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IN THE HIGH COURT OF BOMBAY
Sharad Manohar, J.
Nagji Vallabhaji Co..... Appellant.
Versus
Meghji Vijpar Co. others.... Respondents.
First Appeal No. 524 of 1979, decided on 3/4-9-1986.
Advocates appeared :
H.G. Advani with A.J. Dholkia, for appellant.
V.D. Meghani with Virsen L. Panjwani, for respondent.
PARTNERSHIP ACT, 1932
Section 4-Assignment-Where original partners of partnership firm made assignment of their own lease bold interest in the suit premises to the firm- No Formal deed necessary-Held, these may be de facto assignment in common parlance, but no de jure assignment in the eyes of law.
It is possible to condend that the original partners of the partnership firm can be said to have made assignment of their own leasehold interest in the suit premises to the firm. This can be said to be clear from their conduct from the way in which they dealt with the suit premises as if the leasehold rights belonged to the firm. In this connection, it needs to be noted that no formal assignment as such is necessary in such cases because the individuality of the partner is not distinct from the individuality of the partnership firm as such. In the eyes of law, a partnership firm is not a distinct entity like, a Joint Stock Company registered under the Companies Act. The partners of a firm do not have a different existence distinguishable as such from the individuals forming the partnership.
When it is contended by the Counsel that there was no Deed of Assignment by the two individuals in respect of their leasehold interest in the suit premises in favour of the partnership firm constituted by the same two individuals, what he loses sight of is that no transfer in the nature of sale or assignment takes place. The property goes from the left hand to the right hand or vise-versa, the entity of the transferor and tranferee remaining the same. No formal assignment is necessary at all in such a case, because the transaction which is not one of sale or transfer is not required to be effected by any formal document that document, does not require registration. To put the same thing in other words one may say that is such case, there may be a defacto assignment in common parlance, but no de juri assignment in the eyes of law.
Sections 115 and 116-Estoppei Pleading of-Question was only of the application of the provision of Section 116 to the set of those undisputed facts. Court would not be justified in refusing to apply the said provisions to such set of facts.
Mere plea of estoppel will also be no enough. If the factual position giving rise to the plea of estoppel is not pleaded the pleading would be defective in law. If, on the other hand, the factual position giving rise to estoppel is pleaded and if only tile word "estoppel" is not pleaded, the Court would be entitle to connive at that much of inadequacy of-pleading. This is so because facts giving rise to legal position have got to be pleaded; not the law or evidence. If the substance of the estoppel is pleaded but only the nomenclature remains un-pleaded, that much short-coming of the pleading is at least pardonable. All the relevant facts are on record and are un-disputed. Question in only of the application of the provisions of Section 116 to the set of those undisputed facts. The Court will not be justified in refusing to apply the said provisions to such set of facts.
Section 116-Estoppel-Suit for possession by A against B-B Contending-A not having title to suit premises on date of commencement of Bs tenancy-Maintainability of suit for possession by A-Applicability of estoppel against B-Words during continuance of tenancy-Meaning of.
The expression during continuance of the tenancy in Section 116 of Evidence Act has been interpreted to mean that the tenant cannot question landlords title even after formal termination of his tenancy unless and until he has surrendered possession of the premises in question to the landlord. Section 116 itself makes the position evidently clear viz., that a person who has taken lease from another person cannot challenge the title of his own lessor at the time of the commencement of the lease and if he has to do so, he can do it only after the lease ceases to continue and the lease can be said to ceasing to continue only when the lessee has handed over possession of the premises back to his own lessor irrespective of the question whether the lessor had the title to create lease in favour of the lessee or not.
Even if it be assumed that N had no title to suit premises on the date of the commencement of Bs tenancy, still it would not open for B to contend that A had no such title. Between A & B, As title to the suit premises was complete and in that view of the matter A had every right to file suit for possession against B in the court of law.
The defendant, inter alia, contended that he was protected by the provisions of the Bombay Rent Act and hence---
(a) that no decree for eviction against him could be passed by the City Civil Court; and
(b) that he was entitled to the protection under the Rent Act even, otherwise.
This defendant's contention was negatived by the trial Court and a decree for possession was passed in favour of the plaintiff. When this Appeal, initially came before a learned Single Judge of this Court (Tulpule, J.) various pleas were raised before him. The main plea regarding the applicability of the Rent Act to the suit premises was decided by the learned Judge and he held that the Rent Act did not apply to the suit premises, with the result that the defendant was not entitled to any protection under the provisions of the Rent Act. Naturally, he also held that the question of jurisdiction was irrelevant because section 28 of the Bombay Rent Act, which ousted the jurisdiction of the City Civil Court in such a case, was itself not applicable to the premises.
However, he had to consider the question as to whether the notice of termination of the tenancy given by plaintiff No. 1 was valid and legal in the eyes of law. In this connection, the learned Judge seems to have been of the view that the notice of termination of the tenancy could be given only by the defendant lessor and since there exists a dispute in this case as to whether the plaintiff or any one of them were the defendant's lessor or not, the learned Judge framed relevant issues on that question and sent for finding on those issues from the trial Court. The issues sent down are the following :-
"1) Who were the lessors of the defendants whose monthly tenancy commenced in the year 1957 ?
2) Whether the Tenancy in this case was legally and validly determined so as to give a cause of action to the plaintiffs ?"
The trial Court has recorded a finding on these issues, holding that none of the plaintiffs were the lessors of the defendant and hence it could not be said that the defendant's tenancy stood validly terminated by notice given by plaintiff No. 1. Against this finding, objection have been filed on behalf of the plaintiff and this Appeal is now placed for final hearing before me for consideration of the various questions, including the question whether the finding of the learned Judge on the two issues is correct or not. It goes without saying that the question regarding applicability of the Rent Act is no longer res integra between the parties because the judgement of my brother Judge Shri Justice Tulpule has decided the point finally, holding that the Rent Act has no application to the suit premises.
2. Before I come to the examination of the various questions, let me set out the relevant facts, most of which are admitted facts, or, at least, are facts about which there existed hardly any dispute :-
(a) There was a Partnership Firm by name M/s. Meghji Vijpar Co. Meghji Vijpar Kanji Vijpar, the two brothers, were the partners of the same. Some time before 1957, the Bombay Port Trust, who is the owner of the suit premises, viz. Bay No. 4 (which means Gala No. 4) in I-Gully Compartment, situate at Rayon Grain Market, at Dana Bundar, Bombay-9 gave on lease the said Gala No. 4 to the two brothers, Meghji Vijpar Kanji Vijpar. There is no dispute that the lease was not in the name of the Firm as such. The lease was in th
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