SHASHI KAPILA versus R.P.ASHWIN

Citation: [2001] SUPP. 5 S.C.R. 217 · Decided: 08-11-2001 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Disposed off

Judgment (excerpt)

SHASHI KAPILA 
v. 
R.P.ASHWIN 
NOVEMBER 8, 2001 
[K.T. THOMAS AND S.N. VARIAVA, JJ.] 
Transfer of Property Act, 1882 : 
Section 53-A-Eviction-Eviction petition-Bona fide requirement-
Landlord entered into an agreement for sale of suit premises with a partnership 
firm of which the tenant was a partner-Subsequently, landlord resisted the suit 
for specific peiformance of the agreement-Held, if the landlord himself wanted 
his rights in the suit premises to be alienated, the bona fide need of the landlord 
can get eclipsed. But in this case the need of the landlord for occupying the suit 
premises arose long after the date of agreement-The landlord, therefore, 
cannot be pre-empted from evicting the tenant on the ground that he was willing 
to sell the suit premises-Hence the tenant cannot lay any claim on the strength 
of Section 53-A-Rent and Eviction-Karnataka Rent Control Act, 1961-S. 
21(1 ). 
Indian Partnership Act, 1932 : 
Eviction-Eviction petition-Bona fide requirement-Tenant inducted 
into suit premises even before formation of partnership firm-Such tenancy 
rights not thrown into the hotchpots of firm-Held, in such a situation the 
tenancy right of the tenant is a right available to the tenant individually over 
which the partnership has no claim. 
The respondent-landlord applied for an order of eviction of the 
appellant-tenant under Section 21(1) of the Kamataka Rent Control Act 
on the ground of bona fide need of the suit premises for the respondent's 
own occupation. The trial court allowed the application. The High Court 
dismissed the appeal filed by the respondent. Hence this appeal. 
On behalf of the appellant it was contended that the respondent had 
entered into an agreement with a firm of which the appellant was one of 
the partners' to sell the suit premises and, therefore, the appellant could 
lawfully resist the eviction on the strength of Section 53-A of the Transfer 
of Property Act, 1872; and that the said agreement was enough to nullify 
217 
A 
B 
c 
D 
E 
F 
G 
H 
218 
SUPREME COURT REPORTS 
[2001] SUPP. 5 S.C.R. 
A 
the bona jides or the claim of the respondent that he required the suit 
premises for his own occupation. 
Dismissing the appeal, the Court 
HELD : 1. Section 53-A of the Transrer or Property Act, 1882 applies 
B 
to a person who contracts to transrer immovable property in writing. H the 
proposed transferee in the agreement has taken possession of the property, 
or he continues in possession thereof being already in possession, in part 
performance of the contract and has done done some act in rurtherance of 
the contract, and transferee has performed or is willing to perform his 
C 
part of the contract, the transferor shall be debarred from enforcing any 
right in respect or the property. [221-B-C] 
2.1. A partnership firm is an association of persons. But in spite of 
that unity between themselves, every partner can have his own separate 
existence from the firm. Any right, which a partner bas over any property, 
D 
other than the partnership property, would remain bis individual asset. 
E 
F 
G 
H 
The mere ract that the particular person has chosen to include bim~elf as a 
partner of a firm will not result in incorporation or all bis individual 
properties as the assets of the partnership. [221-F] 
2.2. Admittedly, the appellant was a tenant of the building even 
earlier than the formation of the firm. In such a situation the tenancy right 
of the appellant in respect of the building is a separate right available to 
the appellant individually over which the partnership bas no claim. The 
appellant never contended that be had offered the suit property as an asset 
or the partnership firm. Nor did the firm at any time claim that the 
appellant threw the tenancy right over the building into the hotchpots or 
the partnership at any time. On the contrary, the agreement bas taken care 
that the building is in the personal possession of the appellant. [222-A-B] 
3. Even assuming that the appellant was a partner of the firm it is 
legally impermissible for him to individually claim all the rights of the 
firm. Nor can he project himself as a transferee under the agreement. 
Thus, the appellant cannot Ia;· any claim on the strength of Section 53-A 
of the Transrer of Property Act, even assuming that the agreement is still 
binding on the parties thereto. [221-E; 222-G] 
4. The bona jides need of the landlord's could possibly get eclipsed 
SHASHI KAPILA v. R.P. ASHWIN [THOMAS, J

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