Attar Chand Jain vs Sudhir Kumar Jain And Ors.
2001 Latest Caselaw 1971 Del

JUDGMENT

V.S. Aggarwal, J.

1. In pursuance of the auction purchaser (Attar Chand Jain) having been successful purchaser of the property in question, he has preferred the application, alleging that the sale in his favor was confirmed on 12.2.1999. The property is stated to be in occupation of Surender Kumar Jain and Devinder Kumar Jain (for short "the Objectors") or on behalf of judgment debtors by Sunil Kumar Jain and Sanjay Kumar Jain (sons of Surender Kumar Jain), it is prayed that warrants of possession should be issued for delivery of the physical possession of the suit premises to the auction purchaser.

2. In reply/objections filed, it has been alleged that the property in dispute had been purchased by Lala Ram Chand. On the ground floor, the business was started under the name and style of M/s. Kedar Nath Ram Chand. The said business was dissolved on Asad Sadi 12, Samvat 1998 (equivalent to 6.7.1941). Thereafter, Nem Chand and Moti Lal started a partnership business under the name and style of M/s. Nem Chand & Brothers in this very shop. The property was let by Ram Chand @ Rs. 25/- per month. The business of M/s. Nem Chand & Brothers was subsequently dissolved on 8.7.1956. Thereafter, decree-holder Along with Moti Lal and Nem Chand started the business under the name and style of Kedar Nath Ram Chand. The said business continued in this very shop. The partnership, referred to above, was dissolved on 3.11.1959. Decree-holder Attar Chand Jain separated from the business of M/s. Kedar Nath Ram Chand and allowed the business to run from this shop. The other partners i.e. Moti Lal and Nem Chand continued the business under this very name. On 17.6.1961 Shri Moti Lal, judgment-debtor also separated himself from the business being run by the firm Kedar Nath Ram Chand. Vide partnership deed of 11.9.1961, Nem Chand, a co-owner also associated Surender Kumar Jain along with Dhanender Kumar Jain. They kept on carrying on the business under the name and style of Kedar Nath Ram Chand. It is pleaded that this partnership was also dissolved through the dissolution deed of 8.7.1966. Nem Chand (judgment-debtor) and Dhanender Kumar Jain left the business. It was taken over by Surender Kumar and Devinder Kumar. To this effect, a partnership deed of 8.7.1966 was executed. This was well within the knowledge of the decree-holder, who did not raise his little finger on holding of the shop by Kedar Nath Ram Chand as tenants. It is pleaded, thus, that from the very beginning, Kedar Nath Ram Chand are in occupation of the shop as tenant and decree-holder has no right to ask for the vacant possession or to compel the firm to vacate under the provisions of Order XXI Rule 95 of the Code of Civil Procedure. It is pleaded that the partnership is still in existence and carrying on the business under the name and style of M/s. Kedar Nath Ram Chand. Plea has also been raised that in the suit that was filed by the auction purchaser, number of issues had been framed and one of the issue was whether Kedar Nath Ram Chand are in occupation of the shop as a tenant. Lateron at the request of the auction purchaser, the issue was dropped to be superfluous.

3. It has further been alleged that during the life time of Nem Chand Jain, he had executed a Will dated 3.6.1977. In the said Will, it was declared that Nem Chand was the owner of 1/3rd share of the property. The auction purchaser was an attesting witness to the Will and it was mentioned in the Will that Kedar Nath Ram Chand were the tenant therein. Thus the auction purchaser is estopped from claiming that the objectors are not the tenants in the property.

4. Rejoinder was filed by the auction purchaser/decree-holder. It was pointed that a suit for partition was filed by the decree-holder/auction purchaser for the petitioner of the House bearing No. 4676, Gali Mohar Singh, Pahari Dhiraj, Delhi and for partition of the shops. On 17.7.1970 this Court was pleased to record the statement of the parties and it was held that the decree-holder/auction purchaser and his two brothers were the owners of the property to the extent of 1/3rd share each. Subsequently, vide the sale proclamation the property was sold to the decree-holder i.e. the property in dispute. It is denied that objectors are the tenants in the property in question. It has been pleaded that a tenancy even if created in the name of the partnership firm, is always accepted as a tenancy in favor of the parties who constitute the partnership business. The firm is only a compendious name but not a legal entity, which is entitled to claim tenancy right. Even if the shop had been purchased and owned by Ram Chand and he had let it to M/s. Nem Chand and Brothers, which comprised of Nem Chand Jain and Moti Lal Jain, even then the tenancy came to an end immediately on the death of Ram Chand in the year 1994 for the reason that Nem Chand and Moti Lal being the partners, were the tenants thereto. Plea has been raised that in the partition suit filed, Shri Nem Chand had stated that the partnership Nem Chand & Brothers had come into existence on 6.7.1941 with three partners, viz. Attar Chand Jain (decree-holder/auction purchaser), Nem Chand and Moti Lal. All three were the owners of the property and, therefore, there could not be any tenancy in their favor.

