Calcutta High Court
Seodoyal Khemka And Ors. vs Joharmull Manmull And Ors. on 3 February, 1923
Equivalent citations: 75IND. CAS.81, AIR 1924 CALCUTTA 74
JUDGMENT Page, J.
1. The decision of the issues in this case involves the determination of some interesting question relating to practice. The action was brought by the plaintiffs as three members of the firm of Nathuram-Ramkissen against the defendants who are, they allege, the other members of that firm. The action is brought for a declaration that the firm is dissolved, for accounts, enquiries and incidental relief.
2. The facts are as follows:--The firm of Nathuram-Ramkissen has been in existence for some seventy years, and from time to time has been composed of different members. On the 28th June 1918, the terms and conditions under which the partnership was from that date to be regulated and carried on, were set out in a memorandum of agreement, called the Partnership Agreement. On the 18th March 1918, by a document of that date, the partnership was dissolved, but it was agreed by all parties at the trial that that notice of dissolution was not acted upon at the time, and that the partnership was continued until the 14th July 1919, when it was dissolved, except in so far as it related to one of the businesses carried on by the partnership, the Banianship agreement with Greaves, Cotton and Co., which under the special provisions of that Banianship agreement, was continued until August 1919. The partnership having come to an end, on the 10th February 1920 the plaintiffs, discovering that some of the defendants had been using the firm name of Nathuram-Ramkissen in respect of businesses-other than those carried on by the partnership, complained that there had been a wrongful user by those defendants of the partnership name. As a sequel to that allegation, some of the defendants asserted that the partnership had not come to an end; that all that had happened was that on the 14th July 1919, certain members of the partnership had retired from it (members other than those who admitted using the firm name for their private purposes), and that the partners who remained were entitled to use the firm name after the retirement of those other partners. That involved an important issue of fact between the members of the partnership, and one which the defendants have persisted in raising right up to the healing of the suit. In paragraph 4 of the written statement of the defendants Joharmul Khemka, Manmull Khemka, Gungadhur and Dungarmull, it is alleged that the plaintiffs, by mutual consent of the partners, retired from the partnership, and that the eupon the assets of the partnership became the property of the remaining partners, except the shares of the retiring partners which were to be repaid to them. Now, the partnership property is of great value, and a large portion of the partnership property was, after the dissolution, at first by consent, and since the 5th May 1915, under an arbitration agreement signed by all the partners, divided and distributed among the several members of the partnership in proportion to their shares under the Partnership Agreement. The time for completing the distribution of the estate, lowever, under the arbitration agreement, although extended from time to time, has long since expired, and the plaintiffs allege that, owing to the obstructive tactics of the defendants Nos. 1 to 3, the arbitration proceedings have become ineffective and of little value, at d they seek to have the partnership assets allocated to the several partners, in so far as they are not already distributed, under an order of the Court.
3. On the 3rd January 1922, this suit was commenced, and on the 6th September 1922, Joharmull Khemka (one of the patners) died. Up till time when this suit was heard the real issue between the plaintiffs and defendant? Nos. 1 to 3--there is no issue between the plaintiffs and the other defendants--was, whether there had been a dissolution, or whether there had been merely a retirement of certain of the members from the partnership. After Counsel for the plaintiff had opened the Case at the hearing, however, the Advocate-General admitted that there had been a dissolution of the partnership, and he gave up the point that there had been a retirement of some of the partners by consent of the other partners. It was impossible, in face of the facts which the plaintiffs were in a position to prove, to persist in the allegation that there was not a dissolution, but merely a retiring of certain of the partners. The Advocate General, however, after he had given up this main contention, did not abandon his defence altogether, but he took two points either of which, he contended, if decided in his favour, must result in the suit being eternised. The points were these: I the first place, he co tended that the suit was wrongly constituted on the ground that the defendant No. 1 set out in the plain(sic) Joharmull-Manmull, was sued as a firm, and that he was in a position to prove that Joharmull Manmull was not the firm and that neither at the present time nor at any material time was there such a firm as Joharmull-Manmull. He further contended that, assuming that he satisfied the Court that there was no such firm as Joharmull-Manmull, the suit was wrongly constituted, because on the authority of two cases, Ramdoyal v. Junmenjoy Coondoo 14 C. 791 : 7 Ind. Dec. (N.S.) 524 and Ambika Charan Guha v. Tarini Charan Chanda 19 Ind. Cas. 963 : 18 C.W.N. 464, it was necessary for the plaintiffs in a suit for partnership accounts to join as parties all the members of the partnership, and if Joharmull-Manmull, the firm, was not in existence, the suit was wrongly constituted because two