1. The plaintiff in the suit out of which this appeal has arisen in conjunction with other members of his family carried on a business for the sale of gold and silver lace. His case is that on the 1st of August, 1903, the defendant sold to him through some brokers some bars of silver and took from the plaintiff Rs. 100 in cash by way of earnest money and promised to deliver the silver on a certain date; that subsequently the defendant took a further advance in respect of the sale of other bars of silver. The defendant failed to fulfil his contract and the suit out of which this appeal has arisen was brought by the plaintiff for recovery of damages for breach of his contract by the defendant. On the occasion of the agreement the defendant executed sattas in favour of the plaintiff. The plaintiff, as we have said, carries on business along with other members of his family under the style of Durga Prasad. The defendant defended the suit on various grounds and, amongst others, that the agreement entered into with the plaintiff was in the nature of wagering contract and was, therefore, not enforceable and also that the plaintiff had no right to sue alone.
2. The Court of first instance gave a decree in favour of the plaintiff, but upon appeal the lower appellate Court dismissed the plaintiff's claim on the ground of the non-joinder in the suit of the other members of the plaintiff's firm. In dismissing the suit the learned District Judge held that the decision in Gopal Das v. Badri Nath 27 A. 361 : 2 A.L.J. 3, relying on which the Court of first instance had decreed the plaintiff's claim, was hot applicable, but that the case was governed by the ruling in the case of Shamrathi Singh v. Kishan Prasad 29 A. 311 : 4 A.L.J. 192 : A.W.N. (1907) 58.
3. From this decision the present appeal has been preferred, and. it is contended before us that the case is governed by the decision in Gopal Das v. Badri Nath 27 A. 361 : 2 A.L.J. 3. It is to be observed that the contract with the defendant was entered into by Durga Prasad alone and that sattas were executed by the defendant in his favour. It does not appear that at the time of the contract any mention was made of other members of the firm. We think in view of this that the learned District Judge was wrong in reversing the decision of the Court of first instance. It has been held in a number of cases, including a case before the Privy Council, Agacio v. Forbes (1861) 14 Moo. P.C. 160 : 4 L.T. 155 : 9 W.R. 503, that one partner, with whom personally a contract is made, is entitled to sue upon the contract in his own name, without joining his co-partners as plaintiffs. The rule of law governing a case of the kind is stated in the judgment in Bungare Singh v. Soodist Lall 7 C. 739 : 10 C.L.R. 263. In that case a mortgage-bond was executed in the name of the plaintiff alone, he being one member of a joint Hindu family, and it was held that he was entitled to sue as the person who entered into the contract, not only on behalf of himself but on behalf of the other members of the family. Again in the case of Hari Vasudev Kamat v. Mahadu Dad Gavda 20 B. 435, in which a loan was made to the defendant out of joint family funds, and a bond for the amount of the loan was given, in the name of one of the members of the joint family, it was held that that member, in whose favour the bond was given, was competent to sue and that the other members of the joint family were not necessary, parties. The present case resembles that of Gopal Das v. Badri Nath 27 A. 361 : 2 A.L.J. 3 in which this Bench held that where a contract is entered into on behalf of a joint family business by the managing members of the firm in their own names, it is not necessary that any members of the joint family other than those who entered into contract should be parties to the suit brought thereon.
4. The learned District Judge relied upon the ruling of a Bench of this Court, of which one of us was a member, in the case of Shamrathi Singh v. Kishan Prasad 29 A. 311 : 4 A.L.J. 192 : A.W.N. (1907) 58. The facts of that case are not similar to those of the present case. There the managing members of a joint Hindu family, carrying on a joint family business, instituted a suit in their own names alone against debtors of the family, for a debt due to the family, without joining with them in the suit either as plaintiffs or defendants the other members of the family. That case is clearly distinguishable from the present. There the debt sought to be recovered was a debt to the joint members of the family and it was accordingly held that some of the members only of the joint family could not maintain a suit for its recovery, without joining the other members of the family in the suit.
5. For these reasons we think that the decision of the learned District Judge is erroneous, and we set it aside. As he decided the appeal before him upon the question, of non-joinder of parties and has not determined the other issues raised in the appeal, we remand the case under the provisions of Order 41, Rule 23 of the Code of Civil Procedure, to the lower appellate Court with directions that it be re-admitted in the file of pending appeals in its original number and be disposed of according to law. The appellant will have his costs of this appeal. All other costs will abide the event. The costs of this Court will include fees on the higher scale.