MOHAMAD ALI Vs. KARJI KONDHO RAYAGURU

JUDGEMENT

(1.) This is an appeal by defendant 1 against a decision of the District Judge of Berhampore who, on appeal, reversed the decision of the Munsif of Aska and decreed the plaintiff's suit for contribution or reimbursement in respect of money paid by the plaintiff-respondent to satisfy a certain decree. The decree in question was passed on 3 December 1932 and payments to satisfy the decree were made by the plaintiff-respondent on various dates from 21 March 1935 to 28th September 1935. The plaintiff pleaded that there was a partnership by an agreement dated 29 May 1929 by which defendant 1, the appellant, was to run a bus service in partnership with the plaintiff, Lingaraj Das who is defendant 2 and one Trilochan Das. It was further pleaded that the partnership was dissolved and the accounts were settled on 25 August 1933 and that by the terms of the registered deed of agreement dissolving the partnership the present appellant was to take over the bus and was to satisfy all the debts of the partnership. By an amendment of the plaint on 5 August 1988 it was alleged that Trilochan Das retired from the partnership business on 20 October 1929 being then a minor.

(2.) The appellant contested the suit. He alleged that the registered document of 25 August 1933 was signed by him under coercion and misrepresentation. He alleged that this did not operate as dissolution of partnership and by an-additional written statement he denied that Trilochan ever retired from the partnership and he denied that the plaintiff was entitled to the amount claimed. As I have said, the trial Court dismissed the suit but on appeal the learned District Judge decreed the suit. Three points really have been urged before us; first that the suitfor reimbursement or contribution would not lie but only a suit for accounts or for winding up the partnership, secondly it is urged that the suit was not maintainable under Section 69, Partnership Act, because the firm was unregistered and thirdly it was urged that defendant 2 who was admittedly a partner in the alleged partnership and was also a party to the document of 25 August 1933, was a necessary party to the suit and as he was given up in the trial Court no decree could be passed against the appellant by the appellate Court. As regards the first point, both the lower Courts as well as the parties seem to have ignored the provision of law which was the same under the Contract Act, Section 247, prior to the passing of the Partnership Act, 1932, as under Section 30 of the latter Act, viz., that a minor cannot be a partner in a firm though of course he can be admitted to the benefits of the partnership. The Courts we^e, therefore, wrong in considering that Trilochan Das could have been a partner in the firm while he was admittedly a minor and they need not have addressed themselves to the question whether he actually retired from the partnership on 20 October 1929, a date when he was admittedly still a minor, because there was no question of his retiring from the partnership on that date as he was not then a partner.

(3.) No doubt under the present Partnership Aet, Section 30, a minor who is admitted to the benefits of a partnership will become a partner if he fails to give notice within six months of his becoming a major, but this would not apply in the present case, as this Trilochan Das appears to have become a major before this Act came into force. Under the previous law, under Sec. 248, Contract Act, on attaining majority a minor became liable for all the obligations incurred by the partnership since he was admitted to its benefits unless he. Gave public notice within a reasonable time of his repudiation of partnership but this section did not provide definitely that he became a partner. Now Ex. l is the deed of 1933 which was executed by the present appellant, the plaintiff-respondent and defendant 2. It is clear from this document that they proceeded on the basis that they were the only three partners. The appellant's plea that this document was executed as a result of coercion or misrepresentation was "found not proved by the lower Courtsand has not been pressed before us. There is no independent evidence to show that Trilochan Das actually became a partner or accepted the position of a partner after he became a major and in these circumstances I consider that the parties to this appeal must be bound by Ex. 1 which shows that Triloehan Das was not a partner. It is certainly true, and it is unnecessary to cite authorities for the proposition, that partners in a firm are not ordinarily entitled to bring a contribution suit in respect of individual items which they have paid on account of partnership debts, but it seems to me that the limits of this rule of law are clearly set out in a passage from Balsbury's Laws of England, Vol. 24, Art. 918, p. 481, new edition, which was quoted with approval in a decision of this Court in Mt. Jagpati Kuer V/s. Sukhdeo Prasad A.I.R. 1942 Pat. 204. The passage runs as follows: Partners are not, as regards partnership dealings, considered as debtor and creditor inter se until the concern is wound up or until there is a binding settlement of the accounts. It follows that one partner has no right of action against another for the balance owing to him until after final settlement of the accounts.