JUDGMENT 1. This is a suit by Shew Prasad Agarwalla and Kunj Behari Agarwalla, sons of late Hariram Agarwalla, for, amongst others, declarations that their tenancy in room No. 50 in the ground floor of 201b, Mahatma Gandhi Road, (formerly Harrison Road) subsists, that the creation of a tenancy therein for the second defendant, Gopiram Agarwalla, by the first defendant, the receiver in a certain suit of this Court, is a nullity and that the partnership between their father, Hariram, and the" aforesaid defendant, Gopiram, entered into on or about September 16, 1947, was dissolved on July 16, 1957, by service of a notice of that date, failing which a decree by this Court for dissolution. These declarations apart, two other reliefs they pray the Court for may be noticed: (i) Khas possession of room No. 50 and (ii) accounting against the second defendant, Gopiram. 2. Originally long before the receiver had come to be appointed hariram and his "working partner", one Kartick Chandra Sil, were the tenants of the shop room in controversy on a monthly rent of Rs. 55 according to the Hindi Calendar month. Kartick was not heard of since the Great Calcutta Killings of August, 1946. Presumably he left behind him surviving no heir. Hariram, however, continued the tenancy on regular payment of rent, becoming thereby, it is said, the sole tenant. The rents were paid so up to Chaitra, 2013 S. Y. The rent for Baisakh, 2013 S. Y., tendered to the then receiver, it was refused. That only led Hariram to remit by money-order on July 10, 1956 the rents for Baisakh and Jesth, 2013 S. Y. The remittance met the same faterefusal again. Thereupon the rents refused and the rents falling due subsequently were deposited with the Rent Controller. What goes in the preceding paragraph is merely a paraphrase of the averments in the first two paragraphs of the plaint and calls for a digression. If rent was paid up to Chaitra, 2013 S. Y., how is it that the rent for Baishbh, 2013 S. Y., was tendered over again? Was the rent for Baisakh, 2014 S. Y., then tendered 2013 S. Y., in the second paragraph of the plaint having been a slip for 2014 S.Y. ? No; to read the averment so will be to misread it and to betray a misconception, submits Mr. Was the rent for Baisakh, 2014 S. Y., then tendered 2013 S. Y., in the second paragraph of the plaint having been a slip for 2014 S.Y. ? No; to read the averment so will be to misread it and to betray a misconception, submits Mr. Dutt, the learned counsel for the plaintiffs, who amplifies the averment: rant was paid up to Chaitra of 2013 S. Y. to mean that it was paid up to Chaitra of 2012-13 S. Y. 3. To continue the narration of the case set out in the plaint, Hariram died meanwhile on February 17, 1957. His sons, the two plaintiffs before me, repeated what their father had done: tender of the rent to the receiver, on his refusal, remittance by money-order and that refused, deposit with the rent controller. Why the receiver was behaving so was not disclosed. 4. This is one part of the plaintiffs' case. Another is Gopiram started breaking the terms and conditions of the partnership he and Hariram had commenced on September 16, 1947 or there about a partnership by virtue of which both were carrying on business in cloth in the disputed shop room. Gopiram stopped paying Hariram his remuneration of the firm sum of Rs. 100 a month fixed by the deed of partnership. Worse still, he prevailed upon the receiver to get the rent bills for the shop aforesaid "in the name of his new concern". This sort of infraction brought about the partnership's dissolution by a notice dated July 16, 1957, by the plaintiffs. More, by the same notice Gopiram was asked to quit the shop room which, in collusion with the receiver, and with his connivance too, Gopiram has been continuing in possession of. He also failed to give accounts the demand for which yielded little result. This then is a brief outline of facts which led the plaintiffs to institute the suit, first in the City Civil Court (suit N. o 495 of 1958 on October 7, 1958) and then in this Court on August 3, 1960 the City Court having returned the plaint the same day, to wit, on August 3, 1960, on the ground of its pecuniary jurisdiction having been exceeded: vide order No. 27 dated August 2, 1960. The order of the City Court's Registrar on the back of the plaint returned and annexed to the plaint presented to this Court shows as much. 5. Both the defendants, the receiver and Gopiram, resist the suit on more pleas than one: (i) multifarious ness, (ii) non-maintainability, (iii) denial of Hariram having become the sole tenant, (iv) the real relation between Hariram and Gopiram having been that of lessor and lessee instead of partners and (v) Gopiram having been a direct tenant under the headlessor, the receiver, in accordance with law. 6. The parties go to trial on seven issues including an additional issue: 1. Is the suit bad for multifarious ness? 2. Is the suit maintainable in its present form? 3. Did Hariram Agarwalla become the sole tenant as respects the shop room in controversy ? 4. What was the real relation between the said Hariram Agarwalla and Gopiram Agarwalla, the second defendant that of partners or that of lessor and lessee? 5. Did the second defendant become a direct tenant, if at all, under the headlessor in collusion with the receiver, the first defendant, as alleged? 