# THE ERIN ESTATE, GALAH, CEYLON" v. THE COMMISSIONER O.E' INCOME-TAX, MADRAS

- **Citation:** [1959] 1 S.C.R. 573
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Appeal No. 255 of 1953
- **Bench:** VENKA'rARAMA A1YAR, Gajendragadkar, A. K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-erin-estate-galah-ceylon-v-the-commissioner-o-e-income-tax-madras-1528
- **Pages:** 11

## Headnote

Iucome-tax-Assessment-Firm owning tea estate outside India
-Partners residing within taxable territories-Residence of jirmPresumption -If and when rebuttable-Onus-Control and management-Test-Indian Income-tax Act (XI of r922), s. 4A(b).
Section 4A(b) of the Indian Income-tax Act, 1922, provides
inter alia that "for the purpose uf the Act, a firm is resident in
the taxable territories unless the control and management of its
affairs is situated wholly without the taxable territories". The
appella11t was a registered firm owning a tea estate in Ceylon. All
the partners of the firm were permment residents in India. The
superintendent of the estate who resided permanently in Ceylon
had the management and control of the affairs of the estate from
day to day,- but the partners had the right to check him and give
him directions if anything appeared irregular; they also approved
the budget sent by him concerning important matters every year,
after which the superintendent was at liberty to act upon it. The
appellant claimed before the Income-tax Officer that the firm was
not resident in the taxable territories, and so the income arising
in Ceylon from the appellant's estate was not assessable to tax in
India. The question was whether the appellant was resident in
the taxable territories within the meaning of s. 4A(b) of thP, Indian
Income-tax Act, 1922 :
Held, (1) Whether a firm is resident within the taxable territories under s. 4A(b) of the Indian Income-tax Act, 1922, is a
mixed question of fact and law, and depends upon the legal effect
of the facts proved in each case.
(2) Where the partners of a firm are residents in the taxable
territories the normal presumption is that the firm is resident in
the taxable territories, but this can be rebutted by the assessec, on
whom the onus lies, by showing that the control and management
of the affairs of the firm are wholly without th~ taxable territories.
(3) The exercise of the control and management even in part
in the taxable territories would be enough to fix the assessee with
the character of a resident within s. 4A(b), but such control and
management must be de facto and not mere de jure and it is not
relevant to enquire whether it amounted to a substantial part.
73
•
•
April zz.
x958
The Erin Estate,
Galah, Cejlon
574
SUPREME COURT REPORTS
(1959]
(4) The appellant was a .firm resident in the taxable territories within the meaning of s. 4A(b) of the Indian Income-tax
Act,
B. R. Naik v. Commissioner of Income-tax, Bombay, [1945] 13
Th C v.. .
l.T.R. 124; [1946] i4 l.T.R. 334 and Subbayya Chcttiar v. Come oHuntssioner
.
.
·
C •
6
f
d
,, 1
T
missioner of Income-tax, Madras, [1950] S . .I,. 9 r, re erre to.
o1
nconieax,
Madras
Crv1L APPELLA'rE JURISDICTION: Civil Appeal No.
255 of 1953.
•
Appeal from the judgmrnt and decree dated March
27, 1951, of the Madras High Court in C.R. No. 62
of 1946.
R. J. Kolah and R. Ganapathy Iyer, for the appellant.
H. N. Sanyal, Additional Solicitor-General of India,
K. N. Rajagopala Sastri and R. H. Dhebar, for tbe respondent.
1958. April 22.
The Judgment of the Court was
delivered by
Gajcndragadkar J.
GAJENDRAGADKAR J.-The short question which
this appeal raises for our decision is whether the appellant assessee is resident in the taxable territories
within the meaning of s. 4A(b) of the Indian lncometax Act, 1922.
This question arises in this way.
The appellant is a registered firm owning a tea
estate called 'The Erin Estate ' at Galah in. Ceylon.
The firm consists of seven partners all of w horn are
permanent residents of certttin villages in Timchirapalli District.
