Raju, J.
1. This is an appeal by the original Plaintiff Shriram Sardarmal Didwani, against the judgment and decree of the Additional District judge, Khamgaon, in Civil Suit No. 16-B of 1952, dismissing with costs his suit against the Defendant Gourishankar for the recovery of the principal amount of Rs. 9,368-2-3, together with interest amounting to Rs. 2,051-1-0. In the plaint it was alleged that the Plaintiff and his brothers Satyanarayan and Ratanlal, who are sons of one Surajmal, formed a joint Hindu family, that the Plaintiff Shriram who is the manager of this joints Hindu family, has filed the suit as manager and that the plaintiff had been adopted by the brother of Surajmal. In the plaint it is also alleged that this joint Hindu family was carrying on business in the name of the firm 'Gangaram Premsukh' at Khamgaon and that the Defendant's family was carrying on business in the name of 'Mitanandji Joharmal'' shop at Fattekhedi. The Defendant was adopted into the family of Mitanandji in 1938. There were dealings between the plaintiff's shop and the Defendant's shop for several years before 1938. Accounts between the parties were checked in Diwali 1948 A.D. when Rs. 1,630-7-0 were found due from the defendant. As defendant's shop did not possess a foodgrain licence and as there was a foodgrain licence in the name of Jainarayan Narsingdas, the paternal uncle of the defendant before his adoption into the family of Joharmal, defendant and Shrikisan, another paternal uncle of his, made the plaintiff open a separate khata in the name of Jainarayan Narsingdas on the 12-5-1949, and asked the plaintiff to close the khata of 'Mitanandji Joharmal' and further instructed that the amount of Rs. 540 standing to the debit of the defendant in the khata of 'Mitanandji Joharmal' should be transferred to the account of Jainarayan Narsingdas. At the end of Diwali 1949 Rs. 8,428-9-6 were found due from the defendant to the shop of the plaintiff which liability was admitted by the defendant. From Diwali 1949 to Diwali 1950 the defendant made transactions with the plaintiffs shop but in the account of Jainarayan Narsingdas, At the Diwali of 1950 the liability of Rs. 6,088-2-3 was verified and admitted by the defendant. Later, Shrikrishan was prosecuted in connection with his grain trade and for giving bribes. On the 3rd February 1951, therefore, defendant and Shrikrishan came to the plaintiff and asked that the account standing in the name of Jainarayan Narsingdas in which Rs. 5,368-2-3 were to the debit of defendant should be transferred to the khata of 'Mitiuiandji, Joharmal' to be reopened in that name. On that date, it is also the case of the plaintiff, that Rs. 4,000 were given by way of a loan to Shrikrishan the paternal uncle, before adoption of the defendant and at his instance. The plaint, therefore, claimed that the liability of the defendant on that date was of Rs. 9,368-2-3. A suit was, therefore, filed to recover this amount together with interest at Re. 1 per cent per mensem, which according to the plaint, was the agreed rate.
2. The defendant Gourishankar in his original written-statement did not contest the allegation of the plaintiff that the plaintiff and his two cousin brothers Satyanarayan and Ratanlal formed a joint family, but the plaintiff's claim was disputed on merits. All the allegations in the plaint regarding the liability of the defendant were denied. According to the defendant, apart from the purchase of small quantities of grain from the plaintiff's Khamgaon shop there were no other kinds of dealings or transactions between the plaintiff firm and the Kirana shop of the defendant, and according to the defendant no amount remained unpaid to the plaintiff for such dealings. The allegations made in the plaint regarding the various adjustments were all denied. It was further pleaded that Jainarayan and Shrikrishan had no authority to have dealings on behalf of the defendant and that they had no authority or necessity to borrow any money from anybody on behalf of the defendant. They had also no authority or power to start a new business. According to the defendant he was staying at Amravati and never went to the plaintiff on 3-2-1951 as alleged in the plaint. It was also contended that the claim of the plaintiff was not in time. The defendant also resisted the suit on the ground that even if the liability for the alleged dealings was proved by the plaintiff, the dealings were in respect of foodgrain trade without 11 licence by the defendant and that, therefore, the suit should he dismissed as the dealings were contrary to public policy.
