Judgment :- K.K. Sasidharan, J. The first appeal is directed against the judgment and decree dated 211. 1981 in O.S.No.69 of 1981 on the file of the learned Subordinate Judge, Thirupur. 2. Plaintiff is the appellant. 3. Parties to the appeal are referred to as plaintiff and defendants. 4. The suit in O.S.No.69 of 1981 was preferred by the plaintiff praying for a decree of dissolution of partnership and for rendition of accounts. 5. In the plaint in O.S.No.69 of 1981, plaintiff inter alia contended thus: The facts: (a) Plaintiff and Late Khader Basha Saheb and S.K. Mohamed Hussain Saheb, 1st defendant and the plaintiffs brother M. Narayanaswami Gounder jointly purchased a building site in Thottipalayam Village in Tirupur Town for the purpose of constructing a Cinema Theatre within the Tirupur Municipality. Sale deed was taken in the name of the plaintiff, his brother Narayanasami Gounder, S. Khader Badsha Saheb and the first defendant S.K. Mohamed Hussain Saheb. Thiru. Khader Badsha Saheb died subsequently and his right devolved on his son, who was impleaded as the second defendant. Narayanasami Gounder, the plaintiffs brother, did not contribute any amount for purchasing the property. He also died subsequently, leaving his wife, 7th defendant and his children, defendants 8 to 10 as legal representatives. (b) The property was a vacant space originally. Later, at the instance of the purchasers, a Cinema Theatre was built thereon by the joint efforts of the original purchasers and their legal heirs. It was originally called Golden Theatre which was later renamed as Pushpa Theatre. The expenses for the construction of the theatre was borne mostly by the plaintiff who took a leading interest in the cinema theatre business. (c) Plaintiff, Narayanasami Gounder, S. Khader Badsha Saheb and the first defendant S.K. Mohamed Hussain Saheb formed a partnership in the name and style of "Pushpa Theatre". Since Narayanasami Gounder contributed only a negligible amount towards the partnership, he was entitled to only 1/16 share in the Cinema Theatre and its belongings. Plaintiff is having 7/16 share in the partnership. Subsequently, by way of two sale deeds dated 30.3.1979, plaintiff sold his 4/16 share out of his 7/16 share to the defendants 3 to 6. Accordingly, he was left with 3/16 share in the entire partnership. Plaintiff is having 7/16 share in the partnership. Subsequently, by way of two sale deeds dated 30.3.1979, plaintiff sold his 4/16 share out of his 7/16 share to the defendants 3 to 6. Accordingly, he was left with 3/16 share in the entire partnership. (d) The business was conducted as a partnership and the partners had been managing the property and they have also been receiving their share of income from time to time. Plaintiff alone was contributing substantial amount for the purpose of maintaining the theatre. The partnership was not running the cinema theatre and it was let out to third parties from time to time. There were disputes and difference of opinion between the partners with regard to the partnership property and as such, the plaintiff was convinced that dissolution of partnership was the only way to settle the matter. Partnership was one at will and as such, plaintiff was entitled to dissolution of partnership and consequential relief of rendition of accounts. Accordingly, the suit was instituted. 6. The suit was mainly contested by the 10th defendant, being the legal representative of Thiru. M. Narayanasami Gounder, brother of the plaintiff and whose name was also found mentioned in the document dated 28. 1950. 7. In the written statement filed by the 10th defendant, he contended inter alia thus: The suit for dissolution of the alleged partnership and for rendition of accounts was not maintainable. There has never been a partnership in existence between the parties. The allegation that there was no contribution made by Narayanasami Gounder for the purpose of purchasing the property and construction of cinema theatre was denied. The theatre building was constructed only by Khader Badsha Saheb and Narayansami Gounder There was no partnership between the parties. Plaintiff has sold his 4/16 share to the defendants 3 to 6 and therefore, he has no right of any share or interest in the theatre or in the property. The site was purchased by four persons in their individual capacity and not as partners. The theatre was leased to Liberty and Co. as per lease deed dated 15. 1954 by all the four co-owners in their individual capacity. The averment that plaintiff has been maintaining regular accounts of the partnership firm was denied. There was no question of settlement of accounts as there was no partnership at all. The theatre was leased to Liberty and Co. as per lease deed dated 15. 