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Jamunadhar Poddar Firm Vs. Jamunaram Bhakat and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1944Cal138
AppellantJamunadhar Poddar Firm
RespondentJamunaram Bhakat and ors.
Cases ReferredChidambaram Chettiar v. National City Bank of New York I.L.
Excerpt:
- .....is no authority for the proposition that a joint family cannot be sued as defendant in the firm name in which it traded. from those two propositions he came to the conclusion thatthe plaintiff's decree in the chaibassa suit was against a firm which had no legal existence in the eye of law, it being neither a corporation, nor a firm of partners, governed by any contract between them.he further observed thus:that being so, the decree in the chaibassa court was a decree against a non-existent person, and hence it was a nullity and the execution case following from it including the sale of the disputed house property at dhulian are all null and void and of no effect whatsoever.he accordingly held that the suit was not maintainable.8. we may at the outset observe that the learned.....
Judgment:

1. One Moti Bhagat, a person governed by the Mitakshara law, died leaving him surviving four sons, Motni alias Sew Gobind, Earn Kissen, Sree Kissen and Balgobind. Balgovind is dead and his sons, Jamnarayan and Kanailal, are defendants 1 and 2 in the suit. The other three sons of Moti Bhagat are defendants 3 to 5. Sew Gobind's & sons are defendants 6 to 11; Earn Kissen has no male descendant and Sree Kissen's sons are defendants 12 and 13. Jodhanprosad and Bhagwandas, who are defendants 8 and 9, are two of the sons of Sew Gobind. It is admitted by both sides that the aforesaid descendants of Moti Bhagat form a joint Hindu family governed by the Mitakshara law.

2. A business was carried on at Chaibassa and other places under the name and style of 'Jodhanprosad Bhagwandas Firm.' Whether' that business was a joint family business of the descendants of Moti Bhagat or was a partnership business in which only some of the descendants of Moti Bhagat were inter, posted is an important point in the case That point will have to be decided on evidence at a later stage of this suit. As the suit has been dismissed on a preliminary issue by the learned Subordinate Judge on the basis that the business carried on under the name and style of 'Jodhanprosad Bhagwandas Firm' was a joint family business we have to proceed on that footing also. For convenience we would use the expression 'Jodhan Prosad Bhagwandas Firm' to designate the joint family business carried on under that assumed name.

3. The plaintiffs are partners of a firm carrying on business under the name and style of 'Jamunadhar Poddar Firm.' There were business dealings between them and 'Jodhanprosad Bhagwandas Firm.' For their dues on those business dealings they sued the 'Firm of Jodhanprosad Bhagwandas' in the Court of the Deputy Commissioner at Chaibassa, and recovered a decree on 23rd December 1932, for Bs. 8691. That decree was affirmed on appeal by the Patna High Court. In that suit Jodhanprosad and Earn Kissen appeared as 'Partners of the firm called Jodhanprosad Bhagwandas.' That decree was transferred for execution to the District of Murshidabad and an execution case, being Money Execution Case No. 40 of 1937, was started in the High Court of the Subordinate Judge of Berham-pore against the 'Firm Jodhanprosad Bhagwandas' and against Jodhanprosad and Bam Kissen personally following the procedure laid down in Order21, E. 50, Civil P.C. A house in Dulian, which is the subject-matter of this suit, was attached and at the court sale which followed the decree-holders, who are the plaintiffs in this suit, purchased the same for Rs. 6000 on 1st October 1937. The sale was confirmed on nth April 1938 and the writ for delivery of possession was issued on 12th April 1988 but no possession could be taken by the decree-holders purchasers for the reasons a which we would presently notice. This house has been found to be joint family property of the descendants of Moti Bhagat, whom we have mentioned in first part of our judgment.

4. A firm called Heeralal Agarwalla & Co. had also obtained a decree against the 'Firm Moti Bhagat Bam Kissen' and had purchased the self same house at the court sale held in execution of its decree, but that purchase was in point of time later than the purchase of the plaintiffs. Thereafter, Jamunaram and Kanailal filed a title suit being no, 13 of 1938 of the Court of the Subordinate Judge at Berhampore, against Heeralal Agarwalla and Co. and the plaintiffs and another person. The remaining male descendants of Moti Bhagat were made pro forma defendants. In that suit they prayed for a declaration that e their interest in the house had not been affected by any one of the two execution sales. The plaint has not been exhibited in this case but from what is stated in the recital of the decree of the trial Court, their case was that the house in question was joint family property, that the 'Firm Jodhan Prosad Bhagwandas' was not a joint family business but a partnership concern, of which Bam Kissen and Jodhanprosad only were partners, that accordingly the decree obtained by Heeralal Agarwalla and Co. and the plaintiffs (Jamunadhar Poddar Firm) did not bind them and consequently the execution sales did not affect their interest in the house. The learned Subordinate Judge dismissed the suit by his judgment and decree dated 24th April 1939, and his decree was confirmed on appeal by the learned District Judge on 4th July 1939. On second appeal (No. 1239 of 1939) the suit was decreed by a Division Bench of this Court on 5th July 1940 (Ex. 2).

5. After this judgment Heeralal Agarwalla and Co. disappeared from the scene but Jamunadhar Poddar Firm, instituted the suit, in which this appeal arises, in the Court of the Subordinate Judge at Berhampore on 19th August 1940. The defendants to the suit are g the male descendants of Moti Bhagat, who are all the coparceners of the undivided Hindu joint family. We have mentioned them in the earlier part of our judgment. In the plaint they admit that the house in question belong to all the defendants. They state their case in alternative forms. Their first ease is that the joint family had carried on business under the name of 'Jodhanprosad Bhagwandas Firm,' and that Jodhan Prosad and Bam Kissen were the accredited agents of the joint family. Consequently, they had acquired sixteen annas title to the house by reason of their purchase at the court sale in h Money Execution Case No. 40 of 1937, even if the house is the joint family property of the defendants. Their alternative case is that the defendants as members of the joint family were 'partners of the firm of Jodhanprosad Bhagwandas and that all the interest of the members of the joint family had passed to the plaintiffs by the said court sale.' Two seta of written statements were filed one by defendants 4, 8 and 14 and the other by the remaining defendants. On the pleadings ten issues were framed. Issue l runs thus: 'la the suit maintainable in the present form.' Issue 5 runs thus: 'Is the suit barred by res judicata.' The remaining issues need not be noticed at this stage. The 'learned Subordinate Judge took up for consideration issue 1 only as a preliminary issue. Issue 5 which could also have been taken into consideration at that stage of the hearing was kept reserved. The learned Subordinate Judge decided issue 1 only, and that against the plaintiffs, and dismissed the suit. In the course of his judgment he has, however, put a certain construction on the judgment of the Division Bench delivered in second Appeal no. 1239 of 1939. * As we are of opinion that issue 1 has been wrongly decided by the learned Subordinate Judge and that accordingly the case has to be remanded for a decision on the other material b issues, including issue 5 (issue of res judicata) we think it proper to expunge everything from the judgment of the learned Subordinate Judge which concerns the construction of that judgment, in Order that none of the parties may be prejudiced when the issue of res judicata is taken up for consideration. That issue could not be considered by us, for the pleadings of Title Suit No. 13 of 1938 are not on the record. Those pleadings would be very material for deciding the question of res judicata, and the judgment of the Division Bench of this Court may have to be construed in the light of those pleadings.

6. As the learned Subordinate Judge has decided issue 1 as an issue in bar he was quite right in saying that at that stage the averments of the plaintiffs as contained in their plaint must be assumed to be true. The material statements as made in the plaint for the purpose of deciding issue 1 may be summarised thus: (1) that defendants 1 to 13 (the male descendants of Moti Bhagat) are the coparceners of a joint Hindu family; (2) that the said joint family traded under the name and style of 'Jodhanprosad Bhagwandas Firm;' (3) that the decree which the plaintiffs had obtained against 'Jodh' anprosad Bhadwandas Firm,' was in respect of a debt of the joint family business; (&) that Jodhanprosad and Earn Kissen, two of the coparceners of the joint Hindu family, were the accredited agents of the joint family for conducting the said joint family business; and (5) that the house in suit (Dhulian house) is the property of the said joint family.

7. On an assumption that these facts are true, the learned Subordinate Judge has come to she conclusion that the suit is not maintainable. His reasons are as follows: (1) that members of a joint family who are owners of a joint family business are not partners. They cannot therefore file a suit under the procedure laid down in Order 30, Civil P.C. For this proposition he has relied upon Lal Chand Amonlal v. M.C. Boid and Co. : AIR1934Cal810 that the provisions of Order 30 do not apply to a 'joint family firm' and that such a firm cannot sue or be sued except in the names of its members. For this proposition he has relied upon the decision of the Bombay High Court, in Amulakchand v. Babulal ('33) 20 A.I.R. 1933 Bom. 304 This case, however, is no authority for the proposition that a joint family cannot be sued as defendant in the firm name in which it traded. From those two propositions he came to the conclusion that

the plaintiff's decree in the Chaibassa suit was against a firm which had no legal existence in the eye of law, it being neither a corporation, nor a firm of partners, governed by any contract between them.

He further observed thus:

That being so, the decree in the Chaibassa Court was a decree against a non-existent person, and hence it was a nullity and the execution case following from it including the sale of the disputed house property at Dhulian are all null and void and of no effect whatsoever.

He accordingly held that the suit was not maintainable.

8. We may at the outset observe that the learned Subordinate Judge failed to notice an important provision of law, namely Order 30, Rule 10, Civil P.C. That feature is also present in the judgment of the Division Bench delivered in Second Appeal no. 1239 of 1939, but we refrain from making any further comment on that judgment, for the reason that any expression of opinion by us concerning that judgment or its real import may prejudice the parties on the question of res judicata and other material points in the case. In our judgment Order 30, Rule 10 is a very important provision and issue 1,-whether the suit is maintainable-would depend upon the construction of that rule.

9. It is settled law that a Hindu joint family trading concern is not a firm. It is also settled law, at least so far as this Court is concerned, that a Hindu joint family even when it carries on business under an assumed firm name cannot sue as plaintiff in the firm name under the provisions of Order 80, Rule 1, Lal Chand Amonlal v. M.C. Boid and Co. : AIR1934Cal810 Lakhan Sao v. Firm Kaniram Bhagwandas ('38) 25 A.I.R. 1938 Pat. 270 Devi Sahai v. Gillu Mull ('38) 25 A.I.R. 1938 Lah. 563. The suit must be brought either by the karta of the family or by all the members of the joint family who are coparceners. But it does not necessarily follow that a suit cannot be instituted against the members of a joint Hindu trading family in the assumed name in which they are carrying on business or that a decree obtained in that form would be a nullity. To such a case different considerations may apply. A single individual who carries on business under, a firm name or an assumed name cannot sue as plaintiff in that assumed name Neogy Ghose and Co. v. Nehal Singh : AIR1931Cal770 Bhagwan v. Hiraji ('32) 19 A.I.R. 1932 Bom. 516 Samrathrai v. Kasturbhai ('30) 17 A.I.R. 1930 Bom. 216; but Order 30, Rule 10 enables a person to sue him as defendant in that assumed name. This distinction which has been made in Order 30 itself has, in our judgment, been made in the interest of commerce. There is no in convenience or injustice, if a person carrying on business under a firm name or any other assumed name is made to sue in his real name, but different and weighty considerations would apply when he is sued by another person in the assumed name in which he carries or has carried on business. Business may be carried on by correspondence and orders may be, and are usually, placed from one part if the world to another through post and goods may be supplied on credit on such orders. A producer or merchant living in one part of the globe cannot be expected to know or to make enquiries and in some cases it is not possible for him to know or to make enquiries as to who is the owner of the business that is being carried on in an assumed name, and in most cases, he would only know the name of the real owner after he had brought his suit, for the defendant must then appear in his own name (O. 30, Rule 6.) If it were to be held that a decree obtained by such a producer or merchant in a suit instituted against the assumed name is a void decree, it would lead to manifest hardship, would open, up a wide door to fraud and would sap the credit on which commercial dealings largely rest. In our judgment Order 30, Rule 10, Civil P.C. rests on these considerations and they must be kept in view in construing that rule. Provisions similar to those of Order 30 were not in the Civil Procedure Code of 1882. That Order was introduced in the Code of 1908 and its provisions follow closely the provisions of Order 48A of the Rules of the Supreme Court of England. Rules 1 and 10 of Order 30, Civil P.C. are almost verbatim reproductions of Rules 1 and 11 of the Supreme Court Rules.

10. The point which we have to consider is whether Order 30, Rule 10 applies only to a single individual carrying on business under a firm name or an assumed name or whether it also applies to a number of individuals carrying on business either under a firm name or an assumed name, when those individuals do not in law constitute a partnership resting on contract. The contention of the respondents is that it applies only to a single individual. To support their contention they rely upon the cases in Mac Iver v. G. & J. Burns (1895) 2 ch. 630 and Chidambaram Chettiar v. National City Bank of New York ('36) 23 A.I.R. 1936 Mad. 707 There are also some cases decided by the Lahore High Court which support their contention. The learned advocate appearing for the appellants relies upon the case in Alekh Chandra v. Krishna Chandra ('41) 28 A.I.R. 1941 Pat. 596 There is no decision of this Court on the point.

11. On the construction of Rule 10 one point is clear. You can sue a man in his firm name or in the assumed name in which he is carrying on business only in respect of matters which are connected with the business which he is carrying on under that name. If a person, say Earn Chandra Dutt carries on cloth business under the name of John Smith & Co. or the Bengal Traders Bureau, but takes meat on credit in his own name from a butcher, the butcher cannot take advantage of the provisions of Rule 10 and sue him in the name of either John Smith & Co., or the Bengal Traders Bureau. But if on the other hand he had obtained cloth on credit for the purpose of his trade, he can be sued in those names. This conclusion follows from the phrase 'may be sued in such name or style as if it were a firm name' occurring in Rule 10. This is also what Lindley L. J. observed in Mac Iver v. G. & J. Burns (1895) 2 ch. 630 at page 635.

12. The Indian decisions which have taken the view that E. 10 applies only to a single individual proceed on the authority in Mac Iver v. G. & J. Burns (1895) 2 Ch. 630 and the case in Gobain v. Hoyermann's Agency (1893) 2 Q.B. 96. It is, therefore, necessary to examine those two cases a little more in detail. In the first mentioned case the three plaintiffs, the Maclvers, and Sir John Burns, a Scotchman domiciled in Scotland, carried on a partnership business under the name and style of Clyde Navigation Co. That partnership was dissolved in April 1895. The suit was in respect of accounts of that dissolved partnersnip. Sir John Burns was the sole proprietor of a business which he carried on under a firm name, G. & J. Burns. That business had several branches, one being at Liverpool. The summons of the suit on Sir John Burns was served on a person at Liverpool who had control of his Liverpool branch office, under the provisions of Order 48A, Rule 3 of the Rules of the Supreme Court, which corresponds to Order30, Rule 3, Civil P.C. Sir John Burns moved to set aside the service and the subsequent proceedings on the ground that Order11 of the Rules of the Supreme Court was applicable. The plaintiffs contended that as Sir John Burns carried a business under an assumed name the suit could be brought against him under the provisions of Order 48A, Rule 11 (=O. 30, Rule 10, Civil P.C.), and so service of summons as made was effective by virtue of the provisions of Order 48A, Rule 3. The Court held that the service was bad as the suit did not fall within Rule 11 of Order 48A on the ground that it had no connexion with the business which Sir John Burns carried on in the firm name of G and J Burns. The point as to whether Rule 11 contemplates only the cage of a single individual trading under a firm name or an

assumed name was not a point in issue in the case. In one part of his judgment Lindley L.J., no doubt observes that 'rule 11, which has really nothing {o do with partnership rules, is tacked on to apply to the case of a single individual who carries on business, either in the name of a firm, or, as it is expressed in the rule, under some name other than his own,

but in a later part of his judgment he made the further observation that the scope of that Rule was to 'authorise the suing persons in the name in which they carry on business,' the underlying principle being 'to facilitate the carrying on of actions against those who conceal their names.'