The total sum paid by the partners
amounts to lb. 25,00,000 and the same is divided into
i47 shares.· Out of these 147 shares, Andiappa Pillai
owns 50 shares, V eera ppa Pillai owns 43 shares,
N agalingam Pillai owns 18 shares and the remaining
four partners own 9 shares each. The estate owned by
the firm pro·duces tea which is sold to the authorities
under the regulations prevailing in Ce

## Text

S.C.R.
SUPREME COURT REPORTS
573
THE ERIN ESTATE, GALAH, CEYLON"
v.
THE COMMISSIONER O.E' INCOME-TAX,
MADRAS
(VENKA'rARAMA A1YAR, GAJENDRAGADKAR and
A. K. SARKAR JJ.)
Iucome-tax-Assessment-Firm owning tea estate outside India
-Partners residing within taxable territories-Residence of jirmPresumption -If and when rebuttable-Onus-Control and management-Test-Indian Income-tax Act (XI of r922), s. 4A(b).
Section 4A(b) of the Indian Income-tax Act, 1922, provides
inter alia that "for the purpose uf the Act, a firm is resident in
the taxable territories unless the control and management of its
affairs is situated wholly without the taxable territories". The
appella11t was a registered firm owning a tea estate in Ceylon. All
the partners of the firm were permment residents in India. The
superintendent of the estate who resided permanently in Ceylon
had the management and control of the affairs of the estate from
day to day,- but the partners had the right to check him and give
him directions if anything appeared irregular; they also approved
the budget sent by him concerning important matters every year,
after which the superintendent was at liberty to act upon it. The
appellant claimed before the Income-tax Officer that the firm was
not resident in the taxable territories, and so the income arising
in Ceylon from the appellant's estate was not assessable to tax in
India. The question was whether the appellant was resident in
the taxable territories within the meaning of s. 4A(b) of thP, Indian
Income-tax Act, 1922 :
Held, (1) Whether a firm is resident within the taxable territories under s. 4A(b) of the Indian Income-tax Act, 1922, is a
mixed question of fact and law, and depends upon the legal effect
of the facts proved in each case.
(2) Where the partners of a firm are residents in the taxable
territories the normal presumption is that the firm is resident in
the taxable territories, but this can be rebutted by the assessec, on
whom the onus lies, by showing that the control and management
of the affairs of the firm are wholly without th~ taxable territories.
(3) The exercise of the control and management even in part
in the taxable territories would be enough to fix the assessee with
the character of a resident within s. 4A(b), but such control and
management must be de facto and not mere de jure and it is not
relevant to enquire whether it amounted to a substantial part.
73
•
•
April zz.
x958
The Erin Estate,
Galah, Cejlon
574
SUPREME COURT REPORTS
(1959]
(4) The appellant was a .firm resident in the taxable territories within the meaning of s. 4A(b) of the Indian Income-tax
Act,
B. R. Naik v. Commissioner of Income-tax, Bombay, [1945] 13
Th C v.. .
l.T.R. 124; [1946] i4 l.T.R. 334 and Subbayya Chcttiar v. Come oHuntssioner
.
.
·
C •
6
f
d
,, 1
T
missioner of Income-tax, Madras, [1950] S . .I,. 9 r, re erre to.
o1
nconieax,
Madras
Crv1L APPELLA'rE JURISDICTION: Civil Appeal No.
255 of 1953.
•
Appeal from the judgmrnt and decree dated March
27, 1951, of the Madras High Court in C.R. No. 62
of 1946.
R. J. Kolah and R. Ganapathy Iyer, for the appellant.
H. N. Sanyal, Additional Solicitor-General of India,
K. N. Rajagopala Sastri and R. H. Dhebar, for tbe respondent.
1958. April 22.
The Judgment of the Court was
delivered by
Gajcndragadkar J.
GAJENDRAGADKAR J.-The short question which
this appeal raises for our decision is whether the appellant assessee is resident in the taxable territories
within the meaning of s. 4A(b) of the Indian lncometax Act, 1922.
