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TMI Blog1923 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... nership was continued until the 14th July 1919, when it was dissolved, except in so far as it related to one of the businesses carried on by the partnership, the Banianship agreement with Greaves, Cotton and Co., which under the special provisions of that Banianship agreement, was continued until August 1919. The partnership having come to an end, on the 10th February 1920 the plaintiffs, discovering that some of the defendants had been using the firm name of Nathuram-Ramkissen in respect of businesses-other than those carried on by the partnership, complained that there had been a wrongful user by those defendants of the partnership name. As a sequel to that allegation, some of the defendants asserted that the partnership had not come to an end; that all that had happened was that on the 14th July 1919, certain members of the partnership had retired from it (members other than those who admitted using the firm name for their private purposes), and that the partners who remained were entitled to use the firm name after the retirement of those other partners. That involved an important issue of fact between the members of the partnership, and one which the defendants have persisted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , must result in the suit being eternised. The points were these: I the first place, he co tended that the suit was wrongly constituted on the ground that the defendant No. 1 set out in the plain(sic) Joharmull-Manmull, was sued as a firm, and that he was in a position to prove that Joharmull Manmull was not the firm and that neither at the present time nor at any material time was there such a firm as Joharmull-Manmull. He further contended that, assuming that he satisfied the Court that there was no such firm as Joharmull-Manmull, the suit was wrongly constituted, because on the authority of two cases, Ramdoyal v. Junmenjoy Coondoo 14 C. 791 : 7 Ind. Dec. (N.S.) 524 and Ambika Charan Guha v. Tarini Charan Chanda 19 Ind. Cas. 963 : 18 C.W.N. 464, it was necessary for the plaintiffs in a suit for partnership accounts to join as parties all the members of the partnership, and if Joharmull-Manmull, the firm, was not in existence, the suit was wrongly constituted because two members of the partnership Joharmull Khemka and Manmull Khemka were not parties to the suit, and, therefore, by reason of the provisions of Section 22 and Article 106 of Schedule I of the Limitation Act (IX of 190 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his death (which is the time limited for such an application under Article 177 of the First Schedule to the Limitation Act, 1908), the suit had abated by reason of the provisions of Order XXII, Rule 4, and that, unless the Court granted an application to set aside the abatement under Order XXII, Rule 9, the suit in that event also must be dismissed against all the defendants. He further contended that the time within which an application to set aside the abatement must be made was 60 days from the date of the abatement under Article 171 of the First Schedule to the Limitation Act. 5. Now, I allowed the defendants Nos. I to 3 to amend their written statement in such a way as to enable them to allege that Joharmull Manmull was not a firm, and evidence by both parties was adduced upon the issue as to whether or not Joharmull Manmull was a firm. By Section 239 of the Contract Act a partnership is defined as the relation which subsists between persons who have agreed to combine their labour or skill in some business and to share the profits thereof. Now the facts, as I find them after having heard the evidence, are that Joharmull Khemka and Manmull Khemka were two brothers who wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t they were individual members of the partnership of Nathuram-Ramkissen, and that trey were not members of the partnership merely as being members of a firm of Joharmull Manmull, because in the Partnership Agreement as well as in the submission to arbitration, notwithstanding that the words Joharmull Manmull appear in both these documents, the signatures in both are those of Joharmull Khemka and Manmull Khemka Individually, and there were other documents to the same effect which were produced. Now, under these circumstances, I find as a fact that there was no such firm as Joharmull-Manmull. That being so, I have to consider the contentions which are put forward on behalf of the defendants Nos. I to 3 by the learned Advocate-General. I take the first contention. It is a contention which has no merit in it whatever; it is a contention which was only thought of by the lawyers after the death of Joharmull Khemka in September 1922. It is admitted by these defendants that there was a partnership; it is admitted that Joharmull Khemka and Manmull Khemka were members of the partnership; it is admitted that there was a dissolution, and it is admitted that there is property belonging to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a written statement, and the written statement which they filed commences written statement of Joharmull Khemka and Manmull Khemka sued as Joharmull-Manmull. Now, in my opinion, in the pleadings as they stand, the defendants Joharmull Khemka and Manmull Khemka are sufficiently described, and, in my opinion, those two gentlemen are before the Court, and are parties to the suit. If an application were made to amend the plaint so as to substitute for Joharmull-Manmull the words Joharmull Khemka and Manmull Khemka, such an amendment would not be an amendment by which a new party was added, but it would be an amendment merely for the purpose of more clearly describing parties who are already before the Court. Such an application would not, in my opinion, be within Section 22 of the limitation Act [See on this point Mohunt Padmalav Ramanuja Das v. Lukmi Rani 12 C.W.N. 8, Nistarini Dasya v. Sarat Chandra Mojumdar 29 Ind. Cas. 680: 20 C.W.N. 49 : 22 C.L.J. 279, Sabodini Debi v. Cumar Ganoda Kant Roy Bahadur 14 C. 400 : 7 Ind. Dec. (N.S.) 265 and Peary Mohan Mukerjee v. Narendra Nath Mukerjee 32 C. 582 : 9 C.W.N. 421, on Appeal 5 Ind. Cas. 404 : 37 C. 229 : 7 A.L.J. 125 : 7 M.L.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the Act were. Having regard to the intrinsic evidence in the Acts themselves, it appears to me to be quite clear that the version contained in the published Acts, and not that contained in the Gazette, is the right one, for this among other reasons that the Act of 1908 was amended by Act XXVI of 1920, and by that Act, inter alia, in Article 176 six months was altered to 90 days. In Article 178 ditto was altered to six months. Now, if the Act had been in the terms set out in the Gazette, there would have been no necessity in the amending Act to have made the alteration in Article 178 at all, because if it were the fact that the Act of 1908 Article 177 in the second column, had the words six months then ditto in Article 178 would have served the same purpose as the alteration of six months which the Legislature thought fit to provide by Act XXVI of 1920. I, therefore, come to the conclusion that the Act of 1908 had, in Article 177 second column the Word ditto, and not the words six months and the effect of that will be that, as by Act XXVI of 1920, Article 176 is altered from six months to 90 days, Article 177 becomes 90 days as well. That being so, I come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Sukdeo Gungadhar and Sukdeo Dungarmull receive a 2-annas 6-pies share, and the evidence was to the effect that Sukdeo was the father of Gungadhar and Dungarmull, and that as between them the annas 2, pies 6 was split up into shares of anna 1, 3 pies, anna 1 and pies 3, respectively. Gungadhar received the largest, and Sukdeo, the father, the smallest share. In my opinion, however, there is no evidence upon which I can find that Sukdeo was a partner in the firm of Nathuram-Ramkissen. The evidence which was led on this point is to be found in the cross-examination of the plaintiff Jamnadas Khemka, and, although he does state in one or two places that Sukdeo was a partner, having regard to the whole of the evidence which he gave, I am satisfied that what he intended to convey was, as I find the fact is, that although Sukdeo was not a partner of Nathuram-Ramkissen, he was jointly interested with his two sons in their shares; that the two sons who signed (Sukdeo did not sign) the agreement were partners, and that as between them and their father there was a certain arrangement made as to the distribution of the family share. But that, of course, would not amount necessarily to Sukdeo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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