Abdul Azeez v. The Young Men's Buddhist Association, Kurunegala
ABDUL AZEEZ AND ANOTHER
v.THE YOUNG MEN'S BUDDHISTASSOCIATION, KURUNEGALA
COURT OF APPEALWIJETUNGA, J. & WIJAYARATNE, J.
CA No. 643/81 (F)
D. C. KURUNEGALA 4508/LJUNE 02, 1989
Vindicatory suit – defence of tenancy by partnership – Rent receipts issued in nameof parternship firm – Legal persons – Attornment – Agency of partners.
A partnership business under the name of Seena Muna Mohamed Abdulla &, Bros,was run in the premises in suit. The plaintiff landlord (The .Young Men's BuddhistAssociation) accepted rent from the partners (Abdul Azeez arid Mohamed Lebbe) forthe time being of the business and issued receipts in the name pf> the partnershipbusiness. At the time material to the suit the original partners had ceased to be in thebusiness and new partners had taken, their place and had duly, peed Tents which theplaintiff accepted as rent from the partnership business.’. ',. '
The partnership name was a conventional name applicable only to the persons
who on each particular occasion when the name was used; were members of thefirm.• <
The partners for the time being werevagents.of one another and of the business.
Although the partnership was not a .legal ^person the partners paid the rent. Theplaintiff by accepting rent accepted whpever were the partners, of the firm for thetime being as his tenants and this created a valid contract of tenancy.
Cases referred to:
Samsudeen v. Farook  2 Sri LR 185, T88
Perera v. Uyanagama 58 NLR 454.
APPEAL from judgment of the District Judge of Kurunegala
Dr. HAN. Jayewardehe, Q.C. with ‘tfthikar Hashim,;Miss, T:. Keenawinna, Miss. K.Wattage, Harsha Amarasekera and H. Cabraai for defendants-appellants.
H.L. de Silva, P.C. with Fritz Kodagpda and Senaka -Walgampaya forplaintiff-respondent.
Cur. adv. vult.
Sri Lanka Law Reports
11989/2 Sri LR
August 25, 1989
The plaintiff instituted this action against the defendants for adeclaration of title to the premises in suit, for ejectment of thedefendants therefrom and for damages. The action was on the basisthat the plaintiff, who was the owner of the premises, had let thesame on a monthly tenancy to M.M.A. Mohamed Abubakker andS.M.M.M. Meera Rawther who carried on business in partnership atthe said premises under the name and style of Seena Mana MunaMohamed Abdulla and Bro. It was claimed that the said tenants hadleft the said premises and that from November, 1971 the defendantshad come into wrongful and unlawful occupation of the same.
The defendants in their answer stated that S.M.M. MohamedAbdulla and S.M.M. Abdul Rahiman carried on business inpartnership at the said premises from 1.3.1940 under the name andstyle of Seena Mana Muna Mohamed Abdulla & Bro. and that thepartnership was the tenant of the said premises. They stated that atall times material to this action and for a long time prior to that, thedefendants and one Seena Muna Mohamed Rawther were thepartners of the said firm and were the lawful tenants of the saidpremises under the plaintiff and that the partnership paid the rent forthe same, which the plaitiff accepted. They, therefore, prayed for adismissal of the plaintiff’s action.
The defendants admitted that the tenancy had commenced on
3.1940 and that M.M.A. Mohamed Abubakker and A.M.M.M. MeeraRawther were the partners of the business called Seena Mana MunaAbdulla and Bro. from 30.08.1962, but that the business had beenstarted on 1.3.1940 by S.M.M. Mohamed Abdulla and S.M.M. AbdulRahiman and that from the very commencement of the tenancyreceipts had been issued in the name of S.M.M.M. Abdulla and Bro.It was further stated that the present defendants are the partners ofthe said firm of S.M.M.M. Abdulla and Bro. The title of the plaintiff tothe premises in suit was not denied by the defendants. The casewent to trial on 8 issues and the learned District Judge enteredjudgment for the plaintiff as prayed for with costs.
