JUDGMENT

Sinha, J. - This is an application in revision, against an order of the learned Small Cause Court Judge of Aligarh by which he dismissed the suit brought on the basis of a bond, dated 27th October 1936, on a preliminary ground. There was a firm, Musamal Ram Kumar, consisting of two partners, Musamal and Ram Kumar. On 27th October 1936, the bond in suit was executed by one Pt. Kishori Lal in favour of the firm. Musamal died on 19th April 1941, leaving a widow, Mt. Ansuiya Devi, and an adopted son, Jaggomal. The adoption is disputed and we might leave it at that. A suit - Suit No. 65 of 1942 - was instituted with an allegation of payment of Rs. 4 on 18th September 1939, in order to obviate the bar of limitation. On an objection that it was barred by Section 69, Partnership Act, Act 9 [IX] of 1932, the suit was withdrawn on 17th August 1942, with liberty to file a fresh suit and the suit, which has given rise to the present application in revision, was instituted on 18th September 1942. Various pleas were raised in defence but before we deal with them, we might mention the frame of the earlier suit, which will have considerable bearing upon the fate of the present suit.

2. The plaintiff purported to bring it on behalf of the firm, Musamal Ram Kumar, with an allegation that, on the death of Musamal, half of the assets belonged to him and the remaining half to the widow and the adopted son, inasmuch as they were admitted as partners and the firm continued. It was pleaded in defence that the firm was a registered firm and the death of Musamal brought about its dissolution u/s 42 of the Act and, as the new firm was not registered, Section 69 operated as a bar to the suit. It was in these circumstances that the Court allowed the earlier suit to be withdrawn and granted liberty to bring another suit. The present suit was instituted by Ram Kumar in his personal capacity with an allegation that the death of Musamal, on 19th April 1941, brought about a dissolution of the firm and his widow and the adopted son were being impleaded as defendants 2 and 3. The execution of the bond was admitted, but the bars of limitation and of Sections 69 and 72, (sic Section 42), Partnership Act, were pleaded. Consideration was also denied. It was also pleaded that the deceased Musamal died leaving daughters who Ought to have been impleaded as party and the suit was, there, fore, bad for nonjoinder. Certain other minor pleas were raised which need not detain us. The learned Small Cause Court Judge held that the absence of the daughters from the array of parties in the presence of their mother, did not cause any non-joinder. He held that the suit was not barred by Section 72, (sic Section 42), Partnership Act, but Section 69 did constitute a bar and dismissed the suit on this preliminary ground. The only question which calls for an answer is whether the suit is barred by Section 69(2), Partnership Act. Section 69(2) is in these terms:

No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.

The learned Counsel for the appellant contends that the frame of the suit does not attract the application of this provision of law, inasmuch as it has not been brought "by or on behalf of a firm" and relies upon the following quotation from Lindley on Partnership, at p. 350 (Edn. 10):

One partner may sue alone on a written contract made with himself if it does not appear from the contract itself that he was acting as agent of the firm; and one partner ought to sue alone on a contract entered into with himself, if such contract is in fact made with him as principal, and not on behalf of himself and others.and on Goverdhandoss Tokersey Vs. M. Abdul Rahiman and Another, AIR 1942 Mad 634 . There are certain observations supporting him but we do hot think the decision goe