1954 by all the four co-owners in their individual capacity. The averment that plaintiff has been maintaining regular accounts of the partnership firm was denied. There was no question of settlement of accounts as there was no partnership at all. There was also no question of dissolution of a non-existent firm. The first defendant has alternatively contended that even assuming that there was a partnership, the firm was dissolved by the death of Kader Badsha Saheb and Narayanasami Gounder and therefore, the suit filed for rendition of accounts after more than 12 years of the death of partners was barred by limitation. Accordingly, tenth defendant has prayed for dismissal of the suit. 8. The following issues were framed for consideration: (a) Whether the plaintiff is entitled to dissolution of partnership? (b) Whether the plaintiff is entitled to accounting? (c) Whether the plaintiff is entitled to any share in the partnership? If so to what extent? (d) Whether the plaintiff has no title to the suit property? (e) Whether the theatre building was constructed by Kadher Batcha and Narayanaswamy Gounder? (f) Whether the plaintiff has made improvements? If so whether he is entitled to any amounts towards the said improvements? (g) Whether the suit is barred by limitation? (h) Whether the suit is not maintainable? (i) Whether the value of the suit for purposes of Court fees and jurisdiction is not correct? (j) To what relief? (k) Whether the partnership alleged by the plaintiff is true and binding on the defendants? 9. The Plaintiff was examined as P.W.1 and Exhibits A-1 to A-20 were marked on his side. The first defendant was examined as D.W.1 on the side of the defendants and Exhibits B-1 to B-25 were marked. Exhibit B-19 was a document executed between the plaintiff and his alleged partners on the one hand and a company located at Bangalore on the other hand for the purpose of letting out the theatre. In the said document, parties were described as landlords and not as partners. The license obtained in respect of cinema theatre was also not in the name of partnership but only in the name of individuals. The property was sold by the plaintiff to the defendants 3 to 7 without the consent of the other partners. In the said document, parties were described as landlords and not as partners. The license obtained in respect of cinema theatre was also not in the name of partnership but only in the name of individuals. The property was sold by the plaintiff to the defendants 3 to 7 without the consent of the other partners. On the basis of the averments as contained in the plaint and in the light of the evidence tendered by P.W.1, the trial Court arrived at a factual finding that there was no partnership between the parties so as to enable the plaintiff, to get a decree of dissolution of partnership and for rendition of accounts. 10. The learned Trial Judge also examined the issue as to whether the suit was barred by limitation in the event of coming to a conclusion that there was a valid partnership. It was found that two of the partners have died long back and the suit was filed 12 years after the last death and therefore, the suit was found to be barred by limitation insofar as accounts of dissolved firm was concerned. The learned Trial Judge disbelieved the version given by P.W.1 that there was a partnership constituted between the parties who had purchased the property as per Exhibit A-1. The suit was accordingly dismissed. 11. The judgment and decree dated 211. 1981 is the subject matter of this appeal. Submissions: 12. The learned counsel for the plaintiff contended that the business was conducted only as a partnership firm and the property was also purchased for the said purpose. Evidence also disclosed that the parties were sharing the profits and the accounts of the firm was also maintained by the plaintiff and as such, the learned Trial Judge was not justified in coming to a conclusion that the concern was not a partnership. It was his further contention that the deceased Narayanasami Gounder did not contribute anything towards the purchase of property and as such, his legal heirs were not entitled to claim the entire right in the property. It was his further contention that the deceased Narayanasami Gounder did not contribute anything towards the purchase of property and as such, his legal heirs were not entitled to claim the entire right in the property. The learned counsel further contended that the question as to whether the concern was a partnership or not, is a question of fact which has to be decided taking into account the conduct of the parties and the learned Trial Judge failed to consider the pleadings in the light of the evidence adduced by the plaintiff and as such, the finding is perverse. 13. The learned counsel appearing on behalf of the defendants 7 to 10 contended that no materials much less acceptable materials were produced before the trial Court to show that there was a partnership formed and business was carried on by the parties as a partnership concern!. The learned counsel has taken me through the pleadings as well as evidence of P.W.1 in support of his contention that even according to P.W.1, Pushpa Theatre was not a partnership. The learned counsel also contended that no business was transacted by the firm and there was nothing to show that accounts were maintained in the ordinary course of business and as such, the learned Trial Judge was perfectly correct in his finding that there was no partnership so as to enable the plaintiff to file a suit for dissolution as well as rendition of accounts. 