1. This is a suit to recover Rs. 13,651 alleged to be due from the defendant to the plaintiffs at foot of an agency account.
2. The plaintiffs' firm carried on business in Bombay as Muccadams in cotton. There were two partners in the plaintiffs' firm, viz., the firm of Hiralal Ramgopal and Brijmohan-das Rampratab. The defendant's father, Kashiram Bhagwandas, carried on business at Ambala in the Punjab in the name of Beharilal Bisambardas. Kashirm consigned cotton to the plaintiffs' firm, for sale in Bombay, and the plaintiffs' firm made advances to him against the consignments. The present suit is to recover the amount due to the plaintiffs' firm in respect of those; transactions. The amount claimed, viz., Rs. 13,651, includes an item of Rs. 11,000 to be presently referred to.
3. On May 1, 1917, Brijmohandas filed a petition in insolvency and a vesting order was made on May 3, 1917.
4. Kashirm died in May 1918, leaving a son Gavrishankar who is still a minor and a widow Bai Peli. It is established on the evidence given before me that the plaintiffs, knew that Kashiram was the sole owner of the firm of Beharilal Bisambhardas, also that they knew about the death of Kashiram in October 1919, if not earlier.
5. On December 24, 1919, the plaintiffs sent a notice of demand by registered post to 'Beharilal Bishambhardas Esq.' The signature of the addressee on the postal acknowledgment is 'Beharilal Bishambhardas by the hand of Baharilal' (Ex. A). The present suit was filed on April 26, 1920, against 'Beharilal Bishambhardas a firm carrying on business at Ambala City in the Punjab.' The suit was filed after obtaining leave under Clause 12 of the Letters Patent as part only of the cause of action had arisen within the local limits of this Court.
6. After the institution of the suit the duplicate writ of summons was sent by registered post to the firm of Beharilal Bisambhardas at Ambala. The signature of the addressee on the postal acknowledgment, which is dated June 11, is 'Baharlal' (Ex. B). On July 16, Messrs. Malvi & Co. wrote. to the plaintiffs' Attorneys stating that the duplicate writ of summons was placed in their hands, that they had obtained a warrant from Bai Peli, widow of Kashirarn, the late proprietor of the firm of Beharilal Bishambhardas, and the mother of Gavrishankar, the present owner of the said firm, and they asked for copy proceedings (Ex. C). The copy proceedings were sent and on July 22 Messrs. Malvi & Co. wrote to the plaintiffs' Attorneys stating that it appeared from the copy proceedings that the suit was not properly filed as Kashiram who was the owner of the firm had died long ago and the present owner was Gavrishankar and that Bai Peli was managing his estate. The letter further stated that the, plaint should be amended and that a fresh writ should be served upon them. The plaintiffs' Attorneys replied on July 24, stating that the suit was properly filed. On July 26, Messrs. Malvi & Co. wrote to the plaintiffs' Attorneys stating that Kashiram was the sole owner of the firm of Beharilal Bishambhardas, that, tin firm had ceased to exist, and that the only person that could be sued was Gavrishankar, the minor son of Kashiram.
7. Thereafter the plaintiffs obtained a Judge's order on September 14 for amendment of the plaint. The material part of the order is as follows:
I do order that the plaintiffs be and they are hereby given leave to amend the title of the plaint by making Gavrishankar, the son of Kashiram Bhagwandas proprietor of the defendant firm, the defendant to this suit and to make such other consequential amendments in the plaint as may be necessary and I do further order that the said Bai Peli widow of the said deceased Kashiram Bhagwandas be and she is hereby appointed guardian ad litem of the said defendant Gavrishankar who is a minor.
8. After the date of the said order the plaint was amended by adding a new paragraph being Paragraph 9A which is as follows:
The said Kashiram Bhagwandas, the owner of the defendant firm, died in May 1918 leaving his son Gavrishankar, the defendant herein and his only heir and as such the defendant is now the sole owner of the said firm of Beharilal Bishambhardas.
9. The title of the suit was amended by striking out the words 'Beharilal Bishambhardas a firm carrying on business at' and substituting the words 'Gavrishankar son of Kashiram a minor under the age of 18 yeais residing at.' Though Gavrishankar resided at Ambala and part only of the cause of action had arisen in Bombay, no leave under Clause 12 of the Letters Patent was obtained before Gavrishankar was brought on the record.
10. At the trial of the suit the following issues were raised:
(1) Whether the plaintiffs are entitled to maintain this suit against the present defendant without leave to sue being obtained under Clause 12 of the Letters Patent?
(2) Whether the plaintiffs' claim against the present defendant is barred by limitation?
(3) Whether the Hawala for Rs. 11,000 mentioned in Paragraph 3 of the plaint is binding on the defendant?.
(4) Whether the High Court Suit No. 1070 of 1917 was compromised on the footing of the Hawala being a good one?
(5) If so, whether the present defendant as the representative of Kashiram consented to the compromise on that basis?
11. After the issues, were raised Counsel for the plaintiffs stated that the amendment of the title as made was incomplete and he asked for leave to complete the amendment so as to bring it in conformity with the said order. I granted leave and the title as finally amended is as follows:
Gavrishankar son of Kashiram (Bhagwandas, proprietor of the firm of Beharilal Bishambhardas), a minor under the age of 18 years residing at Ambala, etc.
12. The words within parenthesis are the words which I granted leave to add, the addition being in conformity with the order of amendment.
13. The first question to be determined is, whether having regard to the fact that no leave was obtained under Clause 12 of the Letters Patent before bringing Gavrishankar on the record, this Court has jurisdiction to entertain the suit. This question can best be answered if the relation of a partner to a firm of which he is a member and the nature and effect of suits by and against a firm have been determined. To begin with it may be observed that the Law* of England as well as of British India' knows nothing of a firm as a body or artificial person distinct from the members composing it. In this respect a firm differs from a company incorporated under the Companies Acts, such a company being a corporate entity separate from its shareholders, though the latter can control its action by passing resolutions in general meeting. The word 'firm' is a short, collective name for the individuals who constitute the partners, and though under the Rules of the Supreme Court and under the C.P.C. actions may now be brought by and against partners in the name of their firm, the general doctrine that 'there is no such thing as a firm known to the law' Ex parte Corbett, In re Shand (1880) 14 Ch. D. 122: 49 L.J. Bk. 74 : 42 L.T. 164 : 28 W.R. 569, remains in force. It follows from this that a suit against a firm is essentially a suit against the partners constituting the firm. If a suit is brought against a firm in the firm's name and a decree is passed for the plaintiff, it is a decree against all the partners constituting the firm assuming that they were all alive at the date of the suit and decree. If a partner dies before suit, and the suit is against the firm in the firm's name, the suit is one solely against the surviving partners and judgment can only be obtained as against the surviving partners and be enforced against them and against the partnership assets. The judgment cannot be enforced against the private estate of the deceased partner unless his legal representative is added expressly as a defendant, for a dead man cannot be sued though his legal representative can be sued in a proper case. If a partner dies between service of the writ and the trial of the suit and judgment, in that case equally the dead man's estate is not bound and judgment can only be obtained against the surviving partners and enforced against them and against the partnership assets. But if his legal representative is brought on the record, judgment may be obtained against him also as such and execution enforced against his private estate. Supposing there were two partners both living at the date of the writ and both were served, and both died before the action came on for trial, no judgment could be obtained: Ellis v. Wadeson (1899) 1 Q.B. 714 : 68 L.J.Q.B. 604 : 80 L.T. 508 : 47 W.R. 420.
14. Turning now to suits against a person carrying on business in a name other than his own, the C.P.C, Order XXX, Rule 10 provides that he may be sued in that name as if it were a firm name. The words 'as if it were a firm name' are used advisedly, for one man cannot constitute a firm. When a suits' brought against such person in the name in which he carries on business, the suit is essentially one against him and he is the sole defendant in the suit. If he dies before suit, and a suit is brought against him in the name in which he carried on business, the suit is against a dead man and it is a nullity from its inception. The suit being a nullity, the writ of summons issued in the suit, by whomsoever accepted, is also a nullity. Similarly, any order made in the suit allowing amendment of the plaint by substituting the legal representative of the deceased as defendant and allowing the suit to proceed against him is also a nullity. It is immaterial that the suit was, brought bona fide and in ignorance of the death of such person: Mohun Chunder Koondoo v. Azeem Gazee Ckowkeedar 12 W.R. 45 : 3 B.L.R.A.C.J. 233, and Veerappa Chetty v. Ponnon 31 M. 86 : 17 M.L.J. 551 : 3 M.L.T. 12.
15. In the present case the plaintiffs were aware before the institution of the suit that Kashiram was dead. They were aware that he was the sole ..owner of the firm of Beharilal Bishambhardas. Notwithstanding this the suit was instituted against 'Beharilal Bishambhardas a firm.' The suit ought to have-been brought against Kashiram's legal representative, that is, Gavrishankar. The plaintiffs did not realise this until Gavrishankar's Attorneys raised an objection to the suit as framed, and when the plaintiffs obtained the order for amendment they omitted to obtain leave to sue Gavrishankar under Clause 12 of the Letters. Patent. In the first place, I think that no amendment ought to have been allowed at all. In the next place, I am clearly of opinion that leave ought to have been obtained under Clause 12 of the Letters Patent. Gavrishankar was to all intents and purposes a new party to the suit. The suit as originally instituted was not merely against a wrong person, but against no person at all. Though the plaint was amended by substituting the name of Gavrishankar for 'Beharilal Bishambhardas a firm.' the case was not one of substitution at all. It was a new suit against a new defendant. After the plaintiffs' Counsel obtained leave from me to add the words 'proprietor of the firm of Beharilal Bishambhardas,'. The founded an argument upon those words the argument being that the original suit was against 'Beharilal Bisambhardas a firm,' that at the date of the suit 'Gavrishankar was the proprietor of the firm, and that the effect of the amendment was only to supply the name that was wanting in the original title. The answer to that is that the suit against 'Beharilal Bishambhardas a firm' was in reality a suit against a dead man. Supposing the suit had been filed originally against the deceased Kashiram, it would havebeen clearly a nullity, and the defect could Aiot have been cured by prefixing Gavrishankar's name in the title to the suit before Kashiram's name. Likewise the defect in the present case could not be cured by the amendment that was made. 'Gavrishankar could not be brought on the record except as the legal representative of Kashiram. In fact he was brought on the record as the son and heir of Kashiram (see plaint, Paragraph 9A). If he inherited the firm from his father along with his other assets, his liability would be in his character of legal representative of his father and the extent of the liability would be the entire assets inherited by him and not merely the firm's property which formed part of those assets. The description of Gavrishankar as 'the proprietor of the firm of Beharilal Bishambhardas' is a mere blind, and it cannot mend matters. I, therefore, hold, following the decision in Rampartab Samrathrai v. Foolibai 20 B. 767 : 10 Ind. Dec. 1082, that the plaintiffs ought to have obtained leave under Clause 12 of the Letters Patent before Gavrishankar was brought on the record, and that no such leave having been obtained this Court has no jurisdiction to entertain the suit.