6. What reliefs, if any, are the plaintiffs entitled to? Additional issue 7. Is the instant suit barred by limitation under article 106 of the first schedule to the Limitation Act 9 of 1908? The determination of the fourth issue, which I take up first, turns on a true construction of what has been called the agreement of partnership, exhibit A: also incorporated at pages 13 of the brief of documents most of which are admitted for the purpose of doing away with formal proof The introductory parts of the agreement include the date of the deed: September 15, 1947a date which is reiterated in its testimoniumthough the signature of one witness to the instrument, Padmakar Chaturvedy, is dated September 16, 1947, the names of the parties: Hariram "of the one part" and Gopiram "of the other part", and two recitals. One is that the first party hariram is a tenant of the shop room in controversy "paying Rs. 55 a month to his landlords Sadasukh Gambhirchand Bulakidas owners of premises No. 201 Harrison Road, Calcutta, which he took on rent for the purpose of carrying on business". One is that the first party hariram is a tenant of the shop room in controversy "paying Rs. 55 a month to his landlords Sadasukh Gambhirchand Bulakidas owners of premises No. 201 Harrison Road, Calcutta, which he took on rent for the purpose of carrying on business". The other is that the second party Gopiram has agreed to carry on business with the first party Hariram in piece goods as partners, Gopiram being "the actual partner" and Hariram "a sleeping partner". Gopiram is to carry on the business under the style of Bijoy Kumar Agarwalla, the name of his only son then. This sort of introduction over, are listed the clauses, nine in all, on the basis of which both parties have agreed between themselves to carry on business in the disputed shop room. Gopiram shall pay Hariram Rs. 100 "monthly on account of his fixed remuneration from the business" by the seventh day of the next month failing which Hariram has the option to terminate the agreement, to sever conations with Gopiram and to take any other partner with a view to carrying any other business in the shop room (clauses 1 and 9. All profits will accrue to Gopiram none to Hariram who is not "entitled to any profit". Losses will be paid by Gopiram not by Hariram who "will not be liable for any loss" (clauses 3 and 5. "the management of the business and the capital money to be invested in the business will solely belong to" Gopiram in whose name "all dealings in the market will be" (clauses 4 and 6. For the rent of the shop room (which comes to Rs. 55 a month) Hariram will be, and Gopiram will not be, liable the rent bill continuing to run in the name of Hariram, the one "solely responsible for the rent" (clauses 2 and 7). The remaining clause is the eighth one which provides for a deposit of Rs. 200 by Gopiram as security for "performance of the contract" and also for meeting any liability with which Hariram may be foist for the debts of the business or for his association with Gopiram. 7. This then is the agreement of partnership. I read it as a whole as I must. 200 by Gopiram as security for "performance of the contract" and also for meeting any liability with which Hariram may be foist for the debts of the business or for his association with Gopiram. 7. This then is the agreement of partnership. I read it as a whole as I must. And I ask myself: do I see in it what section 4 of the Partnership Act, 9 of 1932, bears: "partnership" is the relation between parsons who have agreed to share the profits of a business carried on by all or any of them acting for all ? an agreement is there between Hariram and Gopiram. More, the business is to be carried on by Gopiram alone with Hariram as the "sleeping partner". In other words, Gopiram acts for Hariram. So the two elements of partnership are discernible, if (and this is a big 'if' to which I shall come later) the agreement of partnership is taken at its face value. But what about the other element that of sharing the profits in absence of which there can be no partnership? Let the clauses in the agreement of partnership answer it: 1. That the first party (Hariram) will only get Rs. 100 from the second party (Gopiram) monthly on account of his fixed remuneration from the business. 3. That all profits and loss of the business will accrue to and be paid by the second party. 5. That the first party will not be liable for any loss nor will be entitled to any profit. 8. The italics are mine. In plain language, it has been provided that Hariuam is not entitled to any profit, all profits accruing to Gopiram. Mr. Dutt submits, and rightly too, that clauses 3 and 5 cannot be abstracted from the rest of the instrument. He therefore reads together the three clauses reproduced above, emphasizes the words from the business' in clause 1, and contends that the meaning is clear enough: Hariram will not get any profit save Rs. 100 as his fixed remuneration from the business. If that is so, Mr. Dutt concludes, here is the sharing of the profits between Hariram and Gopiram. No doubt, "partners can agree to share profits in any way they like. They may agree to share them equally. 100 as his fixed remuneration from the business. If that is so, Mr. Dutt concludes, here is the sharing of the profits between Hariram and Gopiram. No doubt, "partners can agree to share profits in any way they like. They may agree to share them equally. They may also agree that one partner is to receive a fixed annual or monthly sum in lieu of a sum varying in accordance with the profits actually earned", to quote, excising the words not needed, from the judgment of Marten, C. J. in Raghunandan Nanu Kothare v. Hormasji Bezonji Bamji, (1) A.I.R. 1927 Bombay 187 at page 189, a case Mr. Dutt cites. But there two experienced solicitors of the Bombay High Court entered into a formal agreement to become partners, one agreeing to be paid Rs. 500 a month "in lieu of his share of profits" words which I miss so much in the agreement of partnership before me, words which I cannot equate with the words I find here: from the business, assuming them to be no camouflage. (More of which hereafter. Still less can I equate Hariram and Gopiram with two seasoned solicitors. That apart, the sharing of the profits presupposes existence of the profits. No profits, no sharing thereof. So the three clauses 1, 3 and 5mr. Dutt reads together (and I too) really come to this: profits or no profits, Hariram must get the fixed remuneration of Rs. 100 a month from the second party (Gopiram) who is thus personally liable to pay it. The words 'from the business' therefore neither do away with the personal liability of Gopiram nor make it a payment from the profits. Gopiram must pay Hariram this, month by month, whether or no the business earns profits. To say so is far from saying that Hariram and Gopiram share the profits. The correct diction to use, in the wake of the agreement of partnership: clauses 1, 3 and 5, will be that Gopiram alone gets all profits burdened with the personal liability to pay Hariram Rs. 100 a month even when no profits accrue and that Hariram is not entitled to and does not get "any profit". The two other cases Mr. Dutt refers me to on this point appear to be distinguishable in a like manner, the profits being specifically mentioned in each and thus carrying the mark of a partnership. 100 a month even when no profits accrue and that Hariram is not entitled to and does not get "any profit". The two other cases Mr. Dutt refers me to on this point appear to be distinguishable in a like manner, the profits being specifically mentioned in each and thus carrying the mark of a partnership. Raghumull Khandelwal v. The Official Assignee of Calcutta and others, (2) 28 C.W.N. 34, turns on the construction of a memorandum of copartner ship agreement which by its fifth and sixth clauses provide for two things: one, Dorian Evans will get Rs. 500 a month as his remuneration over and above 10 per cent, as commission on the net profit of the business and he will get no shares of profit of the firm, and two, Raghumull will get 12 annas, H. C. Ghosh 2 1/2 annas and D. N. Sircar 11/2 annas shares (thus exhausting 16 annas) in the profits of the business. The appeal court consisting of Sir Lancelot Sanderson, Chief-Justice, Sir Ashutosh Mookerjee and Sir Nalini Ranjan Chatterjee hold Dorian Evans to be a partner, and not a servant, putting an emphasis on, among other things, the commission of 10 per cent, issuing from the profits. The Chief Justice observes at page 43: "in my judgment, it is clear that the 10 per cent, was to be paid to Dorian Evans out of the net profits of the business when they were ascertained, and although the words "as commission" are used in the agreement, the 10 per cent, which was to be received by Mr. Dorian Evans was a share of profits within the meaning of sec. 239 of the Contract Act. " 9. Sir Asutosh Mookerjee observes at page 45: "it is urged that as the 10 per cent. of the profits was to be paid as commission, this was not a share in the profits within the meaning of sec. 239. do not think that the contention is well-founded. The expression "share of the profits" is simple and a narrow construction ought not to be put on it. " 10. Sir Nalini Ranjan Chatterjee observes at the same page: "the expression "a share of the profits" is not defined in the section, and I think there is no sufficient reason for holding that payment of 10 per cent, on the net profits is not a share of the profits. " 10. Sir Nalini Ranjan Chatterjee observes at the same page: "the expression "a share of the profits" is not defined in the section, and I think there is no sufficient reason for holding that payment of 10 per cent, on the net profits is not a share of the profits. " Then, in the context of the whole of the document, the recital in the fifth clause that Dorian Evans shall get no shares of profit is interpreted to mean that he is to get no share other than the share already provided for, namely, a remuneration of Rs. 500 a month and a commission of 10 per cent, on the net profits. And much the most important part of this context is furnished by clause 23 which provides that should H. C. Ghosh and Dorian Evans, two whole time working partners, break the provisions of the memorandum, do an act of bankruptcy, become physically unfit, commit a criminal offence etc., the capitalist partner Raghumull might by notice in writing determine the partnership. A clause as that leads Sir Asutosh Mookerjee to observe: "to my mind it is inconceivable that if Evans had been a mere Manager, the partners should have ever contemplated that this result would follow merely because he became physically unfit to attend to the business or committed an act of bankruptcy". 11. Thus, this case is of little help to Mr. Dutt. Other indicia of partnership apart, Dorian Evans does not get merely a fixed remuneration of Rs. 500 a month. He gets over and above that 10 per cent, as commission on the net profits and therefore shares the profits a fact which cannot be said of Hariram. In his Rs. 100 a month Mr. Dutt sees restriction of profits. I see however nothing like any profit anywhere. I have stated why. 12. Equally unhelpful is Kundanmal, and another v. Madan Gopal, (3) A. I. R; 1956 Hyderabad 27, the other case Mr. Dutt cites. There the clear stipulation was that the suing partner was entitled to Rs. 50 a month by way of profits from the partners sued against. So the sharing of the profits was patent. Here what is patent is that all profits go to Gopiram and none to Hariram who mulcts Gopiram in a liability of Rs. 100 a month irrespective of profits. That negates the sharing of the profits. 50 a month by way of profits from the partners sued against. So the sharing of the profits was patent. Here what is patent is that all profits go to Gopiram and none to Hariram who mulcts Gopiram in a liability of Rs. 100 a month irrespective of profits. That negates the sharing of the profits. On materials I have traversed so far, it can be found that the element of the sharing of the profits is lacking here. So the partnership the plaintiffs contend for is lacking too. But there are various other materials to go by; no less other clauses of the agreement of partnership. What happens if Gopiram fails to pay Hariram Rs. 100 a month? And he has to pay this "on or before the 7th of the next month", as is stated in the 9th clause which answers too the question I have asked: ". . . . . . . . . . . . . . . on failure of compliance this agreement will fall through at the option of the first party and the first party will be entitled to sever his connection with the second party and take any other partner and carry on any other business in the said room. " What is it I read in this clause a bona fide stipulation in an agreement of partnership? Gopiram fails to pay Hariram on or before the seventh day of the next month. Hariram may then put an end to the agreement, sever his connation with Gopiram, take any other partner and carry on another business in that very room. That is to say, a breach by Gopiram of the express condition that he must pay Hariram Rs. 100 a month on or before the seventh day of the next month is followed by a provision which enables Hariram to evict Gopiram from the room and to do any other business there on his own. 13. The remaining clauses now call attention. For the rent of Rs. 55 a month for the shop room to the owner, Hariram in whose name the rent bills will run is answerable not Gopiram (clauses 2 and 7. Hariram thus makes a monthly profit of Rs. 45 a month: Rs. 100 he receives minus Rs. 55 he pays, as Mr. Tibrewall, the learned counsel for Gopiram, rightly contends. 