Bimal Chandra Basak, J.

1. This appeal arises out of a judgment and decree passed by the trial Court. On 15th Dec., 1979 a suit (T.S. No. 2256 of 1979) was filed by one Rabindra Nath Chatterjee against Dwijendra Nath Mullick and Subrata Mullick in the City Civil Court at Calcutta for the following relief :

"(a) A Declaration that the partnership firm of New Dasakanna Bhandar of the plaintiff and Bansi Badan Mallick, since deceased, father of the defendants created by the partnership deed dt. 8th Sept., 1972 and renewed by the consent decree dt. 31st Aug., 1979 passed by the High Court at Calcutta in Suit No. 624of 1979, (Bansi Badan Mallick v. Rabindra Nath Chatterjee) stood dissolved with effect from 20th Oct., 1979 when the said Bansi Badan Mallick died.

(b) Declaration that the terms of settlement filed on 31st Aug., 1979 in the High Court at Calcutta in Suit No. 624 of 1979, (Bansi Badan Mallick v. Rabindra Nath Chatterjee) did not have the effect of making the defendants partners of the plaintiff in the business of New Dasakanna Bhandar on the death of Bansi Badan Mallick.

(c) Alternatively partnership, if any, created by the said terms of settlement between the plaintiff and the defendants herein stands dissolved with effect from 23rd Nov., 1979.

(d) In the further alternative, the same be dissolved by a decree of the Court on the ground that it is just and equitable to do so.

(e) Accounts of the partnership, if any, be taken.

(f) The affairs of the partnership firm of New Dasakanna Bhandar be wound up."

2. On 11 th April, 1980, the suit in the High Court at Calcutta was instituted by the appellants herein making similar prayer. In 1982 the respondents suit in the City Civil Court at Calcutta being Title Suit No. 2256 of 1979 was transferred to this Court and marked as Extraordinary Suit No. 12 of 1982. Both the suits were heard together and the learned trial Judge delivered the judgment on 15th June, 1984. Being aggrieved by the same this appeal was preferred on 6th July, 1984. FACTS :

3. The facts of this case, as they are relevant for the purpose of the decision herein, are as follows :

"One Gour Chandra Chattopadhyaya has been for a period of two years prior to 25th April, 1955, carrying on business in Dasakarma goods and articles as the sole proprietor under the name and style of "New Dasakarma Bhandar". By a deed of partnership dt. 25th April, 1955, entered into by and between Gour Chandra Chattopadhyaya and Srimati Satya Bhama Mullick a partnership business was brought into effect to be carried on under the name and style of New Dasakarma Bhandar. Thereafter a suit was filed by Smt. Satya Bhama Mullick against the said Gour Chandra Chattopadhyaya being Suit No. 793 of 1965 in the High Court at Calcutta, inter alia, for the dissolution of partnership and for certain reliefs in respect of the said partnership business. A terms of settlement filed in the said suit wherein it was, inter alia, recorded that the said partnership stood dissolved with effect from 14th April, 1965 and that the accounts between the parties had been settled and adjusted. On 27th May, 1965, a new partnership agreement was entered into by and between Bansi Badan Mullick and Gour Chandra Chatterjee wherein it was stated that the previous partnership business was actually carried on by Bansi Badan Mullick in the benami of his wife Satyabhama Mullick with the said Gour Chandra Chatterjee. A new partnership business was started jointly by Bansi Badan Mullick and Gour Chandra Chatterjee on certain terms and conditions. It is to be pointed out that this partnership was duly registered. On 6th July, 1972, Gour Chandra Chatterjee father of the respondents, died. On 8th Sept., 1972 a new partnership deed was entered into between Bansi Badan Mullick, father of the appellants and the respondent No. 1 Rabindra Nath Chatterjee for carrying on partnership business under the same name and style New Dasakarma Blandar on similar terms and conditions. This partnership was also registered. On 12th Aug., 1979, Bansi Badan Mullick dissolved the partnership firm by a notice with effect from 18th Aug., 1979 and on 18th Aug., 1979, a suit being suit No. 624 of 1979 was instituted by Bansi Badan Mullick in this High Court as already stated. Ultimately in the suit only three issues were left to be decided which are as follows :

"1(a) Whether the large shop room situated at premises No. 16, Jamunalal Bajaj Street, which tenancy stands in the name of Gour Chandra Chatterjee, deceased, father of Rabindra Nath Chatterjee, and the small shop room situated at the same premises which tenancy is in the name of Samir Kumar Mukherjee, belong to the partnership firm and required to be dealt with as its assets . 1(b) If not, whether the said two tenancies should revert to the Chatterjee partner on dissolution of the firm

2(a) Whether the godown at No. 125, Netaji Subhas Road, Calcutta, admittedly held under the joint tenancy in the names of Bansi Badan Mullick, deceased and Gour Chandra Chatterjee, deceased is required to be dealt with as asset of the partnership

2(b) If not, whether the same should revert to the legal representatives of Banshi Badan Mullick, deceased and those of Gour Chandra Chatterjee, deceased, upon dissolution of the firm

3. To what relief, if any, are the parties entitled"

4. The disputes relate to the tenancy rights in respect of two rooms and one godown --one tenancy standing in the name of Gour Chandra Chatterjee, father of Rabindra Nath Chatterjee who was one of the partners and another which was standing in the name of Samir Kumar Mukherjee whose business was taken over by Gour Chandra Chatterjee and who used to pay the rent before the partnership was constituted. Both these two rooms and the godown were at premises No. 16, Jamunalal Bajaj Street, Calcutta previously known at 16, Cross Street and No. 125, Netaji Subhas Road, Calcutta respectively which was previously under the tenancy of Gour Chandra Chatterjee but in or about the time of entering the partnership deed of 1965 it was changed under the names of both the partners, i.e. Bansi Badan Mullick and Gour Chandra Chatterjee. We ought to point out that in respect of the issue No. 2(a), at the time of hearing of this appeal Mr. Mitter appearing on behalf of the respondents submitted that his client does not dispute that the said property was admittedly a partnership property since the execution of 1965 deed.

5. The only question now requiring determination before us is, whether the big shop room and small shop room situated at premises No. 16, Jamunalal Bajaj Street, Calcutta are the assets and property of the partnership firm. We shall first set out the relevant portions of the 1955 registered Deed of Partnership between Gour Chandra Chatterjee and Smt. Satya Bhama Mallick. This deed in its recital states that the said Gour Chandra Chattopadhyaya has been for the last two years carrying on business in Dasakarma goods and articles as the sole proprietor under the name and style of New Dasakarma Bhandar in a rented room in the ground floor of the premises No. 16, Cross Street, Calcutta, together with two rented godowns, one at 16, Cross Street and the other in the first floor of the premises No. 70, Netaji Subhas Road, Calcutta. It inter alia provides as follows :

3. The business of the firm shall be carried on under the style and firm of New Dasakarma Bhandar and at No. 16, Cross Street, Calcutta or at such other premises as the partners may from time to time determine.

(4) The capital of the partnership shall consist of the present stock-in-trade and goods of the business of New Dasakarma Bhandar mutually assessed and valued to Rs. 3,000/-(Rupees Three thousand only) as described in the schedule which will be taken as the capital contributed by Gour Chandra Chattopadhyaya and a like sum of Rs. 3,000/-(Rupees Three thousand) in cash to be contributed by the said Srimati Satya Bhama Mallick which total capital of Rs. 6,000/-(Rupees six thousand) only shall belong to the partners in equal shares that is to say (a) one half shall belong to Gour Chandra Chattopadhyaya and the other half to Srimati Satya Bhama Mallick."

