K RAMA NAIDU Vs. S K PARTHASARATHY NAIDU

JUDGEMENT

(1.) THE first defendant in a suit on the Original Side of the court has appealed against an order of injunction issued in terms as follows: "that the interim order of the court herein dated 13. 6. 1991 directing the respondents herein not to encumber or alienate the property more fully set out in the schedule hereto, in any manner to third parties and extended till 27. 6. 1991 by order dated 20. 6. 1991 be and is hereby made absolute till the disposal of the above suit C. S. No. 597 of 1991. "

(2.) THE plaintiff/first respondent and the second defendant/second respondent have a common cause in the injunction petition. For the purpose of appreciating the nature of the dispute between the parties, we may refer to the contents of the plaint and if necessary to the affidavits filed in the course of the hearing of the injunction petition. We do not, however, have the advantage of the written statement of the first defendant/appellant. We shall, however, for the purpose of deciding, the question of injunction, accept the allegations in the supporting affidavit as uncontroverted.

(3.) SEC. 6 of this Act indicates the mode of determining existence of partnership in these words: 'in determining whether a group of persons is or is not a firm, or whether a person is or is not a partner in a firm, regard shall be had to the real relation between the parties, as shown by all relevant facts taken together. Explanation 1: The sharing of profits of gross returns arising from property by persons holding a joint or common interest in that property does not of itself make such persons partners. Explanation 2: The receipt by a person of a share of the profits of a business, or of a payment contingent upon the earning of profits or varying with the profits earned by a business, does not of itself make him a partner with the persons carrying on the business; and, in particular, the receipt of such share of payment: (a) by a lender of money to persons engaged or about to engage in any business, (b) by a servant or agent as remuneration, (c) by the widow of child of a deceased, partner, as annuity or (d) by a previous owner or part owner of the business, as consideration for the sale of the goodwill or share thereof, does not of itself make the receiver a partner with the persons carrying on the business.'