Mohammad Noor, J - (1.)This second appeal arises out of a simple money suit based on a hundi for Rs. 2,200, payable 60 days after the date of drawing which was drawn by a firm named Sastu Ram Ram Kishun on itself in favour of Thagan Sao Ramchander. According to the plaint, and the fact was not disputed by the defendants, Thagan Sao Ram Chander was the name in which Thagan Sao, the father of the plaintiffs, was carrying on his business, and Sastu Ram-Ram Kishun was the name of a firm of which one Bhagwan Das (now dead) and defendant 1 (his brother) were the partners. When Thagan Sao died the three present plaintiffs and their brother (now dead) succeeded to his business which was carried on by one Gopi Lal, their maternal grandfather, as their guardian in the same name of Thagan Sao-Ram Chander. It was during this period that the defendants borrowed the money and gave the hundi in question. Originally there were four plaintiffs, all minors. One of them died during the pendency of the suit which was continued by the remaining three. The defence, so far as it is relevant for the purposes of this appeal, were two: first, that the suit was barred by limitation, and, secondly, that the defendants were entitled to a certain set-off against the plaintiffs claim. There was a third defence, which related to interest. The defendants case was that the money, namely Rs. 2,200, was not a loan but was kept in deposit with them and that they were not liable for interest. This last plea was overruled by both the Courts below and has not been pressed before us. "We are therefore concerned with the two pleas, namely that of limitation and set off.
(2.)Coming to the plea of limitation, the plaint on the face of it, apart from other- considerations, was barred by limitation as the suit was instituted more than three years after the due date of the hundi. The plaintiffs in their plaint sought to save limitation by stating certain payments made by the defendants which, would give them a fresh start of the period of limitation. These payments-were held by the trial Court not sufficient to save the suit from limitation, but it held that it was not barred by limitation, as all the plaintiffs were minors. This view was upheld by the Court of appeal below. It has been contended before us by the learned advocate for the appellants, that as the hundi was drawn up not in favour of an individual but that of a firm, the firm cannot get the benefit of Section 6, Limitation Act. His argument, as-far as I have been able to follow it, may be summarised thus: (1) that the hundi was in the name of a firm, (2) that the firm had an adult agent or manager, (3) that as the firm, though the partners were minors, could sue through its agents or manager, the benefit of Section 6, Lim. Act, is not available to the plaintiffs. In my opinion, there is no force in this contention. In the eye of the law, a firm has no existence apart from the members which constitute that firm. A firm is not a person either natural or artificial and it is a person who can sue and be sued. "Firm" was defined in Section 239, Contract Act, (the chapter in which this section occurred has since been repealed and has been replaced by the Indian Partnership Act) thus: "Partnership" is the relation which subsists between persons who have agreed to combine their property, labour or skill in some business, and to share the profits thereof between them. Persons who have entered into partnership with one another are called collectively a firm.
(3.)The definition of firm has been made more clear by the Indian Partnership Act of 1932, which says "persons who have entered into partnership with one another are called individually partners and collectively a firm , and the name under which their business is carried on is called the firm name. The name under which partners carry on a particular business is in fact the name of the, partners taken as a whole. Firm is not a juristic persona to be taken cognizance of as such by the law, such as, an idol or a corporation is. No doubt the Civil P. C., when it was re-enacted in 1908, allowed partners collectively to sue or to be sued in the name which the partners collectively adopt for the, purpose of transacting their business. It is a facility, given by the legislature in order to avoid mentioning large number of names either in the category of the plaintiffs or in the category of the defendants. It is to be noted that the Code does not allow the firms to sue or be sued. It allows the individuals constituting the firm to sue and be sued in the name of the firm. The privilege is given to persons, but the Code does not treat the firm as a juristic persona. I cannot do better than to quote a passage from Mulla's well-known treatise on the Indian Contract Act. Under Section 239, the learned commentator says: But the Common Law has no means of admitting any kind of legal existence between that of a formally constituted corporation and that of an individual human being (though the procedure of Courts of equity can go near it in what are called representative suits); and for English jurisprudence the firm is only a compendious name for certain persons who carry on business or have authorized one or more of their number to carry it on, in such a way that they are jointly entitled to the profits and jointly liable for the debts and losses of the undertaking.