Distinction between coownership and partnership

The main differences between coownership and 

partnership have been set out in Lindley on the Law of Partnership,

15th Edition at Pg 79 thus :

1.Coownership

is not necessarily the result of agreement.

Partnership is.

2.Coownership

does not necessarily involve community of

profit or of loss. Partnership does.

3.One coowner

can, without the consent of the others, transfer

his interest, or in the case of land his equitable interest, to a

stranger, so as to put him in the same position as regards the

other owners as the transferor himself was before the transfer,

except that in the case of a transfer by a joint tenant the

stranger will become a tenant in common, or in the case of

land a tenant in common in equity with the other owners. A

partner is in a much more restricted position.

Bombay High Court

 ARBAP (L.) No.859_2013

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

ARBITRATION APPLICATION (L.) NO.859 OF 2013

Yashvant Chunilal Mody – Applicant

V/s.

Yusuf Karmali Kerwala & Ors. – Respondents

CORAM : MRS. ROSHAN DALVI, J.

DATE OF PRONOUNCING THE JUDGMENT : 19th September, 2013

Citation2014(3)MHLJ111

Read original judgment here;click here

1. This is an application for appointment of a sole arbitrator

U/s.11 of the Arbitration and Conciliation Act, 1997 (the Act) by the

Applicant who is one of the eight partners of the partnership firm of

which the arbitration agreement is alleged. Several of the partners

have expired. Their heirs and legal representatives are some of the

Respondents. The claim of the Applicant is of having entered into a

partnership on 1st April, 1974 consequent upon the introduction of the

partners in February, 1974 and their desire to carry on joint business

since March, 1974.

2. It is the Applicant's case that initially the written

agreement between the parties was not executed. It has been

executed on 24th September, 1975 after the oral partnership without

any formal document came into existence. In fact it is one of the

claims that no formal partnership deed was initially executed upon

certain advise (presumably legal). This is specifically stated in view of

the facts which shall be considered presently. The partnership was to

be between the parties and the joint business of the partners was to be

the business of dairy farming. The Applicant had certain cattle. He

wanted to expand his business. He wanted to purchase a farm and

obtained new cattle and carry on dairy business.

3. In fact an agreement was entered into in the name of one

V.Y. Shah and Co. for purchase of the land on which the business

would be carried out. Earnest of Rs.20,000/was

paid out of the total

consideration of Rs.1.76 lacs for the purchase of the land. The

agreement was executed on 31st December, 1974. Thereafter a

conveyance has been executed in 1975. The date of the execution of

the conveyance is not shown in a photocopy of the unregistered

conveyance produced by the Applicant. The conveyance is in the

name of the partnership firm between the parties. It appears to be

executed well after at least 19th July, 1975 which date is recited in the

conveyance. The conveyance is for Rs.1.50 lacs, Rs.20,000/being

the earnest paid on 31st December, 1974, the date of the agreement.

Rs.1.30 lacs is paid on 24th May, 1975 constituting the full

consideration of Rs.1.50 lacs. The conveyance appears to have been

lodged for registration on 29th July, 1976. The unregistered

conveyance came to be registered under a deed of confirmation

executed on 10th June, 1981 by the partnership firm as the purchaser.

The Deed of confirmation shows the factum of the lodging of the

conveyance for registration. There is no mention of the execution of

the partnership deed in any of these documents.

4. The partnership, however, had come into existence. It has

been registered with the Registrar of Firms on 22nd September, 1975.

The fact of the partnership and the partners is admitted by

Respondent Nos.1 and 2 who are the contesting Respondents.

5. The Respondents, however, claim that the there was no

written partnership deed. The Applicant claims that the partnership

agreement was executed on 24th January, 1975 interalia

containing

the arbitration clause.

6. Respondent Nos.1 and 2 have relied upon a very unique

evidence to contradict the specific case of the execution of the written

partnership deed and consequently the written partnership agreement

containing as one of its clauses, the arbitration clause upon which the

arbitration is sought and the application for appointment for an

arbitrator is made. The Respondent Nos.1 and 2 have annexed to

their affidavit in reply and a photocopy of an earlier notice given by

six partners to Respondent Nos.1 and 2 through their Advocate Rajesh

C. Shah on 6th March, 1998 claiming under a deed of partnership

dated 1st April, 1974. It must be remembered that the present case of

the Applicant is of the execution of the partnership deed on 24th

January, 1975 upon a specific case that initially the parties were

advised not to have any partnership deed executed. The difference in

the dates is, therefore, not only an inadvertent error. The agreement

for sale consequent upon which the conveyance was made in the

name of the firm was not in the name of the firm at all. Hence case of

the Applicant showing a new date of partnership deed after the date

of the agreement is a distinct afterthought. The agreement being

dated 31st December, 1974 in the name of the Y.V. Shah and

Company, the partnership deed could not have been prepared on 1st

April, 1974 as earlier alleged in the notice of the erstwhile Advocate

of the Applicant.

