Commissioner of Income-Tax, Punjab v. M/S. Chander Bhan Harbhajan Lal

The Judgment of Sarkar and Bachawat JJ. was delivered by Bachawat J. Mudholkar J, delivered a dissenting Opinion.

Bachawat, J. This appeal by special leave is from an order of the Punjab High Court rejecting an application by the Com-missioner of Income-tax Punjab under s. 66(2) of the Ind;an Income-tax Act, 1922. On April 21, 1953, 14 partners of the I-• firm of Messrs. Chander Bhan Harbhajan Lal of Rupar (herein-after referred to as the assessee fim1) constituted und~r the instrument of partner,hip dated December 5, 1952, applied to the Income-tax Officer. Project Circle, Ambala for registration of the firm under s. 26-A of the Indian Income-tax Act. It may be mentioned at this stage that there was arwther firm of the name of Chander Bhan & Co., of Ferozcpore (hereinafter referred to as the ferozepore firm), consisting of 8 partners and· constituted under a deed dated June 14. 1952, which provided inter alia:

"If any one of the executants enters into business individually or along with another person all the partners of the firm shall be entitled to the profit and liable for the loss, accming from that business accord-ing to the shares hereinbefore mentioned."

One Gosain Chanucr Bhan was a partner of both the assessee-firm and the Fcrozeporc firm. In course of proceedings arising out of the application for registration of the assessee firm under. s. 26-A, Harbhajan Lal, one of its partners, stated on January 30. 1954:

"I Harbhajan Lal son of Shri Ram Chand of Rupar solemnly declare that fim1 M's. Chander Bhan Har-bhajan °Lal con,'sted of 14 p~rtners as mentioned in the return and deed of partnership. Gosain Chander Bhan was partner not in his individual capacity but on behalf of the firm M/s. Gosain Chander Bhan and Company Ferozepur having about six partners .... Other partners are partners in their individual capacity." It seems that other partners of the assessee firn1 made similar statement; on February 27, 1954.

The capital of the assessee firm was supplied by Gosain Chander Bhan. It appears that Gosain Chander Bhan had taken the capital from the Ferozepore firm, and the amount was shown as an item in his accounts with the Ferozcpor.e fim1.

C.1.T. v. M/S. c. B. H. LAL (Bachawat, J.) 17 9 By his order dated February 27, 1954, the Income-tax Officer rejected the application under s. 26-A. He held that ( 1) <I the deed dated December 5, 1952 did not specify the date of the )..__ constitution of the assessee firm; ( 2) some of the parties to the t deed having no experience in the bminess of the fiI?1 were not

really partners therein, and the number of partners m the firm had been artificially increased with a view to reduce the taxable liability; ( 3) the firm was not genuine, as it had no banking l account, did not possess the income-tax clearance certificate, did

not notify its constitution to the P.W.D., and payments were received from the P.W.D. in the name of Harbhajan Lal. On appeal, the Appellate Assistant Commissioner, Ambala Branch, set aside all thes.e findings of the Income-tax Officer. The correct-ness of the decision of the Appellate Assistant Commissioner on these points is no longer challenged.

The Income-tax Officer also held that though the deed dated December 5, 1952 stated that Gosain Chander Bhan was the partner having 6/ 16th share, in reality the Ferozepore firm was the partner of the assessee firm having 6/ 16th share therein and consequently. the assessee firm was illegally constituted, because ( 1 ) the F erozepore fim1 could not legally be a partner in the assessec fi.m1; (2) the total number of partners of the assessee firm was 21; and ( 3) moreover, the individual shares of the eight partners of the Ferozepore firm were not specified in the deed dat.~d December 5, 1952. On these findings, the Income-tax Officer rejected the application under s. 26-A. On appeal, the Appellate Assistant Commiss;oner set aside these findings, and held that Gosain Chander Bhan was the partner of the assessee firm in his individual capacitv and not as representative of and on behalf of all the partners of the Ferozepore Ii.rm. He held that Gosain Chander Bhan had merely agre.~d to share his profits and losses in the assessee firm with his other partners of the Feroze-pore firm. that such an agreement did not make the other part-ners of the firm, partners in the assessee firm, and the effect of the agreement was to comtitute a sub-partnership only. On further appeal, the Income-tax Appellate Tribunal, Delhi Branch,. upheld these find;ngs of the Appellate Assistant Commissioner,. y and held that those findings were supported by the decisions in

