RAGHUMULL KHANDELWAL Vs. OFFICIAL ASSIGNEE OF CALCUTTA

JUDGEMENT

(1.) The issue in this case is whether the appellant is a partner of a firm of which the plaintiff- respondent and the respondents H.C. Ghosh and D.N. Sircar were admittedly partners. He says he was not, but was a manager who got Rs. 500 per month and 10 per cent, commission calculated on the net profits of the business as his remuneration for managing the firm. The learned Judge has held that he is a partner and has passed a decree which both sides, admit is not a good decree, for it makes no provision for any share of profits going to the defendant who is found by the judgment to be a partner.I will exclude from consideration a letter by the contesting respondent, Raghumull, who now says that the appellant is a partner but which letter stated that he, Raghumull, was the owner of the business and the appellant was only to have a monthly allowance, apparently as remuneration of his management.

(2.) It may be admitted at once that the memorandum of agreement of the partnership contained provisions which caii be referred to, to show that the appellant is, as the respondent contends, a partner. The question is whether they can be explained, or if not, whether they out weighed the considerations to which I will refer. Thus the document is called a, memorandum of partnership agreement. The parties to the document are said to be desirous of starting a partnership business and, in Clause 12 the appellant and H.C. Ghosh are directly called managing partners and Clause 23 contemplates an act by the appellant which might be a ground for dissolution of partnership by the Court. I may here say that calling a man partner or a man calling himself a partner does not make him such. It must be seen whether the provisions under which the parties come together do constitute in law and fact a partnership. Apart from this, the document being loosely drawn it is possible to construe these references to a partnership in suchia way as gives effect to them without affecting the appellant's contention. Thus the memorandum was in fact a co-partnership agreement as regards three of the parties to it. All of them again may have been desirous of starting a partnership business in which their respective positions were to be those specified in the deed, without referring for the moment to the question whether the position assigned to the Appellant amounted to a partnership so far as he was concerned. The other two points to which I have referred have for whatever they are worth greater weight reliance is also placed on the fact that the name of the appellant was used for the firm and he was given considerable powers. But this may mean that the respondent Lala Raghumull who was supplying the capital was desirous of having the advantage of an English name for the firm and wisely enough left the management to a man who presumably knew the business which was that of the partnership.

(3.) The ground upon which I would decide this appeal is this: A person may share in profits and yet not be a partner. But a person cannot be a partner without sharing in profits. If he does not share in profits he may be called a partner, but is not in law or fact such. The question in short is, was the appellant to have a share in the profits. This is the whole question in short which arises in this appeal.