55 a month for the shop room to the owner, Hariram in whose name the rent bills will run is answerable not Gopiram (clauses 2 and 7. Hariram thus makes a monthly profit of Rs. 45 a month: Rs. 100 he receives minus Rs. 55 he pays, as Mr. Tibrewall, the learned counsel for Gopiram, rightly contends. And it is really Gopiram's business, though the veneer of partnership has been thrown on the introductory recitals and here and there. The management of the business is exclusively his. The capital money invested solely belongs to him (clause 4. The market knows him and him alone. Because all dealings are in his name (clause 6. And he deposits Rs. 200 with Hariram as security for the performance of the contract and for making good any loss Hariram may run into on account of debts of the business and like (clause 8. The concluding portion of this clause looks like a disguise and an idle averment too when Hariram has taken so much pains in the preceding clauses to keep himself away from any liability and loss and from the market too. Disguise removed, it appears to be really a deposit in advance of two months' rent: Rs. 200. Thus, the document read as a whole and looked into a little below the surface reveals inter alia, a fixed payment of Rs. 100 a month which is but another name for rent, keeping a margin of Rs. 45 a month for Hariram, no sharing of profits, an advance deposit of Rs. 200 as two months' rent, and a forfeiture clause in clause 9, all so consistent with a lease which masquerades here as an agreement of partnership. 14. Why this sort of a subterfuge? The date of the agreement of partnership is a day in the middle of September, 1947: 15th or 16th. It does not matter which. The Calcutta Rent Ordinance, 5 of 1946, was then the law, having come into force on October 1, 1946. Without the consent in writing of the landlord and in absence of a contract to the contrary, the subletting of the shop room in September, 1947 had its peril in eviction [section 12 (b) ibid]. For all I see, Hariram had not the consent in writing of the landlord and there was no contract to the contrary either. Without the consent in writing of the landlord and in absence of a contract to the contrary, the subletting of the shop room in September, 1947 had its peril in eviction [section 12 (b) ibid]. For all I see, Hariram had not the consent in writing of the landlord and there was no contract to the contrary either. So a naked subletting Hariram could not go in for. Instead he had to resort to a sham agreement of partnership (qq. 215-217 to Gopiram). This then appears to be the reason for the document I see before me. Mr. Dutt catalogues in vain a number of facts to establish partnership. I deal with them seriatim: (i) True it is that Hariram and Kartick did business in this very shop room as partners. But that does not mean that on Kartick's disappearance Hariram and Gopiram must have done business too as partners. (ii) Nor does an inference of partnership follow from the shop room remaining vacant for some seven or eight months after Kartick was heard of or seen no more. (iii) Bejoy Kumar Agarwalla in whose name Gopiram was carrying on business in the shop room was assessed as a dealer in cloth to a trade tax on august 16, 1948 by the Corporation of Calcutta, as is evidenced by an extract from the relevant register, exhibit E. This may not fit with the evidence of Gopiram that he started his business in the shop room in 1950 (qq. 3, 34, 35, 57 and 135. But he was acting as a broker in cloth and fending for himself all these years. Not that he was doing nothing and only counting Rs. 100 a month for Hariram (qq. 238, 243 and 244). Then, the issue of a trade license or the levy of a trade tax for a shop room in the hub of commerce which Mahatma Gandhi Road is does not necessarily connote the running of the business from the very date of the license being issued or the tax being assessed. As Gopiram rightly explains in answer to question no. 251, sitting in a shop over there you have to have a license, business or no business. The Corporation of Calcutta will catch you. And the business of a broker in cloth was there, though the business as a dealer in cloth was not because of government control (qq. As Gopiram rightly explains in answer to question no. 251, sitting in a shop over there you have to have a license, business or no business. The Corporation of Calcutta will catch you. And the business of a broker in cloth was there, though the business as a dealer in cloth was not because of government control (qq. 242 and 243. However all that may be, no partnership is revealed thereby. (iv) Non-production of accounting books for 1947-50, when the cloth business did not get going, is only to be expected (q. 58 to Gopiram. Not so, however, the books for 1950-1952 non-production of which is attributed to having been lost (qq. 59-62, 271-276. Gopiram's evidence satisfies me about the loss he speaks about. Then, it is worth remembering that "loss can never be proved absolutely", as Lord Thankerton observes in Basant Singh and others v. Brij Raj Saran Singh and others (4) 62 LA. 180: 39 C.W.N. 1057: A.I.R. 1935 P. C. 132 Indeed, could that be done, there would have been seldom a loss. When I lose a thing, I mean it is mislaid. And I do not know where it is or has gone. If I can say exactly when, where and in what circumstances I lost a thing, in all likelihood, I would not have lost it. I therefore see nothing unworthy of credence in Gopiram's evidence. Assuming what he says is apt to produce disbelief, I shall not draw a presumption