Skip to content


V. Danmull Sowcar Vs. Syed Ali Mohamed - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 750 of 1965
Judge
Reported inAIR1969Mad214
ActsMadras Buildings (Lease and Rent Control) Act, 1960 - Sections 10(3)
AppellantV. Danmull Sowcar
RespondentSyed Ali Mohamed
Appellant AdvocateT.R. Ramachandran, Adv.
Respondent AdvocateC.R. Krishna Rao and ;A. Kamala Devi, Advs.
DispositionRevision dismissed
Cases ReferredIn Me Intyre v. Hardcastle
Excerpt:
.....under section 10 (3) (a) (iii) - respondent was owner of premises and required premises for his partnership business - respondent carrying on partnership business in his residential building - said section does not require that claim for eviction should be for his exclusive business - held, respondent entitled to obtain order of eviction on ground that he bona fide required non-residential premises for carrying on his partnership business. - - the case is clearly distinguishable from the facts of the present case where the respondent-landlord owns the premises and wants possession of the same for carrying on a partnership business. bhaskara krishnappa, [1966]3scr400 and the nature of the interests of a partner in a partnership property during the subsistence of the partnership..........for his occupation. further, the decision related to the claim by one of the partners of a firm for possession of a partnership property in the possession of a tenant for his separate business. it should be noted that no partner can claim any share in a partnership property before dissolution. the case is clearly distinguishable from the facts of the present case where the respondent-landlord owns the premises and wants possession of the same for carrying on a partnership business. the respondent in this case is not claiming possession of any partnership property, but his own property, it is true that he requires possession of the premises for a business in which he is a partner. but as already pointed out, the section does not require that the claim for eviction by alandlord.....
Judgment:

Sadasivam, J.

1. Petitioner is a tenant of a non-residential building, 6, Davidson Street, G.T. Madras owned by the respondent. The respondent got an order for eviction on his application before the Second Additional Rent Controller, Madras who held that the respondent, who is the owner of the non-residential building, does not own any other non-residential building other than the one leased to the petitioner and that he bona fide required it for his business, as the Managing Partner of the Mishba Transport Corporation, and the said order for eviction was confirmed by the appellate authority. The petitioner has come up to this Court in revision.

2. Veeraswami, J., before whom the petition came up for final disposal, considered that the question, whether one of the partners of a firm who is the owner of a non-residential premises could apply for eviction of the tenant occupying the same on the ground that he required it lor carrying on his partnership business, should be decided by a Bench, having regard to the conflict of approach to the fundamental principles and in order to have a authoritative decision to guide the Bent Controllers.

3. The decision in this case has to be made on the interpretation of Section 10 (3) (a) (iii) of the Madras Buildings (Lease and Rent Control) Act of 1960, hereinafter called the Act, which runs as follows: '

'in case it is any other non-residential building, if the landlord or his son is not occupying for purposes of a business which he or his son is carrying on, a non-residential building in the city, town or village concerned which is his own.'

On the finding of the courts below, which is not and could not be disputed, the respondent is the owner of the premises, 6 Davidson Street, G.T. Madras, occupied by the petitioner as tenant. The respondent requires the premises for his partnership business. On a plain reading of the sub-section quoted above, it is clear that it covers the claim of the respondent for eviction.

4. The learned Advocate for the petitioner incidentally argued that the respondent is carrying on his business in his own premises. But what the subsection quoted above prohibits is a claim for eviction by a landlord in occupation of any other non-residential building. In the present case, the respondent is carrying on his partnership business, namely keeping lorries for transport of goods in the compound of his residential building, and his claim for eviction cannot, therefore, be negatived by virtue of anything contained in the above sub-section. In fact, the petitioner has not taken any such plea before the Rent Controller, or the appellate authority, or even in the grounds of revision,

5. In Sha Rikhasdas Amritlal v, Venkata Subbiah Chetty, 1964 2 MLJ 132 the question that arose was whether the partners of a firm, who required a building which they had purchased, for the purpose of carrying on a business of their own which they were carrying on in a rented premises, could apply for eviction under Section 10 (3) (a) (iii) of the Act. Venkatadri, J., held that the application was maintainable and that it was not necessary that the building should be required for the applicants' exclusive business. He rightly quoted with approval the following passage with regard to the construction of the word 'own' appearing in Firm Rajniklal & Co. v. Vithal Pandurang, AIR 1952 Nag 312 to negative the contention that a landlord applying for eviction for carrying on a business should do so for his exclusive business only:

'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 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 carried 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'

6. The learned Advocate for the petitioner relied on the decision in Lim Chwe Htaw v. Lu Tyaw Tat, AIR 1924 Rang 277 which was also referred to and distinguished by Venkatadri, J., in the above judgment. It was held in the Rangoon case that because a landlord has a third share in the partnership and the partnership proposes to occupy part of the premises for purpose of its business, the premises cannot be regarded as being required for occupation by the landlord himself within the meaning and intention of Section 10 of the Rangoon Rent Act, Venkatadri, J., has observed that evidently, the decision was based on the interpretation of the provisions of the Rangoon Rent Act and hence the decision, will not help in the interpretation of the Madras Act. There is really no discussion of any principle in the Rangoon case. It appears from the decision that it turned on a question of fact whether the landlord reasonably and bona fide required the premises for his occupation. Further, the decision related to the claim by one of the partners of a firm for possession of a partnership property in the possession of a tenant for his separate business. It should be noted that no partner can claim any share in a partnership property before dissolution. The case is clearly distinguishable from the facts of the present case where the respondent-landlord owns the premises and wants possession of the same for carrying on a partnership business. The respondent in this case is not claiming possession of any partnership property, but his own property, it is true that he requires possession of the premises for a business in which he is a partner. But as already pointed out, the section does not require that the claim for eviction by alandlord should be for his exclusive business.

