Judgment :- 1. A suit for dissolution of partnership and rendition of accounts was decreed by the court below. The dis-satisfied defendants-defendants 2, 3, 6 and 7 have filed the appeal challenging the decree. (The only defendant in the suit had passed away during the pendency of the suit. The 2nd defendant is his widow, and defendants 3 to 7 are the children. Defendants 4 and 5 have been made respondents in the appeal). 2. The following are the skeletel facts relevant for the appeal. 3. Narayanan Chellappan 'Chellappan contractor' as he appeared to have been familiarly known had small beginnings in his life. He did not have much of formal education. That, however, was one inhibiting factor for his business success. He undertook the execution of many works under the Government, and the authorities like the Electricity Board. Sometimes he did the business by himself. Sometimes in collaboration with others. Jayapalan, his brother-in-law (wife's brother) examined in the case as P.W.3, was also in similar line but with less success. Chellappan had a partnership with him. That was way back in 1948. (See Ext. B5 partnership deed). That came to an end on 6-6-1950 when the dissolution of that firm was notified in the Gazette (Ext. B7). There was yet another firm, Kairali Corporation in which Chellappan was a partner. That firm had about seven partners. That too was later discontinued. 4. In the 1960's, Chellappan took up major works under the Electricity Board; some at Kuttiyadi; and some at Sabarigiri in Idukki. The execution of these works was not without their exasperating experiences. The Kuttiyadi work conduction of tract cutting and forming penstock route, construction of 130' high main dam and construction of causeway etc. was taken up in 1963. The work was somewhat finished by the end of December 1971. That was, however, not the end of the story. He had grievances about the inadequate payment made by the Board for the work. The dispute was sought to be resolved by resort to arbitration. The arbitration proceedings started in 1973. The litigative fight did not stop till it reached the highest court in the country. The Supreme Court finally disposed of the case between the contractor and the Board on 21-11-1974. (See Ext. B4 order in Civil Appeal No. 682 of 1974). He then received the money in terms of the final decision. The arbitration proceedings started in 1973. The litigative fight did not stop till it reached the highest court in the country. The Supreme Court finally disposed of the case between the contractor and the Board on 21-11-1974. (See Ext. B4 order in Civil Appeal No. 682 of 1974). He then received the money in terms of the final decision. His outstanding liabilities and accounts appear to have been settled on that occasion. He thought of distributing, possibly a portion of the surplus, among his own children. All the sons got Rs. 40,000/ each except the youngest who got an added sum of Rs. 10,000/ . Chellappan would have hoped for happiness, by that gesture and by that time. His hopes were dashed. A seed of discord had been planted, deep in the plaintiff's mind. The plaintiff sent a suit notice on 23-2-1976. (Ext. A13 is the postal receipt and Ext. 14 the acknowledgement slip.) The reply to it from Chellappan's lawyer is dated 7-3-1976 Ext.A15.) The seed of discord sprouted by this time. The suit was instituted on 8-7-1976. 5. The plaintiff, the eldest son, had his studies up to the Pre-Uniyersity level. The second son, the 3rd defendant is an Engineering graduate. Though he had occupied a berth in the Government Service, he left it off in search of fresh fields and pastures new, no doubt expecting encouragement and guidance from his own father. Another son, 4th defendant is a doctor. Two medical men had married his two daughters, Mangalam and Maheswari, defendants 5 and 6. The youngest son, Kaladharan, the 7th defendant, was also assisting his father in his works. 6. The plaintiff was not satisfied by filing a suit for the vindication of his assumed rights. He filed also a petition for attachment before judgment, virtually disabling his father from receiving money due for the works he had carried out in the Civil Aerodrome at Trivandrum. This harsh, if not heartless, step pained him. The father filed an affidavit in opposition to that application on 31-7-1976. The plaintiff's claim of partnership was strongly repudiated by him. The long statements therein pictured the plaintiff's attempts as malicious manipulations. Chellappan claimed that he was an assessee to income-tax and wealthtax, for very many years till then. This harsh, if not heartless, step pained him. The father filed an affidavit in opposition to that application on 31-7-1976. The plaintiff's claim of partnership was strongly repudiated by him. The long statements therein pictured the plaintiff's attempts as malicious manipulations. Chellappan claimed that he was an assessee to income-tax and wealthtax, for very many years till then. There was not the slightest suggestion or the faintest reflection of there having been a partnership between them in respect of the Kuttiyadi venture in any of the acts and activities. How come then this vicious claim? He queried. The court dissolved the interim attachment and dismissed the application. 7. Chellappan did not, however, livelong thereafter. On 30-4-1977, he bid farewell to his fortunes and to his worldly worries. It was for some of his legal heirs then to carry on the litigative fight. 8. The plaintiff had prayed the court that the documents filed by him be kept in safe custody. There were nine of them. Items 7 to 9 were the letters which have been later marked as Exts. A3 to A5, respectively dated 23-7-1966,18-8-1966 and 6-11-1966. The 3rd defendant filed a petition on 27-7-1978 for opening the cover and for furnishing attested copies, so as to enable the defendants to file written statements in the suit. The court allowed inspection of the documents in the presence of the sheristadar. Presumably after such inspection defendants 2 and 3 filed their separate written statements on 19-8-1978. They took care not only to repudiate the allegation about partnership but also to state that the letters referred to above which according to the plaintiff constitute the back-bone of his partnership plea-were fabrications. 9. The suit came up for trial on 10-9-1978. The plaintiff then sought an adjournment. The case then stood posted on 27-9-1978. The plaintiff was examined on that day. Evidence was adduced partly on his side. On the next day, 28-9-1978, the plaintiff's evidence was completed. They consisted of, besides the documents already referred to above, some monthly statement of accounts so they are claimed to be Exts. A6 to A10, a muster roll, Ext. A11, hire purchase agreements with Marikar Motors Ltd. by Chellappan and others, Exts. Al and Al (a) dated 25-8-1965, a letter written by Marikar Motors Ltd. to the plaintiff (in connection with the transaction covered by Ext. A6 to A10, a muster roll, Ext. A11, hire purchase agreements with Marikar Motors Ltd. by Chellappan and others, Exts. Al and Al (a) dated 25-8-1965, a letter written by Marikar Motors Ltd. to the plaintiff (in connection with the transaction covered by Ext. Al), and yet another hire purchase agreement dated 6-9-1962 (Ext. A16). The only other item of documentary evidence is a letter Ext. A12 dated 27-2-1978 addressed by the 3rd defendant to his father, which among other grievances, alludes to an apprehension on his part of the father attempting to favour the plaintiff by unjustly planning to introduce an artificial partnership between the two. The oral evidence of the plaintiff consisted of the testimony of plaintiff examined as P.W.1, P.W.2 an employee of the Marikar Motors Ltd. (who has proved the promissory notes Exts. XI to X4 executed in connection with the purchase of four vehicles from that concern, under a hire purchase agreement which had been finally settled later), P.W.3, the maternal uncle of the plaintiff and the brother-in-law of the deceased 1st defendant, and P.W.4. a former employee of Chellappan whose services had been terminated in 1971, and who litigated his claims before the labour authorities and the Labour Court. 10. The case stood for defence evidence on 29-9-1978. A petition for adjournment of the case for a day I.A. No. 6526 of 1978 was filed on behalf of the 3rd defendant. The reason given was that be bad gone to Karnataka in connection with a contract work and had not returned. The court below, however, declined the prayer and dismissed the petition. The defendants did not have any opportunity to examine themselves or any of them or to examine any other witness in support of their case. The case was posted to 3-10-1978 for arguments. Arguments are seen completed on that day; and the judgment was promptly delivered on 6-10-1978. 11. Apart from their contention that the finding about the existence of partnership is patently perverse, the defendants have a further grievance that there was unjust hustling and improper denial of an effective opportunity to adduce evidence. The grievance is specifically projected in ground No.10 in the memorandum of appeal. 12. Whether there was a partnership between the plaintiff and the 1st defendant, and if so the material terms thereof, is the central question arising for decision. The grievance is specifically projected in ground No.10 in the memorandum of appeal. 12. Whether there was a partnership between the plaintiff and the 1st defendant, and if so the material terms thereof, is the central question arising for decision. If there is some evidence which would justify an inference of partnership, the further question whether the defendants had any effective opportunity to adduce evidence to dislodge that inference would arise. In the scheme of things, the latter is a subsidiary contention and would become relevant if, and only if, the first question is answered in favour of the plaintiff. 13. A survey of the case law from the dawn of the 18th century to almost the end of the 20th, would reveal the emphasis given about the importance of there being an agreement between the parties, and the evidence relating to its essential terms, before a plea of partnership is sustained. How the requirement relating to proof of an agreement is a binding rule of evidence in Courts of Law was emphasised by Lord Sumner in Pate v. Pate, 1915 A.C. 1100, a case concerning construction of Ceylon Ordinance VII of 1840. The following observations are relevant: "Partnership is essentially a relation resting in agreement. That agreement may be proved or established by proof of an express agreement, written or unwritten, or by proof of such acting as raises the inference of an implied agreement, but a partnership, whether in course of performance or wholly spent, is still a matter of agreement, though of agreement coupled with something more. If agreement once be negatived, there is no partnership at all. However the matter may stand where an existing or past partnership is admitted, it is equally necessary to "establish" the agreement upon issue joined in that regard, whether the partnership alleged to be agreed is, or was, or is to be. The requirement is evidently a binding rule of evidence is Court of law." (emphasis supplied) Reference may be made to some illustrative cases. A partnership agreement can be inferred from clear evidence and conduct of parties. That is so even when the parties themselves conceal, for their own reasons, the existence of the partnership from the outside world. Worts v. Pern, III Br. P.C. 548 I English Reports 1490 was one such case. Two beadles of Cambridge University possessed licence to sell wines. A partnership agreement can be inferred from clear evidence and conduct of parties. That is so even when the parties themselves conceal, for their own reasons, the existence of the partnership from the outside world. Worts v. Pern, III Br. P.C. 548 I English Reports 1490 was one such case. Two beadles of Cambridge University possessed licence to sell wines. They decided upon a joint venture. Each made his contribution to the capital. The profit sharing ratio was also agreed upon. They, however, concealed its existence in discourse with others. Yet, when the court found that "there was plain proof of partnership by many credible witnesses, as well as by the draft of the articles, the stated account and the letters.......", the existence of partnership was found. In contrast was the decision which came soon thereafter, Jacobson v. Hennekenius, (1714) 5 Br. P.C. 482 2 English Reports 811. A merchant thought of inducting into business his nephew; and so made an entry in a new set of books indicative of the induction of a new partner. The nephew's name was for sometime used as a partner in all the transactions of the trade. There were, however, no articles of partnership; no part of the stock was received from the nephew; and no profits from the business of the firm given to him. The court held that the style of the books and the using of the name was not "among merchants, deemed sufficient of itself to constitute a real partnership." In Forster v. Hale, 3 Ves.696 30 English Reports 1226, the existence of such an arrangement was raised by implication from letters and paper. Similarly, it was observed that an admission in other proceedings may be indicative of a partnership arrangement. Lord Kenyon pointed out that the time when the statement is made (whether or not before the firm was formed) is relevant and stated: "The answer cannot be received to prove the partnership; but when a partnership is established, the admission of one may bind all." The admission, however, must be of a definite and clear character. That aspect was emphasised in Peate v. Dicken, 1 C.M. & R.415149 English Reports 1141. There, a person entrusted a concern the work of building an engine, according to a patent. The contract was signed by Brown and Company. That