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Debi Dayal Vs. Baldeo Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1928All491
AppellantDebi Dayal
RespondentBaldeo Prasad and anr.
Excerpt:
- .....the finding that the defendants formed a joint family business was based. that business was a cloth business. the claim of the plaintiff is for cloth supplied on the order of defendant 2, and the acknowledgment on which the plaintiff relies is an acknowledgment in regard to the money owing for that cloth by defendant 2. it would appear that as a result of the acknowledgment by defendant 2 further cloth was supplied by the plaintiff, because the acknowledgment was on 20th january 1924 and the plaintiff's claim extends to cloth supplied on 19th april 1924. the section which applies to liability of partners in business is section 251, contract act, which states as follows:each partner, if he does any act necessary for, or usually done, in carrying on the business of such a partnership.....
Judgment:

Bennet, J.

1. These are two applications in revision: 8 of 1928 by Debi Dayal, defendant 1, and 112 of 1928 by Gaya Prasad, defendant 3. The applications are directed against a decree of the Small Cause Court Judge of Cawnpore decreeing the claim of plaintiff for Rs. 235-4-0, the price of cloth. The finding of the lower Court is that 'defendants' business was a joint family business 'and' acknowledgment by the defendant 2 (Audu Narain) was sufficient to keep the claim alive against the defendants 1 and 3 also.'

2. The learned Counsel for the applicant in revision has based his claim firstly on the ground that there is no evidence to prove that defendant 2 was a managing member of a joint Hindu family consisting of the other defendants. In regard to this it is sufficient to say that it is not found that he was a managing member. The second ground of objection is that because the plaintiff dealt with defendant 1 and defendant 2, the 'acknowledgment by defendant 2 could not bind defendant 1 or defendant 3 and the third ground of revision is that the debt was barred at the date of acknowledgment. In regard to this third point it is sufficient to say that the acknowledgment was made on 20th January 1924, and the claim of the plaintiff is for goods supplied from 10th July 1921, and subsequent dates, all of which period is within three years from 20th January 1924. The debt, therefore, was not time barred at the date of acknowledgment. The argument has mainly centered round the liability of defendant 1, the uncle of defendant 2 and defendant 3, the full brother of defendant 2, for the ordering of goods by defendant 2 and the acknowledgment of liability by defendant 2. It was argued in the first place that the finding of fact that the defendants' business was a joint family business was without any evidence, but I find in the evidence of the plaintiff the statements: 'They (the defendants) are all joint' and 'they (the defendants) sell cloth.' There is, therefore, evidence on which the finding that the defendants formed a joint family business was based. That business was a cloth business. The claim of the plaintiff is for cloth supplied on the order of defendant 2, and the acknowledgment on which the plaintiff relies is an acknowledgment in regard to the money owing for that cloth by defendant 2. It would appear that as a result of the acknowledgment by defendant 2 further cloth was supplied by the plaintiff, because the acknowledgment was on 20th January 1924 and the plaintiff's claim extends to cloth supplied on 19th April 1924. The section which applies to liability of partners in business is Section 251, Contract Act, which states as follows:

Each partner, if he does any act necessary for, or usually done, in carrying on the business of such a partnership as that of which he is a member, binds his co-partners to the same extent as if he were their agent duly appointed for that purpose.

3. In the present case the acts were necessary for, or usually done in carrying on the business of such a partnership. I am of opinion, therefore, that these acts bind the remaining partners. When a Hindu joint family carries on a business, I consider that they are in the position of partners in regard to persons dealing with that business.

4. The learned Counsel for the applicant bases his case on Section 21, Sub-section (2), Lim. Act, which states as follows:

Nothing in the said Sections 19 and 20 renders one of several joint contractors, partners executors, or mortgagees chargeable by reason only of a written acknowledgment signed, or a payment made by, or by the agent of, any other or others of them.

5. I understand this section to mean that the mere fact that persons are partners does not make one partner liable under an acknowledgment, etc., by another partner. But in the present case the liability arises under Section 251, Contract Act, because the acknowledgment was made in the course of the partnership business.

6. Reference has bean made to Gadu Bibi v. Persotam [18881 10 All. 418. In that ruling it was held that where the acknowledgment was a transaction such as is contemplated in Section 251, Contract Act, then such an acknowledgment would extend a period of limitation against the other partner or partners, and Section 21, Lim. Act, would not prevent the other partner or partners from being liable. It is true that in that particular case there was a definite finding by the District Judge that there was authority for one partner to sign for the other. But all that was found was that such a finding brought the acknowledgement under Section 251, Contract Act. In the present case the acknowledgment is within Section 251, Contract Act, because it was an acknowledgment in the course of the partnership business. Reference was made to Lalta Prasad v. Babu Prasad [1910] 32 All. 51, but that was not a case of a partnership business, and the question of liability under Section 251, Contract Act, did not arise. Accordingly the ruling is no authority in the present case. For these reasons I dismiss the applications with costs.


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