Friday, 25 October 2019

Whether Individual Partner Can Claim Eviction On Bonafide Need Ground For His Occupation Of Building Owned By Partnership Firm?

 We have no hesitation to negative the claim by a firm,
seeking eviction of a tenant from a building owned by the partnership

firm, on the ground of bonafide need of an individual partner when
his/her claim is that he/she wanted to occupy the building for personal
use. We find it impossible to stretch the law under Section 11(3) of the
Act to hold that occupation by such a partner will amount to own
occupation by the landlord, as he/she individually cannot be regarded
as the landlord as long as the building remains in the ownership of the
firm. We have already mentioned the distinctions between a partner
and a co-owner. Once we find that the building belongs to a firm, the
rights and obligations of the partners are governed by the terms of the
contract and in the absence of any provisions in the contract, they shall
be guided by the Partnership Act. Finding that the building belongs to a
partnership firm cuts at the root of the claim by an individual partner for
own occupation since he/she ceases to be a landlord. In other words,
no partner individually can claim to be a landlord when the firm owns
the building. Hence, one partner cannot claim eviction on the ground of
bonafide need for his/her own occupation of the building. Clear wording
in Section 11(3) of the Act would show that a landlord alone can claim
eviction on the ground of bonafide need of a building for his own
occupation. Since the individual partner cannot be regarded as landlord
in respect of a building owned by a firm, the provision does not apply in
such a case. Corollary is that in such a situation Section 11(3) of the
Act can be invoked by a firm only when the firm itself bonafide needs to

occupy the tenanted premises. 

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
 MR. JUSTICE A.HARIPRASAD
&
 MR.JUSTICE T.V.ANILKUMAR

RCRev. No.228 OF 2018

AMEER, MAMMUNHI HAJI,  Vs M/S.B.AMOO AND BROTHERS,

Dated this the 15th day of October, 2019
COMMON ORDER

Hariprasad, J.
In the captioned cases, common respondents figure in the
party array. 1st respondent is an unregistered partnership firm
represented by its managing partners. Managing partners of the 1st
respondent firm are arrayed as respondents 2 and 3 individually too.
They together filed two eviction petitions, against two tenants occupying
two separate rooms in a larger building, claimed to be belonging to the
1st respondent partnership firm, on the ground that the tenants kept rent
in arrears and also the respondents bonafide needed vacant
possession of the rooms to fulfill the requirement of two partners, by
invoking Sections 11(2) and 11(3) of the Kerala Buildings (Lease and
Rent Control) Act, 1965 (in short, "the Act"). Revision petitioners are the
tenants who lost in the Rent Control Court as well as in the Appellate
Authority where bonafide need was concurrently found in favour of the
respondents. It is submitted by the learned counsel for the revision

petitioners that the eviction orders in both cases under Section 11(2)(b)
of the Act, for keeping rent in arrears, were vacated by invoking Section
11(2)(c) by depositing the quantified arrears of rent. In both these
revisions, therefore, the ground of eviction surviving for consideration is
under Section 11(3) of the Act.
2. It is to be noticed that bonafide need set up for eviction of
the tenant in R.C.P.No.21 of 2015 before the Rent Control Court,
Kasargod is for own occupation of Smt.Hajira, who is said to be a
sleeping partner in the unregistered firm, for starting a tailoring shop.
Tenant has disputed bonafides of the need by contending that
averments in the petition are machinations to unjustly evict him. Against
the concurrent findings in the above Rent Control Petition,
R.C.R.No.228 of 2018 has been filed.
3. Respondents claimed eviction in R.C.P.No.17 of 2016
against another tenant under the aforementioned ground contending
that they require the building for bonafide occupation of Smt.Jameela,
who allegedly is a partner of the firm, for starting a fancy articles store.
It is pointed out by the learned counsel for the revision petitioners that
from the evidence adduced in the case, it has been revealed that
Jameela was not a partner of the firm, but a legal heir of a deceased
partner. Here also the tenant disputed genuineness of the bonafide
need contending that it is only a stratagem to send him out of the

