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2019 DIGILAW 88 (CAL)

MINAKSHI DAS v. DEEP RANJAN DAS

2019-01-17

SABYASACHI BHATTACHARYYA

body2019
JUDGMENT : SABYASACHI BHATTACHARYYA, J. 1. The present legal battle is primarily between a mother and a son, both of whom are tenants in respect of the suit premises. The plaintiff/opposite party no. 1 filed a suit alleging that the predecessor-in-interest of the plaintiff and the present petitioner, being one Phonindra (since deceased), was the original tenant in respect of the suit premises. After his death on February 6, 2002, his only son, being the opposite party no. 1, and widow, being the present petitioner, inherited the tenancy. The opposite party no. 1 contends that the petitioner has been running a sweetmeat shop, under the trade name Netaji Mistanna Bhandar, as a sole proprietorship business from the suit premises. It is claimed by the petitioner that originally one Nagendra Nath Das was the tenant and used to run the said business. After his demise on September 11, 1989, Phonindra inherited the tenancy right and continued to carry on the business in the capacity of the heir of Nagendra Nath. Upon the death of Phonindra on February 6, 2002, the plaintiff/opposite party no. 1 and the petitioner became joint tenants in respect of the suit property. 2. Subsequently the landlords of the suit premises filed a suit for eviction against the plaintiff and the defendant no. 1 (present petitioner) and, as per the plaint case, the said joint tenants surrendered 600 square feet out of the tenanted premises, comprised in shop nos. 6 and 10, in favour of the landlords by executing a letter of surrender dated April 28, 2016. Thereafter the plaintiff learnt that the defendant no. 1/petitioner had entered into a partnership agreement with the defendant nos. 2 and 3, who had started renovation work at the suit premises. The aforesaid developments took place behind the back, and without the consent of, the plaintiff/opposite party no. 1. 3. Thereafter the plaintiff learnt that the defendant no. 1/petitioner had entered into a partnership agreement with the defendant nos. 2 and 3, who had started renovation work at the suit premises. The aforesaid developments took place behind the back, and without the consent of, the plaintiff/opposite party no. 1. 3. On such premise, the plaintiff instituted a suit, bearing Title Suit No. 2868 of 2016, in the Eighth Court of Civil Judge (Senior Division) at Alipore for the following reliefs: "(a) Decree for declaration that the plaintiff and his mother, the Defendant No.1 is tenant in common in respect of the suit property under the owners; (b) Decree for declaration that the Defendant No. 1 has no authority to transfer and/or assign and/or part with possession and/or sublet the suit property in favour of the third party in the garb of partnership business with the Defendant Nos. 2 & 3; (c) Decree for declaration that unilateral execution of the partnership execution of the Agreement for Partnership Deed dated 31.08.2016 by the Defendant No. 1 alone leaving the Plaintiff is void ab-initio and it should be treated as cancelled: (d) Decree for permanent injunction restraining the Defendant No. 1 and her men and agents from making any construction, addition, alteration and structural changes in the suit property; (e) Decree for permanent injunction restraining the Defendant No. 1 from subletting and/or assigning and/or parting with possession of the suit property namely the said shop Nos. 7 & 11 or any part thereof in favour of the Defendant No. 2 & 3 or any third party, (f) Decree for permanent injunction restraining the Defendants in giving effect of the Agreement for Partnership Deed dated 31.08.2016 executed by and between the Defendants; (g) All costs of the suit; (h) Any other relief or reliefs to which the plaintiff is entitled to under the law and in equity." 4. The schedule of the said plaint was as follows: "ALL THAT tenanted occupancy in respect of two Shops Nos. 7 and 11, measuring 600 Square Feet, where business is being run in the trade name of "Netaji Mistanna Bhandar", lying and situate on the ground floor at and being part of Municipal Premises No. 11, Despran Sasmal Road, Police Station: Charu Market, Kolkata 700033, within the territorial limits of the Kolkata Municipal Corporation in its Ward No. 89, commonly known as "Charu Market". 5. 5. In the said suit, the plaintiff/opposite party no. 1 filed an application praying for injunction restraining the defendant no. 1/petitioner and her men and agents from making any construction, addition, alteration and structural changes in the suit property and/or from subletting and/or assigning and/or parting with possession of the suit property in favour of the defendant nos. 2 and 3 (present proforma opposite party nos. 2 and 3 and others). 