CHUNILAL BHAGWANDAS GANDHI Vs. AHAMED ROWTHER

JUDGEMENT

(1.) The suit out of which this Appeal arises, was for the recovery of damages for breach of contract, to supply 1000 bags of cotton seeds, and was instituted ostensibly on behalf of a partnership, described in the cause title in the plaint, as M.A. Ahamed Rowther and Brother, by partner M. A. Noor Rowther. The defendant was described as a firm, represented by two partners whose names were set out. The defendant contended inter alia, that the partnership being unregistered, the suit is not maintainable by reason of S.69 (2) of the Partnership Act, 1932.

(2.) The partnership aforesaid, originally consisted of M. A. Ahamed Rowther and his brother Noor Rowther. After the death of the former in the year 1937, his eldest son Mohamad Moideen Rowther, was admitted to the partnership in December 1940. The partnership was registered under certificate Ext. A 24 dated the 8th December, 1941. During the pendency of the suit, Noor Rowther died in the year 1953, and Abdul Rahiman Rowther, another son of deceased M. A. Ahamed Rowther, applied for his name being entered on the record as the partner of M. A. Ahamed Rowther and Brother and he supported his application by an affidavit, in which he affirmed, that not only then, but also on the date of the suit, he was the other partner in the firm. The application was ordered and his name was brought on record in the place of deceased Noor Rowther. At the trial Pw. 1, a together of Ahamed Rowther, and the manager of the firm, gave evidence, that after the death of Ahamed Rowther, his son presumably Mohamed Moideen Rowther and Noor Rowther constituted the partnership, and that after Noor Rowthers death in July, 1953, his son and Ahamed Rowthers son were the partners. It was never his case then, that there was an interregnum as seems to be the case of the plaintiff now, when there was no partnership, and Noor Rowther was the sole proprietor. In dealing with issue I relating to the maintainability of the suit, the learned Subordinate Judge also seemed to think, on the arguments addressed to him, that the partnership was subsisting at the date of the suit, but he did not enter a decisive finding on the issue as the defendant did not press this issue. A decree was ultimately passed against the assets of the defendant firm, and against its two partners personally. This appeal was preferred by the defendant firm represented by the two partners, named specifically, and as described in the plaint

(3.) When this appeal came on for hearing before another Bench of this court, it was noticed, that the objection raised under S.69 (2) of the Partnership Act had not been disposed of by the Subordinate Judge; it was then felt, that in law, the point ought not to be left undecided, whether the defendant ant pressed the contention or not. The plaintiffs counsel then wanted an opportunity to adduce further evidence to prove the fact of registration; accordingly, in calling for a finding, both parties were allowed an opportunity to adduce their evidence.