MOTILAL BECHAN GUPTA Vs. SUKHARAJ BECHAN GUPTA

JUDGEMENT

(1.) THE appellant is the original plaintiff. He had filed Suit No. 7176 of 1976 in the Bombay City Civil Court at Bombay praying for a mandatory and other injunction to the defendant to hand, over a mandatory and other injunctions to the defendant to hand over possession of the suit shop No. 38 in the building situate at 341, Tardeo Road, Bombay-400 034. The averments made in the plaint inter alia were that the plaintiff and the defendant were brothers. They were carrying on business of Chana-Kurmura jointly at the abovesaid premises and had joint family properties at their native place in District Azamgarh, U. P. On 23rd October 1972 they had executed an agreement, in terms of which it was agreed to carry on the said business alternatively for one year each, the year commencing from 1st October 1972 to 30th September 1973 and so on. When the plaintiffs turn came to carry on the business in the year 1976, the defendant refused to allow the plaintiff to carry on the said business. That is why the plaint was filed with a prayer for injunction to the defendant to hand over possession of the business premises to the plaintiff.

(2.) AS many as 6 issues were framed by the City Civil Court. The first three issues pertained to the question whether the tenancy rights or any other rights in the suit shop belonged to the parties jointly or to their joint Hindu family, whether the defendant got the tenancy rights transferred in his name wihtout the plaintiffs knowledge and whether the declaration dated 17th April, 1972 was proved. The City Civil Court decided all the three issues agianst the plaintiff. Shri Sathe, the learned Counsel for the plaintiff, did not press the these issues before this Court. In the circumstances, it is not necessary to refer to t he facts pertaining thereto. Issue No. 4 reads thus:---

(3.) SMT. Shenoy and Smt. Shastri appeared on behalf of the defendant. It is their case that it was not open to the plaintiff to change his stand before this Court. The plaint was filed primarily on the ground that the business in the suit shop was carried on by the parties jointly or as a joint family business and that the agreement dated 23rd October 1972 was entered into by way of family arrangement between the parties. If the ground that it was a joint family business or business owned by the two brothers jointly is not pressed, the further ground that the agreement dt. 23-10-1972 was a family arrangement would automatically fail. Alternatively, they contended that the arrangement did not even remotely suggest that was a family arrangement. If at all, it could be an agreement of licence by one brother to the other to allow him to carry on business alternatively for a period of one year each with his permission. The agreement was more like a licence under section 52 of the Indian Easements Act, 1882, than a contract. That being so the defendant was entitled to revoke the licence at his will as provided for in section 60 of the said Act. Referring to the fact that the agreement was without any consideration, the attention of the Court was invited to the provisions of section 25 (1) of the Indian Contract Act for the proposition that such an agreement was void unless it was in writing and registered under the Indian Registration Act. The agreement was admittedly not registered under the Indian Registration Act. Reference was then made to the provisions of section 17 (1) (b) and 17 (1) (d) of the Indian Registration Act for the proposition that such an agreement was compulsorily registrable. A compulsorily registrable agreement, if not registered, could not be accepted as evidence of any transaction affecting any property or conferring any power as provided for in section 49 of the Registration Act. The submission, thus, was that the agreement was not and could not be treated as a family arrangement because the fact that it was a family business has not been established. It was either a licence or a contract without consideration. If it was a licence, the licence could be revoked under section 60 of the Indian Easements Act. If it was a contract, it was void and could not be enforced as it was not registered. Inviting further the Courts attention to section 15 (1) of the Bombay Rent Act, it was argued that the defendant could not have in law created the plaintiffs interest in the suit shop, a rented premise. Emphasis in this context was laid on the conclusion arrived at by the City Court that the business was carried on by the defendant personally and that when the business was started in the year 1955, the plaintiff was only 14 years old. In support of her other submissions, reliance was placed on the Supreme Court decision in the case of (M. N. Clubwala v. Fida Hussain Saheb) A. I. R. 1965 Supreme Court 610 and Delhi High Court decision in the case of (Chandulal v. Municipal Corporation of Delhi) A. I. R. 1978 Delhi 174.