Shashi
Kapila Vs. R.P. Ashwin [2001] Insc 607 (8 November 2001)
K.T.
Thomas & S.N. Variava Thomas, J.
Leave
granted.
The
tenant of a residential building, situate at Jayamahal Extension, Bangalore who has been occupying it for
nearly quarter of a century is now at the peril of being evacuated therefrom by
his landlord. To resist the action launched by the landlord for evicting the
tenant he has adopted a defence that his continuation in the building from
April 1986 onwards was under a separate jural linkage on account of an
agreement of sale executed by the landlord. But the said line of resistance did
not succeed thus far. The partial relief he secured from the High Court, as per
the impugned order, was not enough to thwart the impending eviction hence the
tenant has filed the appeal by special leave.
The
respondent landlord applied for an order of eviction of the appellant on two
grounds envisaged under Section 21(1) of the Karnataka Rent Control Act.
One
was on the allegation that the tenant defaulted paying rent of the building for
a few months and the other was that the landlord himself requires the building
bona fide for his own occupation. Though the Rent Control Court (the Court of
Small Causes Judge, Bangalore) granted the order of eviction on both grounds
the High Court, in revision, restricted the order to the ground of bona fide
need of the landlord.
According
to the appellant, the landlord had entered into an agreement on 17.4.1986 with
a firm by name M/s Shiva and Co. of which the appellant is one of the partners
as per which the landlord had agreed to sell the building for a sale
consideration of Rupees twelve lacs, within three months of the said date, and
a sum of Rupees one lac had already been received by the landlord as advance
amount. On the strength of the said agreement appellant sought to non-suit the
landlord.
The Rent Control Court did not accept the above
contention. The court found that the landlord made out both the grounds and
hence the order of eviction was passed. The High Court concurred with the Rent Control Court in respect of the ground of bona
fide need of the landlord. The following is what the learned single judge of
the High Court has stated about it:
The
contention of the learned counsel for the petitioner that he is in permissive
possession as an agreement holder and not as a tenant is difficult to accept.
He has produced Ex.R.1, a copy of the sale agreement which shows that the
respondent-landlord has entered into an agreement with a firm represented by
Mr. Yati Kumar. There is no evidence on record to show that the present
petitioner is a part of M/s. Shiva and Co. The lease agreement produced by the
parties in those proceedings disclosed that the premises had been taken on
lease by the petitioner himself and not by the company. I have perused the
terms and conditions of the sale agreement.
There
is no term or agreement between the parties recognising the present petitioner
as an agreement holder and not as a tenant and therefore it is difficult to
accept his submission that the petitioner is no longer a tenant of the petition
premises.
Sri Sudhir
Chandra, learned Senior Counsel adopted a twin contention on the basis of the
agreement dated 17.4.1986. First is that the appellant can lawfully resist the
eviction of the landlord on the strength of Section 53A of the Transfer of
Property Act. Second is that the said agreement is enough to nullify the bona
fides of the claim of the landlord that he requires the building for his own
occupation. According to the learned Senior Counsel the agreement reflects the
intention of the landlord to part with his rights in the building and hence the
ground urged for eviction is inconsistent with the desire limned in the
agreement.
While
dealing with the first contention, a reference has to be made to Section 53A of
the Transfer of Property Act. It applies to a person who contracts to transfer
immovable property in writing.
If the
proposed transferee in the agreement has taken possession of the property, or
he continues in possession thereof being already in possession, in part
performance of the contract and has done some act in furtherance of the
contract, and transferee has performed or is willing to perform his part of the
contract, the transferor shall be debarred from enforcing any right in respect
of the property. This is the kernel of the principle incorporated in Section
53A of the Transfer of Property Act.
The
agreement dated 17.4.1986 was between the respondent landlord on the one part
and M/s Shiva and Co. on the other part. The hurdle which the appellant has to
surmount initially was to show that he was a partner of the firm M/s Shiva and
Co. We will assume, for the present, that he was a partner and hence for all
practical purposes he could also represent the firm. Of course, the agreement
is totally silent of the fact that appellant was partner of M/s Shiva and Co.
Even assuming that he was a partner thereof it is legally impermissible for him
to individually claim all the rights of the firm. Nor can he project himself as
a transferee under the agreement.
A
partnership firm is an association of persons.
But in
spite of that unity between themselves, every partner can have his own separate
existence from the firm. Any right which a partner has over any property, other
than the partnership property, would remain as his individual asset. The mere
fact that the particular person has chosen to include himself as a partner of a
firm will not result in incorporation of all his individual properties as the
assets of the partnership. Section 14 of the Indian Partnership Act 1932 says:
Subject to contract between the partners, the property of the firm includes all
property and rights and interests in property originally brought into the stock
of the firm, or acquired, by purchase or otherwise, by or for the firm, or for
the purposes and in the course of the business of the firm, and includes also
the goodwill of the business.
