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TMI Blog1937 (9) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... ff firm agreed to the defendant's proposal and a partnership was brought about between the plaintiff and the defendant. There are other allegations in the plaint which for the purpose of the present appeal it is not necessary to mention in detail. According to the plaint, the partner, ship was subsequently dissolved, but the account of the rights and liabilities of the parties has not yet been taken. For that purpose the present suit was brought. 2. The defence, so far as it is necessary for the purpose of the appeal, is that a partnership was entered into between the defendant on one side and Ram Sarup and Lachmi Narain alias Minnu on the other. It was denied that Lachmi Narain, son of Hem Raj, who signed and verified the plaint, was a member of such firm. It was also pleaded that there was a non-joinder in the suit and that the frame of the suit was bad. No particulars were however given of the plea of non-joinder and that relating to the frame of the suit. The trial Court set down two issues for trial. One was whether there was a non-joinder, and the other was whether the suit as brought was maintainable. It found on the first question that there was no non-joinder, but h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g into a contract of partnership. The further question as to whether if a partnership is in fact entered into between a firm and another individual, it should be considered to be a partnership of which all the members of the partner firm and the other individual should be considered to be partners, did not assume importance in that case, nor was it decided, In the present case the question is of importance and has to be decided. 5. I accept the view expressed in the matter of Jai Dayal Madan Gopal of Benares AIR1933All77 that a firm as such cannot enter into partnership with other individuals. At the same time, it must be held that a firm is only an association of per-sons who have no corporate capacity and that if a partnership is in fact entered into and if all the partners of the firm are consenting parties to the agreement of partnership or are represented by a duly authorized person when the contract of partnership is concluded between the firm and others or subsequently ratify it, a partnership will come into existence, though it will not be regarded as a partnership of which a firm as such is a partner. Such a partnership will have for its members all the partners of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to me that if it be found that a partnership was entered into between Ram Sarup, Lachmi Narain alias Munni and Lachmi Narain, son of Hem Raj, on one side and the defendant on the other, because the aforesaid three persons were members of the firm Brij Kishore Ram Sarup, the suit brought in the name of the firm is open to no objection. lb may be that the Court may not consider the firm as such to be entitled to any decree, but may give appropriate reliefs to the individuals composing that firm. Order 30, Civil P.C., allows two or more persons claiming to be partners and carrying on business in British India to sue in the name of the firm of which they are partners. It is open to the defendant to have the names of the partners of the plaintiff firm disclosed; and on demand being made by the defendant the names of the partners must be disclosed. Order 30, Rule 2(3) provides that where the names of the partners are declared, the suit shall proceed in the same manner and the same consequences in all respects will follow as if they had been named as plaintiffs in the plaint. The proviso appended to this sub-rule is important in that it lays down that the proceedings shall nevertheless co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which case the question would arise whether the plaint was signed and verified by a person having authority to do so on behalf of Ram Sarup and Lachmi Narain alias Munni. As I have already said, this and the allied questions have not been considered by the lower Courts. On the main question decided by them I hold that the suit is maintainable if it be found that a contract of partnership was entered into between the defendant on one side and one or more persons authorized to act on behalf of the partners of the plaintiff, whoever they were, on, the other. Such a contract, if proved, would result in a partnership, of which the partners should be considered to be the defendant and the individual partners of the firm Brij Kishore Ram Sarup. In the view of the case I have taken, I would allow the appeal, set aside the decree of the lower Appellate Court and remand the case to that Court for disposal according to law as herein indicated. James Joseph Whittlesea Allsop, J. 9. I agree with the order proposed by my learned brother. It seems to me that there has been some confusion in the Courts below in applying a meaning to the word firm . It is obviously true, as held in the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is dear that it is not contemplated that the firm shall institute a suit as an entity. Rule 1 of the Order says that any two or more persons claiming or being liable as partners and carrying on business in British India may sue or be sued in the name of the firm of which such persons were partners at the time of the accruing of the cause of action. It is dear that the idea is that the partners themselves should sue or be sued, but a provision is made by way of convenience of procedure that one of the members of the partnership shall act on behalf of the others. Sub-rule (2) of Rule 1 says that where persons sue or are sued as partners in the name of their firm under Sub-rule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice if such pleading or other document is signed, verified or certified by any one of such persons, that is, by anyone of the partners. The suit in the present case was instituted by a person who alleged that he was one of the partners on behalf of all, and his action has not been repudiated. The result, it seems to me, is that the suit was pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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