' On the conclusion of the hearing of this case I had by a short order owed the appeal but without costs as Mr. Abdul Matin had not claimed sts. The reasons for such order presently follow.
2. Muhammad Yousuf, the predecessor-in-interest of the appellants as a tenant in respect of tenement No, 17 located in Marvi building Murad Khan Road, Karachi. He used to carry on business in the name d style of Muhammad Yousuf & Sons. The premises in question are owned by the respondents. On 29-7-1979 the respondents filed an application for eviction of Muhammad Yousuf & Sons from the tenement in question on the ground of subletting. In paragraph 2 of the application was also averred that Muhammad Yusuf & Sons wanted to shift to me other place after giving the premises to some other person and for at reason the said Muhammad Yousuf & Sons had requested the respondents to change the tenancy but such request was declined as the contents wanted to establish a rent collector's office in the said premises. Although, the above averment seems to point to eviction being sought even n the ground of personal need Mr. A. K. M.
Idris appearing for the respondents has stated that the ground of personal need has not been overly worded in the application. For the purpose of convenience I shall ereinafter refer to the appellants as the tenants and the respondents as the ndlords.
3. The tenants filed a written statement in which it was stated that the array of parties was incorrect as Muhammad Yousuf & Sons is in fact proprietary concern owned only by Muhammad Yousuf. It was stated that the tenants had been in occupation since 1947 and the landlords had wanted to increase the rent which he was prepared to pay so that the landlords had refused to accept the rent which however, was tendered by money orders. The tenant also denied that he had approached the landlord for changing the receipt in the name of person to whom according to the landlord the tenant wanted to transfer the premises. The allegation of subletting was denied and in that context it will be profitable to reproduce the paragraph 3 of the written statement which reads as follows :- "(3) That the contents of para. 5 of the application are incorrect an the same are denied. The allegation of subletting is cooked up.> The story of transfer of possession is also cooked up and the same is denied. Muhammad Yousuf son of Sh. Abdul Wahab the sole proprietor of Messrs Muhammad Yousuf & Sons started partnership business in a newly constituted name of S. Muhammad Amin & Company under the deed of partnership dated 7th September, 1977. The partnership is in the two names (1) Muhammad Yousuf and (2 Ahmed Noor. Both the partners have admitted seven grand children of Muhammad Yousuf son of Sh. Abdul Wahab in the said partnership business. The said grand children are minors and they are only entitled in the profit of the firm and in losses Ahmed Noor an Muhammad Yousuf are the only persons to share the same for the said firm. The applicants were fully aware of this position and copy of the partnership and income-tax assessm ent for the said fir were given to the landlord. The copy of the assessment order o Messrs Muhammad Yousuf & Sons and Messrs S. A. Wahab Company were given to the landlord in which it was clearly mentione that Muhammad Yousuf was the proprietor of the said concern, a in that assessm ent order the assessment of the firm of S. Muhammad Amin & Co., was already mentioned."
4. It was further stated in the written statement that the newly formed firm of S. Muhammad Amin & Company was dissolved on 22-1-196 and that the tenancy rights never fall in the pool of the said newly form firm.
5. The Civil Judge and Controller who tried the case framed the following two issues :-
(1) Whether the opponents have sublet the premises without the conse of the applicants ?
(2) To what relief if any the applicants are entitled ?
6. It would be seen that no issue was framed on the point of the landlord requiring the premises for his bona fide personal use.
7. On behalf of the landlord, Mansoor Ali tendered evidence and behalf of the tenant Muhammad Yousuf entered the witness-box. Muhammad Yousuf had in his evidence produced a copy of the notice that he had give to the landlords making a grievance about their refusing to accept re directly. The tenant had also produced some rent receipts. In addition produced a photostat copy of the partnership deed dated 7-9-1966 constitutin the new firm Messrs S. Muhammad Amin & Company and he also produce the deed of dissolution of this firm dated 31-12-1970. Additional Muhammad Yousuf produced a copy of the assessment order passed by the Income-tax Officer 'D'
Division, Karachi, to show that he besides being the owner of the firm Muhammad Yousuf & Sons was also a partner of Messrs S. Muhammad Amin & Company, newly formed firm.
