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Sayyad Abdul Hawk and ors. Vs. Tumulury Vaikuntam - Court Judgment

LegalCrystal Citation
SubjectContract
CourtChennai
Decided On
Reported inAIR1927Mad491
AppellantSayyad Abdul Hawk and ors.
RespondentTumulury Vaikuntam
Cases Referred and Jackson v. Anglo
Excerpt:
.....by the respondent, namely, the suit is bad for nonjoinder, would also seem to be fatal. if an appeal can go on in the presence of the parties to the appeal and if it is not necessary to take any accounts between the parties to the appeal and the persons not parties, the appeal can well proceed. i am, therefore, inclined to hold that the suit is bad for nonjoinder of parties also and cannot be cured at this stage by the addition of deficient parties, for it will be long out of time......if it is not necessary to take any accounts between the parties to the appeal and the persons not parties, the appeal can well proceed. that case is therefore distinguishable. i am, therefore, inclined to hold that the suit is bad for nonjoinder of parties also and cannot be cured at this stage by the addition of deficient parties, for it will be long out of time. i have said nothing as to whether ex. a constitutes a new partnership. even this is very doubtful. the suit seems to be a hopeless suit from every point of view except that of moral justice. the second appeal fails and is dismissed with costs.9. the memorandum of objections relates to costs. the respondent relies on ritter v. godfrey [1920] 2 k. b. 47 and jackson v. anglo-american oil co. [1923] 2 k. b. 601 i am not clear the.....
Judgment:

Ramesam, J.

1. This second appeal arises out of a partnership transaction. The facts may be thus steated. The 1st defendant, T. Vaikuntam, a resident of Tuni in the Godavary District, the 1st plaintiff, Sayyed Abdul Hawk, a merchant of Anakapalli, Vizagapatam District, and a third person named Meru Khan, who belongs to a place called Kohibara somewhere in Northern India, entered into a partnership in 1904 for the purpose of dealing in assafoetida. Rs. 6,000 was contributed as capital by the defendant and Rs. 3,000 by Meru Khan, and the 1st plaintiff and the defendant were the working partners. The Whole stock of assafcetida was purchased and it had to be sold gradully and money realized by the sales. In 1906 Meru Khan died. Immediately after the death of Meru Khan, his father Hajee Mulla Ramzan came down and obtained Ex. A from the defendant. It is dated 15th August 1906. The date of this document as given in the chronological list of the Subordinate Judge's judgment and as printed in the papers is wrong. It is neither 18th August nor 13th August but the 15th August. This document was executed by the defendant. In this the facts were first narrated. It then winds up saying:

Hajee Mulla Ramzan Saheb, resident of Kohibara, examined this day the receipts and expenses as per my chitta and arrived at the (sum) as mentioned above. It is written in this manner. Henceforth, you have nothing to do in case I give to others except yourself, the sum relating to the credits and debits.

2. Ramzan died in 1913 or 1914 and the present suit was filed on the 26th April 1920 by three plaintiffs. The 1st plaintiff was Hawk as already mentioned, the 2nd plaintiff, a son of Meru Khan, and the third plaintiff, a son of Ramzan. It is admitted that the 3rd plaintiff's mother was living at the time of the suit, but she is not a party to the suit. The Subordinate Judge decreed the suit. The District Judge reversed it and dismissed it without costs. In the plaint the plaintiffs alleged in paragraph 3:

He also wrote in the same entry the terms of the joint business agreed upon before that and agreed to treat as partner in the place of Meru Khan the said father Hajee Mulla Ramzan and wrote all the above terms in the said entry in the handwriting of the defendant himself.

3. The plaintiff's case therefore is that by Ex. A a fresh partnership was constituted. On this plea the defendant raised the contention that not only there is no new partnership or continuance of original partnership, but also the plea that the suit is bad for nonjoinder on account of want of all the heirs of Ramzan. The Subordinate Judge found on the 2nd issue that there was a new partnership constituted by Ex. A; on the 5th issue that the suit was not bad for nonjoinder; on the 4th issue that the suit was not barred. His ground for so finding is that the whole stock was not yet sold, and until the whole stock was sold, it must be taken that the original partnership is continuing. He says:

Thus there is the express agreement that no settlement could be asked for until the stock is exhausted. In a transaction like this an agreement may also be presumed that the partnership , was not to be dissolved until after the whole business was concluded by selling out the entire stock.

4. On appeal by the defendant, for some reason the plaintiffs shifted their ground and they contended not that there was a new partnership at the date of Ex. A, but that there is in this case an agreement to the contrary within the meaning of Section 253 of the Contract Act and that the original partnership itself was not dissolved by the death of Meru Khan. The District Judge finds against this contention. The plaintiffs appeal and repeat the contention before me that at the very beginning of the partnership of 1904 there was an agreement to the contrary. In support of this contention Mr. Krishnaswami Aiyar refers me to page 153 of Lindley on Partnership in which it is stated that.

if a partnership be entered into for a single adventure or undertaking an agreement that the partnership shall last until the termination of the adventure or undertaking will be inferred.

5. Here the District Judge and the Subordinate Judge both seem to have thought that this must be regarded as a partnership for a single adventure, namely, the sale of Rs. 9,000 worth of assafoetida. Assuming that this is a partnership for a single adventure, it seems to me that the statement at page 153 of Lindley's Partnership does not advance the case of the appeal very much.

