Delhi District Court
Courts vs M/S Janak International on 8 December, 2010
1
IN THE COURT OF SH. PRITAM SINGH, ARC (CENTAL) TIS HAZARI
COURTS, DELHI.
E201/09
08.12.2010
Shri Bhagwan Dass Suneja,
son of Shri Ganga Ram Suneja,
resident of 15A/54, Shiv Kuti,
W.E.A. Karol Bagh, New Delhi ... Petitioner
Versus.
1. M/s Janak International
(to be served through its partner
Shri Arun Kumar Mehra, son of
Sh. Sardari Lal Mehra)
15A/54, W.E.A, Karol Bagh,
New Delhi.
2. Shri Lalit Kumar Mehra (Exparte)
3. Shri Suresh Kumar Mehra (Exparte)
(Both sons of Sh. Sardari Lal Mehra)
Care of M/s Janak Exclusive, 15A/16,
Ajmal Khan Road, Karol Bagh, New Delhi.
Second Address
M66, Greater Kailash,
PartI, Market, New Delhi.
4. Shri Arun Kumar Mehra
Son of Shri Sardari Lal Mehra,
2
R/o House No. D110,
New Friends Colony,
New Delhi. ... Respondents
Petition U/s 14 (1) (b) of Delhi Rent Control Act.
1. Date of institution of the case : 01.12.1993
2. Date of Judgment Reserved : 30.11.2010
3. Date of Judgment pronounced : 08.12.2010
JUDGMENT
The brief facts as stated in the petition are that the premises i.e one room and WC on the ground floor forming part of the property bearing no. 15A/54, Shiv Kuti, W.E.A, Karol Bagh, New Delhi were originally let out on 27.07.1979 vide rent deed dated 27.07.1979 executed by the respondents No. 2 to 4 & their father and mother Shri Sardari Lal Mehra and Smt. Janak Rani Mehra in favour of the petitioner. The respondent No. 1 was the partnership firm at the time of letting and the respondents No. 2 to 4 and the abovenamed Shri Sardari lal Mehra and Smt. Janak Rani were the partners of the said firm and as such all the persons/partners became joint tenants of the premises in question but since Shri Sardari Lal Mehra and Smt. Janak Rani Mehra died, their joint rights of tenancy devolved upon the surviving tenants/partners/persons i.e the respondents 3 No. 2 to 4. In fact, it was the respondents No. 2 to 4 and Shri Sardari Lal Mehra and Smt. Janak Rani Mehra who were the joint tenants, although the tenancy was created in the name of the respondent No. 1 firm i.e M/s Janak International, which was a compendious name of the persons who constituted the said firm at the time of letting.
2. It is further stated that the respondents No. 2 to 4 either themselves or alongwith their other copartners i.e Sh. Sardari Lal Mehra and Smt. Janak Rani, both of whom have since died, illegally sublet, assigned or otherwise parted away with the possession of the tenanted premises in question to some other persons without the consent/written consent of the petitioner and the sublettees/assignees are now in illegal occupation of the premises in question and are carrying on the business in the same name and style of M/s Janak International and the said persons are now the partners of the firm M/s Janak International but the respondents No. 2 to 4 have ceased to be partners of the said firm and are not the partners in the newly constituted partnership firm. So the respondents No. 2 to 4 having passed on physical and illegal possession of the premises to others without the consent/written consent of the petitioner under their tenancy to others, are liable to eviction under the provisions of Section 14 (1) (b) of the Delhi Rent Control Act. 4
3. Written statement filed on behalf of respondents no. 1 and 4. The relationship of landlord and tenants between the parties is not disputed. It is admitted that the suit premises was let out to the respondents for non residential purposes and have been used as such since the inception of the tenancy. It is further stated in the written statement that the premises in suit are one shop with attached toilet on the ground floor and the site plan filed by the petitioner is wrong. It is specifically denied that the respondents or any of them sub let, assigned or otherwise parted with the possession in suit to the third party. It is denied that third parties who were not the tenants in the premises have ever been in possession of the suit premises. It is stated that the actual physical possession as well as legal possession has always been of the tenants as named in the rent note dated 27.07.1979. The suit premises was let out in the name of respondent no. 1 and Sh. Sardari Lal Mehra, Smt. Janak Rani Mehra, Sh. Lalit Kumar Mehra, Sh. Suresh Kumar Mehra and Sh. Arun Kumar Mehra were recognized as tenants at the time of inception of the tenancy.
