R.P. Mookerjee, J.
1. This appeal arises out of a suit brought by the plaintiff-respondent for dissolution of a partnership of business and for adjustment of accounts.
2. The plaintiff's case was that that two families the Pals and the Deys joined in a partnership business. Nafar Chandra Pal, the predecessor in interest of defendants Nos. 9 to 13, and the Deys who were four brothers, viz., Chandi, Lalit, Harimohan and Satis, entered into a partnership under the name and style of Pal and Sarkar for carrying on a business of money-lending and as gold and silversmiths. The plaintiff as one of the four members of the joint family is entitled to a two anna share in the said business. The plaintiff alleges that he did not receive any payment from the defendants since 1936, and that he did not want to continue as a partner. He further alleges that he had dissolved the partnership by a verbal notice on the 2nd May, 1943. As there had been no accounting between the parties, the plaintiff prayed that an account might be taken of the firm in suit from its commencement till the date of dissolution. The plaintiff who prayed for a declaration that the partnership had been dissolved on the 2nd May 1949, on the service of a verbal notice, or alternatively that the partnership be dissolved by a decree of the Court.
3. The principal defence was that the suit, as framed, was not maintainable, as the notice purported to have been served on the 2nd May 1943, was a verbal one which did not satisfy the conditions required under Section 43 of the Indian Partnership Act. Secondly, the partnership, if any, was between Nafar Pal and Chandi personally, and the plaintiff or the other brothers of Chandi were not interested in the partnership at all. Thirdly, even if Chandi had entered into the partnership as the karta of the joint family, the plaintiff was not entitled as a member of the joint family to pray for a dissolution of the partnership. There were other defences also which need not be referred to in detail at this stage.
4. The learned Munsif dismissed the plaintiff's suit on the finding that the plaintiff had no interest in the firm in suit. The other points which had been raised and are referred to above were not considered by the trial Court. On appeal, the learned Subordinate Judge declared that the plaintiff had a two anna share in the assets and losses of the disputed firm, and declared the partnership to be dissolved, and a preliminary decree was passed for accounts. Against this decree, the present appeal has been filed by the defendant No. 14 who now represents the interest of Chandi, the eldest of the Dey brothers.
5. The first point urged on behalf of the appellant is that on the plaintiff's own case a verbal notice was served on the 2nd May 1943, by the plaintiff dissolving the partnership, but such a notice, even if proved, was not sufficient in law.
6. Reliance is placed in this connection on the provisions contained in Section 43 of the Indian Partnership Act, 1932, which is in the following terms:
'43. (1) Where the Partnership is at will, the firm may be dissolved by any partner giving notice in writing to all the other partners of his intention to dissolve the firm.
(2) The firm is dissolved as from the date mentioned in the notice as the date of dissolution or, if no date is so mentioned, as from the date of the communication of the notice.'
7. It is pointed out that Sub Section (1) of Section 43 requires the notice to be in writing and to all the other partners conveying the intention to dissolve the firm. This provision in the Indian Law is materially different from the provisions contained in Section 32(c) of the Partnership Act, 1890 (53 and 54 Vict. Ch. 39). The English Act did not require the notice to be in writing. Mr. Banerjee contends that unless a notice in writing is served on all the other partners, a suit brought by a partner for dissolution of the partnership, even on any of the grounds mentioned in Section 44 of the Indian Partnership Act would not be competent.
8. Chapter VI of the Indian Partnership Act deals with the dissolution of a firm. Dissolution may be in one of different ways. Section 40 refers to dissolution by agreement, and Section 41 to compulsory dissolution. Section 42 deals with the dissolution on the happening of certain specified contingencies. Section 43 refers to dissolution of partnership at will by notice in writing and Section 44 is about dissolution by the Court. Sections 45 to 55 deal with various contingencies after dissolution, method of taking accounts etc.
9. The interpretation sought to be put by Mr. Banerjee on Section 43, if accepted, would have the effect of making Section 43 the controlling section of all the different kinds of dissolution. It is patent that no reference to any service of notice is made in Section 41, or 42 or 44 of the Act. It will also appear that a service of notice is not possible in some of these cases. If a dissolution is to be effected after service of notice, then that notice must be in writing as required by Section 43 of the Act. But, on the other hand, if dissolution is sought for not on service of notice, but on fulfilling certain conditions specifically mentioned in one of the sections referred to above, then service of notice is not the 'sina qua non' in each of those other cases.