6. So far as the subsequent duly registered partnership deed on 27th May, 1965 is concerned, the recital states as follows :

"Whereas the first partner Bansi Badan Mullick in the benami of his wife Satyabhama Mullick and the said Gour Chandra Chatterjee were jointly carrying on business in copartnership in the name and style of New Dasakarma Bhandar at No. 16, Cross Street, (Now Jamunalal Bajaj Street) Calcutta under Deed of Partnership dt. 25th April, 1955. And whereas the said partnership had two shop rooms at No. 16, Cross Street, Calcutta and one godown at 125, (formerly No. 70) Netaji Subhas Road, Calcutta..... and Whereas the parties hereto have now agreed that the said business be carried on again the partnership between the said Bansi Badan Mullick and the said Gour Chandra Chatterjee in the same firm name and with the assets and stock-in-trade of the said previous business."

7. Clauses (4), (5), (20) and (21) of the said 1965 Deed provide as follows : --

"(4) The business of the firm shall be carried on at the said two shop rooms at the premises No. 16, Jamunalal Bajaj Street (formerly Cross Street) Calcutta where the previous business was being carried on and the godown of the previous business at premises No. 125 (previously No. 70) Netaji Subhas Road, Calcutta, will also be used as the godowns of the partnership business. The business may be carried on at such other place or places as may be agreed upon.

(5) The tenancy of the said shop room and godown is at present held in the following names (a) one bigshop room at 16, Jamunalal Bajaj Street, Calcutta, in the name of the said Gour Chandra Chatterjee, (b) one small shop room at 16, Jamunalal Bajaj Street, Calcutta, in the name of Samir Kumar Mukherjee and Co. (c) one godown at No. 125, (formerly No. 70) Netaji Subhas Road, Calcutta, in the joint names of the parties. The said tenancies shall be of the said partnership firm and shall be held for the benefit of the said firm in whatever name and names the tenancies might remain. The rent payable in respect of the said shop rooms and godown shall be paid by the said firm as were being paid previously. The firm shall have the full right to enjoy and occupy the said shop rooms and godowns in whatever name or names the tenancies thereof might remain and no one else other than the firm will be entitled to claim the right of such tenancy."

(20) "No partner will be entitled to sell or transfer his share or interest of the said firm to any outsider without offering for sale of his share to the other partner in which case or in the case of retirement of any partner the other partner shall have the first option to purchase the right interest and share of the partner so intending to sell or retired on payment to his half of the value of assets including goodwill and tenancy of the partnership."

(21) "The death of any partner shall not dissolve the partnership in such case the person nominating in writing by any partner in his lifetime shall be the partner in his place and in case any partner dies without making any such nomination the heir or heirs of the deceased partner shall be and shall be taken as partner or partners in place of the deceased partner."

8. As already stated, on 6th July 1972 Gour Chandra Chatterjee died intestate after duly nominating his son the said Rabindra Nath Chatterjee to be the partner in his place under Clause 21 of the 1965 Deed of Partnership. The said nomination was duly intimated by Gour Chandra Chatterjee to the said Bansi Badan Mullick by a registered letter dt. 30th June, 1972. Gour Chandra Chatterjees heirs and legal representatives accepted the genuineness of the said nomination in favour of the said Rabindranath Chatterjee and signified their consent to the said Rabindranath Chatterjee becoming a partner of the said business. Accordingly, Rabindranath Chatterjee became a partner of the said partnership firm. This was recorded in a formal Deed executed on 8th Sept. 1972 which was duly registered and which, inter alia, provided as follows :

"The partnership business shall be deemed to have commenced on and from 6th July 1972 and the same will be a partnership at Will. The name of the partnership shall continue to remain as New Dasakarma Bhander." (Clause 1) "The business of the firm shall be carried on at the said two shop rooms at the premises No. 16, Jamunalal Bajaj Street (formerly Cross Street), Calcutta, where the previous business was being carried on and the godown of the previous business at premises No. 125, (previously No. 70) Netaji Subhas Road, Calcutta, will also be and used as the godown of this partnership business. The business may be carried on at such other place or places as may be agreed upon". (Clause 2} "The tenancy of the said shop room and godown is at present held in the following names (a) One big shop room at No. 16, Jamunalal Bajaj Street, Calcutta in the name of the Said Gour Chandra Chatterjee deceased, (b) One small shop room at 16, Jamunalal Bajaj Street, Calcutta in the name of Samir Kumar Mukherjee & Co., (c) one godown at No. 125, (formerly No. 70) Netaji Subhas Road, Calcutta in the joint name of the parties. The said tenancies shall be held for the benefit of the said firm in whatever name or names the tenancies might remain the rent payable in respect of the said rooms and godowns shall be paid by the said firm as were being paid previously. The firm shall have the full right to enjoy and occupy the said shop rooms and godown in whatever name or names the tenancies thereof might remain and do one else other than the firm will be entitled to claim the right of such tenancy." (Clause 4) "The capital of the partnership shall be and funds of the said previous business mutually valued and assessed at Rs. 3,000/- which will be deemed to have been paid and contributed by and belong to the two partners in equal shares. Such capital may be increased by such amount as may be necessary whenever required. The partners shall pay and contribute necessary additional capital in equal shares." (Clause 5).

"If for the reason of the failure of any of the partners to pay and contribute the additional capital the other partner advanced money to the firm he will be entitled to charge interest on such advances at the rate of 12% (twelve) per cent annum and recover such advances with the said rate of interest from the said firm." (Clause 6) "The profits of the partnership shall belong to and the losses thereof shall be borne by that partners in equal shares, the assets and goodwill of partners in equal shares." (Clause 7) "Banking account or accounts of the partnership shall be opened in the United Bank of India Ltd., and in such Bank as will be agreed upon between the partners. The income of the business shall be deposited in such banking account after keeping in hand such sum as may be necessary for carrying on the said business. Such Banking Account or accounts shall be operated and cheque relating to such Banking Account shall be drawn and signed jointly by both the partners." (Clause 8) "Both the partners will manage and conduct the affairs of the business but in case of heavy purchases and transactions the first partner Bansi Badan Mullick shall alone have the right to conduct the same in conversation with the second partner the first partner being senior and having experience in the business, the-second partner shall give due weight to his advice in carrying on of the business of the partnership." (Clause 9) "No partner will be entitled to sell or transfer his share or interest of the said firm to any outsider without obtaining (consent) for sale of his share to the other partner in which case or in the case of the retirement of any partner the other partner shall have the first option to purchase the right, interest and share of the partner so intending to sell or retire on payment to him half of the value of the net assets including goodwill and tenancy of the partnership." (Clause 18) "The death of any partner shall not dissolve the partnership. In such case the person nominated in writing by any partner in his life time shall be the partner in his place and in case any partner dies without making any such nomination the heir or heirs of the deceased partner and shall be taken in as partner or partners in place of the deceased partner." (Clause 20)

9. The following issues were raised and settled : --

Whether the large shop room situated at premises No. 16, Jamunalal Bajaj Street, which tenancy stands in the name of Gour Chandra Chatterjee, deceased, father of Rabindra Nath Chatterjee and the small shop room situated at the same premises, which tenancy is in the name of Samir Kumar Mukherjee, belong to the partnership firm and required to be dealt with as its assets

1(b) If not, whether the said two tenancies should revert to the Chatterjee partner on dissolution of the firm

2 (a) Whether the godown at No. 125, Netaji Subhas Road Calcutta, admittedly held under the joint tenancy in the names of Banshi Badan Mullick, deceased and Gour Chandra Chatterjee, deceased is required to be dealt with as asset of the partnership