It appears that on 1.3.1940, the partnership of Abdulla and Bro.had been formed by S.M.M Mohamed Abdulla and S.M.M. AbdulRahiman (D3). In November, 1958, Mohamed Abdulla had been
CA Abdul Azeez v. The Young Men’s Buddhist Association, Kurunegala (Wijetunga, J.)243
replaced by Mohamed Abubakker, (D4). In August, 1962, S.M. AbdulRahiman had ceased to be a partner and had been replaced byMeera Rawther, (D5 & D6) In February, 1971, the 1st and 2nddefendants had become partners, together with the said MohamedAbubakker and Meera Rawther, (D8). In October 1971, the saidMohamed Abubakker ceased’ to be a partner- and the presentpartners are the said Meera Rawther and the 1st and 2nddefendants, the partnership business has remained unchangedalthough the constitution of the partnership had .changed from time totime.
Learned Queen’s Counsel for the defehdants-appellants submitsthat as the premises, in question had been occupied by the firm ofAbdulla and Bro. the firm was the tenant of the premises and thechanges in the constitution of the firm did not affect the legal rights ofthe partners. The premises had been let by the plaintiff to this firmand at all times material to this action, the firm was the tenant. Rentreceipts had been issued in the name of the firm: The tenancy thuswas the tenancy of the business. The plaintiff, he submits, cannot,therefore, obtain ejectment of the defendants and the action ismisconceived.
The learned District Judge has considered the question whether apartnership or a firm can be the tenant of premises. He states thatthe entire defence of the defendants was that the premises were letto the partnership or firm with a registered business name, but that afirm is not a separate and distinct legal person and that there cannot.be a contract of tenancy with a body of persons which is not a legalperson and that such a contract is a nullity. No contract is a nullity.No contract of tenancy arises between them unless there is anagreement to the effect that the partners of the..business shall be thetenants. He holds that even on the evidence of the 1 st defendant andon the documentary evidence the defendants have failed to dischargethe burden of establishing lawful tenancy whereby they were entitledto occupy the premises. He further states that as there cannot be alegal persona in a business, there could not have been a tenancywith the business unless it was clearly stated and acted upon. It is onthis basis that he has entered judgment for the plaintiff as prayed forwith costs.
As was held in Samsudeen V. Farook (T) it is undoubtedly acorrect statement of the law that a partnership could not in law be the
Sri Lanka Law Reports
tenant of premises. But, the Court there considered the furtherquestion of a notice to attorn sent to a firm and came to theconclusion that it was meant for no other than those who werepartners of the firm at that time. In that connection, Lindley onPartnership (15th Ed. page 36 at seq) was quoted as follows:-
“the name under which a firm carries on business is in point
of law a conventional name applicable only to the persons whoon each particular occasion when the name is used, are
members of the firm as the name of a firm is only a
conventional mode of designating the persons composing it; anyvariance among these persons is productive of a new
signification of the nameThus in Wray V Wray, it was held
that a conveyance of freeholds to ‘William Wray in fee simple’passed the legal estate in to the persons who were at the dateof the conveyance members of the firm trading under that name
If therefore a legacy is left to a firm the legacy is payable,
unless otherwise expressed, to those who compose the firm atthe date of the will'’.
The notice to attorn referred to above was held to be an offer ofthe tenancy to those who were partners of the firm at that time andthe defendant, who was one of the partners, having accepted thisoffer and having sent the rent, a contract of tenancy was thus createdbetween the offeror and the defendant as a partner of the firm.
The position that a partnership cannot enter into a contract oftenancy is also supported by the decision in Perera V. Liyanagama(2). There, it has been held that although the partners in theirindividual capacity can enter into a contract of tenancy, a partnershipas such cannot do so. It has been further held that if a landlord isaware before he lets his premises to a tenant, that a partnershipbusiness is to be carried on in the premises by the tenant and certainother persons, no contract of tenancy arises between the landlordand the partners unless it is agreed between the lannlord and thepartners that the latter are to be the tenants.