members of the partneship Joharmull Khemka and Manmull Khemka were not parties to the suit, and, therefore, by reason of the provisions of Section 22 and Article 106 of Schedule I of the Limitation Act (IX of 1908), the suit must be dismissed. Now, by Section 22 of the limitation Act of 1908, it is provided that: "Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party," and by Article 106, Schedule I of the Limitation Act, the limitation for the time within which a suit for an account or for a share of a dissolved partnership must be brought is three years from the date of the dissolution. The Advocate-General, therefore, contended that, whether the dissolution took place on the 9th April or on the 14th July, in either case an application for leave to add Joharmull Khemka and Manmull Khemka as defendants, or to substitute the names of those two persons for Joharmull Manmull, could not now be encertained by the Court, because any application for such an amendment would, he contended, be an application to put a new party upon the record, more that three years after the date of the involution of partnership. Now, there is authority for the proposition that the Court has jurisdiction to add or substitute parties suo motu, untrammelled by the provisions of the Limitation Act, under Order I, Rule 9 or Order I, Rule 10, Sub-rule (2), but it is, in my opinion, rightly and finally settled that the Court, acting on its own intiative, is no more entitled when making amendments to effect the substitution or addition of parties under these two Orders, to disregard the provisions of the Limitation Act, than it would be entitled so to do if the amendment was made upon an application by one of the parties, [vide the case of Ram Kinkar Biswas v. Akhil Chandra Chaudhuri 35 C. 519 : 11 C.W.N. 350 : 5 C.L.J. 242 : 2 M.L.T. 137 (F.B.), Imam Ali v. Baij Nath Sahu 33 C. 613 : 3 C.L.J. 575 : 10 C.W.N. 551, Imam-ud-din v. Liladhar 14 A. 524 : A.W.N. (1892) 104 : 7 Ind. Dec. (N.S.) 705. Guruvavya v. Dattatraya 28 B. 11 : 3 Bom. L.R. 618 and the case of Ambika Charan Guha v. Tarini Charan Chanda 19 Ind. Cas. 963 : 18 C.W.N. 464, which I have already referred to.]
4. His second contention was that, on the assumption that the suit was right constituted and that all necessary parties were before the Court, as Joharmull Khemka died on the 6th September 1922 and an application had not been made to cause his legal representative to be made a party within 90 days of his death (which is the time limited for such an application under Article 177 of the First Schedule to the Limitation Act, 1908), the suit had abated by reason of the provisions of Order XXII, Rule 4, and that, unless the Court granted an application to set aside the abatement under Order XXII, Rule 9, the suit in that event also must be dismissed against all the defendants. He further contended that the time within which an application to set aside the abatement must be made was 60 days from the date of the abatement under Article 171 of the First Schedule to the Limitation Act.
5. Now, I allowed the defendants Nos. I to 3 to amend their written statement in such a way as to enable them to allege that Joharmull Manmull was not a firm, and evidence by both parties was adduced upon the issue as to whether or not Joharmull Manmull was a firm. By Section 239 of the Contract Act a partnership is defined as the "relation which subsists between persons who have agreed to combine their labour or skill in some business and to share the profits thereof." Now the facts, as I find them after having heard the evidence, are that Joharmull Khemka and Manmull Khemka were two brothers who with their families were living together, and were joint in food and worship; that these two brothers deposited monies from time to time with the firm of Nathuram-Ramkissen for the joint use of themselves and their families, and that sums were drawn to meet the needs of the two families by Joharmull Khemka or Manmull Khemka or their relations as occasion arose. On referring to the Partnership Agreement, it is to be observed that, in setting out the shares of the different members of the partnership, the phrase occurs; "Joharmull Manmull's share 5-annas 6-pies," and there is no doubt that not only in this Partnership Agreement is found the phrase "Joharmull. Manmull" but in the submission to arbitration, an important document, the phrase also occurs, ''Joharmull Manmull," and Counsel for the plaintiffs contends that such a phrase necessarily indicates a partnership. The use of such an expression is some evidence, no doubt, of a partnership, but when the facts are known, in my opinion, the contention that these two gentlemen, Joharmull Khemka and Manmull Khemka, were carrying on a partnership business in the firm name of Joharmull Manmull, is not made out. They were living with their families together in a joint establishment, and Manmull, who was called, said: "We were joint, Joharmull was hurra brother; we sometimes under those circumstances used the words "Joharmull Manmull" to indicate ourselves because we were always together, but we were never a partnership in the sense in which that term is used in Section 239 of the Contract Act, and we never carried on any business under that firm name. The witnesses were asked, and I invited Counsel for the plaintiffs to suggest, what the business was which the firm of Joharmull Manmull was carrying on. The only answer given was a suggestion by Counsel for the plaintiffs that the business which was carried on by that firm was one of endeavouring to get as large a share as possible out of the profits of Nathuram-Ramkissen. Well, I do not think that that contention is worth wasting much time upon.
