S. HARBAJAN SINGH Vs. FAQUIR CHAND

JUDGEMENT

(1.) TENANT -petitioner No. 1 in this revision petition has challenged the legality and validity of the order of the Appellate Authority by which he has been ordered to be evicted from the demised premises on the ground of subletting the same in favour of M/s Karan Enterprises, petitioner No. 2. The learned Rent Controller held that the case of subletting was not proved and that petitioner No. 1 is a partner of petitioner No. 2. The Appellate Authority apart from advancing other reasoning has held the partnership deed Exhibit Rule 3 to be a sham transaction by placing reliance upon Mangat Ram v. Om Parkash, 1962 PLR 30, Meenakshi Achi and another v. P.S.M. Subramanian Chettiar and others, AIR 1957 Madras 8, Kastur Chand v. Gujjar Mal and others, 1977(2) RCR 436, and M/s Kishore Brothers (Regd.) and another v. Sushila Devi, 1980(2) RLR 665. In the ultimate conclusion, the learned Appellate Authority has held that there was no stipulation in the partnership deed Exhibit R.3 as to which of the partners shall run the business and, therefore, since one of the three ingredients of Section 4 of the Indian Partnerships Act is missing, subletting is proved.

(2.) SHRI V.K. Bali, Senior Advocate, learned counsel for the petitioner-tenant has argued that it is not necessary that all the legal requirements for constituting a valid partnership must be present in the partnership deed and that if one or the other ingredient is missing, the same can be proved by leading oral evidence or it can be called or inferred from other clauses of the partnership deed such as the clause authorising all the partners to operate banks account and the facts and circumstances of the case. On the other hand, Mr. M.L. Sarin, Senior Advocate, learned counsel for the respondent-landlord while countering the contention raised by the learned counsel for the petitioners has submitted that all three ingredients of Section 4 of the Indian Partnership Act, 1932 i.e. (i) the partnership must be result of an agreement between several persons, (ii) the agreement must be to share the profits and losses of a business and (iii) the business must be carried on by all or any one of them acting for all, must be present in the partnership deed. Since in Exhibit R.3-the partnership deed, there was no stipulation as to who would carry on the business, the partnership deed Exhibit R.3 must be held to be taken, ingenuine and sham transaction. The learned counsel goes on to argue that the ingredients of agency through whom the partnership business has to be carried on, being missing in the present case, the Appellate Authority was quite right in holding that the existence of a valid partnership is not proved.