SHINGHAL, J. - (1.) THE suit giving rise to this appeal was instituted by respondent Noratmal for possession and arrears of rent of the premises which were admittedly let out to defendant Nihalchand in Ajmer City, under an oral but old tenancy, at the rate of Rs. 30/- per mensem. THE defendant used to reside in first floor, while he carried on his business in the ground floor. He handed over his business to a partnership firm consisting, besides himself, of Kanhiyalal, Noratmal and Ram Narayan, under partnership agreement Ex. 2 dated April 7, 1959, which was duly registered. It was agreed that the business which the defendant was carrying on earlier in his own name would be run thereafter by the partnership firm in the name of M/s Tarachand Santosh Kumar, in the premises, and that his share would be annas five in the rupee. THE responsibility of carrying on the partnership business in a proper manner was placed on the defendant with the stipulation that he would discharge it in consultation with, and with the consent of, the other three partners. THE details of the partnership property were also settled in the partnership agreement, but it is not necessary to refer to them. THE following two clauses of the agreement are important and may therefore be reproduced
(2.) 19&;g gs fd ftl txg mdr Qez dk dkj[kkuk vhkh yxk gqvk gs og txg Qjhd ua-1 ds uke ls fdjk;s ij gs vksj ekfld fdjk;k eq- 30 :i;s nsrs gsa og fefr psr lqfn 1] 2016 ls mdr Qez ds fdjk;s ij jgsxk vksj mdr Qez gh fdjk;k izfr ekg 30 :i;s vnk djsxha ijurq ikvzujf'ki dh rkjh[k ls iwoz ds fdjk;s dh vnk;xh dh dksbz fteesnkjh mdr Qez dh ugha gksxha mldh vnk;xh dk fteesnkjh vdsyk Qjhd vooy gksxka 20& ;g fd 'kjkdr fqld [kre gksus dh lwjr esa edku ftl esa dkj 'kjkdr gksxk oks Qjhd vooy ds dcts esa jgsxka It may also be mentioned here that it has been stated by Kanhiyalal P. W. 5 one of the partners, that the partners used to pay Rs. 30/- per mensem to the defendant for the use of the ground floor in running of the partnership factory. Thus far, the facts are not in dispute. The plaintiff brought the suit for possession on the allegations, inter alia, that the defendant had sub-let the ground floor, or had otherwise parted with possession thereof, without his consent. The defendant denied that this was so and pleaded that he had merely entered into a partnership with the three persons mentioned above. Thus the main controversy between the parties was whether the defendant had sub-let a portion of the suit premises, or had otherwise parted with the possession thereof, so as to justify his eviction under sec. 13 (l) (e) of the Rajasthan Premises ( Control of Rent and Eviction ) Act, 1950. This was the subject matter of issue No. 2. The learned Munsiff found the issue against the defendant and decreed the suit on October 31, 1961. The defendant preferred an appeal, but it was dismissed by the learned Senior Civil Judge of Ajmer on January 2, 1963 and it is in these circumstances that the defendant has preferred this second appeal. The only question for decision is whether the concurrent finding of the two courts below that the defendant had sub-let the ground floor is in accordance with the law. It has been argued by Mr. Agarwal, learned counsel for the appellant, that the arrangement envisaged in paragraphs 19 and 20 of the partnership deed referred to above did not amount to a sub-lease because the defendant did not part with his possession over the ground floor at any point of time and that he could not at any rate, be said to have delivered exclusive possession to other partners so as to create a sub-lease in their favour. The learned counsel has pointed out in this connection that the right to exclusive possession and enjoyment of property must be shown to have been conferred on another person, before it could be said that a lease had been given to him under the law, otherwise the arrangement would be nothing but a mere licenced. In support of these arguments, Mr. Agarwal has placed reliance on Gundalapalli Rangamannar Chetty vs. Desu Rangiah (l), Karsandas Ramji vs. Karsanji Kalyanji (2), Faramroz M. Marolia vs. Dave Ravishanker Girdharilal (3), Hiralal vs. Gian Singh & Go. (4), Sherif Dadumiyaji vs. Emperor (5), Beharilal vs. Chhote (6) and Associated Hotels of India Ltd. vs. R. N. Ka. poor (7 ). Besides Mr. Agarwal has argued that a partnership firm is not a separate legal entity, as has been held in Rajniklal & Co. vs. Vithal Pandurang Kawade (8) and Purushottam Umedhbhai & Co. vs. M/s Manilal & Sons (9) and that there could be no question of transferring any property to the partnership firm for that reason. According to the learned counsel, the firm consisted of all the four partners who were in joint possession of the ground floor ever since the creation of the partnership firm, so that it could not be said that the possession of any of the other partners was to the exclusion of the defendant. On the other hand, it has been argued by Mr. M. B. L. Bhargava, learned counsel for the respondent, that the property of the partnership firm was quite different from that of its several partners and that as defendant Nihalchand had handed over the premises to the partnership firm by virtue of clauses 19 and 20 of partnership agreement Ex. 2 referred to above, the defendant undoubtedly created a sub-lease in favour of the partnership firm and ceased to have any possession thereof in his individual capacity. The learned counsel