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TMI Blog1961 (11) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... ip was registered and the names of two partners appear in the Register of Firms as Gorak Nath and Champalal Pandey. Subsequently one of them died but the heirs were not brought on the said register. In spite of the death, the firm is said to have continued its business with the heirs of the deceased partner. The point that has been urged is that the suit is not maintainable in view of section 69(2) of the Partnership Act. When the plaintiff firm instituted the suit the defendant filed an interrogatory asking the plaintiff as to who the partners were. The plaintiff gave certain names and there is no dispute about that matter. It is also undisputed that the names of the heirs of the deceased partner were stated as partners of the firm but their names do not appear in the said register before the Joint Stock Company. In these circumstances, the first court held that there was an oral contract between the partners Gorak Nath and Champalal by which they agreed that the firm would not be dissolved on the death of either or both the partners but would continue with the heirs of the deceased partner or partners. 4. This oral contract was accepted by the first court. The first court came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Iqbal Ahmad, C.J and Sinha, J. In the latter case of the Allahabad High Court their Lordships found that if there is a contract between the original partners, the firm would not stand dissolved on the death of a partner. The question here before me is what is the principle underlying section 42 and what is the application of that section. That section states that subject to a contract between the partners a firm is dissolved by the death of a partner. Here the contract that has been referred to in the contract between the two partners Gorak Nath and Champlal. I have already found that there was a contract between Gorak Nath and Champalal. Therefore, it cannot be said that the contract ceased to have effect because a partner died. The contract was there. There was no new contract with the heirs and there was no question of a new contract with the heirs because of the original contract, and by virtue of the original contract the heirs become partners as soon as one of the partners died. It is stated that at the death of the partner there is no partnership; as long as there is no death there is the partnership As soon as there is the death, the heirs become the partners automati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the first condition is satisfied, as is clear from Ex. 10, the registration certificate.. Indeed this fact was admitted on behalf of the appellant in the lower appellate court. Whether it contains the names of two partners or more, does not alter the fact that the firm is registered. As regards the second condition, we are of opinion that that is satisfied too *** We do not think that the provisions of sub-s. (2) of s. 69, Partnership Act, are a bar to the maintainability of the suit in the form in which it was brought. In our judgment Sikri Brothers as a registered firm were entitled to sue and actually sued as the plaintiff in the case. 7. It appears to me that their Lordships considered the two conditions separately, the first condition in the first part, the second condition in the second part and then they say, We do not think that the provisions of sub-s. (2) of s. 69, Partnership Act, are a b??? to the maintainability of the suit in the form in which it was brought. Mr. Ghose relies on the next sentence, namely, they are entitled to sue as a registered firm. Mr. Ghose says when they are saying as a registered firm they mean to say whether the names of the hei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Ram Kumar Ram Chandra v. The Dominion of India (7) A.I.R 1952 All 695. The observation there is that the firm being registered the provisions of section 69(2) are complied with and hence the plaint cannot be rejected. Mr. Ghose says that here also the firm being registered the suit is maintainable, no matter whether the names of the persons appear in the register or not. Mr. Ghose says that all these decisions point out that only one of the conditions need be satisfied, because, according to him, the condition relating to a suit by a firm is mere registration and the condition of a suit by persons on behalf of the firm is that the names of the persons suing should be shown in the register of firms; he further says as it is a suit by the firm, there is no question of the second condition being satisfied. But this question was not considered in any of the aforesaid cases. Mr. Chakravarti says, however, that this point is concluded by certain decisions. He refers to the case of Dr. F.ST Bahal v. S.L Kapur and Co., (8) A.I.R 1958 Punjab 24 In paragraph (9) their Lordships observed as follows:- The question which arises in the present case is whether in order to institut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gument of Mr. Ghose was ever considered. It is indeed true that there is a large number of decisions where this proposition is accepted and the two conditions have to be satisfied. But interpretation of the statute as made by Mr. Ghosh has never been considered in any of the cases which have been referred to by the learned Advocates on either side. I have, therefore, to construe the section. The purpose of sectjon 69 is to protect third parties against frauds and against omissions. Really this is not anything which affects the partners between or among themselves. They may know the position as well. But a third party is expected to know who are the partners of the firm with which a third party is dealing, unless there is some record kept by some person authorised by law to keep a record, there may be various difficulties. One day somebody will say that such and such was a partner, the next day it would be said that he was not, and the third parties would be in jeopardy as they do not know with whom they were actually dealing, and it is for the protection of their interest that this section was provided in the Act. But whatever may be the object of the Act, that will not control the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons then suing must have their names shown in the register of firms. In this case it might have been so if it had been disclosed by the plaintiff that only the surviving person is the partner of the alleged firm but they have disclosed the names of other persons whose names are not there in the Register. On a plain meaning of the section, I cannot accept Mr. Ghose's contention. I find if this contention is accepted the purpose of section 69(2) would be defeated completely. A firm registered in once would will remain a registered firm for all times even though all recorded partners are dead. I am afraid, I cannot accept any interpretation of the section which would completely defeat the purpose of tha section in question. In that view of the matter, I must overrule this contention of Mr. Ghose and accept the contention of Mr. Chakravarti that the two conditions set forth in section 69(2) are mandatory and have not been complied with. 10. The last point of Mr. Ghose is that a suit for ejectment does not come under the mischief of section 69(2). It is not a suit arising out of a contract but arising apart from a contract. The contract was a contract of lease and there was a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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