Judgement Consolidated Appeal (No. 121 of 1920) from decrees (January 31, 1919) of the High Court reversing two decrees (February 28, 1916) of the Subordinate Judge of Alipur. The suits giving rise to the appeals were brought by the respondents against the appellant, a minor sued by his guardian ad litem, to recover the sums of Rs.5329 and Rs. 19,000; upon the appellant attaining his majority he adopted the defences put in by his guardian. The circumstances giving rise to the suits appear from the judgment of the Judicial Committee. The Subordinate Judge found that the monies cued for had been borrowed exclusively for the Orphangunj business, which was not part of the ancestral businesses. He held that the Orphangunj business was not a joint family business, since it was not within the competence of the adult brothers, or the karta, to carry on the new business on behalf of the joint family. He therefore dismissed the suits. On appeal to the High Court the learned judges (Chatterjea and Newbould JJ.) agreed with the view of the Subordinate Judge on the points above stated. They were however of opinion that the appellant had been "admitted to the benefit of the partnership" in the Orphangunj business within the meaning of s. 247 of the Indian Contract Act, 1872. Although that section had not been specifically relied on in the plaint, they considered that it was sufficiently raised and that the defendant had suffered no prejudice by no issue having been framed as to it. The learned judges, after pointing out that it was difficult to see how a minor could enter into an agree ment, or consent to an agreement, as to his admission to a partnership, said "The karbar," i.e., the Orphangunj business," was started and carried on as a joint family business. So long as the family was joint, no specific allotment or distribution of profits was made among the members, but the accounts show that family expenses and even litigation expenses of the joint family of which the defendant was a member were met from the funds of the karbar; the minor was joined as co-plaintiff in suits for recovery of money due to the karbar, and lastly the decree in the partition suit shows that properties acquired from the funds of the karbar were allotted to the minor. It does not appear that the minor stood on a different footing from the adult members of the family for the benefit of which the karbar was started and carried on. All these go to show that the minor was admitted to the benefits of the partnership." The learned judges further held that having regard to the position taken up by the present appellant in an appeal arising out of the insolvency proceedings and the view expressed by the High Court in that appeal (see I. L. R. 42 C. 225, 239) he could not contend that the receiver alone was competent to deal with his share in the partnership property. The learned judges concluded as follows "In the result we direct a general account to be taken by the Court below with respect to the karbars and the properties left by Bhuban Mohan. The Court will determine on taking such accounts whether any property was allotted to the defendant as his share of the Orphangunj karbar or as part of his share of the ancestral properties and properties acquired out of the funds of the ancestral karbars generally. In the first case any such property received on behalf of the defendant will be liable for the claim of the plaintiffs. In the latter case the plaintiffs claim will have to be dismissed. If the finding on the above point is in the plaintiffs favour the Court below will have also to find whether the defendant on his attaining the age of majority retained any such property with full knowledge of the facts and with the knowledge that such property was received by his guardian on his behalf as his share of the Orphangunj karbar, in which event only the defendant will be liable personally for the plaintiffs claim. .... The decrees of the Court below are 3et aside and the suits remanded for disposal in accordance with the remarks made above. Costs to abide the result," 1921. Dec. 5, De Gruyther K.C. and E. B. Raikes for the respondents. There is a preliminary objection to this appeal. The order of the High Court was not a "final order" within s. 109 of the Code of Civil Procedure, 1908; it was merely a direction to take an account with a view to the disposal of the case. Kenworthy Brown for the appellant. There is a preliminary objection to this appeal. The order of the High Court was not a "final order" within s. 109 of the Code of Civil Procedure, 1908; it was merely a direction to take an account with a view to the disposal of the case. Kenworthy Brown for the appellant. The appeal is from a "preliminary decree" within the meaning of s. 2 (2.) of the Code, and therefore from a decree within s. 109. The account could be directed only on the basis that the minor "had been admitted to the benefits of the partnership" within s. 247 of the Indian Contract Act, 1872. If he failed to appeal from that adjudication it would become binding upon him under s. 97 of the Code Admed Musaji Saleji v. Hashim Ebrahim Saleji. ([ 1915] L. R. 42 I. A. 91.) Their Lordships said that they would hear the appeal, reserving the preliminary objection for consideration. Kenworthy Brown for the appellant. It was concurrently held that the Orphangunj was not an ancestral business, and that the karta had no power to make the minor liable by extending the ancestral business. He could only be liable for the debts of the Orphangunj business if he had been admitted as a partner within s. 247 of the Indian Contract Act, 1872. That, however, was not alleged, nor was there evidence to show that he was so admitted. Further, the assets of the partnership vested in the receiver under s. 18, sub-s. 1, of the Provincial Insolvency Act, 1907, and he alone can sue in respect of them. The assets are divisible among the general body of creditors, and a suit by one creditor is not maintainable. De Gruyther K.C. (Dube with him) for the respondents. The business at Orphangunj, in respect of which the debts were due, was an addition to the joint family estate. The guardian of the minor received his share in the whole joint property, and the respondents as creditors of the joint family are entitled to judgment against him so far as he has assets in his hands. In the insolvency proceedings the appellant objected to any part of his share vesting in the receiver (I. L. R. 42 C. 225.); he cannot now say that the receiver alone can sue for those assets. In the insolvency proceedings the appellant objected to any part of his share vesting in the receiver (I. L. R. 42 C. 225.); he cannot now say that the receiver alone can sue for those assets. Kenworthy Brown in reply referred to Lutchmanen Chetty v. Siva Prokasa Modeliar (( 1899) I. L. R. 26 C. 349.) and Gangayya v. Venkataramiah. (( 1917) 34 Mad. L. J. 271.) 1922. Jan. 17. The judgment of their Lordships was delivered by SIR LAWRENCE JENKINS. These are consolidated appeals from two decrees of the High Court of Judicature at Fort William in Bengal, passed in separate suits on January 31, 1919, reversing two decrees of the Subordinate Judge of the 24 Parganahs, dated February 28, 1916. In each suit a money decree was sought against the present appellant, who was a minor at its institution. One suit was brought on a hand note signed by the minors three adult brothers; the other on a hath-chitta, signed by his four adult brothers, the youngest of them having then attained majority. The ground of liability state in the plaint is that the defendant and his brothers are owners and partners in ancestral businesses, and the money claimed was borrowed by the brothers for the purposes of the businesses. The minor defended in each case by his guardian for the suit. The defendant and his brothers were the five sons of Bhuban Mohan Mandal, a Hindu governed by the Dayabhaga School of law. He died in November, 1899, and at that time his two younger sons were minors. Nil Ratan, the eldest brother and the karta of the family, was appointed their guardian under Act VIII. of 1890. Bhuban Mohan had two businesses, one for fuel wood at Munshigunj, and the other for rice and other articles at Kalibazar. Each devolved as an ancestral business on the five sons, and was carried on by Nil Ratan as the karta, assisted by his adult brothers. After the fathers death a new business in rice was started by Nil Ratan at Orphangunj, and it is the defendants case that the in one} sued for was borrowed exclusively for the purpose of this business, and that the business was not ancestral. The Subordinate Judge decided in the defendants favour and dismissed the suits. After the fathers death a new business in rice was started by Nil Ratan at Orphangunj, and it is the defendants case that the in one} sued for was borrowed exclusively for the purpose of this business, and that the business was not ancestral. The Subordinate Judge decided in the defendants favour and dismissed the suits. The High Court on appeal apparently took the same view in the first instance, but as the result of a reargument, set aside the Subordinate Judges decrees and directed certain accounts against the defendant, not because his liability was established but for the purpose of determining whether or not he was liable. It is from these decrees of the High Court that the present appeals have been preferred. A preliminary objection was taken that the appeals did not lie " because the order was not final,” but their Lordships did not give effect to it and the appeals have been heard. The businesses were conducted by Nil Ratan and his adult brothers for many years with success. Ultimately, however, there were financial difficulties, and on February 19; 1912, proceedings under the Provincial Insolvency Act, 1907, were commenced by a creditor against all five brothers in the Court of the District Judge at Alipur. It was established to the satisfaction of the judge that the defendant was a minor and so could not be adjudicated insolvent, and that the minor was a joint owner in the family business inherited from his father. There was, however, adjudication against the adult brothers, "they being the members of the firm Bhuban Mohan Mandal and Nil Ratan Mandal." A receiver was appointed under s. 18, Sub-s. 1, of the Act, and the property of the insolvents thereupon vested in him. He was ordered to realize not only the four-fifth shares of the insolvents in the joint property, but also the minors share in the joint properties acquired after the fathers death. As a result of his insolvency, Nil Ratan was removed from the guardianship of the minor, and Mati Lal Roy was appointed in his place. He was ordered to realize not only the four-fifth shares of the insolvents in the joint property, but also the minors share in the joint properties acquired after the fathers death. As a result of his insolvency, Nil Ratan was removed from the guardianship of the minor, and Mati Lal Roy was appointed in his place. On August 19, 1912, with the sanction of the judge, Mati Lal Roy and the receiver agreed to appoint an arbitrator to effect a