Court : Kolkata
Decided on : Mar-29-1935
Reported in : 163Ind.Cas.703
..... suit on that, ground.2. a further objection was raised that the suit could not be maintained owing to the provisions of section 69 of the indian partnership act of 1932. section 69(2) provides that no suit to enforce a right arising from a contract shall be instituted in any court by or on ..... is barred under section 69(2) of the act.3. the learned advocate for the opposite party says that that decision is not correct and that it has not taken ..... section 74(a) of the partnership act. this matter was dealt with recently by this court in a case reported in surendra nath de v. manohar de : air1934cal754 , and it was held that a suit by an unregistered firm to enforce a contractual claim accruing before the commencement of the indian partnership act but brought after its commencement ..... the learned judges in the case to which i have referred have pointed out the provisions of sub section (3) of section 1 of the partnership act show that the intention of the legislature was to ensure that a suit which was started after october 1, 1932, should only be by a registered firm ..... after its passage. the learned judge was. in my opinion, wrong in his view of the interpretation of the provisions of the partnership act and the suit ought to have been dismissed.4. the rule is made absolute with costs hearing fee two gold mohurs. .....Tag this Judgment!
Court : Mumbai
Decided on : Apr-04-1935
Reported in : AIR1935Bom357; 158Ind.Cas.159
..... the same manner as theretofore. he relies on section 264, contract act, which is one of the sections of the now repealed ch. 11, contract act, re-enacted in the indian partnership act, but the rights in this suit are governed by ch. 11, contract act. section 264 provides:parsons dealing with a firm will not be ..... by the death of his principal, whether the fact of death is known or not.5. but in the english partnership act, there is no provision such as we have in section 264, contract act, and we have been referred to no authority holding that that section does not apply to the case of dissolution ..... death to one of the plaintiffs cannot affect all the plaintiffs with notice that the 'firm had been dissolved. under section 253, contract act, death only dissolves a partnership in the absence of any contract to the contrary, and there is no evidence here that any of the plaintiffs knew that there was ..... advocate-general that section 264 does not apply to dissolution occasioned by death. he points out that that is the rule under english law. in lindley on partnership, edn. 9, p. 282, it is said:notice of death is not requisite to prevent liability from attaching to the estate of a deceased partner ..... winding up. the evidence on the point is not very clear, but i will accept the learned judge's view that probably there was a new partnership between the two surviving partners, tyaballi and defendant 1. tyaballi subsequently died on 13th may 1932. on that finding of fact the learned judge came .....Tag this Judgment!
Court : Allahabad
Decided on : Apr-25-1935
Reported in : AIR1935All898; 157Ind.Cas.154
..... kendall, j.1. this application has raised a technical question in connection with the indian partnership act of 1932. the plaintiff, purporting to be a firm, entered a plaint on 27th. october 1933, which was admitted and registered on 28th november. on 23rd ..... in the firm.7. it cannot be said that the suit was instituted only when the plaint was amended. it was undoubtedly instituted before the provisions of the act had been complied with. i am therefore of opinion that the decision of the trial court is correct, though it may be inaccurate in stating that the ..... statement in his register. further, it is provided in section 69 as follows:no suit to enforce a right arising from a contract or conferred by this act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm...unless the firm is registered ..... be made an application to amend, the plaint after having obtained a certificate to the effect that the firm had been registered in accordance with section 59 of the act. the plaint was, amended accordingly, after which the written statement was filed in which the objection was raised that the suit, as framed, was barred by section ..... 69 of the act. the trial court appears to have rejected the plaint, giving as a reason that it was admitted by the plaintiff that the firm was not registered when the .....Tag this Judgment!
Court : Mumbai
Decided on : Nov-07-1935
Reported in : (1936)38BOMLR1058
..... .there is a proviso to the section with which we are not concerned. this section is based on section 38 of the english partnership act, the only distinction between section 263 of the indian contract act and section 47 of the indian partnership act is that instead of the words ' the rights and obligations of the partners ' we have a fuller expression, viz., ' the authority of each ..... of profits to interest on the capital subscribed by him. this is subject to any agreement, express or implied, between the partners. the wording of section 13 (c) of the indian partnership act is somewhat different, for it is there provided that subject to contract between the partners where a partner is entitled to interest on the capital subscribed by him, such interest ..... and up to dissolution, and, if so, out of what is the interest to be paid the law on the subject was codified in england in the partnership act of 1890, and in india under the indian partnership act of 1932. counsel for the 1st defendant firm relied on a statement of the law in watney v. wells (1867) l.r. 2 ch. app. 250 ..... read with sufficient emphasis on the word ' necessary', the continuing authority of the partners for purposes of winding up is described in the first para, in section 47 of the indian partnership act of 1932 as follows :-after the dissolution of a firm the authority of each partner to bind the firm, and the other mutual rights and obligations of the partners, continue .....Tag this Judgment!
Court : Mumbai
Decided on : Mar-13-1935
Reported in : AIR1935Bom401; (1935)37BOMLR654; 158Ind.Cas.701
..... to the property may to some extent be treated as members of the firm, or, if minors become entitled to the benefit of the partnership : indian contract act, section 247. but there is no similar cause by which the sons of a muslim, governed by muslim law, can in this way ..... their birth, to the father ; and unless it is proved that the father and sons have entered into a contract of partnership, the sons do not become partners, the partnership property remains exclusively that of the father and there is no object in or ground for suing the sons in regard to ..... as a coparcener. if sons are born to him, the sons may by birth acquire an interest in the partnership property. the position then would be anomalous in that the partnership property would become subject to the rights of persons who are not partners and who have come into existence after ..... in regard to transactions made by their father or on his behalf, it must be shown that they not merely acted as his agents for the time being, but that they acted as his partners. considering the muhammadan law of inheritance and the general ways of living amongst the mussalmans (unless ..... they have adopted hindu law), it would be extremely difficult to prove that the sons were partners of their father.5. [ thereupon the plaintiffs admitted that they would not allege or prove any deed or express agreement of partnership .....Tag this Judgment!
Court : Mumbai
Decided on : Apr-16-1935
Reported in : (1936)38BOMLR1080
..... or company which consists of not less than eight members is not an unregistered company unless it is a foreign partnership, association or company. section 270 of the indian companies act is in the same terms as section 267 of the english act of 1908.6. section 270, i think, consists of two parts. it begins by stating what will not be included in ..... 'unregistered company' shall not include a railway company incorporated by act of parliament or by an act of the governor general in council, nor a company registered under the indian companies act, 1866, or under any act repealed thereby, or under the indian companies act, 1882, or under this act, but save as aforesaid, shall include any partnership, association or company consisting of more than seven members.section 271 ..... provides that subject to the provisions of this part, (i.e. part ix), any unregistered company may be wound up under this act, and all .....Tag this Judgment!
Court : Mumbai
Decided on : May-24-1935
Reported in : (1935)37BOMLR815
..... the business so as to increase the capital account, a position which does not arise here. nor have they had to consider any special provisions of partnership articles which might affect the matter : for there were none in this case. for the reasons given they are of opinion that this appeal should be ..... due for capital can be distributed. in other words on dissolution of a partnership an outgoing partner has the right to receive not as in the case of a shareholder in winding up a company only a share of the assets ..... and what is due for capital. it can hardly be suggested that the partners share according to their capital proportions in the whole assets of the partnership. the sum due for undrawn profits was and remains a sum due by the partners to each partner : and necessarily ranks first before the sums ..... is a lump sum, and no reconstruction into a division of capital and profits is necessary or in many cases possible. the position in respect of a partnership is different. the profits are the profits of the partners, joint in the first instance, and if the appropriate statute so provides assessable as joint : ..... received by the respondent in madras in respect of interest on capital employed in business in ceylon is assessable under section 4 (2) of the indian income-tax act. no dispute arises as to the sum being derived from business : the only question is whether the effect of the dissolution was to make payment .....Tag this Judgment!
Court : Mumbai
Decided on : Dec-05-1935
Reported in : AIR1936Bom246; (1936)38BOMLR486; 163Ind.Cas.579
..... is a passage which implies that the decision of the high court would have been different if the four persons who signed the contract of partnership as representatives of the firms of which they were members had signed for their own individual benefit, the firms themselves being only in the ..... the existence of a sub-partner would not affect the number of members of a firm for the purposes of section 4 of the indian companies act. i hold that in this respect there is no objection to the suit.4. it is then contended that the agreement in fact ..... that the individual members of the four firms which entered into the partnership in that case were themselves members of the partnership and that the partnership, consisting as it did of more than twenty individual members, required registration under section 4 of the indian companies act, was that the word ' persons ' used in section 4 ..... four points are urged :-(1) that the plaintiff firm consists in fact of more than twenty members and,, therefore, under section 4 of the indian companies act, it cannot be recognised for want of registration of the company and cannot bring this suit; (2) that the agreement upon which the plaintiffs ..... (2) of the act was used not in the sense in which it is defined in the general clauses act (in which act .....Tag this Judgment!
Court : Kolkata
Decided on : Mar-06-1935
Reported in : 4ITR25(Cal)
..... before the income tax officer of district iv-3, calcutta, relating to an assessment in respect of the financial year 1932-33, wherein the registered partnership firm of mahaliram ramjidas are the assessees, to the end that an order of the said income tax officer passed in the said proceedings on the ..... 5th february, 1934, purporting to be under section 34 of the indian income tax act, 1922, and all proceedings consequent upon such order be quashed, including an order of the income tax commissioner, dated the 3rd of november, 1934 ..... xxx-a of the rules and orders of the calcutta high court (original side).rule 1 provides that all references under section 66 of the indian income tax act, 1922, ......shall be presented to the registrar, original side, and shall be dealt with on the original side.rule 3 provides that the ..... a duty, the court could not require him to exercise it'; and for this purpose reliance was placed upon the well-known general purview of indian legislation which excludes matters of revenue from the consideration of the ordinary civil courts, the principle being exemplified in the case of spooner v. juddow, ..... under any order purporting to be under section 34 of the income tax act in regard to the assessees income for the sambat year 1987-88 pending the disposal of this motion.the petitioners are a registered partnership carrying on business in calcutta and use the sambat year for accounting in .....Tag this Judgment!
Court : Chennai
Decided on : Aug-05-1935
Reported in : AIR1936Mad94; (1936)70MLJ214
..... a manager the legislature has given effect to this legal conception by way of statutory declaration in section 5 of the partnership act. it is not therefore desirable to apply all the principles of partnership law to a joint family business as such. but it is contended that by way of equity we should do so ..... the character he has assumed and on the faith of which third parties may be presumed to have acted. their being a partnership from the point of view of the general public, it follows that the persons dealing with it will not be affected by a dissolution ..... ask for accounts of past profits. further a partner of an ordinary firm may, in the absence of special restriction, bind by his acts the other members of the partnership; but in the case of a trading family it is the manager alone, unless a special arrangement exists, that can take part in ..... principle is the same, namely that of liability by 'holding out' - a special application of the doctrine of estoppel recognised in section 245 of the indian contract act. the liability in such a case is analogous to that of a partner and arises from the conduct of the coparcener, who is estopped from denying ..... of which no notice has been given (section 264 of the indian contract act). on the facts of the case here, it is unnecessary to enquire whether .....Tag this Judgment!