2 (b) If not, whether the same should revert to the legal representatives of Banshi Badan Mullick, deceased and those of Gour Chandra Chatterjee deceased upon dissolution of the firm

3. To what relief it any are the parties entitled

10. There was only one witness during the trial viz. Rabindra Nalh Chatterjee and there were various documents. It was contended before the trial Court on behalf of Bansi Badan Mallick that on the basis of such partnership deed the tenancy right of the said rooms and godown were (was) intended to be utilised for the benefit of the partnership firm and as a part of the partnership property irrespective of the name or names in which the particular tenancy stood at the relevant time. All the three tenancies were intended to be and must be treated as the assets of the relevant partnership. In this context reliance was placed on different provisions of the different partnership deeds. Reliance was also placed by Mr. Gupta on the following cases. Addamki Narayanappa v. Bhaskaran Krishnappa (dead), , Commr. of Income-tax, M. P. v. Devas Cine Corpn., , Dulal Das Mullick v. Ganesh Das Damani, , Ganpat Rai v. Abnash Chunder, AIR 1973 J & K 74. Reference was also made to Section 60 of the CPC. With regard to Section 14 of the West Bengal Premises Tenancy Act, 1956 (thereinafter referred to as 1956 Tenancy Act), it was submitted that it prevents a tenant from transferring, subletting, assigning any premises without consent of the landlord in writing. Section 13(1) of themakes such unauthorised letting out a ground for ejectment of a tenant. It was submitted thai any such agreement would not be illegal. Reliance was placed in this connection on the decision in Debabrata Mukherjee v. Kalyan K. Roy (1981) 1 Cal LJ 339.

11. The learned trial Judge after referring in detail to the respective arguments submitted before him observed that the short point requiring determination before him was whether the three tenancies viz. 16, Jamunalal Bajaj Street standing in the name of Gour Chandra Chatterjee, deceased and the small shop room situated at the same premises standing in the name of Samir Kumar Mukherjee & Co. and admittedly - purchased by the said Gour Chandra Chatlerjee, as also the godown at premises No. 125, Netaji Subhas Road standing in the joint names of Gour Chandra Chatterjee and Bansi Badan Mallick, since deceased are assets of the partnership firm of New Dasakarma Bhandar" which stood dissolved from the date of death of the said Banshi Badan Mullick on the 20th Oct., 1979.

12. For the reasons recorded in his judgment the learned Judge held that there was an embargo of sub-letting by virtue of Section 14. The learned Judge held that there was no transfer or assignment or subletting of the tenancies in question to the partnership. The learned Judge further held that in view of the finding that there has been no transfer or assignment or subetting of the tenancies in question to the partnership, it was not relevant for the Court to consider the decision cited on the question of consequences of the transfer of the tenancy rights to a partnership. The learned Judge accordingly answered the issues as follows :

Issue No. 1(a) No.

Issue No. 1(b) Noquestionof reverting, as the same never vested in the partnership and/or was its assets.Issue No. 2(a) No.

Issue No. 2(b) Similarly, as the same never vested in partnership no question of reverting. Inasmuch as Bansi Badan Mullick and Gour Chandra Chatterjee, the two tenants in whose names the tenancies held are dead, the same devolved upon their heirs in accordance with law.

Issue No. 3 The parties are entitled to a declaration that the partnership firm carried on in the name and style of New Dasakarma Bhandar at premises No. 16, Jamunalal Bajaj Street, Calcutta, stood dissolved with effect from 20th Oct., 1979, the date of death of Bansi Badan Mullick.

13. The learned Judge further passed the following order :

"There will be a preliminary decree for accounts. It is to be noted that whilst taking accounts the report of the Joint Special Referees, which has been accepted by the parties, will be the basis of such accounting, and the Joint Special Referees appointed by the earlier order will take note of the valuation of assets of the partnership as recorded and accepted by them in their report. The Joint Special Referees will have liberty to appoint a Valuer and/or Chartered Accountant for the purpose of valuing in accordance with law, the two tenancies at 16, Jamunalal Bajaj Street, Calcutta, in names of Gour Chandra Chatterjee and Samir Kumar Mukherjee and will allot to each of the Chatterjee and Mullick partners half share of the value thereof as agreed upon by the partnership deeds. A further report in respect of valuation of the two tenancies is to be filed by Aug. 16, 1984."

ARGUMENTS :

14. Before us Mr. Gupta appearing in support of the appellant challenged the correctness of the said judgment on the question as to whether there has been any such transfer of the tenancy in favour of the partnership that is, whether the said tenancy became a part of the partnership asset. He has placed reliance on the Partnership Deeds, particularly the Deeds of 1965 and 1972. He has submitted that in view of the express provisions made therein, it must be held that if not by 1955 Deed at least by 1965 Deed such tenancies were brought into partnership. This position was continued by 1972 Deed. He also submitted that Section 14 or Section 13(1)(e) of the 1956 Tenancy Act is no bar to the transfer of such tenancy. In this connection he placed reliance on the decisions reported in Addamkil Narayanappa v. Bhaskaran Krishnappa (dead), , Commr. of Income-tax, M. P. Nagpur and Bhandara v. Devas Cine Corpn., , Debabrata Mukherjee v, Kalyan Kumar Roy (1981) 1 Cal LJ 339 which were cited before the Court below. He also relied on Nanakram v. Kundalrai, . In support of his contention, he also relied on Section 60(1) of the Civil Procedure Code, as amended.

15. Mr. Mitra appearing on behalf of the respondent has at the outset admitted that the godown at 125. Netaji Subhas Road, Calcutta was a partnership property and it has to be treated as one of the partnership assets. Subject to this, he has submitted that in this particular case the learned Judges interpretation was correct and that there was no transfer of the tenancy excepting in the case of a tenancy which was changed in the joint names of the two partners. He has submitted that there was no express intention to change the nature of the property, that is, there was no intention to change the tenancy of Gour Chandra Chatterjee to the tenancy of the partnership. In this context he has also referred to the different provisions of the deed and relied on various provisions of Indian Partnership Act. He has further submitted that even if in respect of the said tenancies such an intention could be gathered from the said deed, Section 14 of the 1956 Tenancy Act was a bar. It was a case of transfer and it was not open to the tenant, that is, Gour Chandra Chatterjee to transfer such tenancy in favour of the partnership which consisted of Gour Chandra Chatterjee and Bansi Badan Mullick. In this context he has drawn our attention to the provisions of Section 30 of the Tenancy Act which imposes a penalty.

16. With regard to the submissions of Mr. Gupta, in support of his contention Mr. Mitra has relied on the following decisions Waman Srinivas v. Ratilal Bhagwandas, . Parichhat v. State of M.P., . Parasram Rao v. Santi Prasad Narinder Kumar Jain, . Regarding Debabrata Mukherji v. Kalyan Kumar Roy (1981) 1 Cal LJ 339 he has admitted that if this proposition is good law, then he has got no case but that in that event this question should be referred to a larger Bench.

