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PETITIONER: KRISHNAN NAIR & ANR. ETC.

       Vs.

RESPONDENT: GHOUSE BASHA

DATE OF JUDGMENT08/09/1987

BENCH: MUKHARJI, SABYASACHI (J) BENCH: 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 alongwith other partners and it was the other partner who 66 actually carried  on the business the position perhaps would

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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]

JUDGMENT:      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

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position, in  our opinion, if a person carries on a business alongwith 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 were 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 pari materia  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

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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. 69