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Individual Partner Cannot Claim Eviction On Bonafide Need Ground For His Occupation Of Building Owned By Firm: Kerala HC [Read Judgment]

LIVELAW NEWS NETWORK
21 Oct 2019 5:40 AM GMT
Individual Partner Cannot Claim Eviction On Bonafide Need Ground For His Occupation Of Building Owned By Firm: Kerala HC [Read Judgment]

"Section 11(3) of the Act can be invoked by a firm only when the firm itself bonafide needs to occupy the tenanted premises."

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The Kerala High Court has held that an individual partner cannot claim eviction on the ground of bonafide need for his/her own occupation of the building owned by partnership firm.

The bench comprising Justice A. Hariprasad and Justice TV Anil Kumar also held that eviction petition filed by a partnership firm on the ground of bonafide need for the occupation of a legal heir of a partner, is not maintainable.

In Ameer vs. M/s .B.Amoo And Brothers, the court held that Section 11(3) of Kerala Buildings (Lease and Rent Control) Act, 1965 can be invoked by a firm only when the firm itself bonafide needs to occupy the tenanted premises.

The bench, in this regard, observed thus in the judgment delivered last week:

We have no hesitation to negative the claim by a firm, seeking eviction of a tenant from a building owned by the partnership firm, on the ground of bonafide need of an individual partner when his/her claim is that he/she wanted to occupy the building for personal use. We find it impossible to stretch the law under Section 11(3) of the Act to hold that occupation by such a partner will amount to own occupation by the landlord, as he/she individually cannot be regarded as the landlord as long as the building remains in the ownership of the firm. We have already mentioned the distinctions between a partner and a co-owner. Once we find that the building belongs to a firm, the rights and obligations of the partners are governed by the terms of the contract and in the absence of any provisions in the contract, they shall be guided by the Partnership Act. Finding that the building belongs to a partnership firm cuts at the root of the claim by an individual partner for own occupation since he/she ceases to be a landlord. In other words, no partner individually can claim to be a landlord when the firm owns the building. Hence, one partner cannot claim eviction on the ground of bonafide need for his/her own occupation of the building. Clear wording in Section 11(3) of the Act would show that a landlord alone can claim eviction on the ground of bonafide need of a building for his own occupation. Since the individual partner cannot be regarded as landlord in respect of a building owned by a firm, the provision does not apply in such a case. Corollary is that in such a situation Section 11(3) of the Act can be invoked by a firm only when the firm itself bonafide needs to occupy the tenanted premises.

The court reiterated that there is no legal impediment for one of the co-owners to file a petition for eviction of a tenant, if he does so without negating the rights of other co-owners and that the co-owner need not obtain prior consent of other co-owners for filing an eviction petition. Distinguishing the concept of partnership vis-a-vis co-ownership, the bench observed that the above principle which is applicable to co-owners cannot be applied in case of partners. It said:

Even if the respondents and others are tenants-in-common in respect of the property and building thereon, on formation of a partnership, they become assets of the unregistered partnership. Once co-owners decide to form a partnership by pooling their joint rights over the property and execute a deed of partnership, their rights will be subject to the contract between them. In that case, the legal incidents of co-ownership will be eclipsed as long as the partnership arrangement continued. 

Click here to Read/Download Judgment


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