Present : De Sampayo J. and Schneider A.J.

MOHAMED v.  WARIND.

52- D. C. Colombo, 47,478.

Partnership-Action by plaintiff for declaration that he is partner- Writing not signed by plaintiff, but signed by defendant-Con­tinuance of business after expiration of term-Is new writing necessary t-Assignment of interest of one partner-Is writing necessary 1

The plaintiff brought this action alleging that he and the defend­ant on August 5, 1909, agreed to carry on business in partnership, and that the defendant since February 8, 1915. refused to acknowl­edge the plaintiff as his partner, and appropriated to himself the capital and stock in trade of the said business to the plaintiff* loss, and he prayed for a declaration of his rights as partner,  for dissolution of the partnership and realization of the assets, and for, a partnership account. The defendant denied the alleged agreement, and stated that if there was such an agreement, the partnership was dissolved prior to the acts complained of against him. He further pleaded that if the plaintiff at any time had any interest maintainable at law in the said business, he made over the same to the defendant for good consideration.

Held, that though the writing (see. judgment) relied on as consti­tuting the agreement of partnership was not signed by the plaintiff, but only by the defendant, that plaintiff was entitled to rely on it for establishing a partnership as against the defendant.

The partnership agreement provided that " the business shall be carried on even after the expiration of this deed (five years) if we agree. "

Held, that this amounted to an agreement that the partner­ship shall be continued if the members do not wind up the business at the expiration of the period of five years, and that no further writing was required if they continued to carry on the business.

Ramen Chetty v. Vyraven Chetty [1 (1916) 2 C. W. R. 81.] distinguished.

The plaintiff in 1916 assigned his share in the partnership to the defendant, but no deed of assignment or other writing was executed.

Held, that the assignment was valid, though there was no writing.

" His (partner's) interest is rather in the nature of a chose in action, the transfer of which under our law is not required to be in writing. "

THE facts appear from the judgment.

Bawa, K. C. (with him A. St. V. Jayawardene), for  plaintiff, appellant.

Hayley, for defendant, respondent.

Cur. adv. vult.

September 15, 1919. De Sampayo J.-

The parties are Indian Muhammadans, who have resided and traded in Colombo. The plaintiff brought this action alleging that he and the defendant on August 5, 1909, agreed to carry on business in partnership in piece goods under the name and style of " Abdulla Hadjie Mohamed & Co., " each being entitled to eight shares out of a total of 161/2 shares, and the remaining half share to go to the poor (that is to say, devoted to charity), and that since February 8, 1915, the defendant, who solely managed the said business, refused to acknowledge the plaintiff as his partner, and appropriated to himself the capital and stock in trade of the said business to the plaintiff's loss and damage of Rs. 70,000, and he prayed for a declaration of his rights as partner, for dissolution of the partnership and realization of assets, and for a partnership account. The defendant formally denied the alleged agreement, and stated that if there was such an agreement, the partnership was dissolved prior to the acts com­plained of against him. He further pleaded that if the plaintiff at any time had any interest maintainable at law in the said business, he made over the same to the defendant for good consideration.

The District Judge, in the first place, held that there was no writing as required by section 21, sub-section (4), of the Ordinance No. 7 of 1840, for establishing the partnership, and therefore the plaintiff's claim could not be maintained.