Appeal No 244 of 1964
Appeal from the judgment and order dated September 21 1962 of the Mysore High Court in Civil Revision Petition No 929 of 1958
G section Pathak and R Gopalakrishnan for the appellants
section G Patwardhan V Kumar and Naunit Lal for the respondent No 1
235 May 8 1964
The Judgment of the Court was delivered by SUBBA RAO J
This appeal by certificate raies the question whether a minor who was admitted to the benefits of a partnership can be adjudicated insolvent on the basis of debt or debts of the firm after the partnership was dis solved on the ground that he attained majority subsequent to the said dissolution but did not exercise his option to become a partner or cease to be one of the said firm
The facts are not in dispute and may be briefly stated
Mallappa Mahalingappa Sadalge and Appasaheb Mahalingappa Sadalge respondents 2 and 3 in the appeal were carrying on the business of commission agents and manufacturing and selling partnership under the names of two firms M B Sadalge and C N Sadalge
The partnership deed between them was executed on October 25 1946
At that time Chandrakant Nilakanth Sadalge respondent 1 herein was a minor and he was admitted to the benefits of the partnership
The partnership had dealings with the appellants and it had become indebted to them to the extent of Rs 172484
The partnership was dissolved on April 18 1951
The first respondent became a major subsequently and he did not exercise the option not to become a partner of the firm under section 305 of the 
When the appellants demanded their dues the respondents 2 and 3 informed them that they were unable to pay their dues and that they had suspended payment of the debts
On August 2 1954 the appellants filed an application in the Court of the Civil Judge Senior Division Belgam for adjudicating the three respondents as insolvents on the basis of the said debts
The 1st respondent opposed the application
The learned Civil Judge found that respondents 2 and 3 committed acts of insolvency and that the 1st respondent had also become partner as he did not exercise his option under section 305 of the Partnership Act and therefore he was also liable to be adjudicated along with them
The first respondent preferred an appeal to the District Judge but the appeal was dismissed
On second appeal the High Court held that the 1st respondent was not a partner of the 236 firm and therefore he could not be adjudicated insolvent for the debts of the firm
The creditors have preferred the present appeal against the said decision of the High Court
Learned counsel for the appellants Mr Pathak contends that the 1st respondent had become a partner of the firm by reason of the fact that he had not elected not to become a partner of the firm under section 305 of the Patnership Act and therefore he was liable to be adjudicated insolvent along with his other partners
The question turns upon the relevant provisions of the 5 of 1920 and the 
Under the provisions of the  a person can only be adjudicated insolvent if he is a debtor and has committed an act of insolvency as defined in the Act see sections 6 and 9
In the instant case respondents 2 and 3 were partners of the firm and they be came indebted to the appellants and they committed an act of insolvency by declaring their inability to pay the debts and they were therefore rightly adjudicated insolvents But the question is whether the first respondent could also be adjudicated insolvent on the basis of thE said acts of insolvency committed by respondents 2 and 3
He could be if he had become a partner of the firm
It is contended that he had become a partner of the firm because lie did not exercise his option not to become a partner thereof under section 305 of the Partnership Act
Under section 301 of the Partnership Act a minor cannot become a partner of a firm but he may be admitted to the benefits of a partnership
Under sub sections
2 and 3 thereof he will be entitled only to have a right to such share of the properties and of the profits of the firm as may be agreed upon but he has no personal liability for any acts of the firm though his share is liable for the same
The legal position of a minor who is admitted to a partnership has been succinctly stated by the Privy Council in Sanyasi Charan Mandal vs Krishnadhan Banerji1 after considering the material provisions of the Contract Act 11922 ILR  570 237 which at that time contained the provisions relevant to the law of partnership thus  A person under the age of majority cannot become a partner by contract    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 section 247 speaks is no more than a right to participate in the property of the firm after its obligations have been satisfied
 It follows that if during minority of the 1st respondent the partners of the firm committed an act of insolvency the minor could not have been adjudicated insolvent on the basis of the said act of insolvency for the simple reason that he was not a partner of the firm
But it is said that sub section
5 of section 30 of the Partnership Act made all the difference in the case
Under that sub section the quondam minor at any time within six months of his attaining majority or of his obtaining knowledge that he had been admitted to the benefits of partnership whichever date is later may give public notice that he has elected to become or that he has elected not to become a partner in the firm and such notice shall determine his position as regards the firm
If he failed to give such a notice he would become a partner in the said firm after the expiry of the said period of six months
Under sub section
7 thereof where such person becomes a partner his rights and liabilities as a minor continue up to the date on which he becomes a partner but he also becomes personally liable to third parties for all acts of the firm done since he was admitted to the benefits of partnership and his share in the property and profits of the firm shall be the share to which he was entitled as a minor
Under the said two sub sections if during the continuance of the partnership a person who was admitted at the time when he was a minor to the benefits of the partnership did not within six months of his attaining majority elect not to become a partner he would become a partner after the expiry of the said period and thereafter his rights and liabilities would be the same as those of the other partners as from the date he was admitted to the partnership
238 It would follow from this that the said minor would there after be liable to the debts of the firm and could be adjudicated insolvent for the acts of insolvency committed by the partners
But in the present case the partnership was dissolved before the first respondent became a major from the date of the dissolution of the partnership the firm ceased to exist though under section 45 of the Act the partners continued to be liable as such to third parties for the acts done by any of them which would have been the acts of the firm if done before the dissolution until public notice was given of the dissolution
Section 45 proprio vigore applies only to partners of the firm
When the partnership itself was dissolved before the first respondent became a major it is legally impossible to hold that he had become a partner of the dissolved firm by reason of his inaction after he became a major within the time prescribed under section 305 of the Partnership Act
Section 30 of the said Act presupposes the existence of a partnership
Sub sections 1 2 and 3 thereof describe the rights and liabilities of a minor admitted to the benefits of partnership in respect of acts committed by the partners sub section
4 thereof imposes a disability on the minor to sue the partners for an account or payment of his share of the property or profits of the firm save when severing his connection with the firm
This sub section also assumes the existence of a firm from which the minor seeks to sever his connection by filing a suit
It is implicit in the terms of sub section
5 of section 30 of the Partnership Act that the partnership is in existence
A minor after attaining majority cannot elect to become a partner of a firm which ceased to exist
The notice issued by him also determines his position as regards the firm
Sub section
7 which describes the rights and liabilities of a person who exercises his option under sub section
5 to become a partner also indicates that he is inducted from that date as a partner of an existing firm with co equal rights and liabilities along with other partners
The entire scheme of section 30 of the Partnership Act posits the existence of a firm and negatives any theory of its application to a stage when the firm ceased to exist
One cannot become or remain a partner of a firm that does not exist
It is common case that the first respondent became a major only after the firm was dissolved
Section 30 of the 239 Partnership Act therefore does not apply to him
He is not a partner of the firm and therefore he cannot be adjudicated insolvent for the acts of insolvency committed by respondents 2 and 3 the partners of the firm
The order of the High Court is correct
In the result the appeal fails and is dismissed with costs
Appeal dismissed


Summary:
The respondent No 1 while he was a minor was admitted to the benefits of a partnership constituted of respondents 2 and 3
The partnership owed a certain amount to the appellants
The partnership was dissolved and subsequently respondent No 1 became a major but he did not exercise the option not to become a partner under section 305 of the 
Respondents 2 and 3 committed acts of insolvency and the appellants filed an application for adjudicating the three respondents as insolvents
The first respondent resisted the application without success but on second appeal the High Court held that he was not a partner of the firm and hence he could not be adjudicated an insolvent for the debts of the firm
The present appeal was filed on a certificate granted by the High Court
The appellant contended before this Court that the 1st respondent had become a partner of the firm by reason of the fact that he had not elected to become a partner under a 305 of the Partnership Act and therefore he was liable to be adjudicated an insolvent
Heldi A person under the age of majority cannot become a partner by contract and he cannot be one of that group of persons called a firm
It therefore follows that if during minority of the 1st respondent the partners of the firm committed an act of insolvency the minor could not have been adjudicated insolvent on the basis of the said act of insolvency for the simple reason that he was not a partner of the firm
Sanyasi Charan Mandal vs Krishnadhan Banerji 1922 ILR  relied on
iiIt is implicit in the terms of sub section
5 of section 30 of the Partnership Act that the partnership is in existence
A minor after attaining majority cannot elect to become a partner of a firm which ceased to exist
The entire scheme of section 30 of the Partnership Act posits the existence of a firm and negatives any theory of its application to a stage when the firms ceased to exist
iiiSince the 1st respondent became a major after the partnersship was dissolved section 30 of the Partnership Act does not apply to him
He is not a partner of the firm and therefore he cannot be adjudicated insolvent for the acts of insolvency committed by respondents 2 and 3 the partners of the firm