KHARIDAR KAPRA COMPANY, LIMITED Vs. DAYA KISHAN

JUDGEMENT

(1.) This suit was brought by the Kharidar Kapra 1Company, a limited liability company registered under the Indian Companies Act, carrying on business at Cawnpore as importers of and dealers in cloth. They sued through their managing director Raghunandan Lai. Their cause of action was stated to arise out of the following facts. There had been in Cawnpore one Girdhari Lal, a broker and also a dealer in cloth on his own account. This Girdhari Lal undoubtedly had for a number of years relations of various kinds with the plaintiff company. He earned brokerage from them in connection with their dealings, and we see no reason to doubt that, at times at any rate, he entered into special contracts with them, as for instance by offering to bear some specified share in the expenses of a particular deal in cloth and to share in the resultant profit or loss in the same proportion. These of course were contracts of partnership, pure and simple. In other cases apparently, Girdhari Lal would take a specified number of bales of cloth on his own account out of some large consignment ordered by the company and would leave the cloth, of which he thus became the owner, in the hands of the company, subject to a general adjustment of accounts between them after the cloth had been sold. This Girdhari Lal died on the 19th of August, 1913, and the suit out of which this appeal arises was instituted on the 3rd of January, 1917. There were five defendants impleaded. One was the widow of Girdhari Lal and another was the widow of his predeceased brother Banwari Lal. The second and third defendants are minors, being the sons of the aforesaid Banwari Lal and therefore nephews of Girdhari Lal, although it has been alleged that one of them had been adopted by Girdhari Lal as his own son ; this point, however, is immaterial. The first and principal defendant was one Daya Kishan whose father, Mangat Rai, was the own brother of Sham Lal, father of Girdhari Lai. It was alleged in the plaint that the ledger account which the company kept up from year to year showing all their dealings with Girdhari Lal was continued after his death. There were sales of cloth to Girdhari s credit and he was charged with the price of cloth purchased on his account, in accordance with the alleged agreement that this charge should only be brought into the account after the cloth had been disposed of. Further, it was alleged that the profit and loss account of a large number of transactions in which Girdhari Lal had been a partner was finally made up, some years after Girdhari s death, in the month of July, 1916. In fact it was alleged that accounts had been made up twice, once about February, 1915, and the second time in July, 1916.

(2.) The plaintiff company alleged that all the persons impleaded as defendants were members of a joint undivided Hindu family with Girdhari Lal deceased; that Girdhari Lal acted as the head and manager of that joint family, that the business relations of the company, whatever they amounted to in law, were with the joint family as such, and therefore continued uninterrupted after the death of Girdhari Lai. It was further alleged that Daya Kishan himself in substance accepted this position; that he carried on after the death of Girdhari Lal various branches of the business which his cousin had hitherto been conducting and in particular, dealt with the plaintiff company as representative of the joint family in succession to Girdhari Lai. It was alleged that both the settlements of account previously referred to were made with Daya Kishan and that the accounts were checked and passed by him. It was further alleged that brokerage due ffom the plaintiff company to Daya Kishan had been credited in the ledger account kept up in the name of Girdhari Lal, with Daya Kishan s full consent. Finally it was alleged that on the 22nd of September, 1916, Daya Kishan had paid in cash to the plaintiff company a sum of Rs. 5,000, on the understanding that this payment was made in reduction of the balance due to the company shown in the ledger account against Girdhari Lai.

(3.) After allowing credit for this item, the company claimed a sum of Rs. 2,736-9- 6 with interest. There were instituted, at or about the same time, two other suits, in one of which Daya Kishan claimed from the plaintiff company the return of the Rs. 5,000 paid by him on the 22nd of September, 1916, upon allegations of fact which we shall consider in their proper place. There was also another suit brought by Daya Kishan in the Munsif s Court claiming the brokerage one to him from the Kharidar Kapra Company. This last suit was transferred to the Court of the Subordinate Judge, and the three suits were tried more or less together and disposed of in a single judgment. We have three appeals before us, which have been argued out together, against the decrees passed by the Subordinate Judge in the three suits. It will, however, in our opinion, be more convenient to deal with the three appeals separately. This judgment relates to the suit brought by the Kharidar Kapra Company as plaintiff against the defendants, who are alleged to be the surviving members of the joint family of which Girdhari Lal was at one time the head. The learned Subordinate Judge has found upon all issues of fact and law against the plaintiff company. He has gone so far as to hold that, on the evidence, it is not proved that any debt is due, or ever was due, from Girdhari Lal or his successors in interest to the plaintiff company. In one sense this is, of course, the main issue in the case; but as it happens it is not necessary for us to deal with it in disposing of this appeal, and it is only involved to a certain extent in the decision which we shall have to pronounce on one of the other appeals now before us. Apart altogether from the question whether the plaintiff company had or had not a claim against Girdhari Lal at the moment of that gentleman s death, and against his estate afterwards, the trial court has found, firstly, that Daya Kishan was never a member of a joint undivided Hindu family with Girdhari Lal and could in no way be made liable for any claim which the plaintiff company might hare against his cousin s estate. Further, the court below has found that, as regards the remaining defendants in the suit, any claim which the company might have had was allowed to become barred by limitation, under Article 106 of the first schedule to the Indian Limitation Act, not having been brought within three years of Girdhari Lai s death. In fact the trial court holds that whatever partnership existed between the plaintiff company and Girdhari Lal was a contractual relation with that gentleman personally and came to an end with his death. For the disposal of this appeal it is really sufficient for us to consider whether the above findings of fact are correct and whether the inferences of law which follow therefrom involve the dismissal of this suit.