aspect was emphasised in Peate v. Dicken, 1 C.M. & R.415149 English Reports 1141. There, a person entrusted a concern the work of building an engine, according to a patent. The contract was signed by Brown and Company. Brown had made an endorsement on the back of the draft agreement that one Broadhurst was also a partner. Broadhurst was seen attending to the works, giving advice and making suggestions. With all that, when the party who entrusted the work claimed damages for breach of contract, seeking to make Broadhurst also liable, Broadhurst disclaimed liability as a partner and contended that his earlier admission was a mistake. He put forward a limited interest he had in the patent as justification to explain his presence in the work premises and his conduct there. The Jury found that there was no partnership. The finding was not disturbed by the court. Parke B. pointed out that the admission was not conclusive; and observed: "It was incumbent upon the plaintiff to show something like a declaration by Broadhurst before the contract that he was a partner in the transaction." (emphasis supplied) It would not be sufficient for the plaintiff to give in evidence acts which might be referred to such limited interest as an interest in the patent. If Dickenson v. Valpy, (1829) 10B. & C. 128-10 Reports of Cases 128 also, Parke B. emphasised the necessity of clear proof in substantiation of a plea on partnership. The Court observed that the plaintiff must show that "the defendant held himself out to be a partner, not to the outside world, for that is a loose expression, but to the plaintiff himself, or under such circumstances of publicity as to satisfy a jury that the plaintiff knew of it and believed it himself". (emphasis supplied) 14. A person frequenting the board room of a company and the fact that the company had opened an account in Bank the pass book whereof evidenced a connection with the firm, were held to be insufficient to make him answerable for the debts of the firm. (See Drouet v. Taylor, (1855) Ex. Ch. 16 C.B. 671-400 R.R. 878). A person frequenting the board room of a company and the fact that the company had opened an account in Bank the pass book whereof evidenced a connection with the firm, were held to be insufficient to make him answerable for the debts of the firm. (See Drouet v. Taylor, (1855) Ex. Ch. 16 C.B. 671-400 R.R. 878). In Keith Spicer Ltd. v. Mansell, (1970) 1 W.L.R. 333, M and B agreeing to form a company had done certain acts before the incorporation of the company including the opening of a Bank account, though the Bank account was not operated. The plaintiff in the case supplied goods as ordered by B, delivering the goods to M's address. The finding of the County Judge that there was no partnership was upheld by the Court of Appeal. According to Harman, Q. the fact that there was a good deal of loose thinking to form partnership was not sufficient. Edmund Davies L.J. stated: "There was the most exiguous evidence called on the plaintiff's behalf and such evidence as was called is quite ambivalent. On one view it might be said that it veers towards the existence of a partnership. But to my mind there is nothing conclusive about it at all." 15. Before sifting, analysing and assessing the evidence on which the plaintiff relied on and the court below acted upon, it is necessary to have a background relating to the parties and the transactions. 16. There cannot be any doubt that the 1st defendant was a person who had been long time in works contracts business. Business habits were part and parcel of his style and functioning. That is the inference gatherable from his entering into written arrangements on previous occasions, when he did business in collaboration with others. That happened even when such business activity' was conducted with none other than his brother-in-law, P.W. 3. 17. The venture which is claimed to be a partnership one by the plaintiff, is one with activities spanning a period over a decade. Manifold had been the activities in connection with the work. The turnover involved, about rupees forty lakhs, is by no means a small figure. The venture had multifacetted spheres of action. Thousands of workmen had been engaged. Numerous were the persons associated therewith, for the supply of men and materials connected with the completion of the venture. Manifold had been the activities in connection with the work. The turnover involved, about rupees forty lakhs, is by no means a small figure. The venture had multifacetted spheres of action. Thousands of workmen had been engaged. Numerous were the persons associated therewith, for the supply of men and materials connected with the completion of the venture. Even the disputes between the Board and the contract had a chequered career. There is massive correspondence exchanged between the patties, in connection with the execution of the work, the completion thereof, the dispute arising in relation to the payment for the work, and connected legal proceedings starting from the appointed arbitrator and ending with the final judgment of the Supreme Court of India. Yet, the entire evidence which the plaintiff could marshal to prove a partnership arrangement is restricted to three letters Exts. A3 to A5 (about which we will be dealing with separately). It is inconceivable that having regard to the magnitude of the transactions and the period over which the venture lasted, the plaintiff could not get anything more or better to prove his case. In Das Gupta v. D. Murzamull, AIR 1973 S.C. 48, the Supreme Court pointed out how it was conceivable that the parties should have entered into an oral agreement of partnership without retaining any record of its terms and conditions, and emphasised: "This is not the normal course of business." The fact that no account of the partnership was opened with any bank and no written intimation given to a statutory authority with whom there were dealings, were additional features tending to negative the plea of partnership in that case. 18. The work carried on under the Board is one in relation to which a detailed and formal contract had been executed. There is some evidence to the effect that the tender along with the schedules ran to about 200 pages. The pro forma of a contract to be entered into by the Board insists that the tenderer should disclose whether it is being submitted in his individual capacity, or in the name of a firm or of a company. In cases where a firm or a company is the tenderer, the evidence regarding the authority of the person who signs the tender has also to be furnished. In cases where a firm or a company is the tenderer, the evidence regarding the authority of the person who signs the tender has also to be furnished. It is conceded that as regards the work in question, it was Chellappan alone who had signed the tender form and other papers relating to the work. Normally, there must be some cogent and convincing explanation, for Mr, Chellappan to deal