PANCHU GOPAL SAHA v. USHA RANI MODAK — 1987 DIGILAW 113 (CAL)

SHANKARI PRASAD DAS GHOSH, J. ( 1 ) ON 7. 7. 71 one Jatindra Mohan Modak, the husband of the respondent No, 1 and the father of the respondents No. 2 to 5 entered into a deed of partnership with the defendant-appellant for carrying on business under the name and style of "messrs. Shravani" in the shop-room, bearing Nos. 36 and 87 of premises Nos. 80, 81 and 82, Bidhan Sarani, Hatibagan, Calcutta. Jatindra, was a tenant of these two rooms Nos. 36 and 37. Under the deed of partnership, the business was to be in ready-made garments or any other business. The partnership business was to continue for a fixed term of seven years and six months commencing from 7. 7. 71 and ending with 31. 12. 78. The terms in the deed of partnership were that the capital of the business should be contributed by both the partners, contribution of Jatindra being Rs. 6,000 in the shape of furniture and fixtures in the shop-rooms and the contribution of the defendant-appellant being Rs. 10,000 or such further sum as would be necessary. The tenancy of the shop-rooms was to remain as before in the name of Jatindra, who was entitled to a fixed lump sum of Rs. 575 per month as his share of profit, irrespective of any profit or loss of the business. The loss of the business, if any, was to be borne by the appellant. There was a provision in the deed of partnership for dissolution of the business for non-payment of the sum of Rs. 575 to Jatindra for more than two months. Jatindra was to pay fixed rent of the shop-rooms to the tune of Rs. 1. 38p. per day out of his fixed profit to the tune of Rs. 575 per month. The appellant was to remain in sole management and control of the business. It was mentioned in the deed of partnership that the appellant had already made an advance of Rs. 5,000 as security money for the guarantee of the lump sum profit to Jatindra and that the security money would be adjusted against the lump sum profit of each month at the rate of Rs. 50 per month, after six months commencing from January, 1972. 5,000 as security money for the guarantee of the lump sum profit to Jatindra and that the security money would be adjusted against the lump sum profit of each month at the rate of Rs. 50 per month, after six months commencing from January, 1972. It was provided in the deed of partnership that in case of death of Jatindra, his wife (the respondent No. 1) would continue in the partnership business for the unexpired period of fixed term of seven years and six months and that, in case of death of the appellant, his legal heirs or nominee could continue in the business. Jatindra died on 27. 1. 77. ( 2 ) BEFORE expiry of the term mentioned in the deed of partnership, attempts were made by the plaintiffs-respondents, heirs of Jatindra, to get vacant possession of the shop-rooms, after 31. 12. 78. It was alleged by the plaintiffs that in reply to their letter, dated 18. 10. 78, written to the appellant, the appellant sent a letter alleging that he was a sub-tenant under the respondent No. 1 and not a partner. On the allegation that the deed dated 7. 7. 71 was a deed of partnership, a suit was filed by the plaintiffs spraying for permanent injunction and recovery of khas possession of the shop-rooms Nos. 36 and 37, on declaration that the respondent No. 1 and the appellant were partners in the business under the name and style of 'shravani' under the indenture of partnership, dated 7. 7. 71 and on a further declaration that the partnership business terminated on 31. 12. 78. ( 3 ) THE defendant-appellant filed a written statement alleging that the deed of partnership was executed to avoid the mischief of unauthorised subletting, as provided for in the West Bengal Premises Tenancy Act, 1956. It was alleged that the deed of partnership was never intended to be treated as such and that it was not actually acted upon as such. It was further alleged that the appellant had invested from time to time about Rs. 40,000 in the business. The appellant prayed for dismissal of the suit on the ground that he was a sub-tenant under Jatindra in respect of the shop-rooms. It was further alleged that the appellant had invested from time to time about Rs. 40,000 in the business. The appellant prayed for dismissal of the suit on the ground that he was a sub-tenant under Jatindra in respect of the shop-rooms. ( 4 ) THE learned Judge, IXth Bench, City Civil Court, Calcutta, who tried the suit, found, after examination of several witnesses, that the appellant entered into a partnership with Jatindra and that the deed of partnership, Ext. 1, was actually acted upon as such. The learned Judge further found that the father of the appellant executed an Indemnity Bond, Ext. 14, for due observance of the terms and conditions of the deed of partnership. According to the learned Judge, the testimony of the appellant's father, Gour Chandra Saha (D. W. 1) as well as an employment exchange card of the appellant, Ext. 15, showed that the appellant was a minor on 7. 7. 