Here
it is an admitted fact that appellant was a tenant of the building even earlier
than the formation of the firm M/s Shiva and Co. In such a situation the
tenancy right of the appellant in respect of the building is a separate right
available to the appellant individually over which the partnership has no
claim. Appellant never contended that he had offered the suit property as an
asset of the partnership firm. Nor did the firm at any time claim that
appellant threw the tenancy right over the building into the hotchpot of the
partnership at any time. On the contrary, the agreement has taken care that the
building is in the personal possession of the appellant. The following recital
in the agreement would bear testimony for it:
The
purchaser is aware that the tenant is in possession of the said premises and
after the purchaser he must obtain the possession of the said premises in due
course at his own cost and responsibilities. The seller does not hold himself
responsible in any way to get him vacant possession. In fact, the purchaser has
agreed to take up this responsibility.
Even
that apart, when a suit was filed by M/s Shiva and Co. for specific performance
of the agreement dated 17.4.1986 the firm made it abundantly clear in the
plaint itself that appellants right in the building as a tenant is in his
personal capacity and not as a partner of the firm. The relevant portion of the
plaint is extracted below:
The
suit schedule property, at the time of agreement of sale, was in the occupation
of Mr. Shashi Kapila in his personal capacity. Hence it is agreed that the
defendant would not be responsible to place the plaintiff in vacant possession
of the suit property and the plaintiff agreed for the same.
The
suit schedule property continues to be tenanted by Mr. Shahi Kapila in his
personal capacity who is also one the partners of the plaintiffs firm.
(Mr. Shashi
Kapila, mentioned in the above portion, is the appellant in this case).
Thus
the appellant cannot lay any claim on the strength of Section 53A of the
Transfer of Property Act, even assuming that the agreement is still binding on
the parties thereto.
The
second limb of the contention is that when the landlord himself had agreed to
transfer his rights to others, such a stance is negatory to his claim that he
genuinely needs the building for his own occupation. At the first blush the
argument appeared forceful because the bona fides of the landlords need could
possibly get eclipsed when the landlord himself wanted his rights in the
building to be alienated to other persons. But when we delved into the matter
we found that genuineness of the landlords need remains unimpaired despite his
earlier inclination to sell the building. We shall now state the reasons.
We
pointed out above that the agreement to sell was executed on 17.4.1986. It has
been stipulated therein that the sale deed should be executed and registered
within three months from the said date. It is the admitted case that the sale
deed was not executed within that time. The landlord filed a petition for
eviction only 6 years thereafter. In the petition for eviction he has stated
that he was residing at Mysore and he shifted his residence to Bangalore and has been staying in a temporary
accommodation as the building belonging to another person was given for his
occupation. He further said that he is unable to continue in the said building
for various reasons. It is not disputed that the landlord is now residing in
the building belonging to somebody else.
M/s.
Shiva & Co. had filed a suit in 1986 for specific performance of the
agreement. The said suit was vehemently resisted by the landlord. At some point
of time the said suit was withdrawn by the firm and later in 1989 the same firm
filed a second suit for specific performance of the agreement dated 17.4.1986.
Landlord opposed the second suit also on all grounds. He contended, inter alia,
that the agreement itself could not be acted on as he was deceived by Mr. Yati
Kumar who represented the firm and it was never disclosed to the landlord that
the appellant was a partner of that firm. At any rate, it was clear beyond
doubt that the landlord was totally opposed to the performance of the terms of
the agreement dated 17.4.1986. That stand of the landlord was proclaimed long
before he launched the present litigation for eviction of the appellant on the
ground of his need to occupy the building. The above developments would indicate
that the need of the landlord for occupying the suit building arose only long
after 17.4.1986. Therefore, he cannot be preempted from claiming the relief
merely on the ground that six years prior to it he was willing to sell the
building. Hence, we are unable to agree with the contention of the appellant
that the landlord can be non-suited on the basis of the afore-mentioned
agreement.
Learned
senior counsel for the appellant relied on the decision of this Court in P. Veerappa
vs. M.A. Mohammad Amanulla {1996(1) SCC 415} in support of his contention that
the agreement would foreclose the landlords claim that he needs the building
bona fide for his own use. The following passage in the judgment is enough to
show that the said decision is of no use to the appellant:
So
long as the agreement subsists, it is settled law that the lesser right of
tenancy stood merged with larger rights accrued under the agreement. But
unfortunately in the compromise itself it was recognised that the appellant was
to pay arrears of rent till the date of compromise. In other words, the
appellant recognised the reversion to his pre-existing rights as tenant up to
the date of the compromise. In other words, subject to compliance of the terms
of the contract, his tenancy rights continued. The terms have not been complied
with and the agreement came to an end. Thereby, the appellants pre-existing
rights as a tenant stood revived and the appellant and the respondent were
bound by the relationship of landlord and tenant.
We do
not find any merit in any of the contentions of the appellant and hence we
dismiss this appeal. However, time for vacating the building would stand
extended by six months from today on condition that appellant gives an
unconditional undertaking in this Court in the form of an affidavit, within
three weeks, that he would vacate the building and put the landlord in
possession thereof on or before the expiry of six months from today. If the
said undertaking is not furnished within the time mentioned above, appellant
will forfeit the benefit for extension of time to vacate. Appeal is thus
disposed of.
J [
K.T. Thomas ] J [ S.N. Variava ] November 8, 2001.
Back