Taking two more partners in the firm does not amount to subletting or parting with the possession of the lessee rights.

1. This is a landlords petition challenging the order of the Appellate Authority, dismissing his application for eviction of his tenant. The brief facts necessary for the disposal of this petition are as follows:-

2. On 2nd July, 1960, Kunj Lal, describing himself as malik wa karkun of firm Kunj Lal Raman Kumar, took on lease the shop in dispute from the landlord, Vir Bhan. The shop is situated on Mandi Road in Jullundur City.

3. On 8th December, 1965, Vir Bhan filed an application under Sec.13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act), seeking eviction of Kunj Lal from the premises in his capacity as the proprietor of Kunj Lal Raman Kumar, on the ground that without his written permission, Kunj Lal has sublet the premises to one Raj Kumar, who was described as the proprietor of Raj Kumar Bipan Kumar.

4. The plea taken by Kunj Lal respondent was that the premises were taken on lease for and on behalf of the firm of which he and his brothers, Kashmiri Lal and Raj Kumar, were the partners. A partnership deed dated 1st October, 1959, Exhibit RW2/a, was proved on the record, showing the share of Kunj Lal and Kashmiri Lal as 6 annas each and that of Raj Kumar as 4 annas. He further averred that later a new firm was created under the name and style of Raj Kumar Bipan Kumar in which Raj Kumar had 70 paise share and Kunj Lal and Kashmiri Lal had 15 paise share each. The partnership deed was executed on 1st April, 1965. It was not denied that the original firm, i. e. , Kunj Lal Raman Kumar, with the shares as indicated above, shifted inside Mandi Fanton Ganj, Jullundur City.

5. On behalf of the landlord stress was laid that the lease was taken only by Kunj Lal to begin with and Exhibit RW2/a, the so called partnership deed dated 1st October, 1959, was, in fact, executed subsequent to the taking of the lease, that the share of Kunj Lal and Kashmiri Lal in the new firm being only 15 paise each, it was a mere subterfuge to cover the provisions of the Act to avoid subletting and that the transfer of the premises to the new partnership really amounted to subletting.

6. There may be something to be said for the argument that on the date of taking the lease vide rent note, Exhibit AW5/1 on 2nd July, 1960, the description of Kunj Lal as Malik was karkun of the firm does give an indication that on that date this firm was not a partnership firm. That, however, would not make any difference to the legal position, because, in any case, Kunj Lal is a partner of the new firm Raj Kumar Bipan Kumar and the only question would be whether Kunj Lal by taking two other partners, i. e. , his brothers, Kashmiri Lal and Raj Kumar, in the firm can be said to have sublet the premises or parted with the rights under the lease.

7. It is now well settled, and it was not disputed, that if the facts be, as stated above, namely, that Kunj Lal took two more partners and formed a firm instead of himself carrying on the business in his individual capacity, it would not amount to either subletting or parting with the possession of the lessee rights. We have, however, to see, whether the deed indicates that there was a genuine partnership or only a camouflage for subletting.

8. Reference was made by the learned counsel for the landlord to Mangat Ram V/s. Om Parkash, (1962) 64 Pun LR 30, where Grover, J. (as he then was) after laying down the essential elements of a partnership under Sec.4 of the Partnership Act, came to the conclusion, on the facts of that case, that one of the basic requirements, namely, that the business must be carried on by all or any of them acting for all, not being fulfilled, it was a case of subletting and not converting the individual business into that of partnership and that the tenant was liable to ejectment under Sec.13 (2) (ii) (a) of the Act. One of the matters taken into consideration was that under the terms of the so-called partnership deed, it was provided that if Rs.47 were not pa