Debi Prasad Chowdhary vs Tara Prasanna Nail and Others

Agarwala, J.—The appellant sued to set aside a deed of sale executed by his uncle Gajadhar Ram while the plaintiff was minor. The document is dated 13th May 1920, and recited that Gajadhar Ram on behalf of himself, his minor sons and his minor nephew, the plaintiff, and as guardian of the minors, executed the sale deed in order to raise money for the joint family business and for the maintenance of the minors.

In the first Court the case of the plaintiff was that his father, Baijnath, was separate from Gajadhar Ram and that therefore the sale did not affect his half share in the property and that he was entitled to recover that half share.

In the alternative, he claimed that if separation between his father and Gajadhar were not established, he was entitled to have the whole sale set aside on the ground of wantr of legal necessity.

At the trial he failed to establish separation between his father and his uncle Gajadhar Ram. He failed also to establish to the satisfaction of the Court that there was no legal necessity for the sale. The suit was accordingly dis. missed.

In appeal to the learned District Judge of Bhagalpur, the plaintiff-appellant abandoned the allegation that his father had separated from Gajadhar Ram and contended that the money was raised not for the old family business but for a new business which superseded the old family business and consisted of the vendee of the property and the plaintiff''s uncle Gajadhar Ram. The Appellate Court has found that the business that was carried on after the sale was the old family business and that the only difference between that business as carried on before was that the trading family of which the plaintiff was a minor member had taken a partner, namely the vendee of the property in dispute.

The only question therefore which is open in second appeal to the appellant is whether when a karta of a trading family in the course of management of the family business takes a partner into the business, the old family business ceases to exist and a new business comes into existence in which the only partners are the stranger and the karta. Of the authorities for this proposition the only relevant one is Pichappa Chettiar v. Chokalingam Pillai A.I.R.1938 P.C. 192 a decision of the Privy Council, in which their Lordships cited a passage from Mayne''s Hindu Law, Edition 9, at page 398, which is as follows:

Where a managing member of a joint family enters into a partnership with a stranger, the other members of the family do not ipso facto become partners in the business so as to clothe them with all the rights and obligations of a partner as defined by the Contract Act. In such a case the family, as a unit, does not become a partner, but only such of its members as in fact enter into a contractual relation with the stranger and the partnership will be governed by the Act.

On the basis of this question the learned advocate for the appellant argued that the appellant was not a partner of the firm after the vendee of the property was admitted as a partner and that he was not bound by the transfer, the object of which was to provide funds for this allegedly new business. It is to be noted that the passage cited from Mayne''s Hindu Law does not relate to a trading family and it does not support the proposition that when the manager of a trading family takes a stranger as a partner into the business, the other members of the family who were partners in the business up to that time cease to be partners and to be liable for the debts of the business.

In my opinion, this is no authority in support of the point of law raised in this second appeal.

This appeal is therefore dismissed with costs.

Yarma, J.

I agree.