This question arises in this way.
The appellant is a registered firm owning a tea
estate called 'The Erin Estate ' at Galah in. Ceylon.
The firm consists of seven partners all of w horn are
permanent residents of certttin villages in Timchirapalli District.
The total sum paid by the partners
amounts to lb. 25,00,000 and the same is divided into
i47 shares.· Out of these 147 shares, Andiappa Pillai
owns 50 shares, V eera ppa Pillai owns 43 shares,
N agalingam Pillai owns 18 shares and the remaining
four partners own 9 shares each. The estate owned by
the firm pro·duces tea which is sold to the authorities
under the regulations prevailing in Ceylon.
Under
cl. (3) of the Partnership Deed, the superintendent
Ponnambalam Pillai, who was himself a co-owner in
the said estate previously, manages the estate and
· looks after its working from day to day. Ponnambalam Pillai permanently stays in Ceylon. He, looks
•
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\,
'
"' .
S.C.R.
SUPREME COURT REPORTS
575
after the estate from day to day and it is by him that
I958
all sales are effected through commission agents by
~
The Erin Estate,
name Uordon and Company. The pass books for the
catah, Ceylon
bank account for the estate are kept in his name and
v.
he receives the income and makes the requisite dis- The Commissioner
bursements from time to time.
of Income-Tax,
The a;;sessment proceedings for the assessment
Madras
years 1!)39-40 to 1942-4:5 were started by the Addi- Gajendragadkar ].
tional Income-tax Officer, Tiruchirapalli Circle.
The
appellant submitted its returns before the Income-tax
Officer and claimed that the firm was not resident in
British India and so the income arising in Ceylon from
the appellant's estate was not assessable to tax in
India. The Income-tax Officer rejected the appellant's
contention and held that the appellant was a resident
under. the provisions of s. 4A(b) of the Act and so he
proceeded to tax the entire income accruing to and
arising from the appellant's estate in Ceylon.
The
returns submitted by the appellant were accepted as
substantially accurate and the appellant was assessed
on its income from Ceylon with some minor adjustments considered necessary by the Income-tax Officer.
The appellant filed appeals against the several assessments thus made before the Appellate Assistant
Commissioner of Income-tax, Tiruchirapalli. These
appeals, however, failed and were dismissed.
The
appellant then went in appeal before the Income-tax
Appellate Tribunal, Madras; the Tribunal dealt with
the appeal for 1941-42 assessment in the first instance
and allowed it. The Tribunal took the view that the
evidence produced in the case showed that the control
and management of the appellant's affairs was situated
wholly without the taxable territories and so it reversed the finding of the Income-tax authorities that the
appellant was a firm resident in the taxable territories.
]'or the other years in question the same order was
passed by the Tribunal.
Against t,hese orders of the Tribunal reference
applicil'tions Were filed by the Commissioner of IncomeTax but these applications were dismissed by the.
Tribunal under s. 66(1) of the Act.
'fhen the Commissioner took up the matter tp the High Court of Mad-as
•
576
SUPREME COURT REPORTS
[1959]
'958
under s. 66(2); the High Court .directed the Tribunal
The Erin Estate, to refer the question a8 to ... whether the assessee fi.rm
Galah, Ceylon
was i·esident in British India within the meaning of
v.
s. 4A(b) of the Act". Accordingly a consolidated
The Commi,,ioner reference was I/lade to the High Court and, on
of Income-Tax, March 27, 1951, the High Court held that the appellant
Madras
was a resident in British India and answered the
Gajendragadkar J. question referred to it in .the affirmative. Subsequently
the appellant applied for and obtained a certificate
from the High Court under s. 66A(2) that the present
case is a fit one to appeal to the Supreme Court of
India. That is how this appeal has come before us;
and the only point which it raises for decision is
whether the appellant is a firm resident in the taxable
territories under s. 4A(b) of the Act.
This appeal was argued before this Cow·t on
February 9, 1956 ; but after arguments were heard for
some time, the Court adjourned the hearing of the.
appeal sine die, "to enable the parties to compile an
agreed pa per-book containing letters which they respectively relied upon in support of their respective
cases". In pursuance of this direction, by consent the
parties have filed an additional pa per-book containing
some·more correspondence. ,
. ' There is no doubt that the ·question raised for our
decision is a question of la\V.
VVhether or not the
appellant is a resident firm under s. 4A(b) would
depend upon the legal effect of the facts proved in the
case. The status of the appellant which has to be
determined by reference to the relevant section of the
·Act is a mixed question of fact and law and in determining this question the principles of law deducible
from the provisions of the said section will have to be
applied. This position has not been disputed before
us in the pi;esent proceedings; Section 4A(b) provides
, inter alia that " for the purpose of the Act, a firm is ·
resident in the taxable territories unless the control and
·management of its affairs./is situated wholly w_ithout
i
the taxable territories". I This provision shows that,
\vhere the partners of a firin _are residents "of this
country, the normal presumption would. be that the
·. fi.i'm , is i;esidiint in the. taxal)le .territories.
This
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r
S.C.R.
SUPREME COURT 11EPOHTS
577
presumption is rebuttable and it can be effectively
I958
rebutted b.'r the assessee showin0a that the control aud
,;
The Frin Estate.
managenwnt of the affairs of the firm i;.; situated
Galah. Ceylon
wholly without the taxable territories.
The onus to
v.
rebut the initial presumption is on the aRsessce.
The The Co111111issio11er
control l1ntl management contemplated by the section °1 Income-Tax,
~ ·
evidently refers to the controlling and directing power.
Jlfall~'
15
Often enough, thiR pO"wer has been described in judicit1l r
. l-lk
~
•
l1U)f1U.ragar. ar ].
decisions as the 'head and brain ' ; the affairs of the
firm which arc subject to the said contrnl and management refer to the affairs which arc relevant for the
purpose of taxation and so they must have some relation to tho incon1e of the firm.
\iVhen the ;.;ection
refers to the control and management being situated
wholly without the taxable tenitories it implies that
the.control and management can be situated in more
places than one.
vVht>re the control and management
are situated wholly ontsid•.;, India the initial presumption ~irising under the section is effectively rebutted.
It is true that the control and management which
must be shown to. be situated l1t least partially in
India is not the mei·ely theoretical control and power,
not a de jure control and power but the de facto control
and power actually exercised in the course 9f the
conduct and management of the affairs of the firm.
Theoretically, if the partners reside in India they
would naturally have the legal right to control the
affairs of the firm which carries on its operatious outside India. The presence of this theoretical de ;jiire
right to control and manage the affairs of the firm
which inevitably vests in all the partners would not by
itself show that the requisite control and management
is situated in lndia. It must be shown by evidence
that control and management in the affairs of the firm
is exercised, may be to a small extent, ip Indiit befoi:e
it can be held that the control and management is not
sitlmted wholly without the taxable territories. (Vide
B. R. Naik v. Commissioner of Income-tax, Bombay (1)).
r.rhfl Clff(let 11ml seope of the provisions of s. 4A(b) has
bee't1 considered by this Court in V. V.R. N.J.11. Subbayyci
Chettiar v. Commissioner of Income-tax, J.Vladra$ (").
,,
(I) [1945] r3I.T.R. 124; (1946] 14 I.T.R. 334·
\
(2) [I!ISO] S,C.R. 961, !16j. •
•
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•
578
SUPREME COURT REPORTS
'[1959]
r958
After examining the relevant decisions on this point,
Fazl Ali J. who delivered the judgment of the Court,
Tlze Erin Estate,
G tah Ceylon
has observed "(1) that the conception of residence in
0
~.
the case of a fictitious "person" such as a company,
Tile Commi;sioner is as artificial as the company itself and the locality of
of Income-Ta-<, the residence call' only be determined by analogy, by
Mad,as
asking where is the head and seat and directing
.
