Devji Goa and Others vs Tricumji Jivandas and Others

Macpherson, J.—The Subordinate Judge of Dhanbad has allowed the prayer of pro forma defendant 4 to be transferred to the category of plaintiff and this rule has been obtained by defendants 1 to 3 in respect of that order. The following genealogy will be of assistance.

(For genealogy see p. 240)

The suit has been brought for dissolution of the partnership and for accounts. There are three plaintiffs, the

Tricumji Jivandas (long dead) Gopaldas Khemji Ranchoddas Devji Jairam (deft. 5) (deft. 6) Anandji (dead) Gopaldas Moraji Mohan Singh Jairam Khemji

first being "Tricumji Jivandas" a firm (hereinafter designated "the firm"), the second mortgagee under that firm and the third . the receiver appointed by the High Court of Bombay in Suit No. 751 of 1924. The first three defendants are sons of Goa Petha, deceased and are the principal defendants. The fourth defendant is the Official Assignee of Bombay representing the insolvent estates of Gopaldas Tricumji and Morarji Jairam above mentioned who were declared insolvents on 2nd April 1930, and 2nd March 1931, respectively. Defendants Nos. 5 and 6 are the remaining two sons of the deceased, Tricumji Jivandas, who being alleged to have no interest in the firm of Tricumji Jivandas, do not concern us.

The material averments in the plaint were these. The firm was established long ago by Tricumji Jivandas, father of Gopaldas Tricumji, and of defendants Nos. 5 and 6, and father''s father of Morarji Jairam and Mohan Singh Khemji. The present partners are Gopaldas Tricumji who used to be the managing partner, the brothers Morarji Jairam and Mohan Singh Khemji and Anandi, son of Gopaldas, who is the present managing partner and who has signed the plaint. Gopaldas Tricumji and Morarji Jairam have, as already stated, been declared insolvent by the Bombay High Court and their estate is represented by the pro forma defendant No. 4. There was a partnership between the firm, Bisram Karman and Goa Petha, the deceased father of defendants 1 to 3, in respect of the Khas Jina-Gora Colliery in Jharia for which Gopaldas Tricumji as manager of the firm supplied money on certain conditions of partnership. Under this partnership Goa Petha acquired the colliery and worked as managing partner thereof, Bisram sold his share to Goa Petha and subsequently the business was reconstituted with the firm and Goa Petha as the only partners but Goa Petha ceased to render accounts after 1918.

In 1922 the firm mortgaged its share in the colliery and its income therefrom to plaintiff No. 2 with pro forma defendants 5 and 6 as surety, and in Suit No. 751 of 1924 the High Court of Bombay gave plaintiff 2 a mortgage decree against Gopaldas Tricumji and defendants 5 and 6 with a charge on the share of Gopaldas Trincumji in the colliery and then appointed the Official Receiver as receiver to the rights of the judgment-debtor therein.

In 1927 the Official Receiver sued Goa Petha for accounts for the share of the firm and of Gopaldas and obtained a decree; but in 1931 this Court dismissed the suit.

The decision is reported in Gowa Petha Vs. N.H. Moos, . The basis of the decision was that the receiver as an assignee could not sue for accounts. The present suit which is valued at Rs. 75,000 was brought on 11th December 1931. The defendants 1 to 3 denied any partnership averring that Gopaldas Tricumji and Bisram Karman had only advanced money to Goa Petha who was the sole owner of the coal business.

They further claimed that the plaintiffs could not maintain a suit, in particular, as in the decision of this Court in Gowa Petha Vs. N.H. Moos, it has been held that the partners of the firm of "Tricumji Jivandas"were Gopaldas and Morarji only, both of whom are insolvents so that the firm was dissolved.

The issues were framed on 11th March 1932. When the plaintiffs application for a receiver was put up on 24th June, both parties applied that the trial be expedited. The case was fixed for hearing on 25th August on which date defendants 1 to 3 obtained time on payment of Rs. 75 as costs and the case was fixed for peremptory hearing on 14th November. Meantime the pro forma respondent 4 having sought and received the sanction of the High Court which appointed him, applied on 29th September with the consent of the plaintiffs to be made a co-plaintiff. The principal defendants objected but the learned Subordinate Judge held that defendant 4 is a necessary party to the present suit as without his presence the question in the suit could not properly be determined, and granted the application.

