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Firm Paras Ram Ram Sarup and ors. Vs. Firm Baldev Sahai Ram Bhagat and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 570-D of 1959
Judge
Reported inAIR1963P& H215
ActsPartnership Act, 1932 - Sections 63 and 63(2)
AppellantFirm Paras Ram Ram Sarup and ors.
RespondentFirm Baldev Sahai Ram Bhagat and ors.
Appellant Advocate Sultan Singh, Adv.
Respondent Advocate Radhe Krishan Aggarwal, Adv.
DispositionPetition dismissed
Cases ReferredTapendra Chunder v. Jogendra Chunder
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........of the indian partnership act which is to this effect:-'subject to contract between the partners a firm be dissolved- (a) x x x % (b) x x x (c) by the death of a partner; end (d) x x x in his submission the death of kundan lal put an end tothe firm which had to register itself afresh. reliance isplaced for this contention on a division bench authorityof the allahabad high court in mt. sughra v. babu, air1952 all 506, where sapru and agarwala jj. had heldthat 'in the case of a partnership consisting of only twopartners, no partnership remains on the death of one ofthem and, therefore, it is a contradiction in terms to saythat there can be a contract between two partners tothe effect that on the death of one of them the partnership will rot be dissolved but will continue'. it issought to.....
Judgment:

Shamsher Bahadur, J.

1. This is a rule directed against the judgment and decree of the Court of Small Causes awarding a sum of Rs. 920/- in favour of the plaintiff-respondent firm of Baldev Sahai Ram Bhagat.

2. The firm of Baldev Sahai Ram Bhagat Brought a suit for recovery of a sum of Rs. 920/- as the balance of the price of goods sold by it to the defendant firm Paras Ram Ram Sarup of Maya Bazar. The partners of the defendant firm are Chhattar Mal and his son Ram Sarup on the one hand and Paras Ram and his son Sodan Lal on the other. The four partners Chhatar Mal, Ram Sarup, Paras Ram and Sodan Lal, defendants 2 to 5 were impleaded in the suit along with the firm itself which is the first defendant. The suit was resisted on grounds which gave rise to the following issues :-

1. Is the plaintiff firm duly registered?

2. Whether Ram Sarup and Sodan Lal are Partners of the firm defendant No. 1 ?

3. What amount, if any, is due to the plaintiff The learned Judge of the Small Causes having found in favour of the plaintiff on all these issues granted a decree and the first three defendants feeling aggrieved have come in revision to this Court. It is to be noted that defendants 4 and 5 are not aggrieved from the decree passed against the firm. Mr. Sultan Singh, the learned counsel for the petitioner, has assalled the decree of the learned Judge on two grounds only. It is contended in the first instance that the plaintiff firm had dissolved and not having been freshly registered the suit brought by it is not maintainable. Secondly, It has been urged that the Court below has acted on admissions made by the defendant in vouchers Exhibits P. 4 to P. 6 which were not put to the signatory Ram Sarup when he appeared as a witness.

3. The firm of the plaintiff Baldev Sahai Rarn Bhagat originally consisting of two partners Kundan Lal and his son Ram Bhagat was registered on 19th ef February 1943. Kundan Lal died on 18th of November 1954 and on that very day his other son Sham Sunder sent a notice to the Registrar that he had become a partner in his stead. According to this notice, the two brothers Ram Bhagat and Sham Sunder became the partners of the firm. The name of the firm, however, remained the same. The counsel for the petitioner has invited my attention to Section 42 of the Indian Partnership Act which is to this effect:-

'Subject to contract between the partners a firm be dissolved-

(a) x x x %

(b) x x x

(c) by the death of a partner; end

(d) x x x

In his submission the death of Kundan Lal put an end tothe firm which had to register itself afresh. Reliance isplaced for this contention on a Division Bench authorityof the Allahabad High Court in Mt. Sughra v. Babu, AIR1952 All 506, where Sapru and Agarwala JJ. had heldthat 'in the case of a partnership consisting of only twopartners, no partnership remains on the death of one ofthem and, therefore, it is a contradiction in terms to saythat there can be a contract between two partners tothe effect that on the death of one of them the partnership will rot be dissolved but will continue'. It issought to be deduced from this proposition of law withwhich no one can contend that the dissolved firm lost itsentity even for purposes of registration. Indeed this isa situation which Section 63 of the Partnership Act isobviously designed to avoid. In Sub-section (1) of Section 63 it is mentioned that 'when a change occurs Inthe constitution of a registered firm,.....and whena registered firm is dissolved, any person who was a partner immediately before the dissolution, or the agent of any such partner or person.....may givenotice to the Registrar of such change or dissolution specifying the date thereof; and the Registrar shall make record of the notice in the entry relating to the firm in the Registrar of Firm.....'.

4. Section 63(2) of the Act makes it clear that on the dissolution of a firm which undoubtedly occurs on the death of a partner, a notice by a partner who has taken his place would be sufficient and essential to keep the continuity of the firm so far as the matter of registration goes. As held by a Division Bench of this Court of Gosain and Grover JJ. in Durga Das Janak Raj v. Preete Shah Sant Ram, AIR 1959 Punj 530, 'if a firm is duly registered and if one of its partners dies, the registration for the purposes of Section 69 of the Partnership Act does not come to an end. In reaching this conclusion the Bench relied on a Single Bench decision of Blackwell 1. in Pratapchand Ramchand and Co. v. Jehangirji Bomanji Chinoy, AIR 1940 Bombay 257, In which it was stated that 'Section 63 evidently contemplates in the case of a dissolution of a firm by death that notwithstanding the death the firm should still be treated for the purpose of the Act as registered,' as also on a other Single Bench authority of Panckridge J. in Tapendra Chunder v. Jogendra Chunder, AIR 1942 Calcutta 76, where the retirement of a partner occasioning the dissolution of the firm was not regarded as essential to require fresh registration. It was observed by Panckridge J. that so far as registration is concerned, the firm must be taken to be still registered and so long as the partners suing are shown in the register as partners, the firm, notwithstanding the retirement of one of the original partners, remains a registered firm and can sue.

So far as the legal consequences are concerned, the retirement and death of a partner ate identical as both events lead to the eventual dissolution of a firm. These authorities are sought to be distinguished on the ground that when a firm consists of two partners the principle enunciated in Section 63(2) is not attracted. There is no justification in principle or authority to restrict the application of Section 63(2) to firms with more than two partners, and such a distinction cannot be countenanced on basis of the principles of law enunciated in AIR 1952 All 506, in which all that was said was that on the death of one of the two partners the firm is dissolved, there is no force in the first contention of the learned counselthat on Kundan Lal's death, the plaintiff firm stood dissolved and was disabled to defend a suit for want of fresh registration.

5. The second point urged on behalf of the petitioner need not detain me long as it Involves only a question of fact on which this Court will not interfere in the exercise of Its revisional jurisdiction. The Court below relied on the Khata bahi (Exhibit P. 7) in coming to the conclusion that the goods of the value of Rs. 893-91 NP were purchased by the defendant firm from the plaintiff. It is true that reliance is also placed on vouchers. Exhibits P. 4 to p. 6, which purport to be in the handwriting of Ram Sarup and had not been put to him when he appeared as a witness. These vouchers constituted only one piece of evidence In support of the plaintiff's case and the learned Judge was within his rights to consider the other evidence which had been adduced by the parties. It has been found as a matter of fact that goods of the value of Rs. 893-91 NP had been supplied by the plaintiff firm to the defendant and this finding does not call for any interference by this Court in revision.

6. The result Is that this petition fails and is dismissed with costs.


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