HAJI P MAMMU Vs. ABDURAHIMAN BASHA

JUDGEMENT

(1.) These two revision petitions were directed against the order made by the District Judge, Kozhikode in R. C. R. P. Nos. 2 and 3 of 1980. The petitioners in these revision petitions are partners of a partnership firm which carries on business in steel in the name of "Steel Link." They claimed to be the tenants of the premises in dispute. The respondent is admittedly the owner and landlord of the said premises. He sought eviction of the petitioners on several grounds. The order under revision made by the District Judge of Kozhikode shows that the landlord has been given an order of eviction in his favour on the ground of subletting as also on the ground that the landlord bona fide requires the premises for his personal occupation. We are therefore required to examine the contentions of the parties only in regard to the case of subletting and the case of bona fide requirement. The landlord can secure eviction of the tenant under S.11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 on the ground that the tenant has after the commencement of the Act, without the consent of the landlord, transferred his right under the lease or sublet the entire building or any portion thereof if the lease does not confer on him any fight to do so. The landlord is entitled to secure eviction when he needs the premises bona fide for his personal occupation under sub-s.(3) of S.11 of the Act. Even if the landlord establishes that his requirement is bona fide, he will not be able to secure an order of eviction if as directed in the second proviso it is proved that the tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business.

(2.) it is not disputed that the premises was originally leased to a partnership firm consisting of 4 partners known as "Messrs. Haji P. Mammu." One of the partners having died, the remaining three partners who were his sons have carried on the business which the partnership firm was carrying on before the death of their father, On the 1st of May, 1978 a new partnership was brought into existence under the partnership deed executed on that day between the partners of the original firm who were the lessees and petitioners 2 to 8. The case of the respondent is that the said partnership deed Ext. B1 is only a camouflage and what has really been done by the erstwhile tenants is to sublease the premises in favour of petitioners 2 to 8. It is on the basis of these averments that eviction is claimed on the ground of subletting. As already stated, it is also the case of the landlord that he required the premises bona fide for starting a textile business on his own in the premises. The learned District Judge has recorded a finding to the effect that the premises has been sublet in favour of petitioners 2 to 8 by the original tenants holding that the partnership deed Ext. B1 is not a genuine transaction of partnership but is a camouflage for subletting the premises in favour of petitioners 2 to 8.

(3.) The first contention of Sri. P. N. K. Achan, learned counsel for the petitioners is that the finding of the learned District Judge that there is subletting of the premises on the ground that the partnership deed Ext.B1 is only a camouflage for sublease is not in accordance with law. He submitted that the finding has been recorded by the learned District Judge without considering all the clauses of Ext.B1 and the statutory provisions contained in the Partnership Act. The inference of camouflage has been drawn by the learned District Judge only taking into consideration of some of the recitals in the deed of partnership Ext.Bl and not on the basis of any other extraneous evidence produced by the parties. The learned District Judge has taken into consideration the fact that the entire capital of Rs. 70,000/- has been contributed only by petitioners 2 to 8 and not by any of the original tenants, that the original tenants who are said to have become partners of the new partnership firm are not required to share the loss, that they have been made eligible only for the profits, that the original tenants have no right to any of the assets of the partnership or the goodwill on the expiry of the partnership, that the original tenants have no right of management of the partnership, that one of the original tenants is only required to be paid a stipulated amount of Rs. 5,000/- per month and that the assets worth about Rs. 80,000/- of the old partnership of the original tenants has not been brought into a hotchpotch and trade as a part of the assets of the new partnership. It appears to us that the learned District Judge while relying upon the aforesaid circumstances failed to take into consideration the fact that the Partnership Act itself contemplates the parties to the partnership entering into an agreement justifying the terms incorporated in Ext.B1. S.13 of the Act makes it clear that partners of a partnership firm are entitled to share equally the profits earned and are also required to contribute equally to the losses sustained by the firm subject to the contract to the contrary between the parties. S.13 in terms contemplates a contract being entered into between the partners making a provision to the effect that some of the partners shall be eligible only to the profits and not for the losses. S.55 of the Partnership Act makes it clear that so far as the goodwill is concerned, the same can be dealt with in the manner agreed to between the partners consequent upon the dissolution of the firm. The Act does not require, that every partner should contribute the assets in the same proportion and that depends upon the contract between the parties. The learned District Judge has failed to take note of the fact that the old tenants made available the premises in which they were carrying on the business as their contribution for the partnership to carry on the business. That the original tenants did not put in the hotchpotch of the new partnership the assets of the old partnership worth about Rs. 80,000/- is not a relevant circumstance as it is open to the parties to decide upon the share of the contribution to be made by each of the partners. The learned District Judge has failed to take into consideration the fact that the provisions which in his opinion lead to the inference of camouflage are those expressly made permissible under the contract to be entered into between the partners. That is precisely what has happened in this case, the parties having entered into a contract to the contrary as is clear from Ext.B1. What is of crucial importance so far as the finding regarding camouflage is concerned is the failure on the part of the learned District Judge taking into consideration one more clause in Ext.B1 which provides for the sharing of the profits by all the partners including the original tenants. This clause justifies an inference that everyone who became a partner of the new partnership became entitled to the profits of the partnership business. This is a strong circumstance indicating that Ext.B1 is not a document to camouflage the transaction of sublease. If there is subletting, there would have been adequate provision or recompense in favour of the lessor for payment of rent in one way or the other. That would have normally been a fixed amount. But the fact that the lessors are entitled to equal share in the profits is inconsistent with the transaction being a sublease. We have therefore no hesitation in taking the view that the finding recorded by the learned District Judge without takings into consideration the relevant provisions of the Partnership Act and all the clauses of Ext.B1 that it is a camouflage to cover the sublease is not in accordance with law. Hence the said finding stands vitiated and we hereby set aside the said finding.