MAHADEODAS Vs. GHERULAL PARAKH

JUDGEMENT

(1.) The appellants Mahadeodas Maiya and his four sons are members of a joint Mitakshara family carrying on business under the name of Mahadeodas Surajmall at Darjeeling. The respondents are members of another joint Mitakshara Hindu family. They are Gherulal Parakh and his three minor sons. They carry on business at Darjeeling under the name and style of Ramlal Gherulal. The appellants brought the present action for recovery of Rs. 5300 as due from the respondents on account of two enterprises carried on by appellants and respondents as partners. Both these were for "forward contracts for purchase and sale of wheat". In one altogether 32 forward contracts were said to have been made between the partnership and the firm of Mulchand Guljari-mal, merchants of Hapur. The document on which the offer for the partnership was first made has been marked Ex. 6(c), There was a previous suit by the appellants against the respondents on a claim over dues on account of the losses incurred in those transactions. A decree was passed in that suit in the terms of an award of arbitrators to whom the dispute had been referred. The further claim in connection with the same enterprise of forward contracts with Mulchand Guljarilal was put forward in the present suit, on the case that the accounts had not been finally settled between the partnership and Mulchand Guljarilal at the time when the previous suit was brought. In the other enterprise said to have been commenced on the basis of the letter marked Ex. 6(d), altogether 49 forward contracts for wheat are said to have been made between Baldeo Sahey Surajmall of Hapur arid the partnership. All the contracts however resulted in loss and the appellants, had, it is averred, to pay Rs. 7065 for settlement of these claims, half of which is sought to be recovered in the suit. Other items are made up of Rs. 64/13/6 on account of telephone charges in connection with these contracts and Rs. 1088-14-3 on account of interest.

(2.) The defendants resisted the claim on three grounds. First they contend that they had no connection with these contracts arid that their officer Sewkumar Vyas entered into these speculative transactions jointly with the appellants without knowledge of the respondents and without any authority from them. Next they contend that the forward contracts were in reality wagering contracts and consequently the partnership farmed for the business of such forward contracts was illegal and so no claim for recovery of amounts paid by the appellants for the business of these partnership is enforceable. Thirdly, it was contended that in any case the suit must fail because of the provisions of Section 69 of the Indian Partnership Act.

(3.) The learned Subordinate Judge was of opinion that as there could be no partnership between two joint Hindu families as such, the provisions of the Indian Partnership Act were not attracted to this case and Section 69 of that Act was therefore no bar to the suit. He held also that the agreements to enter into forward contracts with Baldeo Sahey Surajmull and Mulchand Guljarilal were made by Sewkumar Vyas in exercise of the authority he had from the defendants in such matters and that the defendants were in law not parties to these agreements. Lastly he held that the contracts with the Hapur firms were wagering contracts, that the agreement to enter into such contracts were void, "as the object was forbidden by law and opposed to public policy". Accordingly he dismissed the suit.