with the Board, styling himself as an individual if in truth and fact a firm was in existence. No such explanation is forthcoming. It could not be even assumed that a tax benefit was the possible motive. On the contrary, if in truth and fact a firm did exist, that would have been to the manifest advantage to the plaintiff and Chellappan; for in that event the incidence of the tax on both of them would be much lower than what it would be if the income is treated as accruing or arising to an individual. This is particularly so when the income computed is not a very inconsiderate amount. This conduct on the part of Chellappan and the acquiescence therein by the plaintiff, would go a long way to shatter the plea of the plaintiff about the existence of a partnership arrangement. The manner in which the parties have represented themselves to the outside world and to the taxing authorities, is also entitled to be reckoned in considering a claim of a suitor. It was so held in a taxation case. Denning, L. J. made forceful observations about those who would pose one personality before the public and another before the Revenue. If a particular posture is adopted for certain purposes, it would be a good and sound practice not to permit him to adopt a different stand in relation to another situation, where adoption of such a different position is to his advantage. Having laid his bed in one way, he has necessarily to sleep on it. If it is assumed that there was a firm, the plaintiff in this case, has obviously, concealed from the taxing authorities his interest in a firm and the possibility of his being in receipt of the income therefrom. He admits that even the sum of Rs. Having laid his bed in one way, he has necessarily to sleep on it. If it is assumed that there was a firm, the plaintiff in this case, has obviously, concealed from the taxing authorities his interest in a firm and the possibility of his being in receipt of the income therefrom. He admits that even the sum of Rs. 40,000/- received from Chellappan which he considers as profits, was not reckoned by him to be profit in his hands or as income belonging to him for tax purposes. If as a matter of fact, it was part of the receipt of his share of profits, it would have been income in his hands. That was, however, not the way in which he treated it; and that was not the way he allowed the Revenue authorities to treat it. These pieces of conduct could not altogether be ignored in the assessment and evaluation of the plaintiff's plea. 19. There were times when equitable considerations impelled the courts to posit the existence of a firm when persons by their conduct to the outside world made it appear that they were having a partnership venture. That was more for protecting the innocent outsiders from an otherwise unjust situation. Rigorous proof was insisted upon even in those times to find a partnership arrangement inter se between the parties. Megarry J. took the view that no strong prima facie case of a partnership had been made out in Floydd v. Cheney & another, (1970) 1 Ch. 602. No proposals had ripened into an agreement on all the terms of a partnership. It was stated: "A holding out to the world that the parties were in partnership together does not by itself necessarily establish that the plaintiff and defendant were in fact partners inter se, though no doubt it is some evidence tending to point towards a partnership." (See Radcliffe v. Rushworth, (1864) 33 Beay. 484). It would be totally unjust to import considerations in relation to business transactions relevant in the 18th and 19th centuries to transactions in the latter half of the 20th century, and between persons who have been in business and had been functioning essentially as businessmen in relation to their business ventures. 20. Ordinarily there must be some motive for the parties to conceal the real relationship, if a partnership had really subsisted between the parties. 20. Ordinarily there must be some motive for the parties to conceal the real relationship, if a partnership had really subsisted between the parties. (See for example Worts v. Pern, supra). There is not the slightest indication about any such motive or reason for the parties to conceal from public gaze their partnership arrangement. This circumstance too would justify a rigorous standard of proof in relation to the existence of the partnership arrangement, when that is sought to be established otherwise than by a regular deed of partnership or even by some documents containing the essential ingredients of a partnership agreement. 21. The vague nature of the plea of the plaintiff regarding the partnership arrangement cannot go unnoticed in this context. The material averments in the plaint in relation to the plea of partnership are contained in Para.5, 6 and 7. The relevant portions are extracted below: "5 Later on, the defendant and the plaintiff's uncle wanted the plaintiff to do business along with the defendant as the defendant was not able to do big contract works by himself alone. Further, the plaintiff has and had experience in that field. 6 Both the plaintiff and the defendant together made site inspections before submitting the tender. Tenders for the works were submitted in the name of plaintiff and defendant. 7. The plaintiff and the defendant agreed between themselves to do the works in partnership. The arrangement was that the plaintiff should be the working partner, working at the spot and a small portion of the working capital was also to be contributed by him. The defendant should be the Managing Partner and he agreed to contribute a major portion of the capital required for the works. The arrangement was that the plaintiff should be the working partner, working at the spot and a small portion of the working capital was also to be contributed by him. The defendant should be the Managing Partner and he agreed to contribute a major portion of the capital required for the works. The profit and loss if any are to be shared by both the plaintiff and the defendant equally." The further averment which is relevant for the purpose in contained in Para.9 where it is stated: "As per the partnership agreement between the plaintiff and the defendant, the plaintiff contributed nearly Rs.36,000/- for the partnership business and he was supervising the construction of the works at the spot at Kuttiyadi." The cause of action was given in Para.16 of the plaint as having arisen, among other dates, on 16-11-1963 "when the partnership agreement was entered into between the plaintiff and the defendant." The details relating to the agreement between the parties, and such essential ingredients such as the capital of the firm including the working capital, the duration of the firm, the respective rights and duties of the partners were not given in the plaint. The omission to refer in the plaint about facts touching the nature and origin and mode of creation of partnership was adversely commented upon in Said & Co. v. Mamode Hadee, (1916) A. C. 545. 