71, when he entered into the partnership. As a contract with a minor was a void contract and there was no question of ratification of such a contract, the learned Judge did not allow the respondents to take their stand on the document, Ext. 1, as a deed of partnership. The learned Judge did not also allow the appellants to take his stand upon this document as deed of subletting on the ground that the deed was void as the appellant was a minor. According to the learned Judge, the deed was also hit by Section 23 of the Indian Contract Act. The learned Judge was of the opinion that on the basis of the provisions in Section 65 of the Indian Contract Act, 1872, the appellant was liable to restore the property to the: respondents, though the agreement was void. The learned Judge further found that even if the appellant was treated as a licencee, he was liable to suit and vacate the shop-rooms as the institution of the suit amounted to revocation of the licence. The learned Judge further found that it was not outside the jurisdiction of the court to order dissolution of the partnership in the suit as framed, as the facts and circumstances of the suit called for a dissolution. The learned Judge further found that it was not outside the jurisdiction of the court to order dissolution of the partnership in the suit as framed, as the facts and circumstances of the suit called for a dissolution. He was also pleased to observe that there was an implied partnership, though not in writing, and though not for any definite terms, as soon as Jatindra and the appellant as a major began to do business together and after the death of Jatindra, the respondent No. 1 did business with the appellant. On the basis of these findings and observations, the learned Judge decreed the suit on contest with costs. Being dissatisfied, the present appeal has been filed. ( 5 ) MR. Roy Chowdhury, the learned Advocate for the appellant, has contested that the suit ought to have been dismissed by the learned Judge as the partnership deed was void due to the minority of the appellant at the time of execution of the deed. According to him, the learned Judge erred in bypassing any decree in the suit on a case of licence or implied partnership, not made out in the pleadings. Mr. Roy Chowdhury contended that Section 65 of the Contract Act did not apply to the facts of the suit. Mr. Roy Chowdhury also contended that in the absence of a prayer for dissolution of the partnership in the plaint, the learned Judge erred in dissolving the partnership on the date of delivery of the judgment by him on 11. 8. 81. Mr. Roy Chowdhury reiterated the defence that it was a case of sub-tenancy and not a case of partnership. ( 6 ) IT is now well-settled on the basis of Section 11 of the Indian Contract Act, 1872, that a minor cannot make any contract and that when a minor purports to make any contract, his alleged contract is void. (Mohori Bibee vs. Dharmodas Ghose, 30 Indapp 114 ). Regarding minority of the appellant at the time of execution of the deed of partnership, Mr. Mitra, the learned Advocate for the respondents, has a grievance. According to Mr. Mitra, the factum of minority of the appellant was not known to Jatindra at the time of execution of the deed of partnership. Regarding minority of the appellant at the time of execution of the deed of partnership, Mr. Mitra, the learned Advocate for the respondents, has a grievance. According to Mr. Mitra, the factum of minority of the appellant was not known to Jatindra at the time of execution of the deed of partnership. It appears that, in the written statement, it was alleged that Jatindra exclusively transferred possession of the two shop-rooms to the appellant and that the appellant's father (D. W. l) accepted exclusive possession of the shop-rooms as the appellant was a minor. As it was alleged in the written statement that the appellant was a minor, evidences were adduced by P. W. 1, who drafted the deed of partnership, that neither the appellant (D. W. 2) nor his father (D. W. 1) told him when the deed of partnership was drafted and signed that the appellant was a minor. P. W. 1 stated that, as the matter of fact, the appellant was not a minor at that time. There was no cross-examination of P. W. 1 regarding the minority of the appellant at the time of execution of the deed. No suggestion appears to have been put to P. W. 2 (respondent No. 1) or P. W. 5 (respondent No. 2), about the minority of the appellant. In these circumstances, Mr. Mitra drew our attention to the decision of this court in the case of A. E. G. Carapiet vs. A. Y. Darderian (AIR 1959 Calcutta 359) and contended that when the learned Advocate for the appellant in the court below failed to put to any of these P. Ws. 1, 2 and 5 any question about the minority of the appellant at the time of execution of the deed, the evidence of P. W. 1 should be accepted and it should be held that the appellant was not a minor at the time of execution of the deed and that, even if he was a minor at that time, the minority of the appellant was not known to Jatindra at the time of execution of the deed. One would have been inclined to accept this contention of Mr. Mitra, provided the respondents did not themselves put