JUDGMENT

1. This appeal arises out of an administration suit brought by one of the respondents, Babu Anand Behari Lal, praying that an account be taken of the moveable and immovable property of the late Mr. D.C.H. Dinshaw and that the property be administered under the decree of the Court. The Civil Judge, Mohanlalganj, who tried the suit, held inter alia that certain items of property specified in an application made by the Official Liquidator of Dinshaw & Co. (Bankers) Ltd., (in liquidation) did not form part of the assets left by Mr. Dinshaw. It is against that decision that this appeal has been preferred by the Official. Liquidator of Dinshaw & Co. The administration suit was instituted on 15th December 1935. Mr. Dinshaw died on 7th April 1935. On 21st November 1936, the Official Liquidator of Messrs. Dinshaw & Co. applied to be impleaded as a party to the suit. He claimed that certain property was included in the assets of Mr. Dinshaw, and the property with which we are concerned in the present case is the Elphinstone Picture Palace. His case was that. Mr. Dinshaw owned a half share in it. It appears: that on 12th October 1932, Mr. Dinshaw entered into a partnership with B. Anand Behari Lal for the purpose of purchasing the Elphinstone Picture Palace. The memorandum of partnership (Ex. 7) of this date shows that they were to be partners in equal shares and liable to contribute equally towards the purchase money, including incidental and daily expenses. The profits of the business were to be divided in proportion to the amount actually invested by each partner in the business from time to time.

2. Shortly after this agreement a sale deed was executed by Madan Theatres Ltd., on 19th November 1932, in favour of D.C.H. Dinshaw and Anand Behari Lal (Ex. Q-23). The sale deed shows that the Directors of Madan Theatres, Ltd. agreed to sell as a running concern the business known as the Elphinstone Picture Palace, with lands, buildings, fittings, etc., free of all encumbrances, including a mortgage charge secured by a deed dated 31st July 1931, in favour of Messrs. Dinshaw & Co. (Bankers) Ltd., Lucknow, for the sum of Rs. 1,50,000. Of the sale price Us. 75,000 was paid by cheques, while the remaining Rs. 75,000 was left with the vendees for payment to Messrs. Dinshaw & Co. (Bankers) Ltd., Lucknow, in order to release the property from the mortgage charge secured by the deed of 31st July 1931. The evidence shows that payment of Rs. 75,000 was. made by Anand Behari Lal, while Dinshaw accepted liability for payment of the other moiety to Messrs. Dinshaw & Co., Ltd. in whose Bank he had an interest. It is admitted that this liability was never discharged by Mr. Dinshaw. On 11th March 1933, he wrote to Anand Behari Lal the letter Ex. 6 which reads as follows : "Now that the Elphinstone Picture Palace sale deed is duly registered it is essential that rupees seventy-five thousand be paid to Dinshaw & Co. Banker for the release of the property from mortgage, dated 31st July 1931. You did already arrange for Rs. 75,000 paid to Madan & Co. Theatres Calcutta and as it is not convenient to me to manage this sum I request you to pay up this sum of Rs. 75,000 also to Dinshaw & Co. In a short time I will commence contributing towards my share in the business.

3. It is not disputed that payment was made by Anand Behari Lal accordingly. In a letter dated 21st November 1934, (Ex. Q-27) he wrote to Mr. Dinshaw mentioning this and adding that Mr. Dinshaw had not yet paid back even a single rupee. He asked him to be good enough to pay up the amount and settle the matter. Or, he added, "if it be inconvenient to do so you may please transfer your share in the Elphinstone Picture Palace, Lucknow to me." It is suggested that there was an agreement that the latter alternative should be adopted, and there is on the record a draft of a sale deed (Ex. 16) which is to the effect that as Dinshaw had not been able to pay back any part of the sum of Rs. 75,000 pai