Shankari Prasad Das Ghosh, J. - (1.) On 7.7.71 one Jatindra Mohan Modak, the husband of the respondent No, 1 and the father of the respondents No. 2 to 5 entered into a deed of partnership with the defendant-appellant for carrying on business under the name and style of "Messrs. Shravani" in the shop-room, bearing Nos. 36 and 87 of premises Nos. 80, 81 and 82, Bidhan Sarani, Hatibagan, Calcutta. Jatindra, was a tenant of these two rooms Nos. 36 and 37. Under the deed of partnership, the business was to be in ready-made garments or any other business. The partnership business was to continue for a fixed term of seven years and six months commencing from 7.7.71 and ending with 31.12.78. The terms in the deed of partnership were that the capital of the business should be contributed by both the partners, contribution of Jatindra being Rs. 6,000 in the shape of furniture and fixtures in the shop-rooms and the contribution of the defendant-appellant being Rs. 10,000 or such further sum as would be necessary. The tenancy of the shop-rooms was to remain as before in the name of Jatindra, who was entitled to a fixed lump sum of Rs. 575 per month as his share of profit, irrespective of any profit or loss of the business. The loss of the business, if any, was to be borne by the appellant. There was a provision in the deed of partnership for dissolution of the business for non-payment of the sum of Rs. 575 to Jatindra for more than two months. Jatindra was to pay fixed rent of the shop-rooms to the tune of Rs. 1.38P. per day out of his fixed profit to the tune of Rs. 575 per month. The appellant was to remain in sole management and control of the business. It was mentioned in the deed of partnership that the appellant had already made an advance of Rs. 5,000 as security money for the guarantee of the lump sum profit to Jatindra and that the security money would be adjusted against the lump sum profit of each month at the rate of Rs. 50 per month, after six months commencing from January, 1972. It was provided in the deed of partnership that in case of death of Jatindra, his wife (the respondent No. 1) would continue in the partnership business for the unexpired period of fixed term of seven years and six months and that, in case of death of the appellant, his legal heirs or nominee could continue in the business. Jatindra died on 27.1.77.
(2.) Before expiry of the term mentioned in the deed of partnership, attempts were made by the plaintiffs-respondents, heirs of Jatindra, to get vacant possession of the shop-rooms, after 31.12.78. It was alleged by the plaintiffs that in reply to their letter, dated 18.10.78, written to the appellant, the appellant sent a letter alleging that he was a sub-tenant under the respondent No. 1 and not a partner. On the allegation that the deed dated 7.7.71 was a deed of partnership, a suit was filed by the plaintiffs spraying for permanent injunction and recovery of khas possession of the shop-rooms Nos. 36 and 37, on declaration that the respondent No. 1 and the appellant were partners in the business under the name and style of 'Shravani' under the indenture of partnership, dated 7.7.71 and on a further declaration that the partnership business terminated on 31.12.78.
(3.) The defendant-appellant filed a written statement alleging that the deed of partnership was executed to avoid the mischief of unauthorised subletting, as provided for in the West Bengal Premises Tenancy Act, 1956. It was alleged that the deed of partnership was never intended to be treated as such and that it was not actually acted upon as such. It was further alleged that the appellant had invested from time to time about Rs. 40,000 in the business. The appellant prayed for dismissal of the suit on the ground that he was a sub-tenant under Jatindra in respect of the shop-rooms.;