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Judgment
Mohan, J.—This revision has been preferred by the landlord under the following circumstances : He filed H.R.C. 3118 of 1979 seeking
eviction of the respondent tenant on the ground of bona fide requirement for own occupation for non-residential purposes, as contemplated under
S. 10(3)(a)(iii) of the Tamil Nadu Act 18 of 1960, hereinafter referred to us the Act. In the petition it was averred as follows in paragraph 4�
The petitioner further states that he is carrying on a business under the name and style of Thillai Nataraja Industries in a rented house at premises
No. 6, Sesyalamman Koil St., Chintadripet, Madras 2. The petitioner is not having a building of his own to carry on his own business. The rented
building is not convenient to improve his business. Further, the owners of the rented building want the same for the purpose of demolition and
reconstruction. The petitioner is not having any other house of his own to carry on the business in the city of Madras except the building under the
occupation of the respondent.
It should be noted at this stage that the petitioner is a minor represented by his father as guardian. This important fact looms large, as will be seen
below. The contention of the tenant inter alia was that the need was not bona fide. During the course of evidence it was brought out that a
partnership deed, Ex. P12, was entered into on 6th May, 1978 and the petition for eviction itself came to be filed on 27th September, 1979. The
case during the course of the evidence was, the minor had been admitted into the partnership and the property belonging to the minor is sought for
purposes of the partnership business.
The Rent Controller was of the view that the bona fide need had been made out and accordingly ordered eviction.
On appeal, the Appellate Authority went into the question as to the definition of member of landlord''s family as contained under S. 2(6A) of the
Act. According to him the requirement by a minor for the purpose of his father''s business as a member of his family cannot fall within the scope of
S. 10(3)(a)(iii) of the Act. Consequently, he vacated the order of eviction and allowed the appeal. Thus, the revision.
The learned Advocate General contends that where the partnership itself runs the business, of which the minor is a partner, certainly after the
execution of Ex. P12, for purposes of the partnership business the premises could he sought. I put a straight question to the learned Advocate-
General whether the minor could represent the partnership ? Because, it is well settled, as seen from S. 30 of the Partnership Act, that a minor by
himself cannot be a partner. He can only be admitted to a partnership. Very fairly he cites before me the decision reported in M. Ar. Rm. P.M.
Chidambaram Chettiar Vs. The National City Bank of New York, , and invites my attention to the following passage at pages 708 and 709�
The first question is : Does the procedure prescribed by O. 30 in regard to suits against firms in the firm name apply ? In the first place, it is
impossible to regard the minors as constituting a partnership firm. In the Partnership Act, 1932 ''partnership'' is described as the relation between
persons who have agreed to share the profits of a business (S. 4). The next section goes on to say that the relation of partnership arises from
contract and not from status. It follows that a minor who is incapable of contracting, cannot be a partner. Further, it is incomprehensible that four
persons, who were all minors, can agree with each other to form a partnership. Then, turning to S. 30, it enacts that a minor can never be a
partner, although ''he may be admitted to the benefits of the partnership.'' Under the section, the adult partners, by a contract between themselves,
can agree to confer this benefit upon a minor; in other words, the relation of partnership is the result of contract and where any benefit is reserved
to a minor, that arises not from a contract with the minor but between the adult partners. From this the necessary inference is, that there must be at
least two adult partners who are capable of contracting, before a minor is entitled to the benefits of partnership. The language of S. 30 is perfectly
clear and it expressly enacts that even where some benefit is reserved to a minor, he is not a partner, the only partners composing the firm being
the adult members. If therefore a suit is brought, under the procedure laid down in Or. 30 against a partnership firm where a minor has been
admitted to some kind of benefit, to such a suit the minor can in no sense be regarded as a party. Or.21 R. 50, C.P.C., provides that where a
decree has been passed against any property of the partnership, the reason for making the partnership property liable is not that the minor has been
sued but that under the law the partnership property is liable for the debts of the firm. As Lord Herschell, L.C. observed in Levell v. Beauchamal
1894 A.C. 607, the adult partner is however entitled to insist that the partnership assets shall be applied in payment of the liabilities of the
partnership and that until these are provided for, no part of it shall be received by the infant partner.
In English law, there is nothing to prevent an infant becoming a partner, but even there it has been held in the case just cited, that when a suit is
brought against a firm under Or. 48(a) (corresponding to Or. 80 of our Code), the judgment to be passed should be against the firm other than the
minor partner ; but that cannot affect execution against the partnership property ; see also Haris v. Beauchaman Brothers 1893 2 Q.B. 534. For
the position, that under the Indian Law a decree, against a partnership firm, cannot be regarded as a decree against the minor who had been
admitted to some benefit, it is unnecessary to rely upon the decision, already mentioned, of the House of Lords ; for S. 30 Partnership Act places
the matter beyond doubt. We may in this connection also mention that ''under the Code, as under the English law, when a decree has been
obtained against a firm in the firm name, execution may be levied against the partnership property, notwithstanding the fact that a minor possesses
some interest. It is unnecessary to pursue this matter, as Mr. Rajah Iyer, the respondent''s learned counsel, urges that the suit should be regarded
as in effect having been brought under R. 10 of Or. 30. The whole of the order is a reproduction, almost verbatim of the rules comprised in Or. 48
(a) of the English Rules. R. 10 of O. 30 is modelled on Or.48(a), R. 11, the corresponding English provision. That rule applies, it has been held in
England, to a single individual who carries on business under an assumed or trading name. (The Annual Practice, 1936 page 891), St. Gobain
Chauny and Givey Co. v. Hoverman''s Agency 1893-2-Q.B. 96 , and Melver v. G and J Burnai 1895 2 Ch. 630. R.10 of Or. 30 stands in
marked contrast with R.1. The latter rule applies to ''any two or more persons'' whereas R.10 refers to ''any person carrying on business''. There is
no reason to depart from the view taken in the English cases and we must hold that R.10 is applicable only to the case of a single individual. In this
case, the so called assumed name is said to be the name of the business owned by the four minors and the rule is, in our opinion, utterly
inapplicable. It is further open to doubt whether the rule can apply to a minor at all, when what is alleged is that the business is carried on his behalf
by a guardian. The rule contemplates ''any person carrying on business'' and as we have said, it is doubtful whether a minor alleged to be trading
through his guardian answers this description.
The above extract clearly shows that a petition cannot be maintained at the instance of a minor, who has no legal capacity to represent the
partnership. I should say by and large it is the over anxiety of the landlord which had brought woe upon him. The reason is, nothing prevented the
parties to to go on with the pleadings as contended, as though the minor was doing the business. That was actually what was averred, to which I
have made a reference earlier. But suddenly that case was given a go by and Ex.P12 was introduced and evidence was adduced by the father
appearing on behalf of the petitioner that the partnership needs the premises. That being so, the petition for eviction cannot be maintained at the
instance of the partnership by a minor. Therefore, on this very simple ground, without going into the other contentions, the civil revision petition is
dismissed. No costs.
The learned Advocate General states that very soon the revision petitioner is likely attain majority in which event he should not be precluded by
the dismissal of this civil revision petition. This will be so. As and when he attains majority and if he makes out a case of need for the partnership,
then the matter will be decided on merits uninfluenced by the judgment in this civil revision petition. As regards the other question, namely, whether
a valid renewal of Ex.P11 had taken place or not, that is a matter which has to be decided in separate proceedings. Any observation made herein
it only for the purpose of rent control proceedings and that cannot be binding in other proceedings if and when they come to be taken Therefore, to
this extent, the finding is vacated and the same can be traversed in separate proceedings.