Decided on August 17,1979



B.K.MEHTA - (1.) A short but interesting question arises in this revision application preferred by original defendants Nos. 1 and 2, who were respectively original tenant and sub-tenant or assignee from the original tenant, of the shop bearing census No. 4602/1 situate at Kalupur within the city of Ahmedabad. The monthly rent of the premises was Rs. 100.00. The opponents herein, who were the original plaintiffs, filed the present suit for possession against the defendants on the grounds of arrears of rent, bona fide personal use and subletting by defendant No. 1 to defen dant No. 2. The Small Causes Court at Ahmedabad, where this suit was filed, granted the eviction decree on the sole ground of subletting under section 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates Collateral Act, 1947 (hereinafter referred to as the Bombay Rent Act) since diffident No. 1 Shah Chatrabhuj Narshi (hereinafter called the original tenant) had entered into a partnership with 16 other persons for carrying on business of goods transport under the name and style of The Orient Mail Speed Transport Company on the terms and conditions as contained in the partnership deed executed between the parties in that behalf on August 8, 1963, which is produced at Ex. 79 on the record of the trial Court, where, inter alia, it was agreed between the parties thereto that the separate businesses carried on prior to 3rd day of December 1962 by the partners together with all its assets, benefits, licences, rights, titles and interests in all other tangible and intangible properties of the said businesses including the tenancy rights would be deemed to have been taken over by and in possession of the new partner ship firm. The defendants, therefore, carried the matter in appeal before the Appellate Bench of the Small Causes Court, which confirmed the judgment and decree of the trial Court and dismissed the appeal. It is this order of the Appellate Court which has been challenged in this revision application preferred by the original defendants.
(2.) This revision application reached hearing before our learned Brother Mankad J, who, finding some apparent conflict between the decisions of two learned Single Judges of this Court in Mehta Jagjivan Vanechand v. Doshi Vanechand Harakhchand & Ors. (1971) 12 Guj. L.R., 487 (Per Thakkar J), and Manchharam Sobhraj and others v. Jamnadas Mulchand and another (1975) 16 Guj. L.R.,. (Per S. H. Sheth J), was of the opinion that the question involved in this revision application was of importance and, therefore, should be referred to a Division Bench of this Court. This is how the matter has come up before us.
(3.) In order to appreciate whether there is really any conflict between the aforesaid two decisions, we may shortly refer to them. In Jagjivan Vanechand's case (supra) the tenant who was carrying on business in the demised premises, with which Thakkar J was concerned, as a sole proprietor of the business, took in two other persons as his partners and carried on the business in the suit shop for the benefit of the partnership. The partnership deed executed between the tenant and his two partners in terms made it clear that the tenancy rights continued to vest into the tenant and the other two persons joining as partners were not to acquire any interest in the tenancy rights belonging to him. In that set up of facts, a question arose before Thakkar J., whether taking of two partners by the tenant and his carrying on partnership business on the premises with the two other partners amounted to subletting or assignment of the tenancy rights in the shop premises which exposed the original tenant to a decree of eviction under sec. 13(1) (e) of the Bombay Rent Act. On behalf of the landlord, it was contended that since the tenant was in possession and enjoyment of the shop premises by carrying on business thereon till 1957 after which year the same business was carried on by the partnership firm, it would justify the conclusion that there has been either subletting or assignment of the tenancy rights notwithstanding the stipulation set out above in the partnership deed. This contention did not find favour with Thakkar J., since, in his opinion, on the principle enunciated in South of England Dairies Ltd. v. Baker (1906) 9 Ch. Div. 631, an assignment of a lease must necessarily embrace all the estate of the assignor, who must divest his interest altogether and the answer would not have been different even if the tenancy interest had been thrown into partnership since a tenant joining partnership business continues to have the interest in the tenancy rights. In any case, an assignment could not have been in one's own favour In the opinion of the learned Single Judge (Thakkar J) the transaction in question before him would not amount to subletting as well because subletting postulates two distinct persons-the head-tenant and the sub-tenant, and if transaction of taking in partners constitutes a subletting, the sitting tenant would be the headtenant, and along with his partners would be sub-tenants also which situation exposes the fallacious contention urged on behalf of the landlord. An alternative contention on behalf of the landlord that there was a transfer 'of possession in favour of the partnership firm was also negatived by Thakkar J on the ground that there is a distinction between physical occupation and legal occupation, and till the legal occupation is tran spheroid, no sub-tenancy could have been created. The learned Single Judge sought support to his view from the decision of a learned Single Judge of Madras High Court in Gundalapalli Rangamannar Chetty v. Desu Rangiah and Ors., A.I.R. 1954 Mad. 182.;

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