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Maniam Hiria Gowder Vs. Naga Maistry - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 2032 of 1953 and Memo of Objections
Judge
Reported inAIR1957Mad620
ActsMotor Vehicles Act, 1939 - Sections 59(1); Partnership Act, 1932 - Sections 4; Contract Act, 1872 - Sections 23
AppellantManiam Hiria Gowder
RespondentNaga Maistry
Appellant AdvocateM.K. Nambiar and ;C.F. Louis, Advs.
Respondent AdvocateR. Desikan, Adv.
DispositionAppeal dismissed
Cases Referred and Viswanathan v. Namakchand Gupta
Excerpt:
- .....of the transport authority. a partnership in respect of a lorry business which involves a transfer of a permit will therefore be illegal and void.2. in our opinion the decision of the division bench in l. p. app. no. 3 of 1946 (c), confirming a judgment of chandrasekhara ayyar, j., is not inconsistent with the rulings referred to above. that was a case of a partnership in salt business and it was pointed out that the relevant rules permit transfer of the licence, though such transfer may not be operative against the government except with their consent. the decision of the court below was right and the second appeal is dismissed with costs. the fact of the dismissal of the present suit for dissolution of partnership and taking of its accounts on the ground that it is not.....
Judgment:

Rajamannar, C.J.

1. We have no doubt whatever that the principle underlying the long catena of cases of which it is sufficient to refer to Velu Padayachi v. Sivasooriam : AIR1950Mad444 and Viswanathan v. Namakchand Gupta : AIR1955Mad536 , will apply to this Case, the principle being that ail agreement of partnership which will entail a transfer of a licence or permit granted by the Government when there is an express provision prohibiting such a transfer is illegal and void ab initio. The case in : AIR1955Mad536 , related to an agreement of partnership in respect of a cinema business and the decision in : AIR1950Mad444 arose under the Abkari Act The doctrine on which these nothings are based is thus explained in : AIR1955Mad536 . When a penalty is imposed for contravention of a provision of law, that can be taken as an indication that the transaction which involves such a contravention is prohibited and therefore illegal; but when there is no imposition of a penalty, the question whether the contract is illegal should be determined on a consideration of the purpose behind the legislation. If the provisions are enacted for the purpose of revenue and in the interests of administration, no question of illegality will arise; but when the provisions are enacted in the interests of the public and promotion of its welfare the contravention of such provision must be held to be illegal. In the present case Section 59 (1) of the Motor Vehicles Act expressly prohibits transfer of a permit except with the permission of the transport authority. A partnership in respect of a lorry business which involves a transfer of a permit will therefore be illegal and void.

2. In our opinion the decision of the Division Bench in L. P. App. No. 3 of 1946 (C), confirming a judgment of Chandrasekhara Ayyar, J., is not inconsistent with the rulings referred to above. That was a case of a partnership in salt business and it was pointed out that the relevant rules permit transfer of the licence, though such transfer may not be operative against the Government except with their consent. The decision of the Court below was right and the second appeal is dismissed with costs. The fact of the dismissal of the present suit for dissolution of partnership and taking of its accounts on the ground that it is not sustainable does not mean that the appellant may not have any rights which are enforceable as against the other partners. Such rights are not affected by the decisions in this appeal.

3. The Memorandum of Objections is dismissed without costs.


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