4. It is further stated that the alleged sub tenants are none other than the progeny/family members of Sh. Arun Kumar Mehra, respondent no. 4, who is one of the admitted tenants qua the premises in suit. The alleged sub tenants are wife, sons and daughterinlaw of Sh. Arun Kumar Mehra. 5 There is perfect harmony in the family of Sh. Arun Kumar Mehra and they are residing as family members in their family home at D1102, New Friends Colony, New Delhi65. They have, at home, a common mess and live together as the members of one close family and Sh. Arun Kumar Mehra is head of the family. It is further stated that Sh. Arun Kumar Mehra has introduced the said family members in his business with him under the name and style of M/s Janak International. The business carried on in the premises in suit is the business of Sh. Arun Kumar Mehra, although the affairs are looked after not only be him but also by his family members and particularly by his sons who have now grown up and joined him in business. It is prayed that the present petition is not maintainable and the same is liable to be dismissed.
5. The petitioner has filed replication in which averments made in the petition are reiterated and reaffirmed but those made in written statement have been controverted. No one appeared for respondent no. 3 and 4 and they were proceeded exparte on 18.01.1994.
6. Thereafter, in order to prove his case, the petitioner has examined one Sh. Radhey Sham, Record Clerk from Sales Tax Department, Govt. of NCT of Delhi as PW1, photocopy of registration certificate of M/s Janak International Ex. PW1/1. Photocopy of partnership deed 13.07.1979 6 Ex. PW1/2. Photocopy of partnership deed dated 01.08.1989 Ex. PW1/3. Photocopy of partnership deed dated 01.07.1979 Ex. PW1/4. Photocopy of partnership deed dated 21.03.1986 Ex. PW1/5. Photocopy of partnership deed dated 21.04.1989 Ex. PW1/6. Photocopy of partnership deed 01.04.1992 Ex. PW1/7. Photocopy of retirement dated 31.07.1989 Ex. PW1/8. Photocopy of the photocopy of partnership deed dated 01.08.1989 Ex. PW1/9.
7. Sh. Subhash Chander Suneja son of the petitioner and also his attorney was examined as PW2. The original power of attorney executed by the petitioner in favour of PW2, Sh. Subhash Chand Suneja Ex. PW2/1. The rent deed dated 27.07.1979 Ex. PW2/2. Carbon copy of notice dated 22.07.1995 Ex. PW2/4. Postal receipt regarding sending of notice Ex. PW2/5. AD cards Ex. PW2/6. Site plan of the suit premises filed by the petitioner Ex. PW2/7.
8. One Shri Roshan Lal, Inspector, Investigation Circle11 (I), Income Tax Department was examined as PW3. The true copy of partnership deed dated 21.04.1989 Ex. PW3/1, Form No. 11 filed in Income Tax Department Ex. PW3/2. The retirement deed dated 31.07.1989 Ex. PW3/3. The partnership deed 01.08.1989 Ex. PW3/4. A true copy of form No. 11 filed by the partners in the Income Tax Department Ex. PW3/5. A true copy of 7 assessment order for the assessment year 1991 Ex.PW3/6. The dissolution dated 14.02.1989 Ex. PW3/7.
9. On the other hand the respondent no. 4 has examined himself as RW1 and has filed his evidence by way of affidavit which is Ex. RW1/1.
10. I have heard the Ld. Counsels for the parties and gone through the entire record carefully.
11. Ld. Counsel for petitioner relied upon the following rulings :
(i) Chic International Vs. Naintar, 1994. Rajdhani Law Reporters, where it is held that mere fact of permitting another person to use portion of premises without written consent of landlord is contrary to S. 14 (1) (b) and establishes subletting. If landlord shows possession of another then onus of proving capacity of possession is on the tenant who cannot camouflage subletting in the guise of license. Offering rent by such licensee to landlord affirms his subletting.
