Chandra Mohan Sur and ors. Vs. Mohit Lal Seal and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/863114
SubjectContract
CourtKolkata High Court
Decided OnMar-17-2006
Case NumberF.A. No. 350 of 1990
JudgePrabir Kumar Samanta and ;Tapen Sen, JJ.
Reported in2006(3)CHN316
ActsPartnership Act, 1932 - Section 69(2); ;Income Tax Act
AppellantChandra Mohan Sur and ors.
RespondentMohit Lal Seal and anr.
DispositionAppeal dismissed
Cases ReferredKanahiya Lal Balkishan Dass v. Labha Ram
Excerpt:
- tapen sen, j.1. this appeal is directed against the judgment and decree dated 3.5.1990 passed by sri s.c. dutta, city civil court (13th bench) calcutta in title suit no. 1779 of 1981 whereby and whereunder he was pleased to hold that the suit was not maintainable and accordingly dismissed the same.2. the plaintiffs, who are the appellants herein filed the suit for declaration and for recovery of possession. their case, as built up before the court below as well as before this court was that one r.n. sur and one n.c. biswas were tenants under one manoharlal seal in respect of room no. 22 on the ground floor of premises no. 167 situated on lenin sarani (formerly known as dharmatala street) calcutta, on a rental @ rs. 22/- per month plus corporation surchages @ rs. 21- per month.3. r.n. sur and n.c. biswas carried on business of tailoring, bedding and general order supplying in partnership between themselves under the name and style of 'r.n. sur & n.c. biswas.' it was stated that rent receipts stood in the name of the partnership firm and that the premises was used and occupied as a godown of the said partnership business and other shops situated on premises no. 167/7 and bearing nos. 53 and 54 and which were adjacent to room no. 22, were used as offices and display counters for the business.4. it was further stated that in january 1960. n.c. biswas expired and thereafter, in november, 1964. r.n. sur also expired. upon the death of these original tenants, the plaintiff nos. 1 to 5 (who are also the appellant nos. 1 to 5 herein) became the legal heirs and representatives of r.n. sur. similarly the plaintiff nos. 6 to 9 (who are also the appellant nos. 6 to 9 herein) became the legal heirs and representatives of n.c. biswas and therefore, all of them i.e. the plaintiff nos. 1 to 9 all became tenants in respect of the suit premises and carried on business in the name and style of 'r.n. sur & n.c. biswas' on payment of rent to the defendants/respondent no. 1 herein and who represented the estate of manoharlal seal, since deceased.5. it was further stated that sometime in june, 1976 one abdul halim (defendant/respondent no. 2) approached the appellants as he was apparently an old customer and very well-acquainted with them and requested that he be allowed to use and occupy the suit premises as a temporary measure on the assurance that he would vacate as soon as he was able to find a permanent accommodation. accepting his request, the appellants allowed him to occupy the suit premises purely as a temporary measure and, as a licensee.6. however, the appellants found out later on that abdul halim did not vacate the suit premises even after lapse of four years as a result whereof the appellants, by their letter dated 5.9.1081, revoked the licence and asked him to quit and vacate the suit premises within seven days from the date of receipt thereof.7. in the meantime, the appellants learnt, from local enquiry, that the defendant/respondent no. 1 had been granting rent receipts in favour of the said abdul halim in respect of the suit premises since february, 1981 and had been realizing rent from him also.8. the appellants asserted that they, at no point of time, had ever surrendered their tenancy rights in respect of the suit premises and in fact, were occupying the same as a tenants under the defendant/respondent no. 1 who had stopped accepting rent. according to the appellants, the defendant/respondent no. 1 had no right to issue rent receipts in favour abdul halim and therefore, they sought for a declaration to the effect that they were tenants under the defendant/respondent no. 1 in respect of room no. 22; ground floor; premise no. 167; lenin sarani, kolkata, at a monthly rent of rs. 22/- and corporation surcharge of rs. 2/- per month. they also sought for a decree of permanent injunction restraining the defendant/respondent no. 1 from realizing any further rent from abdul halim in respect of the suit premises. they also sought for a decree of permanent injunction restraining the defendants/respondents from evicting them from the aforementioned property.9. the suit was contested by the defendant/respondent no. 1 alone. the defendant/respondent no. 2 (abdul halim) did not contest the suit.10. the principle attack to the suit was that the same was not at all