7. The definition of 'partnership' in Section 4 of the Indian Partnership Act closely follows that in the English Partnership Act and is as follows:

'Partnership is the relation between persons who have agreed to share the profits of business carried on by all or any of them acting for all.'

In Dulichand Laxminarayan v. C. I. T. Nagpur, : [1956]29ITR535(SC) it has been held that the word 'persons' in Section 4 of the Partnership Act contemplates only legal persons, natural or artificial, and that a firm is not a person. It is pointed out in the decision that English Lawyers do not recognise a firm as an entity distinct from the members composing it and that the Indian Partnership Law is based on the English Law. This principle has been reiterated in Narayanappa v. Bhaskara Krishnappa, : [1966]3SCR400 and the nature of the interests of a partner in a partnership property during the subsistence of the partnership and after its dissolution is clearly indicated.

8. The learned Advocate for the petitioner relied on the observations of Ramaprasada Rao, J,, in Saifuddin Hussainibhoy v. Burma Cycle Trading Co., : AIR1968Mad154 . The petition for eviction in that case was filed by four partners of a firm Saleh Bros., which was not registered, in respect of a property belonging to the firm. The claim was negatived on the main ground that it is an accepted principle of law that no proceeding can be instituted by an unregistered partnership against any person. The learned Judge, however, made some observations more in the nature of obiter dicta on the question whether the requirement of two only of the four landlords for the possession of a premises for a business of their own was maintainable. He found that under Section 10(3)(a)(iii) of the Act, it could not be said that all the petitioners are entitled to the possession of the building within the meaning of the above sub-section and that the petition for eviction was not maintainable on that ground. But his decision is really based on the sifting of the evidence in that case and the conclusion that the landlords of the premises in that case, though prima facie are the four petitioners in that case, in reality and in the eye of the law they represent an unregistered partnership which owns the premises, and therefore it is the requirement of an unregistered partnership that had to be considered in that case. In fact, Veera-swami, J., has in Govindaraju V. Vrajlal Dulabdass & Co. : (1967)2MLJ465 expressed a contrary view. In that case, a firm purchased a property, the purchase really being by its partners and let it out. One of the partners of the firm required the premises for his own occupation and the firm represented by him applied under Section 10(3)(a)(i) of the Act for eviction of the tenants. Veeraswami, J., was of the view that the words 'the landlord' will cover not only a single or sole landlord, but also one of the joint landlords and where the property is owned by the partners constituting a firm and one of them requires the building for his own occupation, it will squarely fall within the ambit of Section 10 (3) (a) (i) of the Act.

9. In Baker v. Lewis, 1946 2 All ER 592 the relevant clause of the statute which had to be considered provided as follows:--

'the dwelling-house is reasonably required by the landlord ......... for occupation as a residence ......... for (i) himself, or (ii) any son or daughter of his over 18 years of age; or (iii) his father or mother.'

The County Court Judge thought that in that section the word 'landlord' referred to only one person and had no application where two joint owners were claiming possession and for that reason, he refused the plaintiffs' possession. But relying on Section 1 of the Interpretation Act 1889, it was held in that case that 'Joint owners can be a landlord', within the meaning of the above clause. It has been held in that decision that if an owner wishes to obtain possession and to take with him into the house persons who are residing with him, but do not come within the provisions of the statute, the Judge, in deciding the other points which arise in the case, ought to take into consideration the fact that there are other people living with the owner in his present premises whom he does not wish to turn into the street. Somervell, L. J., who also concurred with the judgment, guarded himself by stating that he did not imply or suggest that the clause referred to above is only applicable in the case of joint owners where they are both desiring the dwelling house for occupation as a residence for all of their number. He was inclined to take the view that it has a wider application and that it would cover the case where A, B and C, being joint owners, put forward a claim for possession, alleging that the residence is required for occupation as a residence by A. Asquith, L. J., has held in that decision that where there are two or more joint beneficial owners the words 'for himself' in the relevant clause should be read as 'themselves'. In Me Intyre v. Hardcastle, 1948 1 All ER 696 the decision in 1946 2 All ER 592 was considered and it was held that where there were two or more joint beneficial owners, possession of a dwelling house could be obtained only if the dwelling house was required for occupation as a residence for both or all of them. The claim in that case was made by two joint owners on the ground that one of them required the house in the possession of the tenant for occupation as a residence for herself and the claim was negatived.

10. Thus on a strict view it could be contended that where there is more than one landlord the application for eviction of a tenant from the premises, should be for the purpose of occupation by all the landlords. The observations of Ramapra-sada Rao, J., support this view. But the other interpretation that the landlords can apply for possession of the premises leased to a tenant even when one only among them requires it for his occupation expressed by Veeraswami, J., appears to be bit strained, but could be justified on the ground that we are dealing with exproprietory legislation which restricts the rights of owners to get possession of their property from their tenants and a generous construction in keeping with the underlying spirit of the enactment is permissible. It is really unnecessary to go into the correctness of these decisions as they do not strictly arise for consideration in this case.

11. For the foregoing reasons, we accept the finding of the Rent Controllerand the appellate authority that the respondent is entitled to obtain an order ofeviction on the ground that he requiredthe non-residential premises for carryingon his partnership business. The civilrevision petition is therefore dismissedwith costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //