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2009 DIGILAW 333 (CAL)

Jiban Krishna Saha v. Parulbala Saha

2009-04-27

B.BHATTACHARYA, JAPAN KUMAR DUTT

body2009
JUDGMENT 1. THIS first appeal is at the instance of the defendant in a suit for declaration and permanent injunction and is directed against the judgment and decree dated 15th May, 2002, passed by the learned Judge, Thirteen Bench, City Civil Court at Calcutta, in Title Suit no. 769 of 2001, thereby declaring that the plaintiffs and the defendant no. 1 are the joint owners in respect of the business in the suit premises and the defendant No. 1 was directed to render account of the joint business to the plaintiffs and to pay the plaintiffs' share of profit of the said business. At the same time, the defendant No. 2 was directed to mutate and record the name of the plaintiffs along with the defendant No. 1 as joint tenant in respect of the suit premises and the defendant No. 1 was restrained from disposing of the business in any manner without the consent of the plaintiffs. 2. BEING dissatisfied, the defendant No. 1 has come up with the present first appeal. The plaintiffs/respondent Nos. 1 to 5 filed a suit against the appellant and the respondent No. 6 in the City Civil Court at Calcutta a suit being Title Suit No. 769 of 2001 thereby praying for the following relief: - " (a) Declaration that the plaintiffs and the defendant No. 1 are the joint owners in respect of the business carried on under the name and style of M/s. Shibo Durga Paper Concern at premises no. 42/1b, Baithakkhana Road, under Police Station Muchipara, calcutta; (b) Declaration that the plaintiffs and the defendant No. 1 are the tenants in common and/or joint tenants in respect of the suit premises fully described in the schedule written therein; (c) Mandatory injunction directing the defendant No. 1 to render the accounts of the joint business carried on under the name and style of M/s. Shibo Durga Paper Concern at Premises No. 42/1b, baithakkhana Road, and to pay the plaintiffs' share of profit in the said business; (d) Mandatory injunction directing the defendant No. 2 to mutate and/or record the names of the plaintiffs along with the defendant No. 1 as tenants in common and/or joint tenants in respect of the suit premises fully described in the schedule written herein and to issue rent receipt accordingly; (e) Permanent injunction restraining the defendant No. 1, his men, agents, servants and associates from transferring assigning, disposing of and/or encumbering the business carried on under the name and style of M/s. Shibo Durga Paper Concern at Premises no. 42/1b, Baithakkhana Road, Calcutta, in any manner whatsoever; (f) Permanent injunction restraining the defendants and each of them, their men, agents, servants and associates from transferring, assigning, and/or extinguishing the right of tenancy in respect of the suit premises in exclusion of the plaintiffs and/or encumbering the suit premises fully described in the schedule written herein in any manner whatsoever; (g) Receiver; (h) Temporary injunction in terms of Prayers (d), (e) and (f)hereinabove; (i) All costs of the suit including Advocate's fees; g) Such further relief or reliefs to which the plaintiffs are entitled to. " 3. THE case made out by the plaintiffs/respondents in the said suit may be summed up thus: - (a) One Haridas Saha, since deceased, took settlement of a tenancy in respect of one room in the ground floor of Premises no. 42/1 B, Baithak Khana Road which is the suit property. After taking settlement of tenancy the said Haridas Saha, since deceased, started running a tea shop. Subsequently, in 1978 he closed down the tea shop and started a business of waste paper under the name and style of M/s. Shibo Durga Paper Concern. The capital of the said business was contributed by the said Haridas Saha, since deceased, and his brother, Radheshyam Saha, since deceased, and they continued to carry on the said business till 5th December, 1981. The capital of the said business was contributed by the said Haridas Saha, since deceased, and his brother, Radheshyam Saha, since deceased, and they continued to carry on the said business till 5th December, 1981. (b) On 5th December, 1981, the said Haridas Saha by a registered deed of gift gave away of his right, title and interest in respect of the said business in favour of Radheshyam Saha, and thus, Radheshyam Saha became the absolute owner of the said business. During his life time, the said Radheshyam Saha carried on the business as the sole proprietor and maintained his family from the income of the business. (c) After the deed of gift was executed by Haridas Saha, the said Radheshyam Saha got the tenancy in respect of the premises transferred in his name and carried on the said business after obtaining the necessary licence. (d) The said Radheshyam Saha died on 28th February, 1984, leaving his widow, the plaintiff No. 1, four sons, the plaintiff Nos. 2 and 3 and the defendant No. 1 and one Ramkrishna Saha, since