3. Before the evidence of witnesses was taken, defendant gave an application for amendment of paragraph 1 of his written-statement wherein he had stated that he did not wish to contest the allegations made in the plaint in paragraph 1(A) and 1(B) of the plaint that the plaintiff and his two cousin brothers Satyanarayan and Ratanlal had formed a joint Hindu family which carried on business in the name of 'Gangaram Premsukhdas'. In spite of the objections of the plaintiff, on the 20th January 1954 the application for amending the written-statement was allowed by the Court which also ordered that Rs. 25 be paid as costs and Rs. 39 be paid as costs on account of the presence of the witnesses.
4. The learned trial Judge believed the case of the plaintiff as regards the liability of the defendant for the amount of Rs. 9,368-2-3 on the ground that the defendant's paternal uncles managed his business, that the balances were struck every year at the time of Diwali, that Jainarayan and Shrikrishan had authority to borrow money for the defendant, that Shrikrishan and the defendant instructed the plaintiff to open a khata in the name of Jainarayan Narsingdas so as to include the business of the defendant, that on the 3rd February 1951 the defendant instructed the plaintiff to carry over the sum due namely Rs. 5,368-2-3 in the khata of Jainarayan Narsingdas to that of the defendant, that Shrikrishan and the defendant borrowed Rs. 4,000 from the plaintiff on the 3rd February 1951 and that ultimately the sum of Rs. 9,368-2-3 was found due to the plaintiff from the defendant. He also rejected the contention of the defendant that the business was illegal as it was to circumvent the provisions of the Foodgrains Control Order. All these issues were found in favour of the plaintiff. The learned Judge held that the plaintiff had not submitted statements of account to the defendant as required by the Money-lenders Act and that, therefore, he was not entitled to costs and interest. The trial Court, however, dismissed the suit on the ground that the suit had been filed by a partnership firm and not by a joint Hindu family firm and that the plaintiff's firm being a partnership firm was not registered as required by the law of partnership. On this ground the plaintiff's suit was dismissed.
5. The appellant has now come in appeal and contends that the lower Court erred in not decreeing the plaintiff's suit. The grounds urged by him are that originally in the written-statement the defendant did not contest the case of the plaintiff, that he and Satyanarayan and Ratanlal constituted a joint Hindu family which was doing business in the firm name of 'Gangaram Premsukhdas', and that in these circumstances the trial Court erred in allowing the amendment of the written-statement. On the merits it is also contended that the finding of the trial Court that the plaintiff firm 'Gangaram Premsukhdas' is not a joint Hindu family firm but a partnership firm is erroneous. These are the only points urged by the learned counsel for the appellant.
6. On behalf of the respondent it is contended that it is not open to the plaintiff-appellant to contend that the trial Court erred in allowing the amendment of the written-statement on 20-1-1954 because the plaintiff had accepted the costs of Rs. 25, subject to the payment of which the amendment of the written-statement was allowed by the Court. The respondent supports the judgment of the trial Court as regards the question whether the plaintiff firm was a joint family firm or a partnership firm. The learned counsel for the respondent, however, challenges the finding of the trial Court as regards the liability of the defendant for Rs. 9,368-2-3.
7. Points for determination in this appeal are, therefore, as follows;
(1) Is it open to the plaintiff-appellant to contend that the trial Court erred in allowing an amendment of the written-statement on the 20th January 1954?
(2) Whether the trial Court erred in allowing this amendment.
(3) Whether the trial Court erred in holding that the firm of 'Gangaram Premsukhdas' was not a joint Hindu family firm.
