Messrs. Sha Rikhabdas Amirtlal vs Pathalam Venkatasubbiah Chetty and another

Venkatadri, J.—A question arises in this civil revision petition whether the respondents who are the partners of a firm can file an application

under S. 10(3)(a)(iii) of the Madras Buildings (Lease and Rent Control) Act, 1960, that they require the building which they have purchased from

its owners for the purpose of carrying on a business of their own which they are admittedly carrying on in a rented premises. The tenants object to

their request on the ground that the application is not maintainable as they do not require the building for their own purposes but for a partnership

business in which they are only partners. In effect, they allege that the respondents want to secure the building to a partnership concern consisting

of several partners including the respondents as partners.

Both the Rent Controller and the appellate authority decided the case in favour of the landlords (respondents) holding that their request was

bona fide one, and that the building was required for their own use even though it was for a partnership business.

The tenants (petitioners) have preferred this revision petition questioning the correctness of the decision of the lower Courts. They contend that

the landlords cannot ask for the non residential building for a partnership business. It cannot be said that the building is required for the purpose of

a business which is theirs. It is in this connection useful to refer to the principles of Rent Control by R.B. Andhyarujuna at page 257, under the

heading ""Premises required for the landlord and his partners."" The learned author says:

The connotation of the term ''landlord'' was further extended by Maclin, J., in Vallabhji Arjun v. Shamji Kalyanji C.R.A. No. 255 of 1946, where

the plaintiff, who was a partner in a firm, sought to eject the defendant, on the ground that the godown occupied by the defendant was required by

his firm, as some go-downs of the partnership were destroyed in the explosions of 1944, it was held by Maclin, J., that the plaintiff required the

premises for his own use, and the reason given for so holding was that ''if he cannot get it (the godown) for the firm, the plaintiff cannot get money

out of his firm. This is the extreme limit to which the connotation of the word ''landlord'' can be stretched, and it is submitted that this interpretation

is quite in consonant with the spirit of the clause, for but for this interpretation, the landlord himself would have been deprived of the benefit of his

own property.

In the same book the learned author cites another reported case at the foot note [Havabai Suleman Haji Abdulla v. Shah Koswal Kosaji and

Co. S.C.A. No. 187 of 1949]. There the partnership consisted of wife and husband and the premises belonging to the wife, were required for the

purposes of the firm. The wife sued to recover the premises from her tenant on the ground that the same were required for her firm. The suit was

rightly decreed in spite of the fact that before the commencement of the suit the husband alone was doing business and that only with a view to

obtain the necessary order, the wife was joined as a partner the requirement not being considered mala fide. Applying the principles laid down in

these two cases the landlords can ask for their building for their Own use.

Learned Counsel for the petitioners cited a case reported in Tansukhdas v. Shambai AIR 1954 Nag. 160. The facts in this case are: Originally,

the building was let to a tenant who subsequently allowed several other persons to occupy the premises to run the business as a partnership

concern in which the tenant was a partner. When the tenant filed a petition against the order of eviction, their Lordships observed:

If he (tenant) allowed other persons to enter into partnership along with himself to carry on business in these premises he certainly brought himself

within the purview of the law prohibiting sub-letting except with the permission of the landlord. The partnership which the petitioner entered into

along with the third parties was clearly a personality in law distinct from that of the petitioner himself.

It is this passage that is now relied on by the petitioners to support their proposition that the respondents do not require the building for their

personal use or business but for another entity, i.e., for partnership business. But the same High Court decided another case reported in AIR 1952

312 (Nagpur) There the landlord filed an application that he required a portion of the building occupied by a tenant for his own use. It was

contended by the tenant that the landlord could not file this application as he was not carrying on business of his own but it was for a partnership

concern in which he was one of the partners. Their Lordships interpreted the meaning of the word ""own"". While construing the word ""own"" their

Lordships observed as follows at page 313;

Persons who have entered into partnership with one another are called individually ''partners'' and collectively ''a firm'' and the name under which

the business is carried on is called the firm names. It is settled law that a firm is not a separate legal entity and the firm name is a compendious way

in which the business of the partners is carried on. Each partner carries on business for himself as principal and also as an agent for the other

partners. Mutual agency is an essential condition of partnership. It must therefore be held that the landlord himself is carrying on the wholesale

business in aluminium. The learned Counsel relying on the words ''his own'' contends that the business must be the exclusive business of the

landlord. There is no warrant for such a construction. As has been held in V.M. Deshmukh v. K.M. Kothari AIR 1951 Nag. 51. ''It would appear

that what is meant by the word ''own'' is something in which the landlord or his family have pecuniary interest''.

This case was referred to in Tansukhdas v. Shambai AIR 1954 Nag. 160 and there their Lordships distinguished it. The principle laid down in

Tansukhdas v. Shambai AIR 1954 Nag.160 is correctly applied by the lower Courts.

Learned Counsel for the petitioners also cited the case of the Rangoon High Court in Lim Chwe Etwa v. Lu Tyaw Tat AIR 1924 Rang. 277,

where their Lordships held that a landlord who held a third share in the partnership could not claim his own building for the purpose of his business

within the meaning of S. 10 of the Rangoon Rent Act. Evidently, the decision was based on the interpretation of the provisions of the Rangoon

Rent Act. Certainly this decision will not help the tenants because we have to decide the case on the interpretation of our Act.

There is a converse case reported in K. Devarajulu Naidu Vs. C. Ethirajavalli Thayaramma, by Power-of-attorney Agent, C. Ranganayakalu

Chetty and Others, where a landlady attempted to evict a tenant on the ground that the building was originally leased to a partnership concern

consisting of three persons and after its dissolution one of the partners was allowed to wind up the affairs of the partnership and thereafter allowed

to use the premises for his sole business. Repelling the contention that it was a case of sub-letting by the other partners a Bench of this Court

consisting of Rajamannar, C.J. and Mack, J., held, at page 424,

After the dissolution of the firm, one of the partners was allowed to wind up the affairs of the partnership and thereafter was allowed to use the

premises for his sole business. This act on the part of the two partners other than the petitioner cannot amount to a transfer or sub-letting of the

premises to the petitioner. It is true that the Courts in England have taken up an extreme view that even when one of two partners after the

dissolution of the partnership assigns to the other partner the interest of the partnership in premises which had been taken on lease by the

partnership, it would amount to a breach of the covenant prohibiting an assignment of the lease without the consent of the lessor [See Varley v.

Coppard (1872) L.R. 7 C.P. 205. But this Court was not inclined to apply this doctrine to Indian conditions. In Koragalva v. Fakri Beary 52

M.L.J. 8, Devadoss, J., held that the transfer by a co-lessee in favour of another lessee of his right in the lease would not be a breach of a

covenant against assignment without the consent of the landlord. The learned Judge was of the definite opinion that we should not introduce into

our Indian system the rigour of the English Law as regards the relation of landlord and tenant.

Therefore, following the principles laid down in these cases, it is clear that the application filed by the respondents for the requisition of the building

for their own partnership business is maintainable. It is not necessary that the building should be required for their own business. Admittedly, the

respondents who are the landlords purchased this building for their own use and occupation and they are now carrying on their business in rented

premises. The finding of the Courts below that the application filed by the respondents for the eviction of the petitioners (tenants) on the ground

that the building is required for their business, is bona fide and maintainable, is correct. The civil revision petition is dismissed; but in the

circumstances there will be no order as to costs. It is represented to me that the petitioners (tenants) are carrying on business in the premises for a

period of 20 years. It is just and reasonable that sufficient time should be given to them to vacate the premises to enable them to secure another for

their business. In the circumstances I give them time till 1st April 1964. They are directed to deliver vacant possession of the premises to the

respondents on or before the 1st April 1964.