to D. W. 2 an employment exchange card of the appellant, Ext. 15. One would have been inclined to accept this contention of Mr. Mitra, provided the respondents did not themselves put to D. W. 2 an employment exchange card of the appellant, Ext. 15. Though it will be digression, it is to be stated, in this connection that after the filing of this appeal, the employment exchange card, Ext. 15, as well as the Indemnity Bond, under the signature of the appellant's father, Ext. 14, were missing from the record. Subsequently, a copy of the Indemnity Bond has been incorporated in the supplementary paper book. The employment exchange card could not be reconstructed. Be that as it may, the learned Judge came to a finding about the minority of the appellant, at the time of execution of the deed, on the basis of this employment exchange card as well as on the basis of the evidence by the father of the appellant (D. W. 1 ). The evidence of D. W. 1 is that in 1971 the appellant was aged about 16 years. D. W. 1 stated that the appellant was a student when the deed was executed. When the respondents themselves produced the employment exchange card of the defendant and had it marked as an exhibit during cross-examination of the appellant (D. W. 2), it cannot be stated that on the basis of the decision in the case of A. E. G. Carapiet (supra), the appellant is to be taken as not a minor due to the failure of the learned Advocate for the appellant to put necessary questions in this regard to P. Ws. 1, 2 and 5. As the appellant was minor at the time of execution of the deed, the deed will be void on the authority of the decision of the Privy Council in the case of Mohori Bibee (30 Indapp 114), already referred to. ( 7 ) THE provisions for dissolution of partnership are contained in Chapter VI of the Indian Partnership Act, 1932 (hereinafter referred to as "the Act" ). A partnership may be dissolved by agreement (Section 40 of the Act ). There may be dissolution on the happening of certain contingencies, including efflux of time, if a partnership is constituted for a fixed term, under Section 42 of the Act. There may be dissolution of a partnership-at-will by notice. A partnership may be dissolved by agreement (Section 40 of the Act ). There may be dissolution on the happening of certain contingencies, including efflux of time, if a partnership is constituted for a fixed term, under Section 42 of the Act. There may be dissolution of a partnership-at-will by notice. This is not a case of partnership-at-will under Section 7 of the Act as the duration of the partnership is mentioned in the deed. There may be dissolution by the Court on any of the grounds mentioned in Section 44 of the Act. The partnership cannot be dissolved by Court, as done by the learned Judge, as none of the grounds, mentioned in Section 44 of the Act, exists for dissolution of partnership by Court. The decree of the Court below for dissolution of the partnership cannot thus stand. ( 8 ) THE question whether the respondent would be entitled to get a decree for recovery of possession of the shop-rooms on the basis of Section 65 of the Indian Contract Act or Section 33 (2) (b) of the Specific Relief Act, 1963 (old Section 41 of the Specific Relief Act, 1877), regarding which much arguments have been advanced by both the parties, will arise for determination only if the deed is found to be actually a deed of partnership and not a deed of hidden lease, as contended by Mr. Roy Chowdhury. We have already mentioned some of the relevant provisions in the deed of partnership, while unfolding the facts of the suit. In determining whether a person is or is not a partner in a firm, the Court must have regard to the terms of the contract of partnership and the real intention and conduct of the parties, as appearing from the whole facts of the case and not merely to their expressed intention. It is to be stated, in this connection, that though the conduct of the parties may also be the determining factor, any conduct subsequent to the time, when the contract was entered into, can only be looked into for the purpose of showing that the contract had been varied or that a new contract had been made. In view of Section 4 of the Act, an agreement to receive a fixed sum, as the profit of the business, amounts to sharing of profits. In view of Section 4 of the Act, an agreement to receive a fixed sum, as the profit of the business, amounts to sharing of profits. An agreement that the appellant alone will bear losses is not inconsistent with the existence of a partnership. Similarly, the provision in the deed, that the sole management and control will be vested with the appellant, may not be inconsistent with the existence of partnership in those cases, where there is sharing of profits of the business and the business is carried on by all the parties or any one of them acting for all, implying thereby the theory of agency. This is not a case of that type. In the present case, one comes across several provisions, which lead to the irresistible inference that exclusive possession of the shop-rooms was given by Jatindra to the appellant through his father on condition of payment, of Rs. 575 per month to Jatindra. Section 105 of the Transfer Property Act defines a lease. A lease of immovable property is a transfer of a right to enjoy such property, made for certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, to the transferor by which transferee, who accepts the transfer of such terms as to the period of the lease the mode in which the payment is reserved may afford presumption Section of 105 of the Transfer of Property Act, covers a lease accompanied with payment of advance rent. In the present case, there is nothing in the deed, Ext. 1, to show that during the tenure of the partnership from 7. 