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Mahadeodas and ors. Vs. Gherulal Parakh and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 89 of 1946
Judge
Reported inAIR1958Cal703
ActsHindu Law; ;Partnership Act, 1932 - Sections 4, 5, 69 and 69(3); ;Contract Act, 1872 - Sections 23 and 30
AppellantMahadeodas and ors.
RespondentGherulal Parakh and ors.
Appellant AdvocatePramatha Nath Mitter and ;Kumud Bondhu Bagchi, Advs.
Respondent AdvocateLala Hemanta Kumar and ;Sudhir Kumar Dutt, Advs.
Cases ReferredJeffrey v. Bamford
Excerpt:
- k.c. das gupta, j.1. the appellants mahadeodas maiya and his four sons are members of a joint mitakshara family carrying on business under the name of mahadeodas surajmall at darjeeling. the respondents are members of another joint mitakshara hindu family. they are gherulal parakh and his three minor sons. they carry on business at darjeeling under the name and style of ramlal gherulal. the appellants brought the present action for recovery of rs. 5300 as due from the respondents on account of two enterprises carried on by appellants and respondents as partners. both these were for 'forward contracts for purchase and sale of wheat'. in one altogether 32 forward contracts were said to have been made between the partnership and the firm of mulchand guljari-mal, merchants of hapur. the.....
Judgment:

K.C. Das Gupta, J.

1. The appellants Mahadeodas Maiya and his four sons are members of a joint Mitakshara family carrying on business under the name of Mahadeodas Surajmall at Darjeeling. The respondents are members of another joint Mitakshara Hindu family. They are Gherulal Parakh and his three minor sons. They carry on business at Darjeeling under the name and style of Ramlal Gherulal. The appellants brought the present action for recovery of Rs. 5300 as due from the respondents on account of two enterprises carried on by appellants and respondents as partners. Both these were for 'forward contracts for purchase and sale of wheat'. In one altogether 32 forward contracts were said to have been made between the partnership and the firm of Mulchand Guljari-mal, merchants of Hapur. The document on which the offer for the partnership was first made has been marked Ex. 6(c), There was a previous suit by the appellants against the respondents on a claim over dues on account of the losses incurred in those transactions. A decree was passed in that suit in the terms of an award of arbitrators to whom the dispute had been referred. The further claim in connection with the same enterprise of forward contracts with Mulchand Guljarilal was put forward in the present suit, on the case that the accounts had not been finally settled between the partnership and Mulchand Guljarilal at the time when the previous suit was brought. In the other enterprise said to have been commenced on the basis of the letter marked Ex. 6(d), altogether 49 forward contracts for wheat are said to have been made between Baldeo Sahey Surajmall of Hapur arid the partnership. All the contracts however resulted in loss and the appellants, had, it is averred, to pay Rs. 7065 for settlement of these claims, half of which is sought to be recovered in the suit. Other items are made up of Rs. 64/13/6 on account of telephone charges in connection with these contracts and Rs. 1088-14-3 on account of interest.

2. The defendants resisted the claim on three grounds. First they contend that they had no connection with these contracts arid that their officer Sewkumar Vyas entered into these speculative transactions jointly with the appellants without knowledge of the respondents and without any authority from them. Next they contend that the forward contracts were in reality wagering contracts and consequently the partnership farmed for the business of such forward contracts was illegal and so no claim for recovery of amounts paid by the appellants for the business of these partnership is enforceable. Thirdly, it was contended that in any case the suit must fail because of the provisions of Section 69 of the Indian Partnership Act.

3. The learned Subordinate Judge was of opinion that as there could be no partnership between two joint Hindu families as such, the provisions of the Indian Partnership Act were not attracted to this case and Section 69 of that Act was therefore no bar to the suit. He held also that the agreements to enter into forward contracts with Baldeo Sahey Surajmull and Mulchand Guljarilal were made by Sewkumar Vyas in exercise of the authority he had from the defendants in such matters and that the defendants were in law not parties to these agreements. Lastly he held that the contracts with the Hapur firms were wagering contracts, that the agreement to enter into such contracts were void, 'as the object was forbidden by law and opposed to public policy'. Accordingly he dismissed the suit.

