Court : Chennai
Reported in : AIR1938Mad688; (1938)2MLJ44
..... language of a marginal note, it is noteworthy that in section 8 of the english act corresponding to section 69 of the indian partnership act, the marginal note is 'disability of persons in default'. in the indian companies act, the legislature has provided that unregistered associations of the kind contemplated by the act will be illegal on default of registration. these are, in my opinion, different ways ..... detail or with the several decisions referred to in their judgments.2. the relevant facts and dates are: the promissory note sued on was executed on 12th march, 1931, the partnership act except section 69 came into force on 1st october, 1932, section 69 came into force on 1st october, 1933, and this suit was filed in august, 1934. on these facts ..... language, it is not easy to see any marked difference between the above words and the language of section 69 of the partnership act. in view however of the way in which the general words of this section of the partnership act have been understood in many of the reported decisions, i prefer to deal with the case on the footing that, but for ..... varadachariar, j.1. i agree with pandrang row, j., that the present suit is maintainable and that the objection based on section 69(2) of the partnership act must be overruled. the arguments that can be urged in favour of one view or the other have been fully set out in the judgments delivered by my learned brothers; .....Tag this Judgment!
Court : Chennai
Reported in : AIR1938Mad929; (1938)2MLJ790
..... v. dinanath mahish the circumstance of concealment is material as leading to the inference that the partner was 'taking advantage' of his position. even the indian partnership act of 1932 has not enacted or adopted any irrebuttable presumption in respect of renewals of leases by a co-partner. the decisions of the judicial committee ..... for his share of the profits made by the use of the common property see watson and company v. ramchand dutt and section 37 of the partnership act). we accordingly hold that the obstruction caused by the 1st defendant was unlawful and entitled the plaintiff to claim damages.36. as regards the quantum of ..... we do not think it necessary to deal with this argument of mr. srinivasa aiyangar. it is no doubt recognised in section 53 of the partnership act that even after dissolution, any partner may restrain any other partner from using any of the property of the firm for his own benefit until the ..... added that even if they should be found to lay down a stricter rule, this court has only to apply the law as laid down-in the indian trusts act hasanali v. esmailji : (1907)9bomlr606 .14. it may be conceded that as regards renewals obtained by 'trustees', the principle of equity in favour ..... the new lease, the 1st defendant was entitled to the benefit of the new lease on the principle of equity embodied in section 88 of the indian trusts act. founding himself on an observation of warrington, j., in bevan v. webb (1905) 1 ch. 620 and on certain remarks of lord lindley .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1939Bom61; (1938)40BOMLR1275
..... the trial court held that the suit was not maintainable, having regard to section 69 of the indian partnership act. the indian partnership act came into operation on october 1, 1932, but by virtue of section 1, sub-section (3), section 69 of the act: only came into force on october 1, 1933, that is two days before this suit was ..... sense.12. for the reasons which i have given, i am of opinion that this suit is not barred by section 69 of the indian partnership act. we must, therefore, allow the appeal with costs, and remand the case to the lower court to be tried on merits.sen, j.13. i agree. ..... the words of their only proper meaning in order to give effect to some intention which the court imputes to the legislature from other provisions of the act. such a course can only be justified where a literal construction of the section is inconsistent with the meaning of the statute as a whole, and ..... such right; which must mean any right already acquired, and falling within sub-clause (a). the words 'or anything done or suffered before the commencement of the act' in sub-clause (b) seem to me to be governed by the previous words ' any legal proceeding or remedy in respect of any such right ', and ..... imposed by section 69 does not apply to a suit to enforce a right accrued before the act came into operation, by virtue of section 74 of the act. section 74 provides, so far as is relevant, that :-nothing in this act or any repeal effected thereby shall affect or be deemed to affect-(a) any right, .....Tag this Judgment!