6. The Trial Court, vide order dated August 11, 2017, allowed the said injunction application on contest, directing both the parties to maintain status quo in the suit property, in respect of its nature and character as of that date, till disposal of the suit. 7. Being aggrieved, the petitioner preferred a Miscellaneous Appeal, bearing No. 241 of 2017, against the said status quo order. The Additional District Judge, Thirteenth Court at Alipore, by his judgment and order dated February 16, 2018, dismissed the miscellaneous appeal on contest, thereby affirming the status quo order passed by the Trial Court. 8. The present challenge has been preferred against the said order of affirmance. 9. Learned counsel for the petitioner argues that the Courts below proceeded on the premise that entering into a partnership with a third party ipso facto amounted to subletting and would afford a ground for eviction to the landlords, thereby putting the tenancy and occupation rights of the plaintiff/opposite party no. 1 along with the petitioner in jeopardy. Such premise, it is argued, is erroneous in the eye of law. Learned counsel argues that several documents were produced by the petitioner-mother to show that the petitioner was running the business solely after the death of her husband, that is, the father of the opposite party no. 1. In this context, learned counsel relies on several documents pertaining to the running of the said business, including trade licence. It is further submitted that the right to do business is not a 'property' which could devolve by inheritance, jointly on the petitioner and the opposite party no. 1 on the demise of their predecessor-in-interest. Since, after the demise of the said predecessor-in- interest, the petitioner has been running the business solely in her own name, the opposite party no. 1 did not have any right in the same and, as such, could not oppose any transaction entered into by the petitioner relating to such business. 10. 1 on the demise of their predecessor-in-interest. Since, after the demise of the said predecessor-in- interest, the petitioner has been running the business solely in her own name, the opposite party no. 1 did not have any right in the same and, as such, could not oppose any transaction entered into by the petitioner relating to such business. 10. Even if it is accepted for argument's sake that the tenancy in the suit premises devolve jointly upon the petitioner and opposite party no. 1, the petitioner could not claim any injunction regarding the petitioner entering into a partnership agreement with third parties in respect of the business. 11. It is pointed out from the partnership agreement-in-question, that the suit property was neither the asset of the partnership firm, nor was the subject-matter of the said agreement in any manner. It is further submitted that the partnership business, as per the said agreement, was to be carried on from 67A, D.P.S. Road, Kolkata 700033, which was not the suit property. Hence, it is argued that the opposite party no. 1 could not obtain any injunction in respect of the said partnership business, since the transaction did not entail a prospective eviction of the opposite party no. 1 or the petitioner on the ground of subletting. 12. By relying on the partnership agreement it is further submitted by the petitioner that the same could not amount to a subletting or even parting with possession, since the petitioner herself would be a partner of the prospective business and would continue in occupation of the said tenanted premises. Hence, the apprehension of the opposite party no. 1, that such transaction would afford a ground of eviction, was baseless. 13. The petitioner cites in this context, the provisions of Section 14 of the Partnership Act as well as a judgment [Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb Kadri and others reported at, AIR 1987 SC 1782 ]. It was held inter alia in the said judgment that the partnership deed- in-question gave the appellant therein the right to share the profits and made him agent for certain limited purposes of the firm and there was evidence that the partnership deeds were acted upon. It was held inter alia in the said judgment that the partnership deed- in-question gave the appellant therein the right to share the profits and made him agent for certain limited purposes of the firm and there was evidence that the partnership deeds were acted upon. In such context, it was observed that the mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease, unless the lessee parted with legal possession. 14. Learned counsel for the petitioner next cites a judgment [M/s Madras Bangalore Transport Company (West) vs. Inder Singh and others reported at, AIR 1986 SC 1564 ], wherein the Supreme Court held that since the firm, which was carrying on transport business, was in possession of the premises as a tenant and founded a limited company with its partners as Directors, there was no subletting, assignment or parting with possession of the premises by the firm to the limited company. The firm, it was held, continued to be in occupation of the premises even after the Caravan Goods Carrier Private Limited Company came in. The firm never effaced itself and allowed the company to function from the same premises but the company, though a separate legal entity, was in fact a creature of the partners of the firm and was the very image of the firm. There was substantial identity between the company and the firm and as such no subletting or assignment was created. 