@JUDGMENTTAG-ORDER
Murlidher Rao, J.-These revision petitions are filed by tenants, under Section 115 C.P.C. challenging the orders of eviction passed by Principal Munsiff, Mangalore, in HRC 123 to 129/1970, dt. 31-10-1981, confirmed by the District Judge, D.K., Mangalore, in CRP No. 25/1982 and 36 of 41/1982, in his order dated 15th April 1981. The eviction petitions were filed by the owners under clause (h) of Section 21(1) of the Karnataka Rent Control Act, save, in CRP 2395/1983 and 2479/1983, where it is claimed under (j) also.
2. The schedule premises is owned by partnership firm called M.V. Kamath & Co,. The registered firm consisted of two partners viz., M.V. Kamath and Sundari Bai. The firm was running transport business and at one point of time it had seven lorries. The office of the firm is located in a rented building, belonging to Atoor Vasudeva Prabhu. The godown for loading and unloading is in a rented premises of Srimath Ananteshwar Temple. M.V. Kamath, one of the partners was residing in a rented premises belonging to H. Manjunath Nayak and Sundari Bai was also residing in rented premises.
3. Both the courts have summarised the pleadings and dealt with the evidence; it is unnecessary to repeat it. Suffice it to extract the findings of the courts below, thus:
I. Door No. 11-456, subject matter of HRC 123/70 i.e. CRP 2395/83, is required, bona fide and reasonably, for locating the office of the partnership business.
II. Door Nos. 11-457, 11-458, 11-459 are required for personal use and occupation of the landlord i.e. M.V. Kamath and for demolition and reconstruction.
III. Door Nos. 11-460, 11-461 and 11-462 are required for personal use and occupation of Sundari Bai.
IV. Greater hardship will be caused the landlords if the eviction is not ordered.
The findings being concurrent, there is no ground to interfere with them.
4. While these revision petitions were pending, Sundari Bai died on 17th June 1988. This has given rise to certain legal contentions. Mr. Mohandas Hegde for the tenants-petitioners urged the following points:
1) As the partnership consisted of only two partners, with the death of Sundari Bai. the partnership gets dissolved, therefore, the cause does not survive and all the eviction petitions are liable to be dismissed.
2) In CRP 2478, 2482 and 3191/ 1983, arising out of eviction petitions HRC 128, 127 and 129/70 respectively, the cause pleaded was personal to Sundari Bai and with her death the cause pleaded extinguishes.
5. Mr. K.R.D. Karanth appearing for the landlords relied on the affidavit of M. Radhakrishna Nayak and contended that the death of Sundari Bai does not affect the eviction orders, passed by the two courts nor does it affect the cause.
6. To assess this legal aspect, it is necessary to narrate the relevant facts giving rise to this aspect.
7. The original partnership consisting of M.V. Kamath and Sundari Bai is evidenced by a partnership deed dated 1st April 1959. The partnership business is stated thus:
"2. The partnership business shall be that of buying and selling of cutlery goods, hardware, enamelware, glassware, etc., and shall be carried on at Mangalore besides at such place or places or shall be of such nature as the partners may from time to time agree upon."
Para 10, thereof reads thus:
"10. The relationship of the parties shall in all other respects be governed by the Indian Partnership Act, save and except that on the death or demise of the parties hereto, the firm shall not be dissolved but shall continue to be carried on by the surviving partner and the heirs or legal representatives of the deceased partner under such terms and conditions as may be agreed upon between the parties. It is hereby further agreed that for the purposes of this partnership business. Radhakrishna Nayak, son of the second partner shall be her legal representative." (emphasis supplied)
During her last days M. Sundari Bai executed a Will on 2nd April 1988; the relevant portion of that Will for our purpose reads thus:
"I hereby bequeath my assets and income accrued to the assets received by me from the said assets from M.V. Kamath and Co. noted in the above para to my Grandson M. Girish Nayak, S/o my son M. Radhakrishna Nayak."
