LALA RAM KUMAR Vs. KISHORI LAL

JUDGEMENT

(1.) This is an application in revision, against an order of the learned Small Cause Court Judge of Aligarh by which he dismissed the suit brought on the basis of a bond, dated 27 October 1936, on a preliminary ground. There was a firm, Musamal Ram Kumar, consisting of two partners, Musamal and Ram Kumar. On 27 October 1936, the bond in suit was executed by one Pt. Kishori Lal in favour of the firm. Musamal died on 19 April 1941, leaving a widow, Mt. Ansuiya Devi, and an adopted son, Jaggomal. The adoption is disputed and we might leave it at that. A suit - Suit No. 65 of 1942 - was instituted with an allegation of payment of Rs. 4 on 18 September 1939, in order to obviate the bar of limitation. On an objection that it was barred by Section 69, Partnership Act, Act 9 [IX] of 1932, the suit was withdrawn on 17 August 1942, with liberty to file a fresh suit and the suit, which has given rise to the present application in revision, was instituted on 18 September 1942. Various pleas were raised in defence but before we deal with them, we might mention the frame of the earlier suit, which will have considerable bearing upon the fate of the present suit.

(2.) The plaintiff purported to bring it on behalf of the firm, Musamal Ram Kumar, with an allegation that, on the death of Musamal, half of the assets belonged to him and the remaining half to the widow and the adopted son, inasmuch as they were admitted as partners and the firm continued. It was pleaded in defence that the firm was a registered firm and the death of Musamal brought about its dissolution under Section 42 of the Act and, as the new firm was not registered, Section 69 operated as a bar to the suit. It was in these circumstances that the Court allowed the earlier suit to be withdrawn and granted liberty to bring another suit. The present suit was instituted by Ram Kumar in his personal capacity with an allegation that the death of Musamal, on 19 April 1941, brought about a dissolution of the firm and his widow and the adopted son were being impleaded as defendants 2 and 3. The execution of the bond was admitted, but the bars of limitation and of Secs.69 and 72, (sic Section 42), Partnership Act, were pleaded. Consideration was also denied. It was also pleaded that the deceased Musamal died leaving daughters who Ought to have been impleaded as party and the suit was, there, fore, bad for nonjoinder. Certain other minor pleas were raised which need not detain us. The learned Small Cause Court Judge held that the absence of the daughters from the array of parties in the presence of their mother, did not cause any non-joinder. He held that the suit was not barred by Section 72, (sic Section 42), Partnership Act, but Section 69 did constitute a bar and dismissed the suit on this preliminary ground. The only question which calls for an answer is whether the suit is barred by Section 69(2), Partnership Act. Section 69(2) is in these terms: No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. The learned Counsel for the appellant contends that the frame of the suit does not attract the application of this provision of law, inasmuch as it has not been brought "by or on behalf of a firm" and relies upon the following quotation from Lindley on Partnership, at p. 350 (Edn. 10): One partner may sue alone on a written contract made with himself if it does not appear from the contract itself that he was acting as agent of the firm; and one partner ought to sue alone on a contract entered into with himself, if such contract is in fact made with him as principal, and not on behalf of himself and others. and on Goverdhandoss Takersey V/s. Abdul Rahiman ( 42) 29 A.I.R. 1942 Mad. 634. There are certain observations supporting him but we do hot think the decision goes the whole length with the plaintiff. The facts of this case were briefly these:

(3.) On 9 November 1936, defendant 1, who held a general power-of-attorney from defendant 2, agreed to sell to defendant 3, as an agent of the plaintiff, thirty tons of sandal wood on certain conditions. A sum of Rs. 8700 was paid to him in advance by defendant 3 on behalf of the plaintiff. The plaintiff, on being apprised of this contract, refused to accept the terms and directed defendant 3 to cancel the agreement. On 16 February 1988, the plaintiff, Goverdhandoss Takersey, brought a suit for refund of the amount on the allegation that the validity of the contract depended upon his consent, which he never gave. One of the pleas in defence, as the case crystallised before the High Court, was that the contract was on behalf of the firm Goverdhandoss Takersey and, as it was not a registered firm, the suit was barred by Section 69(2), Partnership Act. At page 637, the learned Judges do say: The provisions of Section 69(2), Partnership Act, could only be attracted to a suit if it was instituted either by or on behalf of the firm, that is to say, ex facie it purports to be-filed either by or on behalf of the firm or even, as urged by Mr. Sitarama Rao, in the interests of the firm. But this must be clear from the plaint itself and must not in any case depend on the liability of a plaintiff to restore the benefit that he has received out of that suit to the firm of which he is a partner eventually.