4. It is necessary first to consider the correctness of these three conclusions.

5. As regards the agreement to enter into forward contracts with Baldeo Sahey Surajmall the important document is Ex. 6 (d) dated 23-3-1937. It is in these words :

'To Bhai Mahadeo Das Surajmull of Darjeeling written by Ramlal Gherulal from Darjeeling whose compliment please accept. Further we shall share equally in all contracts of purchase and sale Teji Mandi, Lagonakhsana made from this day with Baldeo Sahay Surajmull in Hapur in respect of wheat, whatever profit or loss shall result from the same will be shared by us half and half. Contract will be made in the name of your firm in Hapur. (he same shall be our joint contract and we shall share profits and losses equally.

Sd/- Ramlal Gherulal

By the pen of Shewkumar Vyas,

Miti Falgun Sudi 12, Sambat

1993: 23rd March, 1937.'

6. That this letter was in fact written and sent to Mahadeodas Maiya and on receiving it Mahadeodas Maiya who was the Karta of the firm accepted the offer and entered on the basis of the agreement thus concluded into forward contracts with Baldeo Sahay Surajmull of Hapur admits of no manner of doubt. Shibcharan Das, the partner of the firm of Baldeo Sahay Surajmull was examined on commission. His evidence on commission was that his firm knew from what Mahadeodas's firm wrote to them and also from signatures of Ramlal Gherulal in the hand of Sewkumar Vyas on certain contracts that these forward contracts which Mahadeodas made with them were in reality on behalf of the joint business of Mahadeodas's firm and Gherulal's firm. The credit of the witness has not been seriously challenged before us. On a consideration of the evidence of this witness and of Mahadeodas Maiya I believe that on receipt of the offer contained in Ex. 6(d) Mahadeodas accepted it and on the basis of the agreement thus concluded entered into the 49 contracts of which Shibcharan Das has spoken.

7. The important question remains whether the letter Ex. 6 (d) was written at the instance of Gherulal, the Karta of the ioint family business Ramlal Gherulal. Admittedly the letter is in the handwriting of Sewkumar Vyas who at the relevant date was in the service of Ramlal Gherulal. The two persons competent to give evidence on the point whether it was written by Sewkumar of his own accord without any direction from Gherulal or whether it was written by him under Gherulal's orders, are Gherulal Parakh and Sewkumar Vyas. Of these Sewkumar is not available. It will not be proper to draw any adverse conclusion against either party from this fact. He has not been examined. Gherulal was however present in Court. Still he did not go into the witness box to deny that this letter was written at his instance and under his orders. It is impossible to escape the conclusion therefore that the letter was in fact written at Gherulal's instance and under his distinct orders.

8. From the same circumstances I am also of opinion that the letter Ex. 6 (c) which is in these words :

'To Bhai Mahadeodasji Surajmull of Darjeeling: written by Ramlal Gherulal Parakh from Darjeeling whose compliments please accept. We are well here and hope you to be the same. Further, received your letter. Further, from this date we shall share equally in all contracts purchase and sale, Nazarana, Teji Mandi, and Khal Lagai in respect of when made in your name with Mulchand Gulzarimull in Hapur. Whatever profit or loss shall result from the same will be shared by us half and half. Miti Bhadra Bodi 12 Sambat 1993: 14th August, 1936, written by Shew Kumar Vyas whose compliment please accept'

was also written at Gherulal's instance and under his orders,

9. Mention must be made in this connection of two other circumstances which throw considerable light on this question. The first is that in Ramlal Gherulal's Rokar which was put in evidence there is an entry, Ex. E (7) dated 28-9-1936, which shows that Rs. 1500 was being debited to Mahadeodas Surajmull in connection with a contract at Hapur. The other circumstance is that Ramlal Gherulal's Darjeeling office wrote to their Calcutta office in the letter Ex. J (f) dated August 4, 1930, which mentions the Hundi for Rs. 2000 in these words :

'Further as regards Hundi for Rs. 2000 sent to Mahadeodasji Hapur debit Rs. 1000 Mahadeodasji and Rs. 1000 to me.'