6. I have come to the conclusion that the name of "Joharmull Manmull," although it is some indication of a partnership, is not in any way conclusive of the question, and when I consider how Joharmull Khemka and Manmull Khemka in fact acted in relation to the partnership documents, I think it is perfectly clear that they were individual members of the partnership of Nathuram-Ramkissen, and that trey were not members of the partnership merely as being members of a firm of "Joharmull Manmull," because in the Partnership Agreement as well as in the submission to arbitration, notwithstanding that the words "Joharmull Manmull" appear in both these documents, the signatures in both are those of Joharmull Khemka and Manmull Khemka Individually, and there were other documents to the same effect which were produced. Now, under these circumstances, I find as a fact that there was no such firm as Joharmull-Manmull. That being so, I have to consider the contentions which are put forward on behalf of the defendants Nos. I to 3 by the learned Advocate-General. I take the first contention. It is a contention which has no merit in it whatever; it is a contention which was only thought of by the lawyers after the death of Joharmull Khemka in September 1922. It is admitted by these defendants that there was a partnership; it is admitted that Joharmull Khemka and Manmull Khemka were members of the partnership; it is admitted that there was a dissolution, and it is admitted that there is property belonging to the partnership which has to be accounted for and distributed among the members of the partnership. Orders and rules framed for procedure in suits and actions were created for the purpose of being the handmaid, and not the mistress of the law, and if the contention of the Advocate-General were to succeed, an otherwise rightly constituted suit would be defeated on grounds of the barest technicality. In my opinion, however, there is no substance in this contention. A firm as such cannot be a member of a partnership. A partnership under Section 239 is a relationship which subsists between persons; but a firm is not a person, it is not an entity, it is merely a collective name for the individuals who are members of the partnership. It is neither a legal entity, nor is it a person. [See per Lord Justice James in Ex parte Blain, In re Sowers (1879) 12 Ch. D. 522 at p. 533 : 41 L.T. 46 : 28 W.R. 334, and per Lord Justice Far well in Sadler v. Whiteman (1910) 1 K.B. 868 at p. 889 : 102 L.T. 472 : 36 T.L.R. 372 : 54 Sol. J. 375]. In Scotland the position is different, because in Scotland a firm is a legal person [vide Partnership Act, 1890, 53 & 54 Vict. c. 39, Section 4, Sub-section (2) and the Note set out in Appendix I of the late Lord Lindley's book on Partnership, 6th Edition, 775]. A firm name, in truth, is merely a description of the individuals who compose the firm. It is that, and it is nothing more. If that be so, not only would it have been impossible for the firm of Joharmull-Manmull, even if it had existed, to be a member of the partnership of Nathuram-Ramkissen, but the words "Joharmull Manmull" as they appear in the plaint, are merely a description of the individuals Joharmull Khemka and Manmull Khemka who are in fact admittedly members of the firm of Nathuram-Ramkissen. Neither Joharmull nor Manmull were in any doubt as to the individuals who were indicated by the terra "Joharmull-Manmull." Manmull in his evidence says that it was a description which they sometimes used to describe themselves, although he said "we were separate individuals." Moreover, no point was taken in the pleadings that these persons were wrongly described, and to make the matter even more clear when a writ of summons was served, although it was endorsed "by Joharmull Khemka for Joharmull-Manmull," Manmull admits that it was a perfectly good service upon him and, acting upon that, these two gentlemen filed a written statement, and the written statement which they filed commences "written statement of Joharmull Khemka and Manmull Khemka sued as Joharmull-Manmull." Now, in my opinion, in the pleadings as they stand, the defendants Joharmull Khemka and Manmull Khemka are sufficiently described, and, in my opinion, those two gentlemen are before the Court, and are parties to the suit. If an application were made to amend the plaint so as to substitute for Joharmull-Manmull the words "Joharmull Khemka and Manmull Khemka," such an amendment would not be an amendment by which a new party was added, but it would be an amendment merely for the purpose of more clearly describing parties who are already before the Court. Such an application would not, in my opinion, be within Section 22 of the limitation Act [See on this point Mohunt Padmalav Ramanuja Das v. Lukmi Rani 12 C.W.N. 8, Nistarini Dasya v. Sarat Chandra Mojumdar 29 Ind. Cas. 680 : 20 C.W.N. 49 : 22 C.L.J. 279, Sabodini Debi v. Cumar Ganoda Kant Roy Bahadur 14 C. 400 : 7 Ind. Dec. (N.S.) 265 and Peary Mohan Mukerjee v. Narendra Nath Mukerjee 32 C. 582 : 9 C.W.N. 421, on Appeal 5 Ind. Cas. 404 : 37 C. 229 : 7 A.L.J. 125 : 7 M.L.T. 163 : 14 C.W.N. 261 : 20 M.L.J. 171 : 11 C.L.J. 220 : 12 Bom. L.R. 257 : 37 I.A. 27 (P.C.).]
7. I, therefore, come to the conclusion that there is no substance in the first contention put forward on behalf of these defendants.
8. I come to the second contention. These defendants urge that, on the assumption hat the proper parties are before the Court, after the death of Joharmull Khemka it became necessary that an application should be made within 90 days under Article 177 of the First Schedule of the Limitation Act, 1908, to add his legal representative as a party on the record, and that on the failure to make such an application the suit had abated by reason of the provisions of Order XXII, Rule 4. On behalf of the plaintiff it was contended, in reply to that contention; that the time within which such an application has to be made, is not 90 days, but six months, and in support of their contention they referred to a copy of the Limitation Act of 1908, set out in the Gazette of India. On reference to that copy, it will be observed that in Article 177 of Schedule I, in the second column, appear the words "six months", and on behalf of the plaintiffs it was contended that the Gazette is the best evidence of the provisions of the Act, and as, in the Gazette the words are "six months," that the plaintiffs have six months from the date, i.e., six months from the 6th September 1922, in which to make the application, which period has not yet expired. The Advocate-General, however, referred to a copy of the Act printed by Government Authority which he contends is the proper place in which to look for the provisions of the Acts of the Legislature. On looking at that copy of the Act, I find under Section 177, not the words six months, but the Word "ditto." Now, in Section 78(2) of the Evidence Act it is provided that the following published documents may be proved as follows:--"The proceedings of the Legislature by the journals of those bodies respectively, or by published Acts or abstracts or by copies purporting to be printed by order of Government." In my opinion, I am not bound to have recourse exclusively to the mode of proof in respect of published documents set out in Section 78. I think that is a permissive and not an exclusive section; therefore, I find myself at liberty from any available source to make up my mind as best I can as to what the words in the Act were. Having regard to the intrinsic evidence in the Acts themselves, it appears to me to be quite clear that the version contained in the published Acts, and not that contained in the Gazette, is the right one, for this among other reasons that the Act of 1908 was amended by Act XXVI of 1920, and by that Act, inter alia, in Article 176 "six months" was altered to "90 days." In Article 178 "ditto" was altered to "six months." Now, if the Act had been in the terms set out in the Gazette, there would have been no necessity in the amending Act to have made the alteration in Article 178 at all, because if it were the fact that the Act of 1908 Article 177 in the second column, had the words "six months" then "ditto" in Article 178 would have served the same purpose as the alteration of "six months" which the Legislature thought fit to provide by Act XXVI of 1920. I, therefore, come to the conclusion that the Act of 1908 had, in Article 177 second column the Word "ditto," and not the words "six months" and the effect of that will be that, as by Act XXVI of 1920, Article 176 is altered from "six months" to "90 days," Article 177 becomes 90 days as well. That being so, I come to the conclusion that 90 days from the death is the time within which this application to add legal representatives had to be made. I am aware that in the High Court of the Punjab it has been held that the version in the Gazette is to prevail [vide 26 C.W.N. CL] but I am unable to agree with that decision, because I think that it is abundantly clear from the intrinsic evidence to be found in the Acts themselves, that the version set out in the published reports, and not the version set out in the Gazette is the accurate and true version of the Act which the Legislature enacted.
