NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

SEMESTER 4
PROPERTY LAW END TERM PROJECT
TOPIC
GAURI SHANKAR VS.  RAKESH KUMAR AND ORS.

SUBMITTED TO SUBMITTED BY
PROF. SANJAY YADAV DIVYANSHU BARAIYA
2019BALLB17
NAME OF THE JUDGEMENT
Gauri shankar vs.  Rakesh kumar and ors.1

BACKGROUND
The appellant and respondent no. 1 have signed a partnership to establish a company and
have hired a store in Delhi. Initially for five years the partnership was continued by the
parties after five years and was willingly established as a partnership. respondent No. 1
handed up the tenancy to the proprietor but never agreed to abandon the tenancy or
ownership of the shop by the appellant/claimant. The appellant has brought an action against
Rakesh Kumar (Intimate No. 1), Maya Devi (Intimate No. 2) and Bal Mukund Verma for a
dissolution of jewelery partnership and accounting (predecessor of Respondents).

Size of the bench - full bench

Name of the judges –

Hon’ble Mr. Justice Rajiv Sahai Endlaw
The judgement was delivered by hon’ble hon’ble Mr. Justice Rajiv Sahai Endlaw
Name of the advocates –
On behalf of the Respondent - Mr. Anupam Dwivedi and Mr. Pradeep Dwivedi,

On behalf of the appellant - Mr. Pankaj Vivek and Mr. Bidya Rani,

1
Gauri Shankar v/s Rakesh Kumar & Others RSA. No. 146 of 2005
MATERIAL FACTS
The appellant/plaintiff, on 6th June, 1984 instituted the suit from which this appeal arises,
pleading
1. On September 3, 1975, the appellant/plaintiff and the respondent/defendant Rakesh
Kumar established a partnership under the No. 1 deed and established a company in
the name and style of M/s Neel Jewelers to carry out maintenance and supply business
in Delhi. Wahar Nagar UB 47 shop buys silver jewelry and fixes and manufactures
gold jewelry, rented by appellant/plaintiff and defendant/defendant No. 1 Rakesh
Kumar for business organization, respondent/ defendant no .2 Maya Devi, she is the
Mother of Defendant No. 1 Rakesh Kumar
2. The terms of the partnership agreement are that if any other business is carried out
from the above-mentioned store under any other name, then the business will also be
a partnership between the two parties; A few days after the Neel Jewelers business,
another company was opened under the name and style of M / s Verma Sons to carry
out the following businesses: Sale, purchase and manufacture of sari embroidery in
the aforementioned store.
3. The partnership is initially five years, but after the five-year period expires, both
parties continue and become an arbitrary partnership
4. Due to the behavior of respondent/ defendant No. 1, the appellant / plaintiff had to
terminate the partnership business; As a result, the appellant / plaintiff issued a notice
of dissolution of the partnership to respondent / defendant No. 1 on October 4, 1983.
5. he respondent/defendant no. 1 gave a false reply to the above notice on November 8,
1983.
6. Although the above notice was intended to target the company in the name and style
of M / s Neel Jewelers and the name and style of M / s Verma Sons, the
appellant/plaintiff passed very carefully, April 1984 Another notice was sent to the
defendant/defendant 1 on the 21st, but the respondent/defendant did not respond
7. With the issuance of the above notice, both affiliated companies have been dissolved,
and the appellant/plaintiff has the right to obtain the accounts and the arrears
discovered in the course of the accounts.
8. Respondent /defendant No. 1 kept accounting books and misappropriated company
assets in other ways
9. Defendant / Defendant No. 1 continued to operate the partnership business in the
same shop even after the notice was issued, and did not pay any of the appellant /
plaintiff's share in it.
 10. The store lease in favor of the appellant/plaintiff and respondent/defendant 1 was
never delivered to the landlord respondent/defendant 2
11. The appellant / plaintiff and respondent / first defendant may renounce tenancy and
possession together, but not by other means.
12. The appellant/plaintiff never agreed to give up the ownership or possession of the
store; and,
13. The argument of the defendant/defendant 1, the respondent/defendant 2, after the
delivery of the above possession and possession, the possession of the store should be
transferred to her respondent/defendant husband. 3 Balmuka and Verma, It cannot be
defended by law. Therefore, the appellant/plaintiff requested to dissolve the affiliated
companies, namely M/s Neel Jewelers and M/s Verma Sons; accountability system;
recover the arrears at the time of bookkeeping; and own the shop together with the
respondent/first defendant

ISSUE RAISED BEFORE THE COURT

There was one pure question of fact which was to be decided by the court.

whether the tenancy rights could be surrendered by one of the partners

Whether the plaintiff. is entitled to rendition of accounts as prayed for?

