Read Judgement: Davesh Nagalya (d) & Ors v. Pradeep Kumar (d) Thr. Lrs. And Ors
New Delhi, August 11, 2021: The Supreme Court has ruled that after the death of both partners and in the absence of any clause permitting continuation of the partnership by the legal heirs, the non-residential tenanted premises is deemed to be vacant in law as the tenant is deemed to have ceased to occupy the building.
While reiterating that partnership stands dissolved by death of a partner in terms of Section 42(c) of the Partnership Act, 1932 a Division Bench of Justice Hemant Gupta and Justice A.S. Bopanna observed that the tenant is deemed to cease to occupy the premises in question and consequently, the tenanted property has fallen vacant as well.
The case pertains to an application, filed by Pradeep Kumar (successor-in-interest of tenant Tika Ram) before the Court of Rent Control and Eviction Officer, Dehradun, the District Magistrate, averring inclusion of Subhash Chand in the proposed business of sale of milk, which was opposed by the landlord.
It was argued by the landlord that Subhash Chand was a sub-tenant and hence Pradeep Kumar had put such person in possession of the shop who was not a member of their family and thus the property would be deemed to be vacant u/s 12(2) of the Act.
However, the District Magistrate permitted Subhash Chand to be inducted as a partner. Thereafter, remaining unsuccessful before the District Judge as well as the High Court, the appellant filed an application for review before the High Court on the ground that pursuant to the death of the tenant, Pradeep Kumar i.e., one of the partners of the firm, the partnership does not survive in view of Section 42(c) of the Partnership Act.
The counsel for the appellant argued that in terms of Section 42(c), the partnership stands dissolved by law and there is no clause in the partnership deed which permits the legal heirs of the deceased partners to continue with the partnership firm.
The review application was also dismissed which came to be challenged in the present appeal contending that the High Court had failed to take into consideration death of one of the partners leading to deemed vacation of the premises.
After considering all facts and averments, the Apex Court found that the order of permitting Subhash Chand as partner with Pradeep Kumar has come to an end by efflux of time and operation of law.
“In terms of Section 42(c) of the Partnership Act, partnership stands dissolved by death of a partner. The High Court has not taken note of such fact in the review petition and failed to take into consideration the subsequent events which were germane to the controversy. Subhash Chand, the other partner also died during the pendency of appeal,” observed the Bench.
Therefore, with the death of both partners and not having any clause permitting continuation of the partnership by the legal heirs, the non-residential tenanted premises is deemed to be vacant in law as the tenant is deemed to have ceased to occupy the building, added Justice Gupta.
The Top Court thus set aside the order passed by the High Court in Review Application and directed the appellants to take recourse to remedy as may be available to them and may proceed in accordance with law and the provisions of the Act.