MULCHAND Vs. TARACHAND

JUDGEMENT

(1.) MOHIUDDIN , A.J.C. 1. This appeal arises out of a suit which the appellant had filed on 23rd June 1927 against the respondent, Tarachand for Rs 3,365-8-6. Sub-Judge 1st Class, Khandwa, passed a decree for Rs. 2,965-8-6 in favour of the appellants, as the respondent had paid Rs. 400 in Court. The learned Additional District Judge held that the suit was premature and dismissed the suit.

(2.) THE first point which the learned advocate for the appellant urged was that the suit ought not to have been dismissed as the respondent in his written statement did not ask for the dismissal of the suit, though he had stated in para. 4 of his written statement that the suit was premature. The respondent by taking the plea that the suit was premature, certainly meant that the suit should be dismissed, if the Court found that the cause of action had not accrued when the suit was filed. The dismissal, under the circumstances was quite proper,

(3.) THE money lending business is carried on by the appellants with no other object except to divide the interest arising from the transaction and the parties are therefore partners. Hyder Ali v. Elahee Bux Maloom [1882] 8 Cal. 1011 was a case in which the plaintiff had filed a suit against the defendant, in his capacity as the owning manager of a river brig, and it was held that the fact that several persons were co-owners of a ship, did not make them partners. The facts of the case reported in I.L.R. 8 Cal. 1011 and the present case are quite different, and, therefore, the Calcutta case cited does not afford any help in deciding this case. The illustrations appended to Section 239, Contract Act, make the difference between partners and co-owners quite clear, and the position of the plaintiffs in this case is similar to that of A and B as pointed out in Illus. (a) and (c). Plaintiffs alleged in para. 1 of that plaint that they carry on money lending business at Attar and Khandwa in the name of Mulchand Gendalal and, therefore, no further statement on the point was necessary. The plaintiffs were rightly held to be partners.