tenanted premises without any lawful reason.
4. The revision petitioners not only disputed bonafides of the
need set up in the eviction petitions, but contended that they are
entitled to get the protection of the second proviso to Section 11(3) of
the Act. After considering the evidence, the courts below granted
eviction repelling the contentions of the revision petitioners.
5. Heard Sri.C.R.Syam Kumar, learned counsel for the
revision petitioners and Sri.Jawahar Jose, learned counsel for the
respondents.
6. In both cases, the revision petitioners challenge
correctness of the eviction order under Section 11(3) of the Act
contending that the courts below erred seriously in assessing bonafides
of the need put forward by the respondents. Apart from that, the
revision petitioner in R.C.R.No.228 of 2018 urged a contention that
when the landlord is a partnership firm, individual need of a partner,
especially that of a sleeping partner, to start an independent business
will not come within the ambit of bonafide need under Section 11(3) of
the Act. It is also contended that the courts below ought to have
appreciated the fact that Section 11(3) of the Act would apply only if the
premises are needed for the business of the firm. Yet another
contention is that the expressions “own occupation” or “for occupation
of any member of the family dependent on him” under Section 11(3) of

the Act will not embrace a claim to use the building by one of the
partners for his or her exclusive or individual purpose.
7. In R.C.R.No.83 of 2019, apart from the challenge against
the finding of bonafide need by the courts below, a question is raised
whether eviction under Section 11(3) of the Act can be granted in
respect of a building owned by a partnership firm, if bonafide need
urged is for a person who is not a partner of the firm.
8. Learned counsel for the respondents attempted to shape
up a contention that Ext.A5 partnership deed produced and marked in
R.C.P.No.21 of 2015 (which is exhibited as Ext.A9 in R.C.P.No.17 of
2016) would clearly reveal that immovable property; viz., the building
and appurtenant land, has not been made the asset of the firm.
According to him, Ext.A5 is only a partnership for collection and division
of the rent accrued from the building. It is also contended that the
building and land belong to respondents 2 and 3 and other co-owners
as tenants-in-common. As per the terms in Ext.A5 partnership deed,
the building and immovable property were not brought to the common
stock. Reliance is placed on Clause 4 in the partnership deed to
contend that capital assets of the parties are the amounts standing to
their credit in the books of accounts as on 21st day of February, 2000.
9. One glaring fact is that Ext.A5 partnership deed is a
reconstitution deed. The recitals therein would show that the parties 
to 3 to Ext.A5 were carrying on a business along with B.Amoo Haji in
the name and style of “B.Amoo & Bros., Prop: Hotel Airlines, Bank
Road, Kasargode” as per the terms and conditions embodied in a deed
of partnership dated 01.04.1992. It is also seen that B.Amoo Haji
expired on 20.02.2000 and therefore, Ext.A5 partnership deed was
executed for reconstituting the partnership by admitting his legal heirs
as partners. It is pertinent to note that the original deed of partnership
executed on 01.04.1992 has not been produced by the respondents. In
the absence of the original partnership deed, which operated during the
life time of B.Amoo Haji, it may not be possible to find out what are the
assets that had been brought to the common stock. We find no
tangible explanation from the side of the respondents for not producing
this document.
10. Respondents' contention that the building and immovable
property are not assets of the firm and only the rent collected therefrom
could be taken as the asset of the firm is stoutly denied by the revision
petitioners. Strikingly, the respondents raise such a contention for the
first time in these revision petitions. According to Mr.Syam Kumar, this
newly developed argument will go against the pleadings in the eviction
petitions and also the evidence adduced by the managing partner of the
firm in both the cases.
11. Our attention has been drawn to the averments in

R.C.P.No.21 of 2015, wherein it has been clearly mentioned in
paragraph 3 that the petition A schedule building is one of the
shoprooms in the building complex under the name and style “Hotel
Airlines, Bank Road, Kasaragod”. It is also averred that the partnership
firm (1st respondent) is the owner of the building. Further, respondents 2
and 3 are the managing partners. Besides, it is pleaded that the firm,
who is the owner of the building, is an unregistered entity. True, it is
mentioned in the petition that respondents 2 and 3 are co-owners of the
building and eviction petition has been filed on behalf of all the partners
of the firm.
12. On a perusal of the eviction petition in R.C.P.No.17 of
2016, we find exactly the same pleadings in paragraph 3, emphatically
stating that the 1st respondent partnership firm is the owner of the
building. In the teeth of this definite pleadings, we find no merit in the
argument raised by the learned counsel that the building was not
brought in as an asset of the firm as per Ext.A5. On the contrary, the
entire pleadings are to the effect that the firm is the owner of the
building.
13. 3rd respondent testified in both the cases as PW1. In the
proof affidavit filed by PW1 in lieu of his chief examination, he has
expressly stated that the 1st respondent, the partnership firm, is the
owner of the building. This also pins him down to an undeniable fact

that the shop rooms in dispute are owned by the partnership firm.
Therefore, we reject the argument raised by the learned counsel for the
respondents that Ext.A5 is a partnership deed executed only for sharing
profit and loss in respect of the rent collected from the building.
14. Although the 1st respondent is an unregistered firm, its right
to file an eviction petition under Section 11(3) of the Act cannot be
disputed. Learned counsel for the revision petitioners fairly conceded
that law declared by the Supreme Court in Haldiram Bhujiawala v.
Anand Kumar Deepak Kumar ((2000) 3 SCC 250), which was
followed by a Division Bench of this Court in Dungarsi Ranchhodas v.
Mooliji Visanji (2004(2) KLT 524) would clearly establish that Section
69(2) of the Partnership Act, 1932 cannot bar the enforcement of a
statutory right, by way of an eviction petition, by an unregistered firm.
Indisputably, an eviction petition under Section 11 of the Act is one to
enforce a statutory right, which is not controlled by any other law or
contract.
15. As stated above, in the eviction petition, it is seen
mentioned that respondents 2 and 3 are co-owners of the building. It is
further contended that all the partners are co-owners of the building, in
which the tenanted premises are also included. On this basis, learned
counsel contended that respondents 2 and 3, who are co-owners, are
entitled to seek eviction on behalf of other co-owners. Generally

speaking, there is no legal impediment for one of the co-owners to file a
petition for eviction of a tenant, if he does so without negating the rights
of other co-owners. It is also an unchallengeable proposition that the
petitioner-co-owner need not obtain prior consent of other co-owners
for filing an eviction petition (see Mohinder Prasad Jain v. Manohar
Lal Jain ((2006) 2 SCC 724) and Kasthuri Radhakrishnan and
others v. M.Chinniyan and another ((2016) 3 SCC 296).
16. But, this legal principle cannot be applied to these cases
for the reason that we have already seen that the buildings belong to
the 1st respondent firm. Principle that one out of other co-owners is
entitled to maintain a petition for eviction under the Act is grounded on
the legal reality that each co-owner can be presumed to be the absolute
owner of the building for the purpose of eviction of a tenant, as long as
he does not negate the rights of other co-owners. If the respondents 2
and 3 had initiated the eviction petitions on the ground that they are coowners,
and not as partners of a firm, then, probably the argument
would have been appealing. But, in this case, having specifically
pleaded and deposed before the court that the building belongs to a
partnership firm, they cannot raise such a contention at this stage.
17. For completion of the discussion, we may refer to Section
14 of the Partnership Act, 1932. It reads as follows:
“The property of the firm.- Subject to contract
between the partners, the property of the firm includes all

property and rights 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, and includes also the
goodwill of the business.
Unless the contrary intention appears, property and
rights and interests in property acquired with money
belonging to the firm are deemed to have been acquired for
the firm.”
This Section describes, subject to the contract between the partners, as
to what are the property of a partnership firm. Property and interests in
property, originally brought into the stock of the firm or acquired, by
purchase or otherwise, by or for the firm, or for the purpose and in the
course of business of the firm, constitute the property of the
partnership. As stated above, pleadings and evidence in these cases
emphatically show that the whole building has become the property of
the firm as envisaged in Section 14 of the Partnership Act. Withholding
the original deed of partnership dated 01.04.1992 is a circumstance
against the respondents on which adverse inference can be drawn.
18. Lucid expositions in Lindley on the “Law of Partnership”
tell us how a partnership property could be distinguished from a joint
property (see 15th Edition, paged 79-80). Characteristic features of coownership
and partnership compared, which are relevant in the Indian
context, are extracted hereunder:

“..........Speaking generally, and excluding all
exceptional cases, the principal differences between coownership
and partnership may be stated as follows :
1. Co-ownership is not necessarily the result of
agreement. Partnership is.
2. Co-ownership does not necessarily involve
community of profit or of loss. Partnership does.
3. One co-owner can, without the consent of the
others, transfer his interest, or in the case of land his
equitable interest, to a stranger, so as to put him in the
same position as regards the other owners as the
transferor himself was before the transfer, except that in
the case of a transfer by a joint tenant the stranger will
become a tenant in common, or in the case of land a
tenant in common in equity with the other owners. A
partner is in a much more restricted position.
4. One co-owner is not as such the agent, real or
implied, of the others. A partner is – so far as concerns
activities falling within the scope of the partnership.
5. One co-owner has no lien on the thing owned in
common for outlays or expenses, nor for what may be
due from the others as their share of a common debt. A

partner has.”
On understanding the salient features distinguishing a co-ownership
and a partnership in the above lines, it has to be found in these cases
that even if the respondents and others are tenants-in-common in
respect of the property and building thereon, on formation of a
partnership, they become assets of the unregistered partnership. Once
co-owners decide to form a partnership by pooling their joint rights over
the property and execute a deed of partnership, their rights will be
subject to the contract between them. In that case, the legal incidents
of co-ownership will be eclipsed as long as the partnership
arrangement continued. Therefore, these aspects also render the case
of the respondents unacceptable.
19. We shall now take up the crucial question to be decided in
these cases regarding the acceptability of the bonafide need set up by
the respondents. In order to understand the scope and legal effect of
Section 11(3) of the Act, excluding the provisos thereto, we shall extract
the provision:
“A landlord may apply to the Rent Control Court for
an order directing the tenant to put the landlord in
possession of the building if he bona fide needs the
building for his own occupation or for the occupation by any
member of his family dependent on him”

A dissection of the above provision will show that the following legal
components are to be established by a landlord against a tenant to
claim eviction under the provision. Firstly, his need should be bonafide.
Authentic, genuine, real, true, actual, sound, legal, legitimate, valid,
unadulterated, etc. are the dictionary meanings of the word “bonafide”.
It has been well settled by pronouncements that a mere desire or wish
evinced by a landlord would not amount to bonafide need. Landlord
must prove that he genuinely requires the accommodation for his own
use or for occupation of any member of his family dependent on him.
In other words, bonafide need must be an outcome of a sincere and
honest desire in contradistinction with a mere pretext for evicting a
tenant. Since decisions are galore on the point, we do not deem it
necessary to enlist them. We only intend to make it clear that bonafide
need being a state of mind, a landlord must place all the materials
before the court to assess the genuineness and truthfulness of his
claim for eviction.
20. After establishing the bonafides of his claim, the landlord
has to convincingly show that the building is required for his own
occupation or for occupation of any member of his family dependent on
him. The expression “own occupation” poses no difficulty to
understand. It is settled by judicial pronouncements that a landlord can
claim eviction under Section 11(3) of the Act for occupying the building

as such, with or without any modification, or for demolishing it for
constructing a new building in its place or keeping the site vacant for
other purposes, like to provide an access, extension of an existing
adjacent building, etc. In this context, it is to be remembered that a
landlord seeking eviction under Section 11(3) of the Act for demolition
of the structure in existence and for construction of a building for his
own use or for occupation of any member of his family dependent on
him must be distinguished from a claim for eviction on the ground of
reconstruction, where the tenant could claim a first option for occupying
a portion of the reconstructed building. The pleadings in each case will
determine the nature of the claim for eviction.
21. Regarding the claim by a landlord for evicting a tenant
under Section 11(3) of the Act for occupation of any member of his
family dependent on him, following aspects will have to be established
by him. Initially, as stated above, bonafides of the need has to be
established. Thereafter, it must be shown that the person on whose
behalf eviction is sought is a member of his family dependent on him.
In a catena of decisions it has been held that the term “dependent” not
only takes in financial dependency, but other forms of dependency as
well. For example, a son or daughter, who unquestionably is a family
member of the landlord, who may not be financially dependent on him,
still could be a dependent on the landlord for the purpose of starting a

new venture in the tenanted premises, provided he has no other place
to start the intended business venture. It is quite natural because of the
proximity of the relationship between them, he would look up to the
landlord for a help. It is also to be seen that the expressions “for the
occupation of any member of his family dependent on him” would apply
only to living persons/natural persons and not to juristic persons, other
legal entities and association of persons.
22. What is important at this juncture is to understand the
relationship between the partners in a firm. Section 4 of the Partnership
Act defines “partnership” as the relationship between persons who have
agreed to share the profits of a business carried on by all or any of
them acting for all. In Dulichand v. I.T.Commissioner (AIR 1956 SC
354) it has been held that our partnership law is based on the English
law and we have also adopted the notions of English lawyers as
regards partnership firm. Further, it is held thus:
“.......... The general concept of partnership, firmly
established in both the English and Indian systems of law,
still is that a firm is not an entity or 'person' in law but is
merely an association of individuals and a firm name is
only a collective name of those individuals who constitute
the firm. In other words, a firm name is merely an
expression, only a compendious mode of designating the