deceased, and two daughters i. e. The plaintiff Nos. 4 and 5 as his heirs and legal representatives, who inherited the estate left by him including the said business and the right of tenancy in respect of the suit property and thus, the plaintiffs, the defendant No. 1 and ramkrishna Saha, since deceased, became the joint owners of the said business and tenants-in-common in the suit property by operation of law. (e) After the demise of Radheshyam Saha, the defendant no. 1 who used to assist the said Radheshyam Saha in running of his business, started looking after the said business and the plaintiff no. 3 along with Ramkrishna Saha, since deceased, started assisting the defendant No. 1 in running the said business and managed the same for self and on behalf of the other heirs of Late Radheshyam saha On January 23,1999 Ramkrishna Saha died as a bachelor leaving his mother, the plaintiff No. 1, as his only heir and thus, the plaintiff No. 1 inherited the estate left by the said deceased including his share of the said business and the right of tenancy by operation of law. (f) A few days after the marriage of the defendant No. 1, he started picking up quarrels with the plaintiffs and at times, he tried to obstruct the plaintiff No. 3 in entering into the suit premises and taking part in the joint business of the plaintiffs and the defendant no. 1. The defendant No. 1 stopped making regular payment of share of profits to the plaintiffs and also refused to render the accounts of the aforesaid business. (g) The plaintiffs being suspicious made enquiries into the matter and contacted the defendant No. 2, the landlord of the premises, to ascertain that the defendant No. 2 transferred the tenancy in the name of the defendant No. 1 without the consent of the plaintiffs. (h) It further appeared that the defendant No. 1 surreptitiously manipulated the documents and got the tenancy transferred in his name and likewise got the trade licence changed in his name. The plaintiffs being heirs and legal representatives of Late Radheshyam saha inherited the estate left by him including the business and right of tenancy in respect of the suit premises. The plaintiffs and the defendant, thus, became entitled to the share of the aforesaid business in the following share: - Plaintiff No. 1 2/7th share Plaintiff No. 2 1/7th share Plaintiff No. 3 1/7th share Plaintiff No. 4 1/7th share Plaintiff No. 5 1/7th share Defendant No. 1 1/7th share 4. THE defendant No. 1 refused to render any account or give share of profit to the plaintiffs. Hence the suit. The suit was contested by the defendant No. 1 by filing written statement thereby denying the material allegations made in the plaint and the specific defence of the defendant No. 1 was that Radheshyam Saha, during his lifetime, surrendered the tenancy and thereafter, the defendant no. 1 became the sole tenant. The defendant No. 1 has also commenced his own business and the rent receipt, trade licence, professional tax return and the return submitted before the Income Tax Department, all stand in the name of the defendant No. 1 and as such, the plaintiffs were not entitled either to get any share in the business or right in the tenancy. 5. The defendant No. 1 has also commenced his own business and the rent receipt, trade licence, professional tax return and the return submitted before the Income Tax Department, all stand in the name of the defendant No. 1 and as such, the plaintiffs were not entitled either to get any share in the business or right in the tenancy. 5. AT the time of hearing, the plaintiff No. 3 and the plaintiff No. 4 deposed in support of the plaint case while the defendant No. 1 alone gave evidence controverting the allegation made in the plaint. 6. THE learned trial Judge, as indicated earlier, by the judgment and decree impugned herein came to the conclusion that on the death of radheshyam Saha, the tenancy was never surrendered by his heirs and legal representatives and as such, the defendant No. 2, the landlord, could not lawfully transfer the tenancy in favour of the defendant No. 1 without the consent of the other heirs of Radheshyam Saha. The learned trial judge further held that the plaintiffs have six-seventh share in the joint business and directed the defendant No. 1 to give account of the share of the profits. Being dissatisfied, the defendant No. 1 has come up with the present appeal. 7. AFTER hearing the learned Counsel appearing on behalf of the parties and after going through the materials-on-record, we find that the appellant has even, admitted that Radheshyam Saha, his father, was the tenant in respect of the suit property. According to the appellant, his father during his lifetime surrendered his tenancy right and thereafter, the landlord granted tenancy in his favour. It appears that Radheshyam Saha died in the month of February, 1984 whereas the first rent receipt that has been produced by the defendant No. 1 in the proceeding, was in respect of may, 1988. In our view, the learned trial Judge rightly concluded that the defence taken by the defendant No. 1 that Radheshyam Saha during his lifetime surrendered the tenancy could not be established. We find no reason to interfere with the finding recorded by the learned trial Judge that on the death of Radheshyam Saha, all the heirs including the plaintiffs inherited the tenancy right and thus, in the suit property the plaintiffs and the defendant No. 1 were tenants-in-common. We find no reason to interfere with the finding recorded by the learned trial Judge that on the death of Radheshyam Saha, all the heirs including the plaintiffs inherited the tenancy right and thus, in the suit property the plaintiffs and the defendant No. 1 were tenants-in-common. The learned trial Judge did not commit any mistake in passing such declaration and directing the landlord, the defendant No. 2, to issue rent receipt in favour of all the heirs. 8. AS regards the other part of the decree by which joint ownership of the business was declared and the defendant No. 1 was directed to give account of the business, we are of the view that such prayer is not maintainable unless the plaintiffs assert that the partnership is a registered one and all the partners are shown in the register maintained under the partnership Act as partner of the business. In this connection, the provision contained in Section 69 (1) of the Partnership Act may be quoted: - "69. Effect of non-registration.- (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. (2) No suits to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. (2) No suits to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. (3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect - (a) The enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm; or (b) The powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909 (3 of 1909), or the provincial Insolvency Act, 1920 (5 of 1920), to realise the property of an insolvent partner. (4) This section shall not apply - (a) To firms or to partners in firms which have no place of business in 1[the territories to which this Act extends], or whose places of business in 2[the said territories] are situated in areas to which, by notification under 3[section 56], the chapter does not apply, or (b) To any suit or claim or set-off not exceeding one hundred rupees in value which, in the Presidency-towns, is not of a kind specified in Section 19 of the Presidency Small Cause Courts Act, 1882 (15 of 1882), to outside the Presidency-towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim. " In the case before us, it is not the case of the plaintiffs that the business concerned is a registered partnership or that all the parties are shown as partner. Therefore, the plaintiffs could not maintain a suit for enforcing their right by virtue of the alleged partnership business by praying for declaration of such right and accounts. The plaintiffs, thus, want to enforce their existing right as partners. It may be mentioned here that the plaintiffs have not prayed for dissolution of the partnership business and, therefore, the suit did not come within the exception indicated in Section 69 (3) (a) of the Act. 9. The plaintiffs, thus, want to enforce their existing right as partners. It may be mentioned here that the plaintiffs have not prayed for dissolution of the partnership business and, therefore, the suit did not come within the exception indicated in Section 69 (3) (a) of the Act. 9. MR. Chittaranjan Chakraborty, the learned Advocate appearing on behalf of the respondents, however, tried to impress upon us that the business was really joint business of Hindu undivided family and thus, section 69 does not come into operation. We are not at all impressed by such submission. In the plaint, the business had not been described as a business of joint Hindu family, on the other hand, they have claimed specific share in the business and specific allegation is that the defendant No. 1 refused to give share of the profit of the business as indicated in the plaint. Such being the position, the business is a partnership business within the meaning of Partnership Act and in the absence of registration of the said business the suit was not maintainable in the present form. 10. WE, therefore, allow the appeal in part by affirming the declaration of tenancy right and direction upon the landlord to issue rent receipt in the name of all the heirs of Radheshyam Saha but set aside the other declaration relating to the share of the parties in the business and the decree for account on the ground that the suit containing such prayers is hit by Section 69 of the Partnership Act. We make it clear that we have otherwise not gone into the merit as to whether the business is really a joint business or individual business of the defendant No. 1 in this proceeding and the setting aside of the decree will not stand in the way of the parties in seeking appropriate remedy before appropriate forum in accordance with law. In the facts and circumstances, there will be, however, no order as to costs.