Basil Scott, Kt., C.J.
1. This suit was instituted by the plaintiffs for an account of what was due upon a partnership between them and the defendants in respect of a certain liquor-selling business.
2. The business of selling liquor in the Bombay Presidency is regulated by the provisions of the Abkari Act, Bombay Act V of 1878. It is provided by Section 16 that 'except as is hereinafter otherwise provided, no liquor and no intoxicating drug shall be sold without a license or pass from the Collector.' Section 43 imposes penalties upon whomsoever in contravention of the Act or of any rule or order made under the Act or of any license obtained under the Act sells liquor.
3. Now the license under the Act was obtained by the defendant No. 1. It has many conditions expressed in it but the only material one for the purpose of this suit is condition No. 19 which provides:-' The licensee shall not sell, transfer to any person or sublet his right to sell country liquor obtained under the license, and shall enter into no Kabulayat or agreement for the exercise of the said right which, in the opinion of the Collector, is in the nature of a sub-lease.' By the preamble of the license the licensee was given, subject to the conditions expressed subsequently, an exclusive right to sell country-liquor in the shop at Nawapur or in the group or groups of shops mentioned in Schedule B for a period of one year from the 1st of April 1904-
4. The learned District Judge has not gone into the question which was decided by the Subordinate Judge whether a partnership-agreement had actually been concluded. The Subordinate Judge thought on the evidence that he must hold that a partnership-agreement had not been concluded. But the District Judge thought it was sufficient to deal with the question of the legality of the agreement, assuming it to be in existence, and he has come to the conclusion that the contract for partnership would be forbidden by law and opposed to the policy and general tenor of the Act and, therefore, cannot be enforced in a Court of law. The first point he takes is that the preamble shows that the right given to sell liquor was a non-transferable right, and he points out that Section 43 of the Act and Clause 19 of the license provide that no licensee shall sell or transfer to another's name or sublet the right which he is granted. He says that by admitting the plaintiffs as partners the defendants transferred part of that right to the plaintiffs without their obtaining a license to sell the liquor.
5. The license is presumably granted by the Abkari authorities in order that they may have control over the person who is authorised to sell the liquor and in order that the sale of the liquor may not pass out of his control to unauthorised persons. The license with that view prohibits sale, transfer or subletting of the right. The authorities are by no means blind to the possibility of partnerships being entered into by licensees in which other persons may become interested in the sale of liquor. In the case of Hormasji Motabhai v. Pestanji Dhanji bhai I.L.R. (1887) Bom. 422, the licensees were, by the terms of their license, forbidden to take partners, and as pointed out by Mr. Justice Parsons in Ganesh Vithal v. Shripad Dattoba I.L.R. (1895) Bom. 668, the 15th rule of the Abkari Act in force in 1895 provided that the lessee was not without the previous written permission of the Collector to sublet, in whole or in part, the right to vend conferred upon him by the license or admit persons into his business.
6. Now here we have a license sanctioned by Government in the year 1903 which omits all reference to the question of subletting a part of the right to vend or of admitting partners into the business. What conclusion are we to draw Are we to infer that the taking in of partners into the business of a licensee is objected to by the Abkari authorities or that it is not? It appears to us that the only inference must be that the Abkari authorities have decided not to prohibit the taking in of other persons into partnership in the profits derived from the selling of liquor under an Abkari license.
7. For these reasons we are of opinion that the decree of the District Judge must be set aside. But that does not dispose of the case; for the question still remains whether the Subordinate Judge was right in holding that there was in fact no partnership-agreement. It is much to be regretted that the District Judge did not thoroughly try the case in the first instance instead of necessitating an appeal to this Court on a point of law and a remand, now that we have disagreed with his judgment.
8. We remand the case for disposal on evidence.
9. Costs to be costs in the appeal in the lower appellate Court.