Krishnan
Nair & ANR Vs. Ghouse Basha [1987] INSC 244 (8 September 1987)
MUKHARJI,
SABYASACHI (J) MUKHARJI, SABYASACHI (J) OZA, G.L. (J)
CITATION:
1987 AIR 2199 1988 SCR (1) 65 1987 SCC (4) 404 JT 1987 (3) 588 1987 SCALE
(2)572
CITATOR
INFO : RF 1992 SC2166 (4)
ACT:
Tamil
Nadu Buildings (Lease & Rent Control) Act, 1960:
s.
10(3) (a) (iii)-Demised premises-Requirement of by landlord for sons' business
in partnership with strangers- Eviction order-Validity of.
HEADNOTE:
The
landlord was carrying on leather business in which his two sons used to take
active part. Thereafter they went into a partnership with others to carry on
the business and jointly held half the shares. The landlord needed the demised
premises bona fide for the business of his sons. The High Court maintained the
order of eviction passed by the courts below.
In
the appeal, it was contended for the appellant that an application for eviction
under s. 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control)
Act, 1960 was liable to be dismissed solely on the ground that the landlord had
chosen to file it to accommodate a partnership firm in which his sons and some
strangers were partners, which was not in conformity with the provisions of the
section.
Dismissing
the appeal, ^
HELD:
If the deed of partnership excludes the son expressly or impliedly from the
management of the firm of business and makes him a sleeping partner it cannot
be said that the accommodation is needed directly or substantially for his
occupation by way of his business. [68A] D.N. Sanghavi & Sons v. Ambalal
Tribhuvan Das, [1974] 3 SCR 55, applied.
Shantilal
Thamordas & Ors. v. Chimanlal Maganlal Telware, [1977] 1 SCR 341,
distinguished.
Partnership
is a compendious way of describing those who constitute the firm under s. 4 of
the Partnership Act.
If
a person carries on a business along with other partners and it was the other
partner who 66 actually carried on the business the position perhaps would have
been entirely different. If the same were only sleeping partners that would
have been different. [67CD] In the instant case, the partnership deed was
silent as to what role the sons of the landlord would perform in it.
There
is, however, evidence that they were in the leather business and had carried on
the business previously before shifting to the premises in question. If that is
the position, it cannot be said that they were sleeping partners. Having regard
to the past conduct of the sons and having regard to their shares in the
partnership it can be said that the sons were carrying on business actively
along with other partners. As such, the sons needing the accommodation with
others would be for the sons' business in terms of s. 10(3)(a)(iii) of the
Tamil Nadu Buildings (Lease and Rent Control) Act. The landlord was, therefore,
entitled to the benefit of eviction. [67B, 68BC, 67DE, 68C, 67E]
Civil
Appellate Jurisdiction: Civil Appeal Nos. 689-90 of 1987.
From
the Judgment and Order dated 27.11.1986 of the Madras High Court in C.R.P. No.
3306 of 1984.
A.T.M.
Sampath for the Appellant. Sanjay Parekh and Sudershan Menon for the
Respondent.
The
Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an
appeal by the tenant against the judgment and order of the High Court of Tamil
Nadu. By the aforesaid judgment the High Court upheld the landlord's contention
of bona fide requirement of the premises in question for the business of his
sons and maintained the order of eviction passed by the courts below.
So
far as the question of bona fide need is concerned it has been upheld by the
courts below and that finding is not assailed G before us. But what was
contended was that the application itself under section 10(3)(a)(iii) of the
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, hereinafter called the
Act was not maintainable. as the requirement of the land was not for the
landlord or members of his family as such but for two sons who were running a
leather business in partnership with strangers. The deed of partnership was H examined
by the High Court but it is, however, not before us. It 67 appears from the
evidence that previously the father and the two sons used to carry on leather
business from long time.
The
sons went into the partnership with others and two of the sons were partners.
They jointly hold half the shares.
