held that these sections do not prescribe any particular mode by which properties have to be brought into common stock and, there fore, as soon as the partners intend that their separate properties should become partnership property and they are treated as such, then by virtue of the above provisions these properties become property of the firm, This result, in the opinion of the learned Judges, was not prohibited by any provision in the Transfer of Property Act or the Indian Registration Act. It may be noted that it had been conceded before their Lordships by the learned Advocate appearing for the respondent that a registered document was not necessary to bring in the land and the structure into the common stock. With great respect, I find it impos sible to accept the above conclusion. The provisions of section 14 of the Partnership Act, which describes the property of the firm, and section 46 of the same Act which deals with the B right of partners to have business wound up after dissolution, do not override the mandatory provision of the Indian Registration Act. Section 17 (b) of the Registration Act makes compulsorily registerable, non‑testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. Section 49 of the Act lays down that no document required by section 17 to be registered shall affect any immovable property comprised therein and shall not be received as evidence of any transaction affecting such property or conferring such power. There can be no doubt that when an immovable property belonging to a partner is by means of a deed so brought into the common stock of the firm so as to become the property of all the partners in the firm, it clearly, comes within the mischief of section 17 (b) of the Registration Act. It is true that when there is already an existing right into an immovable property and there is merely a declaration by way of a settlement it would merely amount to an acknowledgment of an existing right and a document containing such a declara tion would not be compulsorily registerable. But that is not the case here. I have already held that the two sons of Abdul Husain did not have any existing right in the immovable properties which were brought into the partnership and in which 1/3rd share each was given to the two sons. Much less there was any existing right of Hatim Bhai and Fida Ali when they joined the firm upon which the partnership deed dated 6‑2‑40, Exh. D‑22, was executed and which gave 1/5th share to each of the four sons including Hatim Bhai and Fida Ali. The Allahabad High Court in a case reported in Sundar Singh Majithia v. Commissioner of Income‑tax (A I R 1938 All. 452) took a similar view as Indicated by me above. Their Lordships held: "It is true that the partnership deed does not specifically mention buildings, but we are clearly of opinion that, since depreciation on account of buildings was claimed by this `firm' it must be held that, if the sugar factory was the self -acquired property of Sir Sundar Singh, shares in the buildings as well as in the business and machinery were distributed among the sons and wife of the owner. And such distribu tion could only be effected by means of a registered instrument."

18. In a case of the Madras High Court reported in S. Rao and another v. C. Venkatratnam and others (A I R 1925 Mad. 945) it was held as follows: "Though it is not necessary to have a written document to evidence dissolution of partnership yet when the parties have entered into an arrangement by which one partner purports to release his share in the partnership which was reduced to writing, that writing requires registration if any interest In immovable property of more than Rs. 100 in value has been released under the documents."

19. In a Privy Council case reported in Bageshwari Charan Singh v. Thakurain Jagarnath Kuari and another (AIR 1932 P C 55) the distinc tion between the acknowledgment of an existing right and creation or declaration of any right or title was clearly laid down. In that case an owner of an impartible estate had made a gift of certain land to his second wife and placed her in possession. This gift was void In view of certain provision of Chota Nagpur Encumbered Estate Act, 1876. In 1916, the donor applied for validation of the gift and produced the deed of gift. Nothing was done and the donor died in 1924. His successor sued to recover possession of the land conveyed by the gift. The trial Court had held that the petition for the validation of the gift was compulsorily registerable under section 17 of the Indian Registra tion Act. Their Lordships held that the petition did not require registration inasmuch as it was not itself one which created or declared any right or title in the alienor but merely acknowledged as a fact that such right or title was hers. Their Lordships further went on to observe that an instrument to come within section 17 (1) (b) of the Indian Registration Act must in itself purport or operate to create, declare, assign, limit or extinguish some right, title or interest of the value of Rs. 100 and upwards in immovable property.

20. In the present case there was no existing right in the sons of Abdul Hussain in the immovable properties and both the partnership deeds, Exhs. D‑21 and D‑22, purport to create and declare a right in immovable property and for want of registration they do not affect the property and are inadmissible in evidence to that extent. I, therefore, hold that the two partnership deeds did not effectively create any right or interest in favour of the four sons in the two immovable properties, items 1 and 2 of Schedule A of the plaint.

