MAHOMAD USMAN GULAM MOHIUDDIN Vs. DHANSHANKER JAGANNATH BHATT

JUDGEMENT

(1.) This is a revision application under the Bombay Rent Act (Bombay Act No. 57 of 1947). The petitioner is original defendant No. 1 who was according to the plaintiff a monthly tenant of the plaintiff. On 18 July 1960 a notice was given to defendant No. 1 terminating his tenancy on the expiry of 31-7-1960. On 28th July 1960 defendant No. 1 entered into what is alleged to be a partnership deed (Ex. 34) with defendant Nos. 2 and 3 for carrying on business. Both the Courts below held that the partnership deed is a sham and colourable document that it was in reality no partnership deed and there was unlawful transfer of possession of the premises. In this view both the Courts below decreed the possession to the plaintiff. Hence this revision by the original tenant.

(2.) It is contended by the learned counsel for the petitioner that the finding that the partnership deed is not real and genuine is not correct. It is further contended that before 31st July 1960 the tenancy did not expire and therefore the tenant could lawfully sublet the premises and could lawfully transfer the possession. Reliance is placed on sec. 15 of the Bombay Rent Act and sec. 108(j) of the Transfer of Property Act. Clause (e) of sec. 13(1) of the Bombay Rent Act allows a decree for possession to he passed in favour of the landlord if the tenant has since the coming into operation of the Act unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein.

(3.) A partnership deed is not subletting. If under the partnership deed any interest in the possession has been transferred then the question would have to be considered whether it has been done lawfully or unlawfully. As mere partnership deed does not amount to subletting the entire discussion in the judgment of the lower Court whether the partnership deed was real or genuine and whether there was subletting or not would not be very material. But the Court below have decreed the suit for possession on the ground that premises can be lawfully sublet then possession can be given lawfully. As observed above this is not a case of subletting. The learned counsel for the petition does not say that there has been subletting. The entire case has been that of a partnership deed. The learned counsel relies on sec. 108(j) of the Transfer of Property Act with reads as follows: