P.J. Jacob vs T.J. Jacob

Janaki Amma, J.—The revision Petitioner filed B.R.C.O.P. No. 87 of 1971 before the Rent Control Court, Kottayam for evicting the Respondent from a building let out to him. The claim for eviction was on grounds mentioned in Section 11(2) and Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act (for short ''the Act'').

Pending proceedings rent in arrears was paid. In answer to the claim u/s 11(4)(i), the tenant contended that there was no transfer of his right, there was no sub-letting and the petition for eviction was not sustainable in the light of the dismissal of two earlier petitions, O.P. 79 of 1969 and O.P. 47 of 1970. The Rent Control Court held that the petition was not barred but that the sub-lease was true. An order for eviction was accordingly passed. An appeal was filed before the Subordinate Judge as appellate authority. The appellate authority held that there was a transfer of tenancy right in favour of a firm of which the Respondent was a partner and also that the petition was barred in view of the dismissal of the two earlier petitions filed for the same relief. A revision petition was filed before the District Judge. The District Judge reversed the findings of the appellate authority and dismissed the claim for eviction. Against that order the present revision petition has been filed u/s 115 of the Code of Civil Procedure.

The Petitioner bases his claim for eviction u/s 11(4)(i) on:

(i) an alleged sub-lease to one M.R. George of a portion of the building; and

(ii) a transfer of the tenancy right in favour of the firm, Abraham John and Co., of which Respondent is a partner.

On the first point, the appellate authority and the District Judge have come to the conclusion that there was no transfer of exclusive possession and that the permission given to the alleged sub-lease has not been proved to be after the commencement of the Act. It has not been made out that the above conclusions are wrong.

Regarding the transfer of rights to the partnership concern, the Respondent has admitted that the firm, Abraham John and Company is occupying a portion of the building. Ext. B-9 is the partnership deed. Under its terms, one Abraham John is the managing partner and the Respondent is one of the partners. The contention, however, is that the permission granted to the firm to use the premises does not amount to a transfer u/s 11(4)(i) of the Act so as to entitle the Petitioner to recover possession of the building.

The point for consideration is whether there is a transfer of the right of the tenant or a sub-lease in a case where the tenant becomes a partner of a firm and the firm carries on business in the building. The point arose before the Madras High Court in the decision in Gundalapalli Rangamannar Chetty Vs. Desu Rangiah and Others, a case decided under the Madras Buildings (Lease and Rent Control) Act, 25 of 1949. Justice Subba Rao, who decided the case overruled the contentions of the Petitioner-landlord and held that there was no sub-letting. The learned Judge observed as follows:

It is clear from the aforesaid decisions that there cannot be a sub-letting, unless the lessee parted with legal possession. The mere fact that Anr. is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease. Section 105 of the Transfer of Property Act defines a lease of immovable property as to transfer of right to enjoy such property. Therefore to create a lease or sub-lease a right to exclusive possession and enjoyment of the property should be conferred on Anr. . In the present case the exclusive possession of the premises was not given to the second Respondent. The first Respondent continued to be the lessee, though in regard to the business carried on in the premises he had taken in other partners.

A similar conclusion was arrived at by the Punjab and Haryana High Court in Vir Bhan Aggarwal Vs. Kunj Lal and Another, and by the Jammu and Kashmir High Court in Mani Ram v. Satpal Kapoor and Ors. AIR 1972 J & K 37. But a different note is seen struck in Tansukhdas Chhaganlal v. Smt. Shambai and Anr. AIR 1954 Nag 160. A Division Bench of the Nagpur High Court observed:

.... There is no doubt that in the first instance the Petitioner alone was the tenant of the premises. If he allowed other persons to enter into partnership along with himself to carry on business in those 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.

With great respect, I am unable to agree with the view expressed by the above decision. As observed by Mahajan, J. in Commissioner of Income Tax, West Bengal Vs. A.W. Figgies and Co. and Others, .

... under the law of partnership a firm has no legal existence apart from its partners and it is merely a compendious name to describe its partners.

Possession of the firm is, therefore, possession of the partners. Granting of permission to the firm to conduct business in the building does not amount to transfer of exclusive possession by the Respondent to Anr. person. This is so, so long as the Respondent continues to remain a partner of the firm. The position may be different when he retires from the firm and severs connection therewith. The learned District Judge was, therefore, right in holding that the Petitioner is not entitled to an order of eviction u/s 11(4)(i) of the Act.

There is no merit in the contention that the finding of the appellate authority regarding the sub-lease should stand in the absence of a revision petition by the tenant. Paragraph 11 of the order of the District Judge is an answer to the objection. It is also seen that the finding had been challenged before the District Judge.

In the light of the above conclusion, there is no necessity to decide whether the petition for eviction was otherwise not maintainable.

The revision petition is, therefore, dismissed with costs.