TMI Blog1951 (10) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... e view that, even if the plaintiff were to establish all the facts alleged by him the Court would have no jurisdiction. In that view of the matter, a preliminary issue on a demurrer will arise, and that would undoubtedly be an issue of law. But there may be a case where an issue as to jurisdiction would require leading of some evidence, in which case an issue of jurisdiction would raise a mixed question of law and fact. Such an issue may be tried as a preliminary issue, or it may be tried as an issue along with other issues. This would depend upon whether the evidence with regard to jurisdiction could be separated from the evidence on other, issues. Therefore, it would not be correct to say that in all cases an issue as to jurisdiction is necessarily an issue of law. This position is made perfectly clear in the judgment of Sir Beaumont in 'SOWKABAI v. SIB TUKOJIRAO HOLKAR', 34 Bom L R 6. (3) One Ramlal died in 1881, leaving two sons Gan-patrai and Ishwardas. The plaintiff and defendants Nos. 7, 8 and 9 represent the branch of Gan-patrai, and defendants Nos. 1 to 6 represent the branch of Ishwardas. The plaintiff attained majority on October 26, 1937, and he executed a wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perienced within jurisdiction merely because some of the properties which were the subject-matter of the document were situated within jurisdiction. Two views are possible on this question. One is that it would be a material part of the cause of action for the plaintiff to aver that the document operated upon certain properties, and, therefore, he was likely to suffer injury in respect of those properties. The other view is that the only material allegation in a suit under Section 39 of the Specific Relief Act is a reasonable apprehension that a particular instrument might cause a party serious injury. If the former view were correct, then the existence of some properties within jurisdiction, upon which the document would operate, would undoubtedly constitute a part of the cause of action. And in such a case, with leave under Clause 12 of the Letters Patent, the Court would have jurisdiction to entertain a suit for cancellation. If the other view were correct, then the mere existence of properties within jurisdiction would not entitle the plaintiff to obtain leave under Clause 12 as no part of the cause of action could be said to have arisen within jurisdiction. The former v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pear to be relevant to be enquired into at all. It is unnecessary to consider which of the two views is right. (6) The first and the most important question that we have to decide is whether this Court has jurisdiction to try a suit for partition in whicti the properties to be partitioned are both immovable and movable properties. It is well settled that a suit for partition of immovable properties is a suit for land. And under Clause 12 of the Letters Patent, the Court would have jurisdiction in the case of suits for land or other immovable property if such land or property is situated within jurisdiction. The construction of Clause 12 has been responsible for more judicial decisions than perhaps any other clause in the Letters Patent, and many learned Judges have pointed out the various possible constructions to which the language of Clause 12 lends itself. But the view accepted by this Court is that, in cases of suits for land, if leave is taken under Clause 12, the Court can entertain such suits if part of the land or immovable property is situated within jurisdiction. It is not disputed that all the immovable properties which the plaintiff seeks to partition were situate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses . The first duty of the Court is to ascertain what facts constitute the cause of action. Having ascertained that, the next duty of the Court is to ascertain where these facts arose. It is perfectly true that the existence of a property at a particular place is not a part of the cause of action. What is a part of the cause of action is the existence of the property. But having ascertained that, the next question is, where did that fact, namely, the existence of the property, arise? And if the property is situated in Bombay, then, to the extent of that particular fact constituting the cause of action, the cause of action arises in Bombay. Certain facts constitute a cause of action irrespective of where they arise. But the importance of where they arise arises only in connection with the question of Jurisdiction. It is only in order to determine the jurisdiction that the question has to be considered as to where certain facts arose. Therefore, in any opinion, if the existence of property is a material fact constituting a part of the cause of action in a partition suit, then the location of the property must be considered in order to determine the jurisdiction of the Court. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, at that date, the suit, to the extent that it related to a partition of immovable property being a suit for land, was liable to be dismissed. But it is impossible to understand logically why the Court would have no jurisdiction to entertain this suit to the extent that it sought partition of movables situated within jurisdiction. For this contention, reliance is placed upon a judgment of Mr. Justice West in 'J AIR AM NARAYAN v. ATMA-RAM NARAYAN', 4 Bom 432. In that case, the plaintiff sued the defendant for partition of family property, which consisted both of movable and immovable property. The movable property was within jurisdiction, but all the immovable property was outside jurisdiction. No leave under Clause 12 had been taken. As I understand the judgment, what it really decides is that the Court cannot try a mixed or combined suit for partition