JUDGMENT
Bhimasankaram, J.
(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 Judge’s 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/-. During the execution of the decree, an amount of nearly Rs. 1,500/- 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 defendant’s 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).
(4) The question presented by this appeal is of considerable difficulty. The difficulty in our opinion is considerably enhanced by the fact that the persons whose relationship is to be judged joined only in a single venture. As Lindley observes in his book on “Partnership” at page 35, (11th Edition) :
“If several persons jointly purchase goods for resale with a view to divide the profits arising from the transaction a partnership is thereby created. But persons who join in the purchase of goods not for the purpose of selling them again and dividing the profits, but for the purpose of dividing the goods themselves, are not partners”.
(5) Having regard to the fact that the subject-matter of the purchase in this case is a decree, it is difficult to see how it could be dscribed as a purchase of goods for re-sale. Nor could it be described as having been purchased for the purpose of dividing the goods themselves. It seems to us that in this case what the parties contemplated was nothing more than taking their shares” of the net returns obtained by the execution of the decree, which is the common property, and that there is no question of an agreement of partnership. We, therefore, agree with the learned Judge in his conclusion that the defendant had not established that the plaintiff and the defendant were partners. The learned Judge also held that the plaintiff and the defendant were interested in the money realised under the decree in the proportion of Rs. 1,650/- to Rs. 1,350/- and not in equal moities. The learned counsel for the respondent objects to this part of the learned Judge’s decree. This direction of the learned Judge was based upon admissions made by the parties, and therefore in our judgment not open to criticism.
(6) We, therefore, dismiss both the appeal and the memorandum of Cross Objection with costs,
(7) V. R. B.Appeal and cross-objection dismissed.