has therefore submitted that the defendant had transferred legal possession of the premises to the partnership firm and that his is not a case in which it could be said that the tenant had merely brought in some partners to carry on the business without transferring an interest in the lease hold property in their favour. The learned counsel has placed reliance on Tansukhdas Chhaganlal Vs. Smt. Shambhai (10) and Radha Kishan Vs. Dataram (11), to support his arguments. Now, a lease of immovable property has been defined in sec. 105 of the Transfer of Property Act, as the transfer of a right to enjoy the property made for a certain time, express or implied, or in perpetuity, in consideration of a premium or rent to be paid to the transferor by the transferee. On the other hand, a licence has been defined in sec. 52 of the Easements Act as a right which one person grants to another to do, or continue to do, in or upon the immoveable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property. It would thus appear that the cardinal distinction between a lease and a licence is that in a lease there is a transfer of interest in immoveable property, whereas this is not so in the case of a licence and the licencee acquires a mere right to use the property. The distinction between a lease and a licence has been lucidly brought out in the judgment of Subba Rao J. in the judgment of their Lordships of the Supreme Court in Associated Hotels of India Ltd. Vs. R. N. Kapoor (7) and it would be advantageous to reproduce the following extract from that judgment: " The following propositions may therefore, be taken as well-established: (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property of which the legal possession continues with the owner, it is a licence; and (4) if under the docu ment a party gets exclusive possession of the property, 'prima facie' he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. " It has therefore to be seen whether the arrangement envisaged in the partnership agreement in question could be said to be a lease according to the tests mentioned above. A perusal of the partnership agreement (Ex. 2) shows that the partners made elaborate provision for the partnership property, the shares of the partners, the management of the partnership firm, and then they made a provision, in clause 19 that although the premises in which the factory of the firm was in existence was on rent in the name of Nihalchand, who paid Rs. 30/- per mensem for it, those premises would be on rent with the firm with effect from Chet Sud 1, S. 2016 and that the firm shall pay the rental of Rs. 30/- per mensem thereafter. Therefore there is no conflict in the form and the substance of the document so far as the sublease is concerned. It is equally obvious that the intention of the parties was to create a sub-lease in favour of the partnership firm inasmuch as it was provided as follows under paragraph 19 and 20 of the partnership agreement, Ex. 2 (1) The premises shall be on rent with the partnership firm from Chet Sud 1, 2016 although they were on rent with defendant Nihal Chand earlier. (2) The firm would pay the monthly rental of Rs. 30/-for the premises with effect from Chet Sudi 1, Svt. 2016. (3) The partnership firm would not be liable to pay the rent for any earlier period and the responsibility for its payment would exclusively fall on Nihalchand. (4) On dissolution of the partnership, the premises would remain in the possession of Nihalchand. There can be little doubt therefore that the intention of the parties was to create a sub-lease in favour of the firm and not merely to give a licence for the use of the premises. It is also obvious from the above mentioned terms of the partnership agreement that the document created an interest in property in favour of the firm and did not leave its legal possession with Nihalchand inasmuch as such possession was exclusively transferred to the firm. It may be mentioned in this connection that there is a clear and well recognised distinction in law between the personal property of the individual partners and the property of the partnership firm. According to sec. 14 of the Partnership Act, subject to contract between the partners, the property of the firm included, inter alia all property and right and interest in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of the business of the firm. So it is open to the partners to agree as to what would be the property of the firm. As a workable rule, it may be said that all property, rights and interests which are thrown into the common stock at the commencement of the business, are regarded, prima facie as the property of the firm. If therefore defendant Nihalchand agreed to make over the lease of the ground floor, which undoubtedly was his property before the constitution of the partnership firm, to that firm, with effect from Chet Sud 1, Smt. 2016 that lease ceased to be his separate property and became the property of the firm, for there is nothing to prevent a partner from placing a lease which he has obtained for himself, in the common pool, as the property of the partnership firm. It must therefore be held that Nihalchand created an interest in the property in question in favour of the partnership firm and so the transfer amounted to a sub-lease and was not merely a licence. In Gundalapalli Rangamanner Chetty vs. Desu Rangiah (l), on which reliance has been placed by Mr. Agarwal, the