maintainable, being hit by the provisions of section 69(2) of the partnership act. the contesting defendant however admitted that the partnership firm 'm/s. r.n. sur and n.c. biswas' was the tenant in respect of room no. 22 but. the said firm had actually surrendered the tenancy and handed back possession thereof to him where after he had built a new room which he had let out to the defendant/respondent no. 2. he further stated that room no. 22 was no longer in existence.11. on the basis of the aforementioned contentions of the parties, the learned court below framed the following issues:1. is the suit maintainable?2. are the plaintiffs monthly tenants under the defendant in respect of the suit premises as alleged?3. are the plaintiffs entitled to the declaration and injunction as prayed for?4. are the plaintiffs entitled to get a decree for recovery of khas possession as prayed for?12. the court below took up all the aforementioned issue together. so far as the contention of the defendant/respondent no. 1 relating to surrender of the tenancy, the same was not believed by the court below.13. however, in respect of the other contention to the effect that the suit was hit by the provisions of section 69(2) of the partnership act, the court below came to the conclusion and returned a finding to the effect that the suit was hit by section 69(2) of the said act and that it was therefore, not maintainable.14. learned counsel for the appellants vehemently attempted to impress upon us that the said finding was incorrect inasmuch as after the death of both r.n. sur and n.c. biswas, the appellants, being their respective legal heirs and representatives, stepped into their respective shoes and became tenants of the landlord. he further argued that they being the legal heirs and representatives of the original partners and the said original partners having died and they having been allowed to continue as tenants, it must be deemed that the landlords had accepted them as tenants in their individual capacities and therefore the tenancy, qua the partnership firm, would be deemed to have come to an end.15. we have no hesitation in rejecting such a contention of the learned counsel and for the reasons given hereunder, we proceed to also hold that the suit was hit by the provisions of section 69(2) of the partnership act.16. section 69(2) of the partnership act reads as follows:no suit 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.17. admittedly 'm/s. r.n. sur and n.c. biswas' was a partnership firm but it was never registered. this would be apparent from the deposition of plaintiffs witness no. 1 namely dilip kumar sur (the plaintiff/appellant no. 3 herein). in his cross-examination he has clearly admitted:(a) that the firm was not registered,(b) that it was the firm which was a tenant under mahonlal seal (although in the plaint the name is manoharlal seal), and(c) upon the death of mohonlal seal, the landlord's interest devolved upon his sons, namely mohitlal seal, mohonlal seal and monojlal seal.18. thus, the factum relating to the firm not being registered is clearly admitted by none other than the plaintiff no. 3 himself. interestingly, although he himself has verified the plaint, yet for mysterious reasons, he has not disclosed the father's name of mohitlal seal (defendant/respondent no. 1) in the cause title of the plaint but, in his cross-examination, he has clearly given out that mohanlal seal had three children whose names have been disclosed by him. therefore, he was aware of the name of the father of the defendant/respondent no. 1. the relevant portion of his deposition therefore, is worth reproducing. it reads thus:m/s. r.n. sur and n.c. biswas is a partnership firm. it is not a registered partnership firm. the said partnership firm is a tenant. initially the firm is a tetant under one mohanlal seal. on the death of said mohanlal seal the landlord's interest devolved upon his sons, mohitlal seal, mohanlal seal and monojlal seal....19. thus upon the death of the original landlord, the landlord's rights having admittedly devolved upon the aforementioned three persons, it was absolutely incumbent upon the plaintiffs to have impleaded them as landlords but it was not so done. the suit was, therefore, also bad for non-joinder of the parties.20. the rent receipt which have been brought on record between pages 60 to 64 of the memo of appeal clearly go to show that the landlord was the 'estate' of 'monoharlal seal' and the tenants name was 'r.n. sur & n.c. biswas'. some of the rent receipts clearly show the names of mohanlal seal, monojlal seal and mohitlal seal. these rent receipts are of the year, 1966 and 1968. the suit was filed in the year 1981 and therefore, the attempt of the plaintiffs in firstly not impleading these landlords and