Judgement

Appeal (No. 71 of 1946) from a judgment and decree of the High Court (August 27, 1942) which substantially varied a judgment and decree of the Court of the Subordinate Judge at Asansol (November 24, 1939) in a mortgage suit brought by the present appellant as mortgagee.

The following facts, material to the issues now calling for determination, are taken from the judgment of the Judicial Committee. On November 15, 1931, Sheikh Sukur Mohammed, the first named respondent (hereinafter called the mortgagor), obtained a lease of some three-fifths of an acre in the town of Asansol for three years at a rent of Rs. 12 per month and with a right of renewal. The mortgagor proceeded to construct a cinema on that plot and, falling short of funds, took into partnership Oscar Gerald Birt and Pramatha Nath Mukherjee (hereinafter called the new partners) who were, it appeared, the predecessors in title of the respondents other than the mortgagor. That transaction was effected by an unregistered agreement in writing of June 8, 1932, which provided (a) for the carrying on of the cinema business in partnership by the mortgagor and the new partners, with the former having an eight annas inter