10. No satisfactory evidence appears on the record to connect these references about Hapur contracts with anything else than with the forward contracts with Mulchand Guljarilal.

11. The fact that such an entry as Ex. E (7) was made and that the letter Ex. 1 (f) contained the words mentioned above, justifies the conclusion that Sewkumar Vyas was not making these contracts with the Hapur firm a secret and that Gherulal, the karta of the joint family was also aware of this. These circumstances therefore confirm the conclusion I have formed from the fact of Gherulal's refusal to go into the witness box that Sew-Kumar wrote the letters Ex. 6 (c) and 6 (d) under Gherulal's orders and that in fact those were Cherulal's letters.

12. The position clearly is that Gherulal as the Karta of Ramlal Gherulal wrote these letters, and the offers contained therein were accepted by Mahadeodas as Karta of Mahadeodas Surajmall. The agreement was clearly to form a partnership and the evidence leaves no doubt that the partnership did business in forward contracts with the Hapur firm.

13. There can be no doubt that at least two persons weie members of the partnership -- Mahadeodas Maiya and Gherulal Parakh. The fact that both of them purported to do the business on behalf of the joint family of which they were the Kartas can in no way alter the position in law that a partnership did come into existence and did business in forward contracts.

14. It is quite a different question whether the facts make out as regards the other members of the two joint families that they were partners of the firm.

15. In Pichappa Chettiar v. Chokalingam Pillai , the Privy Council had to consider the question whether one Virappa Pillai who was the Karta of a joint family having become a partner in a firm, the partnership was on his own account or whether the result of his joining the partnership was that other members of his family also became partners. Their Lordships observed that the law on the question was correctly stated in Mayne's Hindu Law (Edn, 9) at p. 398, as follows :

'Where a managing member of a joint family enters into a partnership with a stranger the other members of the family do not ipso facto become partners in the business so as to clothe them with all the rights and obligations of a partner as defined by the Indian Contract Act. In such a case the family as a unit does not become a partner, but only such of its members as in fact enter into a contractual relation with the stranger : the partnership will be governed by the Act.'

16. As was pointed out by their Lordships, the Sections referred to partnership in the Indian Contract Act have been repealed and are now embodied in the Indian Partnership Act, 1932.

17. In this view of the law their Lordships decided in that case that Virappa Pillai's entering into partnership with the Chetties would not ipso facto make the other members of the family partners of the firm. On the evidence in that case their Lordships held that of the two members of the joint family who were sought to be made liable as partners one was minor and there could be no possible ground for holding him to be a partner; as regards the other, it was held that there was no reliable evidence that he ever agreed with the Chetties to become a partner or mat the Chetties on their side ever agreed to take him as a partner.

18. In the present case no evidence has been adduced to show that any of the other members of the joint families agreed to join the partnership or did any acts in connection with the partnership.

19. On behalf of the appellants Mr. Mitter argued that a partnership under the Hindu Law, not governed by the Indian Partnership Act came into existence between the two joint families as a result of the action of the Kartas. According to Mr. Mitter the question whether individual members agreed to join the business or not was immaterial; and as soon as two Kartas of the two joint families have formed a partnership, all the other members become partners automatically under the Hindu Law. I can see no basis for this proposition in principle or in authority. Mr. Mitter drew our attention to certain observations of the Privy Council in the case of Lachhman Das v. Commr. Of Income-tax, Punjab, N. W. F. and Delhi Provinces, Lahore . The observations are as follows :

'Without accepting the view of some eminent Hindu Judges that a Hindu joint family is, in its true nature, a 'corporation' capable of a continuous existence in spite of fleeting changes in its constitution, it is enough to state that for the purpose of such a transaction effected through the medium of its Karta, it has been, for a long time past, regarded as an entity capable of being represented by its manager. The class of cases, of which the ruling in Chandrika Prasad v. Commr. of Income-tax : AIR1939All341 , is an illustration, went on a different principle, namely, that a firm, not being recognised as a legal entity, cannot as such enter into partnership with another firm as such. That principle cannot be applicable to a joint Hindu family in transactions where it acts through the agency of its Karta.'