-
power of the affairs of the company." .................. (2)
Ga1endragadkar J ... Mere activity by the company ·in a place does not
create residence, with the result that the company
may· be "residing" in one place and doing a great
deal of business in another."· (3) "The central
management and control. of a company may be
divided and it may keep house and do business in
more than one place, and, if so, it may have more
•
than one residence." (4) "In case of dual resid"nce
it is necessary to show that the company performs
some of the vital organic functions incidental to its
existence as such in both the places so that in fact
·there are two centres of management." It is in the
light of these principles that s. 4 A (b) has to be construed. Thus the only question which remains to be
considered is whether the High Court ·of Madras was
right in holding that the. appellant was resident in
India under s. 4 A (b).
On behalf of the appellant, Mr. Kolah has contended
that the only conclusion· which can be legitimately
drawn from the evide!lce .in the case is that the control
and management of the appellant's affairs resided
· wholly in Ceylon. In support of this argument he has
·laid considerable emphasis on cl. (3) of the Partnership
Deed. This clause provides that the .estate (of the
·firm) shall be managed "by the superintendent Shriman A1B.S.T. Ponnambalam Pillai who has hitherto·
been in charg,. of the same and managing the same
or by a person appointed by a majority of the partners". The appellant's case is that, since the partners
·had specifically left the superintendent in charge of the
management of the estate, the control and man.agement was entirely· entrusted to him and thus it is·(
'vholly ·situated in Ceylon. It is no doubt true that
the §Ubstantial p{J<rt of the ~anagement of the. estate ·
•
t
. ...
.,.
..
I
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$.0.R.
SUPREME OQURT .REPORTS
579
was left to the superintendent. The superintendent
was staying near the estate
and was looking The Erin Estate,
after its . management and its affairs from
day
Galah, Ceylon
to day. Prima facie the material clause in the
v ..
.
Partnership Deed
and the evidence adduced in The Commissioner
d
1
1
f th
·ff: ·
of Income-Tax,
regar
to t rn genera management o
e a all's
Madrns
of the estate are no doubt in favour of the
appellant ; but it has been held by the High Court Gajendragadkar ].
that the correspondence produced in the case con-
. elusively showed that the control and management was
not wholly situated in Ceylon and that at least a part
of the control and management was situated in India
because the partners who resided in the District of
Tiruchira palli are shown to have exercised control and
management of the affairs of . the firm from time to
timo.. It is this conclusion which has been challenged
by Mr. Kolah. \Ve must, therefore, proceed to examine
the evidence given by the parties and the correspondence produced by the appellant in the case.
Andiappa Pillai stated before the Income-tax Officer
that the Superintendent looked after the entire
management of the estate and the entire control of
the affairs of the firm had been left to him by the
partners. He, however, admitted that, if anything
done by him <•ppeared to them to be irregular, they
had the right to check him or to give him directions as to how he should carry on the business. He also added that so far there had been no
occasion for them to disagree with anything done by
him.
Whilst Andiappa Pillai thus claimed that no
control has been exercised from India, he had to
concede that at the beginning of every year the
superintendent sends to.. the four partners mentioned
by him a budget concerning any important or big
matter to be attended to in connection w!th the estate.
It was usual for them, said Pillai, to approve of the
budget. It would thus be clear that this statement
shows that in regard to important and big matters a
budget was required to be submitted by the superintendent to the four principal partners and it was after
the budget was a.pproved by them that the superintendent was at liberty to &ct upon it .. In our opinion,
•
580
SUPREMJ11 COURT REPORTS
[1959]
'958
the fact that the budget thus submitted by' the superin- 1:,
The Erin Estat• tendent was usually approved by the partners does
Galah, Ceylon ' not detract from the position that the budget had to
·v,
•1i.e submitted and could be acted upon only after it
The Commissio"er was approved,
The act of approval in the context
01 Income-Tax, is undoubtedl v an act of exercising the right of control
l\ladras
.;
and management of the affairs of the firm.
