Judgement

Consolidated Appeal (No. 121 of 1920) from decrees (January 31, 1919) of the High Court reversing two decrees (February 28, 1916) of the Subordinate Judge of Alipur.

The suits giving rise to the appeals were brought by the respondents against the appellant, a minor sued by his guardian ad litem, to recover the sums of Rs.5329 and Rs. 19,000; upon the appellant attaining his majority he adopted the defences put in by his guardian. The circumstances giving rise to the suits appear from the judgment of the Judicial Committee.

The Subordinate Judge found that the monies cued for had been borrowed exclusively for the Orphangunj business, which was not part of the ancestral businesses. He held that the Orphangunj business was not a joint family business, since it was not within the competence of the adult brothers, or the karta, to carry on the new business on behalf of the joint family. He therefore dismissed the suits.

On appeal to the High Court the learned judges (Chatterjea and Newbould JJ.) agreed with the view of the Subordinate Judge on the points above stated. They were however of opinion that the appellant had been "admitted to the benefit of the partnership" in the Orphangunj business within the meaning of

s. 247 of the Indian Contract Act, 1872. Although that section had not been specifically relied on in the plaint, they considered that it was sufficiently raised and that the defendant had suffered no prejudice by no issue having been framed as to it. The learned judges, after pointing out that it was difficult to see how a minor could enter into an agree ment, or consent to an agreement, as to his admission to a partnership, said "The karbar," i.e., the Orphangunj business," was started and carried on as a joint family business. So long as the family was joint, no specific allotment or distribution of profits was made among the members, but the accounts show that family expenses and even litigation expenses of the joint family of which the defendant was a member were met from the funds of the karbar; the minor was joined as co-plaintiff in suits for recovery of money due to the karbar, and lastly the decree in the partition suit shows that properties acquired from the funds of the karbar were allotted to the minor. It does not appear that the minor stood on a different footing from the adult members of the family for the benefit of which the karbar was started and carried on. All these go to show that the minor was admitted to the benefits of the partnership." The learned judges further held that having regard to the position taken up by the present appellant in an appeal arising out of the insolvency proceedings and the view expressed by the High Court in that appeal (see I. L. R. 42

C. 225, 239) he could not contend that the receiver alone was competent to deal with his share in the partnership property. The learned judges concluded as follows "In the result we direct a general account to be taken by the Court below with respect to the karbars and the properties left by Bhuban Mohan. The Court will determine on taking such accounts whether any property was allotted to the defendant as his share of the Orphangunj karbar or as part of his share of the ancestral properties and properties acquired out of the funds of the ancestral karbars generally. In the first case any such property received on behalf of the defendant will be liable for the claim of the plaintiffs. In the latter case the plaintiffs claim will have to be dismissed. If the finding on the above point is in the plaintiffs favour the Court below will have also to find whether the defendant on his attaining the age of majority retained any such property with full knowledge of the facts and with the knowledge that such property was received by his guardian on his behalf as his share of the Orphangunj karbar, in which event only the defendant will be liable personally for the plaintiffs claim. .... The decrees of the Court below are 3et aside and the