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Debi Das Vs. Nirpat and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All365
AppellantDebi Das
RespondentNirpat and ors.
Excerpt:
parties to a suit - suit for partnership debt--representative of partner who dies pending the suit not a necessary party--act no. ix of 1872 (indian contract act), section 45. - .....to recover money due to them as partners in a trading concern upon a partnership account. before decree abhe singh died, and debi das, who claimed to be his adopted son, was entered upon the record as the representative of the deceased plaintiff. the suit was continued, and the munsif gave the plaintiffs a decree. the defendants appealed, and the lower appellate court dismissed the suit. the ground of such dismissal was that debi das was not an adopted son; was not a representative of abhe; and was not entitled to recover abhe's interest in the debt without production of a certificate under section 4 of the succession certificate act, no. vii of 1889. the plain till debi das appeals upon the ground that, as the surviving partner of the firm to which the debt was due, he by himself was.....
Judgment:

Blair and Burkitt, JJ.

1. This suit was brought by Abhe Singh and Debi Das to recover money due to them as partners in a trading concern upon a partnership account. Before decree Abhe Singh died, and Debi Das, who claimed to be his adopted son, was entered upon the record as the representative of the deceased plaintiff. The suit was continued, and the Munsif gave the plaintiffs a decree. The defendants appealed, and the Lower Appellate Court dismissed the suit. The ground of such dismissal was that Debi Das was not an adopted son; was not a representative of Abhe; and was not entitled to recover Abhe's interest in the debt without production of a certificate under Section 4 of the Succession Certificate Act, No. VII of 1889. The plain till Debi Das appeals upon the ground that, as the surviving partner of the firm to which the debt was due, he by himself was entitled to maintain the suit without joining any person as representative of the deceased member of the firm and therefore without producing any certificate. The second ground of appeal is not pressed. We consider ourselves concluded by the decision of this Court in the case of Gobind Prasad v. Chandar Sekhar I.L.R. 9 All. 486. That decision, it is true, has been dissented from in the Calcutta High Court in the case of Ram Narain Nursing Doss v. Ram Chunder Jankee Loll I.L.R. 18 Cal. 86. On the other hand, the decision of this Court has been followed and approved in Motila Bechardass v. Chellabhai Huriram I.L.R. 17 Bom. 6. We are not aware that the case decided in this Court has been dissented from in this Court. The principle therein laid down is in accordance with the English law, and is not in our opinion in contravention of Section 45 of the Contract Act. It was quite unnecessary to bring Abhe's representative on the record. We do not consider that a decree such as may be passed in this case would be a decree against the debtor of a deceased person within the meaning of Section 4 of Act No. VII of 1889, but it would be a decree against the debtor of a partnership concern; for, in a suit to recover a debt due to a trading partnership in which it happens that a deceased person was a partner up to the time of his death, it is not, in our opinion, necessary to join as plaintiff any representative whatever of the deceased partner. When the representative of Abhe desires to recover from the partnership concern such interest as Abhe possessed in the firm, if he has to do so through the medium of a Court, he will have to obtain a succession certificate before he is entitled to a decree. We set aside the decree of the Court below dismissing the suit, and, as the case was wrongly dismissed upon a preliminary point, we remand it to the Lower Appellate Court for trial upon the merits.


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