1. The predecessor-in-interest of the defendants Nos. 1, 2 and 5 was the holder of a stall in the Hogg Market which is a municipal market
belonging to the Corporation of Calcutta and he used to run his shop therein. The plaintiff''s case is that being unable to run his business, the said
predecessor of the dependants Nos. 1, 2, and 5 (hereinafter ''defendants'' for short)"" decided to transfer the shop to the plaintiff for valuable
consideration"". But as the relevant Rules of the Corporation did not allow such transfer, the plaintiff was sought to be taken in as a partner by the
said predecessor. The plaintiff, however, asserts with utmost emphasis in his plaint and also in his deposition in Court that though apparently the
transaction was given the shape and the color of a partnership and a Deed of Partnership was also executed, in reality the transaction was an out
and out transfer and "" was intended for transferring the license and the business"" In the plaint, the plaintiff has referred to the terms of the Deed of
Partnership in great details asserting repeatedly that the transaction in reality amounted to a transfer under the garb of a partnership and has gone to
such a length as to state that ""the Partnership Deed was created only to hoodwink the Rule debarring transfer.
2. The case of defendants, however, is that the transaction entered into by their predecessor with the plaintiff was a partnership pure and simple
and that the partnership has, on the death of the predecessor, automatically come to an end by operation of law and they have accordingly
approached the Corporation so that the stall and the business may exclusively be restored to them. Hence this suit by the plaintiff of a declaration
that "" the business and possession of the shop"" stood ""duly transferred in favor of plaintiff'', ""than the plaintiff is the rightful occupier of the suit-
shop-room"" and that '' the plaintiff is entitled to have his name mutated alone as a sole occupier, in the alternative, as joint-occupiers with the
defendants nos. 1,2 and 5 in the records of the Corporation of Calcutta"" and for other incidental and consequential relief''s.
3. We are afraid that if the purpose of the plaintiff was and is, as stated by him in paragraph 6 of the plaint, ""to hoodwink the Rules debarring
transfer"", he has chosen the most inappropriate place in coming to the court which exists to uphold the laws and the rules and not to help a person
to hoodwink or circumvent them. The learned trial Judge has dismissed the suit and for the reasons to be indicated hereunder, which are, however,
different from those adopted by the learned judge, we have no doubt that he was perfectly right in throwing the suit out.
4. As already noted, the disputed stall is in the Municipal Market belonging to the Corporation of Calcutta. Under S. 449(1) of the Calcutta
Municipal Act, 1951, which contained the relevant law at the material time, ""no person shall, without a license from the Commissioner sell or
expose for sale any animal, article or thing whatsoever in any municipal market"". Now if a person having a license for a stall in a Municipal Market
transfers the stall and/or the business carried on therein, and the transferee proceeds to carry on business in such stall, the transferee would then be
doing so "" without a license"" in his favor in that behalf within the meaning of s. 449(1) OF the Calcutta Municipal Act, 1951 and the license in the
name of his transfer or can not in any way help him to come out of the mischief of S. 449(1) prohibiting business in a Municipal stall except by a
licensed stallholder. Such a transfer, therefore, enabling the transferee to carry on business without a license in a Municipal stall would have for its
object something which is forbidden by S 449(1) and the transaction would also be such as would defeat the provisions of that S 449(1). The
transaction would, therefore, squarely come within the mischief of S. 23 of the Contract Act and would be void there under. The plaintiff in his
plaint and also in his deposition has made it expressly clear that he proceeded to purchase the shop from the predecessor of the defendants even
though he found on enquiry that he would not be able to get the license for the stall transferred to him. That makes it cresol clear that the whole
object of the plaintiff was to carry on business in that Municipal stall under the cover of he license of his transferor and thus to carry on business
without a license"" in his favor in clear violation of s 449(1) of the Calcutta Municipal Act The object thus being, as already noted, something which
was forbidden by law and the transaction being of a nature which if permitted, would defeat the provisions of law, no court can assist the plaintiff in
achieving this object and lend any countenance to any such transaction.
5. As already noted, the case of the plaintiff is that as the intended transfer of the stall would not have been permissible under the law, the
transaction, though intended to be a sale, was shaped as and was given the color of a partnership. As also already note, the case of the defendants
is that the transaction was intended to be and was also in effect a partnership pure and simple. The terms of the Deed of Partnership, Ext E, make
it abundantly clear that the plaintiff was sought to be admitted not as ampere financing partner only to share the profits of the business, but was also
to carry on the business himself. The Deed of Partnership, Ext. E, would show that the plaintiff was ""to regularly attend the business,"" ""to take steps
to stop anything which will undermine or prove harmful to the business"", ""to look after the outgoing of he said business and meet all establishment
charges as well as Income Tax and Sales Tax demands"", ""to be in charge of the accounts"", ""to meet all liabilities of the said business"", while the
predecessor of the defendants was to receive only Rs. 300/- ""by way of fixed profit in lieu of his share"" but not to ""bear any loss, if there be any, of
more than Rs. 100/- in any one year
6. As already note, S. 499(1) of the Calcutta Municipal Act prohibits carrying on business in a Municipal stall without a license. Now if a licensee
of a stall admits a partner and the arrangement is such that the unlicensed partner by himself or through their licensed partner or otherwise, carries
on business in that stall, then the unlicensed partner would be carrying on business in that stall, then the unlicensed partner would be carrying on
business in a Municipal stall ""without a license"" within the meaning of S 449(1) of the Calcutta Municipal stall ""without a license"" within the meaning
of S 449(1) of the Calcutta Municipal stall ""without a license"" within the meaning of S 449(1) of the Calcutta Municipal Act. Such a partnership
would also, therefore, have as its object something forbidden by S 449(1) o the Calcutta Municipal Act and would be of a nature, which, if
permitted, would defeat the provisions of that Section, and would, therefore, be void under S 23 of the Contract Act.
7. Our view would find full support from the Full Bench decision of the Madras High Court in Velu Padayachi V Sivasoorirm (AIR 1950 Mad 4)
In that case, S. 15 of the Madrs Abkari Act prohibited vending of arrack without a license and it was held (at 447) that in view of such prohibition
the purpose of S. 5 would be defeated if under the license granted there under to one person to vend arrack, another person, whom he had
admitted as a partner, could also vend arrack without any license in his favor. It was pointed out (at 449) that the very purpose of S. 15 prohibiting
vending of arrack without a license would stand frustrated under such partnership as in that case the unlicenced partner by himself or through his
agent, the licensed partner, would nevertheless be selling arrack without license It is true that in a single-Judge decision of the Bombay High Court
in Champsey Dossa v. Gordhandas (AIR 1917 Bom 250), a partnership entered into by a licensee under the Bombay Salt Act was held to be
lawful even though the licensee was prohibited from transferring his privilege under the license and his decision was approved by the P) rive
Council in Gordhandas v. Champsey Doss (AIR 1921 PC 137) The Privy Council, however, simply affirmed the Bombay decision without any
discussion at all on any question of fact or law But as it would appear from the Bombay judgment, the licensee in that case admitted some
members of his family only to share the profits of the business, but those partners were given no part at all in the business of manufacture of salt and
therefore, the unlicensed partners were not doing anything for which a license under the Bombay Act was necessary.
8. Licenses granted to the predecessor of the defendants under S. 449(1) of he Calcutta Municipal Act have been proved as Ext. I series and it
has been urged that under the express terms and conditions of he license transfer and partnership in respect of the stall are permissible with the
sanction of the Corporation and that such sanction was obtained in this case Condition no. 2 printed at he back of such licenses runs thus:-
That no stall-holder shall sub-let the use of stall or any portion thereof or transfer his title interests or any portion of interest in the business
conducted in he stall or admit or discharge any partner in he business without special sanction being first obtained from the Corporation in that
behalf"".
9. Now if S. 449(1) prohibits carrying on business in any Municipal Market without a license, it may be difficult to understand as to how any
condition in any such license can permit any transfer or partnership in respect of such a stall or the business carried on therein which would enable
a transferee or a partner of he licensee to carry on the business in such stall without a licence in his favour under S. 449(1). If S 449(1) forbids, as
it expressly does, carrying on business in a stall, unless the person carrying on the business has a licence under that Section, then it may be difficult
to conceive how even a formal permission of he Corporation under Condition No. 2, sanctioning transfer or partnership in respect of a business
carried on in a stall, unless the transferee or the partner has also become a licensee or a co-licensee in respect of such stall. But this question need
not detain us here as even assuming that a special sanction as envisaged in Condition No. 2 would enable a licensee to transfer his business or
admit a partner therein there is absolutely no satisfactory evidence on record to show that any such sanction was ever obtained form or accorded
by the Corporation in respect of the transaction entered into by predecessor of the defendants with the plaintiff To prove such special sanction he
only piece of evidence to which our attention has been drawn is Ext. 2 which reads thus:-
TO WHOM IT CONCERNS
Certified that the recorded occupier of Stall No (old) 48 S. S. Hogg Market, as per the Regd. Deed of Partnership dated 11th August, 1967 has
taken Sri Rasamoy Chowdhury as partner in the stall. The Deed of Partnership has been certified by our Ch. Law Officer on 7 12 67 to be in
order. The daily rent of the Stall is Rs 2/- and the sanctioned business of he stall is suit-case, steel trunks, hand bags and traveling requisites.
This Deptt has got no objection if necessary licence is issued in the name of the partner Sri Rasamay Chowdhury.
Sd/- Illegible 12.3.68
Offg Head Clerk
S S Hogg Market
Corporation of Calcutta
10. Obviously this was not a sanction by the Corporation and it was at most a recommendation of the officiating Head Clerk that the proposed
partnership might be allowed and that the licence might be issued in the name of the plaintiff, the proposed partner. If ""necessary licence"" as
suggested in Ext. 2, was issued in the name of the plaintiff there would have been no question of any violation of S 449(1) of the Calcutta
Municipal Act. It is also obvious that if such sanction, as prayed for, was really granted by the Corporation, the licences in respect of the stall
would have been issued in the name of he plaintiff either alone or along with the predecessor of the defendants. But no such licence has been
shown to have been issued under S. 449(1) and the licences exhibited in this case, Ext. 1 series, are in the name of the said predecessor alone. It is
true that one licence in Ext. 1 series appears to be jointly in the names of the plaintiff and the said predecessor of the defendants. But that was a
mere Trade Licence under Ss. 218 and 219 of the Calcutta Municipal Act which are granted to all persons carrying on any trade, profession or
calling anywhere within Corporation and has got nothing to do with carrying on business in a Municipal stall and the licence specifically required
therefore under S. 449(1) produced in this case show only the predecessor of the defendants to be the sole licensee.
11. In our view, therefore, there was no merit in the suit, nor any merit in this appeal arising thereform and the learned trial judge was right in
dismissing the suit. We accordingly dismiss the appeal with costs.
Sukumar Chakravarty, J.
12. I agree