7. It is also argued, and correctly on behalf of the Respondent

Nos.1 and 2, that despite the reference to the deed of partnership

dated 1st April, 1974 in that notice, arbitration is not invoked and the

notice only threatens legal proceedings. Indeed that also is pointer to

the fact that the mere vague statement of the Applicant in paragraph

4(k) about the arbitration agreement is far fetched and made up.

8. The notice given since March, 1998 has not been acted

upon. No action at law is initiated. No claim is made or prosecuted

thereon.

9. The new case of the deed of partnership dated 24th

January, 1975 made out by the Applicant is without the production of

the partnership deed or its copy. The agreement to arbitrate stated to

be contained in the arbitration clause in the partnership deed is,

therefore, not shown to be in writing. Only an averment is made in

paragraph 4(k) of the application relating interalia

to the arbitration

clause.

10. The Applicant has sought to set out certain of the clauses

of the partnership deed stated to have been executed on 24th January,

1975 by and between the parties. His claim is that of sharing of

profits in a particular ratio, the kind of business, the fact that it was at

will, the fact that it will continue even in the event of the death of

any of the partners, the address of the firm and the arbitration clause.

The specifics of the distribution of profits of the firm is stated in

paragraph 2(f) but not as a part of the partnership deed. The

particulars of the capital of the partners, the facts relating to the

premises from which the activities of the firm were carried on and the

capital which was brought from time to time into the firm as

“introduced” and the account of the firm are also not shown or stated

as part of the written partnership deed.

11. There is absolutely no corroborative or circumstantial

evidence to show or suggest the execution of partnership deed dated

1st April, 1974 or 24th January, 1975. The notice dated 6th March,

1978 only specifies the aggregate share of the four groups of the 8

partners, the fact of the parties having done business since 1980 (and

not from 1974 as stated in this application) and the fact that there

was then no business of the firm.

12. From such sketchy case of the execution of the deed of

partnership, the Applicant claims to have the arbitration agreement in

writing. An arbitration agreement is mandatorily required to be in

writing U/s.7 (3) of the Act. It is stated to be an agreement in writing

under partnership deed executed on 24th January, 1975 without any

corroborative evidence. It is stated to contain a clause that in the

event of a dispute and difference arising between the parties in

respect of the erstwhile firm a sole arbitrator will be appointed.

13. An arbitration clause of the kind may give narrow as well

as wide powers of the reference of the dispute to arbitration to the

arbitrator. It may appoint one or more arbitrators. It may refer some

or all of the disputes and differences. It may specify the kind of

disputes to be referred. How the Applicant has set out the kind of

arbitration clause as is done in paragraph 4(k) is not explained and

cannot be envisaged.

14. U/s.7 (1) of the Act the arbitration agreement is to submit

to arbitration certain disputes which have arisen between the parties

or which may arise between them in respect of their relationship. The

application of the Applicant does not specify the particulars of which

certain disputes were to be referred to the arbitration.

15. For the reference of the dispute to arbitration the Applicant

has issued a notice as late as on 10th October, 2011 addressed to all

the other partners and their legal representatives including

Respondent Nos.1 and 2 dissolving the firm invoking arbitration and

calling upon them to appoint sole arbitrator as per “registered'

partnership deed dated 24th January, 1975. Respondent Nos.1 and 2,

whilst denying the execution of the partnership deed, called upon the

Applicant to produce a copy of the registered deed from the

registration office. The partnership deed is not registered. It is stated

to be dated 24th January, 1975. It is in view of such notice that the

Respondents have produced the earlier original notice given by six

partners to Respondent Nos.1 and 2 on 6th March, 1998. The

partnership deed as also the arbitration clause therein has thus

remained nebulous and anomalous.

16. The specific statutorily mandate for reference of a dispute

to arbitration is only under a written agreement. Section 7(3) runs

thus :

“An arbitration agreement shall be in writing”.

