I.N.MODI, J. - (1.) THIS is a first appeal by the defendants Suraj -mal and others against the judgment and decree of the Civil Judge Merta dated 26 -10 -1953, by which he decreed the plaintiff's suit with costs and future interest.
(2.) THE facts leading up to this appeal may shortly be stated as follows. The plaintiffs Doon -garmal, Chunnilal and Vasudep, and defendants Nos. 4 to 7 Laxminarain, Lalchand, Bhanwarilal and Madanlal carried on business as commission agents for the sale and purchase of cotton at Gulab -pura and Bhilwara under the name and style of Chunnilal Chandanmal. According to the plaintiffs defendant No. 1 Surajmal and defendants Nos. 2 and 3 Shankerlal and Malchand, who are his sons, constituted a joint Hindu family, and carried on business in two names: the one being Surajmal Shanker Lal and the other Malchand Somani, and both Surajmal and Shanker -lal carried on business of the joint Hindu family firm though Surajmal was the Karta of the joint Hindu family. Malchand was stated to be a minor at the relevant time. The case of the plaintiffs was that the aforesaid joint Hindu family firm commenced transacting business under the commission agency of the plaintiffs' firm on Posh Sudi 7 Smt. 2003. Before proceeding further, it would be convenient to mention that it is admitted between the parties that defendant No. 5 Lalchand is the own brother of defendant Surajmal, and defendant No. 6 Bhanwarilal is his nephew on the paternal side and defendant No. 7 Madanlal is the nephew of Surajmal by his sister. The plaintiffs' case is that these three persons along with Laxminarain defendant No. 4 were in working charge of the firm at Gulabpura and Bhilwara, and that the plaintiffs themselves remained at Jaswantgarh their place of residence and were the financing partners. Reverting to the business allged to have been done by the joint Hindu family firm Surajmal Shankerlal under the commission agency of the plaintiff's firm, it is alleged that the following business was done at Gulabpura with the result mentioned against each of the items : S. N. Vaida Businessdone for Numberof bales purchased and sold. Loss orprofits if any. Commissionagency and other incidental charges. Totalamount due. 1. FalgunSudi 15 (S. 2003) Valda Surajmalhanker Lal 225 (AS per Sch. A annexed tothe plaint.) LOSS 4670 -3 -6 134 -7 -0 4804 -10 -6 2. Baisakh Sudi 15 (S. 2004) Vaida Do 225 (as per Sch. B annexed to the plaint.) 4457 -15 -3 109 -4 -9 4567 -4 -0 3. Asad Sudi 15 (S.2004) Vaida Do 1590 (as per Sch. C annexed to the plaint.) 4188 -8 -6 654 -4 -9 4842 -13 -3 14214 -11 -9 4. Balsakh Sudt 15 (S. 2002) Vaida M: 75 (Asper Sch. D annexed to the plaint.) 973 -12.0 113 -9 -6 1026 -0 -9 5. Asad Sudi 15 (S. 2004) Vaida Do 15 (Asper Sch. E annexed to the plaint.) PROFIT 61 -3 -9 (Theactual total comes to Rs. 1026 -1 -9 but by some error this lias baen shown 1026 -0 -9in the plaint.) TOTALLOSS of all the five Valdas. Rs. 15240 -12 -6 To the aforesaid total amount of Rs. 15240/ 12/6, the plaintiffs added some small items of expenditure incurred on account of their having sent telegrams to the contesting defendants amounting Rs. 10/4/ -, and they further added a sum of Rs. 809/ 11/3 by way of interest from Chait Badi 9 Smt. 2004 to Bhadwa Sudi 15 Smt. 2005 and in this way made up their claim for Rs. 16060/11/9. As against this amount, the plaintiffs gave credit to the said defendants for Rs. 5000/ - which had been re -ceived by them on Asad Sudi 2 Smt. 2004, and in this manner they stated that a sum of Rs. 11060/11/ 9 was due to them. The plaintiffs further stated that they had demanded the money many a time from these defendants but without any result, and so they filed the present suit on 10 -10 -1950, by adding a sum of Rs. 1462/11/6 as interest to the aforesaid amount of Rs. 11060/11/9, the total thus amounting to Rs. 12523/7/3. The plaintiffs further stated that as the other partners of the plaintiff's firm namely defendants Nos. 4 to 7 were not prepared to take any interest in realising the outstandings due from the contesting defendants, they were compelled to im -plead them as defendants in this suit.
(3.) DEFENDANTS Nos. 4 to 7 did not file any written statement and allowed the suit to proceed without appearing in spite of notice. The remaining defendants contested the suit, and filed a single Jawabdava. They raised all possible pleas. They contended that the firm Chunnilal Chandanmal was not constituted as alleged by the plaintiffs, but that its proprietors were only two in number : one being Jeewanmal son of Shivchand Rai (This Jeewan Mal is the brother of plaintiff No. 1 Doongarmal) and the other partner being Surajmal son of Jagan -nath and that they had no knowledge whatsoever that the plaintiffs' Nos. 1 to 3 and defendants Nos. 4 to 7 were at all partners of the firm Chunnilal Chandanmal or that they ever did business in that name. It was also contended in this connection that as the plaintiffs were not partners of the firm Chunnilal Chandanmal, they had no locus standi to bring the present suit. A further contention which was raised in the same connection was that this firm was not registered, and on that ground also the suit was not maintainable. The defendants also contended that they did not constitute a joint Hindu family, and that defendant No. 2 Shankerlal had separated from the family some years ago and that he alone did business in the name of Surajmal Shankerlal, and that defendant Surajmal never did any business with the firm Chunnilal Chandanmal. As regards the business, alleged to have been done by the plaintiffs firm with these defendants, it was admitted that Shankerlal alone in the name of Malchand Somani had once done a business of 25 bales of cotton with the firm Chunnilal Chandanmal on Falgun Sudi 14 'Smt. 2004, and that that was settled on Falgun Sudi 15 Smt. 2004, and that the only other business that he did with the plaintiffs' firm was when he purchased 500 bales of cotton in the month of Asad Section 200 (Vide Schedule C) and that he had also asked the firm to lay a double option in connection with that transaction. Leaving aside the above mentioned items, the defendants totallv denied the rest of the items contained in Schedules A, B, C, D and E annexed to the plaint. The defendants, however, admitted that they had given a sum of Rs. 5000/ - to the plaintiffs' firm as security, but their case was that certain differences arose between them and the plaintiffs as regards the business of 500 bales of cotton and that they had asked for return of the deposit of Rs. 5000/ - in one of their letters addressed to the plaintiffs about June, 1947, and it was on that account that the plaintiffs had come forward with a false and manufactured claim against them. Alternatively, the defendants contended that if the plaintiffs succeeded in proving that the former had transacted the entire business with the plaintiffs' firm as per Schedules A to E mentioned above they pleaded that how even one of the transactions in suit was a wagering transaction inasmuch as the plaintiffs did not possess the necessary finances to make all the purchases when they are stated to have been made and further that there was never any intention to give or take delivery of the bales purchased or sold, and no delivery was ever given or taken. Finally, the defendants pleaded limitation also, though they did not say how the suit was barred by time. ;