The central legal point established in the judgment is the distinction between a joint family business and a contractual partnership, and the permissibility of bringing a suit under Order 30, Civil P. C. in the name of the firm.

JUDGMENT

Buckland, AG. C.J.

1. The hearing of this suit began on 2nd January last on which day several witnesses were examined on behalf of the plaintiffs. The learned Advocate-General, who appeared on behalf of the plaintiffs, on 3rd January applied for an adjournment of the hearing in order to make an application to amend the plaint. In allowing that application I delivered a short judgment for reasons which I gave. On 16th January next ensuing an application to amend the plaint was made by the learned Advocate-General, and again I delivered a judgment to which reference also can be made for information as to the earlier history of the suit. The affect of the amendment has been to change to a considerable extent the nature of the suit, which observation is introductory only.

2. Among the witnesses called on 2nd January was one called Bhramarmal who said he was a partner in the plaintiff firm. No other witness so describing himself was called until today when a young man of the name of Pushraj was put into the witness-box. It occurred to me to inquire whether the business carried on by the plaintiffs was a joint family business or whether the business was a contractual partnership. From what Pushraj said it was clear that it was a joint family business. But he being a youth and probably having less knowledge of the matter than Bhramarmal, a man of more mature years, I directed Bhramarmal to re-enter the witness-box and pat to him some questions on the point. The learned Advocate-General then questioned him and he was cross-examined by Mr. Page on behalf of the defendants. On the evidence given by these two witnesses I am satisfied and hold that the business carried on by the plaintiffs is a joint family business and not a contractual partnership. The suit has been brought Under Order 30, Civil P. C., in the name of Messrs. Lalchand Amonmal, a firm carrying on business, etc., and the question arises whether that is permissible. The partnership Act which came into force on 1st October 1932, makes it quite clear that members of a Hindu undivided family carrying on a family business as such are not partners. But that Act does not apply to this suit, though I may quote from Section 5 which states no new principle when it enunciates that the relation of partnership arises from contract and not from status.

3. I had occasion to consider the point in Shiva Prosad and Sons v. Ormerods (India Ltd., Suit No. 1207 of 1925, when I decided that a Hindu undivided family carrying on business was not entitled to sue as a firm Under Order 30, Civil P. C. On appeal (Appeal No. 101 of 1927) the judgment dismissing the suit was affirmed, but on the merits, and the learned Judges therefore had no occasion to and did not consider this point which is regrettable for I have known it arise on several occasions though to avoid risk, steps have been taken to cure the defect before the hearing. As my former judgment is not reported and I have nothing further to add to what I stated on that occasion I will reproduce the material portion in full:

A point has been taken on behalf of the defendant company that the suit is not maintainable in the form in which it has been brought. It has been brought by Sivaprosad and Sons as a firm carrying on business in Cawnpore and in Calcutta. That is clearly a suit by a firm instituted Under Order 30, Civil P. C. In the course of his evidence the plaintiff said that the partners were himself and his sons, the eldest of whom was about 18 years of age and the others were minors. He said that they were partners by virtue of the fact that they were all members of a joint Hindu Mitakshara family; he said there was no agreement between them which would be necessary to make contractual partnership. The objection is taken that in these circumstances the suit cannot be brought under Order 30, Civil P. C. This is a question which is not covered by authority and so far as experience goes, it has been touched upon but never decided. Ord