Ugar Sen v. Lakhmi Chand

Stanley, C.J and Griffin, J.:— The suit, out of which this appeal has arisen, was brought by Lakhmi Chand and Mohan Lal to recover moneys alleged to have been borrowed from them by the defendant appellant Ugar Sen. The money was borrowed from Badri Das and Hira Lal who were members of a partnership firm, and both of them are dead. The only surviving member of the partnership is the plaintiff, Mohan Lal. The other plaintiff, Lakhmi Chand, is the son of Badri Das. Hira Lal left a minor son named Chote Lal. Both the Courts below have decreed the plaintiffs' claim. This second appeal has been preferred, and the ground of appeal pressed by the learned vakil for the appellant is that the plaintiffs are not entitled to maintain their suit without having before the court the legal representatives of the deceased Hira Lal. The learned vakil relies upon the provisions of section 45 of the Indian Contract Act. We are of opinion that section in no way bars the present suit, which is one to recover a debt due to a partnership firm. In the case of Gobind Prasad v. Chandar Sekhar the question was very fully considered by Edge, C.J and Mahmood, J., whether, in a suit such as the present, it was necessary for the plaintiff to implead the legal representatives of a deceased partner. It was held in that case that there was no such necessity. The reasons for the judgement are given at considerable length, the principle of the English law on the subject being adopted as being based on common sense. In the later case of Motilal Bechardass v. Ghellabhai Hariram the same question was considered, and the conflicting decisions of the High Court of Calcutta and the High Court of Allahabad were discussed. The learned Judges, Bayley and Farran, JJ., held that the Allahabad High Court was correct and that the representatives of a deceased partner are not necessary parties to a suit for recovery of a debt which accrued due during the lifetime of the deceased partner. In that case the provisions of the Contract Act were considered and dealt with. In the later case of Debi Das v. Nirpat Blair and Burkitt, JJ., followed the earlier ruling of this Court. In view of these decisions the case before us was rightly decided by the courts below. We are not prepared to dissent from well considered judgements of the Court. We dismiss this appeal with costs.

Appeal dismissed.