7. 71 to 31. 12. 78, the predecessor of the respondents can exercise any overt act of possession of the shop-rooms. Under Clause 9 of the deed, all expenses such as, trade licence, textile licence, salary, conveyances, printing, stationery, electric charges were to be paid not by Jatindra but out of the funds of the partnership business. The evidences of P. W. 2 show that electric charges were not paid by the respondents. The advance of Rs. 5,000 by the appellant as security money to be adjusted against the lump sum profits of Rs. 575 per month and the provision for refund of the balance of advance if unpaid, appear to be inconsistent. The evidences of P. W. 2 show that electric charges were not paid by the respondents. The advance of Rs. 5,000 by the appellant as security money to be adjusted against the lump sum profits of Rs. 575 per month and the provision for refund of the balance of advance if unpaid, appear to be inconsistent. with a case of partnership in view of the provision in Section 13 (d) of the Act. Under Section 13 (d) of the Act, subject to contract between the parties, a partner making, for the purpose of the business, any payment or advance beyond the amount of capital he has agreed to subscribe, is entitled to claim interest thereon at the rate of 6 % per annum. What to speak of getting any interest on the sum of Rs. 5,000 given by the appellant as advance, apart from the sum of Rs. 10,000 contributed towards the partnership business under the deed of partnership and Indemnity Bond, Ext. 14, the advance was to be adjusted against the fixed lump sum profit of Jatindra per month, at the rate of Rs. 50 per month. Under Section 12 (d) of the Act, every partner has a right to have access to and to inspect and copy any of the books of the firm, subject to contract between the parties. The clause in the partnership deed that the bank account or accounts shall be opened with any scheduled bank or banks and will be operated by the appellant alone, is consistent with the intention of a partnership business between two persons. The provision in the deed, that Jatindra will have the option to dissolve the partnership and to close the doors of the shops without showing any reason whatsoever and to claim his dues, in the event of non-payment of fixed lump sum profit of Rs. 575 per month to him by the appellant for more than two months after due date of payment, is inconsistent with an idea of partnership, specially when the partnership was for a fixed period of seven years and six months and was not a partnership-at-will under Section 7 of the Act. 575 per month to him by the appellant for more than two months after due date of payment, is inconsistent with an idea of partnership, specially when the partnership was for a fixed period of seven years and six months and was not a partnership-at-will under Section 7 of the Act. The provision for dissolution of partnership, in the event of non-payment of fixed lump sum profit for more than two months, cannot stand side by side with the provision for dissolution of the partnership by efflux of time, in view of the provisions in Sections 7 and 42 of the Act. Under Section 9 of the Act, partners are bound to carry on the business of the firm to the greatest common advantage and to render true accounts and full information of all things affecting the firm to any partner or his legal representative. There is nothing in the deed to show that the appellant was to carry on the business to the greatest common advantage or to render any accounts or any information affecting the firm to Jatindra or the plaintiffs. Mr. Mitra, referred us to the evidence of P. W. 5, the plaintiff No. 2, to the effect that his father, Jatindra, used to go to the shops regularly before he became sick and that even when his father was alive, he used to go occasionally to the shops. These evidences by P. W. 5 cannot mean that Jatindra or the plaintiff No. 2 used to go to the shops in connection with the alleged partnership business. As already stated, the conduct of Jatindra or the. plaintiff No. 2, after the execution of the deed, is to be looked into for the purpose of cowing if the contract has been varied or if any new contract has been made. The question whether the partnership does or does not exist should be judged from the terms of the partnership contract and the intention of the parties, as appearing from the whole facts of the case. In the present case a security of the deed leaves no doubt that it was not at all a case of partnership contract as exclusive possession of the shop-rooms was delivered to the appellant on condition of payment of Rs. In the present case a security of the deed leaves no doubt that it was not at all a case of partnership contract as exclusive possession of the shop-rooms was delivered to the appellant on condition of payment of Rs. 575 per month and Jatindra left the carrying on of the business in the shops entirely at the risk and responsibility of the appellant without keeping for himself any right for inspection of accounts or for obtaining of any information from the appellant as regards the carrying on of the business. Moreover, there is no provision in the deed about sharing of assets on dissolution of the alleged partnership. ( 9 ) IN the case of Muralidhar vs. Banshidhar (AIR 1973 Calcutta 193), one of the partners to the agreement was to be in exclusive charge of the business for limited period, that partner alone was to provide funds for the business, was liable for the loss and was entitled to the profits, subject to a certain monthly payment to the other party. It was held in that case by a Division Bench of this Court that the agreement was not in fact a partnership agreement. In the case of S. P. Agarwal vs. Anil Ganguli (68 C. W. N. 786), a tenant of a common tenancy of a shop-room at rent of Rs. 55 per month, entered into an agreement of partnership with another person to carry on business in that shop-room. Under that agreement of partnership, the tenant of the common tenancy was to receive Rs. 100 per month on account. of his fixed remuneration from the business without contributing any money to the capital and without sharing the profits and losses. It was held in that case that the real relationship between the parties was more of a hidden lease than of a partnership and that a suit for eviction from the shop-room on the allegation of breach of the agreement was not maintainable. The learned Judge discussed both these cases of Murlidhar and S. P. Agarwalla and distinguished these cases from the facts of the present case. The learned Judge discussed both these cases of Murlidhar and S. P. Agarwalla and distinguished these cases from the facts of the present case. According to the learned Judge, in the case of Murlidhar (supra), there was no provision for shares of the parties in the profits or for sharing of profits between the parties and that the document of that case showed that the defendant of that case was to be in exclusive charge of the business and was alone to provide the entire funds for carrying on the business. The case of Murlidhar cannot be distinguished from the facts of the present case on these grounds. A perusal of the deed, Ext. 1, shows that the appellant was to be in exclusive possession of the shop-rooms and in exclusive charge of the business and that the appellant had provided for the entire funds for carrying on the business. Under the deed, the appellant was to invest. in cash Rs. 10,000 or further sums as working capital of the partnership business and Jatindra's investment consisted of the furniture and fixtures in the shop-rooms valued at Rs. 6,000 by mutual consent. Evidences were adduced by D. W. 1 to show that the value of the furniture and fixtures would have been Rs. 300 at the maximum. The learned Judge could not disbelieve these evidences of D. W. 1. He was of the opinion that the share capital of Rs. 6,000 by Jatindra necessarily included the value of the two rooms, which were undoubtedly thrown into the business. Needless to pay, the value of the two shop-rooms cannot be taken into consideration for showing the contribution of Jatindra towards share capital of the business. In the deed, there is no mention of shares of the parties in the business. The learned Judge distinguished the other case of S. P. Agarwalla (60 C. W. N. 786), on the ground that it was provided for in that case that the first-party would not be liable for any loss nor would be entitled to any profit in excess of the sum of Rs. 100 on account of fixed remuneration. The case of S. P. Agarwalla cannot be distinguished on this ground. In the present case also, the deed provided that Jatindra would not be liable for any loss and would not be entitled to any profit in excess of the fixed sum of Rs. 100 on account of fixed remuneration. The case of S. P. Agarwalla cannot be distinguished on this ground. In the present case also, the deed provided that Jatindra would not be liable for any loss and would not be entitled to any profit in excess of the fixed sum of Rs. 575 per month, irrespective of any profit or loss of the business. The entitlement of Jatindra to the sum of Rs. 575 as fixed lump sum profit per month and not as fixed remuneration without calling it as share of profits makes no difference. We are, accordingly, of the opinion, on the basis of the decisions of this court in the cases of Murlidhar (A. I. R. 1973 Cal. 193) and S. P. Agarwalla (68 C. W. N. 786) that the deed is not a deed of partnership. ( 10 ) IT is not disputed in the evidence that the appellant paid the sum of Rs. 575 per month to Jatindra and thereafter, to the plaintiffs and used to be granted receipts by them after deduction of Rs. 50 per month from this monthly sum of Rs. 575 on account of the advance of Rs. 5,000 made by him, as per the terms of the deed. P. W. 2, the plaintiff No. 1, has stated that she got payment of the share of profits up to 31. 