(4) Whether the trial Court erred in holding that the plaintiff's suit must be dismissed as the firm of 'Gangaram Premsukhedas' was not registered.
(5) Whether the trial Court erred in rejecting the contention of the defendant that there was no illegality in the business transactions and that the business transactions were not intended to circumvent the Foodgrains Control Order.
(6) Whether the trial Court erred in its finding that if the plaintiff's suit was maintainable the plaintiff would be entitled to a decree for Rs. 9,368-2-3.
(7) If the plaintiff's suit is to be decreed, for what amount should it be decreed?
8. The first contention is that it is not open to the appellant to contend that the amendment of the written-statement allowed by the trial Court on the 20th January 1954 was improperly allowed. The argument advanced is that when passing the order allowing the amendment of the plaint the trial Court ordered that the amendment be allowed subject to costs of Rs. 25 and also costs of Rs. 39 on account of the witnesses present on that date. It is urged that the amount of costs of Rs. 25 having been accepted by the appellant, it is not open to him to challenge the propriety of the order allowing amendment of the written-statement. In reply it is contend-ed that the costs were accepted under protest. Where a party accepts costs under a Judge's order which, but for the order, would not at that time have been paid, he cannot afterwards object that the order was made without jurisdiction. The party having taken something under the order cannot later impeach it. Vide King v. Simmonds (1845) 7 QB 289; Ramendra Mohan v. Keshab Chandra : AIR1934Cal554 . But if the costs were accepted under protest and the right to challenge the order was reserved at the time of accepting the costs, it would he open to challenge the order notwithstanding that the costs ordered at the time were accepted. Vide Venkatarayudu v. Rama Krishnayya AIR 1930 Mad 268. As observed in that case, the significance of the expression 'under protest' must clearly he borne in mind. As pointed out by Langdale M.R., these words have no distinct meaning by themselves and amount to nothing unless explained by proceedings and circumstances. If, for example, costs are paid Into Court and the opposing party draws them out stating that he does so under protest, these words would then be meaningless. But if at the time of accepting the costs the party accepting the costs reserves the right of filing an appeal and to challenge the order allowing the amendment, then it would be open to him to challenge the order allowing the amendment notwithstanding that he had accepted the costs ordered by the Court at the time of allowing the amendment.
9. In the instant case there is no evidence as to whether the appellant had stated that he had reserved his right to challenge that order. On the order sheet there is a note in the margin signed by the advocate that he had received costs of Rs. 64 under protest. But the right to challenge that order was not reserved at that time. Therefore, it would not be open to the appellant-plaintiff, having accepted costs, to challenge the order allowing the amendment of the written-statement.
10. Further, it cannot be said that the trial Judge exercised his discretion wrongly in allowing the amendment of the written-statement. Order 6, Rule 2, Civil Procedure Code, provides that every pleading shall contain and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be. The plaintiff must, therefore, state the material facts on which he relies for. his claim and in the written-statement the defendant must state the material facts on which he relies for his defence-Order 6, Rule 13 provides that neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side unless the same has first been specifically denied (e.g., consideration for a bill of exchange where the plain-tiff sues only on the bill and not for the consideration as a substantive ground of claim). Order 8, Rule 1 provides that the defendant may present a written-statement of his defence. These provisions therefore make a distinction between the claim of the plaintiff and the defence of the defendant. New facts relied on by the defendant must also be pleaded as provided in Order 8, Rule 2. In his written-statement, therefore, the defendant must state his defence and plead new facts on which he relies. The defendant must deal specifically with the allegations contained in the plaint and deny them specifically if he does not admit the truth of such allegations of fact. This he has to do because under Order 8, Rule 5 every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted. The pleadings both by the plaintiff and by the defendant are therefore of two kinds. In the plaint the plaintiff must show how the plaintiff is entitled to file the suit, for instance, if the defendant's liability is to a person P who is dead, and Q claims the right to sue as heir of P, it is necessary for Q to state in the plaint that he is the heir of P. These are statements of facts but not against the defendant. In addition, he must further state the facts against the defendant and explain how the defendant is liable for the claim made in the plaint. The statements of fact which a plaintiff has to make in the plaint therefore include certain facts against the defendant and certain facts which are not against the defendant If in his written-statement defendant pleads that