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1987 Supreme(Cal) 111
High Court Of Calcutta
Sankari Prasad Das Ghosh, L. M. Ghosh
PANCHU GOPAL SAHA - Appellant
Versus
USHA RANI MODAK - Respondent
C. A. 13 Of 1982
Decided On : 04/10/1987
R.N.MISRA, S.K.BHATTACHARJEE, Tapan Kumar Roy
A contract with a minor is void and a sub-lease is a transfer of a right to enjoy immovable property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, to the transferor by which transferee, who accepts the transfer of such terms as to the period of the lease the mode in which the payment is reserved may afford presumption Section of 105 of the Transfer of Property Act, covers a lease accompanied with payment of advance rent.
Headnote:
PARTNERSHIP - DEED - MINORITY - SUB-LEASE - VOIDABLE CONTRACT - RESTORATION OF PROPERTY - SPECIFIC RELIEF ACT, 1963 - SECTION 33 (2) (B) - INDIAN CONTRACT ACT, 1872 - SECTION 65.
Fact of the Case:
A deed of partnership was executed between Jatindra and the appellant for carrying on business in two shop-rooms, the tenancy of which was in Jatindra's name. The deed provided for a fixed term of seven years and six months, with Jatindra entitled to a fixed lump sum of Rs. 575 per month as his share of profit, irrespective of any profit or loss of the business. The appellant was to remain in sole management and control of the business. After Jatindra's death, his heirs brought a suit for permanent injunction and recovery of khas possession of the shop-rooms, alleging that the deed was a deed of partnership and that the partnership business terminated on 31. 12. 78. The appellant claimed that he was a sub-tenant under Jatindra and that the deed was void as he was a minor at the time of its execution.
Finding of the Court:
The court found that the appellant was a minor at the time of execution of the deed and that the deed was void. However, the court also found that the appellant had been paying Rs. 575 per month to Jatindra and the plaintiffs after his death, and that this created a relationship of tenant and sub-tenant between the parties. The court held that the deed was not a deed of partnership and that the appellant was a sub-tenant in respect of the disputed shop-rooms under the plaintiffs. The court dismissed the suit for recovery of khas possession of the shop-rooms and for permanent injunction.
Issues: 1. Whether the deed of partnership was void due to the minority of the appellant at the time of its execution? 2. Whether the appellant was a sub-tenant under Jatindra? 3. Whether the plaintiffs were entitled to recover khas possession of the shop-rooms or a decree for permanent injunction?
Ratio Decidendi: 1. A contract with a minor is void. (Mohori Bibee vs. Dharmodas Ghose, 30 Indapp 114) 2. A sub-lease is a transfer of a right to enjoy immovable property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, to the transferor by which transferee, who accepts the transfer of such terms as to the period of the lease the mode in which the payment is reserved may afford presumption Section of 105 of the Transfer of Property Act, covers a lease accompanied with payment of advance rent. (Section 105 of the Transfer Property Act) 3. A plaintiff is entitled to succeed in a suit for eviction, even though the plaintiff fails to prove the tenancy of the defendant, only if the defendant pleads licence in the written statement and the defence is that the defendant was to remain in possession till the amount expended by him for construction was returned to him by the plaintiff. (Bhagwati vs. Chandramatul (AIR 1966 S. C. 735))
Final Decision: The appeal was allowed. The judgment and decree passed by the lower court were set aside. The suit itself in the court below was dismissed. Parties were directed to bear their own costs of the suit and of this appeal.
( 1 ) ON 7. 7. 71 one Jatindra Mohan Modak, the husband of the respondent No, 1 and the father of the respondents No. 2 to 5 entered into a deed of partnership with the defendant-appellant for carrying on business under the name and style of "messrs. Shravani" in the shop-room, bearing Nos. 36 and 87 of premises Nos. 80, 81 and 82, Bidhan Sarani, Hatibagan, Calcutta. Jatindra, was a tenant of these two rooms Nos. 36 and 37. Under the deed of partnership, the business was to be in ready-made garments or any other business. The partnership business was to continue for a fixed term of seven years and six months commencing from 7. 7. 71 and ending with 31. 12. 78. The terms in the deed of partnership were that the capital of the business should be contributed by both the partners, contribution of Jatindra being Rs. 6,000 in the shape of furniture and fixtures in the shop-rooms and the contribution of the defendant-appellant being Rs. 10,000 or such further sum as would be necessary. The tenancy of the shop-rooms was to remain as before in the name of Jatindra, who was entitled to a fixed lump sum of Rs. 575 per month as his share of profit, irrespective of any profit or loss of the business. The loss of the business, if any, was to be borne by the appellant. There was a provision in the deed of partnership for dissolution of the business for non-payment of the sum of Rs. 575 to Jatindra for more than two months. Jatindra was to pay fixed rent of the shop-rooms to the tune of Rs. 1. 38p. per day out of his fixed profit to the tune of Rs. 575 per month. The appellant was to remain in sole management and control of the business. It was mentioned in the deed of partnership that the appellant had already made an advance of Rs. 5,000 as security money for the guarantee of the lump sum profit to Jatindra and that the security money would be adjusted against the lump sum profit of each month at the rate of Rs. 50 per month, after six months commencing from January, 1972. It was provided in the deed of partnership that in case of death of Jatindra, his wife (the respondent No. 1) would continue in the partnership business for the unexpired period of fixed term of seven years and six months and that, in case of death of the appellant, his legal heirs or nominee could continue in the business. Jatindra died on 27. 1. 77.
( 2 ) BEFORE expiry of the term mentioned in the deed of partnership, attempts were made by the plaintiffs-respondents, heirs of Jatindra, to get vacant possession of the shop-rooms, after 31. 12. 78. It was alleged by the plaintiffs that in reply to their letter, dated 18. 10. 78, written to the appellant, the appellant sent a letter alleging that he was a sub-tenant under the respondent No. 1 and not a partner. On the allegation that the deed dated 7. 7. 71 was a deed of partnership, a suit was filed by the plaintiffs spraying for permanent injunction and recovery of khas possession of the shop-rooms Nos. 36 and 37, on declaration that the respondent No. 1 and the appellant were partners in the business under the name and style of 'shravani' under the indenture of partnership, dated 7. 7. 71 and on a further declaration that the partnership business terminated on 31. 12. 78.
( 3 ) THE defendant-appellant filed a written statement alleging that the deed of partnership was executed to avoid the mischief of unauthorised subletting, as provided for in the West Bengal Premises Tenancy Act, 1956. It was alleged that the deed of partnership was never intended to be treated as such and that it was not actually acted upon as such. It was further alleged that the appellant had invested from time to time about Rs. 40,000 in the business. The appellant prayed for dismissal of the suit on the ground that he was a sub-tenant under Jatindra in respect of the shop-rooms.
( 4 ) THE learned Judge, IXth Bench, City Civil Court, Calcutta, who tried the suit, found, after examination of several witnesses, that
