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Shyamlal Roy Vs. Madhusudan Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 1224 of 1953
Judge
Reported inAIR1959Cal380
ActsCode of Civil Procedure (CPC) , 1908 - Orders 1 and 6, Rules 2 and 10; ;Hindu Law; ;Partnership Act, 1932 - Section 4; ;Evidence Act, 1872 - Sections 101 to 104; ;Companies Act, 1913 - Section 4
AppellantShyamlal Roy
RespondentMadhusudan Roy and ors.
Appellant AdvocateM.M. Sen, Adv.
Respondent AdvocateB.C. Dutt, Adv.
Excerpt:
- p.c. mallick, j.1. this is a suit for partition. properties sought to be partitioned are six items of immovable properties and certain businesses. common ancestor of the parties is one budhuram saha, who had four sons, gangasagar, anandamohan, harimohan and brajamohan. it is alleged in the plaint that the four sons of budhuram carried on family businesses under various names and styles. the shares of the parties arc set out in paragraph 6 of the plaint. it is alleged that the senior managing members of the family are mismanaging and misappropriating joint family funds, have refused the plaintiff access to the books of account, have not furnished information with regard to the joint family businesses, assets and their own dealings. usual reliefs in a partition suit have been claimed.2......
Judgment:

P.C. Mallick, J.

1. This is a suit for partition. Properties sought to be partitioned are six items of immovable properties and certain businesses. Common ancestor of the parties is one Budhuram Saha, who had four sons, Gangasagar, Anandamohan, Harimohan and Brajamohan. It is alleged in the plaint that the four sons of Budhuram carried on family businesses under various names and styles. The shares of the parties arc set out in paragraph 6 of the plaint. It is alleged that the senior managing members of the family are mismanaging and misappropriating joint family funds, have refused the plaintiff access to the books of account, have not furnished information with regard to the joint family businesses, assets and their own dealings. Usual reliefs in a Partition suit have been claimed.

2. There is a number of defendants, more than 30. Out of them, only six have filed written statements. Defendants Nos. 2, 9 and 20 have filed a written statement jointly. Defendants Nos. 8 and 17 have filed another written statement jointly. A third written statement has been filed by defendant No. 9B. There are, therefore, three written statements on record and the defence taken in each one of the written statements is more or less the same.

3. It is not denied in the written statement that the parties to the suit are descendants or wives of such descendants of the four brothers--Gangasagar, Anandamohan, Harimohan and Brajamohan or that the four brothers during their life time carried on family business under various names and styles. It is alleged in one of the written statements, viz., that of defendants Nos. 8 and 17, that the heirs of the four brothers separated about 40 years back, i. e., in 1913, and have been living ever since in four different houses in four undivided joint families. It is further alleged that businesses are no longer one joint family business but are partnership businesses. Business of Gangasagar Anandamohan Saha was started on 23-3-1933 in co-partnership of four kartas of the said four joint families and four outsiders. From time to time the constitution has changed with the death or retirement of the partners. The present partners are the four kartas of the joint family, namely, Manik Chandra Radharam. Bidu Bhusan & Podaballav & one outsider, Mohini Mohan. So also the business of Harimohan Brajamohan Saha was started on 23-3-1933 in co-partnership by the four kartas with three outside partners. In the same way, the constitution of the firm changed from time to time. The present partners are the .same four kartas and one outsider. Tarak Chandra Saha. The business of Ganga-sagar Anandamohan Harimohan Brajamohan Saha was similarly started on August 28, 1931 in co-partnership with the kartas with no outsider partner. The present partners are the same four kartas as are partners in the other firm. It is pleaded that none of the properties set out in Schedule B to the plaint belongs to the parties. Item No. 7 in Schedule B belongs to the partnership firm of. Gangasagar Anandamohan Saha, while the other items of properties in the said Schedule belong to the partnership firm of Gangasagar Anandamohan Harimohan Brajamohan Saha. It is pleaded that the rice mill referred to in the plaint does not belong to the parties, but is owned by the company of the name of Gangasagar Rice Mills Ltd. All allegations of mismanagement and misappropriation of funds have been denied. Right to inspect the accounts and to obtain information about the dealings in the partnership business has been disputed, on the ground that the plaintiff is not a partner of any of the partnerships. It is pleaded in two of the written statements that the partnerships are illegal, being an association of more than 20 members, having for its object acquisition for gain and not registered under the Indian Companies Act. It is submitted that the suit is not maintainable and should be dismissed.