persons who have agreed to carry on the business in
partnership. ….....”
Long line of decisions show that Indian law has not given a legal
personality to a firm apart from the partners. One of the contentions
raised in R.C.R.No.228 of 2018 is that the person on whose behalf the
bonafide need is set up, viz.,Smt.Hajira, is a sleeping partner. This
expression is not defined in the Partnership Act. In English law, the
expression “dormant partner” is used interchangeably for “sleeping
partner”. Pullock and Mulla on the Indian Partnership Act (7th edition,
page 49) makes the following observations:
“A sleeping partner is nevertheless a partner, even
when he only 'sleeps'. Sometimes partners are
absolutely inactive or deliberately choose to be inactive,
for instance, is some cases where a partner is a
government servant or person with similar status who is,
by service rules, prohibited from engaging in any trade or
business.”
If a partner could seek eviction of a tenant from a building owned by a
partnership firm, whether such partner is a sleeping partner or not
makes no difference in the legal parlance.
23. We have no hesitation to negative the claim by a firm,
seeking eviction of a tenant from a building owned by the partnership

firm, on the ground of bonafide need of an individual partner when
his/her claim is that he/she wanted to occupy the building for personal
use. We find it impossible to stretch the law under Section 11(3) of the
Act to hold that occupation by such a partner will amount to own
occupation by the landlord, as he/she individually cannot be regarded
as the landlord as long as the building remains in the ownership of the
firm. We have already mentioned the distinctions between a partner
and a co-owner. Once we find that the building belongs to a firm, the
rights and obligations of the partners are governed by the terms of the
contract and in the absence of any provisions in the contract, they shall
be guided by the Partnership Act. Finding that the building belongs to a
partnership firm cuts at the root of the claim by an individual partner for
own occupation since he/she ceases to be a landlord. In other words,
no partner individually can claim to be a landlord when the firm owns
the building. Hence, one partner cannot claim eviction on the ground of
bonafide need for his/her own occupation of the building. Clear wording
in Section 11(3) of the Act would show that a landlord alone can claim
eviction on the ground of bonafide need of a building for his own
occupation. Since the individual partner cannot be regarded as landlord
in respect of a building owned by a firm, the provision does not apply in
such a case. Corollary is that in such a situation Section 11(3) of the
Act can be invoked by a firm only when the firm itself bonafide needs to

occupy the tenanted premises. So, we affirmatively decide that the
claim in R.C.P.No.21 of 2015 raised by the respondents is
unsustainable in law, even if it is established that Smt.Hajira is a partner
of the 1st respondent firm.
24. There cannot be any doubt that the second portion of
Section 11(3) of the Act, viz., eviction on the ground of bonafide need
for the occupation of any member of landlord's family dependent on
him, does not arise at all in this case. Therefore, we have no hesitation
to hold that the order of eviction passed by the authorities below on the
ground of bonafide need for the occupation of a partner in R.C.P.No.21
of 2015, which was confirmed in appeal is unsustainable in law. In the
absence of establishing bonafide need, the question of considering the
provisos to Section 11(3) of the Act does not arise at all.
25. Claim by the respondents in R.C.P.No.17 of 2016 is still
worse. It has come out in evidence that the person on whose behalf
eviction is sought under Section 11(3) of the Act, viz., Smt.Jameela, is
not a partner of the firm. It has been proved that she is only a legal heir
of a deceased partner. Above mentioned logic squarely applies to the
situation in R.C.P.No.17 of 2016 where we have no difficulty in finding
that the eviction petition filed by a partnership firm on the ground of
bonafide need for the occupation of a legal heir of a partner cannot fit in
either in the expression “own occupation” or “for the occupation of any

member of landlord's family dependent on him”.
26. For the aforementioned reasons, we find that the order of
eviction passed under Section 11(3) of the Act in both the cases are
legally incorrect and unsustainable.
In the result, revision petitions are allowed. Orders of
eviction under Section 11(3) of the Act passed concurrently by the Rent
Control Court and Appellate Authority are set aside. Eviction petitions
are dismissed.
All pending interlocutory applications will stand closed.
A.HARIPRASAD,
JUDGE.
T.V.ANILKUMAR,
JUDGE.

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