RASAMOY Vs. ANIL KRISHNA

JUDGEMENT

(1.) The predecessor-in-interest of the defendants 1, 2 and 5 was the holder of a stall in the Hogg Market which is a Municipal market belonging to the Corporation of Calcutta and he used to run his shop therein. The plaintiff's case is that being unable to run his business, the said predecessor of defendants 1, 2 and 5 (hereinafter 'defendants' for short) "decided to transfer the shop to the plaintiff for valuable consideration". But as the relevant Rules of the Corporation did not allow such transfer, the plaintiff was sought to be taken in as a partner by the said predecessor. The plaintiff, however, asserts with utmost emphasis in his plaint and also in his deposition in Court that though apparently the transaction was given the shape and the colour of a partnership and a Deed of Partnership was also executed, in reality the transaction was an out and out transfer and "was intended for transferring the licence and the business". In the plaint, the plaintiff has referred to the terms of the Deed of Partnership in great details asserting repeatedly that the transaction in reality amounted to a transfer under the garb of a partnership and has gone to such a length as to state that "the Partnership Deed was created only to hoodwink the rule debarring transfer."

(2.) The case of the defendants, however, is that the transaction entered into by their predecessor with the plaintiff was a partnership pure and simple and that the partnership has, on the death of the predecessor, automatically come to an end by operation of law and they have accordingly approached the Corporation so that the stall and the business may exclusively be restored to them. Hence this suit by the plaintiff for a declaration that "the business and possession of the shop" stood "duly transferred in favour of the plaintiff', "that the plaintiff is the rightful occupier of the suit shop room" and that "the plaintiff is entitled to have his name mutated alone as a sole occupier, in the alternative, as joint occupiers with the defendants 1, 2 and 5 in the records of the Corporation of Calcutta" and for other incidental and consequential reliefs. We are afraid that if the purpose of the plaintiff was and is, as stated by him in para 6 of the plaint, "to hoodwink the rules debarring transfer", he has chosen the most inappropriate place in coming to the Court which exists to uphold the laws and the rules and not to help a person to hoodwink or circumvent them. The learned trial Judge has dismissed the suit and for the reasons to be indicated hereunder, which are, however, different from those adopted by the learned Judge, we have no doubt that he was perfectly right in throwing the suit out.

(3.) As already noted, the disputed stall is in the Municipal Market belonging to the Corporation of Calcutta. Under S.449(1), Calcutta Municipal Act, 1951, which contained the relevant law at the material time, "no person shall, without a licence from the Commissioner sell or expose or sale any animal, article or thing whatsoever in any municipal market". Now if a person having a licence for a stall in a Municipal Market transfers the stall and/or the business carried on therein, and the transferee proceeds to carry on business in such stall, the transferee would then be doing so "without a licence" in his favour in that behalf within the meaning of S.449(1), Calcutta Municipal Act, 1951 and the licence in name of his transferor cannot in any way help him to come out of the mischief of S.449(1) prohibiting business in a Municipal stall except by a licenced stall holder. Such a transfer, therefore, enabling the transferee to carry on business without a licence in a Municipal stall would have for its object something which is forbidden by S.449(1) and the transaction also be such as would defeat the provisions of Municipal Act, prohibits carrying on business S.449(1). The transaction would, therefore, squarely come within the mischief of S.23, Contract Act, and would be void thereunder. The plaintiff in his plaint and also in his deposition has made it expressly clear that he proceeded to purchase the shop from the predecessor of the defendants even though he found on enquiry that he would not be able to get the licence for the stall transferred to him. That makes it crystal clear that the whole object of the plaintiff was to carry on business in that Municipal stall under the cover of the licence of his transferor and thus to carry on business "without a licence" in his favour in clear violation of S.449(1), Calcutta Municipal Act. The object thus being, as already noted, something which was forbidden by law and the transaction being of a nature which if permitted would defeat the provisions of law, no Court can assist the plaintiff in achieving this object and lend any countenance to any such transaction.