PRATAPCHAND RAMCHAND AND CO Vs. JEHANGIRJI BOMANJI CHINOY

JUDGEMENT

(1.) IN this suit the plaintiffs claim to recover Rs. 3,880-5-0 with further interest thereon at two per cent, per Gujarati month with monthly rests from October 13, 1939, till payment, a declaration that they have a first charge on certain property consisting of furniture and a motor car mentioned in the plaint, and for a preliminary mortgage decree in respect of that property. The defendant denies the amount alleged to have been advanced, and alleges that on a proper account being taken on the basis set out in paragraph 2 of his written statement a much smaller sum than that claimed would be found due to the plaintiffs. The defendant also puts the plaintiffs to prove their allegation that they are a firm, registered under the INdian Partnership Act, 1932. Five issues were raised of which the first is, whether the plaintiffs are a firm duly registered under the INdian Partnership Act of 1932. It was agreed by learned counsel that I should try that issue as a preliminary issue.

(2.) IN support of that issue the plaintiffs tendered a certified copy of the registration, exhibit B, which shows that the firm was registered on November 13, 1933, under the name of Pratapchand Ramchand & Co. The document gives the particulars which are required by Section 58(i) of the INdian Partnership Act, and it shows that at the date of registration there were three partners, viz. (1) Pratapchand Ramchand, (2) Chhogamal Dhanaji, and (3) Chunilal Idanji. On behalf of the defendant two letters were put in collectively as exhibit No.1. They are both dated January 24, 1940. The first is from the defendant's solicitors to the plaintiffs' solicitors. It refers to the fact that on taking search of the Register of Firms the solicitors found that the firm was registered with three partners and that in the affidavit made by Mr. Chhogamal, who is one of the partners, only two names were disclosed, and the plaintiffs' attorneys were requested to let the defendant's attorneys know why the name of Pratapchand Ramchand was not disclosed in the affidavit. IN their reply the plaintiffs' attorneys said that Pratapchand Ramchand died before the date of the transaction in suit, and that was the reason why his name was not mentioned in the affidavit, though the names of the surviving partners were shown in the affidavit.

(3.) FOR the purpose of determining whether this argument is sound it is necessary to refer to certain Section s of the Indian Partnership Act. Section 42 of the Act provides that subject to contract between the partners a firm is dissolved, among other things, by the death of a partner. It will be seen from exhibit B that the duration of the partnership was therein described as a partnership at will. The partners therefore had not made any contract providing that the firm should be deemed to continue notwithstanding the death of a partner. I therefore proceed upon the footing that this firm was in fact dissolved on the death of Pratapchand Ramchand.