Report No. 27
Order XXX, rule 10
1. How far the word "person" in Order 30, rule 10, applies to an undivided Hindu family is a question on which there is some controversy. The Madras High Court1 has in one case held that it applies only to an individual. In that case, the firm consisted of four minors consisting of a joint undivided Hindu family, who were described as "R.M.P.M. Chettiar firm", etc. The court stated, that the whole of Order XXX was a reproduction of the rules in Order XLVIIIA of the Rules of the Supreme Court, and Order 30, rule 10 was based on Order 48A, rule 11 of the English Rules, which had been held to apply only to a single individual carrying on business under an assumed or trading name. The court also relied on the differences in language between rule 10 of Order XXX and rule 1, because while the former spoke of "any two or more persons", the latter spoke of "any person carrying on business".
2. On the other hand, some High Courts have taken the view, that rule 10 applies to a number of individuals carrying on business either under a firm name or under an assumed name when these individuals do not in law constitute a partnership resting on contract, provided the suit is in respect of matters connected with the business so carried on. Thus, the Calcutta High Court2 has applied this rule to a joint Hindu family (dissenting from the Madras view) and held that the word "person" must be given the meaning assigned by the General Clauses Act, and should include any association or body of persons whether incorporate or not.
The object of rule 10, it was stated, was to avoid hardship. Business may be carried on by correspondence, and orders placed through post, and goods may be supplied on credit on such orders. A producer or merchant living in one part of the globe cannot be expected to know or to make enquiries as to who is the owner of the business that is being carried on in an assumed name; in most cases he would only know the name of the real owner only after he had brought his suit. (See Order )0(X, rule 6). If a decree obtained by such a merchant in a suit instituted against the assumed name was to be treated as void, it would open up a wide door to fraud, and would sap the credit on which commercial dealings largely rest. (It was pointed out, that in England there was no concept of joint family firms). But in a later case3, the Calcutta High Court seems to have taken a different view.
3. In an Allahabad case4, there are observations that a joint family is a "person". But the actual question in that case was whether there can be a partnership of a joint Hindu family with itself, and in that context the court observed, "The members of a joint Hindu family" are a body of individuals who come under this definition of "person" (in the General Clauses Act). A partnership has been held to be an "association" of persons5 under the Excess Profits Tax Act. The Patna High Court has taken the wide view in a recent case6-7. So also have the Kerala8 and Orissa9 High Courts.
4. In the Punjab the matter has been dealt with by amending Order XXX, rule 1. The Punjab Amendment was made under a Chief Court Notification issued soon after the 1908 Code came into force. The provision as enacted by the Legislature applied only to contractual partnerships10. The position under the Punjab Amendment has been lucidly explained in the under-mentioned case11. As explained there, in the Punjab, (i) a joint Hindu family firm may sue in the firm name (if any); or (ii) all members may sue joint in their individual names; or (iii) in certain circumstances (e.g. where a contract is entered into with the manager), he, as Karta, may sue in his own name alone.
5. As the controversy seems to survive even now12, some Clarification appears to be desirable.
As to position at Hindu law, see Mulla13.
It is considered that instead of making a separate rule, the necessary provision should be added in rule 10.
Hence the amendment.
1. Chidambaram v. National City Bank, ILR 1937 Mad 28: AIR 1936 Mad 707. (Venkatasubba Rao and Venkataramana Rao JJ.).
2. Jamunadhar Peddar Firm v. Jamunaram Bhakat, ILR (1944) 2 Cal 131: AIR 1944 Cal 138 (R.C. Mitter and Blank JJ.).
3. India R.L. Factories v. Purshottamdas, AIR 1960 Cal 327 (331), para, 27 (A.N. Ray J.) following (1947) Munshilal & Co. v. Modi Bros., 51 CWN 563 (S.R. Das J.).
4. Mahabir v. Ram Kishan, AIR 1936 All 855 (856).
5. A.G. Pandu Rao v. Collector of Madras, AIR 1954 Mad 1049.
6. Rameshwar v. Keshab Prasad, AIR 1962 Pat 360 (discusses case-law).
7. See also Alekh v. Krishna, AIR 1941 Pat 596 (Fazl Ali J.).
8. Tulsidas v. Ebrahimjee, AIR 1960 Ker 75.
9. Hari Shankar v. General, AIR 1956 Ori 186.
10. See Atma Ram v. Umar Ali, AIR 1940 Lah 256 (260).
11. Firm Nand Gopal v. Firm Mehnga Mall, AIR 1940 Lah 425 (426) (Tek Chand J.).
12. See the case-law discussed in This, Midji v. Ebrahimjee, AIR 1960 Ker.
13. Mulla Hindu Law, (1959), paras. 251(1) and 251(7).
Order XXXII, rule 1
The proposed amendment is intended to make it clear that the provisions of Order XXXII apply to all kinds of suits including those in respect of which the age of majority is governed not by the Indian Majority Act but by the personal law. The present position on the subject is not clear as will be seen from the case-law by the discussion that follows. Two courses are open for clarifying the position
(i) To provide that where the suit relates to any matter in respect of which by virtue of section 2 (a) of the Majority Act, the capacity of any person to act is not governed by that Act, then Order XXXII shall not apply to a suit by or against such person, provided he is a major according to the law applicable to such matter.
(ii) To provide that even in such matters for the purposes of Civil Procedure Code, he should be governed by the age given in the Majority Act. It is considered for the purpose of procedure that there should be a uniform rule and for that reason the second course has been adopted.
The present position is this: In suits falling under personal law, the meaning of "minor" is governed by personal law, according to some High Courts. According to the view the provision in section 2 (a) of the Indian Majority Act, 1875, which saves the capacity of any person "to act" in matters of marriage, etc., applies to power tosue also. The following cases1-2-3-4 may be seen for the view that the section covers capacity to sue also. On this view, the "minor" can sue without next friend in such cases, if he is major under his personal law. In the case of suits for divorce governed by special Acts, this rule may extend the majority period5.
On the other hand, the under-mentioned decisions6-7 seem to take a different view, on the ground that capacity to sue is purely a question of procedure.
The following cases8-9 review the case-law.
(See another exception under section 32, Presidency Small Cause Courts Act.)
1. Bai Shirinbai v. Kharshedji, 1898 ILR 22 Born 430.
2. Ahmed v. Bai Fatima, ILR 55 Born 160: AIR 1931 Born 76 (Magdavkar and Barlee JJ.) (suit for divorce by Muslim wife over 16).
3. Fatima v. Fazlali, AIR 1928 Cal 303.
4. Naksetan v. Habibar, AIR 1948 Cal 66: ILR 1946 2 Cal 349.
5. See (i) AIR 1925 Sind 95 and (ii) 1898 ILR 22 Bom 431.
6. Ithapi v. Kairhirapkil, 1881 ILR 3 Mad 248.
7. Abdul Aziz v. Pathumma, ILR 1953 Mad 118: AIR 1952 Mad 754.
8. Usman v. Khatoon, ILR 17 Luck 572: AIR 1942 Oudh 243.
9. Najmunissa v. Sirajuddin, ILR 17 Punj 303: AIR 1941 Lah 394.