9911796707
TMI Blog1945 (1) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... here was a partnership by an agreement dated 29th 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 25th 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 5th August 1988 it was alleged that Trilochan Das retired from the partnership business on 20th October 1929 being then a minor. 2. The appellant contested the suit. He alleged that the registered documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artner 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 20th 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 Act, 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 Section 248, Contract Act, on atta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4. When it has-been found that Triloehan Das was not a partner of the firm it seems to me impossible to avoid the conclusion that Ex. 1 was a final settlement of accounts between all the three persons who were really partners in the firm and thereafter there was nothing to prevent the plaintiff-respondent from bringing a contribution suit on the terms of that doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point which was not taken before the lower Courts. under Order 6, Rule 6, Civil P. C. it is provided that any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be, and subject thereto an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading. It is the defendant-appellant who is now intending to contest the performance of the condition precedent viz., the registration of the firm It was, therefore, for this defend ant-appellant to raise this point in his pleading and if the point was not raised the question was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suggested that we should remand the case for evidence and a finding on the point whether the firm in question was registered under the Partnership Act. Even if it is open to us to grant a remand for such a purpose I do not think that any such remand should be granted. For these reasons I am satisfied that the plea that the suit is not maintainable under Section 69, Partnership Act, must be overruled. The third point viz., defendant 2 was a necessary party in appeal seems to me invalid. I have shown that the plaintiff-respondent was entitled to bring his suit on the terms of Ex. 1, the document of 25th August 1933. The only person who incurred any liability to the plaintiff by reason of that document was defendant 1 and I consider that defe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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