1. Civil Revisions Nos. 195 of 1932, 196 of 1932 and 290 of 1932 are connected and I propose to deliver a consolidated judgment because the same points arise for consideration in all of them. Three suits were brought by the plaintiffs of the three cases against the firm Ajodhia Prasad Sheonarain. The suits have been decreed against certain persons but dismissed against Manni Lal and Sheo Narain, son of Chotey Lal. The questions that arise in these revisions are whether the suits should be decreed or not against Sheo Narain, son of Chotey Lal, and Manni Lal also on the ground that they too were partners of the firm Ajodhia Prasad Sheo Narain. It is conceded that so far as Manni Lal is concerned no personal decree can be passed against him because he is a minor; but what is claimed is that his share of the joint family property is liable for these debts.
2. So far as Sheo Narain, son of Chotey Lal, is concerned there is a clear finding of fact to the effect that he was never a partner of the firm of Ajodhia Prasad Sheo Narain, and it is impossible to say that this finding is vitiated by reason of any mistake of law. It was next argued that as the said Sheo Narain did not produce any witness, the decree inasmuch as it allows costs of witnesses as well, is erroneous. The question of costs is principally within the discretion of the Court below and unlesss I am satisfied that this discretion has been exercised arbitrarily, I am not called upon to interfere in revision with that discretion. The fact remains that the plaintiff attempted to prove that Sheo Narain, son of Chotey Lal was a partner of the defendant firm and a lot of oral evidence was led on that behalf. It may well be that after the plaintiff had produced his evidence Sheo Narain was advised that no case had been made out against him and producing evidence on his behalf was a sheer waste of public time; he therefore produced no witnesses; but it cannot be said that the summoning of witnesses by him was clearly unnecessary. I am therefore of the opinion that the Court below in allowing Sheo Narain costs of his witnesses did not act arbitrarily. The revision so far as Sheo Narain, son of Chotey Lal, is concerned is dismissed with costs, which will be separately taxed from the costs incurred by Manni Lal who is separately represented before me.
3. Along with the suits out of which the present revision and the connected revisions have arisen another suit, namely Suit No. 117 of 1930, was tried by the Court below and a full judgment has been delivered in that case on the question whether Manni Lal was a partner of the firm Ajodhia Prasad Sheo Narain. Manni Lal is a minor and the Court below applying Section 247, Contract Act, and holding that there was no evidence to prove that the minor Manni Lal was admitted to the benefits of the partnership held that no decree could be passed against Manni Lal. It has however been argued before me that the Court below has clearly misunderstood the law applicable to the facts and that there was no necessity to prove by evidence that Manni Lal was admitted to the benefits of the partnership because the other facts as found by the Court below and established by the evidence speak for themselves and fasten the liability on Manni Lal. These facts are that the family to which Ajodhia Prasad and Manni Lal belong is a trading family whose kulachar was trade, handed down from the time of its ancestors and the firm Ajodhia Prasad Sheo Narain which was formed subsequently was only an offshoot of the ancestral firm. It is argued that the debts evidenced by the hundis upon which the suits in the Court below were brought were debts incurred by Ajodhia Prasad, manager of the family of Ajodhia Prasad and Manni Lal and of the firm of Ajodhia Prasad Sheo Narain and therefore he had an implied authority to contract debts for the purposes of the trade and the creditor was not bound to inquire into the purpose of the debt or to investigate into the status of the family for the purpose of finding out whether there were minors in it or not in order to bind the whole family; property thereby because that power is incidental to and is necessary for the very existence of the family trade. The following short pedigree might be necessary for understanding the facts of the case:
Lalta Prasad Auseri Lal
Gaya Prasad Lachmi Narain.
(1) Ajodhia Prasad;
(2) Manni Lal.
