' On the conclusion of the hearing of this case "LI , had by a short order allowed the appeal but without costs as Mr. Abdul Matin had not claimed costs. The reasons for such order presently fellow.
2. Muhammad Yousaf, the predecessor-in-interest of the appellants was 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 and style of Muhammad Yousuf & Sons. The premises in question are owned by the respondents. On 29-7-1970, 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 it was also averred that Muhammad Yousuf & Sons wanted to shift to some other place after giving the premises to some other person and for that reason the said Muhammad Yousuf & Sons had requested the respondents to change the tenancy but such request was declined as the respondents wanted to establish a Rent Collector's Office in the said premises. Although the above averment seems to point to eviction being sought even on 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 properly worded in the application. For the purpose of convenience I shall hereinafter refer to the appellants as the tenants and the respondents as the landlords.
3. 1 he tenants filed a written statement in which it was stated that the array of parties was incorrect as Muhammad Yousaf & Sons is in fact a 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 not 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 the 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 and 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 & Co. Under the deed of partnership dated 7th September 1977. The partnership is in the two names (1) Muhammad Yusuf and (2) Ahmed Noor. Both the partners have admitted seven grand children of Muhammad Yousuf s/o 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 and Muhammad Yousuf are the only persons to share the same for the said firm. The applicants were fully aware of this position and a copy of the partnership and income-tax assessm ent for the said firm were given to the landlord. The copy of the assessment order of Messrs Muhammad Yousuf & Sons and Messrs S. A. Wahab & Co. Were given to the landlord in which it was clearly mentioned that Muhammad Yousuf was the proprietor of the said concern, and 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 Ameen & Co. Was dissolved on 28-1-1965 and that the tenancy rights never fall in its pool of the said newly-formed 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 consent 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 on 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 given to landlords making a grievance about their refusing to accept rent directly. The tenant had also produced some rent receipts. In addition he produced a photostat copy of the partnership deed dated 7-9-1966, constituting the new firm Messrs S. Muhammad Amin & Co. And he also produced the deed of dissolution of this firm dated 31-12-1970.
Additionally, Muhammad Yousuf produced a copy of the assessment order passed by the Income- tax Officer Sub-Division, Karachi, to show that he besides being the owner of the firm Muhammad Yousaf & Sons was also a partner of Messrs S. Muhammad Amin & Co., 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 IIIrd 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 & Co. 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 devolved on tenant Muhammad Yousuf who was his father and the 7 minor children. It is then the case of the tenant that on 7-9-66, he and Ahmed Noor formed a partnership and admitted the minor children of Muhammad Amin to the benefits of the partnership business. The tenants Muhammad Yousuf together with his new partner Ahmed Noor started business in the disputed premises in the name of S. Muhammad Amin & Co., on such premises, the caser 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 passages 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 a' 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 tenement 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 rights 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. Reads as follows :- "5. That the business place of the dissolved firm shall be returned back 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 Mohammad Yousaf.
' 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 & Co. 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 in a premises located in Juna Mansion, Marriot, 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 & Co, 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 re-constitution."
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 & Co. 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 Yusuf and whether tenant Muhammad Yusuf 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 Yusuf was a partner of S. Muhammad Amin & Co. Both these documents also state that the right of tenancy had been reserved in savor of tenant Muhammad Yusuf and had never entered into the pool of assets of the new partnership firm. Additionally, the assessm ent order passed by the Income-tax Officer also shows that tenant Muhammad Yusuf was a partner in the new firm bearing the name of S. Muhammad Amin & Co. 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 evidence 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 to dispute were occupied by the constituents of the new firm, Muhammad Amin & Co. 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 film, 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. 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. Clake (2) and the case of Gyan Sing & Co. v. Deveraj Nahar and others (3) propounded the principle that mere use of premises by 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 {{FOOT NOTE}}
(1) PLD 1968 Kar. 657 (2) (1953) 1 A E R 779
(3) (1965) 1 All E L R 768 (4) PLD 1973 Kar. 522 {{FOOT NOTE}} ' 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 Ishaque 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 being occupied by Messrs S. Muhammad Amin & Co. Would not show that the tenants had parted with their possession. On the other hand, the partnership deed, the dissolution deed and the order of assessment clearly indicate that tenant Muhammad Yusuf 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 formation of the firm of S. Muhammad Amin & Co. 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 grandchildren 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.