(ii) Duli Chand (D) By LRs Vs. Jagmender Dass, 1990 Rajdhani Law Reporters (SC) 13, where it is held that if a tenant of a shop permits his natural son given away in adoption to another to do his own proprietory 8 business in the shop, the tenant having no interest in the business and works elsewhere with no concurrent user of tenanted shop then it is parting with possession. Tenant's occasional sitting in the shop is immaterial. As for lawful subletting etc. statute requires written consent. Oral or implied permission or waiver or acquiescance have no relevance at all.
(iii) Smt. Kulwant Kaur etc., Vs. S.P.Bawa, AIR 1993, Delhi 296, where it is held that close relationship between tenant and person to whom exclusive possession is given does not make the case any less than subletting.
(iv) Hari Ram Vs. Rukmani Devi, 1996 Rajdhani Law Reporter, where it is held that if landlord by evidence indicates presence of stranger in tenancy premises then it is for tenant to give Best Evidence to prove that Stranger is not subtenant. When tenant contends that stranger was his employee, he must give documentary evidence. Photographs showing sign board of subtenant lends support to plea of subletting.
(v) Haji Abdul Vs. Rent Control and Eviction Officer, Kanupur and others, AIR 1959 Allahabad 440 (V 46 C III), where it is held that if a tansaction is genuine and intended to be acted upon, it cannot be assailed on the ground that the motive of the parties was to avoid a particular statute. 9 Secondly, on the other hand, if it is "sham" transaction never intended to be acted upon but only a legal mask for quite another sort of transaction, the court will tear off the mask to see the real face of the transaction ; and the fact that the mask is legally perfect in itself will not save it from being torn off and discarded. If a deed of partnership contains clauses which are inconsistent with and contradict one another and the intention of the parties is under suspicion the intention as to their real relation has to be ascertained by all the relevant facts taken together.
(vi) Hiralal Vs. Gian Singh and Co. and others, AIR (38) 1951 Punjab 441 (C.N. 140).
12. Ld. Counsel for the respondents relied upon the following rulings :
(i) Krishna Wati Vs. Hans Raj, 1974 (2) Supreme Court Reports 524, in this case the appellant took a lease of shop premises from the respondent. From the time of letting, a chemist's business was carried on in the shop by S with the occasional help of the appellant. S and the appellant were living as husband and wife to the knowledge of the respondent. The respondent applied under s. 14 of the Delhi Rent Control Act, 1958, for eviction of the appellant on the ground that she had sublet the premises to S. The Rent Controller and the Tribunal on appeal held that the appellant and S were 10 living together as husband and wife, and that therefore there was no question of any subletting by the appellant. In second appeal, holding that two substantial questions of law were involved namely, one relating to the status of the appellant as the wife of S, and the other, whether subletting was established, the Hon'ble High Court concluded that there was subletting in favour of S. On the question whether the appellant was legally married no finding was necessary in the eviction suit. It was sufficient for the rent court to proceed on the finding that the appellant and S were living together as husband and wife, whether they were legally married or not.
(ii) Jagan Nath (Deceased) Through LRs. Vs. Chander Bhan and Others (1988) 3 Supreme Court Cases 57, in this case the tenant, belonging to a joint Hindu family, was carrying on proprietary business with the help of his sons in a part of the residentialcumcommercial premises and after his retirement from the business his sons take it over by forming a partnership. It was held there cannot be a presumption of parting with possession of the premises by the tenant in favour of his sons so as to constitute subletting.
(iii) Vijay Kumar and Others Vs. M/s Raghbir Singh Anokh Singh, (1973) 2 Supreme Court Cases 597, it is observed by Hon'ble Supreme Court that the plea of counsel for appellants has substances that the first appellant, 11 being the father of the other two appellants established them in the business and permitted them to occupy a half portion of the shop for that purpose. As a father it was natural for him to establish them in life. However, this plea was never taken in their written statement. It was also not pressed even during the hearing before the Rent Controller nor the Rent Control Tribunal nor the High Court, therefore not considered by Hon'ble Supreme Court.
