Sustainability of the order deleting name of deceased partner from the cause list.

The defendant/respondent in I.A.No.482 of 1988 in O.S.No.326 of 1985 on the file of the learned District Munsif, Ootacamund, is the petitioner. The respondent herein is the plaintiff. The plaintiff is the M/s.P.M. Agencies represented by its Managing partner Mr.P.Mugundaraj. The plaintiff is admittedly a registered partnership firm and the suit was filed by the partnership represented by its Managing Partner P.Mugundaraj. The suit is for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit property or in any day creating any interest over the suit property by way of lease etc. P.Mugundaraj died on 12. 1987 and on his death, Smt.Vanaja Sunda-rarajan filed I.A.No.482 of 1988 in the lower court for amendment of the plaint by deleting the name of P.Mugundaraj and substituting her name in the short and long cause titles in the suit. According to Smt.Vanaja Sundararajan she is entitled to carry on and continue the partnership business in view of the recital in the partnership deed. Her applica-. tion was resisted by the defendant on the grounds. that on the death of P.Mugundaraj the partnership firm became defunct and that the firm cannot proceed with the suit. It is admitted by both parties that there were only two partners to the firm. The other objection raised by the defendant is that O.6, Rule 17 will not apply and that any amendment if allowed, will totally change the verification of pleadings. The third objection is that the petition for amendment is not maintainable as the petitioner is shown as Messrs.P.M.Agencies by its Managing Partner P.Mugundaraj who is dead. The lower court, on a careful consideration of the rival contentions of the parties has allowed the application. Aggrieved with this order, the defendant/respondent has filed this civil revision petition. In this civil revision petition Mr.M.S.Subramanian, learned counsel for the petitioner contended that by way of amendment of the plaint Mrs.Vanaja Sundararajan seeks to implead herself as a partner representing the firm which became defunct on the death of one partner P.Mugundaraj. According to the learned counsel for the petitioner, the partnership is not in existence and that cannot be continued by substituting Mrs.Vanaja Sundararajan. The partnership deed in this case was not filed before the lower court and in the civil revision petition also this Court cannot take any additional evidence by receiving the above said partnership deed. Therefore we have no other material to find out the relevant clauses in the partnership deed for appreciating the rival contentions of the parties. In support of his contention Mr.M.S.Subramanian, the learned counsel for the petitioner relied upon the judgment reported in Mt.Sughra v. Babu, A.I.R. 1952 All. 506, the Division Bench of the Allahabad High Court has held as follows:

(a) Partnership Act 1932, Sec.42(c): Subject to contract between the partners partner ship consisting of only to partners. When it is said that a partnership will not be dissolved by the death of one party, what is meant is that the partnership will continue between the surviving partners even after the death of a partner. It follows that in order that the exception to the general rule may apply the original partnership must consist of more than two partners. In the case of a partnership consisting of only tow partners, no partnership remains on the death of one of them and, therefore it is a contradiction in terms to say that there can be a contract between two partners to the effect that on the death of one of them the partnership will not be dissolved but will continue. Nor is the position affected by bringing in the heirs of a deceased partner on the scene. One partner cannot by his own contract, impose a partnership upon his heirs or legal representatives. Partnership is not a matter of status, it is a matter of contract. No heir can be said to become a partner with another pe