Makhun Lall, Dutt and Others vs Ram Lall Shaw and Other

Maclean, C.J.—This is an appeal by four of the Defendants in the suit from a decree passed by Mr. Justice Sale, under which he held that they were liable as partners for a sum of about Rs. 2,000 odd, which was claimed by the Plaintiff in a suit brought by him for damages for breach of the contract which is set out in the pleadings. The only question which we have to decide upon this appeal is, whether these four Defendants were in fact partners and liable, as I read the decree, jointly and severally, for the amount claimed. The Defendants, other than the present Appellants, have been found liable both by Mr. Justice Sale and by this Court on appeal. The cases of the present appealing Defendants differ materially, and I will deal with them separately. I will first take the case of Baikunta Nath Sen. He is sued as ''being a partner in the firm of Nundo Gopal Dutt Brothers and Company. In his pleadings he denies that he is a partner. The learned Judge in the Court below has found upon the evidence that he acted as a partner in the firm, and that in a certain interview which took place with reference to a proposed settlement, to which I shall refer in a moment, ho, in effect, admitted that he was a partner, and then he proceeds to hold, it being conceded that his son, Chundy Charan Sen, was a partner, that Chundy Charan Sen''s name had been used in the partnership books as representing his father; and that the father, the present Appellant, was the real partner in the firm.

Now what is the evidence upon which the learned Judge has arrived at these conclusions : first, that ho acted as a partner in the firm; and secondly, that he, in effect, admitted that he was a partner in the firm ? The only evidence that he was a partner in the firm is the evidence of the broker, Hem Chunder Chatterjee, who says, in his evidence at page 12 of the paper-book, that Baikunta Nath Sen, amongst others, was a member of the firm. That is his statement. It is a bold statement, and no ground is assigned for it, nor are the means of knowledge of the witness deposed to. He also says that two other younger brothers of the principal Defendant, Akhoy Kumar Dutt, viz., Hurrypodo and Makhun Lall were also partners; and his reason for saying that they were partners was (this will be found in his evidence at page 17 of the paper-book) that they showed anxiety about Akhoy''s business, and " from this," he says, " I thought they were partners." This indicates upon what flimsy materials this witness ventures to swear as to who were, or who wore not, members of the firm. He swears without any qualification that the younger brothers, whose names. 1 have mentioned, were partners, because he thought they were partners, and he thought they were partners, because they showed anxiety about the business! He, pari ratione, probably swore that Baikunta was a partner, because, as in the case of the younger brothers, he thought he was a partner. It appears, however, from his evidence, that he never did any business personally with Baikunta Nath Sen, and that all the business he did was with Jadu and Akhoy, and that the only time he saw Baikunta was with reference to the settlement to which I am about to allude. It is, to my mind, impossible to hold, upon such flimsy evidence, that Baikunta Nath Sen was partner.

Then, it is said, that, at one or two interviews, which took place with reference to a settlement of the present claim, Baikunta Nath Sen admitted that he was a partner. There is really no reliable evi-dence to justify such a conclusion. Undoubtedly, Baikunta was interested in obtaining a settlement of the Plaintiff''s claim against the principal Defendants. His son was a partner in the business, he himself was a creditor of the business, and for these reasons he was not unnaturally anxious that the business should not be wrecked, but that it should be carried on. I think the fair inference to be drawn from the evidence is that he attended the intervies in question, not because he was a partner, but because he was interested, as I have stated, in the business being kept going, and was desirous of throwing any personal weight, which he might have, in the matter to-wards the adjustment of the difference between the Plaintiff and the principal Defendants. Notwithstanding what Redoy Nath Saha says at p. 22 that Baikunta spoke of "we" and "us," I think we should not be justified in holding, upon the evidence adduced by the Plaintiff, and absolutely denied by the principal Defendants and contradictory to the terms of the partnership books, that Baikunta was a partner. It would be almost dangerous to fix a man with the liability of a partner upon such evidence.

But the conclusion of Mr. Justice Sale is this. He finds that Baikunta''s son, Chandy Charan Sen, was a partner; this is admitted, but he goes on to find that the sou was benamidar for his '' father Baikunta, and consequently that Baikunta is liable. But no such case was presented in the pleadings, and no such case has really been tried, and there is no evidence, so far as I can see, to support such a conclusion. I have dealt with the case hitherto on the evidence adduced for the Plaintiff, but it must be remembered that the principal Defendant says--though his evidence must be received with very great caution as the Judge says he was not a satisfactory witness--that Baikunta was not a partner. It must be further remembered that it was against Akhoy Kumar Dutt''s interest to say this, as, if Baikunta were a partner, Akhoy''s personal liability in respect of this claim might be materially diminished. None of the Defendants say Baikunta was a partner, and the partnership books which were put in do not indicate that Baikunta was a partner, but do indicate who the partners were, and there is nothing whatever to show that Baikunta ever received any portion of the profits of this concern, or took any part in the business.

It is urged that an inference adverse to Baikunta must be drawn from the circumstance that he was not put into the box; seeing how loose and unsatisfactory was the evidence given on behalf of the Plaintiff, as to his being a partner, I do not think any such adverse inference ought to be drawn. He is an old man and doubtless like most natives very timid about giving evidence, especially having regard to the license sometimes allowed in cross-examination in this country. For these reasons it would be unsafe to say that Baikunta was a partner in the Defendant''s firm.

I now pass on to the case of the other Defendants. The other Defendants are the two younger brothers of the principal Defendant, Akhoy Kumar Dutt, who is admittedly a partner in the firm, and the executrix of a deceased brother, one Tincowry Dutt, who is alleged to have died about the year 1890. It was suggested, in the course of the argument, that these two younger brothers were infants at the time when this contract was entered into in 1896. But infancy was not pleaded, nor is there any evidence of it, though it is not an unreasonable inference to draw from the evidence, the evidence of the Plaintiff''s own witnesses, that one at any rate, if not both the younger brothers, were minors when the Defendant''s father died in 188G. I must, therefore, deal with their case on the footing that they were not minors at the date of the contract.

The learned Judge in the Court below does not accept the evidence of the elder brother, Akhoy Kumar Dutt, when he says that the business in question was a separate business started by him with, funds supplied by an uncle and others in 1892. He does not, however, say that he disbelieves his statement as to when the business was started.

I ought to have mentioned that there was an ancestral business, a gold and silver business, which belonged to the father, and which was carried on after his death jointly for the benefit of the family. If, as appears to be the case, the rice business was not started until 1892, it was not an ancestral business. The case of the Defendants is that the rice business was a separate and not a joint business. The learned Judge, in his judgment on this part of the ease, says, that the presumption, at any rate, is, that this business was started by Akhoy Kumar and Nundo. Gopal Dutt, with funds belonging to the joint estate, and that this presumption has not been rebutted. He decrees them to be jointly and severally liable upon this presumption alone. Now, if Akhoy Kumar Dutt''s evidence is to be believed, the presumption is rebutted.

But whilst, as I have said before, his evidence must be accepted with caution, still he was making a statement, so far as the Plaintiff''s claim went, adverse to his own interest, and it must be remembered that his evidence is supported by the books which are produced, and I have heard nothing in the course of the argument to indicate that those books are false, or have in any way been falsified for the purpose of this suit. Moreover, this story gains further support from the circumstance that the other members of the joint-family are before the Court, and none of them set up that the rice business, which apparently produced some, if not a large, profit, was a joint business, whilst the books show that the profits were appropriated exclusively by the eldest brother, and those whom he admits to have been his partners. On the whole, I think, there is sufficient evidence to rebut the presumption which is the basis of the learned Judge''s judgment.

Again, it is not an unfair inference from the facts proved that the younger brothers, Hurrypodo and Makhun Lall Dutt, were minors in 1886, and it is difficult to see what power the elder brother had to start this new business so as to bind the infants, for it is not suggested that the eldest brother did so as karta of the family, or that there has been any subsequent ratification by the minors. It is suggested, as regards these Appellants that they evinced great interest in trying to get the Plaintiff''s claim settled, and from this circumstance we are invited, in their case also, to draw the inference that they were partners. I decline to draw such an inference from such a circumstance.

These observations apply equally to the case of the executrix of Tincowry Dutt, and I fail to see how, in any view, a personal order could have boon made against her, or any order, beyond one making her liable to the extent of the assets which came into her hands as executrix. It is conceded, that Tincowry Dutt is dead, though the learned Judge is not prepared to accept the evidence of Akhoy Kumar Dutt as to the precise date of his death.

I cannot conclude without remarking that the case against those Appellants, now set up is not the case that the Plaintiff set up or intended to set up by his pleadings. What he intended to set up was a case of contractual partnership, and having failed in establishing that case, the present case is set up, and is, in my opinion, a mere after-thought. For these reasons, I am unable to agree with Mr. Justice Sale, and consequently the appeal, must succeed, and the suit, as against the present Appellants must be dismissed. The Appellants must have their costs here and in the Court below.

Prinsep, J.

I am of the same opinion.

Ameer Ali, J.

I also agree in decreeing the appeal with costs.