17. It is now well settled that whatever at the commencement of a partnership is thrown into the common stock, and whatever has from time to time during the continuance of the partnership been added thereto or obtained by means thereof, whether directly by purchase or circuitously by employment in trade, belongs to the firm, unless the contrary can be shown. It is also well settled that the partnership may be carried out on or in respect of a movable or immovable but that does not automatically make it a partnership property or asset. It all depends on the intention of the parties. Two persons may carry on a partnership business on the premises belonging to one. That would not alone make it a partnership property. Similarly two persons can be joint owners of some property and a partnership business may be carried out in such property, but that would not by itself make it a partnership property. It will all depend on the intention of the parties. A property which has been used and treated as partnership property cannot be presumed to belong to the partner only simply because he paid for it; for the presumption in such a case is rather that the property in question was his contribution to the common stock. The mere use of property by the partnership without any indication as to whom the property was treated as belonging will not usually bring about any change in the beneficial ownership of such property which will therefore, remain vested in the partner or partners previously entitled thereto. In this connection reference may be made to Lindlay on Partnership, 15th Edition page 496.

18. It is for the partners to determine by agreement amongst themselves what shall be the property of the firm and the quantum of their beneficial interests therein inter se and what shall be the separate property of one or more of them. If there is no express agreement, then the source from which the property was obtained, the purpose for which it was acquired, and the mode in which it has been dealt with, are to be considered to ascertain such intention.

19. It is also well settled that it by no means follows that property used by all the partners for partnership purposes is partnership property for example, the house and land in and upon which the partnership business is carried on often belongs to one of the partners only, either subject to a lease to the firm or without any lease at all or it may happen that shares in which the partners or some of them are interested in a lease or the freehold or premises on which the partnership business is carried on are quite different from the shares in which they are entitled to share in the profits of the partnership. The only true method of determining, as between the partners themselves what belongs to the firm and what not, is to ascertain what agreement has been come to upon the subject. Reference may be made in this connection to Gian Singhs case (ibid).

20. Keeping the aforesaid in mind we shall examine the facts of this case. In the present case the position is that there were three agreements. Upon examination of the same, if we do not find anything relating to the intention of the partners concerned, then we shall have to look into something else. However if upon examination of the Deed the position is clear on this point, then no amount of oral evidence, can change the situation. Accordingly let us first examine what was the position regarding these tenancies immediately before the 1955 agreement which was entered into by and between Gour Chandra Chatterjee and Satyabhama Mallick. We find that at this stage one tenancy stood in the name of Gour Chandra Chatterjee; second one also in the name of Gour Chandra Chatterjee ; third one in the name of Samir Mukherjee and finally in respect of the last one also it was Gour Chandra Chatterjee who had the tenancy right before he had purchased the same from the previous owner. Now the question is whether there is any intention which can be spelt out from 1955 agreement that it was intended to bring these tenancies within the common stock of the partnership assets and make them partnership properties.

21. There is nothing in the 1955 Agreement regarding the same. If it is compared with the subsequent agreements, it becomes clear that by this agreement the partners did not intend to make any change regarding the nature of the tenancies of the ownership thereof. The tenancies were only sought to be used for carrying on the business of New Dasakarma Bhandar" of which previous to 1955 Deed, Gour Chandra Chatterjee was the sole and absolute owner. Accordingly in our opinion, by the said 1955 Agreement it was not intended by the partners to throw the said tenancies in the partnership and to convert the same into partnership properties. It is true that thereafter the business was carried on in the said three shop rooms and godowns. It is also true that the rent of the same was being paid by the partnership firm. However, in our opinion, the same by itself could not and did not change the ownership of the tenancy and the same did not form a part of the assets of the partnership.

22. Next we come to the Deed of 1965 between Gour Chandra Chatterjee and Bansi Badan Mullick. This Agreement makes a departure from the previous Deed and the then existing situation. We have already quoted Clause 4 of the 1965 Deed which mentions that the business of the firm shall be carried on in the three shop rooms and godowns. This by itself did not change the position. However Clause 5 of the said Agreement makes it quite clear that by the said Agreement it was intended that the said tenancies will be brought into the partnership firm and thereafter shall be continued as the assets of the partnership. It is to be pointed out that at or about the time of the execution of the said Agreement, admittedly the tenancies of the godown at No. 125, Netaji Subhas Road had been changed into the names of the two partners, namely, Gour Chandra Chatterjee and Bansi Badan Mullick. In respect of the said tenancies in Clause 5 though the names in which the tenancies stood was mentioned it was made clear that the said tenancies "shall be of the said partnership firm in whatever name or names the tenancies might remain."

It was further stated that the rent payable in respect of the said godowns and shop rooms shall be paid by the said firm as was being paid previously. It was also stated that the firm shall have "the, full right to enjoy and occupy the said shop rooms and godowns in whatever name or names the tenancies thereof might remain and no one else other than the firm be entitled to claim such right of tenancy."

23. In our opinion, the intention of the partners was made absolutely clear by the said Agreement and particularly Clause 5 thereof, the different names in which the tenancies were held were referred to. In spite of that it was stated that the tenancies would form part of the partnership firm. It was also made clear that it shall be held for the benefit of the said partnership firm. It was made clear that this would be the position, in whatever name or names the tenancies might remain. It was not merely stated that the partnership firm shall have the full right to enjoy and occupy the said shop rooms and godowns in whatever name or names the tenancies thereof might remain, but it was also stated that no one else other than the firm shall be entitled to claim the right of such tenancy. This is not merely a permissive user allowed by the continuing tenants to the firm. If it was a merely permissive user allowed to the firm then the question of the firm having the full right to enjoy the same could not arise. If the partnership firm did not have full right to enjoy and occupy the said shop rooms and godowns and if these did not form a part of the partnership assets of the firm, then the question of nobody else other than the firm being entitled to claim the right of such tenancies, could not arise. In our opinion, from the Clause 5 itself it is absolutely clear that the tenancies previously enjoyed by Gour Chandra Chatterjee were brought into common stock of the partnership assets.

24. Clause 20 of 1965 Deed which has been quoted above also makes the position quite clear. It provides that no partner shall be entitled to sell or transfer his share or interest of the said firm to any outsider without offering for sale of this share to the other partner in case or in the case of retirement of any partner the other partners shall have the first option to purchase the right, interest and share of the partner so intending to sell or retire on payment to him half of value of net assets including goodwill and tenancy of the partnership (underlines supplied). Therefore, value of the net assets would include not only goodwill but tenancy as well. It is not suggested that apart from the tenancies which are the subject matter of the suits and appeal, there was any other tenancy which belonged to this partnership firm. Therefore, when this expression tenancy is used in Clause 20 it means the tenancy in respect of the shop rooms and godowns referred to in Clause 5 of the Partnership Deed.

25. So far as the 1972 Agreement is concerned, the position is the same. There are similar provisions in the said Agreement and our conclusion is also the same.

26. From the aforesaid we are satisfied that all the tenancies concerned formed a part of the partnership property of the partnership concerned.