partition of the immovable properties, and on October 8, 1912, an award was made under which the minor got one-fifth in both ancestral and after-acquired properties, Mati Lal Roy having claimed that the after-acquired properties were purchased out of the income of the ancestral properties. On January 14, 1912, a decree was passed in terms of the award. In the meanwhile cross-appeals had been preferred by Mati Lal Roy and the creditors from the orders of the Judge in Insolvency, and on March 17, 1914, they were heard by the High Court with the result that the order refusing to adjudicate the minor an insolvent was affirmed, but so much of the order as directed the receiver to realize the minors share was set aside, and in lieu thereof it was ordered that the receiver should "take possession of four-fifths share of the business, and four-fifths share of all the properties purchased since the death of Bhuban Mohan Mandal, and also four-fifths share of the other properties jointly held by the infant and his brothers." It is in these circumstances that the present suits were commenced, as the dividend received by the plaintiffs in the insolvency fell short of the amount due. It is established by concurrent findings by the lower Courts, first, that the money now in suit was borrowed exclusively for the purposes of the Orphangunj business, and secondly, that this business was neither ancestral nor an extension of the ancestral business. These findings must now be deemed conclusive, and this strikes at the very root of the case made by the plaintiffs in the first Court. The distinction between an ancestral business and one started like the present after the death of the ancestor as a source of partnership relations is patent. These findings must now be deemed conclusive, and this strikes at the very root of the case made by the plaintiffs in the first Court. The distinction between an ancestral business and one started like the present after the death of the ancestor as a source of partnership relations is patent. In the one case these relations result by operation of law from a succession on the death of an ancestor to an established business, with its benefits and its obligations. In the other they rest ultimately on contractual arrangement between the parties. The inability of a karta to impose on a minor coparcener the risks and liabilities of a new business started by himself, is fully discussed by both Courts, and their Lordships agreeing with the conclusion at which they have arrived on this point, do not deem it necessary to enter on a further discussion of this aspect of the case. What has to be seen in the peculiar circumstances of this dispute is not merely whether the minor has come under any liability in respect of the debts of the Orphangunj business, but whether that liability can be enforced by the plaintiffs in the suits as constituted. It is important at this point to bear in mind (a) that at the institution of the suits the defendant was a minor ; (b) that in the written statement filed in each suit on his behalf by his guardian for the suit, it was denied that he was a co-sharer in the business, or had any responsibility with regard to it ; (c) that when at a later stage of the litigation the minor attained majority, he adopted these written statements ; and (d) that at that time the business of the firm had ceased. The ancestral character of the Orphangunj business being negatived, the plaintiffs have attempted to formulate other grounds of liability. Before the Subordinate Judge the claim seems to have been rested on general principles rather than on the specific provisions of the Contract Act. The ancestral character of the Orphangunj business being negatived, the plaintiffs have attempted to formulate other grounds of liability. Before the Subordinate Judge the claim seems to have been rested on general principles rather than on the specific provisions of the Contract Act. Thus in the grounds of appeal it is contended that the defendant and his four brothers having all along lived as members of an undivided Hindu family, and properties having been acquired with the joint funds and the defendant having got some of those properties in his share on partition with the receiver, the learned Subordinate Judge ought to have passed a decree against the defendant at any rate so far as the assets of the firms allotted to his share are concerned. The answer to the case thus made is given by the Sub ordinate Judge towards the close of his careful and well-reasoned judgment, and their Lordships are in complete agreement with what is there said. In the High Court, however, reliance was evidently placed on the Contract Act, for its provisions are mentioned and discussed. It becomes necessary, therefore, to examine the Act so far as it bears on the question now in contest. Sect. 247 provides that a person who is under the age of majority according to the law to which he is subject may be admitted to the benefits of partnership but cannot be made personally liable for any obligation of the firm; but the share of such minor in the property of the firm is liable for the obligations of the firm. To bring this section into play it must be proved that the minor has been admitted to the benefits of the partnership, This is a fact to be established by evidence, and though it was neither pleaded nor made an issue at the trial, the High Court, without inviting evidence specifically directed to this point, held the admission proved, and thus set up a new case in appeal. The defendant has just ground of complaint as to