K TABDUL BADSHA SAHEB AND Vs. CENTURY WOOD INDUSTRIES

JUDGEMENT

(1.) The plaintiffs styling themselves as K.T.A. Rasheed & Coy.' by partners K.T. Abdul Badsha Saheb and K.T. Abdul Rasheed filed a suit against the defendant-respondent for recovery of some money due in connection with their having supplied some poles. Among other grounds the defendant intended that the firm of the plaintiffs was not registered in the books of the Registrar of Firms as required under the Partnership Act and that the suit is, therefore, not maintainable under Section 69(2), Partnership Act. The plaintiffs on the other hand contend that they are the sole-proprietors of the business which is not a firm in the strictest sense of the word and that though their company is not registered the suit filed by them is tenable. Both the Courts below have dismissed the suit on the ground that the plaintiffs' company is a firm and that it ought to have been got registered and as the same is not registered the suit is not maintainable.

(2.) The main point for consideration is whether the concern run by K.T. Abdul Badsha Saheb and his brother K.T. Abdul Rasheed under the name and style K.T.A. Rasheed & Coy., is a firm of partners or not. According to the evidence of K.T.A. Rasheed, the two brothers are living together and have not divided the properties which jointly belong to them. The two brothers sold a garden of theirs for Rs. 5,000/- and invested this sum in business. He states that there is no partnership agreement between them, but he admits that it he and his brother have to divide the profits, each of them will get half the profits. They have been acquiring properties jointly for the benefit of both of them. In cross-examination it has been elicited that either one or the other brother might take a loan and that payment may be made by either of them.

(3.) What has to be considered in this case is whether under the circumstances referred to above, it could be said that the concern run by K.T. Abdul Badsha Saheb and K.T. Abdul Rasheed is a partnership concern. According to Section 4, Partnership Act,