22. The one person who was fully competent to answer the allegation was the 1st defendant himself, none other than the father of the plaintiff. As noted earlier, he did not live along to file a written statement. The story of a partnership had been, however, repudiated by him in the reply (Ext. A15 dated 7-3-1976) sent by his lawyer and on his behalf, to the lawyer's notice sent on behalf of the plaintiff, and the counter-affidavit in the attachment matter filed on 31-7-1976. It cannot be gainsaid that the plaintiff had been inducted into the business by his father, the 1st defendant. That the father had maintained relationship with the son even up to the time when he had received the fruits of his labour in relation to the Kuttiyadi venture, is evident from the admission of the plaintiff himself about the receipt of Rs. 40,000/-on that occasion. That the father had maintained relationship with the son even up to the time when he had received the fruits of his labour in relation to the Kuttiyadi venture, is evident from the admission of the plaintiff himself about the receipt of Rs. 40,000/-on that occasion. In such circumstances, there must be compelling reasons for a father to put up a totally false denial of partnership with bis own son, if one bad existed in truth and in fact. Particularly so, when the father was proximate to his death. (He died within nine months of the filing of the affidavit in the attachment matter). Nothing has been suggested for such a strange behaviour on the part of the father. Sifting the evidence in its entirety, we are unable to discern any plausible motive for the father to behave in the manner he has done. These circumstances only render it all the more impossible to accept as correct the story of the plaintiff. 23. This is not the first time the court had to resolve a dispute between a father and a son regarding the existence of a partnership. In Peacock v. Peacock, (1809) 2 Camp. 45, a law-stationer said to his son in March 1803, when the son came of age: "You shall have 15 dollars a week till October; the books will then be made up; and you shall have a share ". Soon after, the father told his apprentices that his son being now of age would be as much their master as himself. When the 1st of October arrived, he changed the firm, wrote 'Peacocks' over his door, opened a new set of books, and from that time in every possible way represented his son as his co-partner. The son likewise acted in all respects as a partner, and applied to business with assiduity and steadiness. Having regard to the strong factual setting, understandably enough, Lord Ellenborough stated: "The fifteenth part of evidence adduced would have been sufficient to establish a partnership as between these parties and the rest of world. This being established, the presumption of law is that they are partners interse." (The fight between the father and son appears to have been continued when the father dissolved the firm and the son contested the validity of the dissolution for want of proper notice. Ultimately the matter was compromised). (See Peacock v. Peacock, 16 Ves. This being established, the presumption of law is that they are partners interse." (The fight between the father and son appears to have been continued when the father dissolved the firm and the son contested the validity of the dissolution for want of proper notice. Ultimately the matter was compromised). (See Peacock v. Peacock, 16 Ves. Jun. 49 33 English Reports 902). Quite the reverse was the finding of an Indian court in 1925 The son in that case disclaimed liability as a partner. The fact that the father had carried on business in the name of his son, the son signing several letters on behalf of the firm, and his appearing before arbitrators in connection with proceedings against the firm, were all found to be inadequate to make out a partnership. (See Tulsidas Amanmal v. Lyon Lord & Co., A.I.R. 1925 Sind 225). 24. In the written statement of defendants 2 and 3, existence of the partnership had been denied. Referring to Exts. A3 to A5, it was averred that there could not have been any such letters. Particularly significant are the averments about P.W.4. They read: "One Shri Subramoni Iyer who was assisting the 1st defendant as a clerk, and Shri. Velayudhan who was assisting the 1st defendant sometime before the latter's demise. They began to conspire with the plaintiff in order to see that the 1st defendant was blackmailed to pay amounts. They have collusively created the records now produced to be used as evidence" This specific and pointed plea regarding Exts. A3 and A5 and other documents should not be lost sight, in entering a finding on the question of partnership. 25. We shall now discuss the documents themselves. Ext. A4 does not contain any statement indicative of the existence of a firm. In Ext. A5, there is a sentence about the maintenance of accounts from 17-8-1966. It was stated that maintaining the accounts as suggested therein would be to the advantage of both the parties. This by itself need not necessarily indicate the existence of an antecedent partnership or the making of a new one. Maintenance of joint accounts of all the works of a father and son would not necessarily lead to such an inference. However, in Ext. This by itself need not necessarily indicate the existence of an antecedent partnership or the making of a new one. Maintenance of joint accounts of all the works of a father and son would not necessarily lead to such an inference. However, in Ext. A3 there are references, some assuming, and some specifically pointing out, to the existence of the partnership firm and even an understanding relating to the profit-sharing ratio. The two sentences of Ext. A3, if Ext. A3 is genuine, would impart a partnership arrangement. One is to the effect that the son need not leave him then, for, "whether it be profit or loss, we two are the only people who have responsibility therefor." And still later there is a sentence reading: "when all works are over, and if there be profit, after looking into the accounts, we can divide the same into two." Though counsel for the respondents submitted that even those letters (assuming them to be genuine) would not lead to an inference about a preexisting partnership and an agreement on the sharing of the profit of the firm, we are unable to accept that submission. 