5. It has further been asserted that objectors are judgment-debtors No. 6 and 7 and sons of Nem Chand Jain. They are bound by the judgment and the decree. It is denied that there is any tenancy that has been created and it had never been agreed that Nem Chand and Moti Lal will collect the rent from Kedar Nath Ram Chand. While referring to the said Will, it has been pointed that judgment/debtor is not bound by the contents of the Will.

6. Learned counsel for the objectors highlighted the fact that right from very beginning when the decree-holder/auction purchaser had been filing the suit, it had bene alleged that it was Kedar Nath Ram Chand who were the tenants as a firm in the property. It was the said firm which was paying the rent. He highlighted the fact that in all the earlier litigations, it had been alleged that the said firm had been a tenant in the property and even in the Will executed by the father of the objectors to which the decree-holder is an attesting witness, it had been mentioned that the said firm is a tenant in the property.

7. On 11.10.2001, the court had directed that the objectors may file an affidavit as to since when they are tenants in the property, who had let out the property to that effect and what was the status of the person who let out the property to them. In pursuance of the said direction, Surender Kumar Jain has filed the affidavit. Most of the facts are the same as had been mentioned in the objections, which require no repetition, but in the affidavit, it has been pointed out that in the year 1966 Nem Chand and Dhanender Kumar walked out and the business was carried on by Surender Kumar Jain and Devinder Kumar Jain who are still are carrying on the business. The tenancy was created in respect of the firm by Nem Chand who was controlling the affairs of the property. During the pendency of these proceedings, there was some arrangement between the co-owners of the property and Nem Chand and Moti Lal were allowed to manage and collect the rent of the property. Disputes and differences arose between the tenants M/s. Kedar Nath Ram Chand and the landlords. It was settled that rent would be Rs. 60/- per month.

8. Taking stock of the totality of the facts, at the outset, it can well be mentioned that so far as the proclamation is concerned, it only referred to if they are tenants in the property. In other words, in case the said persons are not tenants, the right to file the objections in the present form will be of little consequence. The objectors indeed in this regard can not take advantage of any such fact being mentioned in the proclamation. Similarly, if in the litigation that took place, there was an issue framed in the form referred to above, as to whether Kedar Nath Ram Chand was the tenant of the property or not and the issue was dropped without adjudication, indeed, no advantage in this regard can be taken by either party.

9. It is not in dispute that Lala Ram Chand was the owner of the property and the auction purchaser/decree holder, Shri Nem Chand and Moti Lal are the three brothers and sons of Ram Chand. It is unnecessary to ponder with other facts in this regard but suffice it to say that it is the case of the objectors that Moti Lal had separated himself from the business of Kedar Nath Ram Chand on 17.6.1961. Objectors contended that thereafter vide the deed of 11.9.1961 Nem Chand, co-owner also associated Surender Kumar Jain, the objector along with Dhanender Kumar and they carried on the business under the name and style of Kedar Nath Ram Chand in the suit property. the said firm was dissolved on 8.7.1966. Nem Chand Jain and Dhanender Kumar separated themselves from the business and Surender Kumar, Devinder Kumar had taken over the said business. In this regard, reference can well be made to the written statement filed by Nem Chand Jain in Civil Suit No. 110/67, wherein following facts had been pleaded:

L. Ram Chand purchased Shop No. 615-587 (new) and 724 (old) and started a business in the above said shop, in he ground floor, in the name of Messers. Kedar Nath Ramchand. This business was dissolved on Asadh Sudi 12, Sambat 1998. There-after the Plaintiff, Shri Nem Chand and Shri Motilal started in partnership a cloth business in the name of Messers. Nem Chand and Bros. in the said shop No. 615-587, Lala Ram Chand let out the above shop to the firm M/s. Nemchand & Bros. on Asadh Badi 12, Sambat 1998 at Rs. 25/- per month. The business of Messers. Nem Chand and Bros. was dissolved on 8th of July, 1956 and in its place the Plaintiff, Shri Motilal and Shri Nem Chand started a business in the name of Messers. Kedar Nath Ramchand. This business was also carried on in the above mentioned shop. In the year 1959, Shri Atar Chand Jain separated from the business Messers. Kedar Nath Ramchand and Defendants No. 1 and 2 continued the business in the name of Messers. Kedar Nath Ram Chand in the said shop. In 1961, Shri Motilal, defendant No. 2 also separated himself from the business, Messers. Kedar Nath Ram Chand. Thereafter the Defendant No. 1 has also separated himself from the firm Messers. Kedar Nath Ram Chand. The firm Messers. Kedar nath Ramchand is in occupation of the ground floor of the premises i.e. shop No. 615-587 as a tenant of Defendants No. 1 and 2 and the parties have no right to eject or take possession of the shop from Messers. Kedar Nath Ram Chand under the Delhi Rent Control Act, 1959, and they are only the Lessers of the shop. The premises No. 4343 to 4345 situated at Pahari Dhiraj, Sadar Bazar, Delhi, also in the Joint Hindu Family property and the Plaintiff has not included that property in the suit.