21. It was next contended by Mr. Ramebandani that in so far as these properties were in fact brought into the partnership in the year 1930, in which partnership the father and the two elder sons were the partners and then subsequently by the partnership deed Exh. D‑22 the father and the four sons became partners and the properties have been shown in the Record‑of- Rights as the firm's properties, the four sons must be held, at least from 1940, to be in adverse possession of their 1/5th share each and the suit which was brought in 1955, was barred by limitation. The burden of proving adverse possession would naturally be on the defendants. There is not one word in the evidence of Ibrahimjee to the effect that he and Ghulam Hussain were holding their alleged 1/3rd share in these two properties adversely to their father Abdul Hussain from 1930, when the first deed of partnership, Exh. D‑21, came into being or that the four sons including Hatim Bhai and Fida Ali were holding their alleged 1/5th share in the said properties adversely to their father from 1940, when the second deed of partnership was executed. No evidence from the account‑books have been produced to show how the income of these properties was actually appropriated. Mr. Ramchandani, however, relies upon the statement of Ibrahimjee where he says that the rents and profits of these properties were being collected by the firm and that this property was being treated as the property of the firm, and subsequent to the deed of relinquishment on 1945, the father made statement as per Exh. D‑37 before the Revenue Authorities that he had no interest in these properties and there fore, this is sufficient to hold that at least from 1940, the possession of the four sons in respect of the 4/5th share in the property was adverse to the father. There is no doubt that as from the date of dissolution which is 31‑6‑45, in which the father had disclaimed all interests in any of the properties including the other partnership assets, the possession of the sons would become adverse. This deed of dissolution is not effective for the purposes of the release by the father of his right in the immovable property as this deed is not registered as required by the Registration Act. But, there is ample authority for the proposi tion that even the deed is not admissible for giving effect to the disposition of the immovable property it can be looked into for D the purposes of determining the nature of possession. This is the view taken by the Privy Council in the case of Varada Pillay v. Jeevarathnamal (I L R 43 Mad. 244). In fact, at the time of the argument it was conceded by Mr. Abbasi, the learned counsel for the plaintiff, that adverse possession would commence from 31‑6‑45, which is the date of the deed of dissolution which also deals with the distribution of properties. But this would not help the defendants because the suit was instituted in 1955, that is, within 10 years of the dissolution and distribution. The question then for determination is whether adverse possession has been established from 1930, (Exh. D‑21) or at least from 1940, as a result of Exh. D: 22.

22. A great deal of case law was cited by Mr. Abbasi, ail of which was on the point that possession of one co‑owner is possession on behalf of all the co‑owners. These cases, however, do not render any assistance, because it is not the case of the plaintiff that the sons had become co‑owners of the two immov able properties by virtue of the partnership. The question which needs determination is whether in spite of the fact that no title was conferred by the two partnership deeds upon the sons they can be held to have been in possession of their shares as described in the deed, adversely to their father Abdul Husain. No parallel case was cited at the bar on this point, nor have I been able to find one. The question of adverse possession is essentially a question of fact. What constitutes adverse posses sion has been succinctly put in the commentary by Rustamji on the Limitation Act at page 826 of its sixth edition. This is what the learned author has said "No matter in what jurisdiction the determination of what constitutes adverse possession may arise, the decisions and text‑books are unanimous in declaring that the possession must be actual, visible, exclusive, hostile, and continued during the time necessary to create a bar under the statute of limitation. Whenever any of these elements is lacking, no title by adverse possession can ripen." The rule is so exiomatic that it is unnecessary to refer to case law on the point. What is the evidence in this case regarding the possession of the‑ sons being either exclusive or hostile to the father ? Such conclusion cannot be reached merely from the fact that these properties were described as partnership properties or even treated as such. Such a right could only be created by a proper deed duly registered, In my opinion in the absence of such a document, the mere fact that property was described or treated as partnership property, does not constitute the hostile act against the true owner. Exclusive and hostile possession by one partner against another of a property, which is treated as a partnership property, is a contradiction in terms. Therefore, if a partner is to succeed in respect of his claim in an immov able property of one of the partners and which had been treated as a partnership property, he has got first to show that the property legally became the property of the partnership, and the interest of the partners was validly created into it. Where this has not happened, I do not think a partner can turn round and claim any right 1n the immovable property by asserting adverse possession against the real owner who is also a partner of the firm. There may be an extreme case where one partner may really be holding a particular property adversely to all the partners and may even get his title perfected by this process, but that would be by virtue of his exclusive, open and hostile possession as against the real owner. But he cannot achieve this result merely by saying that he was a partner of the firm and the immovable property was being treated as a property of the firm. Whatever other incidents may arise from such a situation it cannot be the basis of a plea of adverse possession against a partner. I, therefore, hold that the defendants have failed to establish that they have become the owners of the properties by adverse possession or for that reason the suit of the plaintiff in respect of these two properties is barred by limitation. Adverse possession only commenced in 1945, and if we take that as a point of time of the commencement of adverse possession the defendants' title had still to ripen and the suit was brought within time.