20. In my view these observations do not in any way support Mr. Mitter's proposition of law. The question before their Lordships in the Privy Council in Lachhman Das's case (B), was whether there could be valid partnership between the Karta of a Hindu joint family representing it on the one side and all members of that family in his individual capacity. They expressly excluded from their consideration the question relating to the validity of a partnership between a Hindu undivided family as such of the one part and one of its members in his individual capacity of the other, and said,

'With reference to the latter land of partnership there seems to be some authority favouring the view that such a partnership cannot exist under the rules of Hindu law, but their Lordships do not propose to deal with that question in this case.'

21. In support of the argument that a partnership between the Karta of a family representing it on the one hand and a member of that family in his individual capacity is valid, it was urged before their Lordships that the rules of Hindu Law permit the formation of a partnership between the managing member of a Hindu joint family on the one hand and a stranger on the other, that the family as a unit does not become a partner and consequently the objections to the formation of such a partnership due to the fleeting and changeable nature of a joint Hindu family do not arise; such of its members as in fact enter into contractual relations with the stranger alone become partners, and the partnership would be governed by the Indian Partnership Act. Their Lordships pointed out that authority for this proposition was to be found in Mayne's Hindu Law and in the Board's earlier decision in the case of Pichappa Chettiar v. Chokalingam Pillai . Their Lordships rejected an argument which had found favour with the High Court that the word 'stranger' implied an idea of being foreign or alien to the family and that this description could not fit in with a coparcener of the same family 'so long as he is a composite member thereof'. Their Lordships could not find any sound reason to distinguish the case of a stranger from that of a coparcener who puts into the partnership what is admittedly his separate property held in his individual capacity and unconnected with the family funds, and decided that it was clear that if a stranger can enter into partnership with reference to his own propeity with a joint Hindu family through its Karta, there was no sound reason to withhold such opportunity from a coparcener in respect of his separate and individual property.

22. The observations on which Mr. Mitter placed reliance cannot therefore be taken to throw any doubt on the Board's decision in the case of Pichhappa Chettiar v. Chokalingam Pillai (D). It is well to remember that the earlier decision was in terms referred to in Lachhman Das's case (B), and as I read it, was not even remotely intended to be modified.

23. I am unable therefore to accept Mr. Mitter's contention that the Judicial Committee has in Lachhman Das's case (B), expressed any view about the validity of a partnership under the Hindu Law between joint families as such. The law remains to this day as was decided by the Privy Council in the case of , so that the mere fact that the Karta of a joint family enters into partnership with any person has not the effect of bringing all the members of the joint family or the joint family as such into the partnership.

24. When therefore a Karta of a joint family, has gone into partnership with the Karta of a joint family, the partnership will in the absence of evidence showing that other members of the joint family did join the partnership, remain a partnership between the two kartas. In the present case there is no such evidence showing that other members of the joint family did join the partnership, I hold therefore that the other members of the two families have not been shown to have come into these partnerships and the partnership for the forward contracts with Mulchand Gulzarimal and, Baldeosohai Surajmal had only two partners Mahadeodas Maya and Gherulal Parakh.

25. I do not see how it can be doubted for a moment that these partnerships are governed by the Indian Partnership Act.

26. I am therefore unable to accept as correct the reasoning on which the Court below held that Section 69 of the Partnership Act is no bar to the suit. This will be a bar unless the case falls within the exceptions enumerated in Section 69(3), as these partnerships were admittedly not registered. Under Clause (a) of Sub-section (3) of Section 69 the provisions of Sub-sections (1) and (2) of the section shall not affects 'the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realize the property of a dissolved firm.' It is contended on behalf of the appellants that in substance the suit was really for accounts of a dissolved firm. In my judgment this contention should succeed. Each of the partnership was for a single venture, one for forward contracts with Mulchand Gulzarimal and the other for forward contracts with Baldeosahai Surajmal. The documents do not clearly indicate any period limiting the operation of the pratnership. There can be no doubt however from the circumstances, of the case that the agreement was to do business for a single season. After that season was over the partnership stood dissolved.