Commissioner of lncomeJtax v. Messrs. Agardih Colliery (1) and Commissioner of Income-tax v. Laxmi Trading Company (2) . The Commissioner of Income-tax, Punjab then applied to the· Appellate Tribunal under s. 66 ( 1) of the Indian Income-tax Act

(1) A.l.R. 1955 Patna 225. (2) [1953] 24 LT.R. t73.

Counsel for the appellant contended that all the partners of the Ferozepore firm were the partners in the assessee firm, having regard to ( 1) the fact that the capital of the assessee firm was secured by Gosain Chander Bhan from the Ferozepore firm, (2) the clause in the deed of partnership dated June 14, 1gs2 under which all the partners of the Ferozepore firm were entitled to the profit and liable for the loss in respect of the share of Gosain Chander Bhan in the assessee firm, and (3) the statement of Har-bhajan Lal and other partners of the assessee firm that Gosain Chander Bhan was a partner in the assessee firm not in his indivi-dual capacity but on behalf of the Ferozepore firm. We are unable to accept this contention. The real question before us is whether any substantial question of law arises out of the order of the Tribunal. We think that no such question arises. The deed dated December 5, 1952 clearly stated that Gosaiii Chander Bhan and 13 other parties to the deed were the partners of the assessee firm. On the face of the deed, it does not appear that Gosain Chander Bhan was a partner in a representative capacity on behalf of the Ferozepore firm, or that the Ferozepore firm was the partner in the assessee firm. On the materials on the record, the Appellate Tribunal was entitled to come to the conclusion that Gosain Chander Bhan and not the Ferozepore firm was the partner in the assessee finn.

The capital of the assessee firm was supplied by Gosain Chander Bhan. Gosain Chander Bhan in his turn had taken the amount of the capltal from the Ferozepore ·firm, but there is no evidence to show that he took the money otherwise than in his individual capacity. The clause in the partnership deed consti-tuting the Ferozepore firm to the effect that all the partners of F the Ferozepore firm are entitled to the profits and liable for the

losses accrued in the share of Gosain Chander Bhan in the assessee firm may show that there is a partnership between Gosain Chander Bhan and other partners of the Ferozepore firm in respect of the share of Gosain Chander Bhan in the profits and losses of the assessee firm. This partnership, if any, between the members of G the Fero7.epore finn does not make the Ferozepore firm a partner

in the assessee firm. The Ferozepore firm is not a party to the agreement of partnership constituting the assessee firm. Gosain Chander Bhan in his individual capacity could legally be a partner in the assessee firm, and the fact that he secured the capital from the Ferozepore firm, or that he entered into a partnership with the H other members of the Ferozepore firm in respect of his share in

the assessee firm does not show that the Ferozepore firm is a part-ner of the assessee firm, or that the assessoe firm is not validly We did noi enquire into the correctness of counsel's assumption that this passage is an authority for the proposition that there can-not be an agreement of sub-partnership in anticipation of the head partnership coming into existence. But the question whether the relevant clause in the deed dated June 14, 1952 created a sub-partnership in respect of the share of Chander Bhan in the assessee firm having regard to the fact that this deed was executed before the assessee firm came to be constituted is not material for the purpose of the case, and need not be decided. The clau•e regu-lated the relationship of the partners of the Ferozepore firm inter ,e, and created a partnership between them in respect of the share of Gosain Chander Bhan in the assessee firm. Assuming, with0ut deciding that this partnership was not, strictly speaking, a sub-partnersh'p, it does not follow that the partners of the Ferozepore firm became partners in the assessee firm. By reason of this clause vis-a-vis the partners of the Ferozepore firm, Gosain Chander Bhan could be reagrded as their representative in the a<sessee firm; nevertheless, they were strangers to the contract of partnership constituting the assessee firm and did not become partners ther·in. In Commissioner of Income-tax v. Bagyalakshmi & Co.('), Subba Rao, J. observed :