of immovable and movable property if all the immovable property is situated outside jurisdiction, and that the presence of movable property within Jurisdiction cannot confer jurisdiction upon the Court to try a suit for partition of immovable property. Frankly, there are observations in the learned Judge's j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en, and the Madras High Court held that the leave was wrongly given as all the lands were situated outside jurisdiction and as leave, when a suit is for land, could only be given if part of the land was situated within jurisdiction. Therefore, the Court dismissed the suit as far as land was concerned and allowed the suit to proceed as far as movables were concerned, it is rather interesting to note that, in doing so, the Madras High Court followed the judgment Of Mr. Justice West in 'JAI-RAM NARAYAN V. ATMARAM NARAYAN', and that they adopted the construction placed by Mr. Justice West on Clause 12. I may point out that in 'JAIRAM NARAYAN v. ATMARAM NARAYAN', the question of leave did arise because it was attempted to be argued that leave had been given in that case. Mr. Justice West held that leave was not given, and he also held that no question of leave arose because, on a true construction of Clause 12, leave in a suit for land can only be granted provided part of the land was situated within jurisdiction. In a suit for land, in granting leave, no question arises as to whether the cause of action has or has not arisen within jurisdiction. The other decision is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in Bombay. Now, as I said before, the defendants represent two branches of the joint family. Among the defendants, there are minors and females. And the very interesting question that was debated at the bar was whether it could be said in law that all the members of a joint family are carrying on business if the 'karta' of the joint family as manager carries on an ancestral business. In this case, the plaintiff's allegation is that defendant No. 1 is the 'karta' of the joint family, that he carries on business in Bombay, that the business is ancestral, and that, therefore, through defendant No. 1 the whole Joint family and every member of it carries on business within Jurisdiction. Now, what does the expression carry on business as used it Clause 12 of the Letters Patent really denote? It will be noticed that the scheme of Clause 12 is to confer jurisdiction upon the Court With regard to suits other than suits for land, in the first instance in relation to the cause of action. That jurisdiction is not exercised 'in personam' because, even though the defendant may not be within jurisdiction, the Court can exercise its jurisdiction in relation to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs to their Lordships that the Letters Patent intended it to relate to business in which a man might contract debts, and ought to be liable to be sued by persons who had business transactions with him. Therefore, in my opinion, the test of carrying on of business is that the man who carries on business must be in a position to contract debts in relation, to that business so as to make himself personally liable: liable in such a way that he can be personally sued on those debts which he has contracted. It may be that, in certain cases, the defendant may not personally contract the debts because he may not be personally and physically carrying on the business within jurisdiction. He may carry on the business through an agent; but even so, the agent through whom he carries on the business must be such an agent as to be in a position to contract debts on behalf of his principal which would make the principal personally liable for those debts. It has also been said that, if business is carried on through an agent, the agent must be a special agent who attends exclusively to the business of the principal and carries it on in the name of the principal and not a general agent who does b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the joint family. But the partners will only be the 'karta' and the stranger or strangers. If a creditor of the partnership files a suit against the partners, although he may get a decree only against the 'karta', he would be entitled to execute the decree against the other coparceners see 'MULGUND CO-OPERATIVE CREDIT SOCIETY v. SHIDLINGAPPA ISH-WARAPPA, 43 Bom LB 807, but with this important reservation that, whereas he could execute the decree personally against the 'karta', he would not be able to execute the decree against the other coparceners personally but only to the extent of their share in the joint family property. (10) Now, this being the position in Hindu law, can it be said that, when a 'karta' carries on ancestral business, it is the joint family as such and every member of that family -- females and minors included -- who carry on the business within the meaning of Clause 12 of the Letters Patent? Let us apply the test, which I suggested is the proper test. Can it be said that the 'karta' of a, joint Hindu family is an agent of the joint family for the purpose of carrying on the business of the joint family in the sens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Privy Council was considering was the position of a manager of a joint family 'quao' the other coparceners, and the view of the Privy Council was that a manager is not the agent of the coparceners. This principle would equally well apply when a 'karta' is carrying on ancestral business : he is not carrying on that business as an agent, but more as a trustee on behalf of the beneficiaries who are the coparceners. Reliance was also placed by Mr. Desai on the decision in 'LACHHMAN DAS v. COMMR. OF INCOME-TAX, PUNJAB, N.W.F. AND DELHI PROVINCES, LAHORE', 74 Ind App 277 PC, In that case, the only question that came to be considered was whether a