17. It would have to be seen whether the party invoking

arbitration must, therefore, produce that mandatory written

agreement or whether such party can only allege that an agreement is

in writing and seek to prove it by oral evidence.

18. A partnership may be oral or in writing. It may or may not

be registered with the Registrar of Firms. An oral partnership may

also be registered as in this case. A partner of a firm under an oral

agreement can certainly sue by maintaining an action in law.

However, for reference of the dispute of such partners specifically to

the mode of the resolution of the dispute by arbitration, the party

invoking the arbitration must conform with the mandatory

requirements of the Act. Even in the Arbitration Act, 1940 the

arbitration agreement was to be a written agreement U/s.2 (a)

thereof. That provision has been amplified in the short, concise and

precise Section 7(3) of the amended arbitration law under the Act.

19. The purpose of this specific requirement must be

understood. It is to weed out oral agreements for reference of the

dispute to arbitration. The agreement to be in writing, therefore,

must be shown to be so at the time the arbitration is invoked.

20. This application is made for appointment of the sole

arbitrator upon failure of the Respondents to appoint the sole

arbitrator under the notice dated 10th October, 2011 upon the

contention that the agreement between the parties to arbitrate is in

writing under the aforesaid partnership deed. It is contended that

that written agreement shall be proved by the Applicant by secondary

evidence of the oral account of the contents of the document given by

him U/s.63 (5) of the Indian Evidence Act, 1872. Section 63 (5)

which sets out one of the modes in which secondary evidence can be

led runs thus :

5. “Oral accounts of the contents of a document given by some

person who has himself seen it”.

21. It should be oral evidence of the witness who has seen the

document. This contemplates the exclusion of hearsay evidence. The

Applicant claims to have executed it along with seven other partners.

Hence he claims to have seen the document. He would certainly be

entitled to give an oral account of the partnership deed dated 24th

January, 1975 in an action in law. It would have to be seen whether

such oral account of a written document is contemplated to be

allowed for invoking an arbitration.

22. The Applicant offers to lead evidence and be cross

examined in that behalf. The Applicant can be examined and cross

examined upon a case made out by him prima facie in his application

or his affidavit. That case is sought to be made out in paragraph 4(k)

and (l) of this application. The oral account is not given of the entire

document. It is also not given of all the relevant parts of the

document. It contains the inaccuracies and inadequacies stated

above, the most important of which, is the vague arbitration clause

not specifying the specific disputes that in this case were agreed to be

referred to arbitration by the parties under such written agreement as

required by Section 7(1) of the Act.

23. Mr. Anturkar on behalf of the Applicant relied upon the

judgment in the case of M/s. SBP & Co. Vs. M/s. Patel Engineering

Ltd. and Anr., AIR 2006 Supreme Court 450(1) in Paragraph 38

and followed by DHV BV Vs. Tahal Consulting Engineers Ltd.

(Israel) & Anr., (2007) 8 Supreme Court Cases 321 in Paragraph

14, laying down the guidelines as to the ambit of various provisions of

the Act including the application U/s.11 (6) of the Act. It shows that

the Chief Justice of the right High Court would have to decide

whether there was an arbitration agreement, whether the Applicant

was a party to such agreement, whether the claim made was a dead

one or whether the arbitration was long barred or satisfied by final

payment or whether the Applicant satisfied the conditions of Section

11(6) of the Act. The relevant part of paragraph 38 runs thus :

38. It is necessary to define what exactly the Chief Justice,

approached with an application under Section 11 of the Act,

is to decide at that stage. Obviously, he has to decide his own

jurisdiction in the sense, whether the party making the

motion has approached the right High Court. He has to

decide whether there is an arbitration agreement, as defined

in the Act and whether the person who has made the request

before him, is a party to such an agreement. It is necessary

to indicate that he can also decide the question whether the

claim was a dead one; or a long barred claim that was

sought to be resurrected and whether the parties have

concluded the transaction by recording satisfaction of their

mutual rights and obligations or by receiving the final

payment without objection.

The Chief Justice has to decide whether the applicant has

satisfied the conditions for appointing an arbitrator under

Section 11(6) of the Act.

24. Mr. Anturkar would lay much stress upon the later part of

the said paragraph to show how these aforesaid aspects could be

decided. That part runs thus :

For the purpose of taking a decision on these aspects, the

Chief Justice can either proceed on the basis of affidavits

and the documents produced or take such evidence or get

such evidence recorded, as may be necessary.