adverse to Gopiram. I shall not, because section 114 of the Evidence Act prescribes that the court may presume a fact. Not that the court must. Again, the suggestion to Gopiram is that he with the help of his father had "cooked" the subsequent accounting books, exhibits 0/4 to 0/10 and the like (q. 306. If the suggestion has any merit in it I am clear, it has not nothing was easier for Gopiram than to press his father into service for the earlier accounting books as well. So that way too it is difficult to find partnership. (v) The attempt to spell out partnership from Hariram's tenancy of the shop room being regarded as his contribution to the business looks singularly unattractive. So that way too it is difficult to find partnership. (v) The attempt to spell out partnership from Hariram's tenancy of the shop room being regarded as his contribution to the business looks singularly unattractive. In this attempt one sees the application of the old definition of partnership in section 239 of the Contract Act, 9 of 1872: "partnership is the relation which subsists between persons who have agreed to combine their property, labour, or skill in some business, and to share the profits thereof between them. " But the proper section to be applied is section 4 of the Partnership Act, 9 of 1932, which does not require contribution to a business as an ingredient of partnership. That may come under section 6 ibid which must be read with section 4. But all relevant facts taken together go to show a sub-lease of the shop room by Hariram to Gopiram and not partnership between the two. To add to this, Mr. Tribrewall has a point when he contends that the definition of lease being what it is (section 105 o| the Transfer of Property Act, 4 of 1882), contribution by Hariram of his tenancy of the shop room means transfer by him of his right to enjoy the room in consideration of money to be rendered periodically to him (Rs. 100 a month) by Gopiram who accepts the transfer on such terms and is therefore a lessee. 15. Mr. Dutt then contends that the agreement of partnership on the face of it shows business in piece-goods and partnership therein. He therefore asks me to reject under sections 91 and 92 of the Evidence Act, 1 of 1872, the oral evidence to the contrary. But I cannot do so for more reasons than one. In the first place, the rule of exclusion of oral by documentary evidence which these two sections embody rules a case where there has been, in fact, a contract between the parties. It does not rule a case where (as here) there has been no agreement or contract founding a partnership. What professes to be an agreement of partnership is found in reality to be a lease. It does not rule a case where (as here) there has been no agreement or contract founding a partnership. What professes to be an agreement of partnership is found in reality to be a lease. In the second place, the document under consideration now is a fraud on the Calcutta Rent Ordinance, 5 of 1946, and the fact that it is so bringing the transaction it records on the edge of the law may be proved by extrinsic evidence [proviso (1) to section 92 ibid]. In the third place, in determining whether or not Hariram and Gopiram had been partners, regard shall be had to the real relation between them, as shown by all relevant facts taken together (section 6 of the Partnership Act, 9 of 1932. So it is incumbent upon me to weigh all relevant factsan expression which includes all surrounding circumstances too. Not to do so is to regard recitals in a deed about partners and partnership as sacrosanct and conclusive, thereby shirking the determination in terms of section 6 ibid of the real relation between the parties. I therefore reject Mr. Dutt's contention resting on sections 91 and S2 of the Evidence Act. 16. Equally barren is Mr. Dutt's contention that even though partnership may fail, a lease does not rear its head here. It does. The construction I have endeavored to make of the agreement of partnership points to a lease. No doubt, rent receipts in a lease are ordinarily to be expected. But here it has not been an open lease. It has been instead an agreement of partnership hiding a lease. So rent receipts must be in hiding too. By granting rent receipts Hariram cannot undo what he had done by the so-called agreement of partnership. To attribute such an act to him is to insult his intelligence. Gopiram's evidence that Hariram signed on the back of another original agreement of partnership which Gopiram had with him and lest during the carriage of the litigation in the City Court is deserving of criticism Mr. Dutt makes. If there are two originals, it is but common sense that one will be signed by Hariram and another by Gopiram just as Dindayal, the first witness of the plaintiffs, says (q. 39), Gopiram saying the opposite (qq. 180, 181 and 186. Dutt makes. If there are two originals, it is but common sense that one will be signed by Hariram and another by Gopiram just as Dindayal, the first witness of the plaintiffs, says (q. 39), Gopiram saying the opposite (qq. 180, 181 and 186. Gopiram's testimony on the loss of the other original must draw largely on my behalf in absence of further and better evidence. But nothing can turn on all this. Even if Hariram's signed acknowledgments of payments of Rs. 100 a month had been forthcoming, it is there to be seen that the said acknowledgments would not have proclaimed receipt of the amounts as rent. So the case in hand is such that absence of rent receipts simpliciter does not alter its fortune one way or the other. More, the case is such that absence of rent receipts is only a normal thing to be expected here. Certainly it is not the plaintiffs' case that Hariram received no payments since September, 1947. Again, Gopiram's accounting books such as have been produced from 1952enter payments to Hariram as rent. These entries are Gopiram's own uninhibited by the agreement of partnership or Hariram and may therefore taken as having recorded true facts. I believe these accounting books and the oral evidence of Gopiram touching them, even though Gopiram's father has not been examined which Mr. Dutt makes a point of. Had he