Whether deed dissolving partnership firm is to be registered?

The question raised in that case was whether the arbitration award, distributing assets of the firm after settlement of accounts, between partners in accordance with their shares, was compulsorily registrable under S. 17 of the Registration Act, 1908. Herein, it is to be emphasised that, no such dispute arises, since the impounding was occasioned when the document was presented for registration. Dissolution of partnership, whether it was compulsorily registrable, when the partnership assets included immovable property, was a vexed question which was finally resolved in the two decisions referred to in N. Khadervali Saheb (supra); viz., S.V. Chandra Pandian v. S.V. Sivalinga Nadar (MANU/SC/0450/1993 : (1993) 1 SCC 589) and Ratan Lal Sharma v. Purshottam Harit (MANU/SC/0003/1974 : (1974) 1 SCC 671).

9. Ratan Lal Sharma (supra) was concerned with the necessity of registration under Section 16 of the Registration Act. The dispute between the two partners was referred for arbitration, in which the partnership assets were assigned to one partner, in consideration of a specified sum. This exclusive allotment of the assets of the partnership, which included immovable property, was held to create rights in the immovable property, thus making registration compulsory. This decision was pressed to advance the contention of compulsory registration of an arbitration award which allotted the immovable properties and assets of a partnership to each of the partners in accordance with their shares S.V. Chandra Pandian (supra). The decision in Ratan Lal Sharma (supra) was distinguished in S.V. Chandra Pandian (supra) in the following manner:

"This Court while reiterating that the share of a partner in the assets of the partnership comprising even immovable properties, is moveable property and the assignment of the share does not require registration under Section 17 of the Registration Act. The legal position is thus affirmed. However, since the award did not seek to assign the share of the respondent to the appellant but on the contrary made an exclusive allotment of the partnership asset including the factory and liabilities to the appellant, thereby creating an absolute interest on payment of consideration of ` 17,000 plus half the amount of the realisable debts, it was held to be compulsorily registrable under S. 17 of the Registration Act. The Court did not depart from the principle that the share of a partner in the asset of the partnership inclusive of immovable properties, is moveable property and the assignment of the share on dissolution of the partnership did not require registration under S. 17 of the Registration Act. The decision, therefore, turned on the interpretation of the award in regard to the nature of the assignment made in favour of the appellant".

10. The essential distinction hence is in looking at whether there is an allotment of the surplus assets, on dissolution, amongst the partners. If that is so, the partners who owned the assets together, during the existence of the partnership, had a right to share in the business in accordance with their shares. On dissolution and allotment of the remaining assets, even if there is immovable property, each goes with his share, not creating any new right But when there is an assignment in favour of one or other and consideration is passed then it creates new rights on the immovable property. A deed creating such rights would have to be registered compulsorily and the creation of such right is a "release" under Article 48(b) to be stamped accordingly.

IN THE HIGH COURT OF KERALA

W.P.(C) No. 34751 of 2008

Decided On: 22.06.2015

 Vinayakrishnan Vs.Commissioner for Land Revenue

Hon'ble Judges/Coram:

K. Vinod Chandran, J.

Citation:2015 (3) KLT 214 : 2015 (3) KLJ 347 : ILR 2015 (3) Ker. 537 : 2015 (3) KHC 752

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Whether landlord can apply for release under rent Act through power of attorney?

In the instant case, it is the owner who has applied for release under Section 21 of the Rent Act through power of attorney. The application through power of attorney is as if it is by the principal. The power of attorney has not set up his own need and has not filed the release application in his own name. Therefore, the submission that the release application is not maintainable as it has been filed through the power of attorney holder has no force.
The power of attorney holder acts on behalf of the principal and not for any of his personal rights. There is no express prohibition under the Rent Act debarring the owner-landlord from applying for release through power of attorney holder. 
The submission that the release application is not signed and verified by the owner and landlady as contemplated by Rule 15 of the Rules framed under the Rent Act is also without substance. 
Rule 15 of the Rules provides that the application for release must be signed and verified in the manner prescribed under Rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure. 
Rule 14 of Order VI C.P.C. states that every pleading shall be signed by the party and his pleader, if any. Under the proviso it lays down that if a party is not available it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf. It by necessary implication means that ordinarily pleadings/release application are required to be signed by the party concerned but in his absence a person duly authorised to sign on his behalf may also sign it which definitely includes the power of attorney. 
Thus, there is no bar for the power of attorney holder to sign and verify the pleadings as contemplated by Rule 14 Order VI C.P.C. referred to in Rule 15 of the Rules framed under the Rent Act. 
The release application in the case at hand as stated earlier, has been filed in the name of the owner-landlady through the power of attorney holder. It has been signed and verified by the power of attorney holder on behalf of the owner-landlady. The owner-landlady by her own affidavit (paper No.74A-2) has accepted that the release application has been filed on her behalf through the power of attorney holder and that she reiterates and verifies the contents of the release application. 
In view of the above, there is no illegality in signing and verifying the release application by the power of attorney holder. 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 WRIT - A No. - 1974 of 2015 

Smt. Rashmi Bhatiya And Another. 
 Smt. Geeta Sharma And Another. 
Citation: 2016 SCCONLINEALL617,
Hon'ble Pankaj Mithal,J. 

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When deed assigning property at the time of dissolution of partnership firm is liable to be stamped?

The essential distinction hence is in looking at whether there is an allotment of the surplus assets, on dissolution, amongst the partners. If that is so, the partners who owned the assets together, during the existence of the partnership, had a right to share in the business in accordance with their shares. On dissolution and allotment of the remaining assets, even if there is immovable property, each goes with his share, not creating any new right. But when there is an assignment in favour of one or other and consideration is passed then it creates new rights on the immovable property. A deed creating such rights would have to be registered compulsorily and the creation of such right is a "release" under Article 48(b) to be stamped accordingly.

Equivalent Citation: 2015 (3) KHC 752

IN THE HIGH COURT OF KERALA

W.P. (C) No. 34751 of 2008

Decided On: 22.06.2015

Vinayakrishnan M.C. Vs.Commissioner for Land Revenue and Ors.

Hon'ble Judges/Coram:K. Vinod Chandran, J.

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