That the
Gajcndrngadkar J. estimate for 1940 had been submitted to the partners
appears · from the letter written by V eera ppa Pillai to
the superintendent on January 2, 1940.
In this letter
Veerappa Pillai had told the superintendent that only
the school building should be built during the year
and that the plan about the stable may be considered
and attended to after April or May. Andiappa Pillai's
letter to the 8Uperintondent written on December 31,
1939, 'gives instructions about manuring and ask~ the
superintendent to
undertake the
building works
mentioned in the letter as economically as possible
even though the estimated cost of the building had
been approved, Then instructions are given as to how
the salary of the three accountants should be adjusted
in the account. He. was also told that Periasamy had
complained th'1t his salary W'1S insnfficie1it and the
superintendent was required to give his opinion about
the merits of the complaint. A direction w11s also
given to the superintendent that tea, should be· ti1kcn
in accordance with what is mentioned in the estimate
·so as not to go behind the quantity stated there. In
other words, the superintendent wt1s asked to confine
the. purchase of the tea within the limits mentioned in
the estimate which had been approved. It appears
that, on receiving the opinion of tht, Hnpcrintondont
:ahou.t the ~omplaint made by Periasamy in regard to
his s'1lary, the· superintendent was told to p11y him
H.~. 2 more P"r month.
This no doubt is a small item
but it shows that even where the salary of a clerk had
to be increased by .Rs. 2, the clerk made a representation to the partner, the partner called for the opinion
of the superintendent and, on considering the representation and the opinion together, the partner directed
the superintendent to pay the clerk Its. 2 more per
rn0t1th.
B~, his. letter dated July 11, 1!)40, Andiappa
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KC.R.
SUPREME COURT REPORTS
581
Pillai directed the superintendent as to how the garden
income should be adjusted.
Once in six months
Rs. 7,500 to Rs. 10,000 should be retained as reserve Then,;,. Estate,/
Galah, Ceylon
and the balance distributed amongst the pa.rtners in
v.
proportion to their shares. That is the direction The Commissioner
given.
Then the superintendent is told to engage
of Income-Tax,
lab9urcrs and to send Vaidyalingam and the labourers
Madras
to cut the wild plant growth in both the said garden G . d -dk.
and Konangodai garden. Certain other directions as a;en raga "' 1·
to the work to be assigned to the other clerks are also
given.
On July 13, 1940, Andiappa Pillai told the
superintendent to pack and send 70 lbs. F. B. 0. P.
tea and suggested that, if the tea had not been sent
already to V eera ppa Pillai, be should ·carry out the
said instruction. In this letter the superintendent is
also a~ked to enquire from other companies the price
of Nevvil and he is told that, having regard to the
nature of the current sales of tea, manuring need not
be stopped.
On July 29, 1940, the superintendent is
told as to how the account is to be made in regard to
the charges for the guards. On August 8, 1940,
Andiappa Pillai tells the superintendent that "when
the coupon price goes down purchase for our garden
20,000 lbs."
This correspondence shows that the
entire control and management of the affairs of the
firm had not been left with the superintendent. In
regard to the manuring of tea gardens, the salary to
be paid to the clerk, the purchase to be made, the
expenditure to be incurred in constructing a building, the manner in which the goods should be
packed and sent, all these are subjects discussed
by the partners in their letters to the superin•
tendent and in respect of all these, presumably
the superintendent had asked for directions and
the partners gave him the directions. Besi<fus, we have
already referred to the admission made by Andiappa·
Pillai that, at the beginning of every year, the superintendent sent to the four important partners a budget
~oncern_ing important and big matters to be attended
to during the course of the year. Having regard to
this evidence we are unable to accept the appeHant'ij
~
.
