' This second appeal calls into question two concurrent judgments and decrees of Civil Judge Badin, in Suit No. 4/75, dated 31-10-1975 and that of District Judge, Badin, dated 28-7-1976 whereby the suit of the respondent for Rs.8,500.14 has been decreed and the appeal of the appellant was dismissed.
2. The respondent had filed the suit claiming that he was proprietor of the registered firm Messrs Muhammad Usman Haji Ibrahim and Co. which had been later on dissolved and the said firm had supplied cloth to appellants Nos.1 and 2 in the name of appellant No.
1. Rs.8,500.14 was claimed to be the balance outstanding. The suit was resisted by the appellants on the ground that they were not partners between themselves in respect of a cloth business and that none of them had taken cloth from the respondent. It was also stated by the appellant No. 1 that he had no concern with the cloth business and defendant No. 2 as their partnership was confined to shoes business which had come to an end in 1966. The appellant No. 2 had also denied existing of any firm of plaintiff or its dissolutior Eight issues were framed.
3. Plaintiff Haji Ibrahim and his Accountant Allah Dino were examined and they produced the account books and memo. of bills of various numbers some of which were alleged to be bearing signature of appellant No.
2. The bills had been drawn by Allah Dino, Accountant, and he had also maintained the account books. The appellant examined themselves and denied that they had taken any cloth from the respondent firm. The Civil Judge had compared the signature and formed the opinion that appellant No. 2 used to produce cloth on credit for joint concern of both the appellants and they had business terms with the respondent. Relying upon the evidence produced by the respondents and upon comparing of the signatures he believed the version of the plaintiff-respondents and decreed the suit. The appellant's appeal before the District Judge also failed on facts and he came to the conclusion that there was sufficient evidence on record which showed that the appellant had joint shop and had taken cloth from the respondent vide two bills A Nos. 654 and 655 amounting to Rs.8,500.14 for which both the appellants were jointly and severally liable to pay.
4. The learned appellate Court also took into view the credit bills which pertain to the period up to 1972 and therefore, he came to the conclusion that the two appellants have joint business of cloth particularly in view of the fact that they had a joint bank account in 1972.
5. The findings of facts are concurrent and Mr. Nooruddin Ramzan, learned counsel for the appellant, has not been able to show to me that there was anything wrong with those findings.
6. The appellant's counsel, however, took the position that the debt, if any, was owing to a dissolved partnership firm and no assignment deed signed by the other partners in favour of the respondent had been produced by the respondent to establish that there was an assignment of the said debt in favour of the respondent as required under section 130 of the Transfer of Property Act. The learned counsel relied upon AIR 1949 Sind 238 (299) where a Division Bench of this Court had taken the view that section 130 of the Contract Act is sufficiently wide to cover cases in which on dissolution of partnership certain partners are paid off and give up or assign their rights in the assets of the partnership. And the Division Bench was of the view that such assignments could not be effective except by a document in writing signed by the partners.
7. Mr.K.B.Bhutto submitted that this point was not open to the appellant in view of the fact that no such plea had ever been raised by the two appellants in their written statements and that the same require evidence in respect of the same. This submission of the learned B counsel appears to be justified inasmuch as the appellants never raised such a point in their written statement and they had in fact denied that they had taken any cloth from the respondent and that nothing was due from them, apart from that they had not taken up any legal stand. Mr.K.B. Bhutto is justified in the stand that he takes because if the point about the suit not being maintainable without an assignment deed had been taken the respondent might have been able to meet the same by producing the required document from the other partners.
8. Mr.K.B.Bhutto also drew my attention to AIR 1964 All. 15 (16) where it was held as under:- "(7) Section 130 of the Transfer of Property Act also does not bar the present suit, as it applies only to a case of a transfer of an actionable claim. In the present case there was no transfer of any actionable claim. It was only an assignment of a part of the assets of the firm to one of the partners, who already owned a share in the said assets. The debt was assigned to him in lieu of his pre-existing right as a partner.
Such a transaction is not hit by the provisions of section 130 of Transfer of Property Act. Reference in this connection may be made to the case of Shanmugha Mudalliar v. P.V. Rathina Mudaliar (1947) 2 Mad. L J 241: AIR 1948 Mad.
187."
' The abovecited case of Allahabad appears to me to be more consistent with the facts of the present case where the plaintiff-respondent had claimed that the appellants had purchased the cloth from the respondents firm and that the same was outstanding and that the firm had been dissolved on 31-3-1972. The suit in the present case appears to have been filed by a partner of the dissolved firm for the purpose of collecting the assets of the previous firm and in the statement of the respondent Haji Ibrahim it had been brought out that the debts had come to his share on the dissolution of the partnership.
9. Mr. K.B. Bhutto had also relied upon the observations made by an Hon'ble Judge of this Court in PLD 1976 Kar. 468 (476) where after reproducing section 47 of the Partnership Act it was observed in respect of section 69 of the same Act as under:- "This section deals with the implied authority of partners, and the difference between it and the corresponding provisions in the Contract Act is that the implied authority of a partner is clarified and enlarged, so that it is now clear that a partner is entitled to sue on behalf of his firm in the absence of any usage or custom of threat or contract to the contrary, and in view of section 47 it is immaterial whether the firm is functioning or is dissolved.
' Moreover I find that section 19 of the Partnership Act also gives an implied authority to the partners to wind up the firm. And section 19 of Partnership Act read with section 47 of the Partnership Act, which allows continuing authority to partners for purposes of winding up, appeared to give an authority to a partner of a dissolved firm to wind up the affairs of the firm.
10. Consequently, I am of the view that the suit filed by the respondent was competent and it had been rightly decreed. This second appeal is therefore, dismissed but in view of the difficult legal position involved there is no order as to costs.
Second .