Bengal Coal Co. Ltd. v. Balmukunda Goenka — 1949 DIGILAW 507 (CAL)

JUDGMENT P.N. Mitra, J. - This is an appeal on behalf of Defendant No. 1, the Bengal Coal Co., Ltd., in a suit for recovery of khash possession of a certain premises in the town of Raniganj on declaration of the Plaintiff-Respondents' title thereto. 2. It appears that one Kadambini Baurini, who was wife of one (sic) Bauri, took a lease 1 cotta 2 chh. of homestead land (sic) the Defendant No. 1 at an annual rental of Re. 1-11 as., by executing a registered kabuliyat in its favour on March 9, 1891 he land was described as lying within certain boundaries and here was a stipulation that, if she was found to be in possession (sic) more lands than that given in the schedule or if the lands ere found to be in excess on survey, she would be bound to pay aparate rent therefor. They built their dwelling house on the (sic) land. Later on, they borrowed some money from one (sic) Chand Marwari and mortgaged the land and dwelling (sic) to him. Unable to pay off the same, they, on March 14, (sic), sold to him by a registered kabala the said land and welling-house, which they called their bastu bati, the consideration being recited to be the dues on the mortgage and a sum of Section 100 in cash. They said they had altogether got four cottas land at Girjaparha in the town of Raniganj, out of which (sic) cottas constituted this bastu bati, which they were possessing on paying an annual rental of Rs. 1-11 to the Bengal Coal Co., Ltd. and which they described in the schedule to the kabala follows: SCHEDULE OF BOUNDARIES. To the west of the house purchased by Mahananda Datta, to the south of the (sic) wall of the railway barrack, to the north of the pucca road, to the it of the patit land--within these boundaries, I sell bastu bati, comprising two (sic) of land and pucca building consisting of two rooms. 3. On Mangal Chand's death, the property was inherited by his a Gokul Chand Marwari. In 1917, a jamabandi was made by (sic) Defendant No. 1. 3. On Mangal Chand's death, the property was inherited by his a Gokul Chand Marwari. In 1917, a jamabandi was made by (sic) Defendant No. 1. The land in the possession of Gokul and or Gokul Das, as he is called therein, was found to be (sic) cottas 14 chataks in area, an excess of two cottas chataks over the original area and the rental was fixed at Rs. 5. Thereafter, Gokul Chand died and the property devolved on his minor son Sriballabh. His mother Teji Bai got herself appointed as his guardian by the learned District Judge (sic) Burdwan and she, on behalf of her minor son, who was described as proprietor of the firm Puran Mai Mangal Chand executed, (sic) June 27, 1925, a mortgage in respect of the property describe in the schedule to the mortgage deed in favour of the fin named Shiu Karan Das Balmukunda. There is no dispute the Shiu Karan Das Balmukunda is the name and style under which the Plaintiffs were then carrying on business, but one of the controversies between the parties in the present suit centre round the question whether Shiu Karan Das Balmukunda was firm in the strict sense of the term, i.e., to say, a (sic) partnership, or was the name of the joint family business of the Plaintiffs. Another controversy relates to the question whether the entirety of the holding, which was the subject-matter of the jamabandi of 1917, together with the structures standing thereof or only a part of it was mortgaged by this mortgage deed (sic) June 27, 1925. The manner in which the mortgaged proper was described in the schedule to the mortgage deed has give rise to this controversy, but, before entering into the details it, the narrative of the events leading up to the present litigation may be completed. On August 7, 1930, a suit was brought enforce the mortgage, the Plaintiff being described as "A (sic) of the name of Shiu Karan Das Balmukunda of (sic) "Colliery" etc. It was Mortgage Suit No. 189 of 1930 of the Court of the Subordinate Judge at Asansol. The prelimina mortgage decree was passed ex parte on February 3, 1931 and (sic) final decree, also ex-parte, was passed on February 25, (sic). It was Mortgage Suit No. 189 of 1930 of the Court of the Subordinate Judge at Asansol. The prelimina mortgage decree was passed ex parte on February 3, 1931 and (sic) final decree, also ex-parte, was passed on February 25, (sic). In execution of the decree in Mortgage Execution Case No. 93 1933 the mortgaged property was sold and purchased by the decree-holder on August 11, 1933, for Rs. 1,000. The sale was confirmed on September 13, 1933 and a sale-certificate was issued to the decree-holder purchaser on the same day. The (sic) after, delivery of possession through the court was taken March 16, 1934. In the meantime, the Defendant No. 1, (sic) Bengal Coal Co., Ltd., had brought a suit against Sriballah for recovery of rent of the holding and obtained a decree and October 12, 1936, it purchased the holding together with structures standing on the land in execution of the decree Money Execution No. 130 of 1936 for the price of Rs. 25. 4. The Plaintiffs alleged that thereafter the Defendant No taking advantage of their absence from Raniganj, dispossess them from the property with the help of the Defendant Nos. 2 and 3 and on December 23, 1940, they brought the present suit against the Defendants Nos. 1 to 3 recovery of possession (sic) the property on declaration their title by purchase at the sale held in (sic) their mortgage decree. The Defendant No. 1, they said, had not acquired any title by its purchase at the sale held in execution of its own decree, as Sriballabh had long before that ceased to have any interest in the property and they also prayed for a declaration that the said execution sale was void and fraudulent and had not affected their own title in any way. There was also a claim for mesne profits. There are seven Plaintiffs named in the plaint and it is stated in para 1 that they belong to a joint Hindu family living in joint mess and having a joint business and they are governed by the Mitakshard school of Hindu law and that they carry on a business under the name and style of Shiu Karan Das Balmukunda, of which they are the proprietors. In para 2 it is stated that the firm Puranmull Mangal Chand (of which Sriballabh was the proprietor) mortgaged the property described in the schedule to the plaint to the Plaintiffs in the name of their aforesaid karbar. 5. Of the defences, taken by the Defendant No. 1, two are now material. The first was that Shiu Karan Das Balmukunda, was not a partnership firm and that, consequently, it could in that name and style neither sue anybody nor make any purchase in any execution sale or otherwise and that the purchase made in a Mortgage Execution Case No. 93 of 1933 was void and inoperative. The second was that the property, which the Plaintiffs had purchased in Mortgage Execution Case No. 93 of 1933, could not be identified with and was not the same as the property which the Defendant No. 1 had purchased in Money Execution Case No. 130. After its purchase in this Execution Case, Defendant No. 1 took delivery of possession of the purchased property through court and after remaining in khash, possession or some time, it settled the property with the Defendants Nos. 2 and 3, who are in possession as its tenants. The Defendants Nos. 2 and 3, in their written statement, stated that they were in possession as tenants under the Defendant No. 1 and supported the latter. 6. The question of identity of the properties, having thus been put in issue, a commissioner was appointed by the court below of hold a local investigation and make a report. 7. The question of identity of the properties arose in this way in the mortgage deed the mortgaged property was described in he schedule in the following manner: SCHEDULE OF BOUNDARIES. Within district Burdwan, police-station and sub-registry office Raniganj, Chouki Asansol, in Raniganj town and within the boundaries to the west of the house purchased by Mahananda Datta, to the south of the railway barrack, to he north of the public road, to the east of the patit (waste) land, bastu bati (residential homestead) measuring about two cottas including a building containing (sic) pucca rooms in respect of which the annual rental of Re. 1-11 is payable to he Bengal Coal Co. It bears dag No. 5209 (i.e., of the Cadastral Survey which ad taken place some time back), thanawar No. 24, R.S. Nos. 2386, 2387, 2389, 413 8. 1-11 is payable to he Bengal Coal Co. It bears dag No. 5209 (i.e., of the Cadastral Survey which ad taken place some time back), thanawar No. 24, R.S. Nos. 2386, 2387, 2389, 413 8. It will be seen that the description is the same as that of the property sold by the kabala of 1898 by Ananta and Kadambini the addition being the C.S. dag number, which is given as 5209. 9. The jamabandi of 1917 did not give any boundaries, but the above description differed from the particulars of the holding of Gokul Chand as recorded in that jamabandi in respect of the area and the rental and the C.S. dag number that was giver was not the number which the land of that holding bore in the record-of-rights which had been finally published in 1921. That holding was recorded in khatiyan No. 798, which contained only one dag, viz., 4736, of which the area was 06 acre. 10. The description of the mortgaged property as given in the plaint of the mortgage suit as also in the preliminary and final decrees is a reproduction of that in the mortgage deed. The sale proclamation has not been put in evidence, but there is no reason to think that the description there was different. The description of the purchased property as given in the Plaintiffs sale-certificate follows the description of the mortgaged property as given in the mortgage-deed and need not be set out here in full. 11. In para. 2 of the plaint, the Plaintiffs stated that the property described in the schedule to the plaint had been mortgaged to them and that by mistake a wrong dag number viz., 5209, which was a contiguous plot of waste land belonging to one Benarasilal Marwari, was written in the sale proclamation and the rental also was wrongly stated therein as Re. 1-1 instead of Rs. 1-1 instead of Rs. 5 and consequently these wrong particulars also found their way into the sale certificate; but the correct boundaries were given and there could be no doubt about the identity of the property that was sold in the mortgage-execution and purchased by the Plaintiffs, which was the same as the property of which they wanted to recover possession in the present suit and of which they gave a correct description in the schedule to the plaint as follows: Within district Burdwan, chouki Asansol under police-station Raniganj an within the municipality of Raniganj and within the boundaries thereof to the west of the purchased lands of Mahananda Datta, to the south of railway barrack to the north of the public road, to the east of patit lands-bastu lands measuring about two cottas including pucca house, etc., thereon. Settlement Khatiyan No. 798. Real dag No. 4736-dag on the northern side 4731, East Indian Railway Company Two brick-built houses. Area 0-60 (0-06?) Ac. The writ of commission stated that-- the point which requires to be elucidated by the local investigation is if the site of the disputed premises, as will be found from the descriptions thereof by boundaries and area in the plaint schedule and in the Plaintiffs' title deeds, appertains to the C.S. plot No. 5209 or to 4736 or to any other plot or plots in the neighbourhood. 12. The finding of the commissioner was that, so far as the boundaries were concerned, the land of the Plaintiffs' title-deeds was identical with C.S. plot No. 4736, which he coloured yellow and marked with the letters A B E F in his map and the area of which he found to be three cottas 10 1/3 chhataks. Taking up the question of area, the commissioner stated that two cottas is the area mentioned in the Plaintiffs' title deeds and he would locate that two cottas as the eastern portion, which he marked with the letters N.F.E. in his map of C.S. plot No. 4736. 13. At the trial before the learned Subordinate Judge at Asansol, the Defendant No. 1 gave up the extreme contention that the property purchased by the Plaintiffs was entirely different from the holding which Sriballabh held under it and made the case that only the eastern two cottas of C.S. dag No. 4736 with the building standing on that portion had been purchased by them. 14. The learned judge rejected that contention of the Defendant No. 1. He held, on a construction of the Plaintiffs' documents of title, that they had purchased the whole of dag No. 4736 with the building standing on it. On the other question, as to whether Shiu Karan Das Balmukunda was a partnership firm or a joint Hindu business, the learned judge referred to the Plaintiffs' case as made in the plaint, which has already been alluded to and he also alluded to the testimony of Plaintiff No. 1 Balmukunda in cross-examination that Shiu Karan Das Balmukunda was the name and style of their joint family business and was not a firm. But his finding was that he was-- not prepared to accept the testimony of Balmukunda that it was merely the trading name of their joint family business on the face of its being described as a firm in the mortgage suit, decrees and sale certificate, etc. 15. He added: I, accordingly, find that it was entitled to hold the property and sue on the mortgage and that the decree was valid and operative in law. 16. He further held that, as the decree had been obtained as a firm, evidently under Order XXX, Rule 1, Code of Civil Procedure, without any objection by the Defendant in the mortgage suit, the objection of the present Defendants was not tenable at that stage. It was, in his opinion, "at best an irregularity and not a "nullity, even if Shiu Karan Das Balmukunda was in reality "not a firm" and the irregularity, if any, was cured by Section 99, Code of Civil Procedure. In view of his finding on these points and some other points the learned Subordinate Judge decreed the suit in full. 17. The Defendant No. 1 appealed to this Court. The appeal came on before Mukherjea and Blank JJ. The learned Judges considered that the finding of the learned Subordinate Judge on the question whether Shiu Karan Das Balmukunda was a partnership firm or a Hindu joint family business was unsatisfactory and they thought that a proper finding on the point was essential for a right determination of the appeal. The appeal came on before Mukherjea and Blank JJ. The learned Judges considered that the finding of the learned Subordinate Judge on the question whether Shiu Karan Das Balmukunda was a partnership firm or a Hindu joint family business was unsatisfactory and they thought that a proper finding on the point was essential for a right determination of the appeal. They accordingly made the following order: ...We keep the appeal in our file and send down the records with a direction that the court below will investigate this point and this point alone, namely, as to whether the so-called firm of Shiu Karan Das Balmukunda was a firm in the eye of law at the material date, namely, when the mortgage suit was instituted in the year 1930. The Subordinate Judge may take in additional evidence if he considers proper and send up his finding on this point together with the evidence as early as practicable. 18. There is no doubt that this was an order passed under the provisions of Order XLI, Rule 25, Code of Civil Procedure. 19. After the arrival of the records in the court below, the Plaintiffs again examined Balmukunda, Plaintiff No. 1, this time on commission, on account of his illness and put in by way of documentary evidence two notices issued by the Official Assignee, Calcutta and a postcard issued by an income tax Officer, all of them addressed to Shiu Karan Das Balmukunda The Defendants did not adduce any evidence. The learned Subordinate Judge, on a consideration of the evidence, came to the finding that Shiu Karan Das Balmukunda was not a firm in the eye of law in 1930 and he sent up the records with that finding and the evidence to this Court. Objections have beer filed by the Plaintiffs Respondents to the finding of the learned Judge and the appeal has now come up for hearing before us. 20. Objections have beer filed by the Plaintiffs Respondents to the finding of the learned Judge and the appeal has now come up for hearing before us. 20. The learned advocate for the Appellant has raised before us the contentions, viz., first, that as Shiu Karan Das Balmukunda was not a partnership firm, it had no right to sue in that name under the procedure laid down in Order XXX, CPC and that consequently, the decree obtained in Mortgage Suit No. 189 of 1930 and the sale held in execution thereof were nullities and the Plaintiffs had not acquired any title to the disputed property secondly, that, in any event, what the Plaintiffs had purchased at the auction sale held in execution of the mortgage decree was only the eastern two cottas, with the building standing thereon of the C.S. plot No. 4736 and not the whole of that C.S. plot. 21. Before taking up for consideration the points urged by the Appellant it would be convenient to deal with the Plaintiff Respondents' objection to the finding of the learned Subordinate Judge and with certain pleas and counter-pleas in bar which have been taken by the parties against each other. 22. As has been observed before, in para 1 of the plaint, the Plaintiffs state that they are a joint Hindu family living in joint mess and having a joint business, that they carry on a, business under the name and style of Shiu Karan Das Balmukunda and that they are the proprietors of the said business. In para 2 they state that the firm of Puran Mal Mangal Chand (of which Sriballabh was the proprietor), mortgaged the property described in the plaint schedule to the Plaintiffs in the name of their aforesaid karbar, but as Puran Mal Mangal Chand was unable to pay the mortgage debt, the said Shiu Karan Das Balmukunda firm brought a Mortgage Suit No. 189 of 1930 and obtained a decree therein. At the first trial, the Plaintiff No. 1 Balmukunda deposed in examination-in-chief-- We are members of a joint Hindu family governed by the Mitakshard branch of Hindu law. The firm of Shiu Karan Das Balmukunda is our ancestral karbar (firm). 23. And in cross-examination he stated: The joint family business is styled as Shiu Karan Balmukunda. It is not a firm or registered. 24. The firm of Shiu Karan Das Balmukunda is our ancestral karbar (firm). 23. And in cross-examination he stated: The joint family business is styled as Shiu Karan Balmukunda. It is not a firm or registered. 24. When he deposed after the remand, Balmukunda made an attempt to explain away the difficulty created by his previous deposition. He said that Shiu Karan Das Balmukunda was a firm, that Tiji Bai Marwarini on behalf of minor Sriballabh Marwari executed a mortgage bond in favour of that firm, that Shiu Karan Babu (his father), himself and his brother Keshar Deo were proprietors of the firm when the mortgage bond was executed and that the firm existed when the mortgage suit was filed and also when the decree was passed therein and the sale and purchase in execution took place. He further stated that they had a joint family business, which was called Shiu Karan and Sons and that, in 1933, in the month of Kartik, at the time of Kali Puja (during notun khata) the firm Shiu Karan Das Balmukunda was amalgamated with the joint family business of Shiu Karan and Sons. The reason assigned is that the sons of himself and of his brother Keshar Deo objected to the separate existence of the firm and also because a law (the Indian Partnership Act) came into force requiring registration of firms. With regard to the statements made in his previous deposition, which have been quoted before, he stated that by the word "karbar" he had meant "firm", that he used the word "ancestral" as the firm was started in his father's time and that when he had said "It is not a firm or registered", he had meant that the firm was not registered. 25. No account books were produced in support of the case that Shiu Karan Das Balmukunda was a partnership firm and that it was amalgamated in 1933 with the joint family business of Shiu Karan and Sons. The two notices issued by a Official Assignee were in connection with the affairs of an insolvent Binjraj Harnandrai, of whom Shiu Karan Das Balmukunda was one of the creditors. The first one gave notice of a general meeting of creditors at which a composition scheme proposed by the insolvent was to be considered and the second called for proof of claim by a certain date. The first one gave notice of a general meeting of creditors at which a composition scheme proposed by the insolvent was to be considered and the second called for proof of claim by a certain date. They were addressed to Shiu Karan Das Balmukunda, but that mode of address does not by itself show that the addressee was a partnership firm and not the business name of a joint Hindu business. The postcard was written by the income tax Officer, District IV(1), Calcutta, to "Mr. Shiu Karan Das Balmukunda" requiring him to see the officer on a certain date. This postcard by itself does not prove that the return had been submitted by a partnership firm. In cross-examination, Balmukunda was questioned about the ages of the sons of himself and of his brothers and it appears that in 1933 the eldest was aged thirteen and the next one was aged eleven and it is these boys who are said to have objected to the separate existence of the partnership firm. It is needless to comment in further detail upon Balmukunda's evidence on the last occasion and it is sufficient to say that the desperate attempt made by him to explain away his previous deposition has hopelessly failed. We agree with the finding of the learned Subordinate Judge that Shiu Karan Das Balmukunda was not a partnership firm, but was a Hindu joint family business when the mortgage suit was instituted in 1930. 26. It was argued by the Plaintiffs Respondents before Mukherjea and Blank JJ. that the Defendant No. 1 was estopped from raising the point that the decree and the sale were nullities on the basis that Shiu Karan Das Balmukunda was not a partnership firm but a, joint Hindu family business, but our learned brothers reserved the Respondents' contention for consideration when the appeal would come up for final hearing after the receipt of the records and the finding from the trial court. That contention has now been repeated before us. That contention has now been repeated before us. The contention is that, as Sriballabh, the Defendant in that suit, could have taken but did not take the defence that Shiu Karan Das Balmukunda was not a partnership firm but a Hindu joint family business and suffered a decree to be passed in favour of Shiu Karan Das Balmukunda Firm, Sriballabh would be estopped from taking the plea at any later stage and contending, on the basis thereof, that the decree passed in the suit was a nullity; and the Defendant No. 1 as purchaser of the right, title and interest of Sriballabh at the money sale in execution of its decree for rent was in no better position. Our attention was drawn in this connection to the sale-certificate (Ex. L) obtained by the Defendant No. 1 in Money Execution Case No. 130 of 1936 and to the statements contained in the written statement in para. 18 in which the purchase is set out and in para. 24 in which it is stated that-- this Defendant would be legal representative of Sriballabh Marwari and as such the present suit is barred by Section 47, Code of Civil Procedure. 28. Learned advocate for the Appellant has, on the other hand, pointed out that the Plaintiffs' case is that they purchased the entire interest of Sriballabh at the mortgage execution sale and that, consequently, the Defendant No. 1 purchased nothing at the sale in Money Execution No. 130 of 1936 and he submitted that it did not lie in the mouth of the Plaintiffs to say that the Defendant No. 1 was the representative-in-interest of Sriballabh. 29. The contention of the Plaintiffs Respondents that the Defendant No. 1 is estopped from raising the plea of nullity of the decree and the sale is really a plea of res judicata or estoppel by record and has been so urged before us. It requires that the Defendant No. 1 should be a representative-in-interest of Sriballabh. The Defendant No. 1 Appellant, therefore, felt it necessary to counter that by the plea that the Plaintiffs could not be heard to say that it was the representative of Sriballabh, as such a case was contrary to the case made by the Plaintiffs in their plaint. It requires that the Defendant No. 1 should be a representative-in-interest of Sriballabh. The Defendant No. 1 Appellant, therefore, felt it necessary to counter that by the plea that the Plaintiffs could not be heard to say that it was the representative of Sriballabh, as such a case was contrary to the case made by the Plaintiffs in their plaint. The assumption underlying the Plaintiffs' plea of res judicata and the Defendant No. 1's counter-plea that the Plaintiffs cannot be allowed to urge that it is Sriballabh's representative is that the Defendant in the suit, who suffered the decree to be passed against him, would be barred by res judicata from raising the plea that the decree was a nullity, but that a stranger would not be under any such disability and would be free to show that the decree was void and non-existent in the eye of law. That assumption, however, does not appear to us to be well-founded. The plea of res judicata pre-supposes that there is a decree or judgment which has legal existence or validity. If the decree is a nullity and non-existent in the eye of law, no plea of res judicata can be founded upon it; the Defendant in the suit, in which the decree was passed, just as much as any stranger to the suit, being free u/s 44 of the Indian Evidence Act to show that it is so. We are of opinion that no distinction can be made between a Defendant in the suit and a stranger so far as this question of nullity of the decree is concerned. 