Court : Chennai
Reported in : AIR1939Mad6; (1938)2MLJ944
..... -general who appeared' for the respondents. indeed, it cannot be reconciled with the positive insistence made by the legislature in section 5 of the indian partnership act of 1932 that the relationship of partners arises from contract and not from status. the next paragraph of that section, which is merely a declaration ..... extreme contention; as laid down in section 31 of the indian partnership act the person who is introduced as a partner into a firm does not thereby become liable for any act of the firm done before he became a partner (see also lindley on partnership, 10th edn., p. 266).12. we must add ..... defendant. the learned subordinate judge held that at the time the mandalay firm was started by veerappa, it could not be regarded as a 'partnership' between the father and his major sens but was-only a joint family business in which the father and his sons were interested as members ..... see paragraph 4 of the plaint. it was added thatafter the death of veerappa chettiar, the defendants have been conducting the said firm jointly and in partnership.5. the several promissory rioted above referred to were alleged to have been executed by the first defendant as 'managing partner' and in paragraph: 14 ..... that the decisions which infer a partnership from mere participation of the junior coparcener in the business have .....Tag this Judgment!
Court : Chennai
Reported in : AIR1940Mad505
..... the capital contributing partner could be expected to take his stipulated interest. this seems to be the principle adopted by the indian legislature in section 13(c) of the indian partnership act and by parliament in section 24, clause 4 of the english partnership act. the law may recognise an exception to this rule where the contract expressly provides for payment of interest regardless of profits ..... with the question on its merits now. mr. krishnaswami iyer seems to us to be right in both his contentions on this question of interest. as observed in lindley on partnership, at p. 465 of edn. 10, the right to interest on capital contributed by one of the partners even when there is a stipulation for payment of such interest ordinarily ..... ramanatha he would have been entitled to interest only if and when profits had been made and in any event only up to the date of the dissolution of the partnership and that the lower court was not justified in crediting the respondents with interest on this capital amount throughout the accounting period. this question has not been dealt with in ..... 1. this is an appeal by defendant 1 against the final decree in a suit for the taking of the accounts of a partnership business carried on in mandalay under the v. b.m. vilasam in which the parties to the suit were partners. the plaintiff and defendant 2 are the sons of one .....Tag this Judgment!
Court : Chennai
Reported in : AIR1939Mad860; (1939)2MLJ489
..... alfred henry lionel leach, c.j.1. the question which arises in this appeal is whether section 74 of the indian partnership act, 1932, which saves rights and remedies which existed before the act came into force, should be read as being subordinate to section 69(2), which requires a firm to be registered before ..... a certificate under clause 15 of the letters patent and the question now comes before this court for decision.2. section 69(2) of the partnership act states that no suit to enforce a right arising from a contract shall be instituted in any court by or on behalf of a firm against ..... if the profits were taken into account there was no indebtedness. the firm had not been registered under the provisions of section 58 of the partnership act when the suit was filed, but during its pendency registration was effected. when the respondent discovered that the appellant firm had not been registered before ..... the persons suing are or have been shown in the register of firms as partners in the firm. section 74, however, states that nothing in the act or any repeal effected thereby shall affect or be deemed to affect inter alia:(a) any right, title, interest, obligation or liability already acquired, ..... for leave to amend his written statement and include a plea that the suit could not be maintained by reason of the non-compliance with the act. the amendment was allowed and an additional issue was framed. the district munsif found that the respondent was indebted to the appellant firm in the .....Tag this Judgment!