From
the evidence it appears that the sons used to take active part even before the
partnership started in the leather business carried on by the father.
Thereafter, the partnership firm with the other partners carried on the
business. We must proceed on the basis that the partnership deed was silent as
to what role the sons of the landlord would perform in this. The only question
which was urged before us was that the application for eviction under section 10(3)(a)(iii)
of the Act was liable to be dismissed solely on the ground that the landlord
has chosen to file this application to accommodate a partnership firm in which
his sons and some strangers are partners and it is not in conformity with the
provisions of section 10(3)(a)(iii) of the said Act. Partnership, as is well
settled has a compendious way of describing those who constitute the firm under
section 4 of the Partnership Act. Now, if that is the position, in our opinion,
if a person carries on a business along with other partners and it was the
other partner who actually carried on the business the position perhaps would
have been entirely different. If the same where only sleeping partners that
would have been different. On the contrary, here having regard to the past
conduct of the sons and having regard to the shares this was their only
application where sons were carrying on the business along with other partner.
If that is the position in our opinion under section 10(3)(a)(iii) of the Act
as the sons and members of the family carrying on the business in terms of the
section will be entitled to the benefit of eviction.
Our
attention was drawn to a decision of this Court in D.N. Sanghavi & Sons v.
Ambalal Tribhuvan Das, [1974] 3 SCR 55 where the meaning of the expression 'his
business' under section 12(1)(f) of the Madhya Pradesh Accommodation Control
Act, 1961 came up for consideration. The said section was in parimateria with
the present section. Therefore this court held that the meaning of the expression
'his business' under section 12(1)(f) of the said Act is to be determined by
the examination of the object of the Act and setting of the phrase 'his
business'. There Dwivedi, J. speaking for the court found that before the
partnership, it was stated that the father was to run the shop. Father died
during the pendency of the suit and neither of these two passages nor anywhere
else in the facts during the pendency had stated that on the terms of the
partnership they were entitled to manage the partnership business or even that
would also occupy the suit accommodation along with his other partners on
obtaining possession 68 from the appellant was not stated that the other
partners have agreed to shift the business. The court observed that if the deed
of partnership had excluded the son expressly or impliedly from the management
of the firm's business and had made him a sleeping partner it could not be held
that the accommodation was needed directly and substantially for his occupation
by way of his business. The firm is carrying on the business in the premises in
respect of which the eviction was asked for the said firm. But here there is no
evidence that the sons were sleeping partners. On the contrary, there is
evidence that they were in the leather business and had carried on the business
previously before shifting to the premises in question. If that is the
position, it cannot be accepted that they were sleeping partners. On the
contrary, having regard to the number, they were active partners in the business
and as such the sons needed the accommodation with others would be for sons'
business under section 10(3)(a)(iii) of the Tamil Nadu Act.
We
may mention that in the subsequent decision of this Court in Shantilal
Thamordas & Ors. v. Chimanlal Maganlal Telware, [1977] 1 SCR 341 this
question did not directly arise but there this Court noted that some of the
High Courts have taken the view that occupation by partner who was a member of
the family would be the occupation of the landlord. This Court felt that they
should not express any opinion in that regard, but doubt was expressed as to
whether the requirement of the premises by the landlord for the occupation of
the partnership firm in which he was a partner would tantamount to the
occupation by landlord. It appears that the attention of this Court was not
drawn to the earlier decision referred to hereinbefore. In any event, the court
had no occasion to express any opinion where the sons are active partners in a
partnership firm whether such business carried on by the sons would not come
within the provisions of section 10(3)(a)(iii) of the Act.
In
the aforesaid view of the matter we uphold the order and judgment of the High
Court and we are unable to accept the challenge to the order. The appeal must therefore,
fail and is accordingly dismissed. In the facts and circumstances of the case
there will be no order as to costs.
P.S.S.
Appeal dismissed.
Back