30. At this stage we ought to notice that Mukherjea and Blank JJ. observed in their judgment that the learned advocate who was appearing before them on behalf of the Respondents conceded that, if the firm Shiu Karan Das Balmukunda was not a firm at all, but was a pure joint Hindu family business, it had no right to sue under Order XXX, Rule 1, of the Code of Civil Procedure, and in that case, the contention of Mr. Gupta, would have to be upheld. The learned Judges were referring to the contention of the learned advocate for the Appellant that the decree in the mortgage suit No. 189 of 1930 was a nullity. Gupta, would have to be upheld. The learned Judges were referring to the contention of the learned advocate for the Appellant that the decree in the mortgage suit No. 189 of 1930 was a nullity. It is not clear whether the concession was limited to the proposition that a Hindu joint family business cannot sue in its trade name under Order XXX, Rule 1, CPC the statement in the last part of the quoted passage being merely an expression of the court's opinion as to the result that would follow in law from that proposition, or whether the concession went to the full length of admitting the validity of Mr. Gupta's contention. The learned advocate now appearing before us for the Plaintiff-Respondents has submitted that, if the first view be taken, then the court was merely giving expression to its tentative opinion on the question, and in any case, an expression of opinion in the order making a remand under Order XLI., 25, CPC is not binding upon the Bench before which the appeal ultimately comes up for hearing after the remand; and that, if the second view be taken, then it was an admission made by their advocate on a pure question of law, which does not bind the Plaintiffs-Respondents and leaves them free to dispute the soundness of Mr. Gupta's contention at the present hearing before us. We think the submission of the learned advocate is a sound one in both its branches. There is a long course of decisions in our Court that the court, when deciding the appeal finally under Order XLI, Rule 26, has jurisdiction to revise the views expressed in the order of remand under Order XLI, Rule 25 : Upendra Lal Gupta v. Jogesh Chandra Roy (1927) 32 C.W.N. 1233 and the cases cited therein. It is also well-settled that a party, to quote the words of Willes J. in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1872) 9 B.L.R. 377 (401) : L.R.I.A. Sirup. Vol. 47(1)-- is not bound by an admission of a point of law, nor precluded from asserting the contrary, in order to obtain the relief to which, upon a true construction of the law he may be entitled. 31. Reference may also be made to the observation of Lord Davey in Beni Pershad Koeri v. Dudnath Roy (1899) ILR 27 Cal. 47(1)-- is not bound by an admission of a point of law, nor precluded from asserting the contrary, in order to obtain the relief to which, upon a true construction of the law he may be entitled. 31. Reference may also be made to the observation of Lord Davey in Beni Pershad Koeri v. Dudnath Roy (1899) ILR 27 Cal. 156 (163) : L.R. 26 which is in these terms: In the opinion of their Lordships this admission, if correctly understood, was erroneous in point of law and does not preclude the counsel for the Appellant on this appeal from claiming his client's legal rights. 32. The expression of judicial opinion or concession by counsel, as the case may be, recorded in the last part of the passage quoted above from the order of Mukherjea and Blank JJ., therefore, does not relieve us of the duty of examining the soundness of the first point taken by the Appellant before us on the present appeal. 33. Partnership is a contractual relationship which arises between persons, who have entered into a contract, to carry on a business together and to share the profits between them. These persons are individually called partners and collectively, they are called a firm and the name under which their business is carried on is called the firm name. A firm is not a legal person as a corporation is; it is just the collective name of a group of persons who have combined to carry on a business enterprise for their common profit on terms mutually agreed. With the growth of business and commerce this practice of a number of individual associating themselves into a firm became more common and contracts were entered into and business dealings carried on between one firm and another, the names of the individual partners of one being often unknown to the other. Business dealings, however, would give rise to disputes and litigations and it was felt, in the interest of easier and speedier initiation and prosecution of these litigations, that the collective bodies should be allowed to sue and be sued in the collective names, which, in fact, were often the only names by which they were known to each other. Business dealings, however, would give rise to disputes and litigations and it was felt, in the interest of easier and speedier initiation and prosecution of these litigations, that the collective bodies should be allowed to sue and be sued in the collective names, which, in fact, were often the only names by which they were known to each other. To compel the Plaintiff firm to seek out the names of all the partners of the Defendant-firm might often amount to condemning then to perform an impossible task and might virtually amount to a denial of justice in a system of law in which the liability of partners was joint. The law, therefore, was developed in that direction to serve and keep pace with the growing needs of the community and the rules in this behalf in England are embodied in Order 48A of the Rules of the Supreme Court. The principle was thus established of a group of persons litigating or being litigated against in the group name, the individuals comprising the group, whoever they might be, being all bound by the result of the litigation. 34. In India, there were no provisions in the Code of 1882 corresponding to Order 48A of the English Exiles. They were, for the first time, introduced into the Code of 1908 in Order XXX, which in almost a verbatim reproduction of the English Order 48A Since the Code of 1908 came into force, firms in India can sue and be sued in the firm name. The unimaginative and merely mechanical introduction of the English rules into this country had, however, this drawback that it failed to take note of and provide for the very important and widely prevalent class of trading associations in this country in the shape of the Hindu joint family business. There is no concept in the English law corresponding to the Hindu joint family business, in which the co-parceners become sharers as a part of the family property by being born into family. There is no concept in the English law corresponding to the Hindu joint family business, in which the co-parceners become sharers as a part of the family property by being born into family. A Hindu joint family business is not brought into existence by contract as a partnership,--formerly under the Indian Contract Act and now under the Partnership Act,--and essentially differs from a partnership in that respect, although it may call itself a firm; and so it has been held that it cannot sue in its business name under the provisions of Order XXX, Code of Civil Procedure: Lalchand Amonmal v. M.C. Bold and Co. (1934) ILR 61 Cal. 975; Amulakchand Mewaram Vs. Babulal Kanalal Taliwala, AIR 1933 Bom 304 and other cases. Upon the question whether a Hindu joint family business can he sued in its business name, there has been difference of opinion The difference, however, does not relate to any question of interpretation of Rule 1 of Order XXX, upon which there is unanimity that a Hindu joint family business is not a firm and therefore, does not come within the purview of that rule. The difference centres round the question of the construction to be placed upon Rule 10 of Order XXX. The Madras High Court has held that Rule 10 provides for the case of a single person, who is carrying on business in an assumed name and enables the Plaintiff to sue that person in that assumed or firm name and that a Hindu joint family business does not come within the rule : Chidhambaram Chettiar v. National City Bank of New York ILR (1937) Mad. 28. The Patna High Court has held in Alekh Chandra v. Krishnachandra Gajapati Narayan Deo ILR (1941) Pat. 755 that a Hindu joint family might be considered to be one unit or entity or to have a single personality and might in that sense be treated as being a single person within the meaning of Rule 10. In our Court, it has been held in Jamunadhar Poddar Firm v. Jamunaram Bhakat ILR (1944) 2 Cal. 755 that a Hindu joint family might be considered to be one unit or entity or to have a single personality and might in that sense be treated as being a single person within the meaning of Rule 10. In our Court, it has been held in Jamunadhar Poddar Firm v. Jamunaram Bhakat ILR (1944) 2 Cal. 131 in the decision to which my learned brother was a party, that Rule 10 applies not merely to the case of a single person, but also to the case of a group of persons trading together in an assumed name or a firm name without constituting a partnership in law and a Hindu joint family business comes within the ambit of the rule. This interpretation of the rule is based upon the provision in Section 3(39) of the General Clauses Act that the singular includes the plural unless there is anything repugnant in the context or in the subject and my learned brothers did not find any repugnancy in either to the view they were taking. My learned brothers reserved their opinion upon the question whether a Hindu joint family could be considered as having a personality and that of a single person. Apparently Jamunadhar's case (supra) was not brought to the notice of Das J. in Munsilal and Sons v. Modi Bros. (1947) 51 C.W.N. 563, where the learned Judge proceeded upon the Madras view. The High Court of Lahore resolved the entire difficulty by exercising its rule-making power under the CPC and amending Rule 1 so as to bring a Hindu joint family business within its purview, both as regards the right to sue and the liability to be sued in the business name and the Chief Courts of Sind and the Northwestern Frontier Provinces adopted the Lahore amendment. 35. The position, therefore, was that the Hindu joint family business of Shiu Karan Das Balmukunda was not entitled to bring, as it did, the Mortgage Suit No. 189 of 1930 in its trading name. But was the decree passed in that suit a nullity on that account? 36. 35. The position, therefore, was that the Hindu joint family business of Shiu Karan Das Balmukunda was not entitled to bring, as it did, the Mortgage Suit No. 189 of 1930 in its trading name. But was the decree passed in that suit a nullity on that account? 36. The test which Beaumont C.J. applied in Amulakchand's case (supra) in dealing with an application for amendment of the plaint by substituting the names of the individual co-pareeners of the Hindu joint family in place of the family business name, in which the suit had been brought, is, we think, equally applicable to the determination of the question before us. In that case, the learned Chief Justice observed as follows: 37. It seems to me that the question whether there should be an amendment or not really turns upon whether the name in which the suit is brought is the name of a non-existent person or whether it is merely a mis-description of existing persons. If the former is the case, the suit is a nullity and no amendment can cure it. If the latter is the case, prima facie there ought to be an amendment because the general rule, subject no doubt to certain exceptions, is that the court should always allow an amendment where any loss to the opposing party can be compensated for by costs. Now it seems to me that where you have a suit brought in the name of A.B. and Co., if it be proved that A.B. and Co. is the name of an existing firm or family consisting of certain individuals C, D and E, then the description A. B. and Co., merely cloaks the identity of C, D and E who are before the court under that name. If under the rules Order, D and E are not allowed to sue in the name of A. B. and Co., then for the purposes of the suit the description is incorrect and must be altered. But it seems to me that in such a case the proposed alteration does not involve introducing new Plaintiffs, but merely involves describing correctly, rather than incorrectly, the Plaintiffs already before the court. 