lease-hold interest was not transferred to the partnership firm and the legal possession was also retained by the original tenant. That case cannot therefore be of any assistance for (he decision of the present controversy. So also, in Karsandas Ramji vs. Karsanji Kalyanji (2), the original tenant Karsandas had not parted with his interest in the premises and it was held that the agreement constituting the partnership did not amount either to sub-letting or to transfer of Karsandas's interests in the premises. That case cannot also be of any use to the appellant. The question then is whether it could be said that the partnership agreement gave exclusive possession of the property to the firm so as to make it a sublease in its favour according to the remaining test laid down in the above mentioned judgment of Subba Rao J. in Associated Hotels of India Ltd. vs. R. N. Kapoor (7), and in Faramroz M. Marolia vs. Dave Ravishanker Girdharilal (3), Sherif Dadumiyaji vs. Emperor (5) and Behari Lal vs. Chhote (6), cited by Mr. Agarwal. A reference to clauses 19 and 20 of the partnership agreement shows that the partnership was created for a period of five years and it was provided therein that the premises would be on rent with the firm, the firm would pay the rent of Rs. 30/- per mensem and the possession of Nihalchand would be restored only on the dissolution of the firm. There can be little doubt therefore that Nihalchand not only made over his interest in the lease-hold property in question to the partnership firm, but also agreed that he would cease to have his possession over it as long as the partnership continued to be in existence and the firm wold have exclusive possession instead. It is true that Nihalchand was the person who was primarily responsible for the management of the partnership business, but it cannot be said, for that reason, that his possession in that capacity should be considered as his possession on his own account, in an individual capacity. As has been mentioned, the lease of the premises having become the property of the firm by an agreement of Nihalchand himself, it ceased to be the personal property of Nihalchand. It should follow therefore that it was the firm which was in exclusive possession of the property on account of the sub-lease created by Nihalchand with effect from Chet Sud, S. 2016. In taking this view I should not be understood to say that the partnership firm is a legal entity in the sense of a corporation or a company incorporated under the Companies Act. That is not. But it is still an existing concern where business is done by the partners, in partnership, and it possesses its own property as envisaged in sec. 14 of the Partnership Act. Faramroz M. Marolia vs. Dave Revishanker Girdharilal (3) cited by Mr. Agarwal, no doubt lays down the test of exclusive possession for the purpose of deciding whether an instrument takes effect as a licence as a lease, but, apart from that, the judgment does not help the applicant inasmuch as it was not a case concerning a partnership, and as it was also found that the tenant had not retained any control or possession over the disputed premises, it was held to be a case of a lease and not of a mere licence. In Hiralal vs. Gian Singh (4), the partnership was not held to be proved and so that case cannot also help in resolving the point in controversy in the present case. Mr. Agarwal has however placed reliance on the observations of their Lordships of the Allahabad High Court in Radha Kishan vs. Data Ram (11) that the test of exclusive possession could not apply as "exclusive possession could not have been transferred because both the defendants had agreed to carry on cloth business in the shop in dispute and so defendant No. 2 had to be admitted to joint possession along with defendant No. 1". According to Mr. Agarwal, their Lordships should be deemed to have taken the view that there could be no exclusive possession in the case of partnership property and that as long as there is joint possession to which the original lessee is not excluded, the main test of exclusive possession could not be said to be fulfilled for the purpose of showing that the transfer amounted to a lease. I do not however find any force in this argument, for the observations of their Lordships of the Allahabad High Court were made in the facts and circumstances of the case. In that case the original tenant did not terminate his own interest in the lease and transfer it to the partnership firm. What had happened was that another person had been admitted to joint possession, in terms of the partnership agreement. Even so, their Lordships took the view that an interest had been created in favour of the in-coming partner, under the partnership agreement, by virtue of the stipulation that the premises would be deemed to be in the joint tenancy of both the partners from the date of the commencement of the partnership and so the arrangement was held to be a lease or a sub-lease and not a mere licence. This is the reason why Mr. Bhargave has, in his turn, also placed reliance on this case as mentioned earlier. In this way, the concurrent finding of both the courts below that defendant Nihalchand had created a sub-lease of a part of the premises without the plaintiff's permission, is correct, and there is nothing wrong if it has been decreed that he should be evicted from them. The appeal fails and is dismissed with costs. . ;