23. I have so far dealt only with the properties which are described by items 1 and 2 of the Schedule A of the plaint. I shall now proceed to deal with the third property in that schedule and the claim for accounts in respect of the two firms which are the subject‑matter of Schedule B, and the further claim in respect of the two mortgages which are tile subject‑matter of Schedule C of the plaint.

24. The third item of the immovable property in Schedule A is a plot of land with building thereon bearing survey No. W. O. 6/6 situate in Wadhomal Odharam Quarters, Bunder Road, Karachi. This property was purchased by a registered sale deed dated 11‑7‑39, Exh. D‑

23. The purchaser of this pro perty is the firm itself, in whose favour the sale deed stands. There is no evidence worth the name that this property was purchased by the funds provided by Abdul Husain alone. I cannot accept the evidence of the plaintiff or her husband that this property or the business and the movable assets of the two firms exclusively belonged to Abdul Husain and this immovable property, item No. 3 of Schedule A, had been, only nominally purchased in the name of the firm. The plaintiff, who was 25 years of age when she gave evidence on 24‑11‑60, could have no personal knowledge of these facts and her husband to whom she was married in 1952 could not have any better knowledge. Inasmuch as this immovable property was purchased by the firm and considering that it was throughout treated as the partnership property I hold 1n the absence of any reliable evidence to the contrary that it was not the exclusive property of Abdul Hussain in which the plaintiff could claim 1/10th share. This being a partnership property by virtue of the sale deed itself it was properly dealt with at the time of the dissolution of the firm.

25. Coming to the Schedule B, which contains two items viz. the firm of Abdul Husain Karimjee Marvi & Sons and Adam Trading Co., I cannot upon the evidence hold that the four sons of Abdul Husain were not the partners of this firm and that the partnership was only in name for the purpose of avoiding the incident of income‑tax. It is an old firm and was registered with the Registrar of Firms as far back as 1933 (Exh. D‑31), and the plaintiff has failed to prove that this partnership was merely in name and that Abdul Husain continued to be the sole owner of all its assets. As regards the other firm viz. Adam Trading Co., there is the evidence of Ibrahimjee to the effect that this firm was started in the year 1948 and the two partners of it were his two sons who later on were joined by his third and fourth sons. The partnership deed of this firm was executed in 1949 (Exh. D‑30) and supports Ibrahimjee's version. This partnership was formed after the dissolution of the firm Abdul Husain Karimjee Marvi & Sons. In this firm Abdul Husain had clearly no right or interest.

26. There is another fatal objection to the plaintiff's claim in respect of the movable assets of the firm Abdul Husain Karimjee & Sons. A suit for accounts and share of profits of a dissolved partnership must be brought within 3 years of the date of dissolution. The dissolution in this cast took place on 30‑6‑45 and the plaintiff's claim, therefore, to that extent is clearly barred by time. Mr. Ramchandani relied upon a case of the Sind Judicial Commissioner's Court reported in Ismail v. Tyeballi Essaji (24 S L R 81). It supports him only to the extent that a partner can only sue for the settlement of accounts of the partnership and the assets thereof, but this case does not help him with regard to the other two immovable properties for the simple reason that I have found that those properties had not become the property of the partnership.

27. With regard to the claim to the mortgages contained in Schedule C of the plaint, in the first mortgage relating to plot No. W. O. 3/20, known as Premji Kunwarji Building, the original mortgage deed clearly shows that the mortgagee was not Seth Abdul Husain Karimjee Marvi but the firm. The mortgagee described in the deed as Seth Abdul Husain Karimjee Marvi & Sons by their managing partner Seth Ibrahimjee Abdul Husain Marvi. This mortgage transaction was clearly in favour of the firm by means of a registered deed of mortgage and in the absence of any reliable evidence to the contrary 9t must be held to have been the property of the firm, and was thus properly dealt with on the dissolution of the firm. The second mortgage was in favour of Mst. Kulsum Bai, defendant No.

4. This mortgage was also by means of a registered deed and there is no reliable evidence upon which I can hold that Kulsum Bai was merely a Benamidar and that the mortgage interest belonged to Abdul Husain. 1, therefore, hold that the plaintiff has no right to any claim in respect of these two mortgage transactions.