27. The next question is whether Section 14 of the West Bengal Premises Tenancy Act, 1956 is a bar. In our opinion, that is no such bar. In this context reference may be made to the judgment of the Division Bench of this Court in the case of Debabrata Mukherjee v. Kalyan Kumar Roy, reported in (1981) 1 Cal LJ 339. In that case the Division Bench had to construe the scope and effect of the provisions of Section 14(1) of the 1956 Tenancy Act. The Division Bench considered the scope and effect of the general law of landlord and tenant and the effect of the Rent Control Legislations restricting assignment and subletting by the tenant. Reference was made to Section 108 of the Transfer of Property Act, 1882 by virtue of which in the absence of a contract or legal usage to the contrary, the lessee may transfer absolutely or sublease the whole or any part of his interest in the property. In the absence of a contract or legal usage to the contrary, tenant may create sub-tenancies but even after the said transfer, the liability of the lessee towards his lessor continues to subsist. It was further pointed out that when there was a covenant not to assign or sublet, an assignment or subletting in breach of the same could be avoided because the said condition against assignment or subletting has been generally construed as making the lease voidable at the lessors option. Until the lessor exercises his right of re-entry, assignment or subletting stands. In this connection, reference was made to Mulla on Transfer of Property Act where it has been observed that the transfer by the lessee of his right in contravention of the terms of the lease is not wholly void but voidable at the instance of the landlord. Reference was made to Section 11 (2) of the West Bengal Premises Rent Control Act, 1948 and the decision in the case of Monoranjan Bhattacharjee v. Satya Charan Law, (1950) 85 Cal LJ 81 wherein it was held that the right to sublet either under the common law or under the Transfer of Property Act still remained lawful and was in no way affected or modified by the. In that case it was also held that Section 11(1)(b)(i) or (ii) of the Rent Act, 1948 did not make the subletting illegal but was only a penal provision preventing the person who committed the breach of such provisions from claiming protection of the benefits conferred under Section 11 of the Act, 1948 and disabling such a tenant who had so sublet, from resisting a decree for possession by his landlord. Reference was then made to Section 13(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and the Supreme Court decision in Indra Kumar Karnani v. Atul Chandra Patitundi wherein the Supreme Court distinguished the legal position of a sub-tenant under the tenanl of the first degree and a sub-tenant under a tenant of the inferior degree. Reference was then made to Section 14 of the Tenancy Act, and it was pointed out that the provisions were similar to Sub-section (2) of Section 11 of the West Bengal Premises (Rent Control) Act, 1948. The Division Bench held as follows :

"In my view, similar interpretation should be put upon Section 14(1) of the West Bengal Premises Tenancy Act. Section 14(1) has not expressly laid down that a subletting in violation of Section 14(1) shall create no legal relationship as between him and his subtenant. The effect of Section 14(1) is that a subletting after the commencement of the without previous consent in writing of the superior landlord is not binding upon the superior landlord. The superior landlord has a right under Section 13(1)(a) to recover possession by evicting his tenant who has sublet, transferred or assigned the whole or any part of the premises held by him. The Sub-section (3) of Section 13 has further laid down that except as provided in Sub-sections (2) and (4) a decree or order for delivery of possession of the premises shall be binding on every sub-tenant. Under Section 13(2) only those sub-tenants who have given notices under Section 16 are required to be made parties to any suit or proceeding for recovery of possession by the landlord. When a subtenancy is created after the commencement of the 1956 Act without prior consent of the landlord, the landlord is not required to make such a sub-tenant a defendant in a suit for recovery of possession filed against his tenant and an ejectment decree passed against the tenant of the first degree would be binding on such a sub-tenant. In other words, such a sub-tenant has no independent legal status and is not entitled to the benefits of protection against eviction. A tenant who sublets in violation of Section 14(1) of the West Bengal Premises Tenancy Act is also liable to be punished with fine under Section 30(3)of the West Bengal Premises Tenancy Act." (Para 20) "In our view, Section 23 of the Contract Act is not applicable to subletting after the commencement of 1956 Act made without prior consent in writing of the landlord. A consideration for a contract of subletting between the tenant of the first degree and his sub-tenants does not come within the categories enumerated in Section 23 of the Contract Act. Section 14(1) does not really forbid subletting by a tenant of the first degree but it makes unauthorised subletting not binding upon the landlord and also entitled the landlord to evict a tenant who has sublet after the commencement of the without his consent. The creating of unauthorised subletting would not defeat provisions of any law. Subletting under the general law was not unlawful and in the absence of a contract to the contrary a tenant could sublet. Under the Rent Control legislation some classes of subtenants have been given protection from eviction. The legal position of those subtenants who do not enjoy the benefits of the Rent Control legislation appears to be the same as that under the general law. In the absence of a privity of contract, the unauthorised sub-tenancies are not binding upon the superior landlord who can evict such sub-tenants in execution of eviction decrees obtained against the tenant of the first decree. But the mere fact that on unauthorised sub-tenant has been denied the benefits of protection under the Rent Control legislation does not necessarily mean that a subletting by a tenant is now totally forbidden or that such subletting, if permitted, would defeat the provisions of any law. The West Bengal Premises Tenancy Act has provided that a subletting shall have no effect as against the superior landlord and expresses no intention to prohibit the act of subletting; merely because the tenant, who sublets unauthorisedly may incur punishment, itdoes not necessarily mean that the subletting is forbidden by law." (Para 2)

28. In this context, the Division Bench observed as follows :

"The learned Advocate for the appellant has submitted lhat the alleged agreement of tenancy between the defendant and the appellant was perfectly valid and binding inter se between the parties. In support of his submission, the learned Advocate for the Appellant, has relied upon the recent Full Bench decision of the Andhra Pradesh High Court in Shankarlal Gupta v. Jagadishwar Rao, . The Full Bench of the Andhra Pradesh, inter alia, held that agreement of lease entered into between the landlord and the tenant in contravention of Section 3(3) of Hyderabad Rent Control Act or Section 3(3) of the Andhra Pradesh Rent Control Act will not be illegal and void inter se between the parties. These provisions required the landlord to notify the vacancy and any formation of agreement of lease contravening these provisions would be illegal and void against the Controller but the said agreement of lease is not illegal or void inter se between the landlord and the tenant. The aforesaid sections of the Hyderabad Rent Control Act and of the Andhra Pradesh Rent Control Act are not pari materia with Section 14 of the West Bengal Premises Tenancy Act. Nonetheless these decisions are of some assistance because they indicate in what manner the applicability of Section 23 of the Contract Act ought to be considered. In deciding the effect of Section 14 of the West Bengal Premises Tenancy Act, the Court ought to examine the different provisions of the relating to post-Act subletting and effect of unauthorised subletting by a tenant. The Court should also consider the object for enacting Section 14 of the West Bengal Premises Tenancy Act, 1956. The West Bengal Premises Tenancy Act has provided that a subletting by a tenant after the commencement of the said Act without the consent of his landlord will not be binding and shall be void so far as the landlord is concerned. The landlord will be also entitled to reject his tenant who after the commencement of the 1956 Act has sublet without his prior consent in writing. But the West Bengal Premises Tenancy Act has nowhere provided that the contract between the tenant and his sub-tenant would be null and void and not binding even upon the tenant who has sublet. The Full Bench of the Andhra Pradesh High Court in Shankarlal Guptas case (supra), had considered the vSupreme Court decision in Waman Shriniwas Kinis case (supra), under Section 15 of the Bombay Rents Act, 1948, but rightly pointed out that the Supreme Court in the said case did not address itself to the question as to what would be the effect of the contract inter se between the parties. The Full Bench of the Andhra Pradesh High Court in the aforesaid case had really applied the law laid down by the Supreme Court in Murlidhar Aggarwal v. Ram Agyan Singh, , under Sections 3 and 7 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947. Mathew, J. in Murlidhar Agarwals case (supra), pointed out that the expression "public policy" has entirely a different meaning from the policy of the law and the public policy does not remain static in any given community. The Judges have, inter alia, to consider the welfare of the community at any given time applying this standard, we may say that the West Bengal premises Tenancy Act which is a social legislation primarily for the welfare of the tenants do not express any intention that a sub-tenant who is inducted without the consent of the superior landlord shall have no right as against the person who had inducted him. Similarly in case it is held that such a subletting is totally null and void, the person inducting him would be unable to recover rent or to recover possession even when grounds for eviction exist. Therefore, the Court should avoid an interpretation of Section 14 which would result in such undesirable consequences." (paragraph)

29. Accordingly, the learned Judge held that even if the subletting was without the prior consent of the superior landlord, there would be a legal relationship as between the tenant and his sub-tenant. This is a Division Bench judgment of this Court and we respectfully agree with the law laid down therein. As we have no doubts regarding the correctness of the principles of law laid down therein, there is no question of referring the matter to a larger Bench as suggested by Mr. Mitter. It is to be recorded that it was admitted by Mr. Mitter that if this decision prevails, then he has no case to argue regarding the validity of transferability.

