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Ugar Sen Vs. Lakhmi Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in6Ind.Cas.840
AppellantUgar Sen
RespondentLakhmi Chand and ors.
Excerpt:
partnership - debt due to partnership--representative of a deceased partner, whether necessary party to a suit to recover debt--contract act (ix of 1872), section 45. - - we are not prepared to dissent from well-considered judgment of the court......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 judgment are given at considerable leng'th, the principle of the english law on the subject being adopted as being based on common sense. in a later case of motilal bechandass v. ghellabhai hariram 17 b 6, 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, 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 life-time of the deceased.....
Judgment:

1. 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 Chhote Lal. Both the Courts below have decreed the plaintiff's 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 representative 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 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 A.W.N. (1887) 133, the question waa 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 judgment are given at considerable leng'th, the principle of the English law on the subject being adopted as being based on common sense. In a later case of Motilal Bechandass v. Ghellabhai Hariram 17 B 6, 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, 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 life-time of the deceased partner. In that case the provisions of the Contract Act were considered and dealt with. In the later case of Debt Das v. Nirpat 20 A. 365, 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 judgment of the Court. We dismiss this appeal with costs including fees in this Court on the higher scale.


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