PADMA KHASTGIR, J.

( 1 ) THIS application has been taken out by Krishna Chandra Agarwal and Harish Chandra Agarwal for an order that the death of the original-plaintiff No. 2 Bijoy Chandra Agarwal be recorded and the reconstitution of the firm of Vishamitra Karyalaya and the board of the trustees of the said Rajendra Chhatrabash Samity as shown in the annexure 'b' be recorded and for other consequential reliefs analogous thereto. The present suit was filed by Krishna Chandra, Bijoy Chandra and Harish Chandra Agarwal on 29th of July, 1965 against the defendants for recovery of possession of the premises No. 14/1a, Sambhu Chatterjee Street, decree for Rs. 68,531. 31 towards mesne profits and other reliefs. According to the petitioners at all material times Harish Chandra, Krishna Chandra and Bijoy Chandra Agarwal carried on business in co-partnership under the name and style of Vishamitra Karyalaya at 12, B. B. D. Bag. The said firm is a registered firm. On 8th of June, 1974 the said Bijoy Chandra Agarwal died. On the death of the said Bijoy Chandra Agarwal there has been a reconstitution of the said firm Vishamitra Karyalaya and Ajoy Chandra Agarwal had been a minor and was admitted to the benefits of the said partnership and by fresh deed of partnership dated 2nd of January, 1976 the said Ajoy Chandra Agarwal having attained the majority became a full fledged partner of the said firm. A copy of the new indenture of partnership has been annexed to the petition. According to the petitioner on the death of Bijoy Chandra Agarwal the cause of action in the suit, has survived and/or devolved on the surviving partners and the right to proceed with the suit continues.

( 2 ) DURING the pendency of the suit the defendants Nos. 1, 3 and 5 have died. They are the trustees of the said Chhatrabas. At the time of the hearing the learned lawyer appearing on behalf of the respondent No. 2 Nathmal Himat-singka submitted that Mr. Himatsingka has also retired from the Board of Trustees. Hence the petitioner also prayed for recording the death of the deceased trustees which have taken place long time ago. The petitioner has stated in the petition that through inadvertence and oversight the death of the aforesaid parties could not be recorded.

( 3 ) MR. P. K. Das, appearing in support of this application and first of all submitted that in view of the provision of Order 30, Rule 4 it shall not be necessary to join the representative of the deceased partner as party to the suit. Secondly he submitted that when there is a cause of action by the three partners on the death of one partner the cause of action does not abate but it vests on the other partner. Hence there is no abatement of the suit. Secondly it was submitted that at the most the suit has been filed by the partners by way of mis-description and in fact the suit should have been filed in the name of the firm. In any event that being a mistake and/or inadvertence on the part of the drafls-man that should be allowed to be rectified by way of amendment. It would appear that the present suit has been filed not by the partnership firm but by three individual persons against the trustees for recovery of possession and also for arrears of rent and mesne profits. From the notice of ejectment which gives the cause of action for the present suit it would appear that the notice has been given for and on behalf of Krishna Chandra Bijoy Chandra and Harish Chandra Agarwal, under Section 13 subsection (6) of the West Bengal Premises Tenancy Act as also under Section 106 of the Transfer of Property Act by Gulab Ch. Upadhyay, Advocate. From the service of the said notice the cause of action arose in favour of the three persons for and on whose behalf the said notice was given. Although it is mentioned in the said notice that the said three persons carried on business in copartnership under the name and style of Vishamitra Karyalaya but in fact the notice was given not on behalf of the firm but on behalf

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