30. Let us now examine some other decisions of this point. In the case of Dhirendra Nath Neogi v. Pranab Kumar Neogi reported in (1957) 61 Cal WN 887 relied Upon by Mr. Mitter, it is a judgment of a single Judge of this Court. In that case, the fact was that on 22nd Dec., 1954 an order was made by the High Court to the effect that the Official Liquidator do sell, inter alia, the business of Binode and Co. and stocks and other assets of the said business. On the 25th Jan., 1957 Official Liquidator held a sale as directed by the Order and sold the assets and stocks of the said Binode and Co. The question that arose in the application before the Court was as to whether the monthly tenancy of Binode and Co. or the right of occupation in respect of the shop room had passed at the sale. In that case, the monthly tenancy in respect of the shop room was terminated by the owners of the premises by a notice to quit expiring at the end of 1956. The learned single Judge held that having regard to Section 14 of the West Bengal Premises Tenancy Act, 1956 the sale held by the Official Liquidator could not and did not pass the rights of Binode and Co. in the tenancy or its right to retain possession of the premises. It was further held that had the business and the assets of Binode and Co. been sold under the order dated 22nd Dec., 1954 while West Bengal Premises Rent Control (Temporary Provisions) Act of 1950 was in force and before the monthly tenancy of Binode and Co. had been terminated by a notice to quit, the sale would have passed the rights of Binode and Co. in respect of the monthly tenancy held by it in respect of the shop room.

31. In the case of Nanakram v. Kundalrai , Clause (13) of the Rent Control Order was involved which provided that no landlord can determine a lease except with the previous written permission of the Controller, for which he must apply in writing to the Controller. Clauses 22 and 23 thereof provided as follows :

"22(1) Every landlord of a house situate in an area to which this Chapter extends, shall-

(a) within seven days from the date of the extension of this chapter, if the house is vacant on such date; or

(b) within seven days from the date on which the landlord becomes finally aware that the house will become vacant or available for occupation by himself or for other occupation on or about a specified date; give information of this fact to the Deputy Commissioner of the district in which the area is included or such other officer as may be specified by him, in the Form given in the Schedule appended to this Order, and shall not let or occupy the house except in accordance with Clause 23.

2. No person shall occupy any house in respect of which this chapter applies except under an order under Sub-clause(1) of Clause 23 or Clause 24 or on an assurance from the landlord that the house is being permitted to be occupied in accordance with Sub-clause (2) of Clause 23."

"23(1) On receipt of the intimation in accordance with Clause 22, the Deputy Commissioner may, within fifteen days from the date of receipt of the said intimation, order the landlord to let the, vacant house to any person holding an office of profit under the Union or State Government or to a displaced person or to an evicted person and thereupon notwithstanding any agreement to the contrary, the landlord shall let the house to such person and place him in possession thereof immediately, if it is vacant or as soon as it becomes vacant;

Provided that, if the landlord has, in the intimation given under Clause 22, stated that he needs the house for his own occupation, the Deputy Commissioner shall, if satisfied after due enquiry that the house is so needed permit the landlord to occupy the same.

(2) If no order is passed and served upon the landlord within the period specified in Sub-clause (1), he shall be free to let the vacant house to any person."

32. It was pointed out by the Supreme Court that the point common to both the appeals was whether it was open to a landlord in a proceeding for permission to terminate the tenancy and for possession of the premises to urge that the lease between the parties was void inasmuch as it was entered in contravention of Clause 22 of the Rent Control Order. The Supreme Court observed that such clause empowers the District Magistrate to take proceedings for the eviction of such tenant who has acted contrary to Clause 22. However, it was pointed out that such power was discretionary and it was open to the District Magistrate not to exercise the power if there was undue delay or if for other good reasons he found it inexpedient to do so. It was further held that if he did not exercise the power conferred by Section 7-A(1), the lease between the landlord and the other person would continue to subsist and that other person would continue to enjoy the status of a tenant. It would be a valid lease and it could not be regarded as a void lease. It was pointed out that in a case under the Rent Control Order, with which these appeals were concerned, the position was the same. In this context it was stated as follows :

"Nowhere does the Rent Control Order mandate that the Deputy Commissioner must eject a person who has entered into possession of a house in violation of Clause 22. If upon a view of the circumstances prevailing then, the Deputy Commissioner takes no action in the matter, there is no reason why the lease between the landlord and the tenant, although inconsisteni with Clause 22 should not be binding as between the parties thereto."

It was pointed out that it was not a void transaction and there was nothing in the Rent Control Order declaring it to be so.

33. In our opinion, this Supreme Court decision supports the view taken by this Court in the case of Debabrata Mukherjee v. Kalyan Kumar Roy, (1981-1 Cal LI 339) (ibid). For similar reasons it must be held that Section 14 only confers a power on the landlord to avoid such transaction if there was no such agreement as specified. It merely gives an option to the landlord either to accept such transfer without consent or avoid the same. This interpretation is also supported by Section 30 of the 1956 Act which makes it punishable if any one acts in breach of Section 14 of the said Act. It is an offence which can be dealt or proceeded with only at the complaint filed by the landlord and nobody else. Further by virtue of Section 33 of the said Act it no longer remains an offence after expiry of six months.

34. Such unauthorised transaction may allow the landlord to make it a ground for ejectment but that does not by itself make the transaction between the tenant and the unauthorised sublessee invalid or void. It is not void ab initio but it is merely voidable, that is, it can be avoided at the instance of the landlord. Until and unless it is avoided, it remainsa valid transaction. In the present case it is nobodys case that on that ground the tenancy has been terminated by the landlord and, therefore it cannot be said that such transfer made in favour of the patnership is void ab initio.

35. The other case cited by Mr. Mitter in support of his contention that such a transfer was void as it was barred by Section 14 of the 1956 Tenancy Act was the case of Waman Shriniwas v. R. B. and Co., . This case was considered by the Division Bench of this Court in the case of Debabrata Mukharjee v. Kalyan Kumar Roy, (1981) 1 Cal LJ 339 wherein it was dealt with in the following manner :

"Our attention has been drawn to the decision of the Supreme Court in Waman Shriniwas Kini v. Ratilal Bhagwandas and Co., , which, inter alia, interpreted Section 15 of the Bombay Rents, Hotel and Lodging House Rents Control Act, 1947 which prohibited subletting, assignment and transfer by a tenant governed by the said Act (vide para 7). In our view, the said decision in Waman Shriniwas Kinis case (supra) is distinguishable. In a suit for ejectment brought by the landlord against his tenant the latter had pleaded that he had sublet in pursuance of an agreement with the landlord. Therefore, he was not liable to be ejected under Section 13(1)(e) of the said Bombay Rents Act, 1947. The Supreme Court, inter alia, pronounced that the said agreement between the landlord and the tenant was forbidden by Section 15 and, therefore, illegal. The plea of the tenant of waiver by the landlord was not available. The tenant could not also plead pari delicto against his landlord. The Supreme Court in Waman Shriniwas Kinis case (supra) had no occasion to examine the question whether any legal relationship would arise between a tenant and his sub-tenant whom he had inducted without prior consent in writing of the landlord" (para 22).