10. Mr. Banerjee relied on the observations of the Oudh Court in 'TAJAMMAL HOSSAIN v. AHAMMAD ALI', in support of the contention put forward by him. If, however, reference is made to the actual words used by the learned Judges of that Court, it will appear that no such broad proposition of law was attempted to be laid down by that Court even. It was made clear that if a firm was dissolved by service of notice, and after such service,
'if the assistance of the Court is required by means of a decree for dissolution, the suit for dissolution must follow the notice.'
No argument appears to have been raised before that Court supporting the case of dissolution under any one or other of the grounds mentioned in Section 44 of the Indian Partnership Act.
11. In the present case also, the plaint in one part is founded upon dissolution by service of notice of a partnership at will. The prayer founded on that part of the case is for a declaration that the partnership stood dissolved with effect from the date of service of such notice. But there is the alternative prayer made in the plaint that the partnership be dissolved by a decree of the Court, and there are sufficient materials in the plaint in support of that alternative prayer. Even if the first prayer which is based upon the service of a notice dissolving the partnership is hit by the provisions contained in Section 43 of the Act and cannot be granted the Court is still bound to consider the other alternative prayer. That prayer is not founded on any service of notice, but on other materials referred to and relied upon in the plaint.
12. Mr. Das appearing on behalf of the plaintiff respondent referred to 'RADHAKANTA v. BINODE BEHARI', : AIR1934Cal444 but there is no reference in this case to the requirements under Section 43 of the Indian Partnership Act, as also whether that section controls all other kinds of dissolution, as provided for in the other sections in this Chapter of the Indian Partnership Act. From the mere statement that the suit was not maintainable as being hit by Section 43 Of the Act, this case cannot be cited as an authority for the broad proposition referred to above.
13. On a reading of the sections themselves, there is no doubt that the provisions contained in Section 43 of the Act do not control the other provisions in this Chapter, and that it is possible to have the partnership of a firm dissolved even when no notice in writing had been given as required under Section 43. This objection, therefore, must be overruled.
14. The learned Subordinate Judge, however, did not approach this question from the right angle. He referred to certain decisions which dealt with the law before the Indian Partnership Act came into force on the 8th September, 1932. The Court is required to examine the facts of the present case for determining whether the partnership, if it exists, is required to be dissolved, and if so, under which particular provision of the various sections in Chapter VI of the Indian Partnership Act.
15. The second point taken on behalf of the appellant is that the partnership was one between Nafar Pal and Chandi. As Chandi is alleged by the plaintiff to have entered into the partnership as the karta of the joint family, the plaintiff is not entitled to maintain the present suit. It is no doubt competent for different families to be joined in a partnership business. That partnership business is not a joint family business. As also when a stranger is associated with the members of a joint Hindu family, such a business is not a joint family business governed by the provisions of the Hindu Law. When the managing member of a joint family enters into a partnership business with a stranger, the other members of the family do not, however, 'ipso facto' become partners in the business; the members of the joint family are not clothed with the rights and obligations of a partner, as defined by the Indian Partnership Act. The authorities are now clear that
'in such a case, the family as a unit does not become a partner, but only such of its members as in fact entered into a contractual relationship with the stranger; the Partnership will be governed by the Indian Partnership Act. (Vide Mayne's Hindu Law and Usages, eleventh edition, section 308 quoted with approval by the Judicial Committee in 'Ramkrishna v. Ratan Chand', 58 I A 173.')
Such a contract however, is dissolved on the death of one member of that partnership, and those persons who reconstitute by mutual agreement after the death or retirement of one of the partners will constitute the members of the partnership.
16. The material question, therefore, which arises for decision in the present case will be whether Chandi alone as karta of the joint family entered into a partnership with Nafar; and also whether after the death or retirement of any one or more of the different persons who constituted the partnership who were the persons who came in as partners. The case of the defendant No. 14 the appellant before this Court also is that she represents the interest of Chandi who has retired from the business and is still alive. Whether any one or more of the brothers of Chandi including the plaintiff had become partners of the business is also an important question to be decided on the evidence adduced in the case. This aspect of the case also has been overlooked by the Courts below.
17. On the question of fact whether Lalit was a partner in the joint business or not, and if so, what was his share in that partnership, the decision has been influenced to a great extent by the omission of the Court of appeal below to appreciate the question of law referred to above.
18. It must, therefore, be held that the judgment and decree passed by the Court of appeal below do not deal with the questions fully and properly and that there ought to be a rehearing of the appeal before that Court.
19. The result, therefore, is that this appeal is allowed, the judgment and decree of the Court of appeal below are set aside, and the case remitted to that Court for the rehearing of the appeal according to law bearing in mind the principles of law enunciated and explained above.
20. There will be no order for costs in this Court.