- (1.) The Appellant instituted the present suit for a declaration that a business in castor oil at 1 Ratan Babu Road, Cossipore, was partnership business in which he and the Respondent Jiban Krishna Ghose had equal shares, and for accounts. Jiban's father Nilkanta had, it is the common case of both parties, a castor oil business, at the address mentioned above, of which he was the sole proprietor and that sometime before 1325 B.S. according to the Plaintiff and sometime before 1327 B.S. according to the Defendant it was converted into a partnership business with Nilkanta and one Surendra Kumar as partners. The Plaintiff's case is that some time after this partnership came to an end, Nilkanta approached the Plaintiff to join him in a new business as the previous one agreeing to pay an equal half share to him for his remuneration and services and the Plaintiff joined the said business as partner on the aforesaid terms. Nilkanta died in 1334 B.S., but the Plaintiff's case is, that the partnership business continued with himself and Nilkanta's son Jiban as equal partners, but that the castor oil business had been closed by mutual consent at about the beginning of 1346 B.S. and, dissolved. The Defendant pleaded that the Plaintiff was never a partner of the castor oil business, that the business exclusively belonged to the Defendant's father and thereafter to the Defendant and that the Defendant's father employed the Plaintiff "as a servant or assistant in his place to "do English correspondence.....", that Defendant's father used to give the Plaintiff a pay or remuneration of Rs. 50 in the beginning and that thereafter the said pay had been increased to Rs. 150 per month.
(2.) The trial court considered the oral testimony unreliable, but on consideration of a number of circumstances that were revealed by the documents, came to the conclusion that the Plaintiff was a partner of the business and gave a declaration "that the "Plaintiff was a working partner of the dispirited business and "was entitled to and liable for eight annas' share of the profit "and loss of the business". A preliminary decree for accounts was also passed.
(3.) The main circumstances on which the learned trial court appears to have based its conclusion were these: (1) the account books of the business did not show any debit on account of wages paid to the Plaintiff; (2) at the same time it showed that every year the Plaintiff freely drew cash from the business. The total of these drawings amounted to many thousands of rupees; (3) in the fly leaf of one of the account books there were entries showing side by side the drawings by the Plaintiff and the Defendant; (4) a parent account in Cox and Company that was opened in the Plaintiff's name was really for the purpose of the business; (5) the Plaintiff brought in his own name on the Original Side of this Court a suit against one Alec Coyn for recovery of damages for breach of contract by the latter to supply 50 drams of white oil required for the castor oil business; (6) in a letter which Jiban wrote to the Imperial Bank in 1931 the words "my partner" appear before the name of Satish; (7) some mortgage deeds were executed jointly in favour of the Plaintiff and the Defendant.;