partnership could be formed between the 'karta' of a Hindu joint-family, representing the undivided family, and a member of the undivided family. And the Privy Council held that such a partnership could be formed. Mr. Desai has relied on the observations of Mr. Jayakar delivering the judgment of the Court at page 284 that, though in its nature a joint Hindu family may be fleeting and transitory, it has been regarded as capable of entering through the agency of its 'karta' into dealings with othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khroli was brought within the ordinary original civil jurisdiction of this Court from April 3, 1950. Therefore, when the suit came on for hearing before Mr. Justice Shah, the immovable property situated at Vikhroli was situated within the ordinary original civil jurisdiction of this Court. And the question that arises for determination is whether, notwithstanding the fact that the Court had no jurisdiction with regard to this property at the inception of the suit, this Court can try the suit with regard to this property by reason of the fact that jurisdiction was subsequently conferred on it. Mr. Justice Shah has taken the view that, by Section 7 of Act VIII of 1950, all pending proceedings are stayed, and the pending proceedings shall be continued in that Court where they were pending as if the new Act had not been passed, and such Court shall have, for the purpose of pending proceedings, all jurisdiction and powers which it had immediately before the Act came into force. Now, obviously, this section cannot apply to this suit; it only applies to those proceedings which were instituted in Courts with jurisdiction and where the jurisdiction was subsequently taken away from the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovable properties. Now, as I have pointed out before, in the case of a suit for land, the Court has jurisdiction to entertain the suit even though some of the lands are situated outside jurisdiction, provided some lands are situated within jurisdiction and leave has been obtained under Clause 12. But the very foundation of the jurisdiction of the Court is leave granted on the basis of some immovable property situated within jurisdiction. Now, the granting of leave is a judicial act, and the Court must judicially consider the fact of some property being within jurisdiction, and, on the consideration of that fact, proceed to give leave under Clause 12. In this case, it is clear that there was no averment of any property being situated within jurisdiction. In fact, there could be no such averment, because at the date of the inception of the suit no immovable property was, in fact, situated within jurisdiction. Therefore, although leave was granted under Clause 12, it was not granted for the purpose of enabling the Court to entertain a suit for land. Mr. Desai says that there are two authorities of this Court in 'RAMPURTAB SAMRUTHROY v. FREM-SINGH CHANDAMAL', 15 Bom 93 and & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 has been obtained. Bhagwati, J. (16) The plaintiff who resides at Amritsar filed this suit against his first cousin, his two sons and one daughter, his wife, his mother and the plaintiff's own two sons and wife, who were all residing at Amritsar, and Cawnpore, for a declaration that a document dated April 15, 1944, executed by him in favour of his first cousin was void and inoperative and for partition of all the movable and immovable properties belonging to the joint family constituted by his branch as well as the branch of his first cousin and for ancillary reliefs. In so far as none of the parties resided in Bombay the cause of action for the purpose of jurisdiction in this Court was set out by the plaintiff in paragraph 23 of his plaint as under:-- That the business in the name and style of Ram-lal Ganpatrai was and is being carried on in Bombay by the plaintiff and the 1st defendant as members of a joint and undivided Hindu family and in partnership with outsiders and the shares of the plaintiff and the 1st defendant in the said business is ancestral joint family property in their hands. He contended that therefore all the defendants carried on business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be disposed of, postponing the raising of other issues. Mr. M.V. Desai was not quite correct when he submitted that the issue of Jurisdiction was a pure issue of fact. An issue as to jurisdiction can be an issue of law or an issue of fact or a mixed issue of law and fact, and the duty of the Court to try the issue of jurisdiction as a preliminary issue does not arise in all cases.Order XIV, Rule 2, of the Civil Procedure Code, lays down that: -- Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The obligation is laid on the Court to try the, issue of jurisdiction as a preliminary issue only if it is an issue of law, and in that event the Court would be justified in postponing the raising of other issues. When, however, the issue of jurisdiction is either an issue of fact or a mixed issue of law and fact, the procedure is laid down in the decision of our appeal Court in 'SOWKA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... movable property on the one hand and all other cases on the other. In the case of suits for land this Court would have jurisdiction to entertain the same if the land was situated, wholly, or where the leave o the Court has been first obtained, in part, within the jurisdiction of this Court. In all other cases this Court would have jurisdiction to entertain the same if the cause of action had arisen either wholly or in case leave of the Court had been first obtained in part within jurisdiction or if the defendant at the commencement of the suit dwelt or carried on business or personally worked for gain within jurisdiction. (22) The immovable properties comprised in this suit were situated