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TMI Blog1945 (9) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 It was in these circumstances that the Court allowed the earlier suit to be withdrawn and granted liberty to bring another suit.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 19th 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 Sections 69 and 72, (sic Section 42), Partnership Act, were p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4. But at p. 638 they make it clear the particular contract was not entered into by defendant 3 as an agent of the firm Goverdhandoss Takersey but on behalf of the individual. Say they: It is true that the agreement, Ex. J, does not clearly state that defendant 3 was acting on behalf of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion or the conduct must be that of the original contracting parties and, as there is nothing on the record to indicate that intention or contract, this plea is not available to the plaintiff. In Gokul Krishna Das v. Sashimukhi Dasi ('12) 13 I.C. 23, Sir Asutosh Mookerji has distinctly said that the subsequent conduct, after the death of one of the partners, can be evidence of the intention of the original contracting parties. Says he at page 300: There is no direct evidence to show what was the contract between the parties in this respect at the inception of the partnership; but the Subordinate Judge has held - and his view does not appear to have been contested before the District Judge - that the conduct of the parties since 1887 shews that there must have been a contract between the original parties that the partnership would not be dissolved by the death of any partner. There is no room for the theory that after the death of the husband of the plaintiff a new partnership was constituted between herself and the surviving partners. The true view is that the original partnership was continued by common consent with this difference that the plaintiff replaced her husband a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d partner in the room of the latter, and went on as before with the business. They also accept the principle that, from the subsequent conduct, after the death of a partner, of the surviving partners and of the heirs of the deceased, the intention of the founders may be deduced. Say they: From this action we gather that this was in accordance with the agreement entered into when the partnership was started. Indeed, such a course is not only compatible with law, but is alone compatible with ordinary business requirements. In Mt. Basanti Bibi v. Babu Lal Poddar ('31) 18 A.I.R. 1931 All. which was a case of a partnership consisting of one family and a number of strangers, the daughter of one of the members of that family claimed a share in the estate of her father. It was pleaded that the claim was' barred by limitation as the death of the father, which took place many many years ago, had the effect of dissolving the partnership. The learned Judges rejected this argument and observed at p. 1519: Now if in the case of this factory business the death of every one of the 30 partners was to ipso facto dissolve the partnership, a great deal of practical inconvenience wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2). Section 52, Presidency Towns Insolvency Act, 1908, describes the property of the insolvent which is divisible amongst his creditors, and among this property is the right to sue for damages for breach of contract which becomes vested in the Official Assignee on the adjudication of an insolvent. Therefore, under Section 69, Sub-section (3), Sub-clause (b), the Official Assignee can sue for damages for breach of contract on behalf of an insolvent partner of a firm although that firm has not been registered. If the right of the Official Assignee to sue for damages for breach of contract can be considered as a suit to realise the property of an insolvent partner, I fail to understand why a suit by the partners of a dissolved firm of the same nature cannot be considered a suit to realise the property of a dissolved firm. It would be contrary to the well known canons of construction to give to the word 'property' one meaning in Sub-clause (b) of Sub-section (3) of Section 69 and a different meaning to the same word in Sub-clause (a) of Sub-section (3). In any case if damages are realised for a breach of contract, these damages would undoubtedly become partnership property, and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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