he docs not contest a fact pleaded by the plaintiff which is not an allegation against defendant and of which defendant has no personal knowledge, he should not be prevented from amending such a pleading. If in his written-statement defendant says that he does not wish to contest whether plaintiff Q is the heir or P, his subsequent application to amend his written-statement so as to deny that Q is the heir of P should be allowed. In Laird v. Briggs (1881) 16 Ch D 440 plaintiff claimed to be in possession of a part of the foreshore of the sea at Margate and sought to restrain defendant from removing shingle from the foreshore. Defendant claimed an easement and by his statement of defence he denied that plaintiff was or ever had been in possession of the foreshore 'save subject to the rights of the defendant'. At the trial defendant asked for leave to amend the statement of defence by striking out the qualifying words, making the denial of plaintiffs possession an absolute one. Fry J. rejected the amendment holding that defendant could not be allowed to completely change his case, But his decision was reversed in appeal by Jessel M. R. in Laird v. Briggs (1881) 19 Ch D 2.2, who observed that the amendment should be allowed and the plaintiff should be put to show that he has a title.
11. In the instant case the plaint narrates how the defendant is liable to pay Rs. 9,368-2-3 to the firm of 'Gangaram Premsukhdas'. These are allegations against the defendant. In addition, the plaint states that 'Gangaram Premsukhdas'' is a joint family firm and that the plaintiff Shriram is suing as manager of the joint family. These are facts which must be proved by the plaintiff. But these are not facts alleged against the defendant. Those facts do not have any bearing on the defence of the defendant. The defence of the defendant is that he did not have any dealings with the firm of 'Gangaram Premsukhdas'. Whether the firm is a joint family firm or not it does not change the defence of the defendant as regards his liability. In the plaint, having claimed that the suit is by a firm, the burden rested on the plaintiff to prove that the firm is either a joint family firm or a partnership firm which has been registered. It is only by the proof pf either of these two facts that the plaintiff's suit would be maintainable, whatever be his case as regards the liability of the defendant.
12. If we turn to Order 6, Rule 17, Civil Procedure Code, it provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. In the case of an amendment of the plaint, an amendment to the plaint should not be granted if it would convert the suit or the claim into one of a different and inconsistent character. In the case of an amendment of the written statement, an amendment should not be granted if it would convert the defence into another of a different and inconsistent character. An amendment to the written-statement can never affect the nature of the suit; it can only alter the nature of the defence. In the instant case, the defence of the defendants is that he had no dealings with the plaintiff and that he is not responsible for the dealings between the plaintiff and Shrikrishan or Jainarayan. The amendment of the written-statement allowed by the trial Court, whereby he denied that plaintiff was joint with his cousins, makes no change to this defence. By the amendment allowed the defendant has not been allowed to present a totally distinct, new and inconsistent defence. Vide Clark v. Wray (1886) 31 Ch D68. Intact, in the original written-statement what was stated was merely that with reference to paragraphs 1 (A) and 1 (B) of the plaint the defendant does not contest, the allegations made therein for the purpose of this suit. In order to shorten the trial the defendant stated that he does not wish to contest the allegations made in paragraphs 1 (A) and 1(B) of the plaint which do not affect the question of the liability of the defendant. These paragraphs merely refer to the fact that plaintiff, Satyanarayan and Ratanlal formed a joint Hindu family and that they were carrying on business in the name of 'Gangaram Premsukhdas'. As already, observed, these facts are not facts alleged against the defendant and do not affect the defence of the defendant. If, however, the defendant makes an admission of any of the facts alleged against him, then it may not be proper to allow him to amend the written-statement to deny that admission of the facts alleged against him. Paragraph 1 of the original written-statement is not an admission of a fact alleged against the defendant. In fact it is not an admission. The question of the joint family was a matter within the special knowledge of the plaintiff and a fact not within the knowledge of the defendant. Defendant should not be penalised for not contesting a fact which was not within his knowledge and the falsity of which according to him came to his knowledge later when he learnt from one Ramdhanseth that plaintiff and his brothers were separate. The allowing of the amendment in the instant case does not also spring any surprise on the plaintiff because according to his own case he had to prove that the plaintiff firm was a joint family firm and not a partnership firm. He is therefore not prejudiced by the order allowing the amendment of the written statement. For these reasons the trial Court did not exercise its discretion improperly in allowing the amendment of the written-statement.
