1986 Supreme(Cal) 452

High Court Of Calcutta
BIMAL CHANDRA BASAK, BHAGAWATI PRASAD BANERJEE
DWIJENDRA NATH - Appellant
Versus
RABINDRA NATH - Respondent
A. F. O. D.  228  Of  1984
Decided On : 12/03/1986

Section 14 of the West Bengal Premises Tenancy Act, 1956 only confers a power on the landlord to avoid such transaction if there was no such agreement as specified. It merely gives an option to the landlord either to accept such transfer without consent or avoid the same.

Headnote:

Partnership Firm - Tenancy Rights - Transferability - West Bengal Premises Tenancy Act, 1956 - Section 14 - Interpretation - Whether partnership firm can acquire tenancy rights in respect of tenancies previously enjoyed by individual partners - Whether such transfer is void or voidable - Whether Section 14 of the Act is a bar to such transfer - Applicability of Section 23 of the Contract Act, 1872.

Fact of the Case:

1. Gour Chandra Chatterjee, father of respondent No. 1 Rabindra Nath Chatterjee, was carrying on business in Dasakarma goods and articles as the sole proprietor under the name and style of "new Dasakarma Bhandar". 2. On 25th April, 1955, a partnership deed was executed between Gour Chandra Chatterjee and Smt. Satyabhama Mullick, wife of appellant No. 1 Bansi Badan Mullick, wherein it was stated that the previous partnership business was actually carried on by Bansi Badan Mullick in the benami of his wife Satyabhama Mullick with the said Gour Chandra Chatterjee. 3. On 6th July, 1972, Gour Chandra Chatterjee died intestate after duly nominating his son the said Rabindra Nath Chatterjee to be the partner in his place under Clause 21 of the 1965 Deed of Partnership. 4. On 8th September, 1972 a new partnership deed was entered into between Bansi Badan Mullick, father of the appellants and the respondent No. 1 Rabindra Nath Chatterjee for carrying on partnership business under the same name and style "new Dasakarma Bhandar" on similar terms and conditions. 5. On 12th August, 1979, Bansi Badan Mullick dissolved the partnership firm by a notice with effect from 18th August, 1979 and on 18th August, 1979, a suit being Suit No. 624 of 1979 was instituted by Bansi Badan Mullick in this High Court as already stated. 6. Ultimately in the suit only three issues were left to be decided which are as follows : "(A) Whether the large shop room situated at premises No. 16, Jamunalal Bajaj Street, which tenancy stands in the name of Gour Chandra Chatterjee, deceased, father of Rabindra Nath Chatterjee, and the small shop room situated at the same premises which tenancy is in the name of Samir Kumar Mukherjee, belong to the partnership firm and required to be dealt with as its assets ? (B) If not, whether the said two tenancies should revert to the Chatterjee partner on dissolution of the firm ? (C) Alternatively partnership, if any, created by the said terms of settlement between the plaintiff and the defendants herein stands dissolved with effect from 23rd November, 1979. (D) In the further alternative, the same be dissolved by a decree of the Court on the ground that it is just and equitable to do so. (E) Accounts of the partnership, if any, be taken. (F) The affairs of the partnership firm of New Dasakarma Bhandar be wound up." 7. The disputes relate to the tenancy rights in respect of two rooms and one godown- one tenancy standing in the name of Gour Chandra Chatterjee, father of Rabindra Nath Chatterjee who was one of the partners and another which was standing in the name of Samirkumar Mukherjee whose business was taken over by Gour Chandra Chatterjee and who used to pay the rent before the partnership was constituted.

Finding of the Court:

1. The partnership firm can acquire tenancy rights in respect of tenancies previously enjoyed by individual partners. 2. Such transfer is not void but voidable at the instance of the landlord. 3. Section 14 of the Act is not a bar to such transfer. 4. Section 23 of the Contract Act, 1872 is not applicable to such transfer.

Issues: 1. Whether the partnership firm can acquire tenancy rights in respect of tenancies previously enjoyed by individual partners? 2. Whether such transfer is void or voidable? 3. Whether Section 14 of the Act is a bar to such transfer? 4. Whether Section 23 of the Contract Act, 1872 is applicable to such transfer?

Ratio Decidendi: 1. A property which has been used and treated as partnership property cannot be presumed to belong to the partner only simply because he paid for it; for the presumption in such a case is rather that the property in question was his contribution to the common stock. 2. The mere use of property by the partnership without any indication as to whom the property was treated as belonging will not usually bring about any change in the beneficial ownership of such property which will therefore, remain vested in the partner or partners previously entitled thereto. 3. It is for the partners to determine by agreement amongst themselves what shall be the property of the firm and the quantum of their beneficial interests therein inter se and what shall be the separate property of one or more of them. 4. If there is no express agreement, then the source from which the property was obtained, the purpose for which it was acquired, and the mode in which it has been dealt with, are to be considered to ascertain such intention. 5. Section 14 of the West Bengal Premises Tenancy Act, 1956 only confers a power on the landlord to avoid such transaction if there was no such agreement as specified. It merely gives an option to the landlord either to accept such transfer without consent or avoid the same. 6. Section 23 of the Contract Act, 1872 is not applicable to subletting after the commencement of 1956 Act made without prior consent in writing of the landlord.

Final Decision: Appeal allowed.