Delhi High Court

Shri Narayan Shamnani vs Shri Rajender Prasad & Ors. on 14 February, 2011

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Judgment Reserved on: 10.02.2011
                          Judgment Delivered on: 14.02.2011


+                  RSA No.39/2005 & CM No.1847/2005


       SHRI NARAYAN SHAMNANI             ...........Appellant
                     Through: Mr.Chetan Sharma,Sr.
                              Advocate with Mr.Sanjeev
                              Narula, Ms.Astha Sharma and
                              Mr.Sunil Dalal Advocates.
                Versus

       SHRI RAJENDER PRASAD & ORS.        ..........Respondents
                     Through: Mr.A.P.Aggarwal, Advocate.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                  Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. This appeal has impugned the judgment and decree dated

18.11.2004 which had reversed the finding of the trial judge dated

25.1.2002. Vide the judgment and decree dated 25.1.2002 the suit

filed by the two plaintiffs Rajender Prasad (S/o Sambhu Dayal) and

Ram Chandra (S/o Manohar Lal) seeking possession of the suit

property (property bearing No.6430, Lady Harding Road, New

Delhi) had been dismissed. The impugned judgment had reversed

this finding. The suit of the plaintiff had stood decreed.

2. The factual matrix as revealed is that a partnership firm M/s

Shambhu Dayal Manohar Lal comprising of three partners namely

Shambhu Dayal, Manohar Lal and Banwari Lal had taken on rent

the aforenoted suit property at monthly rental of Rs.55/-. Property

was then owned by Baba Vikram Singh. Shambhu Dayal died

leaving behind his legal representative i.e. his son Rajender Prsad

(plaintiff no.1). Manohar Lal, the second partner also died leaving

behind his legal representative i.e. his son Ram Chandra (plaintiff

no.2). The present suit had been filed by the aforenoted two

persons. Admittedly, at the time of the filing of the suit which was

on 18.8.1998 Banwari Lal, the third partner, was alive; he was not

joined as a plaintiff. The contention of the plaintiffs in the present

suit was that on 13.7.1998 plaintiff no.1 had gone to the suit

premises to get his shutter repaired and to replace old locks with

new locks as the old locks had become rusted. On 17.7.1998 when

he had gone to the shop to open the shutter he found that the

shutter was already opened; defendant no.1 attacked him; matter

was reported to the police; defendant no.1 had already put his

locks over the shutter. Contention of the plaintiffs is that the

defendant no.1 had illegally trespassed in the suit property and

taken forcible possession in this intervening period of 13.7.1998 to

17.7.1998. Suit for possession had accordingly be filed.

3. Defendants had denied these submissions. It was denied that

forcible possession of the suit property had been taken. It was

contended that defendant no.1 had purchased this property from

Baba Vikram Singh in September-October 1990 and he is the

owner of the suit property. Banwari Lal, the sole surviving partner

has surrendered his rights in the suit property to the Baba Vikram

Singh. The defendant at the time of the purchase of the property

had been given physical possession of the suit property.

4. On the pleadings of the parties, the following issues were

framed:

"1.Whether plaintiff is entitled to the recovery of possession as

prayed for ?OPP

2.Relief."

5. Oral and documentary evidence led before the trial court.

The trial judge was of the view that in terms of Section 42 of Indian

Partnership Act, 1932 (hereinafter referred to as „the Act‟) on the

death of one partner unless there was a contract to the contrary,

the partnership stood dissolved. Trial Court had noted that the

conduct of the parties had not in any manner suggested that there

was any contract to the contrary; on the death of the two partners

namely Shambhu Dayal and Manohar Lal the partnership stood

dissolved. Futher since the property had been tenanted out to the

partnership firm, the non-joining of Banwari Lal who was the sole

surviving partner was fatal to the suit. Trial judge had returned a

finding that Banwari Lal had in fact surrendered the tenancy rights

to the erstwhile owner Baba Vikram Singh from whom defendant

no.1 vide valid document of purchase had purchased this property

on 10.10.1990. Court returned a finding that the plaintiffs had no

locus standing to file the present suit; suit was dismissed.

6. This finding was reversed by the appellate Court. It

concluded that the legal heirs of the deceased partners i.e. the son

of Shambhu Dayal and Manohar Lal had inherited the tenancy

rights from their deceased fathers and the present suit filed by

them was maintainable. Non-joining of Banwari Lal did not affect

the merits of the case. The court had returned a finding that the

rent had been paid by the firm up to September 1990 and this was

evident from the rent receipt Exs.PW-1/2 to Ex.PW-1/6. The Court

on the re-appreciation of the oral and documentary evidence also

returned a finding that Banwari Lal had not surrendered the suit

property to Baba Vikram Singh.

7. Appeal has been admitted.

8. Substantial question of law was formulated on 30.9.2010

which reads as follows:

"Whether the suit in the present form was maintainable when admittedly the property had been leased out to the partnership firm and two of the said partners namely Shambhu Dayal and Manohar Lal had expired; the suit filed by Rajender Prasad and Ram Chander Gupta, their respective sons, in the absence of third partner Banwari Lal who was yet alive and if so, its effect?"