(iv) Ram Kumar and others Vs. Rajinder Thakur and others, 1986 (1) Rent Control Reporter 601.
(v) Madras Bangalore Transport Co. (West) Vs. Inder Singh and Others (1986) 3 Supreme Court Cases 62, where it is held that Limited company formed with partners of existing tenant firm as directors. Both the firm and the company operating from the same place, each acting as agent of the other. Held, on facts, though the company was a separate legal entity, actually it was only as an alter ego or corporate reflection of the tenant firm and the two were one for all practical purposes having substantial identity. Hence there was no subletting, assignment or parting with possession of the premises by the firm to the company so as to attract Section 14 (1) (b) of DRC Act, 1958 Company Law.
(vi) Gundalapalli Rangamannar Chetty Vs. Desu Rangiah and others, 12 AIR. 1954 Madras 182 (Vol. 41, C.N.71), where it is held that there cannot be a subletting unless the lessee parted with legal possession. The mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sublease. To create a lease or sublease a right to exclusive possession and enjoyment of the property should be conferred on another.
(vii) United bank of India Vs. Cooks and Kelvey Properties (P) Limited (1994) 5 Supreme Court Cases 9, where it is held that transfer of right to enjoy the premises by the subtenant for consideration essential. S.105 of Transfer of Property Act applicable. Tenant Bank inducting its trade union into the premises. Bank not receiving any monetary consideration from the trade union and maintaining the premises at its own expenses and also paying electricity charges consumed by the trade union. Bank retaining its control over the trade union including the power to require the union to vacate the premises at any time. In the circumstances held, the trade union had only constructive possession on behalf of the Bank which retained the legal possession and hence there was no transfer of right for consideration.
13. The present petition filed U/s 14(1) (b) of DRC Act which provides as under : 13 "That the tenant has on or after the 9th day of June 1952 sub let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord".
14. The case of the petitioner is that the suit premises was let out by the petitioner to Respondent No. 1, M/s Janak International which was a partnership firm, vide rent agreement dated 27.07.1979. At that time the respondent no. 1 had partners namely Sardari Lal Mehra, Smt. Janak Rani Mehra, Sh. Lalit Mehra and Sh. Suresh Mehra, Sh. Arun Kumar Mehra. Allegations are that respondents no. 2 to 4 have sub let, assigned or parted with the possession of suit premises to others who were not the partners of respondent no. 1 at the time of letting of the premises without the written consent of the petitioner and the said sub tenants are in possession and in occupation of the suit premises. Whereas the respondent no. 1 and 4 have taken stand in their written statement that the suit premises in question is fully under control and possession of the respondent no. 4 and he is running the business of respondent no. 1 firm. None of the respondents has ever sublet, assigned or parted with the possession of the suit premises to others. The respondent no. 4 has further contended that the alleged subtenants are his progeny/family members who are his wife, sons and daughterinlaw. 14 They are living together in a family home and Sh. Arun Kumar Mehra has introduced them in his business under the name and style of M/s Janak International.
15. Ld. Counsel for petitioner submitted that respondent no. 4 Sh. Arun Kumar Mehra had deceptively included himself as a partner and entered his name fraudulently in the rent deed. However, he was not a partner in the partnership deed of the respondent no. 1 dated 13.07.1979. Ld. Counsel for petitioner further submitted that the partnership firm of the respondents was dissolved on many occasion and partners kept changing from time to time and at present the possession of the tenanted premises is not with the respondents and they have given the possession to third person who are in use and occupation of the tenanted premises, therefore, it amounts to subletting. Ld. Counsel further submitted that partnership arises from contract and it is not created by status of its members. Ld. Counsel further submitted that firm is dissolved on the death of a partners and as two partners died, therefore U/s 42 of Indian Partnership Act, 1932, the partnership is dissolved. Ld. Counsel further submitted that the respondent has stated in his evidence that after him, his progeny will use the premises in question and he will not vacate the premises. Ld counsel further submitted that the petitioner has proved his case and an eviction order may 15 kindly be passed against the respondents.
16. On the other hand Ld. Counsel for respondents no. 1 and 4 submitted that the premises in question was never sublet or assigned or parted with by the respondents to any third person and the respondents are in use and occupation of the premises since the inception of the tenancy. Ld. Counsel further submitted that the petitioner has to stick to his argument as per the pleadings made in the petition and he cannot go beyond the pleadings. Ld. Counsel further submitted that the petitioner stated in the present petition that the respondent no. 4 a partner of M/s Janak International, respondent no. 1 and described him as a joint tenant in the premises in question. Ld. Counsel further submitted that the respondent no. 4 is not a joint tenant but a cotenant in the suit premises as all the partners of the partnership firm are considered cotenants in respect of tenanted premises. Ld. Counsel further submitted that it is admitted by the PW2 that Sh. Ajay Kumar Mehra, who is alleged to be subtenant in the premises in question, is none other than son of Arun Kumar Mehra, respondent no. 4 and other persons are wife and daughterinlaw of respondent no. 4. Ld. Counsel further submitted that all the family members of respondent no. 4 are living together in a family house and they have a common mess. Ld. Counsel further submitted that being a father it is natural duty of respondent no. 4 to 16 establish his children particularly his sons in their life and if the sons and other family members of the respondent no. 4 are working in the suit premises alongwith respondent no.4 then it does not amount to subletting. Ld. Counsel further submitted that the respondent no. 4 never gave away the legal possession of the suit premises to anyone and still running the business in the name of M/s Janak International in the suit premises. Ld. Counsel further submitted that the petitioner just wanted to get vacate the suit premises, therefore filed this false petition.
17. To establish sub tenancy U/s 14 (1) (b) of DRC Act, the initial burden is upon the petitioner to prove the presence of third person other than the respondents/tenants in the suit premises. In this regard, the petitioner has got examined three witnesses. PW1 and PW3 are formal witnesses from Sales Tax and Income Tax Department who produced the record regarding the registration, dissolution/retirement deeds and Income Tax of partnership firm M/s Janak International. The material witness is PW2 who is his attorney and also his son. PW2 has deposed in his evidence that respondent no. 1 firm was the tenant in the premises in question under the petitioner. Rent deed was written at the time of letting out the premises and the same was signed by his father as well as by the partners of respondent no. 1's firm, rent deed is Ex. PW2/2. PW2 further deposed that at the time of letting, Sh. Sardari Lal Mehra, Smt Janak Rani Mehra, Sh. Arun Kumar 17 Mehra, Sh. Lalit Kumar Mehra, Sh. Suresh Kumar Mehra were the partners of firm M/s Janak International. The rent deed was signed by all of them. PW2 further deposed that at the time of filing the present petition none of the aforesaid partners was in the possession of premises in question. In the year 19891990 a young man namely Ajay Kumar started doing the business in the shop in question. Sh. Ajay Kumar used to open and close the premises in question. When he made inquiry from said Ajay Kumar and protested the presence of Ajay Kumar in the suit premises upon which he stopped paying rent. PW2 further deposed that after the period of 7/8 months he again asked Sh. Arun Kumar Mehra about sub letting and he showed him certain papers and gave the photocopy of the same to him. The papers were photocopy of partnership deed of M/s Janak International. Photocopy of partnership deed dated 13.07.1979, photocopy of resolution deed dated 14.02.1989, photocopy of partnership deed dated 21.04.1989 and photocopy of retirement deed dated 31.07.1989 and photocopy of partnership deed dated 01.08.1989 and photocopy of partnership deed dated 01.04.1992 were marked A to F respectively.
18. PW2 further deposed that out of the aforesaid partners Sh. Sardari Lal Mehra and Smt. Janak Rani Mehra are expired. None of the partners of M/s Janak International carries on business in the premises in question. All 18 the original partners of M/s Janak International had left the partnership firm and new partners were inducted in the same. Ajay Kumar joined the firm as one of its partners. The name of the firm was not changed and new partners continued the business with the same name. PW2 further deposed that the permission of the petitioner was never taken for inducting of the new partner who are in possession of the premises in question.
