1. The document, which is in the nature of a bond, is executed by the appellant in favour of Visvanadha, originally a plaintiff on the record, but now deceased, and Iyavier, who died before action brought.
2. The question is whether the suit is maintainable, no letters of administration having been taken out to Visvanadha or Iyavier. The learned Judge has held that letters were not required because the action was not to recover a debt duo to a deceased person, but was an action by the surviving member of a firm. In saying this, however, he overlooked the fact that the surviving partner also was, at the time of trial himself, dead and that the actual plaintiff Natesa was seeking to recover a debt due to his deceased father Visvanadha. Assuming, therefore, that the latter could have sued alone as the surviving partner, we fail to see how, on death, the necessity of taking out letters of administration can be avoided. But it has been argued that the money was really owing to the family and not to the obligees of the bond, and that the plaintiffs as members of the family were entitled to sue in their own right of survivorship without obtaining letters of administration. Venkataramanna v. Venkayya I.L.R. 14 Mad. 377 was cited in favour of this contention. What was said, however, in Venkataramanna v. Venkayya I.L.R. 14 Mad. 377 was that, if, on the face of the document, it appeared that the debt was a family debt, the surviving member might sue in his own interest, the money being due to the family. In the present case the bond does not show the nature of the debt and therefore the decision is really not applicable.
3. Moreover, if it was competent to the plaintiffs as being themselves primarily and not in a representative character interested in the claim, the other members of the family ought to have been joined, and no application to join them was made though the objection of non-joinder was taken at the earliest opportunity.
4. It is said that the second plaintiff became a member of the firm on the death of Iyavier and that as such he is entitled to sue, but that contention is clearly unsound. The right originally vested in Iyavier might have been assigned, to the plaintiffs or, on lyavier's death, might have passed to his representative. But it certainly did not pass to him owing to the mere fact that he joined the firm. In our opinion the plaintiff's suit was not properly framed and ought to have been dismissed.
5. If Visvanadha Ayyar and Iyavier were partners of a firm constituted in the ordinary way by contract, as appears to have been the case, for otherwise the second plaintiff would not have been said to have joined the firm on his father's death see Ram Narain Nursing Doss v. Ram Chunder Jankee Loll I.L.R. 18 Cal. 86 then it is clear that their representatives or at least the representative of the survivor must establish his character as such in the legal way by taking out letters of administration. In that case the Act clearly applies.
6. On the other hand, if it is said that the money was due to the family and that the plaintiff's as surviving members of the family wore suing to recover it, they are met with the difficulties already mentioned.
7. We must reverse the decree and dismiss the suit directing the plaintiffs to pay the costs throughout.