38. But it seems to me that in such a case the proposed alteration does not involve introducing new Plaintiffs, but merely involves describing correctly, rather than incorrectly, the Plaintiffs already before the court. 38. And lower down in his judgment the learned Chief Justice added: ....I do not see how Order XXX can affect the question of fact, whether a suit brought in the name of a firm in a case not within Order XXX is in fact a case of misdescription of exisiting persons, or a case of a suit brought by a non-existent entity. That question, as I say, is one of fact and in the present case it is proved on the evidence that the firm in whose name the suit was originally brought does describe certain existing persons. 39. Leave to amend was, therefore, given. No doubt, in Lalchand Amonmal's case (supra) Buckland A. C.J. dismissed the suit, which had been brought by a Hindu joint family business in its trading name, on the ground that it was not entitled to sue in its firm name. But it does not appear that any application was made to the learned Judge for regularising the matter by a suitable amendment. And if the learned Judge's decision be taken as going to the length of holding that no amendment was permissible, we must respectfully express our dissent from that view. 40. What, then, was the position with regard to the Mortgage Suit No. 189 of 1930? The mortgage itself had been taken in the name of Shiu Karan Das Balmukunda Firm and the learned advocate for the Appellant has admitted that the mortgage could be taken in that name as denoting collectively all the members of the joint family who carried on business in the name. When the suit was brought in that name, there could be no doubt about the identity of the Plaintiffs who were really the members of that family designated by the collective name which they had employed for taking the mortgage. If the Defendant Sriballabh had taken an objection to the form of the suit, the matter could have been set right by a suitable amendment. It was a case of misdescription of existing person and not a case of the suit being brought in the name of a non-existent person. If the Defendant Sriballabh had taken an objection to the form of the suit, the matter could have been set right by a suitable amendment. It was a case of misdescription of existing person and not a case of the suit being brought in the name of a non-existent person. A name is, after all, a symbol and it is by this symbol that a person is to be identified as having been a party to any legal proceeding. But, ultimately it is the person who is the party and not the symbol. There may have been some inaccuracy in the presentation of the symbol, but if there is no reasonable doubt about the identity of the person intended to be designated, the inaccuracy has to be dismissed as mere misdescription not affecting the substance of the matter. If the members of the joint family were in substance parties Plaintiffs to the mortgage suit, as we think there can be no doubt that they were, then the fact that they were designated collectively by a group name and not individually by their personal names would be a procedural irregularity which would not go to the jurisdiction of the court and would not render the decree passed by it a nullity. Our conclusion, therefore, is that the decree passed in Mortgage Suit-No. 189 of 1930 was not void and non-existent in the eye of law and that the Plaintiffs acquired title to the property in suit by their purchase at the sale held in execution of the same. The first point urged by the Appellant, therefore, fails. 41. We may observe that we have refrained from basing our decision on the theory of a Hindu joint family being regarded as a single person, because apart from the question whether a Hindu joint family can be considered to be a legal person in the sense in which a corporation is a legal person, it appears to us that Fazl Ali J., who delivered the leading judgments in Alekh Chandra v. Krishna Chandra (supra) and Srikant Lal V. Sidheshwari Prasad Narain Singh ILR (1937) Pat. 441, was thinking of a Hindu joint family as a person whose personality was expressed through the karta as representing it and acting on its behalf. 441, was thinking of a Hindu joint family as a person whose personality was expressed through the karta as representing it and acting on its behalf. That element of the Hindu joint family being represented by and acting through the karta as absent in the Mortgage Suit No. 189 of 1930 and the notion of the personality of a Hindu joint family has to be put aside so far as that suit is concerned. 42. Turning now to the second point taken before us by the Appellant, we have observed before that the sale-certificate merely reproduces the description of the mortgaged property as given in the mortgage bond of 1925. That description has already been set out in full. The elements of that description are the boundaries, the area, the rental, the C.S. dag number and the reference to the bastu bati and the structures. With regard to the mention of C.S. dag No. 5209 the learned advocate for the Appellant very fairly stated that that was a mistake and that 4736 might be read in the plage of 5209. The rental was stated to be Re. 1-11 as., but the position in 1925 was that there was no rental of that amount payable by Sriballabh to the Bengal Coal Co., Ltd., but there was a rental of Rs. 5 payable which had been settled by the jamdbandi of 1917 for the area then found to be in the possession of Gokul Chand. As regards the structures standing on the land in suit, we are satisfied from the entry in the settlement record-of-rights (Ex. 21) finally published in 1921, the entries appearing in the extract from the Assessment Register of the Raniganj Municipality for the year 1926-27 (Ex. R) and the evidence of Babu Upendra Nath Mukherji, who is a senior pleader of the Raniganj bar and who was Vice-Chairman of the Raniganj Municipality at the time, that at the date of the mortgage there were standing on C.S. dag No. 4736 two separate structures or blocks, one consisting of two rooms and veranda on the eastern portion and another consisting of four rooms and a veranda on the western portion, with an open strip of land about three cubits in width in between the two. The Bengali expression which has been rendered in the official translation as "building containing two rooms" is "dvi kuthari dalan". The Bengali expression which has been rendered in the official translation as "building containing two rooms" is "dvi kuthari dalan". The learned advocate for the Plaintiffs Respondents attempted to argue before us that the official translation was wrong and that the Bengali expression stated above really meant "two buildings". But the official translation is binding upon us in the absence of expert evidence to show that it is wrong: Harendra Lal Roy Estates Ltd. v. Hem Chandra Naskar (1949) 53 C.W.N. 803 and there is no such evidence in the case. We must proceed on the footing that the official translation is correct. 