19. PW2 deposed in cross examination that all the five partners of M/s Janak International namely Sardari Lal Mehra, Janak Rani Mehra, Arun Kumar Mehra, Lalit Kumar Mehra and Sh. Suresh Kumar Mehra were present at the time of creation of the tenancy. PW2 further deposed that he does not know as to what is the relationship of Ajay kumar and Sardari Lal Mehra. Sh. Arun Kumar Mehra is son of Sh. Sardari Lal Mehra. He (PW2) did not make any inquiry of the identity of Ajay Kumar Mehra and Sh. Ajay Kumar Mehra might be the son of Sh. Arun Kumar Mehra. PW2 deposed that he cannot either admit or deny if Sh. Ajay Kumar Mehra is the son of Sh. Arun Kumar Mehra. PW2 deposed that later on he came to know that Sh. Ajay Kumar Mehra is son of Sh. Arun Kumar Mehra.
20. To deny the allegation of the petitioner regarding subletting of the premises respondent no. 4 deposed that ever since the inception of tenancy 19 in 1979 the legal, actual and physical possession of the suit premises has always been with the tenants. After death of his parents and on brothers separating in business, he is the senior most partner in the firm M/s Janak International. RW1 further deposed that the alleged subtenants Smt. Sudarshan Rani Mehra, Sh. Ajay Kumar, Sh. Rajesh Kumar Mehra and Smt. Geeta Mehra all his family members who are his wife, sons and daughterinlaw respectively. RW1 further deposed that his wife, sons and daughterinlaw live with him as family members in their family house at D1102, New Friends Colony, New Delhi and they have common mess and live together as members of one close knit family. RW1 further deposed that he imparted the art of doing business to his said family members and he set up them in business with him under the name and style of M/s Janak International. RW1 admitted in his cross examination that the partnership was dissolved vide Ex. RW1/5 but stated that it was their family matter. To answer the question regarding the names of partners of M/s Janak International at present, RW1 replied that last partnership deed is already on record and as far as he recalled the partners are Sh. Ajay Kumar, Smt. Sunita Mehra and he himself. RW1 further deposed that the abovesaid three partners are authorized signatory for the respondent no. 1 in the Bank. Another question was put to RW1 that whether one of the partners was authorized to sign the rent cheque or it was necessary for more than one 20 partner to sign the same. RW1 replied that sometime he, sometime his son used to sign the rent cheques and anyone partner can signed the cheque. RW1 further deposed that no change took place in the name, style, functioning and character in the business of respondent no. 1 since 1979. RW1 admitted that different partnership deeds were executed from time to time.
21. After considering the case of the petitioner and the defence of the respondents, the case of petitioner in nutshell is that M/s Janak International, respondent no.1 to whom the premises in question was let out already dissolved and the persons who were partners at the time of inception of tenancy are no more partners in the said partnership firm and they have sublet or assigned or parted with possession of premises to third persons. On the other hand the respondents have taken the defence that respondent no. 4 is still running the business of M/s Janak International and the alleged subtenants are none other than his sons, wife and daughterin law. I am of the view that before appreciation of evidence of both the parties, the law regarding tenancy of partnership firm should be discussed.
22. It was held by Justice S.K.Mahajan of Delhi High Court in case titled Mool Chand Vs. M/s Inder Mal Bishamber Sahai and another, CM (M) No. 21 541/2002, D.O.D. 30.10.2002 that "A partnership firm is not a legal entity ; it is merely a compendious mode of describing the partners who constitute the said partnership. Each partner who constitutes partnership has an undivided interest in the firm. The premises, therefore, when let to the firm was in fact let to all the partners who constituted the partnership at that time. All the five partners were thus tenants in the premises and merely because some of such partners who constituted the firm are not in possession of the premises and one of the partner who was also a tenant in common along with other partners, as on the date of letting of the premises to the firm, continues to remain in possession, the same would not amount to subletting or assignment of premises of the firm to an outsider. Merely because the firm is still existing and has not been dissolved and is functioning from other premises and the premises in question is with one of the erstwhile partner of the firm will not amount to subletting, assignment or parting with possession of the premises by the firm to one of its erstwhile partner".
