Court : Chennai
Decided on : Mar-16-1939
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
Decided on : Mar-30-1939
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
Decided on : Mar-31-1939
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
Decided on : Sep-13-1939
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 : Mumbai
Decided on : Jul-18-1939
Reported in : AIR1940Bom54; (1939)41BOMLR1263
..... this suit on this promissory-note against them. the plaintiff's suit was filed as far back as 1932, and it appears that no suit for partnership accounts has yet been filed by the defendants against him.19. another allegation made by the defendants in their written statement was that a third brother ..... the parties. in the present case, there are not even cross-demands ; the defendant has not chosen to sue the plaintiff for adjustment of the partnership accounts, and he cannot invite the court to assume that the balance of that account would be found to be in his favour. reference may be made ..... was their partner in the firm of chhaganlal kalyandas is in fact correct, there is ample authority to show that even without a final settlement of partnership accounts a partner may, in certain circumstances, such as those in the present case, well sustain an action against his partners and be entitled to a ..... this promissory-note was to be adjusted in making up the final accounts. the cause of action on the promissory-note is entirely independent of the partnership accounts; nor are the parties to this promissory-note described anywhere therein as partners of the said firm.13. a promissory-note is a document which ..... for the defendant is not so much that under the english law the evidence is admissible, but that proviso 3 to section 92 of the [indian] evidence act has the effect of altering the english law..those remarks apply equally well to the case before us.25. the facts of the present case are .....Tag this Judgment!
Court : Chennai
Decided on : Oct-19-1939
Reported in : 7ITR662(Mad)
..... the honourable the chief justice).the assessee are a firm registered under the provisions of section 26-a of the indian income-tax act, 1922. there are two partners and the partnership deed is dated 27th february 1936. it appears, however, that the partnership was constituted on the 20th of march 1934. the senior partner advanced to the firm in his own name and ..... decided as a point of fact whether the alleged borrowing of capital was not a genuine loan but a mere device to evade the act. if it is a device made to avoid the act, then obviously the partnership would not be entitled to the benefit of section 10(2)(iii).in the present case, it has not been held that there was ..... value of those of these loans had proceeded on different lines, the income-tax authorities might have come to the conclusion that the partnership deed of the 27th of february 1936 was really a device for evading the act. we do not say that this would necessarily have been the finding. it is sufficient to say that the inquiry in this case ..... by him as initial capital and the money is used for capital expenditure, the interest paid by the partnership to him in the year of assessment must be deducted from the profits of the partnership under the provisions of section 10(2)(iii) of the act. in this case the partners had subscribed capital and the court was called upon to consider the .....Tag this Judgment!
Court : Mumbai
Decided on : May-02-1939
Reported in : (1939)41BOMLR1127
..... have indicated, apart from the assignment of august 22, 1934, a decree should prima facie have been passed for the eight survivors of the original partnership, but all eight were before the court, the respondent after amendment in fact alone was plaintiff, and the retired partners expressly disclaimed any interest.29. ..... s name should be substituted for that of the firm, inasmuch as the father was dead and the respondent was the sole owner of the partnership property, but such a change constituted only a formal amendment, and once it was made judgment could be entered for the respondent since he ..... 4 to 9-executed a document purporting to assign their interest in the partnership property to the respondent and his father.8. this document was not registered in accordance with the terms of section 17(1)(b) of the indian registration act, 1908, and it was contended by the appellant, and was not ..... of the losses of the business, released all his share, right, title and interest in the assets, outstandings, property and good will of the partnership business in favour of the respondent and his father, and agreed to execute in their favour all such transfers as might become necessary for better and ..... jurisdiction dated july 30, 1936.2. up to and after the year 1925, a firm of cooverji umersey & co. were carrying on business in partnership in bombay. in 1925 it consisted of nine partners, cooverji umersey, the respondent, his father umersey katchra, and seven others who were defendants nos. 4 .....Tag this Judgment!
Court : Chennai
Decided on : Oct-23-1939
Reported in : 8ITR121(Mad)
..... one of the partners that the constitution of the firm remained unaltered; (2) there was no operative document to be registered after the 7th august 1937 as the instrument of partnership was operative only for five years from 8th august, 1932.the assessees challenged the correctness of the decision of the income-tax officers, but it was accepted as being correct ..... by the partners or one of them. the application is required to be made in the form prescribed in the rules, and must be accompanied by the original instrument of partnership under with the firm is constituted, provided that for some sufficient reason the income-tax officer is satisfied that the original cannot be conveniently produced. when a certificate of registration ..... behalf and accompanied by a certificate signed by one of the partners of the firm that the constitution of the firm as specified in the instrument of partnership remained unaltered. in this case, the partnership was entered into for a period of five years from 23rd august 1932. the deed did not provide for a renewal and no fresh instrument was executed ..... merchants carrying on business at bezwada. the firm had been registered under the indian income-tax rules, 1922, and as such were entitled to the benefits accruing to a registered firm under the act. rule 2 of the statutory rules requires a firm constituted under an instrument of partnership to register with the income-tax officer the particulars contained in the instrument. an .....Tag this Judgment!
Court : Kolkata
Decided on : Aug-11-1939
Reported in : AIR1940Cal363
..... the relation subsisting between persons, who have agreed to share the profits of a business carried on by all or any of them acting for all (vide section 4, partnership act). we do not know what the agreement between the parties was in the present case. all that we find is that they took ..... case, the defendants were not co-owners but co-owners with him in the market business and he could demand accounts only on dissolution of the partnership. the first question that falls for determination in the appeal is as to whether the parties to the suit were co-owners or copartners, and whether ..... the learned judges who decided that case, nowhere said that the principle underlying queen anne's statute was inapplicable as being unsuitable to indian circumstances. on the other hand, they expressly followed the decision in henderson v. eason (1851) 17 q.b. 701 mentioned above and held on the authority ..... in a statute 4 and 5 anne order 16, section 27, but it is one enforceable by equity as resting on natural right and therefore by the indian civil courts.6. dr. basak laid much stress on the decision of this court in mohesh narain v. nowbut pattak (1905) 32 cal. 837. but ..... receives rents and profits of the joint property in excess of his share, without instituting a suit for partition. there is no specific provision in the indian law on this point and the question has got to be answered on general principles of equity, justice and good conscience. according to english common law, .....Tag this Judgment!
Court : Chennai
Decided on : Apr-18-1939
Reported in : AIR1940Mad106
..... jehangir, the brother of chidri ismail, on behalf of himself and of respondents 3, 4 and 5. chidri jehangir was acting as the next friend of respondents 3, 4 and 5 in the partnership suit and at the most can only be regarded as a de facto guardian.3. on 3rd september 1932, the appellant ..... the minor plaintiffs a sum of rupees 50,000 in satisfaction of their claims, and a ?decree embodying the terms of the settlement was passed. the partnership assets included immovable properties and the receiver who had been appointed was authorized to realize sufficient of the properties to pay the amount to the minor plaintiffs. ..... for the dissolution of the partnership and for the taking of accounts. he died before the suit came on for hearing and his heirs were made plaintiffs in his stead. chidri ismail had ..... of the suit. the grandfather of respondents 2, 3, 4 and 5, one chidri ismail, was a dealer in skins and hides and carried on business in partnership with another mahomedan, named dhabaywallay manjalay. in 1921 chidri ismail instituted on the original side of this court a suit (civil suit no. 697 of 1921) ..... principal and to the judgment in baylis v. dineley (1844) 3 m. & s. 476 which was to the same effect. the english law and the indian law with regard to contracts by minors are not the same. under the english law the contract of a minor is voidable. in this country it is void .....Tag this Judgment!