been examined, he would have been Gopiram's father all the same. I hold too that non-production of the earlier accounting books has been explained to my satisfaction. The payment by "gopiram of charges for consumption of electricity to Hariram, the metre standing in his name, has nothing abnormal in it. And a charge as that must necessarily vary from month to month, nothing to say of the fact that one in the position of Gopiram has of necessity to be at the mercy of Hariram having the meter in his name. So all this is one more indication of the agreement of partnership being in reality a lease. Non-Disclosure of Gopiram's banking account with the Punjab National Bank disclosure has been made of his account with Hindusthan Mercantile Bank showing receipt by Hariram of Gopiram's cheque, ext. 0 12, for Rs. 314has been commented upon. But there have been no transactions there (q. 264 to Gopiram. Non-Disclosure of Gopiram's banking account with the Punjab National Bank disclosure has been made of his account with Hindusthan Mercantile Bank showing receipt by Hariram of Gopiram's cheque, ext. 0 12, for Rs. 314has been commented upon. But there have been no transactions there (q. 264 to Gopiram. So he is within his rights not to make the disclosure Mr. Dutt complains of. See Bilas Kanwar v. Desraj Runjit Sing (5) 42 LA. 202 at 206. 17. The evidence of Din Dayal and Kunj Behari (himself one of the two plaintiffs) does not count. Because none have any personal knowledge about the partnership which is now sought to be bolstered up (qq. 228 and 229 among others to Din Dayal and qq. 94 and 95 to Kunj Behrai. Din Dayal has impressed me as a poor type given to reckless glibness, so much so that in payment of extra amounts on account of charges for consumption of electricity by Gopiram to Hariram in whose name has been the meter, he sees profit or additional profit (qq. 257-261), overlooking the recital in the agreement of partner ship that all Hariram is entitled to is a fixed sum of Rs. 100 a month by way of so-called profit. The evidence of Gopiram, on the other hand, rings true. His was no choice either to take the shop on Hariram's terms (the so-called partnership) or not at all (qq. 227, 228 and 233). 18. Mr. Hazra, the learned counsel for the receiver defendant, seeks to strike down the agreement of partnership as not a document of partnership on the ground that Hariram shares no loss. But sharing losses is not one of the ingredients of partnership section 4 of the Partnership Act prescribes. Sharing profits is. M. P. Davis v. Commissioner of Agricultural Income Tax, (6) A.I.R. 1959 S. C. 719, Mr. Hazra cites in support of his contention does not lay down anything to the contrary. There M. P. Davis was the registered owner of the Kaimabetta coffee estate prior to the assessment year 1952-1953 when he claimed a change of status grounded on partnership between him and his brother resting on a partnership deed. Hazra cites in support of his contention does not lay down anything to the contrary. There M. P. Davis was the registered owner of the Kaimabetta coffee estate prior to the assessment year 1952-1953 when he claimed a change of status grounded on partnership between him and his brother resting on a partnership deed. But it was only a dodge to evade tax as the owner, a conclusion come to on the basis of all relevant facts taken together, such as: one, he claimed loss of the previous year and full expenses of the accounting year against what he had actually received during the accounting year 1951-52; two, the accounting books did not show a change in the management of the estate in spite of the agreement; three, the brother, the purported partner, could not charge, encumber or in any manner deal with the capital of the firm, the Kaimabetta estate, the property of M. P. Davis, who would get it back on dissolution ; four, the brother could not contribute anything to the capital five, clear indications there were to show M. P. Davis to be the master and his brother to be the servant, and six, the brother was to get his remuneration out of the profits and no remuneration if there was loss. In this context, it was held that sharing profits would not of itself make a partnership and that what was missed was a provision as to how losses were to be dealt with. Not that it was held: no sharing of losses, no partnership. I cannot therefore hold what Mr. Hazra asks me to. To sum up, here is a tenant Hariram who with a view to jumping the Rent Ordinance's provision tabooing by implication subletting goes in for a so called partnership with the sub-tenant Gopiram whom he inducts into his leasehold, the shop room. He secures for him a monthly payment of a fixed sum of Rs. 100 by Gopiram from the business and, on default, Gopiram's eviction and his own re-entry. All he is concerned with is this. He has taken the additional precaution of keeping two months' dues (Rs. 200) in advance as security. The business is not his. The management is not his either. He earns neither profit nor loss. Such a one can be called a partner only by stretching of terms that will convert black into white. All he is concerned with is this. He has taken the additional precaution of keeping two months' dues (Rs. 200) in advance as security. The business is not his. The management is not his either. He earns neither profit nor loss. Such a one can be called a partner only by stretching of terms that will convert black into white. The generous assumptions I have made in favour of the plaintiffs earlier in this judgment that on the face of it the deed of partnership evinces agreement and mutuality cannot hold any longer. In view of all that goes before, the recitals to that end in the agreement cannot be taken at their face value. They are simulate. I therefore find lack of partnership not only because of lack of sharing of profits but also because of lack of a genuine agreement and real mutuality. Accordingly, I find the fourth issue in favour of the defendants. 19. I now proceed to consider the fifth issue the burden of which is whether or no Gopiram became on or about July 4, 1956, a direct tenant under the recover defendant as the result of collusion between the two. The relevant document creating the tenancy is exhibit 0/16. 