Sir Madhavan Nair:-

This is an appeal from a decree of the High Court of Judicature at Patna dated 24th August 1939, which affirmed with a slight modification a decree of the Subordinate Judge of Dhanbad dated 29th March 1934, as amended by order dated 31st May 1934. The appellants before the Board are defendants 1 to 3, who are the sons of one Goa Petha deceased. They are the principal defendants in the suit. The others (defendants 4, 5 and 6) are pro forma defendants one of whom, defendant 4, the Official Assignee of Bombay, representing the estate of Gopaldas Tricumji, and Morarji Jairam, insolvents, was afterwards added as a co-plaintiff (plaintiff 4) by an order of the Court. The insolvents are two of the members of plaintiff 1-a firm.

The appeal arises out of a suit for dissolution of a partnership between plaintiff 1 and Goa Petha, with respect to some coal lands and colliery business in Jharia Coalfields, and for rendition of accounts. The business of the partnership was carried on at Cutch, outside British India. Plaintiff 1 "Tricumji Jivandas" is described in the plaint as a firm. Plaintiff 2, "Khimji Poonja Co." are a firm who have a charge on the share of plaintiff 1, in the lands and business, for the money advanced by them to the said plaintiff. This charge was declared by the Bombay High Court in suit No. 751 of 1924. Plaintiff 3 had been appointed receiver in connexion with that suit. These are the principal respondents in the appeal, and there is no dispute inter se before the Board.

One Tricumji Jivandas, a native of Cutch who died in or about 1890, carried on business in various places in his own name. After his death, the business was continued by seven of his eight sons, named in the sub-joined table and their descendants, by a succession of partnerships to which they gave his name, Tricumji Jivandas. In course of time some members died or retired and the firm was carried on by the other members of the family. Gopaldas Tricumji was the managing partner of the firm. The following table, and the dates mentioned below, taken from the printed case of the respondents, will be helpful in following the successive partnerships.

Haridas, Lalji and Devji retired in 1909 Gokuldas retired in 1910. Jairam died in 1914 leaving two sons, Morarji and Khemji, who became partners on their father's death. Ranchoddas retired in 1917. Anandji, the son of Gopaldas, became a partner in or about 1922. Khemji died in 1930 leaving a minor son Mohun Singh who was admitted to the benefits of the partnership in his father's place. Gopaldas was adjudicated insolvent on 2nd April 1930. Morarji was adjudicated insolvent on 2nd March 1931. Referring to plaintiff 1, it was stated in para. 1 of the plaint that "its present partners, besides the said Gopaldas Tricumji (one of the sons of Tricumji Jivandas) are his nephews Morarji Joyram and Mohan Singh Khemji and his son Anandji Gopaldas, who is the present managing partner of the firm." These were the only members of the Tricumji family, who had interests in the firm at the time of the institution of the suit, on 11th December 1931, but whether, in law, they can be said to represent the partnership for the purposes of carrying on the suit, in the name of plaintiff 1 described as "Tricumji Jivandas a firm," is a question which their Lordships will have to consider in this appeal.

The following facts are now beyond dispute : In the year 1900, the firm of Tricumji Jivandas entered into a partnership with Goa Petha, the father of the appellants, and one Bishram Karman, to acquire lands in Jharia Coalfields and work them as a colliery. The shares of Tricumji Jivandas and Bishram Karman were 1½ annas each, and the share of Goa Petha was 13¼ annas. In case of profit, one anna was to be spent on charity. Thus, the income was to be taken as 17¼ annas, if there was profit, and 16¼ annas only if there was no profit. The funds for working the business were supplied by Tricumji Jivandas, and the management w