8. As mentioned above, Sundari Bai died on 17th June 1988 On 1st July 1988, a new partnership firm was constituted with M.V. Kamath-(previous partner) and M. Radhakrishna Nayak son of Sundari Bai as partners; it is agreed between the partners that:
1) The partnership shall be deemed to have come into force w.e.f. 18-6-88 (i.e. one day after the death of Sundari Bai)
2) Business shall be carried or. in the name end style of "M/s. M.V Kamath & Co." (same as the previous firm)
3) Para 6 thereof reads thus:
"All the assets, book debts, stock-in-trade, tools and equipments, furniture and fixtures trade-name and trade-licences, benefits and contracts or any other assets or rights as disclosed by the books of accounts of the erstwhile concern of M/s. M.V. Kamath & Co., as on 17-6-1988 shall be taken over as the assets of this reconstituted partnership as a Going concern; Likewise ail the liabilities of the erstwhile firm of M/s. M.V. Kamath & Co., as on 17-6-1988 shall be taken over as the liabilities of this reconstituted partnership as a Going concern."
9. Mr. K.R.D. Karanth submitted that the 1st partnership firm is succeeded by the 2nd firm, from its very next day and new firm has taken over the assess and liabilities of the old firm; the apprehended consequence as urged by tenants-petitioners, has no basis, further legally the orders of eviction enure to the benefit of partners in the new firm. He submitted M. Radhakrishna became a new partner in his own right; as desired by Sundari Bai in her Will, Master Girish Nayak is admitted to the benefits of partnership and he is not liable for losses and he is given the option to elect to become a partner or renounce his right within six months after he attains majority.
10. To appreciate these rival contentions, it is necessary to know partners right in the partnership property, the effect of death of one partner, where the partnership consists of two partners only, consequences of death of partner on the estate in the hands of her heirs and lastly the consequences of death, on the eviction order, challenged in these petitions.
11.Partners right in the partnership property:
The property of the firm is the property of all the partners; no partner has exclusive interest in any part thereof. In Narayanappa v Bhaskara Krishnappa
(AIR 1966 SC 1300), it was held thus:
"The provisions of Sections 14, 15, 29, 32, 37, 38 and 48 make it clear that whatever may be the character of the property which is brought in by the partners when the partnership is formed or which may be acquired in the course of the business of the partnership it becomes the property of the firm and what a partner is entitled to is his share of profits, if any, accruing to the partnership from the realisation of this property, and upon dissolution of the partnership to a share in the money representing the value of the property. No doubt, since a firm has no legal existence, the partnership property will vest in all the partners and in that sense every partner has an interest in the property of the partnership. During the subsistence of the partnership, however, no partner can deal with any portion of the property as his own. Nor can he assign his interest in a specific item of the partnership property to anyone........"
At paragraph 5 of the judgment, it is stated thus:
"The whole concept of partnership is to embark upon a joint venture and for that purpose to bring in as capital money or even property including immovable property. Once that is done whatever is brought in would cease to be the exclusive property of the person who brought it in. It would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the pint venture of the business of partnership. The person who brought it in would therefore, not be able to claim or exercise any exclusive right over any property which he has brought in, much less over any other partnership property. He would not be able to exercise his right even to the extent of his share in the business of the partnership............"
12. A special Bench of Allahabad High Court in Board of Revenue v Auto Sales (AIR 1979 Allahabad 312) held that "A partner of a firm is in the same position as a co-owner of joint property in relation to other co-owners."
The interest being common, no partner can pinpoint or carve out a particular item or portion of the property and claim exclusive right. It is because of this all the eviction cases are initiated by the firm M/s. M.V. Kamath end Co., In this decision it is further held that on retirement of a partner there is no transfer of interest either from the side of retiring partner in favour of the continuing partners or from the side of continuing partners in favour of the retiring partner. Therefore it follows, that the property continues to belong to the partnership, till the accounts are settled, the property of the firm is applied for debts and liabilities of the firm and the surplus is divided among the partners or representatives according to their rights.
13.Death of partner and its effect;-
Clause (c) of Section 42, Partnership Act provides the circumstances or situations where the dissolution of the firm takes place. Of course this is subject to the contract between the parties. In cases where there are only two partners, the dissolution is automatic and is a matter of course, because an individual cannot constitute a partnership firm. The learned counsel relied on Commissioner of Income-tax v G.S. Mills (AIR 1966 S.C. 24), wherein it is observed thus:
"Section 42(c) of the Partnership Act can appropriately be applied to a partnership where there are more than two partners. It one of them dies, the firm is dissolved, but if there is a contract to the contrary, the surviving partners will continue the firm On the other hand, if one of the two partners of a firm dies, the firm automatically comes to an end and, thereafter there is no partnership for a third party to be introduced therein and, therefore, there is no scope for applying cl. (c) of S. 42 to such a situation. It may be that pursuant to the wishes or the directions of the deceased partner the surviving partner may enter into a new partnership with the heir of the deceased partner, but that would constitute a new partnership. In this light S. 31 of the Partnership Act falls in line with S. 42 thereof. That section only recognizes the validity of a contract between the partners to introduce a third party without the consent of all the existing partners: it presupposes the subsistence of a partnership: it does not apply to a partnership of two partners which is dissolved by the death of one of them, for in that event there is no partnership at all for any new partner to be inducted into it without the consent of others". (emphasis added)
In the above judgment the Supreme Court has approved the law laid down in AIR 1959 Madras 283, which is followed by this Court in Joint Motor Service Company & others v Srinivasarao Bhimarao Jorapur and others (1862 Supp Mys. L.J. 3&5). The relevant portion reads thus:
"But, where after the death of the old partner his heirs or representatives along with the other partners continue the old partnership business with the old partnership assets, they do so with the same rights and liabilities as before with this difference merely that in place of the old partner his heirsor representatives were substituted. Even under the new partnership the rights and liabilities of the new partners will be taken to be, as if the partner''s death had created no gap in the partnership or in other words that they were liable on the accounts being taken from the commencement of the old partnership or from the date of the last accounting as the case may be." (emphasis added).
14. Mr. Mohandas Hegde placed reliance on Mt. Sughra v Babu (AIR 1952 Allahabad 506) which ruling is alio approved by Supreme Court in AIR 1966 SC 25; it is observed thus:
"Even though, however, in our view a new partnership was created on the the death of Abdul Shakoor, the right to have the accounts taken from the commencement of the old partnership is not affected. As already observed, after the death of Abdul Shakoor the major heirs along with Wali Mohammad continued the old partnership business with the old partnership assets with the same rights and liabilities as before with this difference merely that in place of Abdul Shakoor his heirs were substituted, the major heirs became the partners and the minor heirs became entitled to the benefits of the partnership. In these circumstances an agreement between the parties must be implied that rights and liabilities of the new partners will be taken to be as if Abdul Shakoor''s death had created no dissolution in the partnership or in other words that they were liable on the accounts being taken from the commencement of the old partnership or from the date of the last accounting, as the came may be. This view is supported by authority". (emphasis added)
15. Examined in the light of these rulings, though Sundari Bai''s death has resulted in dissolution of the firm, nevertheless, with the constitution of the new firm, as evidenced by the deed dated 1st July 1988, there is no gap The new firm came into existence on 18-6-1988 The dissolution of the firm, in these circumstances, will not extinguish proprietary interest of the partners in the firm In this view of the matter, it is not possible to say that partnership having been dissolved, the relief of eviction does not survive.
16. Explaining the word "landlord" in Karnataka Rent Control Act Mr. KASU, has observed thus in J.S. Karole v G.C. Angolkat. 1987(1) Mr. L.J. 271: (ILR 1986 Kant. 1859):
"....The definition of the word ''landlord'' is so wide that it includes any person not being a tenant who from time to time derives title under a landlord. Thus, the definition includes all those persons who derive title from the original landlord. Thus, it covers all those persons who are successors-in-interests to or transferees of interest from the original landlord. Right to seek possession of the property is a right which goes with the property...." (emphasis supplied)
17. It follows that newly constituted firm consisting of M.V. Kamath and Radhakrishna Nayak, succeeded to the assets and liabilities of the old firm and they can execute the eviction order; contention to the contrary is rejected.
18. It was contended that cause pleaded by Sundari Bai was personal to her and with her death the said cause does not survive and the successors-in-interest must plead and establish their need being bona fide and reasonable. In the petition the cause is pleaded thus:
"The petitioner submits that one of their partners viz., Srimathi Sundari Bai is not residing in a building of her own and she desires to repair, renovate and remodel the entire building of which the premises leased out to the opponent and more fully described in the Schedule here below forms a part. After doing so she desires to occupy the whole building for herself and her family."
19. In view of this pleading, it cannot be said it is her personal need, exclusively. The words her family are not redundant.
20. For the aforesaid reasons, these petitions fail; all the petitions are dismissed. No costs.
21. The time granted by the learned District Judge has expired in August 1983; petitioners are continued in possession by virtue of the stay orders issued by this court. Proceedings are initiated in 1970. as it is eighteen years have elapsed. Interest of justice would be met if time to vacate, once and for all, is granted lo each petitioner till 31st May 1989, subject to payment of rent regularly as and when it accrues. If the tenant commits a single default, the landlord shall be entitled to execute the eviction order.
Petitions dismissed.