then, by describing mohitlal seal (defendant no. 1) as 'father's name not known to the plaintiffs...' is, in the opinion of this court, a deliberate attempt to not only confuse and confound, but also to make statements which are not correct.21. upon a perusal of the aforesaid facts and circumstances read with paragraphs 2 and 4 of the plaint and upon reading the cross-examination of the plaintiffs/appellant no. 3 together with the rent receipts, it is clear that the tenancy was in the name of the firm and that the plaintiffs continued paying rent on behalf of the said firm for well over 14 years (the first rent receipt is dated 1.12.1966 at page 64 of the memo of appeal and their own statement in paragraph 9 of the plaint is that acceptance of rent was stopped since september 1980). thus at this stage or even at the stage of filing the suit, these appellants cannot be allowed to suddenly turn around and take a stand that they, in their individual capacities, were the tenants and not the firm. in fact, such a plea has not even been pleaded by the plaintiffs. consequently this court is of the view that the reasoning of the learned court below to the effect the suit was hit by section 69(2) of the partnership act, is correct.22. learned counsel for the appellants relied upon the judgment of the supreme court passed in the case of malabar fisheries co. v. commissioner of income tax kerala reported in : [1979]120itr49(sc) in support of his contention that the appellants being partners, and therefore in view of the ratio laid down in the aforementioned judgment, it must be held that 'partners are called collectively a firm.' referring to paragraph 13 to 19 of the said judgment, learned counsel submits that in law, partnership property in jointly owned by all partners composing the firm and therefore, the partnership property will vest in all the partners and in that sense, every partner will have an interest in the property of the partnership. we are afraid, such an argument cannot be accepted in the facts and circumstances of this case as the judgment relied upon by the learned counsel deals with the interpretations of the income-tax act qua the partnership act. in the instant case we are concerned with the right of a landlord qua his tenants in the context of a rented premises which formed the subject-matter of the tenancy. for the same reason, the judgment of the supreme court passed in the case of bacha f. gujdar, bombay v. commissioner of income-tax bombay reported hi : [1955]27itr1(sc) cited by the learned counsel will also not apply in the facts and circumstances of this case.23. so far as the other judgment cited by the learned counsel, namely sudhansu kanta v. manindra nath reported hi : air1965pat144 is concerned, the same deals with a partner's interest or share in a firm's assets which proportionately becomes his in the event surplus is left on the dissolution of the partnership after payment of the firm's debts and liabilities out of the assets. learned counsel relies upon paragraph 10 of the said judgment but the same judgment will be inapplicable hi the facts and circumstances of this case for the same reasons stated above.24. the other judgment cited by the learned counsel in the case of kanahiya lal balkishan dass v. labha ram reported in : air1971delhi219 , cannot also be made applicable. learned counsel relies upon paragraph 7 of the said judgment hi support of his argument to the effect that on the dissolution of the tenant firm and allotment of the premises to one of its partners, the same will not absolve the liability of all the partners to the landlord for rent. we have carefully gone through the judgment and we find that the same in totally inapplicable in the facts and circumstances of this case.25. for the foregoing reasons, we are clearly of the view that there is no illegality with the impugned judgment and decree. there is no merit in this appeal. it is accordingly dismissed.26. consequently, we also reject can no. 7606/97 which has been filed in this case for modification of the cause title plaint by adding robin kumar sur and bimal kumar sur as plaintiffs and by deleting the names of the plaintiff nos. 6 to 9 on the ground that the partnership firm 'r.n. sur & n.c. biswas' has since been dissolved with the effect from 1.11.1994. this so called dissolution of partnership made much after filing of the suit (almost after 13/14 years) cannot affect the rights of the landlord and too. when there is nothing on record to suggest that such a dissolution was made after taking all the landlords into confidence. there is no merit in this application. it is accordingly rejected.27. urgent xerox certified copy of this order, if applied for, the same will be supplied expeditiously.prabir kumar samanta, j.i agree.
Judgment:

Tapen Sen, J.

1. This appeal is directed against the judgment and decree dated 3.5.1990 passed by Sri S.C. Dutta, City Civil Court (13th Bench) Calcutta in Title Suit No. 1779 of 1981 whereby and whereunder he was pleased to hold that the suit was not maintainable and accordingly dismissed the same.

2. The plaintiffs, who are the appellants herein filed the suit for declaration and for recovery of possession. Their case, as built up before the Court below as well as before this Court was that one R.N. Sur and one N.C. Biswas were tenants under one Manoharlal Seal in respect of room No. 22 on the ground floor of premises No. 167 situated on Lenin Sarani (formerly known as Dharmatala Street) Calcutta, on a rental @ Rs. 22/- per month plus Corporation surchages @ Rs. 21- per month.

3. R.N. Sur and N.C. Biswas carried on business of tailoring, bedding and general order supplying in partnership between themselves under the name and style of 'R.N. Sur & N.C. Biswas.' It was stated that rent receipts stood in the name of the partnership firm and that the premises was used and occupied as a godown of the said partnership business and other shops situated on premises No. 167/7 and bearing Nos. 53 and 54 and which were adjacent to room No. 22, were used as offices and display counters for the business.

4. It was further stated that in January 1960. N.C. Biswas expired and thereafter, in November, 1964. R.N. Sur also expired. Upon the death of these original tenants, the plaintiff Nos. 1 to 5 (who are also the appellant Nos. 1 to 5 herein) became the legal heirs and representatives of R.N. Sur. Similarly the plaintiff Nos. 6 to 9 (who are also the appellant Nos. 6 to 9 herein) became the legal heirs and representatives of N.C. Biswas and therefore, all of them i.e. the plaintiff Nos. 1 to 9 all became tenants in respect of the suit premises and carried on business in the name and style of 'R.N. Sur & N.C. Biswas' on payment of rent to the defendants/respondent No. 1 herein and who represented the estate of Manoharlal Seal, since deceased.

5. It was further stated that sometime in June, 1976 one Abdul Halim (defendant/respondent No. 2) approached the appellants as he was apparently an old customer and very well-acquainted with them and requested that he be allowed to use and occupy the suit premises as a temporary measure on the assurance that he would vacate as soon as he was able to find a permanent accommodation. Accepting his request, the appellants allowed him to occupy the suit premises purely as a temporary measure and, as a licensee.

6. However, the appellants found out later on that Abdul Halim did not vacate the suit premises even after lapse of four years as a result whereof the appellants, by their letter dated 5.9.1081, revoked the licence and asked him to quit and vacate the suit premises within seven days from the date of receipt thereof.

7. In the meantime, the appellants learnt, from local enquiry, that the defendant/respondent No. 1 had been granting rent receipts in favour of the said Abdul Halim in respect of the suit premises since February, 1981 and had been realizing rent from him also.

8. The appellants asserted that they, at no point of time, had ever surrendered their tenancy rights in respect of the suit premises and in fact, were occupying the same as a tenants under the defendant/respondent No. 1 who had stopped accepting rent. According to the appellants, the defendant/respondent No. 1 had no right to issue rent receipts in favour Abdul Halim and therefore, they sought for a declaration to the effect that they were tenants under the defendant/respondent No. 1 in respect of room No. 22; Ground floor; premise No. 167; Lenin Sarani, Kolkata, at a monthly rent of Rs. 22/- and Corporation surcharge of Rs. 2/- per month. They also sought for a decree of permanent injunction restraining the defendant/respondent No. 1 from realizing any further rent from Abdul Halim in respect of the suit premises. They also sought for a decree of permanent injunction restraining the defendants/respondents from evicting them from the aforementioned property.

9. The suit was contested by the defendant/respondent No. 1 alone. The defendant/respondent No. 2 (Abdul Halim) did not contest the suit.

10. The principle attack to the suit was that the same was not at all maintainable, being hit by the provisions of Section 69(2) of the Partnership Act. The contesting defendant however admitted that the partnership firm 'M/s. R.N. Sur and N.C. Biswas' was the tenant in respect of room No. 22 but. the said Firm had actually surrendered the tenancy and handed back possession thereof to him where after he had built a new room which he had let out to the defendant/respondent No. 2. He further stated that room No. 22 was no longer in existence.

11. On the basis of the aforementioned contentions of the parties, the learned Court below framed the following issues:

1. Is the suit maintainable?

2. Are the plaintiffs monthly tenants under the defendant in respect of the suit premises as alleged?

3. Are the plaintiffs entitled to the declaration and injunction as prayed for?

4. Are the plaintiffs entitled to get a decree for recovery of khas possession as prayed for?

12. The Court below took up all the aforementioned issue together. So far as the contention of the defendant/respondent No. 1 relating to surrender of the tenancy, the same was not believed by the Court below.

13. However, in respect of the other contention to the effect that the suit was hit by the provisions of Section 69(2) of the Partnership Act, the Court below came to the conclusion and returned a finding to the effect that the suit was hit by Section 69(2) of the said Act and that it was therefore, not maintainable.

14. Learned Counsel for the appellants vehemently attempted to impress upon us that the said finding was incorrect inasmuch as after the death of both R.N. Sur and N.C. Biswas, the appellants, being their respective legal heirs and representatives, stepped into their respective shoes and became tenants of the landlord. He further argued that they being the legal heirs and representatives of the original partners and the said original partners having died and they having been allowed to continue as tenants, it must be deemed that the landlords had accepted them as tenants in their individual capacities and therefore the tenancy, qua the partnership firm, would be deemed to have come to an end.

15. We have no hesitation in rejecting such a contention of the learned Counsel and for the reasons given hereunder, we proceed to also hold that the suit was hit by the provisions of Section 69(2) of the Partnership Act.

16. Section 69(2) of the Partnership Act reads as follows:

No suit 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.

17. Admittedly 'M/s. R.N. Sur and N.C. Biswas' was a partnership firm but it was never registered. This would be apparent from the deposition of plaintiffs witness No. 1 namely Dilip Kumar Sur (the plaintiff/appellant No. 3 herein). In his cross-examination he has clearly admitted:

(a) that the firm was not registered,

(b) that it was the firm which was a tenant under Mahonlal Seal (although in the plaint the name is Manoharlal Seal), and

(c) upon the death of Mohonlal Seal, the landlord's interest devolved upon his sons, namely Mohitlal Seal, Mohonlal Seal and Monojlal Seal.

18. Thus, the factum relating to the firm not being registered is clearly admitted by none other than the plaintiff No. 3 himself. Interestingly, although he himself has verified the plaint, yet for mysterious reasons, he has not disclosed the father's name of Mohitlal Seal (defendant/respondent No. 1) in the cause title of the plaint but, in his cross-examination, he has clearly given out that Mohanlal Seal had three children whose names have been disclosed by him. Therefore, he was aware of the name of the father of the defendant/respondent No. 1. The relevant portion of his deposition therefore, is worth reproducing. It reads thus:

M/s. R.N. Sur and N.C. Biswas is a partnership firm. It is not a registered partnership firm. The said partnership firm is a tenant. Initially the firm is a tetant under one Mohanlal Seal. On the death of said Mohanlal Seal the landlord's interest devolved upon his sons, Mohitlal Seal, Mohanlal Seal and Monojlal Seal....

19. Thus upon the death of the original landlord, the landlord's rights having admittedly devolved upon the aforementioned three persons, it was absolutely incumbent upon the plaintiffs to have impleaded them as landlords but it was not so done. The suit was, therefore, also bad for non-joinder of the parties.

20. The rent receipt which have been brought on record between pages 60 to 64 of the memo of appeal clearly go to show that the landlord was the 'Estate' of 'Monoharlal Seal' and the tenants name was 'R.N. Sur & N.C. Biswas'. Some of the rent receipts clearly show the names of Mohanlal Seal, Monojlal Seal and Mohitlal Seal. These rent receipts are of the year, 1966 and 1968. The suit was filed in the year 1981 and therefore, the attempt of the plaintiffs in firstly not impleading these landlords and then, by describing Mohitlal Seal (defendant No. 1) as 'father's name not known to the plaintiffs...' is, in the opinion of this Court, a deliberate attempt to not only confuse and confound, but also to make statements which are not correct.

