1. This is a second appeal by the plaintiff whose suit has been dismissed on a preliminary issue by the dower appellate Court. The plaintiff brought a suit against a number of defendants alleging in para. 1 of the plaint:
The defendants who are the members of a joint Hindu family governed by Mitakshara law...carried on shops of provisions, etc., at different places and defendant 1 is the leading member (karta) of the defendants' family. The defendants had a shop styled Dwarka Ram, Krishan Ram at Chit Baragaon, district Ballia; one shop at Rallia and one shop at Mukta Ganjha.
2. The plaintiff proceeded to set out that certain debts arose from money dealings between the shop of the plaintiff and the defendants on account of the price of provisions supplied by the plaintiff to the defendants and the plaintiff claimed a decree against all the defendants as a joint Hindu family for these debts. Now the pedigree with the plaint showed that three defendants were the sons of Dwarka Ram, defendant 1, alleged to be the karta, and the other defendants were collaterals. The written statement on behalf of the collaterals was that they were not members of the joint family and that the shop at Baragaon was the separate property of Dwarka Ram. The trial Court decreed for the plaintiff finding against the pleadings of the defendants on the issues which were framed as to whether the defendants were members of the joint Hindu family and as to whether there was any joint family business of which Dwarka Ram was the Manager. The collateral defendants brought an appeal raising the same points again that the family was separate and that the shop at Chit Baragaon was opened by Dwarka Ram for his own benefit in his personal capacity and not as a member of the joint Hindu family embracing the defendants and raising other pleas. Instead of disposing of the appeal on the issues raised the lower appellate Court by singular error set up an entirely new issue. On p. 19 the lower appellate Court stated:
This appeal must be allowed. After hearing the arguments of the learned Vakils for the parties I think it becomes abundantly clear that the plaintiff has failed to prove that the defendants were partners of the firm.
3. It further finds that the family of all the defendants is joint and at line 28 it states:
There is not a particle of evidence to show that when the firm was established, the defendants made any agreement or contract about partnership.
4. It then proceeds to quote a ruling of their Lordships of the Privy Council reported in Sanyasi Charan Mandal v. Krishnadhan Banerji 1922 49 Cal 560, and it also quoted the Contract Act, Section 239, which defined 'Partnership' as a relation which subsists between the persons who have agreed to combine their property, labour and skill in some business and to share the profits thereof between them. Now the lower appellate Court has disposed of the appeal before it on an issue 'Were the defendants partners in the firm Shankar Ram Mathura Ram at Ballia?' An issue arises on those materials which are laid down by Order 14, Rule 3 as follows:
The Court may frame the issues from all or any of the following materials: (a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties: (b) allegations made in the pleadings or in answers to interrogatories delivered in the suit; and (c) the contents of documents produced by either party.
5. Learned Counsel for the respondent admits that he cannot show that there were any such materials before the lower appellate Court for the issue on which it has decided the appeal. The plaintiff nowhere pleaded that the defendants were partners in a firm. It is, therefore, impossible for the Court below to hold that he has failed to prove that he never pleaded. Learned Counsel argued that although the written statements did not contain any reference to partnership yet the written statements might be in his opinion construed to mean that the defendants were not partners in the firm at Chit Baragaon. Even if any such inference were to be read into the written statements a mere pleading of such a negative by the defendants would be no reply to the positive assertion of the plaintiff that the firm in question was a firm belonging to the joint Hindu family. A partnership firm and a joint family firm are essentially different. The definition of 'partnership' in Section 239, Contract Act, deals with a relation which subsists between persons. That is, there must be more persons than one. But in the General Clauses Act, Section 3(39), 'person' is defined to include any company or association or body of individuals whether incorporated or not.
6. The members of a joint Hindu family are a body of individuals who come under this definition of 'person.' Therefore a joint Hindu family is a single person and it cannot have a partnership by itself within the definition of Section 239, Contract Act, so long as it remains a joint Hindu family. The lower Court, therefore, was entirely mistaken in considering that it was necessary to prove that there was an agreement between the members of the joint Hindu family in order to establish that a certain business was a joint family business. The matter is explained clearly in the Partnership Act, Act 9 of 1932, which is an Act to define and amend the law relating to partnership, and this Act received the assent of the Governor-General on 8th April 1932. Section 5 states:
The relation of partnership arises from the contract and not from status; and in particular, the members of a Hindu undivided family carrying on a family business as such, or a Burmese Buddhist husband and wife carrying on business as such are not partners in such business.
7. The allegations in the plaint are about a joint family business. Therefore it is entirely wrong of the lower appellate Court to introduce the idea of partnership which as the Partnership Act Section 5 shows is essentially opposed to the idea of a joint family business. As regards the ruling quoted, I do not think it applies at all because for one reason it was a ruling of 1922 and the Partnership Act in question was passed ten years later in 1932. Moreover the ruling in question did not deal with Mitakshara law but with Dayabhagh law. The ruling also dealt with a case where a family owned two ancestral businesses and the adult brother started and carried on a new business. The High Court of Calcutta had held that the minors had been admitted to the benefit of the partnership of the new business under Section 247, Contract Act; and their Lordships of the Privy Council held that the suit should be dismissed because there was no evidence that the minors had been admitted to the benefit of partnership. It was nowhere laid down by their Lordships of the Privy Council that joint family businesses were to be considered solely or at all as partnerships or under the Partnership Act which was not then in existence. For these reasons, I consider that the lower Court has failed to dispose of the appeal on the issues which arose in the pleadings of the parties and that the lower appellate Court was not entitled to frame a new issue which did not arise from the pleadings of the parties and to throw the burden of proof on the plaintiff and to dispose of the appeal solely on that issue. Accordingly I set the order of the lower appellate Court aside and I remand this appeal for disposal according to law on the issues which arise in the grounds of appeal. The appellant will be allowed his court-fee under Section 13, Court-fees Act, and the appellant will be allowed costs of this Court. The costs incurred in the lower Courts hitherto will abide the result.