14. In the background of the arguments advanced by the learned counsel on either side, on the pleadings and evidence on record, the following issue arises for consideration in this appeal: "Whether there was a partnership in existence as contended by the plaintiff so as to pass a decree of dissolution and rendition of accounts?" Discussion: 15. The vacant land was purchased by the plaintiff, deceased Khader Badsha Saheb, the first defendant and the predecessor-in-interest of defendants 7 to 10 as per document dated 28. 1950, marked s Exhibit A-1. There was nothing in Exhibit A-1 to show that the property was purchased by the firm. Though in the plaint the plaintiff has stated that the parties have formed a partnership in the name and style of Pushpa Theatre, the said contention was given up during the course of his evidence as P.W.1. In fact, P.W.1 has categorically stated that Pushpa Theatre was not a partnership. Though in the plaint the plaintiff has stated that the parties have formed a partnership in the name and style of Pushpa Theatre, the said contention was given up during the course of his evidence as P.W.1. In fact, P.W.1 has categorically stated that Pushpa Theatre was not a partnership. Admittedly, the agreement was not reduced to writing and as such, the entire burden was on the plaintiff to prove that there was a valid partnership constituted between the parties so as to give a cause of action to him to file a suit for dissolution and rendition of accounts. However, no materials were produced by the plaintiff to substantiate his contention. In fact, the very contention that Pushpa Theatre at Tirupur was a partnership was watered down in view of the subsequent admission made by him to the effect that the alleged partners had no connection with the present Pushpa Theatre. There was no business carried on by the partnership except sharing the monthly rent. Admittedly, the theatre was let out to third parties. Exhibit B-19 was a lease agreement executed between the plaintiff and the other co-owners with a Bangalore Firm and in the said document also, owners of the property was not described as partners but only as co-owners. There was nothing to show in the plaint with respect to the maintenance of accounts of the partnership. The plaintiff has produced certain accounts before the trial Court which was found to be not maintained in the ordinary course of business. Even in his evidence, plaintiff has stated that some of the accounts were omitted to be recorded in the accounts book. Similarly, in the document executed as per Exhibits B-20 to B-23, in favour of the sixth defendant, there was no averment as to whether the property belongs to the partnership. In fact, the said document also proceeds as if the property belongs to the co-owners. 16. Partnership is characterized as a relationship between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Therefore, partnership is a creation of an agreement between the parties. Members of a partnership are in a fiduciary position as the act of any one of the partners would be construed to be the act of the other partners. Therefore, partnership is a creation of an agreement between the parties. Members of a partnership are in a fiduciary position as the act of any one of the partners would be construed to be the act of the other partners. Therefore, there should be materials to show that the concern was a partnership and to arrive at such conclusion, the nature of the agreement, its terms and conditions and other circumstances have to be looked into. Necessarily, the agreement should contain provisions for sharing the profits and losses besides provisions for conduct of business by all the partners or any of them acting for others. The Partnership Act, 1932 contains provisions with regard to constitution of partnership, the binding nature of the transaction of one partner of the firm on its other members, the mutual rights and liabilities of the partners, the property of the firm, the liability of the firm and matters relating to dissolution and settlement of accounts. 17. In Sanitiranjan Das Gupta v. M/s. Dasuram Murzamull AIR 1973 SC 48 : (1973) 3 SCC 4631 the issue before the Supreme Court was as to whether there was sufficient evidence to warrant a conclusion that the parties to the civil appeal had entered into an agreement of partnership. The evidence on record revealed the following facts: (a) That there was no written agreement of partnership, and no record was kept regarding its terms and conditions. (b) That no accounts of the partnership business were maintained. (c) That no account of partnership was opened with any bank. (d) That no written intimation was conveyed to the Dy. Director of Procurement. (e) That the plaintiff had agreed to charge very low rates for milling the defendants paddy. 