27. Whatever may therefore be said about the form of the suit, there can be no doubt that in substance it is for accounts of a dissolved firm. Consequently the provisions of Sub-sections. (1) and (2) of Section 69 of the Partnership Act do not bar the entertainment of the suit.

28. This brings us to the other important question of law, whether the claim in this case was enforceable in view of the provisions of Sections 23 and 30 of the Indian Contract Act. The defence contention which found favour with the Courts below was that the object of the agreement was forbidden by law. I am convinced on a consideration of the documents in this case that when the agreement to enter into forward contracts was made there was no intention that actual delivery would be asked for and that the intention was really to deal in differences. The Court below was therefore right in his conclusion that the partnership was for business in wagering contracts.

29. Section 30 of the Indian Contract Act makes agreement by way of wager void and further provides that no suit shall be brought for recovering anything alleged to be won on any wager or entrusted to any person to abide the result of any game or other uncertain event on which any wager is made. In consequence of this the Court could not have given relief to Baldeosahai Suraj-mal in any suit brought for recovery from the partnership of Mahadeodas Majya or Gherulal Parakh of any of the amounts which were found due on those contracts. It is important to notice however that whereas agreements by way of wager are made void by the Act, the Act has not made an agreement to enter into an agreement by way of wager void. An agreement to enter into agreement by way of wager will be void only if the object of consideration is unlawful within the meaning of Section 23 of the Indian Contract Act. Section 23 is in these words :

'The consideration or object of an agreement is lawful, unless

it is forbidden by law; or

is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or

involve or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.'

It is necessary to remember that the words 'void' and 'forbidden by law' are not synonymous. Many things may be void in law without being forbidden by law. As Hawkins, J. observed in Partridge v. Mallandaine (1886) 18 QBD 276 (E), 'Mere betting is not illegal. It is perfectly lawful for a man to Bet if he likes'. In Pringle v. Jafar Khan ILR 5 All 443 (F), Oldfield, .T. pointed out that the distinction between an agreement which is only void and one in which the consideration is also unlawful is made in the Contract Act, and said : 'betting at horse-races could not be said to be illegal in the sense of tainting any transaction connected with it.'

30. Once we remember that what is void is not necessarily forbidden by law, the conclusion is inevitable that the object of the agreement to deal in differences in forward contracts is not forbidden by law,

31. The learned Court below also thought that the object was against public policy. The statute no doubt leaves it to the Court to decide whether the object should be regarded to be against public policy. This does not nowever mean that in each case where the question arises whether the object is unlawful as being opppsed to public policy, the court should enter into the determination of what public policy requires. There are well settled rules which guide the Court in deciding whether anything is opposed to public policy and they are nowhere better stated than by Lord Halsbury in Janson v. Driefontein, Consolidated Mines Ltd. 1902 AC 484 (G) :

'I do not think that the phrase 'against public policy' is one which in a Court of law explains itself. It does not leave at large to each tribunal to find that a particular contract is against public policy. If such a principle were admitted, I should very much concur with what Serjeant Marshall said in the first edition of his work on Marine Insurance a century ago: 'To avow or insinuate that it might, in any case, be proper for a Judge to prevent a party from availing himself of an indisputable principle of law, in a Court of justice, upon the ground of some notion of fancied policy or expedience, is a new doctrine in Westminster Hall, and has a direct tendency to render all law vague and uncertain. A rule of law, once established, ought to remain the same till it be annulled by the Legislature, which alone has the power to decide on the policy or expedience of repealing laws, or suffering them to remain in force. What politicians call expedience often depends on momentary conjectures, and is frequently nothing more than the fine-spun speculations of visionary theorists or the suggestions of party and faction. If expedience, therefore, should ever be set up as a foundation for the judgments of Westminster Hall, the necessary consequence must be that a Judge would be at full liberty to depart tomorrow from the precedent he has himself established today; or to apply the same decisions to different, or different decisions to the same circumstances, as his notions o expedience might dictate.

