LexDEVJI @ DEVIJI SHIVJI versus MAGANLAL R. ATHRANA & OTHERS
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
1964
April 1
564
SUPREME COURT REPORTS
[l!J64-]
DEVJI @ DEVIJI SHIVJI
v.
MAGANLAL R. ATHRANA & OTHERS
[A. K. SARKAR, RAGHUBAR DAYAL AND J. R. MUDHOLKAR, JJ.J
Partner#.iip-Sub-lease granted to
partner of firm-No
intention to bind to firm-Can other partners of firm be liable
-Indian Partnership Act, 1932, s. 22.
The plaintiff appellant instituted a suit agaim.t the defen-
dants respondents for the recovery of a sum of Hs. 57,000/-.
The appellant was holding permanent lease hold rights over
a certain colliery. On January 31, 1949 the appellant granted
a sub-lease of the colliery to respondent No. 4 ior a term of 5
years. He joined respondents 1, 2 and 5 as defendants to the suit
on the ground that these three persons alcng with respondent
No. 4 formed a partnership firm knov..'n as Sa.urashtra Coal Con·
cern which was joined in the suit as defendant No.
5. The
appellant's case \Vas that respondent No. 4 \\·as. a be-nami.dar
"-
for the partnership firm
and.
therefore. all- the respondents
were liable for the
claim.
Hespondents 1 and 2 denied the
~ppellant's claim totally. According to them, respondent No. 4
took the sub-lease in his personal capacity and not on behalf
of the other respondents. Respondents 4 and 5 y:ho are father
and son, admitted the appellant's case that the lease was ob-
tained b:,• respondent No. 4 on behalf of the partnership firm.
The trial court passed the decree against all the respondents.
On appeal. the High Court set aside the decree as against res-
pondents 1 to :{ but affirmed the same against respondents 4
and 5.
Held: that Section 22 of the Indian Partnership Act, clear
ly provides that in order to bind a firm by an ~l\ct or an ins-
trument executed b;· a partner on behalf of the firm, the Act
should be done or the instrument should be executed in the
name of the firm, or in any other manner expressing or imply-
ing an intention to bind the firm. The sub-lease was not exe-
cuted in the name of the firm. On the facts of this case it \Yas
held that in obtaining the sub-lease. the parties to it did not
intend to bind the firm by that transaction. and therefore the
decree should be limited only against respondents 4 and 5.
Karmaii Abdullah Allarakia v. Vora Karimji Jiwanji, I.L.R
39 Born.
~GI. Gouthwaite v.
Duckworth. (1810) 12 East 421.
Mathui·a l\'ath Choudhuru
v. Sreej11kta BageS1vari Rani, 46
C.L.J. 362. Pandiri 11eeranna
v. Grandi
11eerflbhadrastvami.
I.L.R. -:i:l 1\1.Iad .. J:.-7. Lak~htnishankar Dei·shankar v.
Motiran1
Vishn11rcon, 6 B.L.R. 1106 and Gordhandas Chlwtalal Seth v.
Mahant Slzri Raghubirdasi Gangaramji. 3-l B.L.R. 1137, distin-
•'
guished.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No. 46
of 1961. Appeal from the judgment and decree dated July 17.
1958 of the Patna High Court in Appeal from Original
Decree No. 162 of 1952.
Sarjoo Prasad and D. N. Mukherjee, for the appellant.
R. C. Prasad, for respondents Nos. 1-3.
7 S.C.R.
SUPREME COURT REPORTS
565
April 1, 1964. The Judgment of the Court was delivered
1964
by
Devji @ De! iji
SMvji
MuDHOLKAR, J.-This is an appeal by a certificate
v.
granted by the High Court of Patna under Art. 133(l)(a)
ofMaganlalR.Alhrana
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appellant against the respondents for the recovery of a sum
Mudhalkw, J.
of Rs. 57,000/-.
/
The appellant holds permanent lease-hold rights over a
colliery called the J ealgora Govindpur Colliery and had
worked the colliery himself for some time. On January 31,
1949, he granted a sub-lease of the colliery to respondent No.
4 for a term of five years. At that time, 2803 tons of slack and
rubble coal was lying in the colliery, and under the terms
of a separate agreement executed by respondent Nf<l. 4, he
was liable to pay for this coal at the rate of Rs. IO/- per ton
after selling it. According to the appellant, this coal was sold
by respondent No. 4, but he was not paid its price amounting
to Rs. 28,030/-. Further, according to him, royalty and com-
mission were due to him from the respondents in respect of the
coal extracted by them from the colliery, as also Rs. 1.355/8/3
on account of a loan taken by them from him on February
17, 1949. The total claim was tentatively valued by him at
Rs. 57,000/-. He joined respondents I, 2 and 5 as defendants
to the suit on the ground that these three persons along with
respondent No. 4 formedExcerpt shown. Read the full judgment & AI analysis in Lexace.