TMI Blog1962 (11) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... ied all the allegations made by the plaintiff. They said that the plaintiff negotiated with these defendants to be a partner in their Ice Factory and also to start a grain business in partnership. It was agreed that the plaintiff would have four annas share in the Ice Factory, which was the sole concern of these defendants, and eight annas share in the grain business to be started in the name and style of Saligram Mohanlal, which was first started in the commission agency of defendant No. I, as the parties thought it proper to start independently the business of Saligram Mohanlal on an auspicious date, which fell on the 15th April, 1951. In pursuance of the agreement regarding partnership, the plaintiff began to send moneys from time to time through hundis and bank drafts towards his shares to Konch, where the Ice Factory and the grain business were situated. The total amount of advance, namely, ₹ 41,500/-, is admitted; but it is said that, out of the same, ₹ 25,000/- only was credited to the accounts of the Ice Factory against the four annas share of the plaintiff and the balance was credited towards the grain business against his eight annas share. As the lead of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff came to ₹ 56,277-13-0. 6. Though the plaintiff led evidence to show that the amounts were advanced as loans, the averments in paragraphs 5 to 8 of the plaint are to the contrary. It was stated in these paragraphs that, on behalf of the Ice Factory, the defendants sent from Konch their agent named Gurudayal Mall, who approached the plaintiff at Kokamah in the district of Patna for a loan with a view to complete the building and acquire more machineries to give a complete and final shape to the proposed Jai Hind Ice Factory in order to make it a profitable undertaking; the plaintiff, having agreed to advance the loan, for the purpose eventually to become a partner which was one of the promises given on behalf of the defendants , advanced from time to time the said amounts through hundis and bank drafts; with a view to obtain the necessary documents of partnership , the plaintiff went to Konch where he was told that the total sum already invested in the unfinished building of the Ice Factory and the acquisition of the land and the machineries, plus the amount estimated to be spent in future, would come up to a lac of rupees; thereupon the plaintiff asked the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances of the case, I am of the opinion that originally the defendants started taking money from the plaintiff as loan, but ultimately it was decided that the plaintiff should become a partner; and, accordingly, he became a partner to the extent of four annas share in the Ice Factory and eight annas share in the grain business, and a sum of ₹ 41,500/- advanced by the plaintiff was adjusted as his share capital in the two partnership undertakings. Hence, the case of the plaintiff on the basis of loan must fail. (14) Mr. Lalnarayan Sinha submitted that the plaintiff was entitled to recover ₹ 25,000/- of the Ice Factory as the agreement had failed, la support of this submission, he relied on the term that a registered document was to be executed by the defendants in favour of the plaintiff in respect of four annas share in the land and the machineries of the Ice Factory. He conceded that the agreement dated the 15th April, 1951, was a concluded contract; but he contended that the term regarding the execution of a registered document was an executory term in the contract and the defendants' failure to execute a registered document resulted in the failure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oral agreement need not be express. It may be proved by a course of conduct e. g., by entries upon the partnership books . The position obtaining in England is stated thus: - The only statutory enactment now applicable to ordinary partnership is the Law of Property Act, 1925, Section 40. This section forbids any action to be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action is brought or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto by him lawfully authorised . (See Lindley on Partnership, twelfth edition, page 121). It was held, with respect to the said Section 40 and Section 4 of the Statute of Frauds relating to lands, that, if a partnership is proved to exist, then it may be shown by parol evidence that its property consists of land (page 122 of the same book). The learned author has referred to an observation of Lord Chancellor in Forster v. Hale, (1800) 5 Ves. 308. In that case, a person attempted to obtain an account of the profits of a colliery on the ground that it was partnership property, and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soon as the partners intend to so bring them in and Treat them as such. It was further laid down by their Lordships that this sort of contribution or transfer is hot prohibited by the Transfer of Property Act, 1882 or the Indian Registration Act, 1908. Hence, in view of the fact that the land on which the Ice Factory stood was given in the present case by the defendants' firm as a part of their contribution to the capital, I am of the opinion that no registered document was necessary in pursuance of the agreement constituted by the two documents, namely, Exhibits F and 8. Even assuming for the sake of argument that a registered document was necessary, the plaintiff could not treat the contract as rescinded without giving a reasonable, time to the defendants to execute the requisite registered document. There is nothing on the record to indicate that the defendants ever refused to execute the registered document. It is admitted that no notice was given by the plaintiff to the defendants to execute such a document; and there is no evidence to show that the plaintiff or his men even verbally asked the defendants to do so at any time after the 15th April, 1951. It is well settle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given up at the time of hearing and there is nothing on the record to show that there has been a failure of justice on account of the trial of the suit at Patna. This contention of Mr. Chatterji must, therefore fail. 17. There are two more questions to be considered. The first question is whether all the defendants are liable for the claim of the plaintiff, if any. Defendants 2 to 7 are descendants of cue Binjraj who died 30 years ago. He had three sons, of whom two are defendants 2 and 5. The third son, Bhagirath, died about 40 years ago, leaving behind him two sons, who are defendants 3 and 4. Defendants 6 and 7 are sons of defendant No. 5. Kedarnath (defendant No. 8) is the son of one Kauai who died long ago, and defendant No. 9 is the minor son of Kedarnath. There is no dispute about these facts. Then, the case of the plaintiff is that Kanhai was a brother of Binjraj, while according to the defendants Kanhai belonged to another family. Further, according to the plaintiff, defendant Nos. 2 to 7 belong to one joint family, defendants 8 and 9 belong to another joint family and all the defendants are the proprietors of firm Ram Sahay Mall Rameshwar Dayal (defendant No. 1), while ..... X X X X Extracts X X X X X X X X Extracts X X X X
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