20. The plaint stands on partnership and breach of the terms thereof. That claim is found on evidence and at law to be had is another matter. One of the terms Gopiram is alleged to have broken is that he prevailed upon the receiver to get the rent bills of the shop in controversy in his name [paragraph 6 (b) of the plaint]. The first relief the plaintiffs therefore pray the court for is a declaration that the creation of the tenancy in the said shop room in Gopiram's favour is a nullity. The averment in the ninth paragraph of the plaint refers inter alia to collusion between the two defendants. The first defendant, the receiver, traverses such allegations in paragraphs 8 and 11 of his written statement. The averment in the ninth paragraph of the plaint refers inter alia to collusion between the two defendants. The first defendant, the receiver, traverses such allegations in paragraphs 8 and 11 of his written statement. The pith of these paragraphs is a denial of the allegations coupled with an assertion that Gopiram became a direct tenant the details whereof are set out it paragraph 2 preceding: under section 16 (2) of the West Bengal Premises Tenancy Act, 12 of 1956 (shortened hereafter into the Act) Gopiram was elevated to be a direct tenant on receipt of appropriate notices from both parties Hariram and Kartick, the tenants of the first degree, and Gopiram, the tenant of the second degree. Gopiram, the second defendant, traverses the allegations in the plaint in a like manner in paragraphs 6 and 9 of his written statement. In this state of the pleading the material proposition a mixed one of fact and law of Gopiram becoming a direct tenant under the receiver, and if so, in collusion of the one with the other is affirmed by the plaintiffs and denied by the defendants. An issue therefore arises. And this is why the fifth issue I am now discussing has been struck after an elaborate opening and an adequate address by the learned counsel appearing for all the parties, none objecting to the issue having been cast in the manner it has been. Therefore, Mr. Tibrewall's contention that this issue does not arise from the pleadings appears not to be arguable even. It does arise. I hold so. The Act came into force on March 31, 1956. On or about June 18, 1958 Gopiram did notify the landlord of his sub-tenancy and, on termination thereof, his right to be recognized as a direct tenant. Exhibit 0/15 is the relevant notice on behalf of Messrs. Bijay Kumar Ajay Kumar who are Gopiram's sons and after whose names he runs the business. The date of creation or termination of the sub-tenancy is not tin the notice, as it should have been, in terms of rule 4 of the West Bengal Premises Tenancy Rules, 1956. But that need not be made much of and has not been made and point of even. Because the rule is directory. And substantial compliance suffices (Sm. Krishna Debi v. Shalimar Paint, Colour and Varnish Co. (P) Ltd. and others, (7) 67 C.W.N. 272, Messrs. But that need not be made much of and has not been made and point of even. Because the rule is directory. And substantial compliance suffices (Sm. Krishna Debi v. Shalimar Paint, Colour and Varnish Co. (P) Ltd. and others, (7) 67 C.W.N. 272, Messrs. Bengal Wire Nails Co. (P) Ltd. v. Jagmohandas Mundra and others, (8) 67 C.W.N. 275, and Dilip Narayan Roy Chowdhury v. Amarendra Kumar Dutta, (9) 64 C.W.N. 284 etc.. So Gopiram's notice stands. Does the notice dated June 22, 1956 on behalf of Hariram and Kartick stand too? That is much the most important point for decision. Exhibit 1 is the notice over the signature of Shri Sisir Kumar Basu, a solicitor, whom the receiver defendant examines as his witness. "under instructions from and on behalf of my clients Messrs. Hariram Agarwalla and Kartick Chndra Seal of 201b, Harrison Road, Calcutta" he notifies the receiver of the sub-tenancy of Gopiram and notifies too that his clients have no objection "if you accept the said subtenant as a direct tenant under you in respect of the aforesaid shop room". But it is clear from Shri Basu's evidence, which makes a sorry reading, that he had received no instructions direct either from Hariram or from Kartick. He had received instructions from an agent instead (qq. 7 and 8). What the name of the agent is he does not recollect (q. 36). The relevant day book he has not with him (q. 35). A client is supposed to have introduced the agent to him. But Shri Basu does not remember his name either (q. 33). Shri Basu appreciates now (as he says) the importance of the letter he had addressed to the receiver and the far-reaching effects it would produce. Still he did not think it necessary to be satisfied about the authority of an agent as that (qq. 39-43). I find it difficult to speak with becoming restraint about a solicitor's work showing this sort of scamping and worse. More, I disbelieve his story about an agent, though it pains me to do so. Even if I believe him, his evidence does not prove that either Hariram or Kartick had ever authorized him through an agent to address the letter he did to the receiver. More, I disbelieve his story about an agent, though it pains me to do so. Even if I believe him, his evidence does not prove that either Hariram or Kartick had ever authorized him through an agent to address the letter he did to the receiver. It is all very well for Gopiram to say that Hariram, far from raising any objection to his becoming a direct tenant, had asked him to see the landlord and to write to him mentioning the names of hariram and Kartick (qq. 149 and 150) or that Hariram promised to send a letter to the receiver and had confessed having sent it, asking Gopiram at the same time to see the receiver with a view to getting the tenancy transferred in his favour (qq. 369-371). Nothing, I imagine, is easier than to attribute this statement or that to a dead man who will not come back to life to give a denial of his version. It is against human nature to part with a valuable tenancy right at Mahatma Gandhi Road in this manner unless one is compelled to do so by the coercive process of law. No