"The learned Advocate for the appellant has submitted that the alleged agreement of tenancy between the defendant and the appellant was perfectly valid and binding inter se between the parties. In support of his submission, the learned Advocate for the appellant, has relied upon the recent Full Bench decision of the Andhra Pradesh High Court in Sankarlal Gupta v. Jagadishwar Rao, . The Full Bench of the Andhra Pradesh inter alia, held that agreement of lease entered into between the landlord and the tenant in contravention of Section 3(3) of Hyderabad Rent Control Act or Section 3(3) of the Andhra Pradesh Rent Control Act will not be illegal and void inter se between the parties. These provisions require the landlord to notify the vacancy and any formation of agreement of lease contravening these provisions would be illegal and void against the Controller but the said agreement of lease is not illegal and void inter se between the landlord and the tenant. The aforesaid sections of the Hyderabad Rent Control Act and of the Andhra Pradesh Rent Control Act are not pari materia with Section 14 of the West Bengal Premises Tenancy Act. Nonetheless these decisions are of some assistance because they indicate in what manner the applicability of Section 23 of the Contract Act ought to be considered. In deciding the effect of Section 14 of the West Bengal Premises Tenancy Act, the Court ought to examine the different provisions of the relating to post-Act subletting and effect of unauthorised subletting by a tenant. The Court should also consider the object for enacting Section 14 of the West Bengal Premises Tenancy Act, 1956.

The West Bengal Premises Tenancy Act has provided that a subletting by a tenant after the commencement of the said Act without the consent of his landlord will not be binding and shall be void so far as the landlord is concerned. The landlord will be also entitled to eject his tenant who after the commencement of the 1956 Act had sublet without his prior consent in writing. But the West Bengal Premises Tenancy Act has nowhere provided that the Contract between the tenant and his sub-tenant would be null and void and not binding even upon the tenant who has sublet. The Full Bench of the Andhra Pradesh High Court in Shankarlal Guptas case (supra) had considered the Supreme Court decision in Waman Shriniwas Kinis case (supra) under Section 15 of the Bombay Rents Act, 1948 but rightly pointed out that the Supreme Court in the said case did not address itself to the question as to what would be the effect of the contract inter se between the parties. The Full Bench of the Andhra Pradesh High Court in the aforesaid case had really applied the law laid down by the Supreme Court in Murlidhar Agarwal v. Ram Agyan Singh, , under Sections 3 and 7 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947. Mathew, J. in Murlidhar Agarwals case (supra) pointed out that the expression public policy has entirely a different meaning from the policy of the law and the public policy does not remain static in any given community. The Judges have, inter alia, to consider the welfare of the community at any given time applying the standard, we may say that the West Bengal Premises Tenancy Act which is a social legislation primarily for the welfare of the tenants do not express any intention that a sub-tenant who is inducted without the consent of the superior landlord shall have no right as against the person who had inducted him. Similarly, in case it is held that such a subletting is totally null and void, the person inducted him would be unable to recover rent or to recover possession even when grounds for eviction exist. Therefore, the Court should avoid an interpretation of Section 14 which would result in such undesirable consequences." (para 23)

36. For the reasons set out in the case of Debabrata Mukherjee v. Kalyan Kumar Roy, (1981-1 Cal LJ 339) (supra) we are of the opinion that this case is of no assistance to Mr. Mitter. In this context we may also point out that the language of the present Section 14 of 1956 Tenancy Act and Sections 13 and 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 which was the subject-matter of Waman Shrinivas case are different. Section 13(1)(e) and (sic) Section 13 of the Bombay Act provides as follows :

"Section 13(1)(e) Notwithstanding anything contained in this Act (but subject to the provisions of Section 15) a landlord shall be entitled to recover possession of any premises if the Court is satisfied (e) that the tenant has, since the coming into operation of this Act, sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein."

"15. Notwithstanding anything contained in any law it shall not be lawful after the coming into operation of this Act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein;

"Provided that the (State) Government may by notification in the Official Gazette permit in any area the transfer of interest in premises, held under such leases or class of leases and to such extent as may be specified in the notification."

37. It is to be pointed out that Section 15 of the said Bombay Act which prohibits subletting is a non obstante clause i.e. this is notwithstanding any other provisions of any other law. As a matter of fact that was the reason why it was stated in that judgment that an agreement contrary to the provisions of that section i.e. Section 15 would be unenforceable as it is in contravention of the express provision of the which prohibits subletting. Section 14 of West Bengal Act does not contain a non obstante clause. The language of the two sections are different. There is no provision in the Bombay Act for the consent of the landlord in writing. It was an absolute prohibition whereas in our case it is merely a restriction which is not absolute in nature. In the other case there was an absolute prohibition regarding such subletting or assignment. In our Act, it merely provides that there shall be no such subletting or assignment without the previous consent in writing of the landlord. Therefore, an agreement contrary to Section 14 of our Act cannot be said to be void or unenforceable. There is no question of contravention of the express provision of any Act which prohibits it and there is no question of any person relying upon a contract, the making of which is prohibited. It is also to be noticed that Bombay Act provides that it shall not be lawful (underline supplied) after coming into operation of the Bombay Act for any tenant to sublet or assign. In our Section 14 it merely provides that without previous consent in writing of the landlord, subletting or transfer etc. of the said premises cannot be made. Accordingly in our opinion the Bombay case is no authority for the proposition sought to be set up by Mr. Mitter appearing on behalf of the respondents.

38. In support of his submission Mr. Mitter has also relied on a decision in the case of Mannalal v. Kedar Nath, . He has relied on the following headnote.

"Negative, prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory. Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statutory provision imperative. The word "shall not register" are mandatory in character. The mandatory character is strengthened by the negative form of the language. It cannot be said that provisions contained in Section 108 are directory because non-compliance with the section is not declared an offence. Section 629-A of theprescribes the penalty where no specific penalty is provided elsewhere in the. It is a question of construction in each case whether the legislature intended to prohibit the doing of the act altogether or merely to make the person who did it liable to pay the penalty. The provisions contained in Section 108 are mandatory."

39. In our opinion the key words are contained in the following sentence :

"It is a question of construction in each case whether the legislature intended to prohibit the doing of the act altogether, or merely to make the person who did it liable to pay the penalty."

40. It is true that by Section 30 of 1956 Tenancy Act, such assignment or subletting without consent was made an offence for which the tenant can be punished but that is only at the complaint of the landlord. Upon construction of the provisions of Sections 14 and 30 of the 1956 Tenancy Act in our opinion there is no question of the legislature intending to prohibit the doing of the act altogether. As it is clear from the said section and as we have said hereinabove, merely certain restrictions have been put in. It is not at all a case of total prohibition but it has a restricted and conditional effect. It is for the benefit of the landlord and he is entitled to waive or ignore the same. Even if no such consent is given it is open to him to accept the same. If he does not choose to file any complaint, nothing can be done by anybody else and after six months it ceases to be the subject-matter of any prosecution even. Even if initially no such consent was given, it does not prevent the landlord from accepting the sublease later expressly or by implication or by conduct.

