Punjab-Haryana High Court
Vir Bhan Aggarwal vs Kunj Lal And Anr. on 3 February, 1971
Equivalent citations: AIR 1971 PUNJAB AND HARYANA 456
ORDER
1. This is a landlord's petition challenging the order of the Appellate Authority, dismissing his application for eviction of his tenant. The brief facts necessary for the disposal of this petition are as follows:-
2. On 2nd July, 1960, Kunj Lal, describing himself as malik wa karkun of firm Kunj Lal Raman Kumar, took on lease the shop in dispute from the landlord, Vir Bhan. The shop is situated on Mandi Road in Jullundur City.
3. On 8th December, 1965, Vir Bhan filed an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act), seeking eviction of Kunj Lal from the premises in his capacity as the proprietor of Kunj Lal Raman Kumar, on the ground that without his written permission, Kunj Lal has sublet the premises to one Raj Kumar, who was described as the proprietor of Raj Kumar Bipan Kumar.
4. The plea taken by Kunj Lal respondent was that the premises were taken on lease for and on behalf of the firm of which he and his brothers, Kashmiri Lal and Raj Kumar, were the partners. A partnership deed dated 1st October, 1959, Exhibit RW2/A, was proved on the record, showing the share of Kunj Lal and Kashmiri Lal as 6 annas each and that of Raj Kumar as 4 annas. He further averred that later a new firm was created under the name and style of Raj Kumar Bipan Kumar in which Raj Kumar had 70 paise share and Kunj Lal and Kashmiri Lal had 15 paise share each. The partnership deed was executed on 1st April, 1965. It was not denied that the original firm, i.e., Kunj Lal Raman Kumar, with the shares as indicated above, shifted inside Mandi Fanton Ganj, Jullundur City.
5. On behalf of the landlord stress was laid that the lease was taken only by Kunj Lal to begin with and Exhibit RW2/A, the so called partnership deed dated 1st October, 1959, was, in fact, executed subsequent to the taking of the lease, that the share of Kunj Lal and Kashmiri Lal in the new firm being only 15 paise each, it was a mere subterfuge to cover the provisions of the Act to avoid subletting and that the transfer of the premises to the new partnership really amounted to subletting.
6. There may be something to be said for the argument that on the date of taking the lease vide rent note, Exhibit AW5/1 on 2nd July, 1960, the description of Kunj Lal as Malik was karkun of the firm does give an indication that on that date this firm was not a partnership firm. That, however, would not make any difference to the legal position, because, in any case, Kunj Lal is a partner of the new firm Raj Kumar Bipan Kumar and the only question would be whether Kunj Lal by taking two other partners, i.e., his brothers, Kashmiri Lal and Raj Kumar, in the firm can be said to have sublet the premises or parted with the rights under the lease.
7. It is now well settled, and it was not disputed, that if the facts be, as stated above, namely, that Kunj Lal took two more partners and formed a firm instead of himself carrying on the business in his individual capacity, it would not amount to either subletting or parting with the possession of the lessee rights. We have, however, to see, whether the deed indicates that there was a genuine partnership or only a camouflage for subletting.
8. Reference was made by the learned counsel for the landlord to Mangat Ram v. Om Parkash, (1962) 64 Pun LR 30, where Grover, J. (as he then was) after laying down the essential elements of a partnership under Section 4 of the Partnership Act, came to the conclusion, on the facts of that case, that one of the basic requirements, namely, that the business must be carried on by all or any of them acting for all, not being fulfilled, it was a case of subletting and not converting the individual business into that of partnership and that the tenant was liable to ejectment under Section 13 (2) (ii) (a) of the Act. One of the matters taken into consideration was that under the terms of the so-called partnership deed, it was provided that if Rs. 47 were not paid every month, the partnership would automatically come to an end. The learned Judge felt that this term "appears very much like a condition in a deed of lease that if the rent is not paid regularly, the tenancy shall be determined."
9. Now let us examine the partnership deed Exhibit RW2/B. Apart from the fact, that Kunj Lal and Kashmiri Lal together have a share of only 30% and that initially investment was entirely that of the third partner. Raj Kumar, there is hardly any other term to indicate that it was not a genuine partnership. With regard to the future investment, it was provided that if any further investment is required, the parties, by their mutual agreement, will provide the money. In addition to this, each one of the partners had a right to inspect the books of account. All additional business that the parties may do with mutual consent will be deemed to be that of the firm and in case the firm's business comes to an end, the question of the possession of the shop in dispute is to be settled by all the three partners.
10. To my mind the last term is an important term and rather goes to show that it was a genuine partnership and not a mere camouflage to cover a subletting. Ordinary speaking, where the real intention of the parties is only subletting the premises, the provision is also made that in case the firm's business comes to an end, the possession of the shop will go to the original tenant.
11. The learned counsel suggested that this is only a clever way of covering the real intention. It may be so. All that need be said is that there is no term in the partnership deed which, as was the case in (1962) 64 Pun LR 30 (supra), would give an indication that the document does not represent real facts.
12. In view of the above, I do not find any ground to interfere with the order of the Appellate Authority. This revision is consequently, dismissed with no order as to costs.
13. Revision dismissed.