"A contract of partnership has no concern with the obligation of the partners to others in respect of their shares of profit in the partnership. It only regulates the rights and liabilities of the partners. A partner may be the Karla of a joint Hindu family; he may be a trustee; he may enter into a sub-partnership with others; he may under an agreement, express or implied, be the repre-sentative of a group of persons; he may he a benamidar for another. In all such cases he occupies a dual posi-tion. Qua the partnership, he functions in his personal capacity; qua the third parties, in his representative capa-city. The third parties, whom one of the partners repre-sents, cannot enforce their rights against the other part-ners nor the other partners can do so against the· said third parties. Their right is only to a share in the profi•s of their partner-representative in accordance with the terms of the agreement, as the case may be."

Quite plainly, the relevant ·clause in the deed dated June 14. 1952 was not part of the agreement of partnership dated Decem-ber 5, 1952 constituting the assessee firm, and did not affect the right of the partners of the assessee firm, to claim registration of the assessee firm under s. 26-A. It is not possible to say that there arc no materials on the record to support the finding that Gosaia Chander Bhan was a partner of !he asscssee firm in his individual capacity and not as representing the Ferozepore firm. The ques-tion whether there was a sub-partnership between the members of the Ferozepore firm in respect of the share of Gosain Chander ..,4 Bhan is not material because assuming that there was no sub-partnership 1hc members of the Ferozepore firm did not become partners in the assessee firm by virtue of the relevant clause in ·1he deed dated June 14, 1952 or otherwise. We are, therefore, satisfied tlrnl no subs1an1ial question of law <trises oul of lhe order of the Appellate Tribunal.

Counsel for the appellant submitted that as a question of law arose out of the order of the Tribunal, the High Court was bouad to call for a st.ilernent of case. We arc not inclined to accept this contention. Where, as in this case, the question of law is not sub-stantial and the answer to the question is self-evident, the High Court is not bound to require the Tribunal to refer the question. In our opinion. the High Court in the exercise of its discretion under s. 66 (2) rightly rejected the appellant's application.

In the result, the appeal is dismissed with costs.

Mudholkar, J. This is an appeal from a judgment of the High Court of Punjab rejecting a petition made by the Commissioner of Income-tax, Punjab under s. 66(2) of the Indian Income-tax Act, 1922 for calling upon the Income-tax Appellate Tribunal to rticr certain questions of law to the High Court.

The relevant facts are these :

On December 29, 1948 Gosain Chander Bhan and four others entered into a partnership for carrying on the business of contrac-tors in the name of "Gosain Chander Bhan & Co." The partnership was entered into at Ferozepore and Gosain Chander Bhan was a major shareholder in the firm. By a deed of partnership dated June 14, 1952 the firm was re-constituted and three other persons were admitted as partners therein. The old name, however, was continued. One of the terms of the partnership was that if any work was carried on by any one of the partners individually or in part-nership with others, the profits and losses arising out of that work would be divided amongst all the partners in proportion of their shares in the firm. On December 5, 1952 a partnership firm II bearing the name of "Messrs. Chander Bhan Harbhajan Lall" was formed at Rupar. The dead of partnership sets out the names

C.I.T. v. M/S. c. I!. H. LAL (Mudholkar, !.) 185 of 14 persons including Gosain Chander Bhan as partners and the object of the firm was to carry on business similar to that carried on by Gosain Chander Bhan & Co. It may be mentioned that in this firm also Gosain Chander Bhan was the major shareholder. For convenience we would call the firm constituted on June 14, 1952 as the FerozeP,ore firm and the one constituted on December I 5, 1952 as the Rupar firm.

On April 21, 1953 an application was presented by the part-ners of the Rupar firm, accompanied by the deed of partnership dated December 5, 1952 before the Income-tax Officer, Ambala for registration of the firm under s. 26-A of the Act for the assessmst year 1953-54. The Income-tu: Officer examined the partner1 coa-stituting the firm and recorded their statements in order to ascertain the true position with regard to the constitution of the finn. Harbhajan Lal in his statement dated January 30, 1954 and tie other partners in their statements dated February 27, 1954 admitted that Gosain Chander Bhan had entered into the partnei:- ship not in his individual capacity but on behalf of the Ferozepore firm. The Income-tax Officer also found that the funds invested in the Rupar firm in the name of Gosain Chander Bhan were allo provided by the Ferozepore firm. Upon these and some other facts he came to the conclusion that the deed of partnership dated December 5, 1952 did not specify the real partners of the firm and, therefore, the firm cannot be registered. He further came to the conclusion that as in reality all the partners of the Ferozepore firm and not Gosain Chander Bhan alone, were also partners along with 13 other persons in the Rupar firm, the total number of part-ners exceeded 20. Such a partnership being invalid in law the firm could not be registered under s. 26A of the Act. He, therefore, dismissed the application by his order dated February 27, 1954. In appeal his order was, however, reversed by the Appellate A.isi.s-tant Commissioner by his order dated August 12, 1954. The appeal preferred therefrom by the Income-tax Officer before tile Income-tax Appellate Tribunal (Delhi Branch) was dismissed by it by its order dated September 5, 1955. In doing so the Tribunal based itself on the decisions in The Commissioner of Income-tax v. Agardih Colliery Company(') and Commissioner of lncom.e-tax v. Laxmi Trading Co.(") The Commissioner of Income-tax then applied to the Tribunal under s. 66( 1) to refer to the High Court four questions of law. The Tribunal, however, rejected the application on March 5, 1956. The Commissioner thereupon preferred a petition before the High Court under s. 66(2) for

(I) A.I.R. 1955 Patna 225. (2) (1953) 24 I.T.R. 173. L 9 Sup C l/66~13

18,6 SIJPREMB COURT REPORTS (1966] 3 SCR.

directing the Tribunal to refer four questions of Jaw to it. At the hearing, however, only the following two questions were pressed on his behalf :

" ( 1 ) Whether there is any material on the record to support the finding that Gosain Chander Bhan was the real partner of the assessec firm and was not a partner in the representative capacity representing all the partners of Gosain Chander Bhan and Company of Ferozepur?

( 2) Whether the present is a case of sub-partnership to which two cases A.LR. 1935 Patna 225 and ( 1953) 24 I.T.R. 173 referred to in the order of the Tribunal apply?"

The High Court, as already stated, dismissed the application and now the matter is before us by special leave.

Before us the learned Additional Solicitor General, appearing for the department, has raised the following two points :

(I) that there was a question of law which it was

incumbent on the Tribunal to refer to the High Court;

( 2) that both the Tribunal and the High Court pro-

ceeded to decide the question of law on erroneous premises.

The question of law, according to learned Additional Solicitor General, is : "whet!Ler on the facts and circumstances of the case the firm Chander Bhan Harbhajan Lal was registrable under s. 26-A". It must be borne in mind that the question is not whether there was material on record on the basis of which the Tribunal could come to the conclusion that the firm was registrable but whether, upon the facts found it was registrable. In other words, the question is as to what is the cumulative effect of all the facts and not what is the effect of only some of the facts found. The contention of learned Additional Solicitor General is that when a question of Jaw is said to arise the High Court is bound to call for a reference and it is immaterial that the question is settled already.

If in the facts and circumstances of the case a question of :aw arises, there is little doubt that under s. 66 (I) the Tribunal a !xmnd tc-draw up a statement of the case and refer the ques-tion to the High Court. The Tribunal has no discretion in the 11 matter. Where, however, the Tribunal refuses to do so and the High Court is moved under s. 66(2) of the Act, the position

C.I.T. v. M/S. c. B. ii:. LAL (Mudho/kar, !.) 187 becomes different. Section 66 ( 2) confers a discretion on the High Court and if the High Court is of the opinion that though a question of law arises it is not substantial or that it is weli-settled it can reject the petition. What we have, therefore, to ascertain is whether a question of law at all arises in this case and if so whether it is a substantial question of law. In order to ascenain whether a question of law arises it is necessary to ascertain the facts which have been found established by the Income-tax autho-· rities. I will recapitulate the facts found by the Income-tax Officer.

( 1) The original firm Gosain Chauder Bhan & Co., was

formed at Ferozepore on December 29, 1948. (2) Gosain Chand.er Bhan had a major share therein . (3) This firm was dissolved and re-constituted on June

¶141952.

( 4) In the original firm there were only 5 partners

including Gosain Chander Bhan while in the recon-stituted firm there were 8 partners including Gosain Chander Bhan.

( 5) The largest share in the re-constituted partnership

was that of Gosain Chander Bhan.

( 6) The partnership deed of December 5 1952 specified

the names of 14 persons including Gosain Chander Bhan as partners but did not specify the names of all the partners of Gosain Chander Bhan & Co. of Ferozepore.

( 7) The funds invested by Gosain Chander Bhan in the

Rupar firm came out of the funds belonging to the Ferozepore firm.

( 8) Harbhajan Lal and other partners of Rupar firm

admitted that Gosain Chander Bhan was not a part-ner in the Rupar Firm in his individual capacity but t., had joined it on behalf of the Ferozepore firm.

( 9) Tlie business carried on by the Ruper firm is similar

to that carried on by the Ferozepore firm .

None of these findings on questions of fact has been negatived or upset by the Aouellate Assistant Commissioner or by the Tribu-nal. These findings must, therefore, be taken as the basis for ascertaining whether a question of law arises, and if it doe.<i they have to be borne in mind for deciding the question. At this stage l would like to mention that the High Coun committed an ob-vious error in stating in its judgment that the re-ronstituted Ferozepore partnership was formed on June 14, 1954, that is, after ...... the Rupar partnership was formed. This error has obviously led it into a funher error, that is, of coming to the conclusion that tllc Ferozepore partnership was a sub-partnership in relation to , the Rupar pannership. Now, ordinarily there can be a sub-partner-ship only when there is already in existence another partnership. Since in point of fact the Rupar partnership came into existence after the fonnation of tb.e Ferozepore partnership the latter call-not stand in relation to the former as a sub-partnersh;p. The law as stated in Lindley on Partnership at p. 99 is :

"A sub-partnership is as it were, a partnership with-in a partnership : it presupposes the existence of a part-nership to which it is itself subordinate."

The correctness of this statement of law is not assailed before us by either side.

It ia no doubt settled law that where an application for regis-tration of a firm complies with the requirements of s. 26-A and of the rules and it is found that the partnership is not genuine the Income-tax Officer is not bound to admit the firm to registration. But it does not follow from this that for ascertaining whether the requirements of law have been satisfied and for ascertaining whether a firm is genuine or is bogus or that it has no legal exist-ence the Income-tax Officer must confine himself to the deed of partnership. He has power to examine the partners and to require them to adduce evidence for satisfying himself about the genuinc-ncs.q or otherwise of the firm and also for satisfying himself about compliance with the requirements of law. Paragraphs 2 and 3 of the order of the Appellate Assistant Commissioner, however, show that he has treated the recitals in the partnenhip deed of December 5, 1952 as conclusive of the question as to who were the real partners in the Rupar firm. I can find no discussion or even reference to the findings of the Income-tax Officer which I have earlier summarised. No doubt in paragraph 4 he has referred to some of the facts found by the Income-tax Officer and the inference drawn by him and rejected them. Leaving these facts out of account there are other facts which are relevant for consideration but they appear to have been ignored by the Appellate Assistant Commissioner. Ascertainment of the legal effect. of those facts would in my judgment be a question of law. It is not disputed before us that the app!ir.etion for rcgis•ra-tion should set out the names of all the persons who are real partners of the firm and, therefore it is incumbent on the Income-tax authorities to ascertain whether any of the partners had joined the partnership in his individual capacity or as represent-ing a group of persons. If, to the knowledge of the other part-ners he represents a group of persons, be they members of another partnership or a joint Hindu family, it would be a question for decision as to whether all those persons have thereby become partners and that would be a question of law. In paragraph 6 of his order the Appellate Assistant Commissioner seems to have had this in mind and it will be useful to quote the relevant portion of the paragraph :

