KANTILAL CHANDULAL PATWA Vs. CHHOTALAL SHANKERLAL TRIVEDI
HIGH COURT OF GUJARAT
KANTILAL CHANDULAL PATWA
CHHOTALAL SHANKERLAL TRIVEDI
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(1.) PRONOTE was executed by one Ramanlal on behalf of the firm of Chandulal Chhaganlal. In a suit based on a PRONOTE filed against the two defendants namely Ramanlal Chandulal and Kantilal Chandulala decree was passed against both the defendants. The suit was filed against the two defendants showing them as partners of the firm of Chandulal Chhaganlal. It is nowhere stated in the plaint that the firm was a Hindu joint family firm but in the plaint the names of both the defendants were shown as partners. The learned Judge who decided the suit did not go into the question whether the two defendants were partners of the firm but he held that the shop running in the name of Chandulal Chhaganlal was a Hindu undivided family firm shop. This finding is not justified because there is no averment in the plaint that the firm is a Hindu undivided family firm. Even if the firm consists of some coparceners of a Hindu undivided family it does not become a Hindu undivided family firm. The expression Hindu undivided Family firm is a technical expression having a special meaning. A firm does not become a Hindu family firm merely because the coparceners of a Hindu undivided family or some of them are its partners. In the case of an ordinary firm there must be a partnership agreement. In the case of a Hindu undecided family firm there is no need of a partnership agreement because the Hindu undivided family firm comes to the family from the ancestors. There is no evidence of such Hindu undivided family firm In fact there is no averment in the plaint that there is any Hindu undivided family firm so that all the members of the Hindu undivided family would become the partners and would be liable. No partnership agreement has been proved. The promissory note has been executed only by Ramanlal. The decree passed against Kantilal is improper because Kantilal had not executed the PRONOTE and he is not proved to be a partner of the firm of Chandulal Chhaganlal. There is no averment in the plaint that the firm is a Hindu undivided family firm so as to make all the coparceners of the Hindu undivided family liable for the debt of the firm The view of the learned Judge that under the Hindu Law jointness is to be presumed unless proved otherwise and therefore the said shop running in the name of Chandulal Chhaganlal was a Hindu undivided family firm is faulty. A firm run by a Hindu undivided family does not become a joint Hindu family firm.
(2.) THE decree of the lower Court is therefore modified and the decree so far as it relates to Kantilal is set aside. No order as to costs.;
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