•
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582
SUPREME COURT :P.,EPORTS
[1959]
'958
argument that the control and management of the
The Erin E;tarr, appellant's affairs was situated wholly in Ceylon, In
· Galah, Ceylon
dealing with this question it would be relevant to bear
v,
in mind that the appellant would not succeed even if it
The Commi.<_siona is shown that a part of the control and management of
0! Inrome-Tax, the affairs of the company rested in India. The control
Madms
d
'
d b
·b
]
an
management must no
ou t
e s lOW!l to have
Gajendragadkar· J. been actually exercised; and the exercise. of the control
and management should not be illusory or merely
notional. Once it is shown that control and management in the affairs of the firm was exercised by the
partners residing in India, it would not be relevant to
enquire whether the control and management thus
exercised amounted to a substantial p'1rt of the control
'111d
management of the affairs of the firm.
The
exercise of the control and m'11rngemeut even iJJ, part
in the t'1xable territories would be cuough to fix the
'1ppe11'1nt with the ch'1racter of '1 resident within
s. 4A(b).
\Ve must accordingly hold that the High
Court of Madms was justified in holding that the
appellant is a firm resident in the tax'1ble tenitmics.
Mr. Kolah then rnised a further point which had not
been urged before the High Court. He contended th'1t
the control tind management mentioned ins. 4A(h)
must be control and management valid tind effective in
1'1w.
Under s, 12 of the Partnership Act, it is only the
nrnjority of partners who could h'1ve given effective
directions to the superintendent '1rtd since there. is no
evidence th'1t the '1lleged control and management has
been exercised by the majority of partners acting in
concert it would not be possible to hold that any control and mtinagement of the firm's '1ffairs resided in
India.
\Ve do not think there is any substtince in this
argument. Under s. 12(a), everj p'1rtner has a right
to take part in the conduct of the business '1nd it is
only where difference arises as to ordinary m'1tters connected with the business of the firm that the same has
to be decided by majority of part,ners under sub-s. (c)
of the said section. It has not been suggested or
. shown that there was any difference between tlic p'1rtners in regard to the ma ttern covered by the individual
p~rtner's letters of instruc.tion to the superintendent.
•
r
'
S.C.R.
SUPREME COURT REPORTS
583
I11deed the course of conduct evidenced by these letters
1958
shows that Andiappa Pillai who holds the maximum
f
d
1 h
h
The Erin Estate,
number o indivi ua s ares as purported to act for
Ga/ah. Ceylon
the partnership and usually gave instructions in regard
v.
to the conduct and management of the firm's affairs. The Commissioner
On the record we sec no trace of any protest against,
of Income-Tax.
or disagreement with, this cor!duct of Andiappa Pillai.
Madras
Besides, it was never suggested during the course of G . d -dk
the enquiry before the Income-tax Officers that the a;en raga
ar J.
directions given by Andi11.ppa Pillai were not valid or
effective and had not been agreed upon by the remaining partners. That is why we think this technical point
raised by Mr. Kolah must fail.
The result is the appeal fails and must be dismissed
with costs .
•
Appeal disrnissed.
K. KAMARA.JA NADAR
v.
KUN JU TREV AH, AND OTHE1~S
(and connected appeals)
(BHAGWATI, J. L. KAPUR and A. K. SARKAR JJ.)
Election Petition-Claim fvr seat-Candidate retiring from contest, whether a necessary party-vVithdrawal of claim for seat, if
cures defect of parties-Provisions relating to security deposit, if
mandatory-Representation of the People Act, I95I (43 of I95I),
SS. 82 and IIJ.
There were seven candidates duly nominated for election, and
four out of them withdrew their candidature by the due date.
The names of the remaining three were placecl on t11e list of contesting candidates prepared by the Returning Officer under s. 38
of the Representation of the People Act, 195r. Out of the three
candidates one Pillai retired from the contest under s. 55A(2) of
the Act leaving the appellant and the second respondent to contest the• election. After the appellant was declared duly elected
the first respondent, an elector in the constituency, filed an.
,
election petition praying that the election of the appellant be
declared void and further that the second respQndent be decl<JJ"ed
April 22.