18. The Supreme Court observed that those materials were not sufficient for coming to the conclusion that the parties had entered into a contract of partnership. 19. The issue before the Supreme Court in Champaran Cane Concerned (Dissolved) v. State of Bihar and Another. (e) That the plaintiff had agreed to charge very low rates for milling the defendants paddy. 18. The Supreme Court observed that those materials were not sufficient for coming to the conclusion that the parties had entered into a contract of partnership. 19. The issue before the Supreme Court in Champaran Cane Concerned (Dissolved) v. State of Bihar and Another. AIR 1963 SC 1737 was as to whether the concern involved in the said matter was a partnership or a co-ownership, in the said factual background, Supreme Court indicated the difference between co-ownership and partnership thus: "Two co-owners may appoint a common manager for facility of cultivation and management without entering into a partnership and the fact that the profits or even the losses are distributed in accordance with the shares of the two owners does not necessarily establish a partnership within the meaning of the Partnership Act, 1932. In Lindley On Partnership (Twelfth Edn. p. 57) the main differences between co-ownership and co-partnership have been compared. One of the principal differences is that co-ownership is not necessarily the result of agreement, whereas partnership is. In the cases before us there is nothing in the record to show that there was any agreement between the two proprietors to form a partnership firm. The second difference is that co-ownership does not necessarily involve community of profit or of loss, but partnership does. In the cases before us there is a finding that there is community of profit. A third difference is that one co-owner can without the consent of the other, transfer his interest etc. to a stranger. A partner cannot do this. About this point there is no evidence nor any finding that the two proprietors Padampat Singhania and Bishundayal Jhunjhunwala could not transfer their interests in the concern without the consent of each other. The greatest difficulty which faces the respondent in the present cases is that it cannot point to any fact or circumstance from which it can be inferred that one proprietor was the agent, real or implied, of the other. In a partnership each partner acts for all. In a co-ownership one co-owner is not as such the agent, real or implied, of the other. In a partnership each partner acts for all. In a co-ownership one co-owner is not as such the agent, real or implied, of the other. There is a complete absence of any fact or circumstance establishing a relation of agency between the two proprietors in the present case; nor have the taxing authorities come to any finding that there was such a relation". 20. In M.P. Davis v. Commissioner of Agricultural Income tax AIR 1959 SC 719 , the appellant before the Supreme Court was described to be a partnership concern. However, it was found that the agreement does not contain any decisive term to show that the relationship created by deed was one of partnership. On a conjoint reading of the terms and taking into account all the circumstances of the case, especially the conduct of the parties, the Supreme Court held that it cannot be said that it was intended to bring out a relationship of partnership even though there was a partnership deed produced by the parties. 21. In the case on hand, there was no written partnership. The property was purchased by the parties not in their capacity as partners. It was purchased by four individuals contributing their personal funds. They were always treated as landlords. There was no accounts maintained by the firm in its ordinary course of business. Plaintiff has produced incomplete accounts which was not kept in the ordinary course of business and as such, the same was not believed by the trial Court. On a perusal of the accounts, the trial Court found that it was not intended to be the accounts of the partnership firm. In the document of lease executed for letting out the property to conduct the cinema theatre, again, parties have described themselves as landlords. In fact, they have not conducted any other business than letting out the cinema theatre. Therefore, the relationship was only co-ownership in nature and it was not a partnership within the meaning of the Partnership Act. In fact, P.W.1 has stated that there was no firm name for the partnership concern. Similarly, in the document of assignment executed by him in favour of the sixth defendant, again, there was no mention that he was having such and such share in the partnership and he was selling only a part of his