Present: Schneider J. and Jayewardene A.J.

IDROOS et al. v. SHERIFF.

110-D. C. Colombo, 12,051.

    Partnership-Agreement for establishing partnership where capital exceeds Rs. 1,000 - Absence of writing - Reference to partnership in documents-Ordinance No. 7 of 1840, s. 21 (4).

A partnership cannot be established in terms of section 21 (4) of the Ordinance of Frauds and Perjuries by means of statements, relative to the alleged partnership, found in documents.

A third person may offer evidence of such statements to prove the existence of a partnership between others.

ACTION by the plaintiffs as heirs of one Idroos for declaration of title to certain shop goods, stock in trade, &c, of the value of Rs. 21,000 lying at No. 1, Hospital street, Colombo, against the defendant, Sheriff. The defendant pleaded that Idroos and he carried on business in partnership at the place, and that he was ' entitled to a half share of the business, which he valued at Rs. 22,000. The learned District Judge held that, in the absence of an agreement in writing, the defendant could not establish the alleged partnership, and gave judgment for the plaintiffs. The defendant appealed, and it was contended for him that the documents D 3, D 4, and D 7, in which he was described as a partner by Idroos, were sufficient to comply with the requirements of section 21 (4) of the Ordinance of Frauds and Perjuries, No. 7 of 1840.

Allan Drieberg, K.C. (with him N. K. Choksy), for defendant, appellant.-The notification to the Registrar of Business Names (D 3) was signed by all the three partners as such. So was the notification of change (D 7). In this Idroos and Sheriff were given as the sole partners. It was tantamount to a notice to all to whom it may concern that they were partners and trading as such.

Section 5 of the Business Names Ordinance shows that it was not compulsory on the defendant to have signed the notifications.

The proviso shows that the section intended to give the fullest effect to the declaration when signed by all the partners.

The District Judge requires that all the terms should be embodied in & document to comply with the terms of section 21 of the Ordinance. Suppose a proper notarial document had been drawn up without a statement of the shares of the partners. If the Judge is correct, even such a document would not comply with the requirements of the section. The decisions on the Sale of Goods Act

requiring the " price " to be stated, where agreed upon, can have no application to partnerships, because there can be partnerships without any reference, to, duration, capital, or the respective shares of the partners.

[SCHNEIDER J- you can only come in under the word " agreement " in section 21. Have you such an " agreement" signed by the partners ?]

The only essential of an agreement of partnership is the mutual promise of the members of it to be partners. Even any capital is not required Lindley on Partnership 1905 Edition, p. 50). No provision for the sharing of profits is necessary, as the law implies, in its absence, an equal division (Lindley on Partnership, p. 384). Even any definite duration is not required. All that is required is a mutual agreement to trade as partners.

Hayley (with him A. R. H. Canekeratna), for plaintiffs, respondent.-Section 21 distinctly requires "it," that is, the promise, contract, or agreement itself, not a note or memorandum of it, to be in writing.

Section 4 of the Sale of Goods Ordinance, No. 11 of 1896, follows section 4 of the English Statute of Frauds substantially. But section 21 of the Frauds and Perjuries Ordinance, 1840, is expressed differently.

Appellant's real endeavour is only to set up an estoppel by document. The Business Names Ordinance was only intended to make a provision for ascertaining whether aliens are partners. The appellant's contention, if correct, would mean that the provisions of the Business Names Ordin