at Karachi, Vikroli, Amritsar ami other places and the movable properties were situated in Bombay as well as other places. At the date of the institution of the suit none of these immovable properties was situated within the jurisdiction of this Court, because Vikroli was not within the limits of Greater Bombay as defined by the Bombay Act XVII of 1945. This Court had therefore no jurisdiction to entertain a suit for partition of the immovable properties comprised in the suit as no part thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in the suit as leave under Clause 12 of the Letters Patent had been granted by the Court at the commencement of the suit. It was lastly contended that this Court had jurisdiction to entertain the suit for partition of all the moveable properties because some of the moveable properties were situated within jurisdiction and with leave granted under Clause 12 of the Letters Patent this Court would have jurisdiction to entertain the suit for partition of all the moveable properties belonging to the family. It was further urged in this connection that the business which was carried on by the plaintiff and defendant No. 1 in the name of Rarnial Ganpatrai in Bombay having been crnea on by them as the members of a joint and undivided Hindu family, though in partnership with outsiders, was a joint family business, the shares therein were held by the plaintiff defendant No. 1 as ancestral family property in their hands and that therefore all the defendants who were interested in that business should be deemed to be carrying on business within jurisdiction, with the result that the suit for partition of the moveable properties belonging to the joint family being not a suit for lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affected by the document was situated. (25) Reliance was further placed on a decision of the Madras High Court reported in 'N. ACHAYYA v. N. YELLAMMA AIR 1923 Mad 109. That was a suit by the plaintiff as one of the two nearest reversioners to the estate of a deceased Hindu for a declaration that the will set up by his widow as having been executed by him and as giving her absolute rights in his properties was a forgery and was void against him and for obtaining its cancellation. Mr. Justice Venkatasubba Rao followed the decision in 'HADJEE ISMAIL HADJEE HUBBEEB v. HADJEE MAHOMED HADJEE JOOSCJB', 13 Beng LR 91 and observed (p. 112): ....If the document is sought to be used to the detriment of a person at a particular place, the cause of action doubtless arises also at that place. 'BANKE BEHARI LAL v. POKHE RAM', 25 All 48. I fail to see, then, why if the document affects the right of a person to a property situated at any place, the cause of action does not arise in that place. The mere existence of the instrument apart from any specific act of the person who relies on the document, prejudicially affects the right of the plaintiff, to the property. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Judge observed in the course of his judgment that for such a suit the place where the document was executed and the place where the reasonable apprehension took place would constitute a cause of action and that the place or places where the different properties covered by the deed existed did not appear to be relevant to be inquired into at all. With great respect to the learned Judge, I fail to understand how one can distinguish the ratio of the two decisions in the manner he did. The very basis of a suit under Section 39 of the Specific Relief Act is the apprehension of injury to the plaintiff. No such apprehension of injury can ever arise if there was no property in which the plaintiff was interested and in regard to which a reasonable apprehension was felt by him. The existence of the property is therefore as much essential to the success of a suit as the existence of an apprehension, because if there was no property no apprehension could ever be felt by him. The existence of the property and the reasonable apprehension of injury to his rights therein are both necessary to be established by him, and if they are the essential parts of the cause of action, the existenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be comprised in the area by the enactment of Bombay Act VIII of 3950 and it was after the enactment of that Act that the jurisdiction of this Court was extended to Vikhroli. It is clear therefore that this Court had no jurisdiction at all to entertain a suit for partition of immoveable properties belonging to the family at the commencement of the suit. The question therefore which would arise for our consideration would be how far the enactment of Bombay Act VIII of 1950 made any difference to the position. There is authority for the proposition that it the law is changed at the date of the hearing, the Court should give effect to the changed law, and that it is the duty of the Court to administer the law of the land at the date when the Court ;s administering it, (See 'QUILTER v. MAPLESON', (1883) 9 QBD 672 and 'MUKERJEE, OFFICIAL RECEI-VER v. RAMEATAN KUER', 63 Ind App 47 P. C.). It was contended that this being the law of procedure as distinguished from the substantive law, it would be retrospective in operation, and that this Court would have jurisdiction to entertain the suit for a partition of the Vikhroli property which came within jurisdiction by reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was neither a different cause of action nor an alteration of the cause of action as it had been originally framed, and reliance was placed on two decisions of our High Court reported in 'RAMPURTAB SAMRUTHROY v. PREMSUKH CHANDAMAL', 15 Bom 93 and 'MOTILAL v. SHAN-KAELAL', 41 Bom LR 535. In 'RAMPURTAB SAMRUTHROY v. PREMSUKH CHANDAMAL', it was held that : The grant of leave under clause XII of the Letters Patent, 1865 is a judicial act, which