• Partnership law

Four of us plan to acquire an existing partnership business with immovable property.
1, can we draft a partnership reconstitution deed with today's date, whereby 4 of us get admitted as partners and further state in the same deed that, after admission, the existing partners decide to retire and same is approved by all the partners. Can we pay stamp duty on the immovable property value on the partnership deed itself and register the reconstitution deed?
2. should we draft partnership deed with admission of 4 partners with today's date, with transfer of major % to new partners and only 1% each retained by existing partners and draft another with retirement of existing 2 partners with tomorrow date with transfer of balance %?
Asked 3 years ago in Property Law
Religion: Hindu

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10 Answers

According to the Partnership Act 1932, a new partners can be admitted into the firm only with the consent of all the existing partners unless otherwise agreed upon. With the admission of a new partners, the partnership firm is reconstituted and a new agreement is entered into to carry on the business of the firm.

2).A partner can retire with the consent of the other partners and a person can be introduced in the partnership by the consent of the other partners. The reconstituted firm can carry on its business 

 

3) enter into separate deed of retirement of partners 

Ajay Sethi
Advocate, Mumbai
94723 Answers
7535 Consultations

5.0 on 5.0

1. All 4 of you will be inducted into the partnership under Section 31 with the consent of existing partners.

2. Then the 4 will retire with the consent of all as provided under Section 32. Rights and liabilities of retiring and joining partners will be governed by provisions under Section 32.

This way the partnership continues and if you want to change the terms you can do that anytime without dissolving the partnership

 

 

Ravi Shinde
Advocate, Hyderabad
4042 Answers
42 Consultations

5.0 on 5.0

From a legal standpoint reconstitution of partnership firm is common. Whenever there is any change in the original partnership agreement the process of reconstitution begins. 

According to the Partnership Act 1932, a new partner can be admitted into the firm only with the consent of all the existing partners unless otherwise agreed upon. With the admission of a new partner, the partnership firm is reconstituted and a new agreement is entered into to carry on the business of the firm.

immovable property can be acquired on behalf of a partnership firm in India. 

Where partnership was reconstituted due to entrance of new partners who brought cash by way of capital contribution and the retiring partners take cash and retire, there was thus no dissolution of the firm and no distribution of capital asset. What was given to the retiring partners was money representing the value of their share in the partnership and no capital asset was transferred on the date of retirement. 

Therefore there is no necessity to register the immovable assets in the name of reconstituted partnership firm.

 

 

2.  Reconstitution of a partnership firm takes place whenever there is a change in the profit sharing ratio among the partners, admission of a new partner, retirement of a partner and death or insolvency of a partner.

Any change in the existing agreement is known as reconstitution of the partnership firm. Thus, the existing agreement ends and a new agreement is formed with the changed relationship among the members of the partnership firm and its composition.

As per the Partnership Act, 1932, a new partner can only be admitted unanimously unless otherwise provided in the partnership deed. When a new partner is admitted a new agreement is formed and thus the firm is reconstituted.

Retirement amounts to a reconstitution of a firm where the number of partners, their capital contribution ratio and also the profit sharing ratio changes. The retiring partner is paid his share of capital, goodwill and revaluation profit or loss.

 

T Kalaiselvan
Advocate, Vellore
84925 Answers
2196 Consultations

5.0 on 5.0

- As per law, a partner can leave a firm with the consent of other partners or as agreed in the agreement, and further, a partner leaving a firm is entitled to receive the amount of capital contributed by the partner and his or her right to share in the accumulated profits after deducting the accumulated losses, if any.

- Further, profits or losses, made by a firm should be divided among its partners in accordance with the provision of their Partnership Deed. However, if there is no written or oral agreement among the partners, the Law prescribes that profits and losses should be shared equally by the partners.

- Further, the Supreme Court in the matter of Purushottam v. Shivraj Fine Arts Litho Works (2007 )15 SCC 58 , held that once any asset or money becomes part of the capital of the partnership, a partner has no exclusive right over any portion nor can he seek to recover the same from the persons in their individual capacity. It is entirely owned by the firm and the partners in their individual capacity do not owe capital contribution to the other partners.

- Further, a new partners can be admitted and retire into the firm only with the consent of all the existing partners , and a new agreement is needed to be entered. 

- Hence you should draft a new partnership agreement . 

Mohammed Shahzad
Advocate, Delhi
13230 Answers
198 Consultations

5.0 on 5.0

Dear sir/ma'am,

 

Yes, you can draft a reconstitution deed as long as all existing members of the firm have shown their explicit consent for it. 

This is governed by the Partnership Act. The law says that as soon as changes in the proportion of profits are made, the agreement gets revoked and a new agreement must be made.  Thank you.

Anik Miu
Advocate, Bangalore
8883 Answers
110 Consultations

4.7 on 5.0

  1. Four will be inducted in the partnership under Section 31.
  2. After that two will retire with the consent of all. Thus the partnership will continue on the same terms of partnership deed
  3. As there is continuation of partnership and properties are not transferred, the question of payment  stamp duty does not arise.

Ravi Shinde
Advocate, Hyderabad
4042 Answers
42 Consultations

5.0 on 5.0

2 separate deeds should be executed 

 

2) stamp duty is state subject and varies from state to state 

 

3)  Where on dissolution of the partnership or on retirement of a partner any property is taken as his share by a partner other than a partner who brought in that property as his share of contribution in the partnership : The same duty as is leviable on a Conveyance,

Ajay Sethi
Advocate, Mumbai
94723 Answers
7535 Consultations

5.0 on 5.0

Dear Sir/ma'am,

  1. According to the Partnership Act 1932, a new partner can be admitted into the firm only with the consent of all the existing partners unless otherwise agreed upon. With the admission of a new partner, the partnership firm is reconstituted and a new agreement is entered into to carry on the business of the firm. Therefore, the consent of all the partners is required.

  2. The same duty is leviable on a Conveyance, in the case where on dissolution or on retirement of a partner any property is taken as his share by a partner other than a partner who brought in that property as his share of contribution in the partnership. The stamp duty varies from state to state as it falls within the purview of state matter.

Anik Miu
Advocate, Bangalore
8883 Answers
110 Consultations

4.7 on 5.0

Reconstitution of a partnership firm takes place whenever there is a change in the profit sharing ratio among the partners, admission of a new partner, retirement of a partner and death or insolvency of a partner.

Any change in the existing agreement is known as reconstitution of the partnership firm. Thus, the existing agreement ends and a new agreement is formed with the changed relationship among the members of the partnership firm and its composition.

You may please be aware that the immovable property shall remain with the firm itself because it is company's assets, the change of partnership in the firm has got nothing to do with the transfer of the immovable assets, hence there is no necessity to pay any stamp duty for the property which is not transferred. 

T Kalaiselvan
Advocate, Vellore
84925 Answers
2196 Consultations

5.0 on 5.0

- A new deed should be registered . 

- However, as the immovable property shall remain with the firm , then no stamp duty is required to pay for the same. 

Mohammed Shahzad
Advocate, Delhi
13230 Answers
198 Consultations

5.0 on 5.0

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