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TMI Blog1935 (7) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... w dead) and defendant 1 (his brother) were the partners. When Thagan Sao died the three present plaintiffs and their brother (now dead) succeeded to his business which was carried on by one Gopi Lal, their maternal grandfather, as their guardian in the same name of Thagan Sao-Ram Chander. It was during this period that the defendants borrowed the money and gave the hundi in question. Originally there were four plaintiffs, all minors. One of them died during the pendency of the suit which was continued by the remaining three. The defence, so far as it is relevant for the purposes of this appeal, were two: first, that the suit was barred by limitation, and, secondly, that the defendants were entitled to a certain set-off against the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anager, the benefit of Section 6, Lim. Act, is not available to the plaintiffs. In my opinion, there is no force in this contention. In the eye of the law, a firm has no existence apart from the members which constitute that firm. A firm is not a person either natural or artificial and it is a person who can sue and be sued. Firm was defined in Section 239, Contract Act, (the chapter in which this section occurred has since been repealed and has been replaced by the Indian Partnership Act) thus: Partnership is the relation which subsists between persons who have agreed to combine their property, labour or skill in some business, and to share the profits thereof between them. Persons who have entered into partnership with one another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that of a formally constituted corporation and that of an individual human being (though the procedure of Courts of equity can go near it in what are called representative suits); and for English jurisprudence the firm is only a compendious name for certain persons who carry on business or have authorized one or more of their number to carry it on, in such a way that they are jointly entitled to the profits and jointly liable for the debts and losses of the undertaking. 4. He then proceeds: For the purpose of determining legal rights there is no such thing as a firm known to the law, and this is so likewise under this Act. It is true that under the Code of Civil Procedure, 1908, Order 30, as under the English Rules of Court, and, we a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er became the name of the plaintiffs. The relationship between these four plaintiffs cannot possibly be that of partners. Partnership is not a status, but is a creation of contract, and these minors were unable on account of their minority to enter into any contract of partnership. 6. The correct position therefore was that after the death of Thagan Sao, Thagan Sao-Ram Chander became, as I have said, the name of his four minor sons collectively, something analogous to the position when an individual for the purpose of business adopts another name and it was by this name that they were known among those persons with whom they had business relations. When the defendants drew up the hundi in favour of Thagan Sao-Ram Chander, they in fact dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny issue of fact which ought to have been stated and which the defendants could not disprove. I think the question of limitation was rightly decided against the defendants. 7. The next question is that of set-off. Four items were claimed as set-off by the defendants. Two of them, namely one of ₹ 600 and another of ₹ 164-0-3, have been allowed by both the Courts below and there is no question about them before us. Another item of ₹ 45-14-2 has been disallowed by both the Courts and there is no question about that either. The controversy before us was confined to item 4 of ₹ 666 odd, which was allowed by the trial Court and disallowed by the lower appellate Court. This item represents, according to the defendants, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to this amount under the Civil Procedure Code, it being an ascertained sum legally recoverable under Section 70, Contract Act. I have doubts whether this sum can be said to be an ascertained sum in the sense in which the word has been used in the Civil Procedure Code, as the necessity of each item of expenditure will have to be determined. I am however clearly of opinion that the amount is not legally recoverable from the plaintiffs. Section 70, Contract Act, runs thus: Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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