Sha Rikabdas 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 u/s (3)(a)(iii) of the Madras Buildings (Lease and Rent Control) Act XVIII of 1960, that they require the buildings 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 buildings 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 a 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 buildings is required for the purposes 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 partner. 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 1948 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 godowns 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 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 unreported case at the foot-note Havabai Suleman Haji Abdulla v. Shah Koswal Kosaji and Co. Supreme Court Appeal No. 187 of 1849. 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 as follows: 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 eater into partnership along with himself to carry no business in these premises the certainly brought himself within the purview of the law prohibiting subletting 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 Firm Rajniklal and Co. v. Vithal Pandurang AIR 1952 Nag. 312. 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 heir 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 name''. It is called law that a firm 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 aluminum. The learned Counsel relying on the words ''his'' 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 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 Iim Shwe Htaw v. Ly Tyaw Tat AIR 1924 Ran 277 where their Lordships hold that a landlord who hold a third share in the partnership could not claim his own building for the purpose of his business within the meaning of Section 10 of the Rangoon Rent Act. Evidently the decisions 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 ease of sub-letting by the other partners a Bench of this Court consisting of Rajamannar, C.J., and Mack, J., held at page 424 as follows:

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 subletting 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 Varely v. Coppard 1872 L.R. C.P. 505 But this Court was not inclined to apply this doctrine to Indian Conditions. In Koragalva v. Jukrt Beary (1962) 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 rigor 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 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 the 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 or a period of twenty years. It is just and reasonable that sufficient time should be given to theta to vacate the premises 10 citalle them to secure another place for their business. In circumstances I gave them time till 1st April 1964. They are directed to deliver vacant possessiort of the premises to the �Respondents on or before 1st April 1964.