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Dharamsey Khetsey Vs. Balkrishna Pandurang Samant - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 2376 of 1927
Judge
Reported in(1929)31BOMLR984
AppellantDharamsey Khetsey
RespondentBalkrishna Pandurang Samant
Excerpt:
.....agriculturists' relief act (xvii of 1879), section 2-agriculturist- suit against a firm-some partners agriculturists-firm is not thereby agriculturist.;the definition 'agriculturist' in section 2 of the dekkhan agriculturists relief act 1879, can apply to a firm only if that firm by itself or by servants or by its tenants earns its livelihood wholly or principally by agriculture carried on within the limits of a district to which the act extends.;the fact that an individual partner of a firm, or even all the partners of the firm, earn their livelihood principally from agricultural income, does not affect the right of a plaintiff to sue the firm at the place where it actually carries on business or where the cause of action has arisen. - indian penal code, 1860 [c.a. no...........in the forefront instead of the actual residence of the partners, and the personal residence of a partner is ordinarily of no importance in determining the jurisdiction of a court over a firm. thus, in angullia & co. v. sassoon & co. i.l.r.(1912) cal. 568 it will be seen from page 571 of the report that it was pleaded in defence that inasmuch as the proprietor of the defendant firm was residing outside british india, order xxx of the civil procedure code did not apply; but harington j., who tried the suit, held that the court had jurisdiction to entertain it, and it will be been from page 577 that the objection an to jurisdiction was abandoned in the appellate court.3. bearing in mind these considerations, it seems to me clear that the definition of 'agriculturist' in section 2 of the.....
Judgment:

Fawcett, J.

1. The question that has been argued before me is whether the defendant firm can set up the contention that all or any of its partners are agriculturists, as defined in the Dekkhan Agriculturists' Relief Act, and that therefore the suit cannot be tried by this Court but must be brought in a Court having jurisdiction at the place where the partners reside in accordance with the provisions of Section 11 of the Dekkhan Agriculturists' Relief Act.

2. Mr. Lalji's contention is that a firm is only a compendious mode of expressing the partners of which that firm is composed, and that a partner can therefore avail himself of the provisions of this Act relating to agriculturists. It is an important question because if it is held that such a contention may be set up, there will often be considerable difficulties in the way of suing parties who carry on business in Bombay. I quite agree that ordinarily a firm does, in law, only mean the partners of which it is composed of, but I do not think that it necessarily follows that a definition like that of 'agriculturist' in the Dekkhan Agriculturists' Relief Act is, on that account, applicable to any partner in that firm. It is recognized law that any partner can put in a pleading on behalf of the firm, but that pleading has to be confined to pleas that can be raised on behalf of the firm and he cannot put in a purely personal defence. That has, for instance, been laid down in Ellis v. Wadesona [1899] 1 Q.B. 714 ; and the main affect of the firm being sued is that, if a decree is obtained against it, the partnership assets become liable to satisfy that decree, as has, for instance, been laid down in Adiveppa v. Pragfji : AIR1924Bom366 . There are special provisions in Order XXI, Rules 49 and 50, as to the separate liability of any particular partner, so that there are distinctions made by the law between personal pleadings that can be set up by a partner in his purely individual capacity and the pleadings that can be set up by the firm, and also between the liability of a firm in regard to the partnership assets and the liability of each particular partner as to his separate property. Then also there is the further consideration that it has been held by this Court that the definition of 'agriculturist' under the Dekkhan Agriculturists' Relief Act and the other provisions in favour of the agriculturists in that Act are purely personal privileges. It has, for instance, been laid down in Martand Trimbak v. Amritrao Maghojirao 27 Bom. L.R. 951 that such privileges cannot be transferred by assignment or devolution. Again, it has been held in Dagdu v. Mirasaheb 14 Bom. L.R. 385 that a minor cannot ordinarily be an agriculturist as defined in the Act, because he does not earn his livelihood by agriculture within the meaning of the definition, but is dependent on others, and though the latter may earn their livelihood by agriculture, that in itself does not make him an agriculturist A third consideration is that under Order XXX, Rule 1, the main essential in the right to sue, or the lialbility to be sued, in the name of a firm is the fact of 'two or more persons claiming or being liable as partners and carrying on business in British India.' I stress the words 'carrying on business'. That is what the Legislature puts in the forefront instead of the actual residence of the partners, and the personal residence of a partner is ordinarily of no importance in determining the jurisdiction of a Court over a firm. Thus, in Angullia & Co. v. Sassoon & Co. I.L.R.(1912) Cal. 568 it will be seen from page 571 of the report that it was pleaded in defence that inasmuch as the proprietor of the defendant firm was residing outside British India, Order XXX of the Civil Procedure Code did not apply; but Harington J., who tried the suit, held that the Court had jurisdiction to entertain it, and it will be Been from page 577 that the objection an to jurisdiction was abandoned in the appellate Court.

3. Bearing in mind these considerations, it seems to me clear that the definition of 'agriculturist' in Section 2 of the Act must be read as only applying to a firm at the utmost, if that firm by itself or by its servants or by its tenants earns its livelihood wholly or principally by agriculture carried on within the limits of a district to which the Act extends. There can, I think, in that view be an agriculturist firm and it might be held that the firm could only be sued at the place where it resided in the sense of carrying on its business, irrespective of the place where the cause of action may have arisen. Apart from that, I think the fact of an individual partner of a firm, or even all the partners of the firm, earning their livelihood principally from gricultural income, cannot affect the right of a plaintiff to sue the firm at the place where it actually carries on business or where the cause of action has arisen.

4. This result is consistent also with another view that it is possible to take. It has been urged by Mr. Munshi that the word 'person' in the definition of 'agriculturist' cannot by reason of the context be taken to cover a body of individuals, such as it would otherwise include under the definition of the word in Clause (39) of Section 3 of the General Clauses Act, 1897. That definition is subject to the opening proviso 'unless there is anything repugnant in the subject or contest', and there are, in my opinion, good grounds for saying that the definition ordinarily contemplates the case of an individual, who actually earns his livelihood by agriculture or ordinarily engages personally in agricultural labour so that there is something in the context repugnant to its application to a body of individuals, unless it is limited in the particular way that I have mentioned about an agriculturist firm. Therefore, in my opinion, it is not open to the defendant firm to set up this contention in this suit.

5. Mr. Lalji admitted that he could find no authority in support of his contention, and I imagine that is because it is so obviously absurd that it has not been raised before. The preliminary issue is, therefore, answered by my finding that this Court has jurisdiction to try the suit, and the case is adjourned to next week for evidence on the further points. Costs of this hearing to be borne by the defendants, in any case.


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