JUDGEMENT Appeal (No. 6 of 1941), by special leave, from an order of the High Court in its appellate jurisdiction (March 9, 1938) which had confirmed an order of the High Court passed in the exercise of its insolvency jurisdiction (January 12, 1937). The main question for determination in this appeal was whether the appellants, who were the creditors of an insolvent, whose estate was vested in the Official Assignee, were entitled to succeed in their application for directions to issue to the Official Assignee that he should lend his name to the appellants for the prosecution of the insolvents claim before His Majesty in Council in a suit for a dissolution of an alleged partnership and for the protection of the insolvents estate. Law. Rep. 69 Ind. App. 71 ( 1941- 1942) Navroji Ardeshir Cooper V. Official Assignee of Bombay 2 In 1920, Rustomji Ardeshir Cooper (the insolvent) had entered into an agreement, subsequently varied, with one Narandas Thakersey Mulji for the sale to him of a half share of the vendors interest in property at Champa Gully. Litigation between the parties to that agreement ultimately reached the Privy Council, and in pursuance of a judgment of the Judicial Committee and an Order in Council Rustomji Ardeshir Cooper conveyed the property to the heirs of Narandas Thakersey Mulji. Cooper thereafter brought a suit (No. 713 of 1931) against the heirs of Narandas for the dissolution of a partnership alleged to have existed between himself and Narandas. Subsequently Cooper was adjudicated insolvent, and the Official Assignee continued the suit, which was dismissed by the trial judge, who took the view that it was entirely misconceived. On an indemnity being given by the appellants in the present appeal, who were creditors of the insolvent, the Official Assignee appealed to the High Court, who also dismissed the appeal as entirely misconceived. The appellants, by notice of motion, dated January 7, 1937, asked the High Court to direct the Official Assignee to lend his name to them for the purpose of carrying the appeal to His Majesty in Council. They claimed to be creditors in the insolvency for a large amount, and that the insolvent and his estate was indebted to them for over Rs. 1,50,000. They claimed to be creditors in the insolvency for a large amount, and that the insolvent and his estate was indebted to them for over Rs. 1,50,000. They stated that they had advanced to the Official Assignee about Rs.70,000 to continue the partnership suit, and that the suit had been dismissed by both courts, with costs amounting to Rs.60,000 paid from the said sum. As the Official Assignee declined to carry the appeal to His Majesty in Council they alleged that they were entitled to compel him to do so by reason of the decision in Ex parte Kearsley. In re Genese ( 1886) 17 Q, B. D. 1. Blackwell J., who heard the motion, said that it had been resisted by the Official Assignee, who objected to allowing his name to be used on an appeal to the Privy Council in a matter in which he was now satisfied that such an appeal would be hopeless. The motion was dismissed. On appeal, the High Court (Beaumont C.J. and Wadia J.) said that the decision of the Court of Appeal against which it was desired to appeal to the Privy Council confirmed the judgment of the lower court, and both the trial judge and the Court of Appeal had expressed a very emphatic opinion that the plaintiff had no cause of action. The appeal was dismissed. 1942. Feb. 9, 10. Rewcastle K.C. and Krishna Menon for the appellants. The appellants desire an opportunity to ask the High Court in India for leave to appeal to the Privy Council against their decree in suit No. 713 of 1931, but if the Board is convinced that if the matter came here it would have no chance of success it would be waste of time to proceed further. If, on the other hand, it would be possible to present some reasonable argument on a point of considerable doubt, then it is submitted that the appeal should be heard by the Board. Although it may well be that the original agreement between Cooper and Narandas would more properly be regarded as nothing more than a co-ownership, the amended agreement does come within the appropriate provision of the Contract Act which defines partnership s. 239. Although it may well be that the original agreement between Cooper and Narandas would more properly be regarded as nothing more than a co-ownership, the amended agreement does come within the appropriate provision of the Contract Act which defines partnership s. 239. It is conceded that a mere joint purchase is outside that definition, but when one proceeds to develop the business of the estate, then they are combining their property and their skill. To show that the relationship between Cooper and Narandas was a partnership and not a mere co-ownership reliance is placed on the term of the agree ment dealing with the transfer of one share in the property. It is one of the differences between co-ownership and partnership given in Lindley on Partnership, 10th ed., p. 31. [On the question whether a trustee can be compelled to allow the use of his name, on indemnity given, reference was made to Ex parte Kearsley. In re Genese (17 Q. B. D. 1.); Ex parte Pooley. In re Meiklam (( 1864) 10 L. T. 102.); and Williamss Bankruptcy Practice, 15th ed., p. 410, where In re Grenfell ([ 1915] H. B. R. 74.) is referred to.] Sir Thomas Strangman K.C. and E. Holroyd Pearce for the respondent, were not called upon. [It was stated in the case for the Official Assignee that he had no desire to take up Law. Rep. 69 Ind. App. 71 ( 1941- 1942) Navroji Ardeshir