4. On the pleadings, the following issues have been raised:

I Were the businesses of Gangasagar Anandamohan Saha, Harimohan Brajamohan Saha joint family businesses of the parties or partnership businesses?

2. Were there any business of the names of Gangasagar Saha and Gangasagar Likcnath Saha? It so, were they joint family businesses or partnership businesses? where were the businesses carried on? is any of the said businesses still in existence?

3. Was there any business of the name of Gangasagar Anandamohan Harimohan Brajamohan Saha? Was such business joint family business co-partnership business?

4. Do the properties mentioned in 'Schedule B' to the plaint belong to the joint family of the parties to the suit?

5. Have the shares of the parties been correctly given in paragraph 7 of the plaint?

6. Is the suit maintainable as framed?

7. Is the suit barred by the Section 11 or principles analogous thereto by reason of the decision in the suit No. 52 of 1946?

8. Is the suit had for non-joinder of parties?

9. To what relief is the plaintiff entitled?

5. At the hearing, the plaintiff tendered his own evidence. None of the defendants--not even those who claim to be partners in the various businesses--tendered evidence at the trial- The defendants tendered only the evidence of one Bholanath Roy, an employee.. The defendants, however, tendered certain documents in evidence in support of their case. The plaintiff also proved certain documents.

6. The points of dispute on facts between the parties are confined within a very narrow compass. The plaintiff's case is that the parties to the suit are the descendants of the four brothers headed by Gangasagar and as such all the descendants are owners of all the joint family properties, including the properties set out in Schedule B and all the businesses which are joint family businesses. The defence is that the original joint family of four brothers headed by Gangasagar is no longer in existence; it disrupted some 40 years back, that issometime in or about 1913. Thereafter, instead of one single joint family, there came into existence four joint families of the four brothers who separated in mess and worship and begun living in four different houses and carrying on different businesses of their own. It is to be noted that no case is made that there has ever been a partition by metes and bounds of the assets of the joint family among the four branches. It is not disputed that the four brothers headed by Gangasagar used to carry on various joint family businesses under different names and styles as alleged in paragraph 1 of the plaint. The case made is that these businesses are no longer joint family businesses but are contractual partnerships. One of such contractual partnerships, namely, the firm of Gangasagar Ananda Mohan Hari Mohan Brojo Mohan Saha was started in 1831 and the other two, namely, Gangasagar Ananda Mohan Saha and Hari Mohan Brojo Mohan Saha came into existence in March 1933.

7. It must be held on the pleadings that originally there was one joint family consisting of four brothers headed by Gangasagar and that this joint family carried on various joint family businesses under different names and styles as indicated in paragraph 1 of the plaint. The parties must be held to their pleadings. I am unable to agree that I should allow laxity in the matter and thus enable the defendant to make out a case different from the case made in the written statement. Mr. Dutt the, learned Counsel for the defendants reminded me of the observation of the Judicial Committee about pleadings in this country but those observations were made with reference to mofussil pleadings. Mofussil pleadings are notorious, and in the interest of justice the Court is entitled not to hold the parties strictly to their own pleadings. Pleadings, however, in the Original Side of this Court stand on a different footing. In the instant case, cue of the written statements has been drafted by one of the ablest counsel of this Court and the other two written statements are copies thereof. I am not, therefore, prepared to allow the defendants to make a case different from the case made in the written statement about the all important question as to whether the four brothers headed by Ganga Sagar formed a Hindu joint family and carried on joint family businesses under various names and styles as noted in paragraph 1 of the plaint. This averment in the plaint has not been denied because it cannot be denied. The absence of specific denial of this fact cannot be explained away and parties must be held to it. The origin of the different business in the suit being thus admitted to *be a family business and not a contractual partnership, the plaintiff is not required to tender any evidence to that effect. The entire burden is therefore on the defendants to prove that the business originally started as a joint family business was subsequently converted into a contractual partnership. If the defendant fails to discharge this onus it must be held that the joint family character of the businesses has not been altered and the businesses still continue to be a family partnership.