must be held to relate only to the cause of action contained in the plaint, as presented to the Court at the time of the grant. Such leave, which affords the very foundation of the jurisdiction, is not available to confer jurisdiction in respect of a different cause of action which was not judicially considered at the time it was granted. In respect of such a different cause of action, leave under clause XII cannot be granted after the institution of the suit; and, therefore, the Court cannot try such different cause of action, except in another suit duly instituted. Mr. Desai contended that what he was doing in the present case was not to rely on any different cause of action but to continue the suit en the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an only be confined to the land at Vikhroli which was comprised within the jurisdiction of this Court by the enactment of Bombay Act VIII of 1950 and this Court would have jurisdiction to entertain the suit for partition only of the land at Vikhroli. (30) The suit for partition of the moveable properties belonging to the joint family would be comprised within the category of all other cases mentioned in Clause 12 of the Letters Patent, and in that behalf we will have to consider how far a part of the cause of action can be said to have arisen within the jurisdiction of this Court, It was urged by Mr. Desai that the situs or location of the moveable properties within jurisdiction would invest the Court with jurisdiction, and reliance was placed in support of this contention of his on a passage from Diccy's Conflict of Laws, 6th edn., p. 33: 'Jurisdiction, founded on possession of property.'Ought the possession of immovable or movable property in a particular country to give the Courts thereof jurisdiction over the possessor? Two points must be carefully distinguished. The possession of property, whether land or goods, undoubtedly gives the Courts of the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I RAU v. RAMA RAU', 19 Mad 443 and 'ABDUL KARIM V. BADRUDEEN SAHIB', 23 Mad 216, where even though the suits comprised immovable as well as movable properties, the immovable properties being situated outside Jurisdiction, the suits were held not maintainable in regard to immovable properties outside jurisdiction but were allowed to proceed with regard to the moveable properties within jurisdiction. Reliance was lastly placed on the unreported judgment of Mr. Justice Kania in 'KANTILAL K. KAPADIA v. JAYANTT-LAL K. KAPADIA', O.C.J. Suit No. 553 of 1938, D/-13-7-39 above referred to where the learned Judge in circumstances identical with those obtaining in the ease before us observed: Under the circumstances I hold that the suit so far as it relates to movable property is within the jurisdiction of this Court. The principle which emerges from the above is that the situs or location of the movable property within jurisdiction invests the Court with jurisdiction. The cause of action is the bundle of facts which are necessary for the plaintiff to establish in order to obtain the relief which he seeks at the hands of the Court and the jurisdiction of the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit for immovable property might in that way be drawn within another than the local jurisdiction. This decision was considered by the Madras High Court in 'ABDUL KABIM V. BADRUDEEN', 28 Mad 215 and the Court there observed (p. 222): ... In the latter case the observations of West, J. to which Moore, J. refers in his judgment were made with reference to the question whether leave to sue could properly be given, not with reference to the question whether the Court had jurisdiction as regards the property within the local limits of the jurisdiction. This is clear from the fact that the Court allowed the case to proceed with reference to the movable property within the limits of the jurisdiction, seeing that in both these cases, although the point does not appear to have been argued, the suit was only dismissed as regards the land outside the jurisdiction, it must be taken that the learned Judges were of opinion that the Court had jurisdiction as regards the movable property within the jurisdiction. The other case which was referred to above was the case Of 'SESHAGIRI RAU v. RAMA RAU', which followed the ratio in 'JAIRAM NAB AY AN v. ATMARAM NARAYAN' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the learned trial Judge is categoric on the point which on all hands is a very important one, we allowed Mr. Desai to argue that point also and we are recording our opinion in regard to that point as we have been invited to do. The interesting point which arises thus for pur consideration is whether the members of a joint and undivided Hindu family who are interested in a particular business carried on within jurisdiction can be said to carry on business within jurisdiction. Clause 12 of the Letters Patent requires that in all other cases where the cause of action has not arisen wholly or in part within jurisdiction, the defendant at the time of the commencement of the suit should dwell or carry on business or personally work for gain within jurisdiction. The words used are that the defendant should carry on business within jurisdiction and we have therefore got to determine what is the connotation of the words carry on business. The words carry on business have been judicially interpreted. In 'KIRPA RAM v. MANOAL SEN' AIR 1922 All 3G7, the learned Judges of the Allahabad High Court observed (p. 369): 'Carrying on biisiness' means, in this section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness in which a man might contract debts, and ought to be liable to be sued by persons who had business transactions with him. The test, therefore, is as has been laid down by their Lordships of the Privy Council that a person can be said to carry on business where he might