1. We are invited in this Rule to set aside a decree made by a Small Cause Court Judge in a suit for damages for use and occupation of a soorkey mill. The second defendant, Gopal Chandra Ghosh, was the owner of the mill. On the 5th February 1910 he entered into a partnership agreement with two other persons in respect of the mill business. It is not necessary for our present purpose to set out at length the terms of this agreement. It is sufficient to state that the mill was to be used by the firm thus constituted; cash was to be supplied by one of the partners and the profits were to be distributed in certain proportions. On the 7th June 1912, a suit was instituted for dissolution of the partnership, for accounts and for incidental reliefs. During the pendency of this litigation, on the 17th Januaty 1913 the present plaintiff purchased the right, title and interest of Gopal Chandra Ghosh in the mill in question. He subsequently instituted this suit against the members of the partnership firm for recovery of damages for use and occupation of the mill. The Small Cause Court Judge has decreed the suit. In oar opinion, the suit as framed is not maintainable and the plaintiff is not entitled to the reliefs he seeks.
2. One of the matters in controversy between the parties is, whether the mill became part of the partnership assets by the deed of the 5th February 1910. On behalf of the plaintiff the position has been maintained that although the firm became entitled to use the mill, it continued to be the private and separate property of Gopal Chandra Ghosh. It is not necessary to dispute the position that property used by all the members of a partnership for partnership purposes, is not necessarily partnership property. Two illustrations of mills used by partnership firms may be mentioned: Robinson v. Ashton (1875) 20 Eq. 25 : 44 L.J. Ch. 542 : 33 L.T. 88 : 23 W.R. 674 and Pilling v. Pilling (1865) 3 DeG. J. & Sm. 162 : 46 E.R. 599 : 142 R.R. 46. In the first of these cases, the owner of the mill and its machinery admitted two persons as partners. A question subsequently arose, whether the mill and the machinery had become part of the partnership assets. It was proved that the value of the property was entered in the partnership books as the amount of the capital of the owner, and all additions and improvements during the partnership were made at the expense of the firm. Sir George Jessel, M.R., held that the property had been proved to have become part of the assets of the firm see also Hills v. Parker 7 Jur. (N.S.) 838 : 4 L.T. 746. In the present case, the question whether the mill had become part of the assets of the firm, has not been investigated; but it is immaterial, because in either view the suit must fail. If the mill were constituted a part of the partnership assets, namely, as contribution of capital by Gopal Chandra Ghosh, one of the partners in the business, the plaintiff, as purchaser of his right, title and interest, has not acquired such a title as would enable him to maintain a suit for damages for Use and occupation against the other partners of the firm. If, on the other hand, the view be adopted, as has been sought to be maintained on behalf of the plaintiff in this Court, that the mill continued to be the private property of Gopal Chandra Ghosh, the position of the plaintiff is clearly hopeless. He, as purchaser of the right, title and interest of Gopal, cannot take up a position with respect to the property purchased by him which could not have been taken up by Gopal. Now from the partnership deed it is plain that Gopal placed the property at the disposal of the firm, which thereupon became entitled to use the mill for the purposes of this business. There cannot be any dispute that there was ample consideration for this agreement. Gopal could not have turned round at any moment and claimed damages from the members of the firm for use of the mill which he had placed at their disposal. The plaintiff stands in no better position. He is accordingly not entitled to maintain this suit.
3. The result is that the Rule is made absolute, the decree of the Small Cause Court Judge set aside and the suit dismissed with costs of both Courts. We assess the hearing fee in this Court at three gold mohurs.