1944 (12) TMI 6 - Other - Indian Laws

Partnership Dissolution & Limitation Issues Affirmed, Suit Remanded for Missing Party Inclusion

Devji Goa and Ors. Versus Tricumji Jiwandas and Ors.

The Privy Council affirmed the lower courts' conclusions on partnership dissolution and limitation issues but found the suit not maintainable in its ... - Issues Involved:1. Partnership dissolution and rendition of accounts2. Limitation for filing the suit3. Maintainability of the suit in its current form4. Variation of the decreeDetailed Analysis:1. Partnership Dissolution and Rendition of Accounts:The appeal arises from a suit for the dissolution of a partnership between plaintiff 1 and Goa Petha concerning coal lands and colliery business in Jharia Coalfields, and for the rendition of accounts. The High Court affirmed the Subordinate Judge's decree, which declared that 'in the partnership business carried on in the style of G.P.C. & Co. in the Khas Jinagora Colliery, the firm of Tricumji Jivandas had 1 1/2 annas share in the property and business, and it dissolved in March 1930, by the death of Goa Petha,' and directed accounts to be rendered by the appellants from November 1918, and a sale of the partnership property.2. Limitation for Filing the Suit:The appellants argued that the suit was barred by limitation. The Courts in India found that there was no repudiation of partnership by Goa Petha in 1924 as alleged, and even if there was, it was not serious and did not matter as the partnership continued till his death. Limitation for the suit began only from the time when Goa Petha died in March 1930, and as the suit was instituted in 1931, it was not barred by time. The argument that the suit should be treated as one for the specific performance of a contract and thus barred by Article 113, Limitation Act, was not raised in the lower courts and therefore could not be raised here.3. Maintainability of the Suit in Its Current Form:The main point argued by the appellants was that the suit was not maintainable in the form it was brought before the trial court. The High Court held that Order 30, Rule 1, Civil Procedure Code (CPC), allowed a firm to sue in its name, even if the members had collectively become members of another firm. However, the Privy Council found this reasoning difficult to accept. It was argued that the business was carried on outside British India, and a partnership firm could not sue in the firm's name. Additionally, the effective members of the firm at the time of the suit were not properly represented. The Privy Council directed that Mohun Singh, who had become a major, should be joined as a party to the suit as the legal representative of his father and in his personal capacity. This would correct the maintainability issue.4. Variation of the Decree:A subsidiary argument was made that the decree should be varied to align with the form of the decree suggested in Syers v. Syres (1876) 1 A.C. 174, giving the appellants an option to purchase the firm's small share before ordering a sale of the entire business. The Privy Council rejected this argument, stating that the decree was in conformity with the Indian Civil Procedure Code and no application was made in the lower courts to mold the decree in the manner now suggested.Conclusion:The Privy Council accepted the conclusions of the lower courts on all points except the maintainability of the suit, which was corrected by directing the inclusion of Mohun Singh as a party. The decrees were set aside, and the case was remanded to the High Court for retrial after amending the plaint and written statement. The appellants were awarded the costs of the appeal but were required to pay the costs already incurred by the respondents in the lower courts. The case was to be disposed of expeditiously by the High Court.