1. In this suit defendant No. 2 and his sons defendants Nos. 1 and 3 to 7 are sued on the footing that the father and the sons are members of a firm and are liable as partners for the transactions entered into by one or the other of them on behalf of the firm.
2. On Mr. Bhagvati's opening I pointed out the difficulty of his being able to make out a case on this basis, and of the probability that the suit was misconceived, being framed on the assumption that the father and sons stood in a position similar to that of members of a joint Hindu family.
3. A Hindu may carry on business with property to which for the time he is entitled solely or as a coparcener. If sons are born to him, the sons may by birth acquire an interest in the partnership property. The position then would be anomalous in that the partnership property would become subject to the rights of persons who are not partners and who have come into existence after the firm has commenced to do business. The notion of the joint Hindu family firm has, in consequence, arisen, so that all the coparceners who become entitled to the property may to some extent be treated as members of the firm, or, if minors become entitled to the benefit of the partnership : Indian Contract Act, Section 247. But there is no similar cause by which the sons of a Muslim, governed by Muslim law, can in this way slide into the position of partners. They do not by birth acquire during the lifetime of the father any interest in the property, belonging, prior to their birth, to the father ; and unless it is proved that the father and sons have entered into a contract of partnership, the sons do not become partners, the partnership property remains exclusively that of the father and there is no object in or ground for suing the sons in regard to transactions for which the father was responsible.
4. The present case seems to illustrate the misconception to which I have referred. Defendant No. 2 is the person who according to the plaintiffs' case was really responsible for the transactions out of which the suit arises. He was the sub-agent of the Burma Oil Company. Transactions were entered into by the plaintiffs with defendant No. 2 in regard to the sub-agency. Out of some of these transactions the suit arises. In order that defendants Nos. 3, 4 and 6 may be held responsible in regard to transactions made by their father or on his behalf, it must be shown that they not merely acted as his agents for the time being, but that they acted as his partners. Considering the Muhammadan law of inheritance and the general ways of living amongst the Mussalmans (unless they have adopted Hindu law), it would be extremely difficult to prove that the sons were partners of their father.
5. [ Thereupon the plaintiffs admitted that they would not allege or prove any deed or express agreement of partnership and recognising the difficulty in proceeding against defendants Nos. 3, 4 and 6 agreed to a dismissal of their suit against the said defendants and to pay an agreed sum of costs. The case was then proceeded against defendant No. 2 who was held liable on the ground that the agreement sued upon had been entered into on his behalf.]