9. On behalf of the appellant vehement arguments have been

urged on the ground that the suit was not maintainable; tenancy

was admittedly of the partnership firm and after the death of the

first partner, in terms of Section 42 of the Act, the partnership

stood dissolved. Learned counsel for the appellant has placed

reliance upon (2010) 2 SCC 407 Mohammad Laiquiddin Vs. Kamla

Devi Mishra. It is pointed out that a partnership is not heritable

status; this is a matter of contract; on the death of one partner in

the absence of acceptance by the other partners it cannot be said

that the partnership stands revived. Admittedly there was no

written contract. The plaintiffs i.e. the two sons of the two

deceased partner could not have filed a suit in the absence of

Banwari Lal who was the sole surviving partner; the mere

averment that he was old and could not be joined as a plaintiff was

not reason enough not to join him in the proceedings. It is pointed

out that from the year 1983 to 1990 the partnership had become

defunct. Admittedly after 1990 no rent had been paid even to

Baba Vikram Singh. In October 1990, the suit property had been

purchased by defendant no.1 from Baba Vikram Singh and

documents including agreement to sell, power of attorney, will had

been executed in favour of defendant no.1 by the erstwhile owner.

Suit filed was not maintainable in the present form.

10. Arguments have been countered. It is pointed out that rent

of the suit property had admittedly been paid by the partnership

firm up to September 1990 and this is evident from Ex.PW-1/2.

The status of the continuance of the firm was thus recognized.

There was no evidence before the Court to establish that Banwari

Lal had surrendered the tenancy right in favour of Baba Vikram

Singh. Attention has been drawn to the agreement to sell executed

between Baba Vikram Singh and defendant no.1 wherein para 3

states that the first party had delivered to the second party the

constructive and symbolic possession of the property as it is in

possession of the tenants/occupants. Admittedly this lease was qua

the suit property. It is pointed out that this document clearly

established that in October 1990 Baba Vikram Singh had

recognized the fact that the tenants were occupying the suit

property. It is pointed out that the suit in the present form was

maintainable even in the absence of Banwari Lal. For this

proposition, reliance has been placed upon AIR 1971 Delhi 219

Kanahiya Lal Balkishan Dass Vs. Labhu Ram; 1980 RLR 84 Usha

Bhasin Vs. Competent Authority as also another judgment AIR

1984 SC 1570 M/s Chhotelal Pyarelal Vs. Shikharchand .

11. Record has been perused.

12. Ex.PW-1/2 is a rent receipt dated 22.4.1990. It is a receipt of

rent from the firm Shambhu Dayal Manohar Lal in the sum of

Rs.660/- @ Rs.55/- per month qua suit shop i.e. 1/4, Bhagat Singh

Lane, New Delhi for period 1.10.1989 to 30.9.1990. This

documents clearly evidences that in April 1990 the partnership

firm Shambhu Dayal Manohar Lal was recognized; the status of the

said firm was in existence. Rent was being paid by the said firm

and being received by Baba Vikram Singh. The agreement to sell

Ex.DW-1/1 dated 10.10.1990 executed between Baba Vikram Singh

(the erstwhile owner) and defendant no.1 also in para 3 clearly

stipulates that only constructive possession of the suit property had

been handed over to defendant no.1 as it was still in occupation of

the tenant. Ex.DW-1/2 is the lease deed executed between Baba

Vikram Singh and M/s Mid Air Express (P) Ltd. This was also in

October 1990.

13. The impugned judgment had re-appreciated the oral and

documentary evidence of the parties. Testimony of PW-1 was

adverted to wherein it was noted that no suggestion has been given

to this witness that the possession was not with them till the year

1998. The lease deed Ex.DW-1/2 executed between Baba Vikram

Singh and M/s Mid Air Express (P) Ltd. mentioned that on the

vacation of the shop the same would be given on lease for a further

period; meaning thereby that on 10.10.1990 possession was not

with Baba Vikram Singh. It is thus clear that up to October 1990

the physical possession of the suit property was not with Baba

Vikram Singh. Defendant no.1 (examined as DW-1) had admitted

in his cross-examination that he was not delivered the possession

of the suit property by Banwari Lal or by any other person. This

evidence had weighed in the mind of the first appellate Court to

hold that the suit property had never been delivered by Banwari

Lal or by any other person to either Baba Vikram Singh or to

defendant no.1.

14. The substantial question of law as aforenoted has to be

answered by this Court. Section 42 of the said Act mandates that

unless there is a contract to the contrary, on the death of one

partner the partnership will stand dissolved. In Kanahiya Lal

(supra) a Bench of this Court had recognized the fact that where

the premises had been let out to a partnership firm, on the

dissolution of the firm the remaining partner became a tenant by

operation of law and an application seeking fixation of standard

rent was maintainable. In Usha Bhasin (supra) where a partnership

firm was a tenant and one of the partners had died, the legal

representative of the said deceased partner was entitled to inherit

the tenancy provided the tenancy had not been terminated. The

observation made in this case which is relevant in this context is

extracted as follows:

"When a landlord enters into a contract of tenancy with a firm he takes all the partners of the firm as his tenants and by operation of law the rights of each of them in the event of death is inherited by his legal representatives."

15. Law is settled. A lease of a premises creates inheritable

rights and legal representative of a tenant whose contractual

tenancy had not been terminated would continue to remain a

tenant of the landlord.

16. In the instant case admittedly, the tenancy which had been

created in favour of the firm has not been terminated; this also was

not the plea of the defendant/appellant. Even otherwise the

recognition of the status of the firm by receiving rent from the firm

up to September 1990 has been established. Even in October 1990

as is evident from Ex. DW-1/1 and Ex. DW-1/2 when Baba Vikram

Singh sold the suit premises to defendant no.1; it was noted that

only constructive possession is being handed over as the suit land