ARGUMENT ON BEHALF OF APPELLANT

Appellant' counsel asserted that appellant's primary appeal was that Defendant No. 1 - the co-
tenant, without the consent or knowledge of the appellant, waived all rights to lease the suit
store through deception and fraud. Consequently, the unilateral, unauthorized, and colluded
rent-refund behavior between Defendant No. 1's mother and landlord and the new tenant who
entered the litigation store (original defendant No. 3) was greater than that of Defendant No.
Defendant No.'s father. Appellant believes that in this case, Respondent No. 1's behavior in
waiving the joint rights was a pretext and fraud, which was intended to nullify the appellant's
right in the costume workshop.
ARGUMENT ON BEHALF OF RESPONDENT

The three respondents/defendants submitted a joint written statement to challenge the claim,
stating that (a) the claim has expired; the company was dissolved in February 1978; the
rented house was handed over to the respondent/defendant no.2 landlord, and the business
was completely Closed; commercial stocks were sold, the company’s debts were settled, and
the accounts were finally settled in 1980. Neither party paid the other; (b) denied that the
appellant/plaintiff and the defendant/first defendant were tenants of the store; The shop was
handed over to the respondent/defendant no.2 in 1978; (c) The company closed in February
1978 to sell the company’s assets to pay off the company’s debts; according to the settlement
situation, the assets were sold to offset the company’s liabilities; (d) the shop was leased out
To the respondent/defendant No. 3 Balmukand Verma, they operate there under the name and
style of Enamel Art Jewelers.

STATUTES DISCUSSED

Section 45 in The Transfer of Property Act, 18822

The joint transfer of consideration-real estate is transferred to two or more persons in

consideration, and the consideration is paid from their mutual fund, and if there is no contract
to the contrary, they respectively enjoy an interest in said property, to the extent possible with
the rights are entitled to the fund and, if the consideration is paid from their respective
separate funds, they are respectively entitled to advance payment according to their
respective proportion of the consideration to obtain the property's equity. If there is no
evidence to show that they are entitled respectively to the equity of the fund or their
respective prepaid shares, it must be presumed that these persons have equal rights to the
property.

Section 43 of Indian Contract Act, 18723

When one or more people do more than two people, the promise is, if there is no opposite
representation agreement, an oath of this type will carry out as much as possible.

2
Section 45 in The Transfer of Property Act, 1882

3
Section 43 of Indian Contract Act, 1872
Each promise can collect contributions: each of the two or more joint promises, provided that
the difference with respect to the contract does not appear, all the benefits of other joints are
uniformly in the acceleration of the promise that can contribute.

Loss of contributions to share: If one of the two or more co-focus is the default value for
these contributions, the remaining joint terms result from such predetermined losses of the
actions you must pay.

Section 43 promises to request a performance of some or more promotions. It also provides

the rights of one or more promotions and strengthen shared loss when the other promotion
and non-compliance contribute. These provisions can be changed by the contract. The

sections make all joint contracts and some of them. If the debt occurs jointly, each promise is
responsible for all quantities. A non-delivery contract can only be applied to one of the joints
of the articulation that the lack of signature or no agreement is applicable only to what signed
it . It is also argued that one of the non-viscous of one of the joint celebrities will not affect
the responsibility of other people.

If one of the articular products is a pendant suit dies, one or more joint representatives of
such joint promotions, other defendants without carrying out all the promise that can continue
with demand.

Section 45 in The Indian Contract Act, 18724

Transfer of common rights. ——When a person contracts a joint commitment with two or
more people, except for the contrary intention in the contract, the right to be fulfilled belongs
to him in his own and then in life together, and in any of them After death of a person,
together with the survivor or the representative of the survivor of the deceased, and, together
with the representatives of all survivors after the death of the last survivor. When a person
contracts a joint commitment with two or more people, unless the contract contains the
opposite intention, the right to carry out is between him, during his coexistence, and after his

4
Section 45 in The Indian Contract Act, 1872
death, any of them, attended with the representatives of the deceased and survivors, and
attended with all representatives after the death of the last survivor.

