K.B. Asthana, J.
1. This appeal arises out of a suit brought by firm partnership of M/s. Radha Kishan Sheo Datt Rai against M/s. Bengal Hemp Supply Company for recovery of certain amount of money as damages for breach of contract for supply of forty tons of specified quantity of a material described as New Indian hemp rope cuttings. It is not necessary for the purposes of deciding this appeal to state the facts relating to the contract and the alleged failure on the part of the M/s. Bengal Hemp Supply Co. to fulfil the terms of the contract as in my judgment this appeal can succeed on the technical plea raised by M/s. Bengal Hemp Supply Co. in their written statement which was to the effect that the plaintiff firm M/s. Radha Kishan Sheo Datt Rai having been dissolved on the death of one of its partners Mahadeo in the year 1951, no suit after that date was legally maintainable in the name of that firm.
2. It is an admitted fact that M/s. Radha Kishan Sheo Datt Rai was a registered partnership firm of which Mahadeo Prasad and Ram Kumar were two partners. The said firm entered into a contract of supply with M/s. Bengal Hemp Supply Co., Calcutta in the year 1950. The contract was to be completed in second half of the month of November 1950. In the year 1951 it is not disputed Mahadeo Prasad died. The suit giving rise to this appeal was brought in the year 1954. In the plaint the plaintiff was impleaded as firm Radha Kishan Sheo Datt Kai, a registered firm carrying on business having its Head Office at Kuncha Pran Nath Chowk, Banaras City through Babu Ram Kumar aged about sixty years son of late Babu Shivadatta Rai, residing at 20/36, Chowk Banaras, one of the partners of the said firm. It has come in evidence on the record that on the death of Mahadeo Prasad his eldest son Madan Gopal gave a notice under Section 63(1) of the Indian Partnership Act stating that Babu Mahadeo Prasad died on 1-4-1951. Apparently the case of the plaintiff was that deceased Mahadeo Prasad was a partner in the plaintiff firm as the head of the joint Hindu family consisting of himself and his sons and it was the joint family as such which was the partner and therefore the death of Mahadeo Prasad did not bring about any dissolution of the partnership and it was sufficient in law to give a notice of the change in the constitution of that partnership. The learned Judge of the Court below held that after the death of Mahadeo Prasad his eldest son Madan Gopal Gupta was rightly taken as a partner in the plaintiff firm as his heir and successor and the partnership in law never dissolved but continued and was entitled to maintain the suit.
3. It was urged by the learned counsel for the defendant appellant before me that this view of the learned Judge of the lower court was legally erroneous. Reliance was placed on a decision of the Supreme Court in the case of Commr. of Income-tax, Madhya Pradesh v. Seth Govindram Sugar Mills : 57ITR510(SC) . In that case which arose out of assessment proceedings under the Income tax Act the learned Judges of the Supreme Court had occasion to discuss the question whether a joint Hindu family as such could be a partner in a firm under the Indian Partnership Act. In paragraph 11 of the reported judgment at p. 28 the learned Judges of the Supreme Court observed as follows:--
'Another principle which is also equally well settled may be noticed. A joint Hindu family as such cannot be a partner in a firm, but it may, through its Karta, enter into a valid partnership with a stranger, or with the Karta of another family. This Court in Kshetra Mohan Sanyasi Charan Sadhukhan v. Commr. of Excess Profits Tax, West Bengal : 24ITR488(SC) pointed out that when two Kartas of different families constituted a partnership the other members of the families did not become partners, though the Kartas might be accountable to them.'
4. The law as declared above clearly shows that the son of deceased Mahadeo Prasad was not a partner in the plaintiff firm as it existed at the time when the contract with the defendant appellant was entered into. It cannot be disputed that on the death of Mahadeo Prasad the firm stood dissolved as there were only two partners in the firm, namely. Mahadeo Prasad and Ram Kumar. The partnership could not continue with Ram Kumar alone as in charge of the affairs of business. There was no third partner at the time of the death of Mahadeo Prasad along with whom Ram Kumar, the surviving partner could continue the partnership business. The Supreme Court in the case of : 57ITR510(SC) (supra) approved of the observations of Agarwala, J. of Allahabad High Court in the case of Mst. Sughra v. Babu : AIR1952All506 which observations were as follows:--
'In the case of a partnership consisting of only two partners, no partnership remains on the death of one of them and, therefore, it is a contradiction in terms to say that there can be a contract between two partners to the effect that on the death of one of them the partnership will not be dissolved but will continue . . . .partnership is not a matter of status, it is a matter of contract. No heir can be said to become a partner with another person without his own consent, express or implied'.
5. The position on the death of Mahadeo Prasad and on the application made by his eldest son Madan Gopal under Section 3(1) of the Partnership Act then reduced itself to this that at best a new partnership can be said to have come into being between Ram Kumar and Madan Gopal under the name and style M/s. Radha Kishan Sheo Datt Rai which happened to be the name of the old dissolved partnership also. It was not the case of the plaintiff in the court below that it was the new partnership which had come before the court for the recovery of damages from the defendant for breach of contract on the basis that the new partnership had taken over the assets and liabilities of the dissolved partnership. Since the Court below legally erred in holding that the suit was rightly filed by M/s. Radha Kishan Sheo Datt Rai as plaintiff and it was maintainable this appeal must succeed on that point alone. It is not necessary for me to examine the merits of other grounds of appeal raised in the memorandum questioning the validity of the decree of the court below. I am satisfied that the suit as brought by the plaintiff was not maintainable.
6. It appears from the record that Ram Kumar through whom the plaintiff respondent was impleaded in this appeal died. Tune was granted to the learned counsel for the appellant to take steps. The learned counsel for the appellant did not take any steps and I think rightly so as the mere death of Ram Kumar would not make the appeal defective. It is well settled that a registered partnership under Order 30 of C.P. Code can be sued by its name only and it is not necessary that it should be sued through any one of its partners. The words which are usually added 'through so and so', have been held to be a mere surplus age. Therefore, the death of Ram Kumar does not have any effect on this appeal. It is unfortunate that no counsel appeared before me on behalf of the plaintiff respondent though I had repeatedly adjourned the hearing to enable the proper representation to be made on its behalf. I had not the benefit of hearing arguments on the question in reply to the contentions raised on behalf of the defendant appellant which I have accepted above.
7. The result is that this appeal is allowed. The decree of the court below is set aside and the plaintiff's suit stands dismissed with costs. As nobody has appeared to oppose this appeal I make no order as to costs.