12. 78 and that she granted receipts to the appellant. Mr. Mitra has contended that if there was a sub-tenancy, the appellant would not have sent the sum of Rs. 575 per month to the plaintiff No. 1 alone as, in case of sub-tenancy, the sum of Rs. 575 was to be distributed amongst all the heirs of Jatindra. It is not disputed in the evidence that from January, 1979, the appellant sent the sum of Rs. 575 per month for his occupation of the shop-rooms by money orders and that these money orders were refused, It is in the evidence of P. W. 2, that the, appellant had remitted by money order sums to them, starting from January, 1979 till the date of her giving evidence on 4. 2. 81 and that they had refused to accept the money orders. It cannot thus be stated that after 31. 12. 78, the appellant sent money orders for occupation of the shop-rooms only to the plaintiff No. 1 (P. W. 2 ). Mr. 2. 81 and that they had refused to accept the money orders. It cannot thus be stated that after 31. 12. 78, the appellant sent money orders for occupation of the shop-rooms only to the plaintiff No. 1 (P. W. 2 ). Mr. Mitra contended that the case of sub-tenancy could not be reconciled with the evidence of D. W. 1, father of the appellant, that if he would have known that the deed was executed for partnership, he would not have taken the business in the shop-rooms. On the basis of this hypothetical answer by the appellant's father, it cannot be held that the deed was actually a partnership deed. Mr. Mitra lastly contended that when the deed was for a fixed period of seven years and six months, ending with 31. 12. 78, it cannot but be a case of partnership and not a case of sub-lease. This contention cannot also be accepted. Under the Act, there may be partnership-at-will without any fixed term under Section 7 of the Act or a partnership for a fixed term to be dissolved by efflux of. time. ( 11 ) MR. Mitra referred us to the cases reported in A. I. R 1984 S. C. 1447; A. I. R. 1981 Madhya Pradesh 244; A,i. R. 1972 Gujarat 6 and AIR 1976 Gujarat 47, for the purpose of showing that there was no sub-letting of the shop-rooms to the appellant by Jatindra. In the case of Jagdish Prasad vs. Angoori Devi (AIR 1984 S. C. 1447), control over the premises was kept by the tenant and the business, run in the premises, was the business of the tenant. It was held by the Supreme Court in that case that the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, did not require the court to assume a sub-tenancy merely from the fact of presence of an outsider besides the tenant in the premises. The case of Jagdish Prasad (supra) has no manner of application to the facts of the present case. Similarly, in the case of Siddhanath, vs. Kaluram (AIR 1. 981 Madhya Pradesh 244), the tenant of premises took his maternal uncle as a partner in a business. It was held in that case that this did not amount to sub-letting. The facts of the present case are quite dissimilar to the facts in the ease of Siddhanath. Similarly, in the case of Siddhanath, vs. Kaluram (AIR 1. 981 Madhya Pradesh 244), the tenant of premises took his maternal uncle as a partner in a business. It was held in that case that this did not amount to sub-letting. The facts of the present case are quite dissimilar to the facts in the ease of Siddhanath. In the case of M. J. Venechand vs. Doshi Venechand (AIR 1972 Gujarat 6), a tenant of a premise entered into a partnership and allowed the premises being used for the benefit of the partnership. It was held in that case that these facts did not constitute assignment nor subletting in favour of the partnership firm, so as to entitle a landlord to recover possession under Section 13 (1) (e) of the Saurashtra Rent Control Act, 1931. In fact, it was stated in that case of M. J. Venechand that to create a lease or sub-lease, the right to exclusive possession and enjoyment of a property should be transferred to another under Section 105 of the Transfer of Property Act. This was done in the represent case as the appellant got exclusive possession, of the two shop-rooms on condition of payment of Rs. 575 per month to Jatindra and thereafter to the plaintiff No. 1, under the terms of the deed. The case of Mancharam Sobhraj vs. Jamnadas Mulchand (AIR 1976 Gujarat 47), was a case for recovery of possession under Sections 13 (1) (e) and 15 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. In that case, a tenant of a premises was carrying on business in partnership with others and the tenant was entitled to 33 1/3rd% (thirty-three and one-third) of the profits of that business. It was proved in that case that the partnership was not, a camouflage. There was no evidence in that case of transfer of any legal interest in the premises. It was held in that case that the arrangement was