doubt, section 16 of the Act is there with a view to eliminating middlemen and their profits. But you cannot do away with a middleman by committing fraud on section 16 through a sham notice I see here. Mr. Tibrewall seeks to get round this ugly manifestation in two ways. First: lack of Shri Basu's authority to write the letter he did to the receiver has neither been pleaded nor proved going by the rule of onus. Second Hariram ratified what Shri Basu had done. 21. How the issue under discussion now arises has been noticed. The plaintiffs do not examine Shri Basu. The receiver defendant does only to show how he had accepted Gopiram as his direct tenant so as to rid himself of the allegation of collusion and the like. And the evidence of such a one becomes a revelation. A shady deal there has been for all to see. But who amongst the parties makes the deal cannot be found with certainty upon evidence. Suspicion there may be. But suspicion is not proof. That apart, the plaintiffs' suit rests on partnership and breach of the terms thereof. And the evidence of such a one becomes a revelation. A shady deal there has been for all to see. But who amongst the parties makes the deal cannot be found with certainty upon evidence. Suspicion there may be. But suspicion is not proof. That apart, the plaintiffs' suit rests on partnership and breach of the terms thereof. By breaking one of the terms Gopiram gets the rent bills in his name which means that he becomes a direct tenant. What more has to be pleaded? Surely not evidence. And the evidence here conies from the opposite camp, making the truth out: a faked notice on behalf of Hariram. Lack of authority of Shri Basu is so patent upon his evidence that the question of onusbe it of proving a negative in the first instance becomes of an academic interest. To put it another way the receiver defendant has discharged the plaintiffs' onus, unwittingly though, by examining Shri Basu whose evidence appears to be illuminating on this point. Again, it is just like the defendants answering the plaintiffs' allegation (your direct tenancy is a nullity) with the plea no, it is not the direct tenancy is quite in conformity with law. Hence the onus is not so one-sided either as is imagined to be. Judged so, little assistance is derived from what Mr. Tibrewall cites Moshuq All and others v. Hurunissa and another (10) A.I.R. 1929 Oudh 204, (where the custom pleaded by the plaintiffs that the widow gets only life interest in the husband's estate and the custom pleaded by the defendants that the widow succeeds as a full owner were considered as a whole, and not piecemeal), M. Krishnaswami, Naidu v. Secretary of State, (11) A.I.R., 1943 Madras 15, (which casts upon the suing government the initial onus to prove a negative fact, namely, total failure of heirs of the last owner whose property government claims by escheat) and Kalyanpur Lime Works Ltd. v. State of Bihar and another (12) A.I.R. 1954 S. C. 165 (where the defendant only denying the contract in his written, statement is not allowed to assail its legality, Order 6, rule 8 of the Procedure Code clinching the matter. Then it is said that lack of authority is, as a material fact, to be pleaded in the plaint on the basis of the meaning of cause of action as explained in Haramoni Dassi and others v. Hari Chum Chowdhury (13) I. L. R. 22 Calcutta 833, and Sher Ali Mridha v. Torap Ali and others (14) A.I.R. 1942 Calcutta 401. Such an approach rests on an inadequate appreciation of the pleadings. The plaint on this point comes to this Gopiram, a partner, bound to make room for Hariram on a certain contingency does not do so but installs him as a direct tenant. Nothing more has to be pleaded. This defence on this point is: Gopiram is a direct tenant in accordance with law. Hence authority or lack of authority of Shri Basu to make the direct tenancy legal or illegal comes as a matter of course. Thus the first point Mr. Tibrewall urges upon me fails. So does the second point. Quiescence, if that, is not acquiescence in the context of facts here. 1956 when Hariram was thrown overboard by questionable means to 1958when his sons raised their suit or suits in the city court is two years or a little more. You cannot expect a man to make a bee-line for the nearest court as soon as his rights are invaded upon. I miss too a full knowledge of facts upon which acquiescence must rest. So Mr. Tibrewall cites in vain sections 196 and 197 of the Contract Act, 9 of 1872, section 198 of which deserves to be taken into reckoning as well. 22. In Hanuman Chamber of Commerce Ltd., Delhi v. Jassa Ram Hiranand, (15) A.I.R. 1949 E. P. 46, cited by Mr. Tibrewall, there having been a reference to arbitration by one partner, acquiescence on the part of the non-referring partners, the firm being the plaintiff, was inferred from certain telling circumstances: (i) for some three months they raised no objection not even any time beyond that; (ii) the arbitrator reduced their claim from Rs. 49,481-7-9 to Rs. 18,187-13-9, none objecting all the same and (iii) the defendant who raised the plea of an incompetent reference to arbitration led no evidence to show that the no referring partners did not accept the act of the referring partner. To find anything like this in the case before me is an impossible task. 49,481-7-9 to Rs. 18,187-13-9, none objecting all the same and (iii) the defendant who raised the plea of an incompetent reference to arbitration led no evidence to show that the no referring partners did not accept the act of the referring partner. To find anything like this in the case before me is an impossible task. Ever since the refusal of rent by the receiver, Hariram and after his death his two sons, the plaintiffs, have been doing all they can to uphold their tenancy by remitting rent by money-order, by depositing it with the Rent Controller and by being otherwise 'up and about'. The conclusion I have therefore come to is that Gopiram did never become a direct tenant under the receiver who, on materials I have had put before me, is not, however, open to the charge of collusion. He, it seems, was as a victim to collusion instead. I find the fifth issue so,