HAMEED Vs. SUMITHRA

JUDGEMENT

(1.) First defendant is the appellant. He is the owner of a shop building which was rented out to one Kelappan. Kelappan was doing the business of making and selling gold ornaments in the premises under the name and style 'Kelappan and Company'. He died on 09/09/1960. First plaintiff is his widow and plaintiffs 2 and 3 are his sons. Defendants 2 and 4 are brothers of Kelappan and third defendant is his near relation. Even after the death of Kelappan the business continued in the same name and it was managed by the second defendant. The widow and sons were not trading. The sons were minors also.

(2.) In 1967 first defendant filed an application for eviction on the ground of bona fide requirement for own use and it was dismissed. Thereafter be again filed B. R. C. O. P. 124 of 1971 for eviction on the grounds of arrears of rent, bona fide requirement for own use and subletting. 2nd defendant was the first respondent and defendants 3 and 4 were respectively respondents 2 and 3. Respondents 2 and 3 were impleaded as subtenants inducted by the tenant. Eviction petition was filed on the assumption that after the death of Kelappan the business was being continued in the premises as a partnership concern of which first respondent (Second defendant) was the Managing Partner. He was impleaded in his individual capacity and as Managing Partner of the Partnership business. Plaintiffs who alone are the legal representatives of Kelappan were not impleaded in the rent control proceedings. Respondents resisted the claim for eviction tooth and nail. Continuance of the business as a partnership concern after the death of Kelappan and the status of the second defendant (first respondent) as the Managing Partner were facts more or less admitted in the rent control proceedings. In order to bring about that respondents 2 and 3 are not subtenants a further contention was raised that the partnership is a joint family concern and the joint family includes respondents 1 and 3 who are brothers of the deceased. Second respondent was contended to be an employee only. Original of Ext. B1 partnership deed was produced in that case to prove this contention. It referred to an earlier partnership deed dated 13/10/1960 which came into existence immediately after the death of Kelappan on 09/09/1960.

(3.) The matter was hotly contested on all the available grounds upto this court. From Ext. A9 order for eviction by the Rent Controller there was an appeal which was dismissed by the original of Ext. A6 judgment dated 12/02/1976 CRP 16 of 1976 against that order was once dismissed by the District Judge on 08/03/1977. It was the present second plaintiff who filed the original of Ext. B3 affidavit in support of the petition for restoration stating that he is the person conducting the CRP on behalf of the firm. The CRP was restored and then disposed of by the original of Ext. A7 on 06/10/1977. Against that there was CRP 3655 of 1977 before this Court and it was dismissed evidenced by Ext. B4 order dated 16/02/1978. Eviction was ordered on all grounds including subletting. Joint family nature of the business was found against and the original of Ext. B1 partnership deed was found to be a fabrication.