23. It was held in Niranjan Lal Kanodia Vs. Harbans Lal, 1995 II AD (Delhi) 347 that even though the tenant had retired from the business and his sons had been looking after the business, it could not be said that the tenant had divested himself of the legal right to be in possession. 22
24. In Devarajulu Naidu Vs. Ethirajavalli Thayaramma (1949) 2 Mad LJ 423 the original tenancy was in favour of three persons who were partners in the firm and after dissolution of the partnership firm one of the partners was allowed to wind up the affairs of the partnership and thereafter he was allowed to use the demised premises for his sole business. The question arose whether in such case the landlord was entitled to eviction of that partner from the tenanted premises on the ground that there was subletting. It was held by Madras High Court that in the facts of that case the original tenancy being in favour of three persons who were partners in the firm the act on the part of the two partners after dissolution of the firm to allow one of the partners to use the premises for his sole business could not amount to a transfer or subletting of the premises to the petitioner.
25. It was held in S.Raghbir Singh Vs. Sheela Wanti, 90 (2001) DLT 284 that in a case where the suit premises let out for commercial purposes but the tenant was incapable of running business on her own. She inducted other persons as partners from time to time. Various partnership agreement entered into by respondents were not sham documents and it does not amount to subletting. In Kashmir Crafts land Vs. V.V.Puri, CM (M) 313/2002 D.O.D 09.07.2002, it was held by Justice Mahajan of Delhi High 23 Court that "a tenant has the right to enter into partnership and till such time he continues to be a partner, there is no subletting to the firm in which he was inducted as a partner. In such an eventuality legal possession always remains with the tenant. It was only when the tenant ceased to be a partner in the firm and exclusive possession was given to the petitioners that sub tenancy came into existence in favour of the petitioners and the landlord has the right to file a petition for the eviction of the petitioners on the ground of subtenancy".
26. Thus, it is well settled that in case of a partnership firm, firm not being a legal entity but only a compendious name of the partners and thus all the partners become tenants of the premises. They all have tenancy right in the premises till any of the partners is in possession of the premises may be under the same firm or under some other name, but there is no subletting.
27. In the case in hand, it is admitted case of parties that the suit premises were let out to M/s Janak International, respondent no. 1 and at that time, Arun Kumar Mehra, respondent no. 4 was also a tenant in the partnership firm. PW2 Sh. Subhash Chandra no where deposed that Sh. Arun Kumar Mehra, respondent no. 4 was not a partner in the M/s Janak International 24 firm. According to the petitioner Sh. Arun Kumar Mehra is a joint tenant in the premises in question. The question arises whether respondent no. 4 is a joint tenant or a cotenant in the premises in question. It was held by Justice S.K.Mahajan of Delhi High Court in case titled Mool Chand Vs. M/s Inder Mal Bishamber Sahai and another, CM (M) No. 541/2002, D.O.D. 30.10.2002 that "A partnership firm is not a legal entity ; it is merely a compendious mode of describing the partners who constitute the said partnership. Each partner who constitutes partnership has an undivided interest in the firm. The premises, therefore, when let to the firm was in fact let to all the partners who constituted the partnership at that time. All the five partners were thus tenants in the premises and merely because some of such partners who constituted the firm are not in possession of the premises and one of the partner who was also a tenant in common along with other partners, as on the date of letting of the premises to the firm, continues to remain in possession, the same would not amount to subletting or assignment of premises of the firm to an outsider. Merely because the firm is still existing and has not been dissolved and is functioning from other premises and the premises in question is with one of the erstwhile partner of the firm will not amount to subletting, assignment or parting with possession of the premises by the firm to one of its erstwhile partner". 25
28. It is clear from Mool Chand Vs. M/s Inder Mal Bishamber Sahai and another (supra) that Shri Arun Kumar respondent no. 4 is a cotenant in the premises in question. The second question arise, whether the tenancy of a partnership firm comes to an end on the change of partners and dissolution of partnership firm. The answer to this question is available in Devarajulu Naidu Vs. Ethirajavalli Thayaramma (1949) 2 Mad LJ 423, in this case the original tenancy was in favour of three persons who were partners in the firm and after dissolution of the partnership firm one of the partners was allowed to wind up the affairs of the partnership and thereafter he was allowed to use the demised premises for his sole business. The question arose whether in such case the landlord was entitled to eviction of that partner from the tenanted premises on the ground that there was subletting. It was held by Madras High Court that in the facts of that case the original tenancy being in favour of three persons who were partners in the firm the act on the part of the two partners after dissolution of the firm to allow one of the partners to use the premises for his sole business could not amount to a transfer or subletting of the premises to the petitioner. Hence, it is clear that the tenancy of a partnership firm does not comes to an end on the change of the partners and on its dissolution where one of the partners who was cotenant at the time of inception of tenancy, is still in possession of the tenanted premises and carrying on business.