9. Under those circumstances it is admitted on behalf of the plaintiff that the suit has abated and an application must be made by the plaintiff under Order XXII, Rule 9, for the abatement to be set aside and I should have to be satisfied, before I granted such an amendment, that there is sufficient cause shown for the abatement to be set aside.
10. Now, by Order I, Rule 13, all objections on the ground of non-joinder or misjoinder are to be taken at the earliest possible opportunity, and no objection in respect of wrongful joinder or misjoinder or non-joinder of parties in this suit was taken until the hearing of the, action. I am not prepared to hold, nor do I think it necessary for me to hold, that the effect of a delay so long as that which has occurred in this case precludes the defendant from making an application under Order I, Rule 13, but the failure to apply for so long a period might reasonably lead the plaintiffs to assume that no objection was going to be made on the ground of non-joinder or misjoinder of parties. Moreover, no such objection was taken in the pleadings and could not now be taken without an amendment in that behalf being applied for and granted. In my opinion, there was a bona fide mistake made by the plaintiffs with respect to this matter, and there was sufficient cause within Order XXII, Rule 9, for the plaintiff to have failed to make the application before the time ran out within which the application must needs have been made.
11. Now, there is one other matter which I wish to deal with, and it is this: It is said with respect to another party that the action is wrongly constituted. It is said that one Sukdeo was a partner and that he also ought to have been joined as a party to the suit. On reference to the Partnership Agreement I notice that Sukdeo Gungadhar and Sukdeo Dungarmull receive a 2-annas 6-pies share, and the evidence was to the effect that Sukdeo was the father of Gungadhar and Dungarmull, and that as between them the annas 2, pies 6 was split up into shares of anna 1, 3 pies, anna 1 and pies 3, respectively. Gungadhar received the largest, and Sukdeo, the father, the smallest share. In my opinion, however, there is no evidence upon which I can find that Sukdeo was a partner in the firm of Nathuram-Ramkissen. The evidence which was led on this point is to be found in the cross-examination of the plaintiff Jamnadas Khemka, and, although he does state in one or two places that Sukdeo was a partner, having regard to the whole of the evidence which he gave, I am satisfied that what he intended to convey was, as I find the fact is, that although Sukdeo was not a partner of Nathuram-Ramkissen, he was jointly interested with his two sons in their shares; that the two sons who signed (Sukdeo did not sign) the agreement were partners, and that as between them and their father there was a certain arrangement made as to the distribution of the family share. But that, of course, would not amount necessarily to Sukdeo being a partner in the firm of Nathuram-Ramkissen. It may be that there are cases in which a stranger may be jointly interested with a member of a partnership, so far as the shares in the partnership of that member are concerned; such mutual interests may amount to a partnership 'but it is not a partnership in the main firm, but what is called a sub-partnership, the effect of which would be that the stranger who is a partner of the sub-partnership would not be a partner of the main partnership. [See the observations of Lord Eldon on Ex parte Barrow (1815) 2 Rose 252 end Cox v. Hickman (1860) 8 H.L. Cas. 268 : 9 C.B. (N.S.) 47 : 30 L.J.C.P. 125 : 7 Jur. (N.S.) 105 : 3 L.T. 185 : 8 W.R. 754 : 11 E.R. 431 : 125 R.R. 148 : 142 E.R. 19.] I have come to the conclusion that Sukdeo was not a partner in any sense in the firm of Nathuram-Ramkissen, although there is some evidence that as between the father and the two sons, the father was jointly interested in their shares. That is sufficient to dispose of this case. The contentions put forward on behalf of defendants Nos. 1 and 3, in my opinion, fail and there is no defence to this action.