JAMUNA RAM BHAKAT Vs. HEERALAL AGARWALLA AND CO

JUDGEMENT

(1.) This appeal arises out of a suit for a declaration that the shares of the plaintiffs in certain immovable property comprising a house were not affected by two sales held in execution of decrees obtained respectively by defendants 1 and 2. There was a further prayer for a declaration that the plaintiffs interest in the said property was not affected by a mortgage decree obtained by defendant 3, which decree had not been executed. The material facts may here be stated. There was an undivided Hindu joint family governed by the Mitakshara School of law the founder of which was one Moti Ram Bhakat. Moti Ram had four sons Balgovinda, Motru who is defendant 4, Ram Kissen who is defendant 5 and Sri Kissen who is defendant 6. The plaintiffs are the two sons of Balgovinda. Defendants 7, 8, 9, 10, 11 and 12 are the sons of defendant 4 Motru. The name of defendant 7 is Jodhan Prosad, and the name of defendant 9 is Bhagaban Das. Defendants 13 and 14 are the sons of defendant 6, Sri Kissen. Defendants 1, 2 and 3 are strangers. In the year 1927 a shellac business was established in the names of Moti Ram and Ram Kissen which was ostensibly a partnership but the business failed in that very year. In that year Jodhan Prosad purchased a pucca house which is the property in dispute. It is admitted that it was purchased in the name of Jodhan Prosad alone. The purchase was effected with the funds of the joint family.

(2.) In 1928 a jute business was established under the name and style of Jodhan Prosad Ram Kissen which was also ostensibly a partnership. Both the shellac and jute businesses were carried on in the house which Jodhan Prosad had purchased. In 1927, defendant 1 obtained a decree in a suit which he instituted on the original side of this Court against the firm of "Moti Bhakat Ramkissen." In this suit the firm was described as a partnership business. After defendant 1 had obtained his decree, he made an application under the provisions of 0. 21, E. 50, Civil P. C, for leave to proceed against the partners individually, but he was given permission to sell the interest of defendant 5 Ram Kissen only. The decree was transferred to Murshidabad and in execution thereof the property was sold on 1 July 1938. In 1931, defendant 2 instituted a suit in the Court at Chaibasa against the firm "Jodhan Prosad Bhagwandas" which was described as a partnership business, and also against defendant 5 Ram Kissen and defendant 7 Jodhan Prosad, individually. The decree in which that suit terminated was transferred to Murshidabad and in execution of it the property in dispute was sold on 1 October 1937. In 1937, defendant 3 instituted a suit in Murshidabad where the property is situated against defendant 7 Jodhan Prosad individually on the basis of a mortgage said to have been executed by this defendant alone, and obtained a decree. In these proceedings the property was described as the sole property of defendant 7. As stated above, this decree was never executed.

(3.) The findings arrived at by the lower Appellate Court were, firstly, that the property belonged to the firms of "Moti Bhakat Ramkishen" and "Jodhan Prosad Bhagwandas;" secondly that the firms were actually joint family businesses and the decrees obtained by the defendants amounted to decrees against the joint family; thirdly, that plaintiffs 1 and 2 were members of the joint family; fourthly, plaintiffs 1 and 2 had rights to the property as members of the joint family; and fifthly, that plaintiffs 1 and 2 have throughout been in possession of this property. The only question which arises in this appeal is whether the shares of the plaintiffs in the house were affected by the sales held in execution of the decrees obtained by defendants 1 and 2. It is evident that the decree obtained by defendant 1 was obtained against the partnership firm of "Moti Bhakat Ramkishen" and the decree obtained by defendant 2 was against the firm of "Jodhan Prosad Bhagwandas" and against Jodhan Prosad and Ram Kissen individually. It is also obvious that the procedure invoked in the suits which terminated in these decrees was the procedure embodied in the provisions of Order 30, Civil P.C. In Lalchana Amonmal V/s. M.C. Boia & Co. it was held that a Hindu undivided family carrying on business is not entitled to file a suit as a firm under the provisions of Order 30, Civil P.C. In that case, Buckland Ag. C.J. quoted his own judgment in an earlier un-reported case, Shivaprosad & Sons V/s. Ormerods (India) Ltd., and the following passage in the earlier judgment has an important bearing on the question raised in the present appeal: A firm may not be an entity known to the law, as a company or a statutory corporation is known to the law, but nevertheless the term "firm" has been defined by Section 289, Contract Act, which by a definition of the word "partnership" makes it clear that agreement is necessary and says : Persons who have entered into partnership with one another are collectively called a firm. There may be, and no doubt, are, certain elements common to a joint family business and to a partnership firm as so defined but there are also very important distinctions. For instance, a joint family business does not involve agreement at its inception, children are born into it; nor is it dissolved by death as is the case with a contractual partnership. Another point to which my attention has been drawn is that a karta of a joint family business may sue alone in his own name on behalf of the business which is not permissible in the case of a partnership, for no one partner may sue. Either all may sue in their Individual names or they may sue collectively in the name of the firm as prescribed by Order 30.