He repelled the suggestion that the transposition will alter the nature of the suit and relying upon Debendra Narain v. Narendra Narain AIR 1920 Cal 428 and Bhupendra Narayan v. Rajeswar Prosad (3) repelled also the objection that the prayer could not be granted at this stage.

It may be further indicated that Wort, J. in Gowa Petha Vs. N.H. Moos, cited above held that the firm was in fact a partner of Goa Patha in the colliery business.

In support of the rule Sir Sultan Ahmad mainly contends that the constitution of the suit being bad, the transposition sought by the pro forma defendant 4 should not be granted as It is sought thereby to bolster up a suit which must otherwise fail. But on principle I do not consider it a good reason for refusing the transposition craved that the effect would be to assist the plaintiffs nor that it is necessary before making an order under O.1, R.10 to determine whether the suit as constituted is bad.

Apart from these points however, I am of opinion, as at present advised, that the main proposition of the learned Government Advocate that the suit is not maintainable by the plaintiffs is not made out. He relies upon the fact that Gopaldas and Morarji Jairam are insolvents and quotes Lindley on Partnership, Edn. 8, p. 641:

Subject to any agreement between the parties every partnership is dissolved as regards all the partners by the bankruptcy of any partner.

That however is not the law in India where there is no automatic dissolution of a partnership upon the insolvency of a partner. u/s 253(10), Contract Act, a partnership is dissolved upon the death of any partner. As to insolvency however Section 254 only provides that the Court may dissolve a partnership among other cases," AIR 1920 Cal 428 when a partner, other than the partner suing, has been adjudicated an insolvent" so that dissolution is not automatic upon an insolvency occurring. If then as the plaint sets out, there were four partners, of whom two are not insolvents, the mere fact that two partners are insolvents does not dissolve the partnership automatically.

The learned Government Advocate then refers to the view expressed in Gowa Petha Vs. N.H. Moos, that the only partners in the firm were Gopaldas and Morarji. It may be that if all the partners are insolvent, the partnership is dissolved; but the Court at this stage must proceed on the allegations made in the plaint that there are four partners in "Tricumji Jivandas," and we know that at least two, of the alleged partners are not insolvents, and prima facie the firm exists. The mere fact that the petitioners may conceivably be able to establish at a later stage that the suit as brought was not maintainable and that the grant of the prayer may make it indisputably maintainable, does not appear to be a good reason for refusing the prayer to defendant 4 to become a co-plaintiff.

The learned Government Advocate appeared to suggest that the petitioners would be prejudiced by the amendment allowed inasmuch as if the pro forma defendant 4 brought a suit for his own, he would, owing to the law of limitation, be unable to recover as much as the original plaintiffs in this suit who filed their suit nearly fourteen months ago.

But the decision of a Single Judge in Ram Das Sahu and Others Vs. Chhota Lal Mander and Others, upon which he based this submission, has been considered by a Division Bench and overruled in Surajman Prasad Misra Vs. Sadanand Misra and Others, . The object of Section 22(2), Limitation Act, 1908, was to provide for cases of this nature and if a transposition be disallowed on the ground that it would affect limitation, the provision will be rendered nugatory.

I am in agreement with the learned Subordinate Judge that there is no substantial change in the nature of the suit. Finally it was urged that the transposition should not be allowed at this stage. It is true that the suit was fixed for peremptory hearing on 25th August, a month before the application of the pro forma defendant 4 was made. But it was then postponed at the instance of the present petitioners and the application was actually disposed of on 5th November or nine days before the next date fixed for peremptory hearing.

In all the circumstances, I am unable to hold that the present is a proper case for interference by this Court in revision with the order made by the learned Subordinate Judge who, upon careful consideration, exercised the discretion vested in him and did so on judicial principles.

The rule is discharged, costs to be costs in the suit: pleader''s fee five gold mohurs. Let the record be sent down at once so that the hearing may be taken up with all reasonable expedition.