43. The learned advocate for the Appellant has contended that the particulars as to the area, the structures and the rental constitute the dominant part of the description of the mortgage property and indicate that the intention was to mortgage only the eastern two cottas of C.S. dag No. 4736 which contains the structure with two rooms and which has been marked out by the commissioner on his map by the letters N.O.F.E. He has submitted that there is no real conflict in this case between description by boundaries and description by area, the former being meant to identify the whole of the premises out of which a specific area of two cottas comprising "a building containing "two pucca rooms" was being mortgaged. Even the mention of the rental of Rs. 1-11 as., he has urged, points to an intention to mortgage only two cottas, as that was the rental which was stated in Mangal Chand's kabala of 1898 to be payable for two cottas. And if there is a conflict, the description by boundaries must give way before the description by area reinforced by the other descriptions. 44. Where there is a conflict between description by boundaries and description by area, the canon of construction that is applied is that, if the description by boundaries is precise and accurate, it prevails over or overrides the description by area. 44. Where there is a conflict between description by boundaries and description by area, the canon of construction that is applied is that, if the description by boundaries is precise and accurate, it prevails over or overrides the description by area. In such a case the deed is taken to be, in the word of their Lordships of the Privy Council in Herrick v. Sixby (1867) L.R. 1 P.C. 436, 425-- a conveyance of a certain ascertained piece of land, described precisely and accurately by its boundaries on all sides adding a statement that it contains so many acres or thereabouts in which case if it turns out that the quantity is in correctly stated, it shall not affect the transaction. 45. No doubt, on the terms of the document before them in that case their Lordships held that it did not come within the rule, but that does not detract from the authoritative character of the statement of the rule itself. Many of the other authorities bearing on the point are collected in the judgment of Doss J. in Durga Prasad Singh v. Rajendra Narain Bagchi (1909) ILR 37 Cal. 293, 308 and need not be enumerated here in detail. 44. In the case before us, the commissioner has fixed the boundaries in the locality and his finding is that they comprise the whole of C.S. dag No. 4736. Indeed, there is no doubt or difficulty at all about the boundaries on the North, East and South. On the West the boundary is stated to be patit land, but it is not at all likely that the mortgagor would describe in that way the narrow strip of land belonging to him and lying between the two blocks of buildings also belonging to him. There is, therefore, a precise and accurate description of the property by boundaries with a statement added as to area which is stated to be about two cottas. 45. Besides the boundary and the area, however, there are two other items of description, upon which the Appellant has relied and to which due weight has to be given, in ascertaining what the real intention of the parties to the document was. We do not think much significance attaches to the mention of the rental payable as Re. 1-11 as. But the description of the structures as "a building contained two pucca rooms" requires serious consideration. 46. We do not think much significance attaches to the mention of the rental payable as Re. 1-11 as. But the description of the structures as "a building contained two pucca rooms" requires serious consideration. 46. We have pointed out before that the description of the mortgage property in the schedule to the mortgage bond was copied from the description of the sold property in the schedule to the kabala of 1898 in favour of Mangal Chand with the C.S. dag number added to it, but wrongly given as 5209. There is no doubt that the schedule to the mortgage bond was drawn up very carelessly, but reading the C.S. dag number as 4736 in place of 5209, it appears to us that what was intended to be mortgaged was the whole of the bastu bati, which had been surveyed in the cadastral survey as one unit and recorded in one dag, viz., No. 4736. The bastu bati was one unit, one compact block contained within well-defined boundaries and the record-of-rights had treated it as such. The intention clearly was to mortgage the whole of dag No. 4736 with all the structures standing on it. We do not find any intention to mortgage only a portion of that dag. If that had been the intention, appropriate language would have been found and used to indicate that. In our opinion, the description of the structures as "a building containing two pucca rooms" is a wrong description like the description by area and does not help the latter to supersede the precise and accurate description by boundaries. This being our construction of the schedule to the mortgage (sic), it follows that we put the same interpretation upon the schedule to the sale certificate and our finding is that the Plaintiffs purchased the whole of C.S. dag No. 4736 with the tructures standing on it and have established their title to the same. The second point urged by the Appellant, therefore, also ails. 47. The result is that the appeal is dismissed with costs to the Plaintiffs Respondents. Mitter J. 48. I agree.