contract debts and would be liable to be sued by persons who had business transactions with him. (34) A joint family in Hindu law can own a business. The business can be conducted with the funds of the joint family and all the members of the joint family would be interested in that business. The persons who would be, however, carrying on the business, though for the benefit of the joint family, would be the 'karta' or the manager or the adult members of the joint family. The minor members of the joint family as also the female members who would be interested in the assets of the joint family would not be carrying on that business. The business would be carried on by those members of the joint family who are in conduct of the same. All the assets of the joint family would no doubt be liable for the debts of that business which would be carried on by the manager or the adult members of the family ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the operation of the principles of Hindu law and not by reason of the application of any principles of the law of contract. The other members of the joint family arc not liable to be sued at the instance of the creditors of the partnership, though it may be that a creditor of the partnership who has obtained a decree against the manager may execute the decree which he has thus obtained, not only against the interest of the manager in the joint family properties but also against the interest of the other members of the joint family therein. The liability to pay the debts properly incurred by a manager acting within the scope of his authority and for the benefit of the joint family is thus quite distinct from the liability to be sued in respect of debts which are incurred by the manager in the course of a business which he is conducting or carrying on for the benefit of the joint family. This is the true position as it has been laid down by the authorities, and we find the position clearly laid down to this effect in 'GANGAY-YA v. VENKATABAMIAH', 41 Mad 454 and 'CHO-CKALINGAM v. MUTHUKARUPPAN', ILB (1938) Mad 1019. In 'GANGAVYA v. VENKATARAMIAH', it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... themselves. They do not enter into any transactions in the course of the partnership business. They do not contract debts or obligations in the course of that business. They are not liable to be sued in respect of the transactions of that business. They have a right no doubt as sub-partners or sub-sharers to go against the manager of the joint family or member or members of the joint family who have been put forward as partners with the outsider in that business. It does not, however, therefore follow that they carry on the partnership business which is the business by and between the outsider on the one hand and the manager of the joint family or member or members of the joint family on the other. To the same effect are the observations in 'CHO-CKALINGAM v. MUTHUKARUPPAN ILR (1938) Mad 1019 (p. 1027): When Narayanan embarked upon the M. P. N. partnership he did so as representing the family. That did not, however, make the members of his family partners. It is well settled law that a contract of partnership by a manager does not 'ipso facto' make the other members of the family partners;... .But this does not mean that where a manager of a trading family enters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt where the whole joint family enters into partnership with a stranger. But there all the members of the joint family who are capable of entering into partnership become partners with the outsider. The joint family is not a legal entity known to law, with the result that within the compendious description of the joint family, only those persons are comprised who are capable of entering into contractual relationship as partners and they only become partners with the outsider. Minor members of the joint family can never become partners with any outsider because an infant according to our law is incapable of entering into a contract. They may be admitted to the benefits of a partnership ; but that is the only extent of their interest therein. If such an event happens, then it is not the joint family which enters into partnership with the outsider. It is the individual members of the joint family who are capable of entering into contractual relationship that become partners with the outsider, and all the results of the partnership known to the law follow. The death of one of the partners dissolves the partnership. Each one of the partners has a controlling voice in the partnership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the principal within the operation of the said Section 17, Code of Civil Procedure, as interpreted by this Court. We do not, however, wish to be understood as saying that a member of a joint family, who actually consents to a trade being carried on on his behalf or by his conduct puts himself in the position of a joint trader, would, while he was living outside the jurisdiction, not be carrying on business within the jurisdiction. Such is not the present case as we have already stated. Though the learned Judges there make a distinction between an ordinary member of the joint family and a member who actually consents to a trade being carried on on his behalf or by his conduct puts himself in the position of a joint trader, in which latter event the person would be deemed to be carrying on business within jurisdiction, the mere fact of a person being interested in the joint family business and not taking up the position of a contracting party or holding himself out as a contracting party would not make any difference to the position. Such a person cannot be deemed to be carrying on business which is carried on by the manager of the joint family or a member or members of the join ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