21. Upon a perusal of the aforesaid facts and circumstances read with paragraphs 2 and 4 of the plaint and upon reading the cross-examination of the plaintiffs/appellant No. 3 together with the rent receipts, it is clear that the tenancy was in the name of the firm and that the plaintiffs continued paying rent on behalf of the said firm for well over 14 years (the first rent receipt is dated 1.12.1966 at page 64 of the memo of appeal and their own statement in paragraph 9 of the plaint is that acceptance of rent was stopped since September 1980). Thus at this stage or even at the stage of filing the suit, these appellants cannot be allowed to suddenly turn around and take a stand that they, in their individual capacities, were the tenants and not the firm. In fact, such a plea has not even been pleaded by the plaintiffs. Consequently this Court is of the view that the reasoning of the learned Court below to the effect the suit was hit by Section 69(2) of the Partnership Act, is correct.

22. Learned Counsel for the appellants relied upon the judgment of the Supreme Court passed in the case of Malabar Fisheries Co. v. Commissioner of Income Tax Kerala reported in : [1979]120ITR49(SC) in support of his contention that the appellants being partners, and therefore in view of the ratio laid down in the aforementioned judgment, it must be held that 'partners are called collectively a firm.' Referring to paragraph 13 to 19 of the said judgment, learned Counsel submits that in law, partnership property in jointly owned by all partners composing the firm and therefore, the partnership property will vest in all the partners and in that sense, every partner will have an interest in the property of the partnership. We are afraid, such an argument cannot be accepted in the facts and circumstances of this case as the judgment relied upon by the learned Counsel deals with the interpretations of the Income-tax Act qua the Partnership Act. In the instant case we are concerned with the right of a landlord qua his tenants in the context of a rented premises which formed the subject-matter of the tenancy. For the same reason, the judgment of the Supreme Court passed in the case of Bacha F. Gujdar, Bombay v. Commissioner of Income-tax Bombay reported hi : [1955]27ITR1(SC) cited by the learned Counsel will also not apply in the facts and circumstances of this case.

23. So far as the other judgment cited by the learned Counsel, namely Sudhansu Kanta v. Manindra Nath reported hi : AIR1965Pat144 is concerned, the same deals with a partner's interest or share in a firm's assets which proportionately becomes his in the event surplus is left on the dissolution of the partnership after payment of the Firm's debts and liabilities out of the assets. Learned Counsel relies upon paragraph 10 of the said judgment but the same judgment will be inapplicable hi the facts and circumstances of this case for the same reasons stated above.

24. The other judgment cited by the learned Counsel in the case of Kanahiya Lal Balkishan Dass v. Labha Ram reported in : AIR1971Delhi219 , cannot also be made applicable. Learned Counsel relies upon paragraph 7 of the said judgment hi support of his argument to the effect that on the dissolution of the tenant firm and allotment of the premises to one of its partners, the same will not absolve the liability of all the partners to the landlord for rent. We have carefully gone through the judgment and we find that the same in totally inapplicable in the facts and circumstances of this case.

25. For the foregoing reasons, we are clearly of the view that there is no illegality with the impugned judgment and decree. There is no merit in this appeal. It is accordingly dismissed.

26. Consequently, we also reject CAN No. 7606/97 which has been filed in this case for modification of the cause title plaint by adding Robin Kumar Sur and Bimal Kumar Sur as plaintiffs and by deleting the names of the plaintiff Nos. 6 to 9 on the ground that the partnership firm 'R.N. Sur & N.C. Biswas' has since been dissolved with the effect from 1.11.1994. This so called dissolution of partnership made much after filing of the suit (almost after 13/14 years) cannot affect the rights of the landlord and too. when there is nothing on record to suggest that such a dissolution was made after taking all the landlords into confidence. There is no merit in this application. It is accordingly rejected.

27. Urgent xerox certified copy of this order, if applied for, the same will be supplied expeditiously.

Prabir Kumar Samanta, J.

I agree.