TaxTMI 
TaxTMI 
1966 (10) TMI 6
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.... The fourth partner was one Chandrika Prasad and it was his son, Jhabboo Lal, a minor, who was said to have been admitted to the benefits of partnership. The firm was constituted under a deed of partnership dated 22nd October, 1949. The preamble to the partnership deed reads: "Whereas the first, second, third, fourth and fifth parties formed a joint Hindu family and have divided their movable property by means of the award of an arbitrator dated 21st October, 1949. And whereas the first, second, third and fourth parties have expressed a desire to carry on two businesses at Mirzapur and one at Unchhora in partnership....... " The relevant clauses of the deed of partnership are: "3. That Shri Jhabboo Lal, minor, the fifth party is....
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....ellate Assistant Commissioner. It was contended that the intention of the partners was only to admit Jhabboo Lal to the benefits of partnership and even if some clause of the partnership deed appeared to suggest that Jhabboo Lal was being treated as a full-fledged partner for certain purposes, such clauses should be deemed to be non-operative and the firm was entitled to registration. In support of this contention the assessee relied upon the decision of the Madras High Court in Jakka Devayya & Sons v. Commissioner of Income-tax, P. Vincent v. Commissioner of Income-tax, Dwarkadas Khetan & Co. v. Commissioner of Income-tax, and Sahai Brothers v. Commissioner of Income-tax. There was undoubtedly a conflict on this point and the Appellate Ass....
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....nership deed should be construed reasonably. In this case, although the minor was described as a full partner, nevertheless, it was, on reading all the clauses of the deed, held that he was only admitted to the benefits of the partnership. In coming to this conclusion the Supreme Court was influenced mainly by the fact that in clause (9) of that agreement, the minor, though described as a partner, was not made to bear the losses of the firm. In clause (9) it was provided : "The portion of loss to be contributed by the third party (minor) is to be borne by the first party and adjusted in the accounts. " The Supreme Court, therefore, held that the minor in that case could not be held to have been a full partner. In the present case, unf....
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....ase has, therefore, been rightly relied upon by the Tribunal in rejecting the claim for renewal of registration by the assessee. The line of cases, particularly of the Madras High Court, in Jakka Devayya's case, and the Patna and the Bombay views in Dwarkadas Khetan's case, were specifically overruled by the Supreme Court, and it is no longer possible for the assessee to derive any comfort therefrom. It is also not possible to rewrite the contract for the parties and to hold, as submitted by the learned counsel for the assessee that at least the firm of four partners ought to have been granted registration. The Supreme Court in Dwarkadas Khetan's case has specifically negatived any such possibility. It was observed at page 533: "Registra....