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Kharidar Kapra Company Vs. Daya Kishen and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in58Ind.Cas.765
AppellantKharidar Kapra Company
RespondentDaya Kishen and ors.
Excerpt:
.....partnership--liability of other members. - - but the plaintiff-company has failed to prove that daya kishen at delhi acted in any way as girdhari lal's partner, or that daya kishen's brokerage account was settled with girdhari lal at cawnpore, there was, at any rate, separation in residence between the two cousins during this period. on a review of the entire evidence on this point, and, after allowing all possible weight to the considerations which have been pressed upon us on behalf of the appellant company, we feel satisfied that the decision of the court below was correct. in so far as any items are claimed as representing the price of goods supplied to girdhari lal, the claim in respect of such items would seem to be clearly time-barred. there is really nothing that can be sailed..........lal as his own son; this point, however, is immaterial. the first and principal defendant was one daya kishen whose father, mangat rai, wag the own brother of sham lal, father of girdhari lal. it was alleged in the plaint that the ledger account which the company kept up from year to year showing all their dealings with girdhari lal was accident after his death, there were sales of cloth to girdhari lal's credit and he was charged with the price of sloth purchased on his account, in accordance with the alleged agreement that this charge should only be brought into the account after the sloth had been disposed of. farther, it was alleged that the profit and loss account of a large number of transitions in which girdhari lal had been a partner with the plaintiff-company was finally made.....
Judgment:

1. This suit was brought by the Kharidar Kapra Company, a limited liability company registered under the Indian Companies Act, carrying on business at Cawnpore as importers of, and dealers iv, cloth. They sued through their managing director Raghunandan Lal. Their cause of action was stated to arise out of the following facts. There had been in Cawnpore one Girdhari Lal, a broker, and also a dealer in cloth on his own account. This Girdhari Lal undoubtedly had for a number of years relations of various kinds with the plaintiff company. He earned brokerage from them in connection with their dealings and we see no reason to doubt that, at times at any rate, he entered into special contracts with them, as, for instance, by offering to bear some specified share in the expenses of a particular deal in cloth and to share in the resultant profit or loss in the same proportion. These, of course, were contracts of partnership pure and simple. In other cases, apparently, Girdhari Lal would take a specified number of bales of cloth on his own account out of some large consignment ordered by the company and would leave the cloth of which he thus became the owner in the hands of the company, subject to a general adjustment of accounts between them after the cloth had been sold. This Girdhari Lal died on the 19th of August 1913 and the suit, out of which this appeal arise, was instituted on the 3rd of January 1917. There were five defendants impleaded: one was the widow of Girdhari Lal and another was the widow of his predeceased brother Banwari Lal. The second and third defendants are minors, being the sons of the aforesaid Banwari Lal, and, therefore, nephews of Girdhari Lal, although it has been alleged that one of them had been adopted by Girdhari Lal as his own son; this point, however, is immaterial. The first and principal defendant was one Daya Kishen whose father, Mangat Rai, wag the own brother of Sham Lal, father of Girdhari Lal. It was alleged in the plaint that the ledger account which the company kept up from year to year showing all their dealings with Girdhari Lal was accident after his death, There were sales of cloth to Girdhari Lal's credit and he was charged with the price of sloth purchased on his account, in accordance with the alleged agreement that this charge should only be brought into the account after the sloth had been disposed of. Farther, it was alleged that the profit and loss account of a large number of transitions in which Girdhari Lal had been a partner with the plaintiff-company was finally made up, some years after Girdhari Lal's death, in the month of July 1916. In fact, it was alleged that accounts had been made up twice, once about February 1915 and the second time in July 1916. The plaintiff-company alleged that all the persons impleaded as defendants were members of a joint undivided Hindu family with Girdhari Lal, deceased; that Girdhari Lal acted as the head and manager of that joint family; that the business relations of the company, whatever they amounted to in law, were with the joint family as such, and, therefore, continued uninterrupted after the death of Girdhari Lal. It was further alleged that Daya Kishen himself in substance accepted this position, that he carried on, after the death of Girdhari Lal, various branches of business which his cousin had hitherto been conducting and, in particular, dealt with the plaintiff-company as representative of the joint family in succession to Girdhari Lal. It was alleged that both the settlements of account previously referred to were made with Daya Kishen and that the accounts were checked and passed by him. It was further alleged that brokerage due from the plaintiff-company to Daya Eishen had been credited in the ledger account kept up in the name of Girdhari Lal, with Daya Kishen's full consent. Finally, it was alleged that on the 22nd of September 1916 Daya Kishen had paid in cash to the plaintiffs company a sum of Rs. 5,000 on the understanding that this payment was made in reduction of the balance due to the company shown in the ledger account against Girdhari Lal. After allowing credit for this item, the company claimed a sum of Rs. 2,735 9 6 with interest. There were instituted, at or about the same time two other suite, in one of which Daya Kishen claimed from the plaintiff company the return of the Rs. 5,000 paid by him on the 22nd of September 1916, upon allegations of fact which we shall consider in their proper place. There was also another suit brought by Daya Kishen in the Munsif's Court claiming the brokerage 'due to him from the Kharidar Kapra Company. This last suit was transferred to the Court of the Subordinate Judge and the three suits were tried more or less together and disposed of in a single judgment. We have three appeals before us which have been argued out together, against the decrees passed by the Subordinate Judge in the three suits. It will, however, in our opinion, be more convenient to deal with the three appeals separately. This judgment relates to the suit brought by the Kharidar Kapra Company as plaintiff against the defendants who are alleged to be the surviving members of the joint family of which Girdhari Lal was at one time the head. The learned Subordinate Judge has found upon all issues' of fact and law against the plaintiff-company. He has gone so far as to hold that, on the evidence, it is not proved that any debt is due, or ever was due, from Girdhari Lal or his successors-in-interest to the plaintiff-company. In one sense this is, of course, the main issue in the case; but as it happens it is not necessary for us to deal with it in disposing of this appeal, and it is only involved to a certain extent in the decision which we shall have to pronounce on one of the other appeals now before us. Apart altogether from the question whether the plaintiff- company had or had not a claim against Girdhari Lal at the moment of that gentleman's death, and against his estate afterwards, the trial Court has found, firstly, that Daya Kishen was never a member of a joint undivided Hindu family with Girdhari Lal and could in no way be made liable for any claim which the plaintiff-company might have against his cousin's estate. Further, the Court below has found that, as regards the remaining defendants in the suit, any claim which the company might have had was allowed to become barred by limitation, under Article 106 of the First Schedule to the Indian Limitation Act, not having been brought within three years of Girdbari Lal's death. In fast, the trial Court holds that whatever partnership existed between the plaintiff- company and Girdhari Lal was a contractual relation with that gentleman personally and same to an end with his death. For the disposal of this appeal it is really sufficient for as to consider whether the above findings of fact arc correct and whether the inferences of law which follow there from involve the dismissal of this suit. The trial Court has discussed, in all necessary detail, the evidence which was produced in order to prove that Mangat Rai, father of (Daya Kishen, had separated from his brothers, including Shiam Lal, the father of Girdhari Lal, long before either Daya Kishen or Girdbari Lal came to Cawnpore. Girdhari Lal and his father Shiam Lal were residents of the Hansi District and, admittedly, Girdhari Lal was the first member of the family who came to Cawnpore to seek his fortune. Daya Kishen, in the company of an elder brother, came there some years later and no doubt received a certain amount of assistance from Girdhari Lal in his efforts to get to start in the business world of Cawnpore. We do not think, however, that any of the transactions in this connection to which our attention has been nailed in argument on behalf of the appellant-company really serve to countervail the evidence on which the trial Court has relied as proving separation. Over and above this, there are one or two circumstances which certainly favour Daya Kishen's contention. Girdhari Lal seems to have prospered in the world very considerably and it is in evidence that he built for himself a house the value of which is given as Rs. 40,000 or Rs. 50,000. Daya Kishen in his evidence expressly disclaimed having any kind of share in this house and, although, of course, this circumstance is not conclusive, it does seem to add weight to his denial of joint ness. Daya Kishen had gone to Delhi and had been living there for some years prior to the death of Girdhari Lal. It is quite true that Daya Kiehen's principal business at Delhi was a brokerage business connected with the Delhi branch of a large firm for which Girdhari Lal was also working at Cawnpore; but the plaintiff-company has failed to prove that Daya Kishen at Delhi acted in any way as Girdhari Lal's partner, or that Daya Kishen's brokerage account was settled with Girdhari Lal at Cawnpore, There was, at any rate, separation in residence between the two cousins during this period. Daya Kishen came to Cawnpore on hearing that Girdhari Lal was seriously ill and no doubt he did help in settling Girdhari Lal's affairs after the death of the latter, but we cannot find anything in the evidence to justify a clear inference that Daya Kishen's conduct in any particular matter was other than that of a cousin and a near relative helping the surviving members of a family which was in some trouble. It may be noted that Shiam Lal survived his son Girdhari Lal, though he died before the institution of this suit. It is said that he was a very old man in feeble health and addicted to taking opium. At any rate, it seems clear from the evidence that Shiam Lal was not acting as head of the joint family consisting of himself, his surviving son and his grandsons, at the time of Girdhari Lal's death, and that he was not in a position to take up the management of the family affairs when Girdhari Lal was removed. On a review of the entire evidence on this point, and, after allowing all possible weight to the considerations which have been pressed upon us on behalf of the appellant company, we feel satisfied that the decision of the Court below was correct. We hold that Daya Kishen was never a member of a joint undivided Hindu family with Girdhari Lal. On the pleadings in this case it follows that Daya Kishen cannot be made personally liable for any part of the plaintiff-company's claim. There have been arguments addressed to us almost amounting to a suggestion that Daya Kishen took over the business previously carried on by Girdhari Lal under such circumstances and conditions as would amount to a fresh contract of partnership between himself and the plaintiff-company. In our opinion, however, not only was no such case as this set up in the plaint, but such evidence as there is on the record bearing upon this suggestion falls far short of what would be required to prove it true.

2. The only point remaining, so far as this appeal is concerned, is the question whether the Court below was right in holding that any claim which the plaintiff-company might have against the estate of Girdhari Lal had become barred by limitation as against the defendants other than Daya Kishen. In so far as any items are claimed as representing the price of goods supplied to Girdhari Lal, the claim in respect of such items would seem to be clearly time-barred. For the rest, the case set up in the plaint really rests upon the allegations of partnership between the plaintiff- company and the joint family of which Girdhari Lal was the working head, which partnership, it is contended would continue uninterrupted by the death of Girdhari Lal. There is really nothing that can be sailed evidence from which the Court could be asked to infer that Girdhari Lal entered into all his various transactions with the plaintiff- company in any representative capacity or held himself out to be the head of a joint family, which family, be it remembered, would necessarily include his aged father as well as his minor nephews. The Madras High Court in a Full Bench case, that of Gangayya v. Venkataramiah 43 Ind. Cas. 9 : 41 M. 454 : 6 L.W. 708 : (1917) M.W.N. 805 : 22 M.L.T. 527 : 34 M.L.J. 271, in considering a very similar question to this, laid down the principle that other members of a joint family must not be treated as necessarily or ipso facto partners in any partnership into which a member of the joint family, or even the manager of the joint family may see fit to enter. They based themselves, in part at any rate, on a previous decision of their own Court in Ramanathan Chetty v. Yegappa Chetty 32 Ind. Cas. 427 : 30 M.L.J. 241 : 19 M.L.T. 66 : (1916) 1 M.W.N. 81 in which principles are laid down even more strongly in favour of the respondents to this appeal. As against this, we have been referred to two decisions of the Punjab Court, the latest of which is Narain Das v. Ralli Brothers 31 Ind. Cas. 45 : 61 P.R. 1915 : 136 P.W.R. 1915, in which the position has been taken up that other members of a joint family, and particularly minor members, may become sharers in a partnership entered into by the managing member of the joint family. In so far as any principle of law is involved in the present appeal, we need only say that we are disposed to look at the facts rather from the view of the law laid down by the learned Judges of the Madras High Court; but, in any case, we should not find it possible to record any such finding of fast as ' would be necessary before we could apply the principles enunciated in the Punjab ruling in favour, of the appellant to this appeal the result is that we concur in the finding of the trial Court on the question of limitation and that this appeal cannot succeed. We dismiss it accordingly, with costs.


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