25. Mr. Anturkar, therefore, argued that evidence of the

Applicant may be directed to be taken before deciding this

application. The Applicant thus offers himself for cross examination

by the Respondent Nos.1 and 2. It would have to be seen whether the

specific legislative mandate in Section 7 would permit such a course.

Section 7(3) would have to be read along with Section 7(4). Both

sections relate to written arbitration agreement. Sections 7(3) and

7(4) runs thus :

7(3) An arbitration agreement shall be in writing.

7(4) An arbitration agreement is in writing if it is contained

in –

(a) a document signed by the parties;

(b) an exchange of letters, telex, telegrams or other means of

telecommunication which provide a record of the agreement;

or

(c) an exchange of statements of claim and defence in which

the existence of the agreement is alleged by one party and not

denied by the other.

26. Section 7(3) specifies the mandate of a written agreement.

Section 7(4) contemplates the types of written agreements. Hence

the written arbitration agreement may be one document signed by the

parties or it may by way of correspondence or by a statement in which

its existence is not denied.

27. In this case there is no agreement in writing shown yet.

There is no correspondence which would constitute any such

agreement. The statement of the Petitioner in the notice invoking

arbitration itself is denied. These are the only three modes specified

under the statute in which an agreement can be taken to be an

agreement in writing by the word “if”. Section 7 (4) is exhaustive. It

does not contemplate that an oral account of a document signed by

the parties would also be an arbitration agreement. Had that been so

Section 7 (4) would have mentioned that provision as sub section 'd'.

There may be various other circumstances by which a written

agreement can be proved and accounted for but that is not within the

contemplation of the Arbitration Act. An arbitration agreement is in

writing only if it falls within sub section a, b or c of Section 7(4).

28. Upon such legislative mandate allowing a party to prove a

written arbitration agreement by oral evidence of its contents by

secondary evidence as specified in Section 63(5) of the Indian

Evidence Act would be to legislate another sub section which the

Court cannot do.

29. In view of the legislative mandate taking evidence for such

purpose is ruled out. Though evidence may be recorded or cause to

be recorded of a (written) arbitration agreement, as observed in the

case of M/s. SBP & Co. (Supra) it was to see whether the claim was

dead or alive or whether the disputes at all remained or were

concluded or whether conditions for the application U/s.11(6) was

satisfied.

30. The purpose of this provision is specifically to exclude oral

agreements unlike in a civil suit which can be filed on oral agreements

so that an oral account of a written agreement can be tendered in

evidence by way of secondary evidence. The purpose of having

arbitration agreement only in writing rules out an oral agreement.

The purpose would be wholly destroyed if parties are allowed to claim

orally, as has been done in this case, that some agreement of some

specific or vague nature was entered into and which the party can

prove by oral evidence. This would open floodgates not only not

contemplated but specifically excluded by the legislature.

Consequently the observation of the Supreme Court in the case of

M/s. SBP & Co. supra with regard to whether there was arbitration

agreement is upon the contention of the parties with regard to

interpretation of whether or not a particular written document would

constitute an arbitration agreement and not for allowing to prove a

written agreement hitherto not produced. In view of the specific

ambit of Section 7(4), the mandatory requirement of Section 7(3)

must be read to require only a written agreement to be produced for

commencing any arbitration proceeding. Hence an application under

Section 11 for appointment of arbitrator cannot be made in case

where an arbitration agreement is not in writing and is not produced

at the first instance.

31. Of course, the Applicant may maintain a legal action which

would be considered in accordance with law including the law

relating to the period of limitation of his claim.

32. The exercise of passing off a written agreement for

referring the dispute to another mode of adjudication without

payment of the necessary court fee is seen to be lacking bonafides.

Mr. Anturkar argued that the denial of the agreement lacks bonafides

since that would entail the requirement of filing a suit and having the

dispute delayed for its adjudication because of the usual courts'

delays. Even if that was so, the legislative mandate does not permit

the Applicant to apply for appointment of a sole arbitrator or any

arbitrator in the absence of producing a written arbitration

agreement.

33. It is also argued on behalf of Respondent Nos.1 and 2 that

the claim is hopelessly barred by Limitation.

34. As observed by the Supreme Court in the case of National

Insurance Co. Ltd. Vs. Boghara Polyfab Pvt. Ltd., 2009 (4) BCR

891 this Court is enjoined to consider, prima facie, the question of the

bar of limitation.

