P NARAYANA Vs. P SEETHARAMAYYA

JUDGEMENT

(1.) This is an appeal against the decree and judgment of Rajagopalan J. of the Madras High Court in S. A. No. 1746 / 48. The learned Judge granted leave to both the appellant and the respondent before him to appeal against his decision. The respondent before us has therefore filed a Memorandum of Cross-objections.

(2.) The facts of the case may be briefly stated. The appellant and the respondent who were respectively the defendant and the plaintiff in O. S. No. 61 of 1945 on the file of the Subordinate Judges Court, Vishakapatnam, out of which the present appeal arises, jointly obtained a transfer of the decree in O. S. No. 34 of 1935 on the file of that court, under a registered deed of transfer dated 5.3.1938, for a consideration of Rs. 3,000.00. During the execution of the decree, an amount of nearly Rs. 1,500.00 was deposited into the executing court by the judgment-debtors and at the time of this suit, there was still a considerable balance outstanding. The plaintiff respondent filed the present suit for a declaration that he was entitled to sent suit for a declaration that he was entitled to receive the whole of the amount in deposit as also the amount thereafter to be recovered, alleging that though the transfer deed was taken in the names of both of them, he was the person solely interested in the transfer as the whole of the consideration passed from him along, though as he had taken some money from the defendant by way of loan for the purpose of the trnasfer the defendants name also happened to be included in the transfer--deed.The defendant-appellant, on the other hand, claimed that he himself had paid the whole of the consideration not therefore he was the person entitled to the amount in deposit as well as future realisations. The trial court dismissed the suit, but on appeal, the learned District Judge held that both the plaintiff and the defendant were entitled to equal rights in the decree of which they had obtained a transfer and were therefore entitled to share the decretal amount equally. He also held that both had contributed equal amounts and had shared at an earlier point of time in equal halvesa sum which had been then realised.

(3.) In the Second Appeal by the defendant, it was contended before the learned Judge that the relationship between the plaintiff and the defendant was one of partnership and that the suit was not therefore maintainable, in its present form. It was urged that the suit should have been by way of dissolution of partnership and for accounts. The learned Judge held that, in order to constitute a partnership, the agreement should provide for each of the partners to be the agent of the other besides also being the principal and further held that, judged by that test, the plaintiff and the defendant were not partners. He referred to some of the decisions bearing on the point particularly that reported in -- Govindan Nair v. Nagabhushanammal. AIR 1948 Mad 343 (A) and that in -- Chimanram Motilal v. Jayanti Lal Chhaganlal, AIR 1939 Bom 410 (B).