15. Learned counsel next cites a judgment [ARM Group Enterprises Ltd. vs. Waldorf Restaurant and others reported at, (2003) 6 SCC 423 ] for the proposition that under Section 14 of the Partnership Act, 1932, in the absence of an agreement to the contrary, property exclusively belonging to a person, on his entering into partnership with others, does not become a property of the partnership merely because it is used for the business of the partnership. Such property will become property of the partnership only if there is an agreement, express or implied, and that the property was, under the agreement of the partnership, to be treated as the property of the partnership. Such property will become property of the partnership only if there is an agreement, express or implied, and that the property was, under the agreement of the partnership, to be treated as the property of the partnership. It was held that the Division Bench of the High Court-in-question had wrongly assumed creation of sub-tenancy by the proprietor in favour of the partnership firm since the erstwhile proprietor himself became one of the partners of the firm and such an act on his part was sub-letting or not would depend upon the terms of the partnership deeds which were withheld from disclosure. Mere carrying on by the tenant of a partnership business does not per se amount to sub-letting unless it is shown that he withdrew his control of the leased premises and parted with possession. 16. Thus, it is submitted that the act of entering into a partnership agreement ipso facto could not justify the grant of status quo by the Courts below. 17. Learned counsel for the plaintiff/opposite party no. 1, on the other hand, submits that the partnership was entered into in order to start a new business in the name of 'M/s Ganguram & Sons'. As such, it was not a question of the earlier business of the tenancy being continued by the new partnership, but the commencement of a new business. 18. It is further submitted, by placing reliance on clauses 5A and 7 of the partnership agreement, that the capital of the business was to be contributed by the partners in the ratio of 95:5, that is, the strangers/proforma opposite party nos. 2 and 3 would contribute the majority and the petitioner the minority share of capital. Moreover, the profits and/or losses of the firm would be shared in the same ratio, that is, the strangers would have 95 percent share and the petitioner only 5 percent share (not excluding Rs. 35,000/- per month, in any event) in such profits and losses. 19. It is argued that, in such a scenario, the control of the business was actually being handed over to strangers and a new business was going to be started from the suit premises by changing the nature and character thereof. As such, the said transaction would obviously afford a ground of eviction of the tenants, including the opposite party no. 1, from the suit premises. 20. As such, the said transaction would obviously afford a ground of eviction of the tenants, including the opposite party no. 1, from the suit premises. 20. It is further submitted on behalf of the opposite party no. 1 that as the right to run the business of Netaji Mistanna Bhandar from the suit premises devolved jointly upon the petitioner and opposite party no. 1 along with the tenancy on the demise of the predecessor-in- interest of the said parties, mere issuance of trade licence in the name of the mother-petitioner could not amount to transfer of ownership of the business to the mother. As such, the moiety share of the opposite party no. 1 both in the business and in the tenancy had to be protected. 21. Learned counsel for the opposite party no. 1 cites a judgment [Parvinder Singh vs. Renu Gautam and others reported at, (2004) 4 SCC 794 ] in support of the proposition that to defeat provisions of rent control laws a device is at times adopted by unscrupulous tenants and sub- tenants of bringing into existence a partnership deed which gives the relationship of tenant and sub-tenant an outward appearance of partnership, while in effect a sub-tenancy or parting with possession has come into existence, camouflaged under the cloak of partnership. Although merely because a tenant has entered into a partnership, he cannot necessarily be held to have sub-let or parted with possession in favour of his partners, a tenant has to retain use and control of the tenancy premises and to actively associate with the partnership business to avoid the transaction being termed sub-letting. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and alleged sub-tenant. 22. In the present case, it is submitted, the partnership amounted to transfer of user and control and as such amounted to a sub-letting, jeopardizing the joint tenancy of the opposite party no. 1 and subjecting him to prospective eviction. 23. 22. In the present case, it is submitted, the partnership amounted to transfer of user and control and as such amounted to a sub-letting, jeopardizing the joint tenancy of the opposite party no. 1 and subjecting him to prospective eviction. 23. Upon hearing both sides and perusal of the documents-in-question, it is evident that the tenancy rights in the corpus of the suit property as well as the ownership of the business devolved jointly upon the petitioner and the opposite party no. 1 on the death of their predecessor-in-interest, namely, Phonindra. 24. The argument that the proprietorship business is not a 'property' that will devolve on the demise of the original owner, is not acceptable. A business, in whatever form, is comprised of its assets, capital, goodwill, profits and loss and other components, which, in totality, form a movable property, subject to devolution by inheritance. In the present case, since admittedly the predecessor-in-interest of the petitioner and opposite party no. 1 was the owner of the business, the same was inherited jointly by the petitioner and the opposite party no. 1 on the demise of the predecessor. Mere issuance of trade licence in the name of the petitioner and other documents showing that the petitioner has been running the business in her own name do not establish exclusive ownership of the petitioner in the business, since the authorities issuing trade licence and allied permissions do not have the jurisdiction to decide title. Even if the petitioner was running the business in her own name (which she was not in the present case, since the trade name remained as 'Netaji Mistanna Bhandar'), she would be deemed to run the business on behalf of the joint owners, being herself and the opposite party no. 1. In such view of the matter, in any event, the petitioner could not enter into a partnership business with a third-party without the consent and/or active participation of the opposite party no. 1. 25. Moreover, as far as the tenancy is concerned, there is no basis for the petitioner's claim in the present revisional application that she was the sole tenant on the demise of her husband, since such averment runs contrary to the pleadings of the petitioner in the Courts below, wherein she admitted the joint tenancy having devolved upon her and the opposite party no. 1 on the demise of their predecessor-in-interest. 26. 1 on the demise of their predecessor-in-interest. 26. A perusal of the impugned orders shows that status quo was granted only in respect of change in nature and character of the suit property, which directly pertains to the corpus of the tenanted premises, having no nexus with the business. As such, if a narrow view is taken, the petitioner does not have any case at all in the present revision, since both the contested parties are joint tenants in respect of the suit premises, justifying by default an injunction/status quo protecting the nature and character of the suit property as granted. 27. Even if a broader view is taken, to interpret the said order as encompassing the business as well, the opposite party no. 1 has made out a sufficient prima facie case to go for trial as to whether the petitioner's act of entering into a partnership business with a third party would amount to subletting and/or assignment and/or parting with possession, subjecting the tenants to the risk of eviction. The control of the business would entirely go to the strangers as per the partnership deeds itself and a new business would be started therefrom in the name of 'M/s Ganguram & Sons', without any trace being left of the original 'Netaji Mistanna Bhandar'. Hence, it is arguable as to whether such transaction amounts to a subletting or at least an assignment or parting with possession. 28. It is also well-settled that, for grant of injunction, only a prima facie case to go for trial, meaning thereby a triable issue, has to be raised and the plaintiff does not have to prove his/her case to the hilt. Such a triable issue having been sufficiently raised and the other ingredients of injunction also having been fulfilled in view of the tenancy rights of the opposite party no. 1 and his rights in the joint business being in jeopardy, an urgent remedy in the form of status quo was required to protect such rights of the plaintiff/opposite party no. 1 in view of the impending commencement of a new partnership business with a stranger from the suit premises at the behest of the petitioner. 29. As such, the Courts below were well within their jurisdiction to pass the impugned orders. 30. Accordingly, C.O. No. 3279 of 2018 is dismissed without any order as to costs. 31. 1 in view of the impending commencement of a new partnership business with a stranger from the suit premises at the behest of the petitioner. 29. As such, the Courts below were well within their jurisdiction to pass the impugned orders. 30. Accordingly, C.O. No. 3279 of 2018 is dismissed without any order as to costs. 31. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.