1. We quite agree with the learned Chief Judge of the Small Cause Court in the opinion expressed by him that it has always been held in Calcutta, since Section 45 of the Indian Contract Act came into force, that the representatives of a deceased partner must always be made parties to suits as plaintiffs with the surviving partner or partners.
2. There are two cases in which that matter has come before this Court--One is Suit No. 243 of 1881 Remfry v. Patipaban Sen in which case the hearing was, on the 9th December 1881, adjourned in order that the plaint might be amended in accordance with this construction of the section. The second which we may mention was Suit No. 103 of 1890 Balkishen v. Monimadhab Sen, the hearing of which was on the 5th May 1890, adjourned for a similar purpose notwithstanding that the case of Gobind Prasad v. Chunder Sekhar I.L.R. 9 All. 486 referred to by the learned Chief Judge, was cited.
3. It is possible that, in some other partnership case, a question might arise as to the applicability of Section 45 and of Section 4 of the Succession Certificate Act; that is to say, the case of a family partnership under the Mitakshara law. It is not necessary to express any opinion, which would necessarily be more or less speculative, as to the effect of the statutory law upon such partnerships, when we observe that, in the present case, it is stated in the learned Chief Judge's summary of the evidence that Buldeo Doss, according to Juggurnath, though, during his father's life-time he took a share in the management of the business of the firm, signing in the name of the firm, just as Juggurnath and his brothers did, was not actually a partner in the firm at the death of his father. It would appear from this, therefore, that whether the members of the partnership firm were, or were not, members of a Mitakshara family, the firm was carried on as the creature, not of birth and relationship, but of contract, since, had it been family property under the Mitakshara law, Buldeo would probably have been interested upon his birth, as a Mitakshara co-sharer, in the assets of the family business. The case being relieved of any question of this nature, we answer the reference by saying that the representatives of the deceased Nursing Doss must be appointed under the Act VII of 1889, and must be made parties to the suit in order that the suit may be properly constituted.