13. The next question relates to whether the plaintiff has succeeded in proving that he, Satyanarayan and Ratanlal formed a joint Hindu family which carried on business in the name of the joint family firm of 'Gangaram Premsukhdas'. On this question the trial Court held against the plaintiff. The plaintiff relied on oral as well as documentary evidence and on the presumption of Hindu law that every Hindu family is ordinarily presumed to be joint unless and until the contrary is proved.
(After referring to the evidence, the judgment continues as under:)
14. When there is a question as to whether certain persons are members of a joint Hindu family or not, it is not always necessary to adduce evidence merely of members of the joint Hindu family The opinion of persons may also be relevant under Section 50 of the Evidence Act which provides that when the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant face. The relationship between two brothers who are joint is much closer than the relationship of two brothers who are separated, The question of membership of a joint family which is peculiar to Hindu law has therefore much to do with the relationship between persons. In English families there can be no joint families such as we have among Hindus. But membership of a joint Hindu family is a type of relationship to which Section 50 of the Evidence Act can reasonably and properly apply. The opinion of witnesses however must be expressed by conduct as to the existence of such relationship of persons who as a member of the family or otherwise has special means of knowledge on the subject. In the case of the witnesses referred to above, it does appear that their opinion was expressed by conduct and that they had special means of knowledge. Two of the witnesses belong to the same caste; two of the witnesses live very near the house of the plaintiffs; one lives in the same mohalla as the plaintiffs; and they testify to the fact that the two persons were living in the same house as members of a joint Hindu family.
15-16. (After referring to certain documentary evidence, His Lordship continued as follows:) Reliance is also placed on an admission contained in exhibit D-12, which is a deposition of Shriram in Civil Suit No. 78-B of 1952, and also on the judgment of my learned brother Kotval J. in Second Appeal No. 248 of 1955, decided on 27-6-1958. In this judgment it was held that the plaintiff appellant constituted a partnership firm which was not registered. In that plaint it was contended that it was never alleged at any stage in any Court that the plaintiff constituted a partnership; on the other hand, the defendants admitted the allegations of the plaintiffs in the plaint that the plaintiffs were a joint Hindu family firm. It was, therefore, con-tended that the argument that the plaintiffs' firm was an unregistered partnership firm should not have been allowed to be raised as a bar to the suit. My learned Brother, in that suit, however, relied on the admission of one of the parties, namely, Shriram, that the firm was a partnership firm and not a joint Hindu family firm.