LITERATURE REVIEW

The Transfer of Property Act

Author- Mulla

Mulla's "Transfer of Property Act" is a subparagraph of the "Transfer of Property Act of

1882". The title of this 85-year-old book, while revising the substantive content, still retains
the original style and authenticity, and has been added and removed where necessary. It is
part of the prestigious LexisNexis `Mulla` ensemble. It also contains appendices that include
selected relevant legislation, such as the Registration and Other Related Laws (Amendment)
Act of 2001; and the Transfer of Property (Amendment) Act of 2002.

Mulla The Transfer of Property 5Act of 1882 is a partial comment on the transfer of property.
Explains complex legal concepts clearly and consistently. The new edition has been carefully
updated to include all the major judicial developments since the previous edition in 2015.
This book is a necessary book for civil attorneys, judges, and law firms dealing with real
estate / real estate law; legal advisers, permanent legal advisers to banks, real estate
developers / builders ..

The Indian Contract Act6

Author- Mulla
Even 95 years after the publication of the first edition, Mulla's "Indian Contract Law"
remains a classic textbook on contract law and continues to provide clear information on
increasingly complex topics. The book describes the Contract Law of India (Law No. 9 of
1872), supplemented with detailed commentary on the chapter and jurisprudence and
appropriate citations. Anyone involved in contract law can safely turn to Mugla because it
covers all key legal areas through detailed and in-depth analysis. For any student of contract
5
Transfer Of Property Act, 1882

6
The Indian Contract Act,1872
law, this is a must read and a valuable first point of reference for professionals and
academics. New version • This version provides comprehensive instructions on the authority,
amendments and updates of the Indian Contracts Act (Act No. 9 of 1872) • Includes
discussions of important recent cases and legislation such as the 1997 India Contracts
( Revision) The Act, Information Technology Act 2000 and Banking (Amendment) Act 2012
• Corresponding developments in English law were also discussed and thoroughly analyzed.

CONCRETE JUDGEMENT
the Court held that when the occupancy was given up to the property manager by one of the
co-residents, then, at that point the said give up would likewise tie the other co-renter, and a
similar guideline as revered under Section 43 of the Indian Contract Act, 1872 ('Contract
Act') by excellence of which one of the two people who have together taken a premises on
lease could by making installment to the landowner release the obligation of the other
inhabitant additionally, would apply. The Court, notwithstanding, saw that such an ability to
give up could be encompassed by an agreement unexpectedly.

when under Section 43 of the Contract Act one of the two people who have together taken a
premises on lease, by making installment to the property manager is in a situation to release
the responsibility of the other occupant additionally, why the acquiescence of tenure by
respondent/defendant No.1 thus, who alongside the appellant/plaintiff had taken the premises
on lease, would not tie the appellant/plaintiff. The appellant/plaintiff, whenever had planned
actually, taking into account that the landowner was none else except for the mother of the
respondent/defendant No.1, should have contracted despite what is generally expected and
which was not done. Without an agreement despite what is generally expected, under Section
43 of the Contract Act, the respondent/defendant No.1 was qualified for give up the tenure.

RATIO DECIDENTI
 it was found/noticed/held that there was overpowering proof on record, to show that
the organization had proceeded past February, 1978, in opposition to what was argued
by the respondents/defendants; that the respondents/defendants had not offered ideas
to the observers of the appellant/plaintiff, who ousted of continuation of association
past 1978, such that no business of the organization was being led at the shop during
the years 1979 and 1980, when the said observers had dismissed of visiting the shop;
that the appellant/plaintiff had additionally demonstrated opening of a record for the
sake of M/s Verma Sons with the Kamla Nagar Branch of the Corporation Bank on
eighteenth December, 1978 and which truth was not questioned by the
respondents/defendants; that if the firm had been disintegrated in February, 1978,
there was no event for opening another record for the sake of the organization firm in
December, 1978 for example after the disintegration of the firm; there was no
clarification outfitted by the respondents/defendants in such manner; that the
respondent/defendant No.1, however in his interrogation dismissed that an archive
recorded as a hard copy was executed at the hour of settling of the records in the year
1980, yet had no clarification with regards to why it was not so referenced in the
answer to the lawful notification going before the suit or in the composed explanation
in the suit; that there was no proof on record to accept the rendition of
respondent/defendant No.1, of such settling of records in the year 1980;
 that if a record had been drawn up and executed by the appellant/plaintiff and the
respondent/defendant No.1, of settlement of records, it was in opposition to human
direct that a similar would be left with the appellant/plaintiff just and no duplicate
thereof would be held by the respondent/defendant No.1; that the
respondent/defendant No.1 didn't give any notification to the appellant/plaintiff, to
find such archive, if any on pledge; that the respondents/defendants didn't lead any
proof at all of execution of any such reports; that the supplication was even in any
case ambiguous, as no date or month were referenced; that there was accordingly no
motivation to meddle with the finding of the Suit Court, of the organization having
been disintegrated vide sees dated fourth October, 1983 and 21st April, 1984; that the
Suit Court had likewise conceded a pronouncement for ownership of the shop,
'holding the appellant/plaintiff and the respondent/defendant No.1 were joint
occupants' in the shop; 'that there was no debate that the shop was taken on lease by
 both the accomplices at the initiation of the association business and they were joint
inhabitants in the shop';
 that the inquiry to be resolved was, what is the impact of one of the joint occupants
giving up the tenure, without the authority of the other joint inhabitant; that the
Supreme Court in Kanji Manji Vs. The Trustees of the Port of Bombay AIR 1963 SC
468 and in H.C. Pandey Vs. G.C. Paul AIR 1989 SC 1470 has held that assistance of
notice on one of the joint occupants is adequate; that there is no division of the
premises or the lease payable between the joint inhabitants; and, that a
pronouncement of ownership passed against one of the joint occupants ties the other;
that it should in this manner be held, that one of the joint inhabitants, regardless of
whether without the authority of the other, is qualified for give up the tenure and it's
anything but a lawful acquiescence and restricting on the other joint inhabitants; that
the appellant/plaintiff was hence not qualified for look for ownership of the shop from
the respondents/defendants No.2&3; and, that the occupancy of the shop was not
distinct. Likewise, issue No.6 was ruled against the appellant/plaintiff and for the
respondents/defendants.

PRECEDENT CASE
In Kanji Manji Vs. The Trustees of the Port of Bombay AIR 1963 SC 468 7and in H.C.
Pandey Vs. G.C. Paul AIR 1989 SC 1470 8has held that service of notice on one of the joint
occupants is sufficient; that there is no division of the premises or the lease payable between
the joint inhabitants; and, that a decree of ownership passed against one of the joint occupants
binds the other; that it should therefore be held, that one of the joint occupants, regardless of
whether without the authority of the other, is qualified for give up the tenancy and it's
anything but a legal acquiescence and binding on the other joint occupants; that the
appellant/plaintiff was thus not qualified for look for ownership of the shop from the
respondents/litigants No.2&3; and, that the tenancy of the shop was not separable.

 Nandlal Singh Vs. Ram Kirit Singh AIR 1950 Pat 212 (DB)- - the plaintiff and the
respondent herein were inhabitants with respect to a property. The landlord of the plaintiff
and the litigant, by suing the plaintiff just had recovered the overdue debts of lease. The

7
Kanji Manji Vs. The Trustees of the Port of Bombay AIR 1963 SC 468
8
H.C. Pandey Vs. G.C. Paul AIR 1989 SC 1470
plaintiff thus sued the litigant for recovery of respondent's share of lease. Finding that lease
involved contract between the landlord on the one side and the plaintiff and the respondent as
the inhabitants on the other and finding the responsibility of the plaintiff and the litigant for
lease to be joint, it was held that the plaintiff and the respondent were in the situation of joint
promisors as regard the installment of lease and the plaintiff was qualified for decree against
the litigant for recovery of the litigant's share of lease.

CONCLUSION
A lease is nothing other than a contract between the landlord and the landlord and the
landlord. In the Transfer of Property Act, the laws on renting of the real estate is otherwise
codified. If more than one, i.e. the fulfillment of the leaser's duties under the rental, the
transfer of property law does not establish connections inter se lessee; The same under "Lease
determination" includes, inter alia, an explicit or implicated surrendement to terminate the
lease. However, it does not state that the surrender of the rental must by all, even one of them
might surrender the rental in case of a lease for more than one person, which surrender would
also bind others. This case began with the appellant entering into partnership with intimate
no. 1. As leaseholders are assumed to have given a combined undertaking to
respondent/defendant No. 2 as property lady, the appellant/claimant and the
intimate/defendant No. 1 to put the intimate /defendant No.2 back in the possession of the
shop after lease is determined. The landlady of the respondent/defendant No.2 has been
authorized, pursuant to Section 43 of the Contract Act, to force the appellant/defender No. 1
against the appellants/defendants or respondents No. 1 on the basis of acceptance of the
possession from either of the two the whole store.

BIBLIOGRAPHY
E-RESOURCES

MANUPATRA

SCC

CASEMINE

INTERNET SOURCES

www.wikipedia.com

www.indiankanoon.com
www.legalindia.com