28. We then come to the point when the firm was dissolved which event was followed by private partition of immovable pro perties amongst the sons and later on amongst the heirs of Ghulam Husain who died in 1953. This deed of dissolution was executed on 30‑6‑

45. It is an unregistered document. But before this deed was executed there was a deed of settlement dated 13th June 1945 whereby the immovable property bearing survey No. 8/8 situate in Wadhomal Odharam Quarters became the subject‑matter of a charitable trust to be utilized for maintaining a maternity home for the benefit of the Dawoodi Bohra Com munity. This property is not the subject‑matter of the suit. But it was the contention of the defendants that this trust was made solely at the instance of Abdul Husain Kurimjee and in consideration of this he relinquished all his rights, title and interest in all other properties including the assets and goodwill of the firm of Abdul Husain Karimjee Marvi & Sons. This is a properly registered deed of settlement. A perusal of this deed clearly shows that this charitable trust was created not merely by Seth Abdul Husain but by him and all the four sons who were partners with him in the firm. The settlement for the charitable purpose is made by the firm and the 5 settlers are the aforesaid partners. In fact, in this transaction it was the eldest son Ibrahimjee who had played the leading part and bad acted as the attorney of Seth Abdul Husain Karimjee Marvi for the purpose of creating this trust. Ibrahimjee in his evidence has stated that this charitable trust bad been made at the instance of Abdul Husain alone. I cannot accept this in view of the ciear recital in the document itself Exh. D‑

24. We then come to the deed of dissolution, Exh. D‑

25. It no doubt recites that in consideration of Abdul Husain receiving this property, survey No. 8/8, (of which a Waqf was created at his instance) he had retired from the partnership anti in effect would have no interest in the firm, or its assets, or the immovable properties, or the H mortgages. This statement in order to constitute an effective relinquishment in respect of immovable property would be inadmissible inasmuch as this deed of dissolution is an unregistered document. Furthermore I have, upon the basis of clear recital in the deed of settlement itself, held that that settlement was done by all the five persons and not by Abdul Husain alone. But, apart from the immovable properties, there is no doubt that this deed of dissolution is effective with regard to all other assets of the firm.

29. The plaintiff and her husband and a tenant P. W. 3 have attempted to make out that Abdul Husain in consequence of paralysis in 1945 had lost control of all his senses and was completely unfit to understand the transaction which are evinced by the documents Exhs. D‑24 and D‑25 and the subsequent dis claimer by him before the revenue authorities. On this point however I am inclined to accept the statement of Ibrahimjee that even though Abdul Husain had received a paralytic stroke he had more or less recovered from it and was in complete control of his senses. This conclusion is borne out by the fact that even though Abdul Husain got this stroke in 1945 lived for an other 5 years and died in 1950. I am, therefore, of the opinion that this is not a ground upon which the dissolution etc., can be challenged. In view of the conclusion recorded by me my findings on the issues are as follows:‑

30. Issue No. 1.--‑Item No. 3 in Schedule A of the plaint (which contains the three Immovable properties) belonged to the firm of Abdul Husain Karimjee Marvi & Sons. Item Nos. 1 and 2 belonged to Abdul Husain Karimjee Marvi tbotagh from the date of the dissolution deed it was held by the defendants adversely to Abdul Husain.

31. Issue No. 2.‑There was a partnership since 1930 between Abdul Husain and his two sons, namely, Ibrahimjee and Ghulam Husain in the first instance, and from 1940 between Abdul Husain and his four sons, namely, Ibrahimjee, Ghulam I3usain, Hatim Bhai and Fida Ali.

32. Issue No. 3.‑The finding on issue No. 1 covers the first part of this issue which relates to the properties described in Schedule A of the plaint, As regards Schedule B my finding is that the movable assets and item No. 3 of Schedule A belonged to the firm of Abdul Husain Karimjee Marvi & Sons. I further find that this firm had no connection with the other firm, viz., Adam Trading Co. which belonged to the sons of Ibrahim.

33. Issue No. 4.--‑Yes, there was a deed of dissolution Exh. D‑25, dated 30‑6‑45 between Abdul Husain and his four sons. It is a valid document only as far as the movable assets of the said firm are concerned.

34. Issue No. 5.‑This issue was not pressed and was dropped.

35. Issue No. 6.‑There is no dispute that the plaintiff would, according to Muhammadan‑ Law, by which the parties are admittedly governed, be entitled to 1/10th share in t‑he property, it' any, left by the deceased Abdul Husain. I find accordingly.

36. Issue No. 7.‑The defendants are not liable to render accounts as claimed and the plaintiff's claim in this regard is barred by time.

37. Issue No. 8.‑The plaintiff is not entitled to claim any thing in respect of the two mortgage loans which are the subject matter of Schedule C of the plaint.