8. The XIIth Civil Judge and Rent Controller, Karachi, by his judgment dated 13-9-1973 ordered eviction of the tenants and an appeal filed by the tenants was also dismissed by the lIlrd Additional District Judge, Karachi. Aggrieved by the concurrent orders the tenants have filed the present second appeal.
9. The short question in this case is whether Muhammad Yousuf had sublet the premises in question in favour of S. Muhammad Amin & Company. Mr. Abdul Matin, appearing for the appellants states before me that Muhammad Amin was a son of tenant Muhammad Yousuf, and he was carrying on business independently of his father, but in partnership with one Ahmed Noor.
The said Muhammad Amin died in January, 1966, so that the partnership with Ahmed Noor was dissolved. Muhammad Amin left seven minor children as his heirs, one of whom was a son and the remaining six were daughters. On the death of Muhammad Amin his estate developed on tenant Muhammad Yousuf who was his father and the 7 minor children. It is then the case of the tenant that on 7-9-1966, he and Ahmed Noor formed a partnership and admitted a minor children of Muhammad Amin to the benefits of the partnership business. The tenant Muhammad Yousuf together with his new partner Ahmed Noor started business in the disputed premises, in the name of S. Muhammad Amin & Company. On such premises, the case of the tenants is that it was not a case of subletting but entering into partnership without putting the tenancy rights in respect of the disputed premises in the partnership pool. Mr. Abdul Matin has pointed out the following passage appearing in the partnership deed :- "Whereas the partner No. 1 is in sole possession of tenement No, 17 Marvi Building (Postal 228/8)
Murad Khan, First Floor, Off Marriot Road Karachi and he is the tenant of the said premises paying regular rent since 1947/48, and ' That at the time of dissolution of the partnership business of the firm and after making payment of the debts and other outstanding of the firm all the assets shall be divided amongst all the partners including the minors according to their respective shares including the goodwill of the firm. The business premises lent by partner No. 1 the firm namely Tenant No, 17 Marvi Building, M. R. 2/48 (Postal 228/8) Murad Khan Road, First Floor Off Marriot Road, Karachi, shall go back to the partner No. 1 and no other partner shall have any tenancy right in the said tenement."
' Mr. Abdul Matin has also pointed out paragraph in the deed of dissolution of partnership dated 31- 12-1970 and the said para. As follows "(5) That the business place of the dissolved firm shall be returned to partner No. 1 who provided the said premises for starting the business of the dissolved firm."
10. In addition, Mr. Abdul Matin relied on the evidence of tenant Muhammad Yousuf.
' In that context the application under section 13 of the West Pakistan Urban Rent Restriction Ordinance clearly states that the cause of action was grounded on the fact that the premises in question had been sublet to Messrs S. Muhammad Amin & Company and possession had also been transferred to them. It was further averred that the signboard on the disputed premises had been replaced with a new signboard showing the name of the new firm. It was also averred that Telephone No, 235069 which was initially installed in a premises located in Juna Mansion, Marriot Road, Karachi, had been installed in the premises in dispute. Mansoor Ali, who appeared as a witness on behalf of the landlords had deposed that he had seen the signboard of S. Muhammad Amin & Company on the premises and he further stated that he had made enquiries from the persons occupying the premises in dispute and they had stated that the premises were in their possession since a long time and that they had earlier been carrying on business in Juna Mansion.
On that point tenant Muhammad Yousuf had deposed about the constitution of the new firm in which he was a partner and he also stated and produced documents to show that the premises in dispute had continued to remain in his possession and the tenancy had not passed into the pool of assets of the new partnership firm.
11. The Additional District Judge did not doubt the character of the partnership deed and the deed of dissolution but he expressed his suspicions in regard to the genuineness of the transactions relating to the constitution of the new partnership firm or its dissolution. In that context he stated as follows :- "Partnership firms are private associations and they can be dissolved and reformed for all sorts of ulterior motives and I need not go in the details about the dissolution of the firm of the appellants and its reconstitution."
12. Mr. A. K. M. Idris also urged before me that these documents are prepared for the purposes of this case. The trial Civil Judge and the Controller also did not dispute the genuineness of these documents but he was of the view that tenant Muhammad Yousuf should not be believed in the matter of formation or dissolution of new firm.
13. On the point of a new firm having been constituted even the Courts below found that a firm bearing the name of S. Muhammad Amin & Company did actually exist. In fact, they have expressed the view that it was this firm which was occupying the premises in dispute. The question that then arises is whether the constituents of this firm did not include tenant Muhammad Yousuf and whether tenent Mohammad Yousuf had surrendered the possession of the premises in dispute to strangers. On that point the two documents, namely, the deed of partnership and the deed of dissolution are very material. In regard to the existence of such documents there could be no manner of doubt. These documents further state that tenant Muhammad Yousuf was a partner of S. Muhammad Amin & Company. Both these documents also state that the right of tenancy had been reserved in favour of tenant Muhammad Yousuf and had never entered into the pool of assets of the new partnership firm. Additionally, the assessment order passed by the Income-tax Officer also shows that tenant Muhammad Yousuf was a partner in the new firm bearing the name of S. Muhammad Amin & Company. In rebuttal the only evidence has been furnished by Mansoor Ali, a co-owner of the building in question. This witness has attempted to make out a case that he had made enquiries from the occupants of the premises who had replied that they were in possession since long ago. This statement is clearly inadmissible as it is hit by the rule of hearsay.
The mere fact of the telephone originally standing in the name of the firm of which Muhammad Amin, the deceased son of tenant Muhammad Yousuf, was a partner would in no manner affect the existence tendered on behalf of the tenants because it would seem that on the death of Muhammad Amin the telephone in question was shifted to the premises in dispute. This is a circumstance that also lends additional credence to the defence set up by the tenants. I am also not at all impressed with the reasons advanced by the Additional District Judge to the effect that such deeds of partnership and dissolution could not be relied upon. One has to see that these documents in any case tend to show that the premises in dispute were occupied by the constituents of the new firm. S. Muhammad Amin & Company. In that event such documents were likely to be interpreted to the detriment of the tenants and it is therefore, unreasonable to assume that these documents must as of necessity be dubbed as spurious documents. On such grounds, I believe the defence that has been set up by the tenants.
14. Section 14 of the Partnership Act reads as follows :- "14. 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 purpose 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."
15. In the case of Khuda Bux v. Syed Badrul Hassan (1), similar question arose. In that case there was no written partnership agreement. The learned Judge relying on the case of Miles v. Clarke (2) add the case of Gyan Singh & Company v. Devraj Nagar and (others (3) propounded the principle that mere use of premises by a partnership firm would not ipso facto lead to the inference that such premises fall in the pool of partnership assets. In the case of Malik Muhammad Ishaq v. Messrs Erose Theatre (4), a similar question arose and Mr. Justice Dorab Patel who delivered the judgment on behalf of the Division Bench stated that because of the legal title in partnership property being found in the partners, this fact would not make them the joint owners of any immovable property belonging to the firm. The principle involved is that the mere fact of the use of immovable property by a partnership firm is no guarantee for the correctness of an inference that the property belongs to partnership firm. No doubt, the facts in the case of Malik Muhammad Ishaq were different.
16. Applying the above principle to the case in hand I find that a mixed question of law and fact would call for determination. In law, the mere fact of the premises of being occupied by Messrs S. Muhammad Amin & Company would not show that the tenants had parted with their possession.
On the other hand, the partnership deed, the dissolution deed the order of assessment clearly indicate that tenant Muhammad Yousuf had a strong and subsisting interest in the tenancy rights relating to the premises in dispute. He had formed a new partnership and the tenancy rights had been kept reserved for his benefit in spite of the partnership firm carrying on business in the disputed premises. This would not amount to parting with possession as to invite the penal consequences on the ground of subletting. On the other hand, it is not difficult to see the reasons which may have led to the {{FOOT NOTE}}
(1) PLD 1968 Kar. 657 (2) (1963) 1 A E R 779 0(1965)1 A E L R 768 (4) PLD 1973 Kar. 522 {{FOOT NOTE}} formation of the firm of S. Muhammad Amin & Company. The name of the son of tenant Muhammad Yousuf was Muhammad Amin who had died leaving 7 infants as orphans. He must be genuinely interested in protecting the interests of his orphan grand-children and for such reason he may have entered into that partnership deed to protect such interest.
17. For all these above reasons I allow this appeal and set aside the orders that have been impugned. Since Mr. Abdul Matin has not claimed costs there shall be no order for the same.