MADAN LAL Vs. JANKI PRASAD

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for partition of a ginning factory and press. The plaintiffs alleged that they were shareholders in this ginning factory and press to the extent of 5/72. They admitted that this partnership had been declared to be invalid inasmuch as it consisted of more than 20 members. Nevertheless they asked for the relief mentioned above.

(2.) The defendants, who were other members of this illegal association, pleaded inter alia that the suit was not maintainable because the partnership was illegal. The learned Subordinate Judge has dismissed the suit holding that this was a suit by one partner against the remaining partners in respect of illegal partnership transactions, and the plaintiffs could not seek any redress from a Court of justice.

(3.) The plaintiffs have come up in appeal, and on their behalf it is contended that there is no bar to the Court granting them a relief for the actual partition of the property, treating it as belonging to a number of co-owners (though more than 20 in number) and entirely ignoring the existence of any alleged partnership. The argument is that the Court should not recognize the existence of any such partnership, but it cannot at the same time ignore that the property which exists belongs to a number of co-owners, including the plaintiffs. This question of law has been the subject of decision in a recent case, Mewa Ram V/s. Ram Gopal . Two learned Judges out of three held that a suit brought by some members of an illegal association for any relief was not maintainable and that the well-known rule that where all the parties were equally in fault the law favoured him who was actually in possession was applicable even to a claim for partition where the plaintiff claimed to be in joint possession with the defendants. This being the view of the majority in the case so recently decided, we cannot go behind that expression of opinion.