C E GREY Vs. WALKER GOWARD AND CO

JUDGEMENT

(1.) In this suit, Mr. Charles Edward Grey, the Official Assignee of Bengal, and as such assignee of the property of Gurmukh Roy Kadia, an insolvent, sues three gentlemen, who carry on business in co-partnership together under the style of Messrs. Walker, Goward and Company, to recover Rs. 3,199 2 9 as damages in respect of a breach of two contracts for the sale of sugar. The contracts were both dated the 15th of August 1910, and were both for the sale of 50 tons of Java sugar delivered over July, August, September and October 1911, by instalments of 12 1/2 tons each month.

(2.) On the 15th June 1911, Gurmukh Roy Kadia was adjudicated an insolvent, he being in the adjudication order described as carrying on business under the style of Gurmukh Roy- Ramesha and no steps were taken by the Official Assignee until the 13th of September 1911 for the purpose of completing these contracts. On the 13th of September 1911, Mr. Grey wrote to the defendants in these terms: "I have to give you notice that you have not yet sent me the arrival notice in terms of the above contracts. I am at present prepared to pay for and take delivery of the goods etc. etc." No notice had been given of the arrival of any goods by the defendant to Mr. Grey. It appears from the evidence that the first lot of the July goods did not arrive here until August. That appears so from the evidence given on behalf of the defendants. The following issues were settled between the parties: (1) Was the insolvent the sole proprietor of the firm of Gurmukh Roy-Ramesha? (2) Did the plaintiff or the insolvent ever tender cash before calling upon the defendants to deliver the goods; if not, is the plaintiff entitled to call upon the defendants to deliver? (3) Was the plaintiff bound to express his readiness and willingness to perform the contract in suit within a reasonable time of the insolvency? (4) Was the plaintiff in fact ready and willing to perform the contract? (5) Did the defendants, by stating, in their letter of 21st September 1911, that they had already sold the sugar, refuse to give delivery and commit a breach of the contract? On the first issue, the evidence stands in this way. The insolvent Gurmukh Roy is a member of a Mitakshara Hindu family: he is in fact the karta, of the family. He had two sons both of whom are deceased and the eldest grandson, it matters not for this purpose whether he is an adopted son of the deceased son or a natural born son, is Ramesha: and in accordance with the usual practice adopted amongst Hindus who belong to this school of Hindu Law, the firm is carried on in the name of the karta of the family Gurmukh Roy, and in the name of the eldest grandson, Ramesha.

(3.) There cannot be any doubt in cases of families of this nature that there is a presumption of jointness, not only of their property but even as regards business which they carry on, and if any member sets up that a particular portion of the property forms his peculium or separate property, the onus of proving that lies on the particular member who sets up that case. It seems to me in this case that the Official Assignee has got the rights of Gurmukh Roy and no one else, and the onus is upon him to show that this business was in fact a separate business of Gurmukh Roy.