John Beaumont, J. - (1.)THIS is an appeal from a judgment and decree of the High Court of Judicature at Bombay passed in its appellate jurisdiction dated October 4, 1945, in part reversing and in part confirming a decree of that Court passed in its ordinary original civil jurisdiction on December 22, 1944.
(2.)THE main question in this appeal is whether the appellant, who was the plaintiff in the suit, and the respondent, who was the defendant, were partners hi a restaurant business, or whether the defendant was an employee of the plaintiff in the business entitled to a share of the profits as remuneration for his services. THE appellant also claimed from the respondent a sum of over Its. 8,000 alleged to be due in respect of food and other necessaries supplied to the respondent and his family from the business. This last claim failed in both the Courts in India and has not been raised before the Board. At the trial Bhagwati J. held that the defendant was an employee of the plaintiff; the appeal Court held that they were partners. Bhagwati, J.
In a very long, but admirably clear, judgment discussed all the evidence In detail, and gave his reasons for regardIng the only important oral evidence, namely that of the appellant, the respondent, and of one B. D. EngIneer called on behalf of the respondent, as unreliable. The evidence was also discussed In some detail In the Court of appeal. Their Lordships will not agaIn go through the evidence In detail, but will confIne their judgment to the matters on which the Courts In India differed.

In the month of June 1936, the Pioneer Coffee House, then known as "cafe Chevalier," situate in Churchgate Street in the Fort area of Bombay, was purchased by the appellant in conjunction with the respondent, and the question for determination relates to the rights which the parties then acquired in the; business. The arrangement between the parties was oral, but in August, 1936 the appellant set down in writing in a document (Ex. A) what he alleged to be the terms of the arrangement. More particular reference will be made to this document later. It is not disputed that the appellant paid the whole of the purchase money amounting to Rs. 1,150 that the sale-deed of the premises dated June 19, 1936 (Ex. 10) was in his name, as were all the licences and authorities necessary to enable the business to be carried on. These comprised a licence for the sale of tobacco, an eating house licence, and an authority from the Commissioner of Police enabling the restaurant to be kept open until 12-30 a. m. , all of which were granted to the appellant as proprietor of the restaurant. As the purchase money was provided by the appellant and all the documents relating to the business were in his name, the burden lies heavily upon the respondent to show that he was interested in the business as a partner.

(3.)AT the date when the purchase was effected the appellant was a marine engineer employed by the Merchant Steam Navigation Co. , Ltd. , and Was frequently at sea. The respondent had been engaged for many years in the catering business but had met with reverses, and in 1935 a decree of the High Court had been passed against him under which he was liable to pay a sum of approximately Rs. 900 for costs. In the litigation in which this decree had been passed the said B. D. Engineer, then an articled clerk of the respondent's solicitors but afterwards an advocate, had acted for the respondent, and a friendship had sprung up between them. On the occasion of the purchase of the Pioneer Restaurant, Engineer, on the suggestion of the respondent, acted both for him and the appellant, and thereafter he continued to help the parties in the business of the restaurant. It is the respondent's ease, which was supported by Engineer in the witness box, that the purchase of the restaurant was made by the appellant and the respondent in partnership, the share of the appellant being one-third, and the share of the respondent being two-thirds, and that the documents were all to be in the name of the appellant in order to conceal the interest of the respondent from his creditors. It is the case of the appellant that he was the proprietor and the respondent was his manager on the terms mentioned in Ex. A.
In or about the month of August 1936, the appellant, whilst on board his ship, wrote out the terms upon which he alleged that the business had been purchased as between himself and the respondent, and handed over the document which is Ex. A to Engineer. Clauses IV to VII of this document are in the following terms: 'iv. The basis of the Agreement entered into between Mr. Hubert James on the one side and that of Mr. Gulam Hussein on the other are:that two-thirds of the profit will be his share, as his remuneration as manager of the restaurant. The other one-third goes to me as financier of the same. V. Should Mr. Ghulam Hussein, after the restaurant starts to pay, desire to acquire a partnership in the same, on his son's Ali or that of his wife's name, he may do so by paying two-thirds of the sum spent on the restaurant, at interest of 6 per cent, per annum. The same may be paid in instalments from time to time till the above sum is paid in full. When two-thirds of the capital will then be his. The other one-third will still remain as mine, sharing the profits in the ratio of two to one, i. e. , 2 Gulam Hussein and 1 Mr. James. VI. The whole management of the restaurant is in his hands. He stands to lose nothing, but to gain everything. If Mr. Gulam Hussein is the man I believe him to be, he will for his own interest work up the business. The materials are there, only it wants working up. I am positive the restaurant must pay and that handsomely in a year or two at the most. Provided Mr. Gulam Hussein gives of his best. VII. The restaurant has been financed by me not for my own personal gain, but solely on behalf of Mr. Gulam Hussein, as a token of friendship towards him. To enable him to take once again that position he once held in the restaurant business and his community. All I ask in return is honesty and straightforwardness on his part in the affairs of the restaurant. He must think it his own and so keep down as far as possible all unnecessary expenditure. It will be to his own advantage because the sooner it pays, the sooner he will be admitted to partnership.