17. Section 69 of the Partnership Act which is express and mandatory, provides that no suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against a party unless the firm is registered. If the plaintiff admits that his suit is on behalf of an unregistered partnership, the Court must immediately dismiss the suit in view of the express and mandatory provisions of S. 69 of the Partnership Act, whatever be the nature of the pleadings. In the instant case, however, there is no admission of the plaintiff in the present suit. What is relied on, however, is an admission made by Shriram (plaintiff) in another suit. Admissions made in a suit have special value in view of the provisions of section 58 of the Evidence Act. But admissions made in other proceedings, though relevant would not be conclusive and it can be shown that the admission made is incorrect or based on a misunderstanding. In exhibit D-12, which is a deposition in an earlier suit filed by Shriram on the basis of a chit said to have been purchased for Rs. 1,000, Shriram deposed that the chit was a separate property. He appears to have made that statement in the former deposition in order to win that suit. The admission however is not conclusive against him and we will have to consider the rest of the evidence along with the admission made by the plaintiff in the earlier suit. ********
18. Much significance is also attached to the fact, that admittedly in the books of Gangaram Premsukhdas there are separate khatas in the names of Shriram and Satyanarayan for sharing the profits. But as observed in Charandas Haridas v. Commissioner of Income-tax, Bombay : [1955]27ITR691(Bom) if the nature of ownership, is not changed, the mere fact that the coparceners decide to enjoy the produce from a particular asset in a particular manner will not amount to a partition. The members of a joint family may agree I without interfering with the nature of the ownership to provide for a particular mode of enjoyment of the income arising from that share and if the coparceners were to say that when the income conies in from a particular asset they will enjoy that income in a particular manner or share it in a particular manner, there is no partial partition, because the asset continues to remain as it was before, of the ownership of the joint Hindu family. Merely because the income of the joint family is being shared by the members of the joint Hindu family, at does not show that there was a partition in the family.
19. Exhibits P-48, P-49, P-50, P-51 and P-52, P-105 and P-106 are certified copies of the plaints in the suits filed during the minority of the plaintiff Shriram and his cousin brothers. These plaints were filed, by Dwarkabai, widow of Sardarmal, as guardian of Shriram, and were also signed by Gaurabai widow of Surajmal, as the guardian of Satyanarayan and Ratanlal. These plaints relate to the years 1943 and 1944 and admittedly the three brothers Shriram, Satyanarayan and Ratanlal were minors, having been born respectively in 1926, 1932 and 1938. The two mothers Dwarkabai and Gaurabai might have signed the plaints according to their notions of Hindu law. When all the three brothers were minors, it is difficult to say whether only Dwarkabai was managing the joint family or only Gaurabai, or who the manager of the joint family was. It is not necessary in the present case to go into the question whether in the case of minor sons the mother can be manager of the joint family. But the mere fact that Dwarkabai and Gaurabai signed the plaints does not necessarily show that the two branches of the family belonging to Sardarmal and Surajmal were separate when the suits were filed. Moreover, admittedly there was an ancestral firm, 'Gangaram Premsukhdas', Gangaram and Premsukhdas were brothers. Gangaram died in 1914-15 and Premsukhdas died in 1929-30. Gangaram died issueless while Premsukhdas had two sons, Sardarmal and Surajmal. Plaintiff Shriram, Satyanarayan and Ratanlal are the sons of Surajmal, but Shriram was adopted as son of Sardarmal. The ancestral firm of Gangaram and Premsukhdas therefore continued. Even if Shriram and Satyanarayan were not joint, the ancestral joint family firm is fully represented by Shriram, the adopted son of Sardarmal. The suit should not, therefore, have been dismissed.
20. Moreover, according to the plaint, the dealings between the plaintiffs firm 'Gangaram Premsukhdas' and the defendant started in 1948 and continued after 1951. In 1948 all the three brothers Shriram, Satyanarayan and Ratanlal were minors and there could be no partnership of all minors. A minor can be admitted to the benefits of partnership provided the partnership existed before the minor was admitted to the benefit of partnership. There must be a partnership of at least two partners before a minor can be admitted to the benefit of the partnership. In 1948 as all the three brothers Shriram, Satyanarayan and Ratanlal were minors, they could not have formed a partnership firm. For these reasons it is clear that the trial Court erred in dismissing the suit on the ground that it was a partnership firm consisting of Shriram, Satyanarayan and Ratanlal and that the partnership firm was not registered.
(Rest of the judgment is not material for the purposes of reporting--Ed.)
21. Appeal allowed.