The formation of a partnership in a toddy shop constituted a transfer of the privilege of selling toddy, as prohibited by the terms of the license.

King, J.

1. The appellant in this appeal was the licensee of the toddy shop at Minnal for the year beginning 1st October 1932. The auction at which defendants bid was accepted was on 8th August 1932. On 31st August appellant entered into an agreement with the respondent which is embodied in Ex. A. This is a brief document called a "partition" and apart from a penalty clause with which I am not now concerned, its terms are that appellant should bear one-half of the expenses of running the business and that the sale proceeds should be divided between appellant and respondent every month. Respondent alleging that appellant had not paid him his half share of the profits, filed a suit for accounts. Appellant contended, amongst other things, that the agreement was illegal and could not therefore be enforced. The District Munsif of Sholinghur accepted this contention; the Subordinate Judge of Chittoor rejected it and remanded the suit for disposal after taking accounts. Against that order of remand the present appeal has been filed.

2. The decision of the appeal depends upon the determination of the question whether the privilege of the supply and sale of toddy has or has not been transferred by the appellant. Such a transfer is admittedly prohibited by the terms of the license. The learned Subordinate Judge holds that there is no such transfer on two grounds : (i) because appellant and respondent did not enter into any partnership; and (ii) because their agreement was anterior to the actual issue of the license. It is difficult to understand how the Subordinate Judge arrived at the first of these conclusions. The issues framed by the District Munsif assume that the relation between appellant and respondent was a partnership. They certainly agreed in the words of the definition (Contract Act, Section 239) to "combine their property, labour or skill" in the business and to "share its profits." I find that the agreement constituted appellant and respondent partners.

3. The question then arises whether by the constitution of this partnership there was any transfer of the privilege of selling toddy in this particular shop. The Subordinate Judge holds in effect that that privilege comes into existence only with the grant of the license and therefore on the date of the agreement there was nothing to transfer. It is argued for the appellant on the other hand that the privilege was acquired as soon as appellants bid was accepted. If that be so, it is clear that appellant has transferred that privilege to the partnership. Though the issue was not perhaps raised in this direct form it seems to me that the decision of the Full Bench in Ramanaidu v. Seetharamayya (35) 22 A.I.R. 1935 Mad. 440 is conclusive on this point in favour of the appellant. That was a case of a partnership constituted after the date of the auction and before the date of the issue of license. The judgment sets out these dates on page 733 and states:

The money was therefore lent to the partnership after defendant 1 had become the successful bidder at the auction and was the person in whose name the license would be issued.

4. Again on page 734 it is stated:

The partnership was formed after defendant 1 had become the successful bidder. The license would therefore be issued in his name.

5. These passages seem to me to show that the learned Judges in that case took it for granted that the issue of a license was something following automatically upon the acceptance of a bid and that it is the acceptance of the bid which confers the privilege. The decision, I think, can be explained on no other ground. The learned Subordinate Judge, however, has preferred to rely upon two later decisions each that of a Single Judge. The first of these, Satyala Sanyasi v. Bhogavalli Sanyasi (35) 22 A.I.R. 1935 Mad. 895, is obviously of no assistance to the respondent. That is a clear case of a partnership formed before the auction and in giving his decision Venkatasubba Rao J., expressly distingu