Court : Allahabad
Reported in : 7ITR269(All)
..... taken into consideration in the assessment year.it is agreed on all hands that the present case is governed not by the provisions of the indian partnership act of 1932 but by the indian contract act and reference to the partnership act in question no. (1) is, therefore, erroneous.the facts that led to the reference are as follows :-the assessee firm carries on cloth business in ..... assumed to be the agent of the others for the purpose of carrying on the business. under the provisions of the indian income-tax act the terms firm, partner and partnership have the same meaning as under the indian contract act (or now under the indian partnership act). when the income-tax authorities are permitted to tax the income of a firm they are permitted to tax the ..... or with individuals as a legal entity or juristic person, it is not correct to say that a firm in the sense in which that terms is used in the indian contract act and indian partnership act cannot enter into another partnership.in the case with which we are dealing the assessee firm i.e., the individuals partners in that firm, entered into a larger ..... losses of their firm, that term being understood in the sense in which it is used in the indian contract act, the indian partnership act and consequently the indian income-tax act. the assessee firm were therefore entitled to set off the losses incurred by them in the larger partnership against the profits accruing to them from other business which they conducted.i am also inclined to agree .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1939Bom410; (1939)41BOMLR899
..... .1. this is an appeal by the plaintiffs against a judgment of mr. justice somjee. there are two plaintiffs, both of which are firms, which have been registered under the indian partnership act, 1932. they financed defendants nos. 1 and 2 in relation to the purchase of large quantities of corrugated iron sheets, and they sue for a sum of over nine lakhs ..... that by the time the defect in their title is brought to their notice, limitation has run against them. this seems to me a danger which section 69 of the, indian partnership act may place in the way of perfectly honest and bona fide lenders. however, in this case, in my opinion, it is clear on the evidence that these two plaintiffs were ..... the plaintiff firms, who are carrying on business as dealers in cotton, linseed and shares, and also as moneylenders, has been duly registered under the indian partnership act. it is not suggested that there was any general partnership between them. the two agreements under which money was agreed to be lent by the plaintiffs to the defendants were in the nature of a pledge ..... written statement. the contention was that in this transaction the two plaintiffs formed a partnership within the indian partnership act and not having been registered the suit must fail. the question whether there is a partnership is a mixed question of law and fact. according to section 4 of the indian partnership act, a partnership is defined as the relation between persons who have agreed to share the profits .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1940Bom164; (1940)42BOMLR248
..... the hindu law, and it can safely be asserted that inter se the members are not partners in the sense in which that term is used in the indian partnership act (ix of 1932) ; nor can it be said that they have any special interest in the family business or any definite share therein. there is ..... of the debt on a promissory note executed in the name of the firm. if the incidents of such a firm were common to an ordinary partnership firm, there could not be much difficulty, for the procedure laid down in order xxx of the civil procedure code could be followed consistently with the requirements of ..... on the same footing in the matter of form of action for recovery of a debt due on a promissory note as an ordinary partnership firm. according to mr. purshottam, just as a partnership firm after dissolution can sue in the firm's name [see harjibmdas gordhandas v. bhagwmdas pursram i.l.r. (1921) cal. ..... name and which has accepted a promissory note in that name, must conform to the ordinary rules of procedure applicable to individuals or partnership firms in regard to the form of suits on the note. mr.purshottam's argument is that it must, for the provisions of the negotiable instruments ..... debtor is not given any discretion and cannot seek to ascertain the real payee of the note as is permissible under the english bills of exchange act, 1882. that act provides as regards payee in section 7(1) as follows :-a bill not payable to bearer, the payee must be named or otherwise indicated therein .....Tag this Judgment!
Court : Chennai
Reported in : AIR1940Mad580; (1940)1MLJ469
..... participation, however active, in the conduct of the family business, a position which has received additional emphasis from the provisions of section 5 of the indian partnership act which postulate the possibility of members of a joint family carrying on the family business without becoming partners therein in the legal sense of the term. ..... again, the part taken by a junior member, while it may not be sufficient to justify an inference of partnership, may be such as to lead others to act on the belief that he is a partner, in which case the member will be precluded by the principle of estoppel ..... however, somewhat difficult to see how the rule of estoppel which can only preclude proof of facts as against individuals actually misled, can give rise to a partnership quoad the 'general public'.5. on the other hand, in sitharama chettiar v. sivagurunatha chetty (1930) m.w.n. 371, it was thought that, ..... other two learned judges, however, have not clearly indicated on what legal basis personal liability in such a case rests--whether it is based on implied partnership or estoppel by holding out or ratification. in ramaswami chettiar v. srinvasa aiyar (1935) 70 m.l.j. 214, the view is expressed that ..... of his conduct in taking an active part in the business. both the learned judges were of opinion that sections 247 and 248 of the indian contract act did not apply to the case and based their conclusion apparently on the principles of hindu law. sadasiva aiyar, j., held that both by .....Tag this Judgment!