BAI APPIBAI Vs. KHIMJI COOVERJI

JUDGEMENT

(1.) Plaintiff has filed this suit for a declaration that she was validly married to the defendant on March 31, 1934, at Ujjain, which is in the Gwalior State, and for an order for separate maintenance and residence against the defendant. She also claims certain ornaments or the price thereof which defendant had, according to her, promised to give her at the time of the marriage, and a further sum of Rs. 6,200 which represents the amount of her indebtedness to different creditors which he had also promised to pay at the same time. The defendant contends that this Court has no jurisdiction to try the suit. He denies that there was any ceremony of marriage according to the Hindu rites. His case is that he went through a ceremony of marriage, but some of the essential marriage rites were not performed. He also contends that the marriage was not registered in the records of the Gwalior State, as required by the law of the State, and was therefore not valid, but that contention was abandoned at the hearing. Defendant further contends that he was induced to go through a marriage ceremony on certain representations made to him by the plaintiff or on her behalf and with her authority, which representations turned out to be false and therefore rendered the marriage null and void in law. He denies liability to provide for the separate maintenance and residence of the plaintiff, and for the ornaments and moneys claimed by her.

(2.) The first issue is one of jurisdiction. It is alleged in the plaint that this Court has jurisdiction, as defendant resided and carried on business in Bombay on the date of the suit, and a part of the cause of action arose in Bombay. Defendant denies this. According to him he has been living permanently in Ujjain since 1930, and only occasionally comes to Bombay, and he did not carry on business in Bombay at the time of the filing of the suit or for a considerable time prior thereto. He had a family house at Nepean Sea Road in Bombay where he formerly lived jointly with his two sons Ramdas and Gopaldas, but there was a partition between him and his sons in 1926-1927, since when the Nepean Sea Road property as well as another property were held by him and his sons in severalty. Thereafter, in 1930, a suit was filed against him and another by the Indian Cotton Co., Ltd., and another suit was filed by his son Gopaldas against him and others. In both those suits a consolidated consent decree was taken on April 17, 1931. In pursuance thereof there was a deed of partition executed on May 27, and he ceased to have any interest in the properties, as he assigned his interest to his sons in consideration of their taking over his liability to the Indian Cotton Co. and paying certain debts due and payable by him. It was alleged that in the deed of partition the defendant has been described as a Bhatia Hindu inhabitant of Bombay, that as late as November 1933 he transferred a house at Nasik belonging to him to certain purchasers, and that in the conveyance he was also described as an inhabitant of Bombay. None of these documents has, however, been produced in Court. It is true that defendant lived in the Nepean Sea Road house till May 1934, and in the Directory of the Bombay Telephone Co. issued in June 1934 the telephone number of the house, No. 42981, still stood in his name. Defendant, however, stated that the house had since been sold by his sons, and that at present he was staying with a friend at Ville Parle outside Bombay. The defendant is also a Justice of the Peace for the town and island of Bombay according to the notification in the Bombay Government Gazette, and it was argued that as such he could not be a permanent resident of a place outside British India. This is all the evidence as to his residence, and I cannot say that it is sufficient for the purpose of showing that the defendant dwelt in Bombay at the date of the suit.

(3.) With regard to the defendant's business it was admitted that he was a partner in the firm of Ramdas Khimji & Co. which carried on business as Muccadams in Bombay. He said that that firm was dissolved at the end of 1933. but it appears that on September 30, 1933, the firm applied for registration to the Registrar of Firms, and it was registered on December 12, 1933, under number 2785, showing the defendant as one of the partners of the firm. He said that there was a resolution passed by the members of the firm some time in December f or its dissolution, but beyond his word there is no evidence of the dissolution, and in any event the accounts of the partnership have not yet been made up. The defendant, however, admitted that; on the dissolution another firm was started in the beginning of 1934 under the name of Ramdas Khimji & Brothers in which he was also a partner. That firm also did the business of Muccadams. He became a partner in the new firm as he was desirous to recoup his share of the losses of Ramdas Khimji & Co., but that he resigned as a partner on May 26,1934, and gave letters of resignation to his .sons as of that date, after which the sons stopped paying him anything out of the firm. These letters were not referred to by him until his re-examination. It is alleged in them that he retired because of his old age. In his evidence he said that he retired both on account of his old age as well as on account of the plaintiff's claim against him. Realising that no claim had been made on May 26, he said later on that he retired because his sons wished him to retire on account of the disputes that arose between them and him over his marriage. On his own showing he was not taking any active part in the business for some time, and there was, therefore, no reason why his sons wanted him to retire from a business in which he took no active part. His sons, however, advertised in the Bombay Samachar of June 1, 1934, that he had retired as from May 26, but defendant put in a counter-advertisement on June 14 stating that he had not. It suits him now to say that in fact he had retired from the business in order to support his defence of want of jurisdiction. The genuineness of the letters of resignation has been doubted, and I do not place much reliance on them. There is no acceptance of the resignation by the sons. There is also no writing that after his resignation he would not be liable for losses, and for all purposes he still continues to be a partner and can claim accounts from the other partners of the firm. There is no evidence that he received a certain sum per month, and that his sons have stopped payment, beyond his bare word which I am not prepared to accept. On his own admission -contained in his advertisement he has not retired from the firm, and presumably he is still carrying on business in Bombay. It is not necessary that he should for the purposes of the business continue to stay in Bombay, nor need the business be carried on by him personally. None of his sons, nor any of his other partners, has been called to give evidence in support of what he stated. Defendant has also a current account with various Banks in Bombay on which he has been drawing from time to time, and even after the suit was filed. He is a director of several mills and attends directors meetings in Bombay. The firm had also a " pedhi " in Bombay, though it is said to be no longer in existence. Taking all these facts and circumstances into consideration I hold that the defendant did carry on business in Bombay at the time of the commencement of the suit.