41. Reliance was also placed by Mr. Mitra to the case of Parasram Harmand Rao v. Shanti Prasad Narinder Kumar Jain, . There one of the points raised was whether the transfer to the appellant by the Official Liquidator of the tenancy rights being voluntary did not come within the mischief of Section 14(1)(b) of the. In that case the Supreme Court referred to the decision of the Calcutta High Court in Krishna Das Nandy v. Bidhan Chandra Roy, wherein it was held that as the transfer in favour of the respondent No. 1 by the Official Liquidator was confirmed by the Court, the status of the tenant by respondent No. 1 was acquired by operation of law and, therefore,the transfer was an in voluntary transfer and the provisions of Rent Control Act would not be attracted. The Supreme Court summarily disposed of the said Calcutta High Court decision by stating that it appeared that, the section concerned had not been extracted and, therefore, the Supreme Court was not in a position to know what was the actual language of the section of the Bengal Act. However, only a portion of the Section 14 namely Clause (b) of the Delhi Rent Control Act only was quoted therein which reads as follows :

"14(b) that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord"

In this context it was stated that the language of Section 14(b) is wide enough not only to include any sublease but even an assignment or any other mode by which possession of the tenanted premises is parted. Accordingly, it was held that it includes an involuntary sale also.

42. We are not in a position to ascertain what was the full language of the said section before the Supreme Court and we cannot ascertain whether the language is the same as in our section as it has not been quoted in full in the said judgment. In any event, in our opinion that decision does not help the plaintiff because the question of voluntary or involuntary sale is not involved in the present case. It is a question of transfer from GOUR Chatterjee to himself and his other partners which is admittedly voluntary in nature.

43. We should point out that Mr. Mitra also referred to Section 48 of the Partnership Act which is set out hereinbelow :

"S. 48. Mode of Settlement of Accounts between partners-- In settling the accounts of a firm after dissolution the following rules shall, subject to agreement by the partners, be observed :

"(a) Losses including deficiencies of capital shall be paid first out of profits, next out of capital and, lastly if necessary, by the partners individually in the proportion in which they were entitled to share profits;

(b) the assets of the firm, including any sums contributed by the partners to make up deficiencies of capital, shall be applied in the following manner and order;

(i) in paying the debts of the firm to third parties;

(ii) in paying to each partner rateably what is due to him from the firm for advances as distinguished from capital;

(iii) in paying to each partner rateably what is due to him on account of capital; and

(iv) the residue, if any, shall be divided among the partners in the proportions in which they were entitled to share profits."

44. He has submitted that the tenancies are not saleable properties. In this connection he has referred to Section 14 of the Partnership Act, which is as follows :

"S. 14. The property of the firm. -- Subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes 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."

45. The argument sought to be advanced by Mr. Mitra was that if we hold that these three tenancies are partnership properties, then such sale is not possible. Having regard to the decisions referred to above, we are of the opinion that these formed part of the partnership property. Whether there will be difficulty in selling any part of this partnership property or not, is not for the Court to consider or decide at the present stage.

46. For the aforesaid reasons we allow the appeal and set aside the judgment and order of the learned trial Judge. We hold that so far as all the tenancies in dispute are concerned, the said tenancies formed part of the partnership at the relevant tune and are to be dealt with as such. Accordingly we answer the issues as follows :

Issue No. 1(a) ..... Yes.

Issue No. 1(b) ..... Question does not arise.

Issue No: 2(a) .....We reocrd that Mr. Mitra has submitted that this is to be treated as the assets of the partnership. In any event we hold the answer in the affirmative and hold that the godown situated at No. 125, Netaji Subhas Road, Calcutta, admittedly held under a joint tenancy in the names of Bansi Badan Mullick (deceased) and Gour Chan-dra Chatterjee (deceased) are part of the assets of the partnership firm.

Issue No. 2(b) .....Question does not arise.

47. Accordingly there will be a preliminary decree but no further or other action need be taken as directed. It is stated that the account prepared by the Joint Referees-cum-Special Officers has been accepted by the parties and that there are no other assets now apart from the said tenancies and the articles referred to in the order dated 9th Aug., 1984, by which order the property and assets of the partnership business lying in premises No. 16, Jamanalal Bazaz Street, Calcutta, were to be purchased by Mr. Guptas client at an agreed price of Rs. 2000/-. The Joint Referees-cum-Special Officers were directed to give delivery of the goods to Mr. Guptas client against the payment. We are informed that no such payment was made and no such delivery was given. We, therefore, direct that on payment of the said sum within a fortnight from this date such goods are to be delivered in accordance with the said order.

48. So far as the tenancies are concerned, we have held that the same form part of the partnership assets. Let the said properties be sold but in order to avoid any further complication let the Joint Referees-cum-Special Officers hold an auction confined only to two groups of parties, namely, the appellants and respondents. Each of the tenancies shall be treated as a separate lot and the auction is to be held separately amongst these two groups. Each of the said tenancies is to be sold to the highest bidder. The highest bidder shall be entiled to have the right of adjustment against his share.

49. We are told that the rent from the month of Oct, 1979 up to now is being paid by the Chatterjees, i.e. the respondents. We find that by the said order of 9th Aug., 1984, Mr. Guptas client i.e. the appellants were directed to deposit a sum of Rs. 116.50 p. being the sum equivalent to half of the monthly rent payable in respect of two rooms and one godown on and from the date of the order appealed from. The deposit of the amount was to have been made by the Advocate-on-Record of the appellants by the 15th of every month, first of such deposit was to be made by 15th Aug., 1984. It was further directed that the amount deposited will be kept separately in Savings Bank Account in a Nationalised Bank free of any charge or lien. Upon enquiry made by the Court the Advocate-on-Record of the appellants Mr. B. C. Dhar informs the Court that the amount has been and is being deposited by his client in accordance with the order but he did not and does not deposit the said money in any Savings Bank Account in any of the Nationalised Banks as directed by the Court. He tendered his apologies for the same and offers to pay interest which would have accrued, had such deposit been made in accordance with the order of the Court. In our opinion it was an improper conduct on the part of the Advocate-on-Record concerne. He is a person conversant with law and he is an officer of the Court. It is not proper on his part to ignore the order of the Court. The intention of the Court was that the money would be deposited in a separate account earning interest and that was not done. It was free from any charge or lien but in spite of the same he has utilised the money. According to our calculation from October, 1979 to November, 1986 roughly a sum of Rs. 10,135.50 p. would be the amount to be deposited. Taking a further sum on account of interest which would have been earned on such deposit in a Savings Bank Account in a Nationalised Bank we hold that a total sum of Rs. 10,500/- is due to be paid; half share of the rent to be payable in respect of the said tenancy. We, therefore, direct the appellants to pay the said sum to the Joint Referees-cum-Special Officers who will hold the same and the same may be utilised by them towards the money payable if any by them if they are successful bidders. This is, of course, subject to adjustment of any amount if found due on the basis of any existing report or accounting made by the Joint Referees-cum-Special Officers that is, if any such amount is due on such report, then that will be adjusted and deducted from the sum of Rs. 10,500/- and the balance money would be due and payable. No such auction would be held until such payments are made. The said sum of Rs. 10,500/- or any other sum found due upon such adjustment as stated above shall be paid to the Joint Referees-cum-Special Officers within a fortnight from this date and the Joint Referees-cum-Special Officers shall hold an auction immediately thereafter. Upon holding such auction and upon adjustment on account of the said sum the Joint Referees-cum-Special Officers shall immediately hand over possession to the highest bidder and hold the said proceeds subject to further orders of this Court.

50. It is further directed that any further direction, if any, shall be obtained from this Court.

51. So far as the auction is concerned, prayer is made for stay. But in the facts of this case we do not think it is a proper case where stay can be granted. In any event a fortnights time is available. So, in the case no order of stay need be passed by this Court.

52. Liberty to apply.

53. The appellants shall be entitled to costs both before the trial Court and the appeal Court.

54. All parties concerend including the Joint Referees-cum-Special Officers to act on a signed copy of the operative portion of this judgment.

Bhagabati Prasad Banerjee, J.

55. I agree.