1934 (2) TMI 21

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....9, 8/29 and 5/29. It is unnecessary to notice the written statement of defendant 1. Defendants 2 and 3 filed a joint written statement in which they admitted that there was a partnership of which they were members but denied that they were liable to bear any portion of the losses. At the first hearing two issues were framed : "(1) What are the terms of the partnership agreement between the plaintiff and the defendants? (2) Are defendants 2 and 3 partners, and if so are they not liable for the losses of the partnership? 2. On 19th April 1932, the matter was referred to the Official Referee for taking accounts. The order expressly reserved the question of whether some partners are or are not liable for losses. A preliminary decree was pass....

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....ment being put forward, we wanted to ascertain what exactly happened at the time of the final hearing. We accordingly requested Mr. Srinivasa Ayyangar to state what happened before the learned Judge. He told us that he said that he would not press the objections and nothing else. He admitted that he never offered to examine his witnesses. Mr. Radhakrishnayya who now appears for the appellant argues that even if this were so the burden of proof is on the plaintiff to prove the case set up by him in his plaint and if he does not prove his case he ought to fail even if the defendant does not examine his witnesses. The question thus, reduces itself to one of burden of proof in other words, who should fail if No. evidence is offered on either si....

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....lasses covers the case of a partner advancing a larger capital and the capital being lost. Sir W.M. James, V.C., observed: Whether moneys are brought in originally as capital or advanced subsequently, or paid by one partner at the winding up, is in my judgment, wholly immaterial. In the absence of stipulation to the contrary the community of profit involves like community of loss. 5. Though the agreement in that case covered only the actual loss in the carrying out of the partnership and did not cover excess advance of capital followed by loss of capital, still the principle that the community of profit involves like community of loss was applied by the learned Judge. The learned Judge then gives an arithmetical example where one part....