8. The case made in the written statement is that the businesses were being carried on as contractual partnerships, one from 1931 and the other two from 1933. At the trial the case of partnership was sought to be Droved by tendering three sets of partnership deeds with respect to each one of the three businesses. On tee basis of the recitals in the document however, Mr. Dutt the learned counsel for the defendant argued that the businesses were carried on as contractual partnership from before. Indeed the recital in the deed did provide a foundation for this argument of Mr. Dutt. If I am very strict in applying the rules on pleading, I should not allow the defendant to make this case that the businesses were carried on as contractual partnerships from before the period stated in the written statement. I am however prepared to condone it and to allow the defendant to prove a case of partnership from even prior to 1931 or 1933.

9. Let me now consider the evidence tendered in support of a case of partnership. The first evidence tendered is three sets of partnership deeds with respect to the three businesses. These three sets of deeds of partnership indicate that two of the businesses namely, Gangasagar Anandamohan Saha and Hari Mohan Brojo Mohon Saha, are partnership businesses in which the kartas of the four branches representing the four different families are the partners along with some Outsiders. The remaining one, namely, Gangasagar Ananda mohan Harimohan Brojo Mohan Sana, is a partnership in which the four kartas as representing the four different families are partners. There are no outsiders. The partners have been described in the various deeds as kartas of an undivided Hindu family consisting of the defendants in the male line or the four brothers, namely, Gangasagar, Anandamohan, Harimohan and Brojomohan Saha. The karta of a Dayabhaga family does not however represent only the descendants in the male line. Persons described as kartas in the deed are not, therefore, kartas as known to Hindu Law, They are nothing more than representatives of a particular branch or group. There is no evidence that the partners were authorised by the class whom they purport to represent to enter into this partnership and convert the former joint family business into a partnership business. My attention has been drawn to the terms of the partnership which according to Mr. Sen the learned counsel for the plaintiff shows that this partnership is different from an ordinary partnership. Family members who are not partners have been given certain rights under the deeds, The members of the family would be entitled to draw money on their own account from the partnership till. Again, the position of the outside partners is different from the position of the karta partners. While on the death of the karta partner the senior member of that branch would be entitled as of right to be a partner, not so in the case of outside partners. It is expressly provided that the goodwill of the businesses will belong to the kartas of the families exclusively. On the death of an outside partner his heirs would not be entitled to the assets. There is therefore something in the comment made by Mr. Sen that the terms are apt to be like a Hindu joint family business and different from an ordinary contractual partnership. As against this, however, it must be remembered that even though it is a partnership, it is a partnership of the heads of four branches of the same family in which the interest of the outsider is very insignificant. No undue importance therefore need be attached to the characteristics of the partnership deed for the purpose of deciding whether they are real partnership or family partnerships as known to Hindu law.

10. The next important bit of evidence in support of a case of contractual partnership is the registration certificates. Three such certificates have been tendered in evidence. They were neither disclosed nor tendered in evidence by the defendant. At the time of the cross-examination of the defendants' witness Bholanath Roy the defendants were hard-pressed as to the registration of the partnership firm whereupon the defendants were forced to produce these certificates which thereafter were tendered in evidence by the plaintiff. Two of these certificates relate to the firm of Harimohon Brojomohon Saha and one of them relate to the firm of Gangasagar Anandamohon Saha, and no registration certificate of the firm, if any, of Gangasagar Anandamohan Harimohon Brojomohon Saha has been tendered in evidence. The two registration certificates with respect to the firm of Harimohon Brojomohon Saha appear to be identical. It appears that the partnership was registered on the basis of a statement required for registration under the Indian Partnership Act. No partnership deed appears to have been tendered. The most important part of this particular certificate is the name of the partners. It appears from this registration certificate that the partners of this firm are sixteen in number and all are descendants of the four brothers Gangasagar, Anandamohan, Harimohan and Brojomohan Saha, There are no outside partners. This statement furnished in terms of the partnership Act on the basis of which registration was effected appears to have been filed on March 28, 3934. In 1934 the partnership agreement that was effective with reference to the firm of Harimohon Brojomohon Saha is the deed dated 23-3-1933. According to this there' are seven partners all told, the first four, namely Radnaballav, Sadhan Chunder, Gopiballav and Sudarsan are karta partners, whereas the remaining three Radhakamal, Lokenath, and Gopinath are outside partners. Referring to the registration certificate, however, we find that the partners are not merely the kartas but all the members of the joint family. Secondly, no name of the outside partners does appear in the registration certificate. Now, if we look at the registration certificate of the firm of Gangasagar Ananda-mohan Saha, we find it was also registered on the basis of a statement, which statement the partners were required to furnish under the Partnership Act. It appears from the certificate that this statement was filed on 12-4-1934. On 12-4-3934 the names of the partners to be found in the registration certificate are eighteen in number. The first sixteen are members of the joint family and the last two are outside members. We find therefore on comparison of the two, namely, the deed of partnership and the registration certificate that whereas in the deed of partnership the members are four kartas and four outsiders, according to the registration certificate the partners are all the members of the joint family and only two outsiders. It follows that there is a clear contradiction between the partnership deeds on to one part and the registration certificates on fundamental points. It is to be noted that no registration certificate subsequent to 1934 has been tendered, even though the deeds show that there has been a change in the constitution of the so-called firm on account of death or retirement. No registration certificate of the firm of Gangasagar Aanadamohon Harimohon Brojomohon Saha has been tendered even though a decree in favour of the firm has been tendered in evidence, which shows that the firm is a registered partnership. In this connection it is necessary for me to record that on 28-4-7944 a letter appears to have been written by the Registrar of Firms to the firm of Gangasagar Anandornohan Harimohan Brojomohan Saha to the following effect:

'Re: Registered No. 5324

No. 25-F, D/-28-4-1944,

Gentlemen.

With reference to the notice of changes in the constitution dated 11-4-1944, submitted at my Calcutta office on 15-4-1.944, I have the honour to state that, as the firm now consists of more than 20 partners, the Notice of changes in the constitution cannot be recorded in this office (Vide Section 4(2) of the Indian Companies Act 1913).'

11. Apart from these two all important documents, other documents have also been tendered, in support of the case of partnership which may now be noticed. Certified copy of an order dated 11-2-1933 in a suit pending in this court has been tendered in evidence. This is an order confirming a sale and directing sale certificate to issue with respect to two premises, namely, premises Nos. 17 and 22, Hari Chandra Mullick Street. The purchaser's name given in the order is Gangasagar Aaanda Mohon Hari Mohon Brojo Mohon Sana Roy a partnership firm. The name of the firm however is slightly different, namely, having a 'Roy' added at the end. This however is a very small point. The sale certificate issued by the Registrar with respect to these two properties have also been tendered. The purchaser there has been described in the same terms. The conveyance dated 2-9-1927 whereby premises No. 10, Biswambhar Mullick Lane being Item No. 4 in Schedule B was purchased has been tendered. The purchaser's name appears from the conveyance to be Gangasagar Anada Mohon Saha a partnership firm carrying on business as merchants at No. 2, Debendra Chandra Dutt Lane. It is to be noted that the other conveyance whereby different other properties have been purchased either by the firm or parties have not been tendered. Certain counterfoil rent receipts have also been tendered, they are Ex.. 1 scries and Ex. 2A. Ex. 1 series are counterfoil rent receipts in respect of the premises No. 2, Deben Dutt Lane, 17, Hara Chandra Mullick Street, 22, Hara Chandra Mulick Street and 7/1/1 Kalakar Street. The counterfoil rent receipt sets out the name of the owner in the following terms: 'Malik dakhalkar (owners in possession) Late Ganga Sagar Saha, late Ananda Mohon Saha, late Hari Mohan Saha and late Brojo Mohan Saha.' This does not support the defence case that the properties are not owned by the member of the family but by partnership. Ex. 2A is the counterfoil of a rent receipt with respect to premises No. 10, Biswambhar Mullick Lane. Here also the name of the owner is described in the following terms:

'Owner in possession, Ganga Sagar Saha Ananda Mohon Saha.'

The name of the firm however is different, namely, Ganga Sagar Anandamohan Saha. There is no-'Saha' in between. A number of rate bills of the Calcutta Corporation have also been tendered. The rate bill in respect of premises No. 1, Deben Dutt Lane shows the name of the owners to be 'Babus Sudarsan Manick Chunder Saha and Babus Jaga-bandhu Lokenath Madanmohan Sadhan Chunder and Baishnab Chunder Saha.' The rate bill of No, 7/1/1 Kalakar Street shows the name of the owner as 'B. Radhaballav Saha Roy and others.' The rate bills with respect to premises No. 2, Deben Dutt Lane are in the same terms. The rate bill with respect to premises No. 22, Hara Chandra Mullick Street and 17. Hara Chandra Mullick Street shows that the owners are:

'Estate Ganga Sagar, Estate Ananda Mohon, Estate Hara Mohon and Estate Brojo Mohon Saha Roy'

None of the rate bills therefore supports the case of the properties being owned by the partnership firm. The decree in Suit No. 793 of 1947 is a decree passed in a suit for rejectment against a tenant occupying premises No. 1, Deban Dutt Lane, instituted by the firm of Ganga Sagar Saha Ananda Mohan Saha Haro Mohan Saha Brojo-mohon Saba a partnership firm duly registered under the Indian Partnership Act. Without such an averment the suit would be incompetent under Section 69 of the Indian Partnership Act. The decree is a consent decree and the plaintiff firm was never called upon to prove that it is a registered partnership. It is clear from the letter of the Registrar of Firms written in 1944 and noticed before that at the time when the suit was instituted the firm could not have been registered. Nevertheless, this decree was obtained and everybody was made to believe that it was a registered firm though, in fact, it was net. These are all the documentary evidences tendered in support of the case of partnership. Apart from that, as I have stated before, there is the oral testimony of Bholanath Hoy. He is a general tadbiikar of all the concerns belonging to the parties and his evidence is that he used to do every work as asked by the Babus. The term 'babus' included not merely the kailas of the various partnerships but all the members of the family. Though Bholanath was doing work for all the firms his salary however was debited to one particular firm. If the different businesses are not owned by the same parties--how is this possible? He proved the signatures of the various parties in the partnership document. According to his evidence, these businesses were being carried on for a long time and some of the employees were admitted as partners. In my judgment, his evidence on the point of creation of the contractual partnerships do not amount to anything. The partnership deeds are directly contradicted by the registration certificates us indicated before, No partner or member of the family came to explain this inconsistency if such inconsistencies can be explained at all. I apprehend that because the registration certificate could not be reconciled with the deeds of partnership that the defendants held up these registration certificates at the initial stage. When however they were compelled to disclose the certificates which were tendered in evidence by the plaintiff it was impossible on the part of any of the partners to come to the box and give evidence in this case. The Partnership Act provides that statements containing the members of the partnership must be signed by the partners or their duly authorised agent before the firm can be registered. It appears from the certificate that all the family members including the plaintiff are alleged to be partners in 1934. The only member of the family who gave evidence is the plaintiff. He altogether denied any partnership. He was never confronted with the registration certificate in which his name appeared. From this it must he held that plaintiff neither himself signed the application for registration nor authorised anybody to sign on his behalf for the purpose of registration of the firm. There is no other evidence on record to show that the alleged partners had any authority to sign on behalf of the other members of the family in the application for registration on their behalf. Partnership of all the members of the family therefore, as appears from the registration certificate, has not been proved. In my judgment, the partnership of the kartas with or without outsiders is negatived by the registration certificate and the partnership of all the members as evidenced by the registration certificate is negatived by the partnership deeds, It seems to me that the managing members of the family business created documents as suited their convenience without any reference to the other members of the family and these documents had no reference to the realities of the situation. Partnership deeds were created for the purpose of income-tax and registration effected for the purpose of instituting suits. I apprehend that no member of the joint family except the managing members had anything to do with either.

12. At the inception the businesses were joint family businesses. It is the defence case that subequently they were converted into contractual partnership. The burden of proving contractual partnership is on the defendants. In my judgment, the defendants have failed to discharge this onus. The two fundamental sets of documents, namely, partnership deeds on the one hand and certificates of registration on the other cancel one another. Other documents relied on and as indicated before cannot be treated as clinching or dependable documents to prove the existence of partnership. The conduct of the parties in continuing the business even after 1944 when the number of members exceeded twenty is against the defence case that the business was a contractual partnership. Failure of the defendants to tender evidence of material witnesses, namely, of persons in actual management or, at least, the members of the family, to corroborate the defence case and also failure to tender material documents and accounts as indicated before militate against the defence case of Eartnership. Account books of the firm have not een tendered in evidence but certified copies of petition to the Income-tax Officers and the Land Customs Officers dated July 1954 have been tendered to explain the non-production of the books. These documents do not however explain the non-production of the books now in the year 1958.

13. It is argued that the four branches of the present family no longer mess together or worship together. They are living in different houses, Hence there is no joint family and there cannot be any joint family properties. Members of joint family may choose to be separate in mess and worship but still keep the properties joint. They may also acquire separate properties of their own but the character of the properties belonging to the original joint family is not affected by the separation in mess and worship of its members or by the fact that the members were carrying on separate businesses and were having separate properties of their own. If the joint family chooses to continue the joint family businesses after the members have separated in mess and worship, living their separate lives and acquiring separate properties, the business would still be a joint family business and its properties still continue to be joint family properties. Even after the members have separated in mess and worship but if they still do not separate the joint family properties and if they still continue the joint family businesses, a suit for partition would lie for those joint family properties and joint family businesses which were still joint. The evidence of separation in mess and worship of the members of the joint family does net lead to the conclusion that the character of the joint family businesses have altered or that the businesses are being carried on in co-partnership. Unless there is evidence of partition of the original joint family business and property and dependable evidence that the business had been from a certain point of time converted by agreement into a contractual partnership the character of the business as a joint family business still continues. Once it is admitted or proved that the business was in its origin a joint family business the Court cannot change its status into a contractual partnership on probabilities and presumptions based on the increase in the number of members due to the passing away of two or three generations; the separation in mess and worship of its members and such other facts. In my judgment none of the facts relied on by the defence motive the continuance of the old joint family businesses.

14. It is admitted that all the descendants of the four brothers headed by Ganga Sntrar have interest in the business. Their position would be that of partners, if it is a case of partnership of all the members or sub-partners. if it is a case of partnership of the kartas. In either case, it is an association for gain. Such a partnership is illegal under Section 4 of the Indian Companies Act. Section 4(1) of the Indian Companies Act provides as follows:

'4(1). 'No company, association or partnership consisting of more than ten persons shall be formed for the purpose of carrying on the business of banking unless it is registered as a company under this Act, or is formed in pursuance of an Act of Parliament or some other Act of the Governor-General in Council, or of Royal Charter or Letters Patent.'

Section 4(3) of the same Act provides as follows: 'This section shall not apply to a joint family carrying on joint family trade or business and where two or more such joint families form a partnership, in computing the number of persons for the purpose of this section minor members of such families shall be excluded.'

15. An association of more than twenty persons carrying on business for gain is only permissible if it is a Hindu joint family business. Such an association would be illegal even if it is a partnership of two or more joint families as Sub-section (3) in terms indicates. I am unable to accept the argument of Mr. Dutt that when two or more joint families represented by their kartas enter into a partnership the number of members for the purpose of Section 4 would be the kartas and not the other 'members of the joint family represented by their kartas. In my judgment such a partnership of kartas would be illegal if the number of adult members of the joint family exceed 20. In the instant ease the number exceeded 20 in 1944 and if its businesses were partnerships they were clearly illegal. Not merely the business would be illegal if it is a case of partnership, but the managing members of the businesses knew that such businesses were illegal as the letter of the Registrar of 1944 clearly indicates. Such illegal businesses would certainly not have been carried on for all these years after 1944. The businesses could only function as legitimate commercial concerns if they are Hindu joint family businesses. This fact, in my judgment, strongly supports the plaintiffs case that the businesses are Hindu joint family businesses and not contractual partnership.

16. Mr. Dutt has contended that the plaintiff cannot challenge the partnership deed by reason of the provisions of Sections 91 and 92 of the Indian Evidence Act. These sections prevent oral evidence being tendered in variation of a written agreement. These sections, in my judgment, have no application to the, facts of this case. The plaintiff does not seek to alter the terms of the partnership. He is not a party to the agreement, nor has it been proved that the so-called karta had any authority from the plaintiff or any other member of the joint family to enter into agreements on their behalf. The plaintiff cannot be held to be a representative in interest of the so-called kartas. This argument of Mr. Dutt is clearly not tenable.

17. Mr. Dutt next argued that in the absence of outside partners named in the partnership deed, there cannot be any adjudication on the factum or validity of those deeds in this suit. The partnership having been pleaded as a bar to the suit and the instruments having been proved according to law which show that there are partners who are not parties to the suit, the Court should not adjudicate on the rights of the parties who are not parties to the proceedings. In other words, the plea is one of non-joinder of parties. The plea will succeed if the outside parties to the deed are necessary parties to this suit. If they are only proper parties, the suit would not be bad on the ground of non-joinder.

