1. This is an application for leave to appeal to the Privy Council by the appellant in A.S. No. 350 of 1937 decided by us. It is beyond doubt that the subject-matter of the suit exceeds Rs. 10,000 and it is a confirming judgment. The appellant, however, contends that the appeal involves a substantial question of law. It is unnecessary for us to recapitulate the history of this case which is set out in our judgment and in that of the lower Court. It will be sufficient if we state the two grounds on which this application has before us been based. They are to be found in the first and the second grounds of appeal. They are,
(1) The learned Judges ought to have held that the introduction of partners by the first defendant into a business though of the same kind as the business conducted by the father individually and without partners deprived the newly constituted partnership business of its character as an ancestral business.
(2) The learned Judges erred in holding that the fact of the father of the first defendant having taken a toll gate contract for one year two or three years before his death in 1914 would constitute the son's taking toll gate contracts in 1923 as the carrying on of an ancestral business of taking toll gate contracts.
2. We will deal with the second ground first. In our opinion no question of law is raised. The question of fact which had to be considered was whether the toll gate contract business was or was not an ancestral business. There was evidence on the record both of the first defendant and of the plaintiff that the father of the first defendant was taking toll gate contracts, and it was not the finding of this Bench that only one contract was taken by the father although it is true that an example of one was given by the plaintiff in cross-examination. There was evidence that the father of the first defendant had indulged in various activities all of which were comprehended in one set of accounts, which businesses were continued by the first defendant. As to whether a family business is ancestral or. not must necessarily be a question of fact and accordingly we are unable to say that any question of law is raised by this ground of appeal. ,
3. With regard to the first ground of appeal, the facts were that after the death of the first defendant's father the first defendant, who was the manager of the ancestral business, took into partnership a stranger, and the question which was argued was whether the taking of a stranger partner into the ancestral business caused that business to cease to be ancestral by itself. That it raises a question of law is beyond doubt. We have to decide whether a substantial question of law was raised. This is not a matter on which there is an absence of authority. On the other hand, the authorities appear to point all one way, namely, that taking a partner by the manager does not cause an ancestral business to cease to be ancestral. It was so held in Ramlal Thakursidar v. Lakshmichand Muniram et al (1861) I Bom. H.C.R. 51 where the proposition is laid down in the clearest possible terms. It is not suggested that the authority of this case has been doubted. The matter has not directly come under consideration by the Judicial Committee; but in Sri Thakur Ramakrishna Murarji v. Ratanchand their Lordships held that where an ancestral business of a Mitakshara joint family had been carried on in partnership with another person, and upon his retiring there had been a dissolution and winding up of the partnership, the business carried on immediately thereafter on behalf of the joint family in the same commodities and upon the same premises, though under a new firm name and with new books, was not a new business but a continuation of the ancestral business. That, of course, is the converse of the present position. In that case the facts were that the father and manager of a joint Hindu family who was the proprietor of an ancestral business took a stranger as a partner. After the death of the father the partnership was continued by the son who succeeded the father as the managing member. Some time later the stranger partner retired from the partnership and the business continued to be carried on by the son without any other partners. The view taken by their Lordships clearly indicates that the presence of the stranger as partner either during the lifetime of the father or after his death during the time that the son continued the partnership did not affect the legal character of the business. It appears to us that this decision of their Lordships substantially covers the point now argued before us. That was the view adopted by the Nagpur High Court in Bhagwan Singh v. Beharilal I.L.R. (1938) Nag. 221 where the point before us was directly decided contrary to the contentions now argued by the appellant. We are in complete agreement with the Nagpur decision. The decision of the Calcutta High Court in Shewkissen v. Mangachand 45 C.W.N. 478 does not, in our opinion, in any way assist the appellant. In that case a business on the same lines as an ancestral business was started by the manager of a joint Hindu family at fresh centres with strangers as partners, such strangers being in control of the business. On the facts Mitter and Khundkar, JJ., held that this was a new business and not a continuation of the ancestral business. Apparently the learned Judges were impressed by the evidence that control of the business was given to a new stranger partner and did not remain with the joint family. That being the position, can the point of law before us be said to be 'substantial '? It has, in our view, been virtually decided by the Judicial Committee because we are unable to understand why the principles laid down by their Lordships would not be equally applicable to the facts before us and as stated by Page, C. J., and Ba U.J., in M. C. Patail v. H.G. Ariff I.L.R.(1935) Rang. 744 we do not think that it is 'fairly open to argument' that the position is otherwise. Furthermore, as we have pointed out, there has been the unshaken view of the Bombay High Court since 1861 and the more recent view of the Nagpur High Court directly against the appellant. There is no authority in his favour. Unless it can be said that no matter which is not entirely covered by a decision of the Judicial Committee can cease to be a substantial question of law, there is no substance in the appellant's contention, and as we have pointed out there is no conflict of views in India. We therefore consider that we are prohibited by the provisions of section no of the Civil Procedure Code from granting leave to appeal in this case and for the reasons which we have given we dismiss the petition with costs.