JUDGMENT
1. This is a first appeal brought by the plaintiff Mt. Basanti Bibi whose suit has been dismissed by the trial Court on the sole ground of limitation. The family tree is as follows:
Radha Kishan |
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That it may be declared that the plaintiff is the sole owner of 11/4 annas share which belonged to Lal Ram Narain (her father) out of the five annas share of the firm Radha Kishan-Sita Ram and that defendant 9 (one Seth Chiranni Lal) has right to a five pie share appertaining to the share of Ram Narain which was sold to him by defendants 6 to 8, who had purchased it from defendants 4 and 5.
3. The plaint further asks for the relief of profits from Sambat in 1967 (1910-11) up to the date of suit. The plaint sets forth that Ram Narain died at some date which is not stated and subsequently his widow Mt. Shib Bai died on 31st June 1916, but Mt. Shib Bai did not receive her share of profits since Sambat 1967. Defendant 1 is the present manager of the factory and his plea in his written statement is that he has a certain number of years' profits with him, and that he is ready to pay to whoever is found by the Court to be entitled. The plaintiff and her mother before her undoubtedly took no action whatever to demand the share of profits which were annually due to them from this factory. It is shown by the learned Counsel that in 1915 suits were brought by the different members of the family claiming part of the share of profits as heirs of the deceased Ram Narain and on 18th May 1921, defendants 6 to 8 sold the share which they claimed had come to them on the death of Ram Narain to defendant 9. Two points have been argued in this appeal, one the question of limitation, and, secondly, the question of the rights of defendant 9 Seth Chiraunji Lal as bona fide purchaser of value under Section 41, T. P. Act. We will first deal with the question of limitation.
4. The trial Court has applied Article 120, Lim. Act, and also Section 253 (10), Contract Act. In the opinion of the trial Court or the death of Ram Narain the partnership in the firm of Radha Kishan-Sita Ran was dissolved, and the whole of the pre sent claim of the plaintiff is time bar red. As regards this alleged dissolution the facts are that the whole of this factory is owned as a partnership by a large number of persons, we are told, about 30 in number. The five annas share in the factory was owned by the members of the family to whom the father of the plaintiff belonged. The trial Court has assumed that five annas share was a partnership within the partnership which consisted of the factory partners. That is a very peculiar view of law, and we do not consider that such a view is consistent with the definition of partnership in Section 239, Contract Act. The section states:
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.
5. Persons who have entered into a partnership with one another are called collectively a firm. If there were to be a partnership then the definition under Section 239 would have to be altered to read that partnership is the relation which subsists between persons, or between persons and a firm, or firms. ' We consider, therefore, that we cannot regard the owners of the five annas share in the factory as forming a separate partnership, and we consider that there was only one partnership owning the whole factory.
6. The next question which we consider is whether Section 253 (10) is applicable to the partnership of the factory. That section states:
In the absence of any contract to the contrary, the relations of partners to each other are determined by the following rules.
7. Now if in the case of this factory business the death of every one of the 30 partners was to ipso facto dissolve the partnership, a great deal of practical inconvenience would result. The business has been going on for a very long time, land there is no evidence whatever on the record that the business has been treated as dissolved on each of the occasions on which one of the 30 owners died. We consider therefore that in the present case there must be presumed to be an implied contract to the effect that the death of one of the partners of this factory will not dissolve the partnership business. Further, it is not alleged in any of the pleadings that there is any dissolution of the partnership on the death of a partner. We consider therefore that the trial Court was not correct in coming to the conclusion that the death of Ram Narain caused a dissolution of the partnership. Now the question is what is the correct article to apply to the present suit under the Limitation Act. We are of opinion that the correct article is Article 141, which applies to a suit for possession of an immovable property by a Hindu en-titled to the possession of the immovable property on the death of a Hindu female. The present plaintiff became entitled to possession on the death of her mother Mt. Shib Bai which we find to have taken place on 21st June 1916. The factory consists of immovable property, and accordingly Article 141 is the correct article to apply. Article 120; which is only applicable, when there is no other article which applies, is not the proper article for this case. It was argued that this was not a suit for possession of immovable property. But we consider that the criterion to apply is whether the title of the plaintiff is still subsisting or not. We may draw an analogy from a suit for profits brought by a cosharer in a mahal. Such a suit is within limitation if the title of the cosharer is shown to be still subsisting, and the title is subsisting if the plaintiff is within the rule of 12 years limitation. Accordingly as the present suit was brought within 12 years of the death of Mt. Shib Bai in 1916, the suit is within limitation.
8. The next question which we have to consider is that urged by the learned Counsel for Seth Chiraunji Lal as to whether his client defendant 9, should have the benefit of Section 41, T. P. Act. Defendant 9 did not give evidence as a witness to show under what circumstances he acquired the share in this partnership by the sale-deed of 18th May 1921, and whether he made the enquiry which is necessary under Section 41 before a person can receive the protection of that section. He has only put forward one witness Bhiko Mal, who is his agent, and that witness does not even state that he negotiated the sale-deed. Defendant 9 therefore has failed to prove that he made the necessary enquiry to ascertain that his vendors had power to make the sale-deed to him. Accordingly we hold that Seth Chiraunji Lal is not entitled to the benefit of Section 41, T. P. Act. As a result we set aside the decree of the trial Court and we remand this case for decision on the remaining issues. In regard to limitation it is no doubt possible for these defendants who have received profits which should have come to the heirs of Ram Narain, to plead that Article 62, Lim. Act, will be a bar to the suit of the plaintiff. That however is a matter for the trial Court to determine. But so far as defendant 1 the manager of the factory is concerned, Article 62 would not apply to funds in his hands. Costs here and hitherto incurred will be costs in the cause.