6. The passage quoted has since been enacted as Section 32 of the Partnership Act and its object is to lay down a rule of law by which in the case of an adventure a term or terminus ad quem may be attributed to the partnership even though it was not expressly made for any term. A partnership may be dissolved by the expiry of a term and in the case of an adventure it is dissolved at the end of the adventure. This is one mode of disssolution of a partnership. But there is another mode of dissolution of a partnership, that is by death. This is provided for in Section 33 of the Partnership Act, and in Section 253 of the Indian Contract Act. Even where there is a term the death of one partner dissolves the partnership. The case of an adventure is no better than the cases where there is an express term. Section 33 overrides Section 32 and if the death is earlier, the partnership is dissolved. It is not possible to hold that wherever there is an adventure that itself amounts to a contract to the contrary. I do not say that a contract to the contrary should be always express. It may be that it can be inferred from certain facts, but it seems to me that the mere existence of an adventure is not such a fact as leads to the inference of an agreement to the contrary. The appellants relied upon two cases--Harmohan Poddar v. Sudarson Poddar A. I. R. 1921 Cal. 538 and Gokul Krishna Das v. Shashi Mukhi Dasi [1912] 15 C. L. J. 204.

7. In one of these cases there have been several deaths and the partnership business went on and the Court inferred that there was an agreement to the contrary from the very beginning. That was a first appeal. In the other case, the case came up in second appeal to the High Court, and the Courts below found that there was an agreement from the very beginning. It appears from the statement of facts that there was some difficulty in attributing the continuance of the partnership business to a new contract of partnership after the death, though what it is, does not expressly appear. I do not think that these cases can help the appellants. On the other hand, the case in Lancaster v. Allsup [1887] 57 L. T. 53 referred to by the respondent seems to support him. In that case, the original agreement was on behalf of partners and their executors. After the death of one of the partners the executors refused to continue the partnership. The Court held that the partnership was dissolved. That case seems to show that though the original agreement was that the partnership should not be dissolved on death, if the executors do not agree to continue it is dissolved. It may be if the heirs agree and continue the business, the Court will infer not a new partner-ship but the operation of the original agreement. Here, there is really nothing to prove the original agreement. Anyhow I am sitting in Second Appeal and I am bound by the finding of the District Judge that no agreement that the partnership should not be dissolved by death is made out.

8. It seems to me that the alternative contention found in plaintiff's favour by the Subordinate Judge is equally useless for them, for, even assuming that Ex. A amounted to a new partnership it is difficult to see why the suit is not barred. The mere fact that the accounts were intended to be taken after all the stock is sold cannot be held to mean that there is an agreement that if there is a death before all the stock is sold there is to be no dissolution. It seems to me this stands on the same footing as the point already dealt with. I think the suit would then be barred. The other question argued by the respondent, namely, the suit is bad for nonjoinder, would also seem to be fatal. All Ramzan's heirs are not parties. It is true the objection here is not that one of the partners is not represented in the suit for dissolution as in the cases in Baboo Janokey Doss v. Bindabun Doss [1843] 3 M. I. A. 175 Ramdoyal v. Junmenjoy Coondoo [1887] 14 Cal. 791 and Srinath Pal v. Hari Charan Pal [1907] 7 C. L. J. 266 which therefore do not apply, but that all the heirs of the deceased partner ought to be made parties. It is true some of the heirs of Ramzan are parties, but not all. The cause of action of all the heirs seems to be one and indivisible and it cannot be split up and suits cannot be filed by the heirs in severalty even if the heirs do not constitnte joint co-parcenary as in Hindu Law. Even if they are several as between themselves as in the case of Mahomedans their right is all one as against the rest of the parties to the suit: see Ahinsa Bibi v. Abdul Kadar Saheb [1901] 25 Mad. 26 and Bhagela Koer v. Abdul Rahman [1916] 36 I. C. 77. The ease in Chengamma Naidu v. Gangulu Naidu A. I. R. 1925 Mad. 235 relied on by the appellants, I do not think, helps them. In that case the suit was rightly constituted. In the course of the litigation one party died and all his legal representatives were added. Some only appealed. The rule of law as to nonjoinder in a suit does not apply to appeals. If an appeal can go on in the presence of the parties to the appeal and if it is not necessary to take any accounts between the parties to the appeal and the persons not parties, the appeal can well proceed. That case is therefore distinguishable. I am, therefore, inclined to hold that the suit is bad for nonjoinder of parties also and cannot be cured at this stage by the addition of deficient parties, for it will be long out of time. I have said nothing as to whether Ex. A constitutes a new partnership. Even this is very doubtful. The suit seems to be a hopeless suit from every point of view except that of moral justice. The second appeal fails and is dismissed with costs.

9. The memorandum of objections relates to costs. The respondent relies on Ritter v. Godfrey [1920] 2 K. B. 47 and Jackson v. Anglo-American Oil Co. [1923] 2 K. B. 601 I am not clear the cases help the respondent, and I do not see any reason to interfere with the Judg's discretion in directing the parties to bear their costs in -the lower Courts. The memorandum of objections is dismissed but without costs.


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