this, and the procedure is not one to be commended; still in the view their Lordships take they will deal with the case on the basis of the High Courts finding without expressing an opinion as to its correctness. Under the section liability is limited to the share of the minor in the property of the firm. Under the section liability is limited to the share of the minor in the property of the firm. In s. 239 there is a definition of the word "firm." It is there said the persons who have entered into partnership with one another are called collectively a "firm." In the earlier part of the section it is enacted that "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. A person under the age of majority cannot become a partner by contract (Mohori Bibee v. Dhurmodas Ghose (L. R. 30 1. A. 114.)), and so according to the definition he cannot be one of that group of persons called a firm. It would seem, therefore, that the share of which s. 247 speaks is no more than a right to participate in the property of the firm after its obligations have been satisfied. Though there may be this right, in fact it is not claimed by the defendant. On the contrary, the written statements deny his membership of the partnership; this denial was made on his behalf during his minority, and it was adopted by him when he attained his majority. This attitude he still maintains, and it can only be regarded as a relinquishment of all claim to a share in the property of the firm. It is still the property of the firm, and is liable as such to the obligations of the firm. But all the property of the firm vested in the receiver on the making of the order of adjudication (Provincial Insolvency Act, s. 16), and if any part of it has got improperly into the possession of the minor, the right to recover it is in the receiver. This is not disputed by the defendant; and it is only by its coming into the hands of the receiver that its rateable distribution among the general body of creditors can be secured. Nor does it make any difference that the business was conducted by the male adult members of a Hindu family governed by the Dayabhaga; the rights and liabilities of a minor member of such a family would be measured by similar principles for the purpose now under consideration. Nor does it make any difference that the business was conducted by the male adult members of a Hindu family governed by the Dayabhaga; the rights and liabilities of a minor member of such a family would be measured by similar principles for the purpose now under consideration. The learned judges in the High Court seem to have thought that the judgment on appeal in the insolvency proceedings put a bar in the way of a recovery by the receiver, and so justified the plaintiffs suits; but this proceeds on a misconception of what was actually decided. It is quite true that in that judgment it was said that " the essence of the matter is that the share of the infant has not vested in him and he is consequently not entitled to deal with it.....But whatever remedies may be available hereafter to the receiver or to the creditor, it is clear that the properties of the infant cannot be dealt with by either of them in these proceedings." This was a correct statement of the legal position; but it in no way justifies the conclusion in the judgment now under appeal that in consequence of it "the defendant cannot now contend that it is only the receiver (and not any individual creditor) who can deal with his share of the partnership properties." No property belonging to the minor could vest by the adjudication in the receiver, but what would vest in him would be the right (if it existed) to recover from the minor property in his possession belonging to the firm. It was then urged that any suit now instituted by the receiver would be barred by limitation; but when counsel for the plaintiffs was asked whether to obviate this he was prepared to add the receiver as a party, so that any assets realized could come into his hands for rateable distribution, he declined the offer, and frankly admitted that it would be of no use to his clients unless they could recover for their own exclusive benefit. The absence of the receiver from the suits is not an objection taken for the first time at this stage of the litigation. It was pleaded as a defect in the written statement, and an issue was framed on the point. The absence of the receiver from the suits is not an objection taken for the first time at this stage of the litigation. It was pleaded as a defect in the written statement, and an issue was framed on the point. The plaintiffs do not now contend that the defendant has become personally liable, and so it is unnecessary to discuss the terms of s. 248. In their Lordships opinion, therefore, these suits, constituted as they are, are misconceived. In the circumstances the receiver is a necessary party to any proceeding for the purpose of realizing assets liable for the firms debts, and the proceeds of any realization would be applicable not towards the exclusive discharge of any individual debt as the plaintiffs desire, but for rateable distribution among the whole body of the firms creditors. Their Lordships will therefore humbly advise His Majesty that the appeals be allowed, and that in each suit the decrees of the High Court dated January 31, 1919, be discharged, and the decrees of the Subordinate Judge, dated February 28, 1916, be restored, and that the respondents to each appeal do pay to the appellant the costs of the appeals in the High Court. They will also pay the costs of these appeals.