share in the firm. 22. In fact, P.W.1 has stated that there was no firm name for the partnership concern. Similarly, in the document of assignment executed by him in favour of the sixth defendant, again, there was no mention that he was having such and such share in the partnership and he was selling only a part of his share in the firm. 22. The learned counsel for the plaintiff placed reliance on a decision of the Division Bench of this Court in Meenakshi Achi and Another v. P.S.M. Subramanian Chettiar and Others AIR 1947 Mad 8 wherein it was held thus: In determining whether a particular group of persons constitutes a partnership regard is to be had to the real relation between the parties as shown by all relevant facts taken together. The question whether a particular group of person constitutes a partnership or not, is often a difficult one to decide. No general rule can be laid down in this connection. No doubt sharing of profits will be an important criterion but as laid down by the House of Lords in Cox v. Hickman, (1860) 8 HLC 268 (K), it is not conclusive. Taking part in the conduct of the business is another important element to be considered though with a similar qualification. This can be shown by books of account, by testimony of clerks, agents and other persons, and letters and admissions and in short by any of the modes by which facts can be established. The books of accounts will usually give a good indication as to whether the parties are partners or not. The reason is that partnership accounts are generally maintained in different way than is the case where one or more of the parties are lenders. Even this however is not infallible guide. As Section 6 says all the relevant facts must be scrutinized in each case in order to determine whether a particular set of persons are partners or not". Why it was not a partnership: 23. Even this however is not infallible guide. As Section 6 says all the relevant facts must be scrutinized in each case in order to determine whether a particular set of persons are partners or not". Why it was not a partnership: 23. The following factors would show that the plaintiff has not established the fact that there was an agreement between the parties to constitute a partnership: (a) There was nothing stated in the plaint or in the evidence of P.W.1 that the partnership commenced on a particular day; (b) There was nothing on record to show the terms and conditions of the partnership; (c) Either in the plaint or in the evidence of P.W.1, plaintiff has not stated about the manner of division of profit and loss between the parties; (d) The arrangement made between the partners with regard to the management of the partnership business was also not disclosed; (e) The property purchased by the parties as per Exhibit A-1 was not in the name of the partnership. It was in the individual name of the parties; (f) Plaintiff in his evidence as P.W.1 deposed that Pushpa Theatre was not a partnership, though in the plaint it was his case that the name of the partnership was Pushpa Theatre; (g) Plaintiff has sold his share without the consent of the other parties; (h) The partnership has not maintained accounts in the ordinary course of business of the partnership. 24. The learned Trial Judge considered the entire evidence in the light of the pleadings and arrived at a factual conclusion that the plaintiff has failed to prove that there was a partnership in existence between the parties. The course of conduct of the parties were also not suggestive that there was a partnership between them. In fact, the entire transaction proceeded as if the arrangement was only a co-ownership and the property was considered at all point of time, as co-ownership property and not as a partnership property. Therefore, I am of the view that the plaintiff miserably failed to prove that there was a partnership agreement between the parties so as to enable him to get a decree of dissolution of partnership and rendition of accounts. Therefore, I am of the view that the plaintiff miserably failed to prove that there was a partnership agreement between the parties so as to enable him to get a decree of dissolution of partnership and rendition of accounts. Since I am of the view that there was no partnership at all, there is no need to consider the question as to whether the suit filed by the plaintiff for rendition of accounts of the dissolved firm was within the period of limitation. 25. In the facts and circumstances of the case, the only possible conclusion is that the property purchased by the plaintiff along with other parties was only a co-ownership property and the transaction has no semblance of partnership. Therefore, I do not see any reason to interfere – with the judgment and decree of the learned Trial Judge. 26. In the result, the judgment and decree dated 211. 1981 in O.S.No.69 of 1981 on the file of the Subordinate Judge, Tirupur is confirmed. Accordingly, the appeal is dismissed. No costs.