26
29. Further allegations of the petitioner are that the respondents sublet, assigned or parted with the premises to one Sh. Ajay Kumar who is in possession of the suit premises and running business. PW2 deposed that later on he came to know that Sh. Ajay Kumar Mehra is son of Sh. Arun Kumar Mehra. PW2 has not named anyone else except Sh. Ajay Kumar son of respondent no. 4 to be sub tenant in the premises in question. The respondent no. 4 Sh. Arun Kumar Mehra was one of the tenants at the time of letting out premises in question and he is still in possession of the suit premises and running the business of the partnership firm M/s Janak International alongwith his family members, it cannot be said that he has sublet or assigned or parted with the possession of the suit premises to his family members. It was held in Niranjan Lal Kanodia Vs. Harbans Lal, 1995 II AD (Delhi) 347 that even though the tenant had retired from the business and his sons had been looking after the business, it could not be said that the tenant had divested himself of the legal right to be in possession. During the course of argument Ld. Counsel for respondents submitted that it is pious duty of a father to settle his sons in their life and for this purpose, if he allowed his sons to work alongwith him in the suit premises it does not amount subletting. I find force in this submission as Hon'ble Supreme Court in Vijay Kumar and others Vs. M/s Raghbir Singh 27 Ashok Singh (supra) has observed that such a plea of the tenant is plausible, however, this plea should be taken at the earliest. In the case in hand the respondent no. 4 has taken this plea from the very beginning and stated the same in his written statement. Relying upon the abovesaid rulings I am of the considered view that there is no subletting by the respondents, if respondent no. 4 has allowed his sons, wife and daughterinlaw to work in his business which has been carrying on in the suit premises.
30. The arguments of Ld. Counsel for petitioner that respondent no. 4 Sh. Arun Kumar Mehra had deceptively included himself as a partner and entered his name fraudulently in the rent deed, however, he was not a partner in the partnership deed of the respondent no. 1 dated 13.07.1979. This submission has no substance because no such averments were made in the petition by the petitioner and the petitioner has treated him as a tenant in the suit premises. It is not the case of petitioner that respondent no.4 was not a tenant in the suit premises. The case of petitioner is that the respondents, including respondent no. 4 Sh. Arun Kumar Mehra, sublet the suit premises. Even the petitioner has not mentioned to whom the premises in question were sublet. PW2 attorney of the petitioner admitted in his evidence that the alleged subtenant is son of respondent no. 4. Further submission of the Ld. Counsel for the petitioner that the partnership firm of 28 the respondents was dissolved on many occasion and partners kept changing from time to time, therefore, it amounts to subletting and partnership arises from contract and it is not created by status of its member. Further submissions of the petitioner that a firm is dissolved on the death of partners and as two partners died, therefore U/s 42 of Indian Partnership Act, 1932, the partnership is dissolved. Considering the law of tenancy in respect of the partnership firm and the status of partners, as discussed above, I do not find any force in these submissions. The rulings relied upon by the Ld. Counsel of the petitioner have no bearing to the facts of the present case as none of the rulings dealing with the issue of the tenancy of the partnership firm and the status of partners.
31. In view of the above discussions, I am of the considered view that the petitioner has failed to prove his case that the respondents have sublet or assigned or parted with possession of the suit premises to third persons. Hence, the present petition U/s 14 (1) (b) of DRC Act is dismissed. File be consigned to record room.
(Announced in the open court
on 08.12.2010) (Pritam Singh)
ARC/Central/Delhi