35. The Petitioners are two of the partners of the firm. The

partnership has long since been dissolved.

36. In the case of K. Gopal Chetty & Anr. Vs. L.G.

Vijayaraghavachariar, AIR 1922 Privy Council 115, a partner of a

dissolved firm sued for accounts and share in the assets. The

partnership has stood dissolved in 1910. The suit was filed in 1913

after a period of three years from the dissolution. The suit for

accounts was distinctly barred under Article 106 of schedule I to the

Limitation Act of 1908 (which is on par with Article 5 of the

Limitation Act, 1963). The question that was to be considered was

whether when the suit for accounts was barred, the suit for share in

the assets be also barred. This is what the Privy Council has had to

observe at Pg.119 of the judgment :

If on the other hand no accounts have been taken and there is

no contest that the partners have squared up, then the proper

remedy where such an item falls in is to have the accounts of

the partnership taken; and if it is too late to have recourse to

that remedy, then it is also too late to claim a share in an

item as part of the partnership assets, and the Plaintiff does

not prove, and cannot prove that upon the due taking of the

accounts he would be entitled to that share.

37. In the case of Nilmadhab Nandi & Ors. Vs. Srimati

Nirada Sundari Dasi, Calcutta Weekly Notes, (Civil Appellate

Jurisdiction) Pg.1065, a suit filed by legal representative for accounts

as also a share in the assets was held not barred under article 106 of

the Limitation Act because under Article 106 the right of the legal

representative was taken to be not to a share in the profits of the

dissolved partnership, but a right accruing to him by subsequent

dealing with the assets belonging to the deceased partner. It was

observed that where on the death of the partner the partnership

business was continued by the remaining partners, the representative

of the deceased partner is entitled to a share of his predecessorininterest

in the assets and to the profits attributable to the use of that

share. Hence he is entitled to have accounts U/s.37 of the Partnership

Act. It was held that the right of the legal representative is not right

to share in the profits of the dissolved partnership within the meaning

of Section 106 of the Limitation Act, 1908. It is a right accrued into

him by subsequent dealing with the assets belonging to the deceased

partner. Hence he can sue for the share of the assets of the business

and for the profits which the Defendant made from the business after

the death of the partner and the suit would not be hit by Section 106

of the Limitation Act.

38. In the case of Addanki Narayanappa & Anr. Vs.

Bhaskara Krishnappa, AIR 1966 Supreme Court 1300 (V 53 C

251), the case of the property of the partnership firm came to be

considered whilst the firm was going concern. A property brought

into the partnership and which became the property of the firm was

held to represent the money value of the property upon dissolution.

39. The firm would have no legal existence upon dissolution.

The partnership property would vest in all the partners and further

the partners would have interest in the property of the partnership. It

is observed in paragraph 3 (iv) of the judgment thus :

No doubt, since a firm has no legal existence, the partnership

property will vest in all the partners and in that sense every

partner has an interest in the property of the partnership.

40. The question is when would the right to claim the interest

that the partner has in the partnership property be exercised?

41. In the case of M.M. Valliammai Achi & Ors. V. Kn. Pl. v.

Ramanathan Chettiar, AIR 1969 Mad 257, a suit for partnership

accounts and a half share in the immovable property was filed by the

heirs of a deceased partner. The property was acquired from the

moneys due to the partnership and formed the assets of the

partnership. The partner who was predecessorintitle

of the Plaintiff

died in 1933. Other partners died in 1947. A suit for accounts was

filed in 1959. It was the case of the Plaintiff that the suit property

was withdrawn from the partnership and used by the Plaintiff and the

surviving partners as coowners.

Relying upon Privy Council decision

in the case of K. Gopal Chetty (Supra) it was held in a suit for

accounts and the share of the assets of the firm, the former being

barred, the latter would also stand barred. It was observed in

paragraph 8 that:

The proper remedy of a partner in the circumstances is to

have accounts taken to ascertain his share and if the right to

sue for accounts is barred by limitation, the partner cannot

sue any partner in possession of the assets for a share

therein.

It was observed that suit was filed and the share in the items were

claimed a quarter century after the death of partner, the properties

could be dealt with by the surviving partner, one of whom was also

died after the first partner. It was observed:

The silence for nearly quarter of a century is therefore

significant.

42. The Court considered the case of Ahinsa Bibi V. Abdul

Kader Saheb (1902), ILR 25 Mad 26, in which five partners carried

on business. One of them died in 1890. No accounts were taken. No

representatives of the deceased partner were taken into the

partnership. The surviving partners continued the business and in

1891 one of the surviving partners was also died. No accounts were

taken. No representatives of that partner were also taken in the

partnership. The other surviving partners continued the business. In

1898 the legal representatives of the 2nd deceased partner sued for a

share of the profits of the partnership. It was only because one of the

Plaintiffs was a minor on the death of the partner in 1891 and on the

date of the suit, that the case was held to fall U/s. 7 and 8 of the

Limitation Act, 1908. The case of Nilmadhab Nandi V. Nirada

Sundari Dasi, (Supra) was distinguished as not applicable to the

facts of that case.

43. The Court considered that the business was continued and

the profits were made by the use of the assets of the deceased partner

in the dissolved firm and hence the right of the legal representatives

was not in the share in the profits of the firm within the meaning of

Article 106 of the Limitation Act. It was observed that when the

business was continued and the firm made profits using the deceased

partner's assets in the business, the cause of action can be taken to

have in continued from day to day.

44. In this case the business is stated not to have continued.

The property stands in the name of the partnership firm. Two of the

partners and or their legal representatives have sued, the other six

partners or their legal representatives. If the business has not

continued and the firm has not continued to make profits utilising the

partner's assets in the business, the position would be different.

45.. In the case of Deoki Prasad Rajgarhiah Vs. Anar Dai

Poddar, A 1999 Patna 22, the partnership was stated to be at Will so

in fact carried on specific job for particular duration and no other

venture was undertaken by the partnership. It was held that the such

partnership could not be at Will and the suit for accounts of the

partnership which stood dissolved beyond the period of three years

during which no accounts were submitted or taken was held barred.

In that case upon the construction work of a bridge having been

completed, the partnership was observed to have come to an end with

the end of the venture and hence was dissolved. It was observed that

the Plaintiff did not show that the partnership had any other venture

and was continued.

46. In this case the Petitioner accepts that there was no

business of the partnership firm since many years and that only the

suit property was taken in the name of the partnership and remained

at that. The partnership is seen to have been dissolved beyond the

period of three years. No accounts have been asked for or given. The

analogy in the case of the Deoki Prasad (Supra) would apply. The

claim for the share in the partnership property upon the dissolution

which took place long years ago would stand barred as much as a suit

for accounts as held in the earliest case of K. Gopal Chetty (Supra)

47. It was contended by Mr. Reis on behalf of Respondent

Nos.3 to 5 that upon the dissolution of the firm the partners would be

coowners

and hence can sue for partition and their share.

48. Salmond on Jurisprudence 12th Edition at Pg.45 has

considered sole ownership and coownership

thus :

It is not correct to say that property owned by coowners

is

divided between them, each of them owning a separate part. It

is an undivided unity, which is vested at the same time in more

than one person. If two partners have at their bank a credit

balance of £1,000, there is one debt of £1,000, owing by the

bank to both of them at once, not two separate debts of £500

due to each of them individually. Each partner is entitled to

the whole sum, just as each would owe to the bank the whole

of the firm's overdraft. The several ownership of a part is a

different thing from the coownership

of the whole. So soon as

each of two coowners

begins to own a part of the thing instead

of the whole of it, the coownership

has been dissolved into sole

ownership by the process known as partition. Coownership

involves the undivided integrity of what is owned.

49. The main differences between coownership

and

partnership have been set out in Lindley on the Law of Partnership,

15th Edition at Pg 79 thus :

1.Coownership

is not necessarily the result of agreement.

Partnership is.

2.Coownership

does not necessarily involve community of

profit or of loss. Partnership does.

3.One coowner

can, without the consent of the others, transfer

his interest, or in the case of land his equitable interest, to a

stranger, so as to put him in the same position as regards the

other owners as the transferor himself was before the transfer,

except that in the case of a transfer by a joint tenant the

stranger will become a tenant in common, or in the case of

land a tenant in common in equity with the other owners. A

partner is in a much more restricted position.

50. In view of these differences the claim of the partner of the

dissolved firm or his legal heirs or representatives as coowners

of the

property is not prima facie shown. The claim is prima facie seen to be

barred by the Law of Limitation.

51. Upon seeing that there is no written agreement to arbitrate

and also that the claim is prima facie barred by Limitation, no

arbitrator can be appointed.

52. Consequently the application is rejected.

( ROSHAN DALVI, J.)

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