not of subletting, so as to entitle the landlord to recover possession. The facts of the present case are to be distinguished from the facts of the case of Mancharam Sobhraj (supra) as in the present case the partnership, mentioned in the deed, is actually a camouflage and there was transfer of legal interest in the two shop-rooms in favour of the appellant by Jatindra on condition of getting Rs. The facts of the present case are to be distinguished from the facts of the case of Mancharam Sobhraj (supra) as in the present case the partnership, mentioned in the deed, is actually a camouflage and there was transfer of legal interest in the two shop-rooms in favour of the appellant by Jatindra on condition of getting Rs. 575 per month. ( 12 ) IN short, on a consideration of the facts and circumstances of the case, we are of the opinion that the deed, Ext. 1, was not a deed of partnership and that it was actually executed to circumvent the provision of Section 14 of the West Bengal Premises Tenancy Act, 1956, under which there can be no subletting without the previous consent in writing of the landlord. ( 13 ) THE learned Judge was of the opinion that the deed, even if treated as a deed of subletting, would become void not only because the appellant was a minor, but also because it was hit by Section 23 of the Indian Contract Act. No doubt, the deed would be void as the appellant, for reasons already stated, was a minor on 7. 7. 71, the date of execution of the deed. Even then, if after attainment of majority by the appellant, Jatindra or the plaintiff No. 1 accepted the sum of Rs. 575 per month from the appellant for occupation of that two shop-rooms by the appellant, even as per the evidences of P. W. 2, a relationship of tenant and sub-tenant would be created between the parties, namely, Jatindra or the plaintiff No. 1, the widow of Jatindra and the appellant. We have already stated that according to D. W. 1, the appellant was aged about 16 years in 1971. The appellant, therefore, attained the age of majority in about 1976. If after 1976 and up to 31. 12. 78. Jatindra or the plaintiff No. 1 accepted the sum of Rs. 575 per month, after deducting Rs. 50 per month on account of the advance of Rs. 5,000 from the appellant, the relationship of a tenant and sub-tenant was created between Jatindra or the plaintiff No. 1 and the appellant in respect of the two disputed shop-rooms, irrespective of the fact that the deed was void in view of the minority of the appellant at the time of executions of that deed. 5,000 from the appellant, the relationship of a tenant and sub-tenant was created between Jatindra or the plaintiff No. 1 and the appellant in respect of the two disputed shop-rooms, irrespective of the fact that the deed was void in view of the minority of the appellant at the time of executions of that deed. As the deed was between two persons and not at least three persons, including a minor, at the time of its execution, there can be no inference of implied partnership on attainment of majority by the appellant on the basis of the proviso to Section 30 (5) of the Act. So far as Section 23 of the Contract Act is concerned, it is to be stated that it has been held by a Division Bench of this Court in the case of Debabrata Mukherjee vs. Kalyan Kumar Roy 1981 (1) C. L. J, 389 that Section 23 of the Contract Act is not applicable to subletting case, after the commencement of the West Bengal Premises Tenancy Act, 1956, without the prior consent in writing of the landlord. It has been held in that case that even when a subletting is without the prior consent of the superior landlord, there will be legal relationship between the tenant and the subtenant. In another Division Bench decision of this court in the case of Rajat Bose vs. Yogo Intraco (P) Limited (89 C. W. N. 787), it has been held that no privity of estate is created between the owner landlord and the monthly tenant because the lessor landlord has granted a sub-tenancy to the monthly tenant. It has further been held in that case that the position of the monthly tenant vis-a-vis the superior lessor will be similar to that of a sub-lessee or sub-tenant under the general law and that he will enjoy protection under the Rent Control Legislation. In other words, the decision in the case of Rajat Bose (supra) is that the West Bengal Premises Tenancy Act contemplates both an owner landlord and a lessee landlord. As such, the subletting under the deed Ext. 1, cannot be held to be void in view of the provisions in Section 23 of the Contract Act, as held by the learned Judge. As such, the subletting under the deed Ext. 1, cannot be held to be void in view of the provisions in Section 23 of the Contract Act, as held by the learned Judge. ( 14 ) AS on a proper construction of the deed, we are to find that there was a sub-lease of the two shop-rooms in favour of the appellant by Jatindra on condition of getting Rs. 575 per month for occupation of the two shop-rooms by the appellant exclusively, for the purpose of his own business, the question of delivering possession of the two shop-rooms to the plaintiffs-respondents on the basis