13. In Gobain v. Hoyermann's Agency (1893) 2 Q.B. 96 a German, domiciled in Germany, was the defendant. He carried on business under an assumed name: 'Hoyermann's Agency, Phosphatfabrick Hanover.' The plaintiffs brought a suit in England for damages for breach of contract against him in the assumed name in which he was carrying on business. He had an office in the city of London where he booked orders. The writ of summons was served on his Manager at his London office. The question was whether the service was good. The question that was raised in that case was accordingly the same as in Mac Iver v. G. & J. Burns (1895) 2 ch. 630. The point for decision was not whether Order 48A, Rule 11 contemplates only the case of a single individual or more individuals than one, though there are observations to the effect that it covers only the ' case of a single individual. These two cases are not accordingly direct authorities in favour of the respondents.

14. A business can be carried on either by one person, either in his own name or in an assumed name, or by a number of persons in association. In the last mentioned case the association of those persons would ordinarily in England be a partnership concern. There is no such conception in England, the like of which we have here in the case of a joint Hindu trading family, of a group of persons trading together but not constituting a firm. In view of that fact it would, in our judgment be not right to follow blindly the dicta of Judges of the English Courts where they say that Rule 11 of Order 48A relates to the case of a single individual. On this point we fully endorse the view expressed by the Patna High Court in Alekh Chandra v. Krishna Chandra A.I.R. 1941 Pat. 596. Differing from the decisions of the Madras High Court in Chidambaram Chettiar v. National City Bank of New York I.L.R (1937) Mad. 28, we agree with that decision of the Patna High Court. No convincing reasons have been given in the judgment of the Madras High Court. The contrast between the language of Rules 1 and 10 of Order 30 made therein does not carry the matter far, and we do not agree with the observations that here in India 'there is no reason to depart from the view taken in the English cases' on the scope of that rule.

15. In Alekh Chandra v. Krishna Chandra A.I.R. 1941 Pat. 596 the Patna' High Court seems to have proceeded upon the view that Order 30, Rule 10 contemplates the case of a single person, and that for, the purpose of that Rule a joint Hindu family is to be considered as a single person. This part of that judgment which attributes to a joint Hindu family a personality, and that of a single person, has been criticised by the learned advocate for the respondents with great force. We feel the force of those criticisms, but prefer to reserve our opinion on that aspect of the matter. For some purposes no doubt a joint Hindu family has been considered as an unit and a person. Those cases are noticed in the judgment of the Patna High Court in Srikantalal v. Sidheswari Prosad ('37) 24 A.I.R. 1937 Pat. 455 at p. 445. The case in Mewa Ram v. Ramgopal : AIR1926All337 a case under Section 4, Companies Act, is also a case where that view was taken.

16. Order 30, Rule 10 uses the words 'any person.' The singular number is there, but the word 'person' must be given the meaning assigned to it by Section 3 (39), General Clauses Act. Unless there is something repugnant in the context or in the subject, the term 'person' will include any association or body of individuals whether incorporated or not.' We do not find either anything in the context or subject which would lead to us to hold that Rule 10 contemplates the case of a single individual only, and not of many individuals. Of course, where more than one individual trade under a firm name or under any other assumed name and form a partnership resting on contract, the case would, come under B. 1 of Order 30, but where they do not form a partnership we do not see any convincing reason why they should not come within Rule 10. We have already stated in the earlier part of our judgment the object of that rule. The view we are taking of that Rule is consistent with that object and the contrary view, which has been taken by the Madras High Court in Chidambaram Chettiar v. National City Bank of New York I.L.R (1937) Mad. 28 would defeat that object which is behind that rule. We accordingly hold that the decree obtained by the plaintiffs against the 'firm of Jodhanprosad Bhagwandas' in the Chaibassa Court is not a nullity. Subject to other issues raised in this suit it is binding on all the persons who had interest in the business that was carried on under that name and style. The result is that this appeal is allowed and the case is remanded to the lower Court. That Court would decide the other issues in the case. Costs do abide the final result. Hearing fee in this Court is assessed at 10 gold mohurs.


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