1. This is a first appeal brought by the plaintiff Mt. Basanti Bibi whose suit has been dismissed by the trial Court on the sole ground of limitation. The family tree is as follows:
2. The property in suit is a ginning factory and cotton press situate in the town of Hathras. The plaintiff Mt. Basanti Bibi is a married lady living in Bihar in the District of Monghyr. Her plaint asks for the following reliefs:
That it may be declared that the plaintiff is the sole owner of 1 annas share which belonged to Lal Ram Narain (her father) out of the five annas share of the firm Eadha Kishan Sita Ram and that defendant 9 (one Seth Chiranni Lal) has right to a five pie share appertaining to the share of Ram Narain which was sold to him by defendants 6 to 8, who had purchase it from defendants 4 and 5.
3. The plaint further asks for the relief of profits from Sambat in 1967 (1910–1911) up to the date of suit. The plaint sets forth that Ram Narain died at some date which is not stated and subsequently his widow Mt. Shib Bai died on 31st June 1916, but Mt. Shib Bai did not receive her share of profits since Sambat 1967. Defendant 1 is the present manager of the factory and his plea in his written statement is that he has a certain number of years' profits with him, and that he is ready to pay to whoever is found by the Court to be entitled. The plaintiff and her mother before her undoubtedly took no action whatever to demand the shave of profits which were annually due to then from this factory. It is shown by the learned counsel that in 1915 suits were brought by the different member of the family claiming part of the shar of profits as heirs of the decease Rai Narain and on 18th May 1921, defendants 6 to 8 sold the share which the claimed had come to them on the deat of Ram Narain to defendant 9. To points have been argued in this appeal one the question of limitation, and, secondly, the question of the rights of de fendant 9 Seth Chiraunji Lal as bona fide purchaser of value under Section 41 of the TI Act. We will first deal with the question of limitation.
4. The trial Court has applied Article 120 Lim. Act, and also Section 253(10) of the Contract Act. In the opinion of the trial Court or the death of Ram Narain the partnershii in the firm of Radha Kishan Sita Ran was dissolved, and the whole of the present claim of the plaintiff is time barred. As regards this alleged dissolution the facts are that the whole of this factory is owned as a partnership by a large number of persons, we are told, about in number. The five annas share in the factory was owned by the members of the family to whom the father of the plaintiff belonged. The trial Court has assumed that five annas share was a partnership within the partnership which consisted of the factory partners. That is a very peculiar view of law, and we do not consider that such a view is consistent with the definition of partnership in Section 239 of the Contract Act. The section states:
“Partnership is the relation which subsists between persons who hive agreed to combine this property, labour, or skill in some business and to share the profits thereof between them.”
5. Persons who have entered into a partnership with ope another are called collectively a firm. If there were to be a partnership then the definition under S. 239 would have to be altere 1 to read that partnership is the relation which; subsists between persons, or between ??? sons and a firm, or firms. We consider, therefore that we cannot regard the owners of the five annas share in the factory as forming a separate partnership we consider that there was only one ??? owning the whole factory.
6. The next question which we consider whether S. 253(10) is applicable to be partnership of the factory. That sacra states:
“In the absence of any contract to the ???, the relations of partners to each other are ??? by the following rules.”
7. Now if in the case of this factory ??? the death of every one of the 30 ??? was to ??? dissolve the ???, a great deal of practical in-??? would result. The business is been going on for a very long time, id there is no evidence whatever on the ??? that the business has been treated ??? dissolved on each of the occasions on ??? one of the 30 owners died. We ??? therefore that in the present ??? there must be presumed to be an ??? contract to the effect that the death of one of the partners of this factory will of dissolve the partnership business, further, it is not alleged in any of the ??? that there is any dissolution of he partnership on the death of a partner we consider therefore that the trial.” Court was not correct in coming to the conclusion that the death of Ram ??? a dissolution of the partnership. Slow the question is what is the correct article to apply to the present suit under he Limitation Act. We are of opinion that the correct article is Article 141, which applies to a suit for possession of an immovable property by a Hindu entitled to the possession of the immovable property on the death of a Hindu female.
8. The present plaintiff became entitled to possession on the death of her mother Mt. Shib Bai which we find to have taken place on 21st June 1916. The factory ‘consists of immovable property, and accordingly Article 141 is the correct article ??? apply. Article 120, which is only applicable, when there is no other article which applies, is not the proper article for this case. It was argued that this was not a suit for possession of immovable property. But we consider that the criterion to apply is whether the title of the plaintiff is still subsisting or not. We may draw an analogy from a suit for profits brought by a cosharer in a mahal. Such a suit is within limitation if the title of the cosharer is shown to be still subsisting, and the title is subsisting if the plaintiff is within the rule of 12 years limitation. Accordingly as the present suit was brought within 12 years of the death of Mt. Shib Bai in 1916, the suit is within limitation.
9. The next question which we have to consider is that urged by the learned counsel for Seth Chiraunji Lal as to whether his client defendant 9, should have the benefit of Section 41 of the Transfer of Property Act. Defendant 9 did not give evidence as a witness to show under what circumstances he acquired the share in this partnership by the sale-deed of 18th May 1921, and whether he made the enquiry which is necessary under S. 41 before a person can receive the protection of that section. He has only put forward one witness Bhiko Mal, who is his agent, and that witness does not even state that he negotiated the sale deal. Defendant 9 therefore has failed to prove that he made the necessary enquiry to ascertain that his vendors had power to make the sale deed to him. Accordingly we hold that Feth Chiraunji Lal is not entitled to the benefit of Section 41 of the Transfer of Property Act. As a result we set aside the decree of the trial Court and we remand this case for decision on the remaining issues. In regard to limitation it is no doubt possible for these defendants who have received profits which should have coma to the heirs of Ram Narain, to plead that Article 62, Lim. Act, will be a bar to the suit of the plaintiff. That however is a matter for the trial Court to determine. But so far as defendant 1 the manager of the factory is concerned, Article 62 would not apply to funds in his hands. Costs here and hitherto incurred will be costs in the cause.
B.V/R.K
10. Appeal allowed; case remanded.