10. Perusal of the same clearly shows that though it was pleaded that Nem Chand also separated from the partnership business, but there is no mention that it was let to the objectors, as such. In fact in the earlier written statement that had been filed in the same suit, Nem Chand pleaded that after his brother Moti Lal separated from the business, he carried on the business himself. Looking it from either angle, it would be seen that it has not been pleaded by Nem Chand at any stage that the objectors had been let the property in question.

11. It is a settled principle of law that the partnership is nothing but a compendious name given to an association of persons. It by itself is not a legal entity. In fact, it is the partners who carry on the business and for all practical purposes, the rights are vested in them. Reference in this connection can well be made to the decision of the Supreme Court in the case of DEPUTY COMMISSIONER OF SALES TAX v. K. KELUKUTTY, . The Supreme Court held:-

....The firm name is only a collective name for the individual partners. But each partnership is a distinct relationship. The partners may be different and yet the nature of the business may be the same, the business may be different and yet the partners may be the same. An agreement between the partners to carry on a business and share its profits may be followed by a separate agreement between the same partners to carry on another business and share the profits therein. The intention may be to constitute two separate partnerships and therefore two distinct firms. Or to extent merely a partnership, originally constituted to carry on one business, to the carrying on the another business. It will all depend on the intention of the partners. The intention of the partners will have to be decided with reference to the terms of the agreement and all the surrounding circumstances, including evidence as to the interlacing or interlocking of management, finance and other incidents of the respective business.

12. With this being the position in law, one can revert back to the facts in question. It is the objectors' case that M/s. Nem Chand & Brothers had been formed with the objector/decree-holder, Moti Lal and Nem Chand as partners. The decree-holder separated himself and lateron Moti Lal also left the firm. It was in the year 1966 that it is claimed that Nem Chand, the third brother also left the firm. Once all the three brothers and left the firm and even if they were taken to be the tenants, it must be held that unless there is a fresh contract, which is not even shown to be in existence, new tenancy could not be created. In that view of the matter, the objectors indeed can have no say or right in the property.

13. There is another way of looking at the matter. Earlier Ram Chand admittedly was the owner of the property. The auction purchaser/decree-holder and Nem Chand and Moti Lal were his sons. Even if the property had been let to such a firm by Ram Chand on the death of Ram Chand, necessary Section 111(d) of the Transfer of Property Act will come into play. It clearly provides that when the interest of the lessee and Lesser in whole of the property becomes vested at the same time in one person, the lease of the immovable property would determine. Doctrine of merger will come into play. It is based on the principle of Union of two conflicting interests, which can not be held by one person at the same time. Therefore, the rights of tenancy with the partnership firm had in fact come to an end much earlier.

14. It was pointed that the present objectors are carrying on the business under the name and style of M/s. Kedar Nath Ram Chand but as already pointed out above and rementioned at the risk of repetition, the name given to the firm is immaterial. When the body of the partners undergo a change and the original partners, who, if at all had any right in the property, walked out of the firm, in that event when the original partners have no control over the partnership merely retaining the old name will be of no consequence. It can not be taken to be the same firm because the very constitution has since changed.

15. It was highlighted, as already pointed out above, that Nem Chand had let out the property to the objectors being a co-owner of the same. Even this contention, in that peculiar facts, will have little say in the matter. Firstly, even if it be taken that there is such letting during the pendency of the suit filed by the auction purchaser/decree-holder, admittedly auction purchaser was one of the co-owners of the property. Section 52 of the Transfer of Property Act will apply with all its rigour. Not only that, a co-owner will not be in a position to create the tenancy without consent of the other co-owners. It is not pleaded or shown that Nem Chand, if at all, had taken permission of the other co-owners. The matter in question would be squarely covered by the decision of the Supreme Court in the case of RAM GOPAL SAWHNEY v. SURAJ BALRAM SAWHNEY & SONS AND ORS., 1983 DLT 92. It was held that a co-owner can not create a tenancy of joint property without the consent of the other co-owners. If one co-owner does so, others are not bound by that act. The result is clear, therefore, that the objectors,in that view of the matter, even on this score, can not claim a right to be a tenant therein.

16. The last submission in this regard on behalf of the objectors, was that Nem Chand, who was the brother of the decree-holder/auction purchaser, had executed a Will. Auction purchaser/decree-holder is a attesting witness and in the said Will it has been mentioned that the firm is a tenant therein. Even if the contentions of the objectors on this face value are accepted, it must be held that the attesting witness does not accept the contents of the Will. To the same effect is the decision PANDURANG KRISHNAJI v. MARKANDEYA TUKARAM AND ORS. 1922 Privy Council p:20. Thus, the decree-holder/auction purchaser is not estopped from raising the relevant pleas. Keeping in view the aforesaid, it must follow that even such argument must be held to be devoid of any merit.

17. For this reasons given above, the objections being without merit, must fail and are dismissed. E.A. No. 225/99 is allowed. If within one month the objectors do not hand over the possession of the property, the auction purchaser would be at liberty to seek warrants of possession.

Ex. 69/96

List it on 28.3.2002.