But I do not think the law of England does leave the matter so much at large as seems to be assumed. In treating of various branches of the law learned persons have analysed the sources of the law, and have sometimes expressed their opinion that such and such a provision is bad because it is contrary to public policy; but I deny that any Court can invent a new head of public policy; so a contract for marriage brokerage, the creation of a perpetuity, a contract in restraint of trade, a gaming; or wagering contract, or, what is relevant here, the assisting of the King's enemies, are all undoubtedly unlawful things; and you may say that it is because they are contrary to public policy they are unlawful; but it is because these things have been either enacted or assumed to be by the common law unlawful, and not because a judge or Court have a right to declare that such and such timings are in his or their view contrary to public policy. Of course, in the application of the principles here insisted on, it is inevitable that the particular case must be decided by a Judge: he must find the facts, and he must decide whether the facts so found do or do not come within the principles which I have endeavoured to describe that is, a principle of public policy, recognised by the law, which the suggested contract is infringing, or is supposed to infringe.'

32. There is no doubt that these rules are good law in India. In deciding whether dealing in differences is opposed, to public policy it is well to remember that the legislature of the country deliberately recognises the making of the wagering contracts, and derives considerable revenue therefrom. Opinions may vary whether such transactions are best suited for the economic or cultural interest of the people. It will be disastrous however for Courts of law to enter the arena of these controversies in deciding whether this is opposed to public policy. In my opinion, whatever the personal view of an individual Judge may be, there is no justification for a Court to hold, without violating the rules as laid down by Lord Halsbury, that dealing in difference by way of forward contracts is opposed to public policy.

33. It is equally impossible for a Court to hold that such dealing is immoral. On questions of morality opinions will differ even more violently than on questions of public policv. Some Judges no less than other members of the society may hold strong opinions that dealing in differences is immoral. It is not for Judges however to enforce their own ideas of morality from the Bench. It will be an abuse of their position on the Bench if Judges apply their individual views on morality on questions of this nature in disregard of ideas of morality held by society in general. There is no justification in thinking that dealing in differences is regarded as immoral by people at large and so the Court will not be justified in regarding it as immoral for the purposes of Section 23 of the Indian Contract Act.

34. My conclusion is that dealing in differences is neither forbidden by law nor should the Court regard it as immoral or against public policy. It is not suggested that it is unlawful under any of the other provisions of Section 23 of the Act.

35. The question whether the partnership to carry on business in wagering contracts is illegal does not appear to have come up before the Courts in India for consideration in any reported case. The question has however repeatedly come before the Courts in England for consideration and it is helpful to consider the views taken by the English Judges on this question,

36. In England wagering contract has been rendered null and void by the Gaming Act, 1845. Section 1 of the Gaming Act, 1892, provides that any promise, express or implied, to pay any person any sum of money paid by him under or in respect of any contract or agreement rendered null and void by the Gaming Act, 1845, or to pay any sum of money by way of commission, fee, reward, or otherwise in respect of any such contract, or or any services in relation thereto or in connexion therewith, shall be null and void, and no action shall be brought or maintained to recover any such sum of money.

