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3. In order to appreciate whether there is really any conflict between the aforesaid two decisions, we may shortly refer to them. In Jagjivan Vanechand's case (supra) the tenant who was carrying on business in the demised premises, with which Thakkar J. was concerned, as a sole proprietor of the business, took in two other persons as his partners and carried on the business in the suit shop for the benefit of the partner ship. The partnership deed executed between the tenant and his two partners in terms made it clear that the tenancy rights continued to vest into the tenant and the other two persons joining as partners were not to acquire any interest in the tenancy rights belonging to him. In that set up of facts, a question arose bsfore Thakkar J., whether taking of two partners by the tenant and his carrying on partnership business on the premises with the two other partners amounted to subletting or assignment of the tenancy rights in the shop premises which exposed the original tenant to a decree of eviction under Section 13(1)(e) of the Bombay Rent Act. On behalf of the landlord, it was contended that since the tenant was in possession and enjoyment of the shop premises by carrying on business thereon till 1957 after which year the same business was carried on by the partner ship firm, it would justify the conclusion that there has been either sublet ting or assignment of the tenancy rights notwithstanding the stipulation set out above in the partnership deed. This contention did not find favour with Thakkar J., since, in his opinion, on the principle enunciated in South of England Dairies Ltd. v. Baker (1906) 9 Ch. Div. 631, "an assignment of a lease must necessarily embrace all the estate of the assignor", who must divest his interest altogether and the answer would not have been different even if the tenancy interest had been thrown into partnership since a tenant joining partnership business continues to have the interest in the tenancy rights. In any case, an assignment could not have been in one's own favour. In the opinion of the learned Single Judge (Thakkar J) the transaction in question before him would not amount to subletting as well because subletting postulates two distinct per-sons-the head-tenant and the sub-tenant, and if transaction of taking in partners constitutes a subletting, the sitting tenant would be the head-tenant, and along with his partners would be sub-tenants also which situation exposes the fallacious contention urged on behalf of the landlord. An alternative contention on behalf of the landlord that there was a transfer of possession in favour of the partnership firm was also negatived by Thakkar J on the ground that there is a distinction between physical occupation and legal occupation, and till the legal occupation is transferred, no sub-tenancy could have been created. The learned Single Judge sought support to his view from the decision of a learned Single Judge of Madras High Court in Gundalapalli Rangamannar Chetty v. Dssu Rangiah and Ors. .

This exposition of assignment of tenancy rights has been affirmed by the Supreme Court in its latter decision in Pandit Kishan Lal v. Ganpat Ram Khosla and Anr. We do not therefore think that the learned Advocate for the petitioner-tenant was right in his contention that till there is transfer of the whole interest of the transferor and consequent divesting of his interest, there cannot be any assignment. As stated above, there can be assignment of the whole interest or the lesser interest. Equally we must reject the contention that there cannot be any assignment of interest by a sitting tenant by transferring his tenancy rights and throwing them into the partnership assets since he continues to have interest therein as a partner. As stated above, there can be a transfer of interest in favour of himself and one or more other living persons. The real question, therefore, is, as posed by Chagla C. J., whether the tenancy rights have been thrown into the partnership assets or for that matter any interest is created in tenancy rights in favour of the incoming partners for purposes of determining whether Section 13(1)(e) of the Bombay Rent Act is attracted or not.

11. In Gian Singh & Co. v. Devraj Nahar and Ors. (1965) I All ER 768, the Privy Council was concerned with an appeal at the instance of landlords from an order of the Court of Appeal of the Supreme Court of the Federation of Malaya, allowing the appeal of the tenant against the order of eviction. The facts were that the sitting tenant took two partners in his business in March 1958 and an action brought by the landlords for eviction oh the ground that the tenant had assigned the tenancy rights to the partnership thereby committing breach of the covenant not to assign or sublet the premises without the landlords' written consent which was admittedly refused. The tenancy was a protected tenancy by the Control of Rent Ordinance No. 2 of 1956. The tenancy was validly terminated with the result that the tenant had become a statutory tenant and under the Ordinance no order for possession could have been made against him unless there was any breach of the covenant. The trial Judge, after hearing the oral evidence and considering the deed of partnership, concluded that there was a covenant against assigning or subletting and the tenant was in breach of it by entering into the partnership deed, He, therefore, made an order for possession against the tenant. The Appellate Court reversed that order since in its opinion there had been no breach of the covenant under the partnership deed. The landlords, therefore, carried the matter before the Privy Council. Lord Pearce, speaking for the Privy Council, read the relevant Clauses of the partnership deed and found that it contained no specific reference to tenancy nor gave any indication as to what rights or duties any party shall have with regard to it. On behalf of the landlords, it was argued that a tenancy was one of the other assets of the business of Nahar & Co., and that the partners were entitled to capital and the property for the time being of the partnership in equal shares under clauses 5 and 6 of the partnership deed, and the joint effect of the two Clauses was to divest the tenant of his tenancy and to vest it in the partners, thus constituting an assignment. Reliance was also placed on behalf of the landlords on some admission said to have been made by the tenant in his cross-examination to the effect that the premises were a valuable asset to his business and that he did not retain a portion of the premises for himself when the partnership was formed and all the partners enjoyed the use of the entire premises. In this context Lord Pearce observed as under:

12. The learned Advocate for the petitioner-tenant, therefore, attempted to persuade us that the partnership deed, Ex. 79, is merely an agreement to assign, inter alia, the tenancy rights and, therefore, cannot by itself create any interest therein in favour of the new partnership firm or its partners. He invited our attention to the material portion of Clause 5 reading: "and the parties hereto have agreed and confirmed to execute the necessary deed or deed for vesting and/or assigning of the aforesaid businesses together with stock-in-trade, tenancy rights of the business premises and all other tangible and intangible assets and paraphernalia of the said businesses in favour of the partnership", which supports this contention. The submission is that unless the necessary documents are executed by the parties for vesting and/or assigning the aforesaid business, inter alia with the tenancy rights in favour of the partnership, there is no effective assignment under the partnership deed by itself. Alternately he urged that since the partnership deed, on the own showing of the respondent-landlord, purports or operates to create and/or assign either in present or in future, the interest in the tenancy rights of the value of Rs. 100/-and upwards in the immovable property, it would, per se, require registration under Section 17(1)(b) of the Registration Act, 1908. Both these contentions appear to be attractive, but, on the close scrutiny, they would not stand the legal test. In our opinion, both these contentions overlook the real effect of Section 14 of the Partnership Act and the nature of the agreement to carry on partnership business in which the partners constituting the firm bring in movable and immovable properties to be treated as partnership assets. Section 14 deals With the property of the firm and reads as under: