PARASRAM HARNANDRAI Vs. CHITANDAS

JUDGEMENT

(1.) This is an application for revocation of leave which has been granted to the plff., under the provisions of Clause 12 of the Letters Patent. The facts are briefly as follows: There is a shop, situate at Katra Tobacco, Khari Baoli, in Delhi, under the name & style of 'Peramal Chetandas. The plff. is a registered partnership firm, carrying on business under the name & style of Parasram Harnandrai at 129 Cotton Street, Calcutta & also at Delhi. The plff. firm claims the said business of 'Peramal Chetandas' to be a partnership of which the partnership firm is one of the partners. The deft. Chetandas says that he is the sole owner of the business which bears his own name & that of his father Peramal. The process by which the plff. firm claims to have become a partner is set out in the plaint & is as follows: (1) In or about 5-3-1945, one Rajinder Kumar, Bhuramal & Mangalchand, entered into a 'verbal agreement in Calcutta, for the purpose of carrying on business in co-partnership under the name & style of 'Gourishankar Radheshyam.' (2) In such an agreement, Rajinder Kumar was really representing the plff. firm. (3) The plff. firm became agents of Gourishankar Radheshyam in Calcutta. (4) On 12-10-1946 Rajinder Kumar died. (5) On 17-4-1947 Bhuramull died. (6) The shares of the parties thereupon were altered, plff. firm getting 5/8 & Mangalchand 3/8. (7) On 28-6-1947, Chetandas was taken into the partnership under a 'verbal agreement' whereby the tenancy right of the shop-rooms & godowns was to belong absolutely to the plff. firm, name of partnership to be altered to 'Chetandas Gourishankar' & the shares were altered, Plff. having 2/8, Chetandas 5/8 & Mangalchand 1/8. (8) On or about 28-6-1949, the share of Mangalchand was taken over by plff. & name of the firm changed to 'Peramal Chetandas.' All this was 'verbal.' (95 It was stated that Chetandas committed various breaches of the partnership, agreement & it was no longer possible to carry on business in partnership.

(2.) It will thus be seen, that 'Peramal Chetandas' only comes into being in June 1949. Part of the cause of action is stated to have arisen in Calcutta, because the original agreement relating to Gourishankar Radheshyam is stated to have been in Calcutta. I do not see, how it is really possible to connect 'Peramal Chetandas' with the original firm of Gourishankar Radheshyam in the manner that it is sought to be done. When a partner dies, the firm is dissolved, in the absence of a contract to the contrary. (Section 42, Partnership Act.) No contract to the contrary is pleaded, & the facts pleaded show that the original partners have changed, the shares have changed, the name has changed, & in January 1947, the entire complexion of the business changed, inasmuch as the shop-rooms & godowns were to belong exclusively to one partner, whereas another partner was to be in exclusive charge of conducting the business. Mr. Basil, appearing for the plff. says that there is sufficient pleading to show that the present firm is the same as the Original firm of Gourishankar Radheshyam I fail to see how that is so, at least on the pleading.

(3.) The next thing to be considered is the prayers. There is the usual prayer for dissolution of partnership & accounts. But there is also a prayer asking for 'Delivery of possession of the shops & godown herein mentioned.' Connecting this with the allegations in para. 6 (a), the question arises as to whether the suit is one for possession of an interest in land, & therefore, a suit for land.