Had it been a suit on the basis of partnership and adjudication of the rights of the parties under the partnership deed, all the partners would have been necessary parties to the suit, and in the absence of the outside partners, the suit would have been bad on the ground of non-joinder. But the plaintiff does not claim his right under the partnership. His case is that the businesses are joint family businesses. If in this suit the plaintiff disputed the validity of the partnership and claimed a declaration that the partnership deeds are invalid and not binding on the plaintiff, then also the partners named in the deed would be necessary parties and in that event the suit would not proceed in the absence of all or any of the partners. But in the present case, the plaintiffs case has no reference to any partnership and with respect to which no relief is claimed, but the plaintiffs case is on the footing that the businesses are plain joint family businesses. Some of the defendants no doubt pleaded that these are contractual partnerships evidenced by partnership documents and the documents indicate that there are partners who are not members of the joint family. In such cases are the outside partners named in the partnership deed necessary parties to the suit? I am inclined to hold that they are not In the suit as framed, no relief is claimed having any reference to any partnership. The defence has made out a case that the businesses are not joint family businesses but contractual partnerships. The simple issue therefore is whether the businesses are joint family businesses or contractual partnerships. Once the Court holds that the business is not a Hindu joint family business but a contractual partnership--no matter who are the partners, the suit would be dismissed. The Court would not after negativing the case of Hindu joint family business and holding in favour of contractual partnership proceed to determine the rights of the parties on the footing of contractua partnership. The Court in such a case will simply dismiss the suit. By the written statement the nature and the scope of the present suit cannot and has not been expanded. It still remains a partition suit simpliciter. The partnership deeds no doubt are evidence and important evidence at that in support of the defence case. But that does not make all parties in the deed necessary parties to this suit which has been filed as a partition suit simpliciter without the addition of any other declaratory relief. If the plaintiff fails to prove his case that the businesses are Hindu joint family businesses and the defence succeed in establishing its case of contractual partnership--then no matter who are the partners, the suit must be dismissed. Whether the suit is decreed or dismissed, it will not affect the rights of parties other than the parties to the suit. May be, perhaps that the identical issue of validity of the partnership deed will have to be tried in a separate suit, if one such suit is instituted on the basis of the partnership and, may be, perhaps, by adding the outside partners in this suit multiplicity of proceedings can be avoided. On the other hand in a suit on the basis of partnership deed, members of the joint family other than the karta members cannot be impleaded as parties. I do not decide whether in the instant case the outside partners can be added as propel parties but I do hold that they are not necessary parties. Complete adjudication of disputes as pleaded between the parties to this suit can very well be effected in the presence of the parties to the suit. The status of the business if decided in favour of the plaintiff, a decree for partition will follow. If, on the other hand, the issue is decided against the plaintiff, the inevitable consequence would be the dismissal of the suit. The Court will not proceed then to adjudicate the rights of the parties on the footing of partnership. I hold that the suit is not bad for non-joinder of parties.

18. A point of res judicata has been raised in the pleadings and an issue raised thereon. The issue was not pressed at the time of the hearing.

19. Having regard to my finding that the businesses are joint family businesses, I need not discuss the interesting question as to the effect in law of an illegal association, for gain when the number exceeds twenty. It is pointed out that when the number exceeds the permissible number set out in S. 4 of the Indian Companies Act, the partnership would stand automatically dissolved. In such a contingency whether the assets of the members are divisible and, if so, whether a suit for that purpose lies by any member with or without guilty knowledge, I need not discuss in this suit. On, the evidence before me, I Hold that the plaintiff had no knowledge of the partnership or guilty knowledge of its illegality. This finding, however, is irrelevant in the present suit.

20. The rice company that is claimed to be partnership asset can never be a partnership asset. It is an independent company. It appears from the evidence that the parties have taken money from the joint family till for the purpose of purchasing shares in this company. The parties would only be liable for the sums taken from the joint family. But so far as the company is concerned, it cannot be a joint family asset divisible amongst the parties in the 'present partition proceedings.

21. The shares of the parties as stated in the amended plaint have not been seriously disputed and there will be a declaration of shares of the parties as indicated in the amended plaint.

22. The businesses and properties referred toin the pleadings must be held to be joint familyproperties except the rice mill. There will be theusual decree for partition. I appoint Mr. Sachindfanath Sinha a member of the Bar to be the Commissioner of Partition. As regards costs I make thisorder:. The general costs of the suit and costs ofone day's hearing the parties will themselves bearand the hearing costs beyond one day the defendants will pay to the plaintiff. I certify for twocounsel.


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