Cooper V. Official Assignee of Bombay 3 a contentious attitude, and he desired it to be made clear that he would prosecute the appeal in suit No. 713 of 1931 if it were his duty to do so, but that he conceived that it was his duty to refuse to lend his name to appeals which he considered were absolutely without merit.] Feb. 10. The judgment of their Lordships was delivered by Lord Thankerton. The present appeal arises out of a litigation in which the trial court and the Appellate Division of the High Court have both given judgment on the merits to the same effect. The latter stages of the litigation have been conducted at the expense of the present appellants, they having indemnified the trustee until after the decision of the High Court. The latter stages of the litigation have been conducted at the expense of the present appellants, they having indemnified the trustee until after the decision of the High Court. The present appellants then applied to the trustee to carry the case further or, failing that, to allow his name to be used by them, they offering a continued indemnity to the trustee. The trustee declined, and the result was a notice of motion on January 7, 1937, on the insolvency side of the High Court, asking the court to direct the Official Assignee to lend his name to the applicants for the purpose of carrying on the appeal to His Majesty in Council, they offering the usual proper indemnity. That motion was heard in the first instance by Blackwell J., and was refused. The present appellants then appealed to the Appellate Division of the High Court, and it was again refused by that court. It is sufficient to refer to the reasons given by the Chief Justice in the High Court, in which his colleague concurred. He says "If we thought that there was any reasonably good "prospect of success in the appeal, we might be prepared to "grant the leave. But even if we directed the Official "Assignee to let his name be used, we should then have to be "satisfied that there was a substantial point of law before "we could grant him leave to go to the Privy Council. In "my judgment there is no substantial point of law, so that if "we gave the direction asked for in this appeal, it would carry "the matter no further. The decision of the Court of Appeal "against which it is desired to appeal to the Privy Council "confirmed the judgment of the lower court, and both the " trial judge and the Court of Appeal expressed a very emphatic "opinion that the plaintiff had no cause of action." The present appeal is against that judgment of March 9, 1938. Three main points were mentioned by Mr. Rewcastle in his very full and able address to their Lordships, but he quite frankly admitted that if, in regard to any one of those three points he had not made out what it was necessary for him to make out for the purpose of succeeding in this appeal, he would fail. Three main points were mentioned by Mr. Rewcastle in his very full and able address to their Lordships, but he quite frankly admitted that if, in regard to any one of those three points he had not made out what it was necessary for him to make out for the purpose of succeeding in this appeal, he would fail. It is sufficient to deal with the first point, namely, the question whether there was a partnership between the insolvent and Narandas. On this point the appellants have the judgments of two courts against them. Their Lordships have listened to the grounds as stated by counsel for the appellants on which he founds his hope of persuading their Lordships that they ought to overrule those judgments. The High Court have expressed a strong view on the complete insufficiency of those grounds, and their Lordships are satisfied that that view is a correct one. This conclusion must necessarily result in the failure 0£ the present appeal. It is to be borne in mind that if this appeal succeeded, the next step would be an application to the High Court for leave to appeal. The judgment already given in the High Court makes it clear that that application would fail. The next step would be an application to His Majesty in Council for special leave to appeal. In view of what their Lordships have just stated, their Lordships would be bound to advise His Majesty to refuse special leave. It follows that to allow the present appeal would in no whit benefit the appellants, and would merely lead to expenditure of money in costs. Their Lordships desire to add that they entertain no doubt as to the principles on which the court should deal with such a motion as that which is the subject of the present appeal. Such a motion seeks to get the court to overrule the decision of the Official Assignee not to litigate further. It is not sufficient for the applicant to point to a possible point which could be raised in argument. He must satisfy the court that the Official Assignee, in declining to give his name for the purpose of starting or continuing a litigation, notwithstanding that a full and proper indemnity has been offered to him, is not Law. Rep. 69 Ind. App. He must satisfy the court that the Official Assignee, in declining to give his name for the purpose of starting or continuing a litigation, notwithstanding that a full and proper indemnity has been offered to him, is not Law. Rep. 69 Ind. App. 71 ( 1941- 1942) Navroji Ardeshir Cooper V. Official Assignee of Bombay 4 acting as a reasonable man would act if he were owner of, and not merely a trustee of, the estate. Their Lordships accordingly will humbly advise His Majesty that the present appeal should be dismissed. The appellants will pay the costs of the respondent.