38. Issue No. 9.--‑The plaintiff's suit with regard to accounts is barred by time, but her claim in respect of her 1/10th share in the properties, viz. items 1 and 2 of the plaint is not barred by time inasmuch as adverse possession commenced on 30‑6‑45 and the suit was brought on 2‑3‑55.

39. Issue No. 10.‑In view of my findings recorded above the only question which remains for consideration is whether I can grant to the plaintiff the relief oz partition and separate posses sion in respect of the properties, viz., items 1 and 2 of Schedule A of the plaint.

40. In para. 9 of the amended plaint this is what the plaintiff pleaded : "That the value of this suit for the purposes of jurisdiction is Rs. 200 in the first instance but as the parties are in joint possession of the property in suit, a fixed Court‑fee stamp of Rs. 15 is paid herewith under Article 17 (iv) (c) and Article 17 (vi) of the Court Fee Act." The plaintiff thus framed the suit on the allegation of joint possession and paid a fixer: Court‑fee under Article 17 (vi) of the Court Fees Act on the ground that the relief for partition was such which it was not possible to estimate at a money value. There is nothing, in the evidence on the side of the plaintiff to show that she was in joint possession of any of the properties. In fact, in view of overwhelming documentary evidence to the contrary even if some evidence had been led it would not have been possible to accept it. In consequence of the dissolution of the firm as evinced by Exh. D‑25 dated 30th June 1945. Abdul Husain retired from the partnership. The sons then entered into a fresh partnership by a deed dated 24th November 1945, Exh. D‑

26. On the dissolution of the firm mutation in respect of the immovable properties in question was effected in favour of the new firm which consisted of the 4 sons, namely, Ibrabimjee, Ghulan Husain, Hatim Bhai and Fida Ali. This is in the evidence of Ibrahimjee which is supported by the extracts of property register, Exhs. D‑32/5 and D‑32/7. There was then an oral partition of these immovable properties including the property bearing item No. 3 in Schedule A of the plaint, whereby the property item No. 1 fell to the share of Ghulam Husain and Fida Ali while the property item No. 2 went to defendant No. 1 Ibrahimjee and the property item No. 3 went to defendant No. 2 Hatim Bhai. This division was duly recorded in the Record of Rights, and is evidenced by extracts of the property register, Exhs. D‑32/6, D‑32/8 and D‑32/9. After this private partition a fresh partnership deed was drawn up between the four sons on 10th March 1947 and no immovable property was shown as an asset of that firm. Thereafter, the sons and, after the death of Ghulam Husain in 1953, his heirs, have been in exclusive posses sion of the property which fell to their share in the private partition. Where then is the question of joint possession by the plaintiff ? No attempt was made to amend the plaint even though it had been conceded that the adverse possession in res pect of the immovable properties commenced from 30th June 1945 which is the date of the deed of dissolution. That being so, the suit being based on the allegation of joint possession must fail. I may refer to a Bench decision of the Calcutta High Court reported in Premananda v. Dhirendra Nath Ganguly and others (A I R 1950 Cal. 397). In that case also a fixed Court‑fee of Rs. 15 had been paid and after both the parties had examined their witnesses and produced documents and closed their evidence the learned trial Judge heard the arguments and then passed an order directing the appointment of a Commissioner to ascertain the proper valuation of the suit property as he was of the opinion that ad valorem Court‑fees on the value of the property was payable on the plaint. This order was challenged by an application in the High Court, and their Lordships held as follows:‑ "Whatever may transpire in the evidence, the plaint remains the same until and unless it is amended, and a conclusion on a consideration of the evidence that the plaintiff is or is not in possession cannot affect the nature of the suit as instituted in the plaint. In this case the plaint as already stated was for partition on the allegation of joint possession with other co- sharers and so long as that plaint is not amended it must be held that the Court‑fees paid are sufficient, no matter what may transpire in the evidence. If and when a Court comes to the conclusion that the allegation of joint possession in the plaint is not borne out by 1 the evidence the obvious result would be that the plaintiff's suit would fail unless the plaint is suitably amended and further Court‑fees paid."

41. In the present case also the plaintiff's suit for partition was based upon the allegation of joint possession, which allegation has been decisively disproved and the plaintiff's claim with regard to partition and separate possession of the immovable properties, items Nos. 1 and 2, must be dismissed on the ground stated above. Her claim for mesne profits in respect of the said property must also fail. With regard to the property, item No. 3, and the claim for accounts in respect of the two firms and the share in the two mortgaged transactions I have already held that she is not entitled. I, therefore, dismiss the plaintiff's suit, but having regard to all the circumstances of the case make no order as to costs. K. B. A. Suit dismissed.