of either Section 65 of the Indian Contract Act or Section 33 (2) (b) of the Specific Relief Act, 1963 does not arise. Section 33 (2) (b) of the Specific Relief Act is applicable only when a defendant not competent to contract under Section 11 of the Indian Contract Act, 1872, has received any benefit under the agreement sought to be enforced against him. In the present case, the appellant has not received any benefit under the deed, as he was a sub-lessee under the deed on condition of payment of monthly sum of Rs. 575 to Jatindra and thereafter to the plaintiff No. 1. Similarly, Section 65 of the Indian Contract Act cannot entitle the plaintiffs to recover possession of the two shop-rooms, as the appellant has not received any advantage under the deed, which he was bound to restore to the plaintiffs. ( 15 ) IT is now well-settled that relief is founded on the pleadings made by the parties. Nevertheless, the learned Judge was of the opinion that even treated as a licensee, the appellant was liable to quit and vacate, because the institution of the suit amounted to revocation of the licence. On the facts of the present case, the appellant cannot be treated as a licensee, though observed by the learned Judge. Nevertheless, the learned Judge was of the opinion that even treated as a licensee, the appellant was liable to quit and vacate, because the institution of the suit amounted to revocation of the licence. On the facts of the present case, the appellant cannot be treated as a licensee, though observed by the learned Judge. No doubt, the provisions of Order 7, Rule 7 and Order 6, Rule 2 of the Code of Civil Procedure are wide enough to grant general or other reliefs to the plaintiffs, if deemed just, to the same extent as if such relief had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs (Kedar Lal vs. Hari Lal AIR 1952 S. C. 47; Firm Srinivas Ram vs. Mahabir Prasad AIR 1951 S. C. 177 ). In the case of Bhagwati vs. Chandramatul (AIR 1966 S. C. 735), there was a suit by the plaintiff for ejectment of the defendant as a tenant. The plea of the defendant was that he should remain in possession till the amount expended by him for construction of structure was repaid. It was held by the Supreme Court in that case that the plaintiff was entitled to get a decree for eviction against the defendant as a licensee, though not as a tenant. It is on the basis of this decision of the Supreme Court in the case of Bhagwati (AIR 1966 S. C. 735) that arguments are advanced in courts of law that a plaintiff is entitled to succeed in a suit for eviction, even though the plaintiff fails to prove the tenancy of the defendant. Such arguments are untenable. In the case of Bhagwati (supra), the defendant pleaded licence in the written statement and the defence was that the defendant was to remain in possession till the amount expended by him for construction was returned to him by the plaintiff. In that case, there was thus a case by the plaintiff that the defendant was a tenant and a case by the defendant that he was a licensee. It was in this perspective that the Supreme Court held in that case that, even though the defendant was not proved to be a tenant, the plaintiff could recover possession from the defendant, as the defence was that the defendant was a licensee in his written statement. It was in this perspective that the Supreme Court held in that case that, even though the defendant was not proved to be a tenant, the plaintiff could recover possession from the defendant, as the defence was that the defendant was a licensee in his written statement. There is nothing improper in giving the plaintiff a decree upon a case which the defendant himself makes. On the authority of the decision of the Supreme Court in the ease of Bhagwati (supra), the plaintiffs cannot get a decree for eviction against the appellant on treating the appellant as a licensee, even though the case of partnership has not been proved against the appellant. It is to be stated, in this connection, that under orders of this court in this appeal, the appellant is paying Rs. 575 per month for occupation of the shop-rooms. ( 16 ) THE result is that we are of the opinion that there is no partnership under the deed, Ext. 1, and that the appellant is a sub-tenant in respect of the disputed shop-rooms under the plaintiffs. The plaintiffs-respondents cannot thus get a decree for recovery of khas possession of the shop-rooms or a decree for permanent injunction, as prayed for. For reasons already stated, the respondents cannot also get a decree for declaration that the respondent No. 1 and the appellant were partners in the business under the name and style of "shravani" or a declaration that the partnership business has terminated on 31. 12. 78. ( 17 ) THE appeal is, accordingly, allowed. The judgment and decree passed by the learned Judge, 11th Bench, City Civil Court, Calcutta, in the Title Suit No. 10 of 1979, are set aside. The suit itself in the Court below is dismissed. In the special circumstances of this case, parties to bear their own costs of the suit and of this appeal. L. M. Ghosh, J: I agree. Appeal allowed.