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TMI Blog1934 (2) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 passed on 28th April in which it was stated that all the partners were interested i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 side. Section 253(2), Contract Act, lays down that all partners are entitled to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 partner advances 1,000 for speculation in cotton, and winds up like this: If it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge then proceeds to say that it must be logically carried out to its legitimate extent and where the capital is lost the partners should bear the loss. In some respects it resembles the case before Sir W.M. James, V.C. The principle above stated by us is exactly the same as in these two cases and we think that it is embodied in Section 253, Contract Act. That being so, it is for defendants 2 and 3 to adduce evidence to show that while they participated in the profits they were not liable for any share of the loss. It is so peculiar a contract and so much out of the ordinary partnerships that if no such contract is proved the general presumption that profits and losses are to be shared in equal or similar shares would apply and the plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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