LALJI NENSEY LUDHA Vs. KESHOWJI PUNJA

JUDGEMENT

(1.) This is an appeal from the dismissal by Mr. Justice Beaman of a suit filed by the plaintiff, as the sole surviving partner of a firm carried on by himself and his father Nensey Ludha in the year 1903, in which year the defendants incurred certain obligations to that firm. The plaintiff alleged that his father died on the 4th of February 1905 and that the plaintiff then became the sole owner of the firm. The defendants put in a written statement in the year 1906, putting in issue the allegation that the present plaintiff was a partner with his father, Nensey Ludha.

(2.) The suit came on for hearing on the 8th July 1911, and the first issue raised was whether the plaintiff was a partner with his father, Nensey Ludha, in the firm of that name. Certain evidence was recorded. The plaintiff alleged a partnership and he was cross-examined, and as a result of the hearing on the first day, it was apparently suggested that the plaintiff could not succeed unless the plaint was amended; and on the 15th July, in spite of the objection of the defendants, an amendment was allowed whereby the plaintiff altered his plaint in certain respects. The learned Judge states the circumstances, under which the amendment was allowed, as follows: "This suit was originally instituted by the plaintiff as the surviving partner in a firm. An objection was taken that the firm, alleged to consist of the plaintiff and his father, was in no real sense a partnership, and the suit as framed was bad on that account. Issues were raised and some evidence was gone into, at the close of which it certainly did appear that the Plaintiff would have little chance "of establishing the alleged partnership. He was granted an adjournment to amend the plaint. This has now been done and the plaintiff sues as the surviving member of a joint Hindu family originally consisting of his father and himself alone, but at the present day consisting of himself and his two minor children, born after the filing of the suit, and his mother." The amendments in the plaint are as follows: The first para, as it originally stood was: "In the year 1903 the plaintiff and his late father Nensey Ludha were carrying on business as grocers in Bombay in partnership with each other in the name of firm of Nensey Ludha." By the amendment the words "in partnership with each other" were struck out and the following sentence was added, namely: "The said business was an asset of a joint and undivided Hindu family, the only male members of which were the plaintiff and his said father." In the fourth para, instead of the words, "the plaintiff is now the sole owner of the said firm of Nensey Ludha" is substituted, "the plaintiff thereupon became the sole owner of the said firm of Nensey Ludha by survivorship." And para. 9 (a) was added stating as follows: since the filing of this suit, the plaintiff has had two sons born to him. The plaintiff is the manager of the joint and undivided Hindu family consisting of himself, his said two sons and his mother."

(3.) There is, therefore, no allegation that the liability of the defendants was incurred to a firm or a business which at that time was being carried on by the plaintiff as manager on behalf of his minor sons. According to the plaint, they were not in existence at the date of the cause of action or at the date of the filing of the plaint. It has been contended on behalf of the respondents that the effect of the amendment of the plaint is to delete the allegation that the plaintiff and his father carried on business in partnership and to substitute a claim based upon the right of the plaintiff to sue on behalf of himself and his minor children as members of a joint Hindu family possessed of a cause of action in which they are all equally entitled, and it is contended that upon that footing, the plaintiff cannot sue alone, and that if his minor sons should be joined, which they have (sic) been, the suit would be barred by limitation. The learned Judge in the lower Court acceded to that argument and, considering himself to be bound by the decision of this Court in Naranji v. Mohi Govanji 9 Bom. L.R. 1126 held that there was a rule that all members of a joint Hindu family in existence at the date of the filing of the plaint were necessary parties and that the same rule extended to the members of a joint family born between the filing of the plaint and the decree.