A contingent agreement for partnership, which is subject to a condition that is not fulfilled, does not result in the formation of a partnership, and the parties can recover any money advanced under such an agreement.

( 1 ) THIS is a defendants second appeal in a suit for recovery of Rs. 2,700/ -. Of the two defendants only the second defendant who is the appellant in this Court contested the suit. The suit was decreed for recovery of Rs. 2,300/- by trial court with proportionate costs and that decree has been confirmed by the lower appellate Court.

( 2 ) IN this case the fact that the amount decreed was paid by the plaintiff to the defendant was not disputed. The dispute related to the terms and the purpose for which the money was advanced. The iurisdiction of the court was also disputed on the ground that the agreement between the parties was completed outside the limits of the territorial jurisdiction of the court.

( 3 ) THE two questions raised before the lower appellate Court were; firstly; whether the agreement between the parties took place at Shankaragarh or it took place at Devendra Nagar. and whether the amounts were advanced at Shankargarh or at Naugaon and Devendranagar; and secondly whether the agreement between the parties amounted to an agreement of partnership and it actually resulted in partnership and the frame of the suit is bad and it is barred by the provisions of the Partnership Act. On an appraisal of the evidence on the record, the lower appellate court held that the agreement between the parties was arrived at, and the amounts were also advanced at Shankargarh within the District of Allahabad and consequently the court at Allahabad had the jurisdiction to entertain the suit. So far as this finding is concerned, it is concluded by facts found concurrently by the two courts below on an appraisal of the evidence on the record, and is not open to challenge on second appeal.

( 4 ) ON the second point, the lower appellate court found that the agreement between the parties was a contingent agreement and that it was to carry on Theka business after the tender was accepted, and that

"it did not result in partnership because of the rejection of the tender, and so the plaintiff being entitled to recover the amount of the advance made by the plaintiff under section 65 of the Contract Act, was entitled to bring the suit in the manner as he did. "

( 5 ) MR. Sankatha Rai, learned counsel for the appellant urged before me that the plaintiffs case was not that the terms of the agreement on which the amount was advanced by the plaintiff to the contesting defendant did not amount to a completed partnership but that the partnership was in respect of the work of Devendra Nagar Bandh only and that being so the lower appellate Court has carved out a new case for the plaintiff by holding that the contract on which the amount was advanced was a mere contingent contract. Mr. Sankatha Rai reinforced his submission by placing before me the statement of the plaintiff under Order 10 Rule 2 of the Code of Civil procedure which reads as under:-

"he has advanced only Rs. 2,410/- to the defendant in the partnership business only for devendra Nagar Dam. He did not advance any other sum for any other partnership business. In fact there was no partnership for any other business at all. The defendants have taken loan of Rs. 1782 for different purpose in their own accounts. "

Learned counsel stated that the above statement of the plaintiff clearly showed that according to the plaintiffs own case there was a partnership between him and the contesting defendant for the work of Devendra Nagar Dam and the amount in question was advanced in pursuance of that partnership. According to the learned counsel, that being so, the suit must fail, for the partnership was unregistered and such a suit as the present one would be barred by Section 69 of the Indian partnership Act, 1932.

( 6 ) MR. Sankatha Rai, learned counsel for the appellant, also invited my attention to the finding of the trial court on this point, which was covered by issues Nos. 3 and 4. The finding of the trial court on issue No. 3 was that the agreement between the parties regarding