26. This takes us to a more serious question about the genuineness of Exts.A3 to A5 and acceptability of the evidence of P.W.4, who claims to have written those letters as directed by Chellappan. The striking and prominent feature of these three letters is the fact that there is nothing to connect Chellappan with the writing of those letters. They are not in his handwriting. They do not contain his signature; not even his initials. The only connection is the letter-head of Chellappan. The evidence in the case reveals the access to and possession of the plaintiff and P.W.4, as regards the letter-heads of Chellappan. Ext.A3 winds up with the wording "With Love, Father". There occurs the word: "Communicated B/O Subramoni Iyer, Sd/-". Ext.A4 too has similar concluding portion. Ext.A5 has been signed by P.W.4, who designates himself as 'Accountant Swami'. It is possible that Chellappan may dictate letters to P.W.4. However, there is no acceptable explanation why he did not sign the same. That be could write his name in Malayalam as 'Narayanan Chellappan' and put his signature is evident from the records of the case. Ext.A5 has been signed by P.W.4, who designates himself as 'Accountant Swami'. It is possible that Chellappan may dictate letters to P.W.4. However, there is no acceptable explanation why he did not sign the same. That be could write his name in Malayalam as 'Narayanan Chellappan' and put his signature is evident from the records of the case. The affidavit in opposition to the petition for attachment before judgment, and the vakalath filed at that time contain the signature of Mr. Chellappan in steady and bold hand. There are other interlocutory petitions also where he has put his signature. His steady signature appears in the partnership deed Ext. B5 and in the agreements Exts. Al and A2. P.W.4 himself admits having seen Chellappan signing letters and frankly conceded that the words B/O were the only evidence to indicate that the letters Exts.A4 & A5 had been written at the instance of Chellappan. There is no serial number in any one of the three letters. The total absence of any writing and signature by Chellappan in the three letters is indeed a suspicious circumstance. It is ordinarily incredible that Chellappan would not have even initialled any of those letters and would have adopted the pattern obtaining in the issue of Government order! 27. The authenticity of these documents is dependant upon the evidence of the plaintiff as P.W.1 and the 'Accountant Swami' as P.W. 4. No importance can be attached to the interested testimony of plaintiff as P.W. 1. Is P.W. 4 a reliable and believable person? Reading his testimony carefully and as a whole in the background of the attendant circumstances, we are clearly of the view that he is a totally unreliable character. That there was no love lost between Chellappan and P.W. 4 is absolutely clear from the testimony of P.W. 4 himself. Chellappan had terminated his services in 1971. P.W. 4 invoked the jurisdiction of District Labour Officer, a statutory authority for the payment of gratuity. His claim was. however, rejected. (vide Order Ext. B9 dated 7-3-1974). An appeal has been filed by P.W. 4 against that decision. Obviously, therefore, P.W. 4 had an axe to grind against Chellappan. It is quite possible that the plaintiff had hired the services of P.W. 4, who had strong and bitter feelings against Chellappan who had dispensed with his services, to fabricate Exts. A3 to A5. B9 dated 7-3-1974). An appeal has been filed by P.W. 4 against that decision. Obviously, therefore, P.W. 4 had an axe to grind against Chellappan. It is quite possible that the plaintiff had hired the services of P.W. 4, who had strong and bitter feelings against Chellappan who had dispensed with his services, to fabricate Exts. A3 to A5. P.W. 4 is not a witness of truth at all, according to us. Exts. A3 to A5 are crude attempts at manufacturing some documents purporting to be those taken down by P.W. 4 as dictated to by Chellappan. In any event there is no acceptable evidence to show that P.W.4 had written the letters as directed or authorised by Chellappan. The letters can then be treated only as letters of a perfect stranger and of no use. (See Burnside v. Dayrell, 1814 L.J Ex. 46). 28. The only further evidence for substantiating the partnership plea is that of P.W. 3. Ext. A12 letter-a very long one, full of vituperation against Chellappan and from beginning to end in an unrefined language-written by P.W. 3 would indicate that he was ill-disposed towards, and had even contempt for, Chellappan. It is therefore not unnatural that he turned to be a strong partisan of the plaintiff in planning and prosecuting the litigation against Chellappan. Apart from the totally unreliable nature of his evidence, his evidence even if believed, is inadequate to establish clearly a partnership arrangement. A general statement that the plaintiff and Chellappan had carried out the work as partners or that the father and son had together gone to Kuttiyadi for site inspection, would not be sufficient for making out a plea of partnership as alleged. P.W. 3 is not in a position to give any specific or concrete details as to the time at which the agreement was reached between them. He admitted that he had not enquired as to when such a partnership between Chellappan and his son had been formed. He does not know the investment of the two persons in the partnership. He admits that the tender was in the name of Chellappan, that the contract was awarded to Chellappan, and that he does not know whether there was any reference whatever to the partnership firm in any part of the long correspondence in relation to the work. He does not know the investment of the two persons in the partnership. He admits that the tender was in the name of Chellappan, that the contract was awarded to Chellappan, and that he does not know whether there was any reference whatever to the partnership firm in any part of the long correspondence in relation to the work. This type of vague and unsatisfactory evidence cannot form the basis of a finding about the existence of a partnership firm carrying out the work of a great magnitude, and having its duration spread over for about 12 years. We have therefore no hesitation to discard the testimony of P.W. 4. as unsafe to act upon and insufficient to substantiate the plaintiff's plea. 29. Counsel for the respondent submitted that the account books Exts. A6 to A10 evidence entries intermingling of the funds of Chellappan and the plaintiff and the dovetailing of transactions is the name of the two parties. This, according to counsel, is corroborative of a partnership arrangement. We are unable to agree with the contention. A mere intermingling of accounts of the works carried out by parties who are none other than the father and son would not readily lead to an inference of an existence of partnership. Such intermingling of accounts is equally consistent with the defence version that Chellappan was the controlling power and that to all intents and purposes, the plaintiff was only a nominal figure who had taken on the contract of tunnel work for the benefit of his father. 30. That apart, Exts. A6 to A10 cannot be treated as books of accounts. The plaintiff himself candidly confessed that the loose-sheets had been stitched together by the plaintiff himself just before they were filed in court. These bundled sheets were stated to be in the handwriting of one T. V. Velayudhan. Velayudhan has not been examined. P.W.1 has not even formally spoken about any of the material entries, including those relating to the monetary transaction having a direct nexus to the two contracts in the name of the father and of the son. In these circumstances, Exts. A6 to A10 could hardly be thought of as serious items of evidence in substantiation of a plea of partnership. 