37. Thwaites v. Coulthwaite, (1896) 1 Ch 496 (H), was an action to obtain the usual partnership account of profits of a bookmaker's business. The principal defence was that having regard to the nature of the business in which the alleged profit was earned, no such relief could be given. Chitty, J. did not consider the provisions of Section 1 of the Gaming Act, 1892, mentioned above; he however considered the question whether in general law the partnership of a bookmaker's business was illegal being formed for a purpose forbidden by statute. In deciding that it was not illegal, Chitty, J. pointed out that the Gaming Act, 1845, did not make betting illegal; it merely avoided the wagering contract, and that a betting business can be carried on without contravening the Betting Act, 1653. In Keen v. Price, (1914) 2 Ch 98 (I), which also was an action by one partner in a bookmaker's and betting business against the other for an account of the partnership dealings, Sargant, f. pointed out that although Chitty's decision in Thwaites v. Coulthwaite (H), was a good one. on the general law, it could not be regarded as a decision on the Act of 1892. Proceeding on the basis that the partnership was not illegal, though certain claims would be unenforceable in law because of Section 1 of the Gaining Act, he passed this order ,

'Accordingly, although the taking of the account may result in showing that part of the plaintiff's capital has been applied in paying bets, I think I ought to order an account of the partnership dealings, leaving it open to the defendant to object to any particular items, and to object to repaying anything which represents profits. On the other hand my judgment is intended to preclude the defendants from saying that he is not to repay the plaintiff his share of any capital which has not been lost in the business.'

Jeffrey v. Bamford, (1921) 2 KB 351 (J), was an action by a partnership for recovery of certain amounts from the defendant. The defence set up was that a partnership for the purpose of carrying on a betting and bookmaker's business was illegal and so the plaintiffs were not entitled to maintain the action. McCardie, J. held after a review of all the cases up to that date that a partnership for the purpose of carrying on a betting and bookmaker's business is not per se illegal or impossible in law.

38. I am therefore confirmed by these English decisions in my view that a partnership for carrying on business in forward contracts is not illegal. If there had been any Indian law in provision similar to Section 1 of the Gaming Act, 1892, it would have been impossible for the plaintiffs to recover anything paid on account of losses in the business. There is however nothing in Indian law similar to Section 1 of the Gaming Act, 1892, so that as the partnership is not illegal, there will be no bar in law to one partner recovering any amount due found on accounting from the other partner. In view of the above conclusion that there is no bar to the recovery of amounts found due on accounting, we have to consider what decree, if any, should be passed in this case. As all the papers in the accounting are before us, I do not think it necessary that a preliminary decree directing a commissioner to take accounts is called for. We have been taken through the accounts by the learned Advocates and also the evidence as regards payments by Mahadeodas, We find that there is no satisfactory evidence as regards any payment by Mahadeodas on account of losses incurred in the contract with Mulchand Gulzarimal. It is clearly established however by the evidence that on account of losses for the 49 contracts of the partnership with Baldeosahai Surajmal Rs. 7615 was paid by Mahadeodas to Baldeosahai Surajmal on account of losses for these contracts It may be mentioned that Shib-charan speaks of payment of another sum of Rs. 65/- also. As however Mahadeodas himself speaks of Rs. 7615 and not Rs. 7680, we think it proper to take his statement as correct and hold that the total amount paid to Baldeosahai Surajmal on account of losses for these 49 contracts is Rs. 7615. On this head there should therefore be a decree for Rs. 3807/8. We think also on the evidence in this case that the amount of Rs. 64/13/6 is due to Mahadeodas on account of expenses for bills for telephone charges in connection with these contracts.

39. The claim on account of interest should however be disallowed. There would be no question of any claim for interest before the accounting has been made. As in our opinion this suit itself is in substance a suit for accounts of a dissolved firm, there is no liability in our view in the circumstances of the case to pay any interest on the amount found due on accounting.

40. I would theiefore set aside the Judgment and decree of the learned Subordinate Judge and order that a decree be passed in favour of Mahadeodas Maiya against Gherulal Parakh for the sum of Rs. 3872/5/6 (Rs. 3807/8/- plus Rs. 64/13/6) and dismiss the suit as regards the other plaintiffs and other defendants.

41. The decretal amount will bear interest at the rate of 6 per cent, per annum till the date of recovery.

42. On a consideration of all the circumstances we direct that Mahadeodas Maiya will get half the costs here and below from Gherulal Parakh.

Renupada Mukherjee, J.

43. I agree.


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