"There are two essential conditions before it can be stated that contractual relationship has been brought about between the partners which is the relationship of a partnership and the two conditions are that the part-ners must agree to share the profits of the business and the business must be carried on by all or any of them for all of them. There can in law be a partnership bet-ween the partner in a Head Firm and another individual in respect of the partner's share in the Head Firm so as to entitle the partners in the sub-firm to apply for registration thereof under section 26-A of · the Indian Income-tax Act. If several persons are partners and one of them agrees to share the profits derived by him with a stranger, this agreement does not make the stranger a partner in the original firm. The result of such an agreement is to constitute a sub-part-nership. It makes the parties to it partners Inter se; it does not affect the other members of the principal firm: ...

The sole ground given by the Appellate Assistant Commis-sioner for holding that Gosain Chander Bhan was a partner in the Rupar firm in his individual capacity is that the preamble to the partnership deed 'clearly sets out that the contracting parties were 14 and that Gosain Chander Bhan was a partner in his indi-vidual capacity.' It is true that he has repelled some of the grounds given by the Income-tax Officer in support of his conclu-sion but, as already stated, he has entirely omitted to consider other facts found by the Income-tax Officer which bear directly on the point. It may be that the finding cannot be said to be based on no evidence but even so, as it has been arrived at by ignoring relevant facts, it is vitiated by an error of law.

The first sentence of para 6 of the order of the Appellate Assi;tant Commissioner quoted above paraphrases the provisions of s. 4 of the Partnership Act and is unexceptionable. The rest of the quotation appears to have been lifted from the head-note of the decision in Commissioner of lncome·tax, Punjab v. Laxmi Trading Co ( 1). The question which fell for decision in that case was :

"Whether there could in law be a partnership bet-I ween a partner in a head firm and another individual in respect of the partner's share in the head firm so as to entitle the partners in the sub-firm to apply for regis· tration thereof under section 26-A, Income-tax Act, 1922?"

and it was answered in the affirmative.

A sub-partnership can also, as stated by the learned Appellate Assistant C0mmissioner, apply for registration under s. 26-A. But where does it all lead 10 '! Here the question which arises i1 whether the head firm as such has entered into partnership with another or whether only one of the partners of the head firm has entered ir.to partnership with another. For, thal is what the ques-tion really is. According to the appellant, the Ferozeporc firm as a firm has become partner in the Rupar firm and not merely Gosain Chander Bhan. The learned Appellate Assistant Commi>- sioner has not addressed himself to this aspect of the case. At the end of the paragraph the I.earned Appellate Assistant Commis-sioner has observed : "there is no data on the record to substan-tiate the finding of the Incomi>-tax Officer that the firm was not genuine in view of the local enquiries by him." That, however, is not the whole question. The whole question which arises in this case is whether in the facts and circumstances of this case the fim1 Chander Bhan Harbhajan Lal was registrable under s. 26-A, the circumstances being that a partner of another and pre-existi11g firm became a partner in Chander Bhan Harbhajan Lal on behalf of the partners of that other firm, that he had brought in funds belonging to that firm and that the new firm was to carry on busi-ness of the same kind as the old firm was carrying on.· Further, the reasoning of the Appellate Assistant Commissioner would be pertinent only to a case of sub-partnership. To put it somewhat differently the question is whether tl1e application for registration reHects the true position as regards the real partners in the Rupar Firm. This has not heen considered either by the Appellate Assistant Commissioner or hy the Tribunal.

(I) A 1.R. t955 Pat. 225.

C.I.T. v. M/S. c. !!. H. LAL (Mudholkar, /.) 191 The Tribunal merely referred to the dec;sions in Laxmi Trading Co.'s case (1) and in Agardih Colliery Co.'s case(') and dismissed the department's appeal. The latter is also a case of sub-partnership and does not assist us in deciding the matter arising here.