31. There was an attempt to attach some significance to the payment of Rs. In these circumstances, Exts. A6 to A10 could hardly be thought of as serious items of evidence in substantiation of a plea of partnership. 31. There was an attempt to attach some significance to the payment of Rs. 40,000/ made by the father to the son, after the judgment of the Supreme Court, receipt of the money from the Board, and the settlement of all liabilities connected with the work. If there is factually a sharing in the profits, that may couple with other circumstances, predicate a partnership. Davis v. Davis, (1894) 1 Ch. 393, was a case between two brothers who inherited a property from their father and did business in the same premises. There were no articles of partnership and no mention of partnership between the parties. No accounts had been kept, no balance-sheet nor annual account prepared. There was, however, evidence about weekly drawings by the two which was really a division of profits; and the drawings made by the two were in equal sums. The business was carried on in such a way as to render them liable as partners to outsiders. There were joint borrowings and putting the money so borrowed into business. The court held that there was a partnership. The importance of receipt of sums as share of profits was emphasised in that decision. North, J. however, took care to point out: "the receipt by a person of the share of the profits of a business is prima facie evidence that he is a partner in it, and, if the matter stops there, it is evidence upon which the court must act. But, if there are other circumstances to be considered, they ought to be considered, fairly together; not holding that a partnership is proved by the receipt of a share of profit, unless it is rebutted by something else; but taking all the circumstances together, not attaching any undue weight to any of them, but drawing an inference from the whole." In the present case, however, there is nothing to show that the payment of the amount by the father was towards share of the profits. Other children also were paid by Chellappan more or less similar sums. The plaintiff only pretended ignorance when a specific question was put to him about the payment made to other children also. Other children also were paid by Chellappan more or less similar sums. The plaintiff only pretended ignorance when a specific question was put to him about the payment made to other children also. As already noted above, plaintiff himself had not reckoned the receipt of the money as a share of profit for his income-tax purposes. There is therefore nothing to establish that he received any amount towards share of profits. The legal principles discussed above can then have no application to this case. 32. The conduct of the plaintiff himself as borne out by the admissions made by him as P. W.1, would rule out the existence of such a partnership arrangement. The affidavit Ext. B3 filed by the plaintiff himself before the arbitrator who was arbitrating the disputes between Chellappan and the Electricity Board described himself as the son of the contractor, who was the 'claimant in the above original petition' In paragraphs, it is stated: "I am also the authorised representative for the contractor in connection with the contract " The very elaborate affidavit, does not even remotely indicate about there having been any partnership arrangement between the plaintiff and Chellappan. On the other hand, it is clearly indicative of Chellappan being the only person concerned with and connected with the contract work. It is inconceivable that if the plaintiff was a partner, he should clutch at the crutch of the relationship of father and son, and an authorisation given by the 'contractor' as furnishing a standing for filing an affidavit in the case. A partner could on bis own right file the affidavit and fight the case on behalf of the firm. That is not what is seen in Ext. B3. 33. Equally crucial is the admission of the plaintiff that in relation to the tunnel work, it was he and he alone who received the payment and had initiated legal proceedings for enhanced claims. If the partnership arrangement enveloped both the works, the conduct of the plaintiff is totally inconsistent with that position. 34. The plaintiff had clearly admitted in the course of his evidence that the entirety of the documents and evidence on which he relied on for establishing a case of partnership were those produced and adduced in the case. If the partnership arrangement enveloped both the works, the conduct of the plaintiff is totally inconsistent with that position. 34. The plaintiff had clearly admitted in the course of his evidence that the entirety of the documents and evidence on which he relied on for establishing a case of partnership were those produced and adduced in the case. These items of evidence singly and collectively do not furnish satisfactory or solid base for a finding of a partnership arrangement between Chellappan and the plaintiff. 35. We shall now advert to some of the grounds which, according to us, are unsustainable on which the court below entered a finding about the existence of the partnership. 36. The fact that Chellappan was 'illiterate' in the sense that he had no formal education does not necessarily entail a conclusion that by himself he could not carry any work or any major work. The evidence in the case clearly establishes that Chellappan had been executing contract works, of considerable magnitude, and in his own capacity for more than a quarter of century, before the venture in question was undertaken. It was the plaintiff who was at that time without any particular accomplishment such as by way of technical or general education or other adventure of his own. He was just aged 23, the educational equipment being his study up to the Pre-degree class. The situation is more consistent with a case where a father's anxiety to lift up a son without any particular avocation, made him utilise the service of the son in connection with substantial work the father had undertaken. 37. Much is made of the fact that the plaintiff supervised the work and had been associated with the preliminaries regarding the submission of the tender, inspecting the site of work, and attending to other matters connected with the venture. They are all consistent with the discharge of duties as a son at the behest of the father. They are insufficient to prompt an inference of partnership arrangement. Edmundson v. Thompson & Blakey, 2 F. & F. 564 175 English Reports 1118, is an illustrative case. They are all consistent with the discharge of duties as a son at the behest of the father. They are insufficient to prompt an inference of partnership arrangement. Edmundson v. Thompson & Blakey, 2 F. & F. 564 175 English Reports 1118, is an illustrative case. There in pursuance to negotiations between Thompson and Blakey as to a partnership in January, 1861, Blakey came to the place of business, and "continued there till the end of March, being in the counting-house giving orders, stopping workmen, and doing all other acts which might either be those of a partner, or of a manager, using and writing the name of "Thompson & Co." but not "Thompson & Blakey". Even then Martin, B. took the view that there was no evidence of partnership; "for there is nothing to show that the defendant Blakey authorized Thompson to hold him out as partner or held himself out as such." 38. We have already held that the evidence of P.W.3 has to be discarded on more grounds than one. Ext. B8 letter written by P.W.3 to the 1st defendant is sufficient to reveal the unreliable and undependable traits in P.W.3. It is of such low taste and of such unrefined character that we do not propose to extract therefrom or even to comment on the terms employed therein. It is better left undisclosed. We are unable to accept P.W.3 as a person who would have an unbiassed or impartial view of men and matters. It is not necessary that he should be positively demonstrated to be a partisan for rejecting his testimony. Other circumstances do exist justifying the discarding of his testimony. Even accepting as correct the statements made by him, they are too vague and general and totally inadequate as proof of the existence of a partnership between the plaintiff and Chellappan. We may in this connection recollect how Abbott, L.C. J. declined to uphold a plea of partnership, "in the absence of evidence to show the terms upon which the parties had agreed to become partners." It was a case where there was some evidence tending to show that some agreement had been made between the parties, but it did not at all appear what the specific terms were. (See Figes v. Cutler, 3 Stark 138 171 English Reports 800.) 39. We have already held that Exts. (See Figes v. Cutler, 3 Stark 138 171 English Reports 800.) 39. We have already held that Exts. A3 to A6 and the evidence of P.W.4 are totally unreliable to establish the partnership plea. The court below assumed that the 1st defendant sent the letters Exts. A3 to A6. This is not proved at all by any acceptable evidence. We disagree with the approach and reasoning contained in Para.9 to 13 of the judgment of the court below. The finding based on such a reasoning is clearly unsustainable. 40. The fact that Exts. A6 to A11 had not been even properly spoken to either by P.W.1 or P.W.4 had been already discussed above. Even assuming that Exts. A6 to A11 are genuine, the entries contained therein are absolutely inadequate to predicate partnership between the father and the son. 41. The court below felt that the non-production of the accounts by the defendants was a circumstance against the defence. We are unable to agree. It is to be remembered that the defence plea was one repudiating a partnership arrangement. If the plaintiff felt that any particular account was in the possession of the defendants and that would establish his plea, he should have taken steps to have them produced in court. The specific admission of the plaintiff as P.W.1 is that his plea of partnership is entirely based on the evidence already produced in the case. No adverse inference against the defence was justified in the above circumstances. 42. The reasoning in Para.15 of the judgment does not lend any substantial support to the finding of the court below. Even if Exts. A6 to All are treated as genuine and not suspicious (this is the maximum that could be assumed by the court below in the light of its reasoning in Para.15 of the judgment) we have pointed out how it is insufficient to found a partnership plea. 43. Some reliance had been placed by the court below on the promissory notes jointly executed by the plaintiff and the 1st defendant in favour of Marikar Motors Ltd. To transmute the joint executant of a promissory note to the status of a partner would indeed be a preposterous proposition. If at all, it is indicative of the existence of two independent individuals, who figured as co-obligants towards a commercial concern. 44. The notice Ext. If at all, it is indicative of the existence of two independent individuals, who figured as co-obligants towards a commercial concern. 44. The notice Ext. A12 issued by the 3rd defendant to the 1st defendant (the son who is an Engineering graduate to his father Chellappan) is taken as giving some support to a plea of partnership That letter, we note, only charged (unjustly as it turned out) that the father was "cooking up a case" so as to depict the plaintiff as a partner. The allegation is the reflection of a consciousness of there not having been a partnership at all between the two. No doubt, viewed as a letter sent by a son to the father, it was unbalanced and unrefined. It was written obviously oblivious of a civilised concept that the strongest difference of opinion is not incompatible with the greatest decency of expression. This is all the more unfortunate as it came from a person who was an Engineering graduate. But then the facts of the case had revealed that human relationship had become a casuality when monetary considerations (if not greed) had their upper hand. Such was, at any rate, the unfortunate experience Chellappan had with his own brother-in-law and with his two sons. That such a rash and harsh letter was written by the 3rd defendant to his father is, however, no justification to rush to a conclusion that that letter is a stay and support to the plaintiff's plea of partnership. 45. The circumstances referred to in Para.18 of the judgment of the court below has been adverted to by us earlier. Those circumstances and others of greater importance earlier alluded to leave in our minds no doubt that no partnership venture had been thought of between the father and the son, the plaintiff and the 1st defendant in the case. 46. The legal position has not been fully understood, and in all its implications by the court below. We have adverted to the various relevant aspects to be borne in mind while considering the question whether a partnership as pleaded bad, in fact, existed or not. 47. In the light of the above discussion, we have no hesitation to hold that the finding of the court below is clearly erroneous and unsustainable. The result is that we allow the appeal and set aside the judgment and decree of the court below. 47. In the light of the above discussion, we have no hesitation to hold that the finding of the court below is clearly erroneous and unsustainable. The result is that we allow the appeal and set aside the judgment and decree of the court below. The suit will stand dismissed. The appellants will have their costs here and in the court below. Dismissed.