4. The family of Nathu Ram was a trading family carrying on ancestral trade. The said trade was carried on by the joint family and a stranger Ram Dayal. It is therefore clear that the trading partnership did not consist exclusively of the members of the joint family but a stranger was associated and therefore the incidents of Hindu law alone cannot be made applicable to it and the rights and liabilities of the parties will be determined more by the Contract Act than by the Hindu law. This partnership owned several firms, but we do not know who the managers of these various firms were; whether it was a member of the family or whether it was Ram Dayal. All that is known is that after the death of Gaya Prasad a suit for partition No. 434 of 1924 was brought by one Ram Charan acting as the next friend of Ajodhia Prasad and Manni Lal, minors, against Lachmi Narain for partition of the joint family property and the various firms owned by the family and Ram Dayal were partitioned by the decree dated 22nd July 1925. One of the firms owned by the family and Ram Dayal was Auseri Lal Ajodhia Prasad and this firm fell to the lot of Lachmi Narain. When it is said that this firm fell to the lot of Lachmi Narain it only means that the interest of the joint family in the firm went to the lot of Lachmi Narain. We do not know whether Ram Dayal had any voice in the matter but we may assume that so far Ram Dayal made no objection and he may well not have made any objection. No new partner was being introduced; all that was being done was that Ajodhia Prasad and Manni Lal were being excluded from the benefits of the partnership and Lachmi Narain alone was associating himself with Ram Dayal. Lachmi Narain however on 21st September 1925, sold his rights to Ajodhia Pra-sad and Manni Lal in lieu of certain cash consideration which he had to pay to Ajodhia Prasad and Manni Lal under the partition decree in order to have the shares equalized, but we do not know whether Ram Dayal was consulted in this matter of sale or not. After this sale the name of the firm Auseri Lal Ajodhia Prasad was changed to Ajodhia Prasad Sheo Narain and a new partner Sheo Narain, son of Ram Lal, was introduced. As I stated at the outset where a stranger is associated with the members of a joint Hindu family in a business whose capital is derived from the property of the joint family and the stranger the rights and liabilities are determined more by the Contract Act than by the Hindu Law. The stranger allies himself with certain definite persons and he cannot without his consent be forced to accept a change in the personnel composing the partnership. Although, therefore, Ram Dayal at the outset might have joined hands with the joint family as a unit because he had confidence in the manager of the family, who was in close association with him, yet when a partition took place in the joint family and even Lachmi Narain who was the only adult living member in the family was dissociating himself from the partnership, it becomes a pure and simple partnership to which the provisions of the Contract Act will apply. All these transactions were evidently going on when both Ajodhia Prasad and Manni Lal were minors and although where a minor becomes by survivorship the sole owner of an ancestral concern in which no stranger is associated, his guardian is entitled to carry on the business on behalf of the minor and the minor may be bound by all acts of the guardian necessarily incidental to or flowing out of the carrying on of the trade, the position becomes quite different where new partners are being introduced during the minority of the members of the family.
5. I cannot therefore agree with Mr. Pathak that the firm Ajodhia Prasad Sheo Narain should be deemed to be an ancestral firm in the hands of the two minors Ajodhia Prasad and Manni Lal; and hence if the elder brother Ajodhia Prasad on attaining majority carried on this business he should be deemed im-pliedly to have the power to pledge the family credit, and infant members of the undivided family should be bound by his acts and the share of such minor members not only in the firm but in the entire family property should be available to the creditor who has advanced money to the manager for the purpose of carrying on the trade. I shall assume that the money in the present case was borrowed for the purposes of the trade; but the facts which I have enumerated before take this particular firm out of the description of an ancestral trade. A stranger having been associated with the joint family from the very beginning and another stranger having been introduced into the partnership at a time, when the family consisted only of minors, the new firm cannot be said to be an ancestral firm or its offshoot, and a duty is cast on the Courts who have to adjudicate upon the rights and limitations of the creditors of the firm to watch with anxiety the rights of minors and guard their interests jealously. Mayne says in his book on Hindu Law and Usage, 9th Edn., p. 396:
The share of an infant who is a member of a trading family and such other property of the trading family as is invested in the business carried on by it will be liable for the debts of the partnership and such a share will ordinarily mean his share in the entire family property.
but where strangers are partners the members of the family who are not actively engaged in the business have no contractual relation either with the stranger partners or with the creditors of the firm and unless they have been admitted to the benefits of the partnership they cannot be made liable. In this case there is a finding to the effect that there is no evidence that Manni Lal was ever admitted into the benefits of the partnership, and in spite of the very able and full arguments of Mr. Pathak I am of the opinion that there has been no misdirection by the Court below and the finding mentioned above is fatal to the applicant's case. I dismiss this revision with costs. The costs of Manni Lal and Sheo Narain, son of Chotey Lal, will be separately taxed.