It is contended on behalf of the respondents that the question arising here has already been settled by three decisions of this Court. The first of these is Commissioner of Income-tax, Madras v. Sivakasi Match Exporting Co., Sivakasi('). In that case this Court held that the mere fact that one of the partners of the firm seeking registration brought his capital from another firm of which he was one of the partners and the further circum-stance that he shared the profits received by him from the former firm with his partners in the latter firm did not make the former partnership bogus. In the first place the circumstance that upolll a certain set of facts this Court arrived at a particular decision would not necessarily make that a binding precedent even though the inference drawn by the Court upon which its judgment rests is one of law. In the second place we have here the fact that one of the partners of the firm seeking registration was a partner in his representative capacity and not merely a partner in his indi-vidual capacity. The next case relied on is Commissiont!r of Income-tax, Ahmedabad v. Abdul Rahim & Co.(') In that case this Court held that the circumstance that one of the partners was a benamidar for another does not justify a refusal to register the firm under s. 26-A and reiterated the essential conditions which must be satisfied by the. firm seeking registration which have been stated in Commissioner of Income-tax, Bombay v. Dwarka-das Khetan & Co.(') It does not advance the respondent's case any further. The third decision is that in Commissioner of lncomt!- tax v. Bagya/akshmi & Co.(6). There Subba Rao J., speaking for the Court has observed :

"A partner may be the karta of a joint Hindu family; he may be a trustee; he may enter into a sub-partner-ship with others; he may, under an agreement, express or implied, be the representative of a group of persons; he may be a benamidar for another. In all such cases he occupies a dual position. Qua the partnership he functions in his personal capacity; qua the third parties, in his representative capacity. The third parties, whom (1) A.I.R. 1955 Pat. 225. (2) (1953] 24 l.T.R. 173.

one of the partners represents, cannot enforce their rights against the other partners nor the other partners can do so against the said third parties. Their right is only to a share in the profits of their partner-representa-tive in accordance with law or in accordance with the tenns of the agreement, as the case may be."

It is upon these observations that learned counsel for the respon-denta has placed strong reliance. These observations are based oa the fact that the person admitted as a parcner in the finn seeking registration was so admitted as an individual. They can-not apply and were apparently not intended to apply to a kind of case as the one we have here, that is, where the partner to the kaowledge of other partners was joining on behalf of and repre-senting several persons. What has to be detennined is the cumu-lative effect of this circumstance taken along wilh the other cir-cwnstances established in the case. That is a question of law and I am clear that that question is far from being settled and also that it is a substantial question of law.

A further question which arises on the particular facts of this case is whether the Rupar firm can be said to have legal existence because its real partners are not merely 14 persons but there are 7 persons in addition to that number. Under the provisions of s. 11 of the Companies Act, 1956 (s. 4 of the 1913 Act) where the number of partners exceeds 20 the firm has to be incorporated and that is admittedly not what has been done here. If, therefore, the number is in excess of 20 the firm being unincorporated, it cannot be said to have a legal existence. Unf0rtunately the Incomc-tax Appellate Tribunal has not discussed the facts and circum-stances of this case but dismissed the second appeal preferred by the appellant on the short ground that there was no merit in it in view of the decisions cited by it. It was necessary for the Tribunal to ascertain whether on the facts of this case those deci-sions concluded the matter. Th~ questions which arise are, ia my opinion, substantial between the parties and are not settled. For these reasons I allow the appeal, set aside the judgment of the High Court and direct the Tribunal to refer the question earlier set out to the High Court. Costs so far incurred will abide the result.

ORDER

In accordance with the opinion of the majority, Civil Appeal No. 605 of 1963 is dismissed with costs. Civil Appeals Nos. 810 and 811 are dismissed, but there will he no order as to costs.

CIVIL APPELLATE JURISDICTION: Civil App~al No. 605 of 1963.

Appeal by special leave from the judgment and order dated the January 24, 1961 of the Punjab High Coun in Income-tax II Case No. 16 of 1956.

Niren De, Additional Solicitor-General, Gopal Singh and R. N. Sachthcy, for the appellant.

Bishan Narain, O.C. Mathur and /. B. Dadachanji, for the respondent.