But that case can, be distinguished from the facts of the instantcase. In that case, the defendants, in their answer while.admittingthat their deceased brother Charles Liyanagama was the tenant ofthe plaintiff averred that he had taken the premises in question onrent “for the purpose Qf the business known as ‘Sri Ramya Hotel &Stores’ of which the defendants were partners”. Even during the life
CA Abdul Azeezv. The Young Men's Buddhist Association, Kurunegala (Wijetunga, J.)245
time of the deceased Charles Liyanagama, the 1st defendant hadpaid the rents to the plaintiff and asked for receipts in the name ofthe partnership, but the plaintiff continued to issue receipts in thename of Charles Liyanagama. This was held to be clear proof thatthe plaintiff was unwilling to accept any persons other than CharlesLiyanagama as his tenant. But in the instant case, the rent receiptshave been issued in the name of the firm of Abdulla & Bro. Clearly,these premises had been occupied' by this firm for the purpose oftheir business from 1940. There had no doubt been changes in theconstitution of the firm of Abdulla & Bro. from time to time, but theplaintiff had accepted whoever were ‘the partners of the firm for thetime being as its tenants and continued to place the premises at the-disposal of the partnership. A partnership name being only aconventional mode of designating the persons composing it, thecontract of tenancy, therefore, was with the partners of the firm forthe time being.
The law of partnership has often being described as nothing but an.extension of the law of agency and each partner is the agent of'liisco-partners for the purpose of partnership business. Thus, everypartner is an accredited or acknowledged agent of the firm and mayconsequently bind all the other partners by his acts in all matterswhich are Within the scope and objects, of the partnership. Eachindividual partner constitutes the others his agents for the purpose ofentering into all contracts for him within the scope of the partnershipconcern and consequently is'liable to the performance of all suchcontracts in the same manner as if entered into personally by himself.Vide Law of Partnership, Avtar Singh, (1981 with Supplement 1984)pages 199 & 200.;-
Therefore, once it is established that the landlord had accepted thepartners as his tenants, then the tenancy could continue in favour ofthose constituting the partnership although there may be changes inthe individuals who constitute the same. Thus, the tenant is not thepartnership as such, but the individual partners who are agents foreach other in all matters pertaining to the purposes of. thepartnership.
As was indicated earlier, although there were changes, in theconstitution of the firm of Abdulla & Bro. from time to time there vyascontinuity as regards the partnership as a business firm. Thecertificates of registration in respect thereof under the BusinessNames Ordinance have been produced marked (D3) to (D4) and (D6)
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to (D9) and the statement of change dated 24.8.1962 as (D5).According to (D9). Mohamed Meera Rawther who became a partnerin August, 1962 vide (D5) and (D6) continued to be a partner even asat 1.10.1971. Abdul Azeez, the 1st defendant and Mohamed Lebbethe 2nd defendant had become partners by 15.2.1971. One of theoriginal partners, Mohamed Abdulla, had ceased to be a partner by4.11.1958, when Mohamed Abubakker became a partner with AbdulRahiman, the other original partner (D4). By 24.8.1962, AbdulRahiman himself ceased to be a partner and Mohamed Abubakkeradmitted Mohamed Meera Rawthar as a new partner, (D5) & (D6).Even as at 9.7.1964, Mohamed Abubakker and Mohamed MeeraRawther were the partners (D7). By 15.2.1971 the two defendantshad been admitted as new partners together with the partnersreferred to in (D7). Of them, Mohamed Abubakker ceased to be apartner by 1.10.1971.
It is thus evident that despite the changes which took place in theconstitution of the firm in 1958, 1962 and 1971, the firm continued asthe tenant of the premises acting through the partners for the time’ 'being. Even as at 1.10.1971 Mohamed Meera Rawther who hadbecome a partner in August, 1962 continued to be a partner of thefirm. It is thus clear that the contract of tenancy had not been enteredinto in their personal capacity, but on behalf of the partnership as isevidenced by the fact that the rent receipts were issued in the nameof the partnership. (01) is such a receipt in respect of the month o1December, 1970, which indicates that the plaintiff had acknowledgedS.M.M. Mohamed Abdulla & 'Bro. the partnership, as its tenant.
The learned District Judge, though he was right when he held thata partnership as such could not in law be the tenant of the premises,has failed to consider the important question whether any one ormore of the partners, as an agent of the partnership and not actingin his personal capacity, could enter into a contract of tenancy forand on behalf of the partnership. In the instant case, it seems to methat the firm of Abdulla & Bro., which was in point of law aconventional name applicable to the persons who on each particularoccasion when the name was used were members of the firm, werethe tenants of the premises in suit and there was no legalimpediment for the persons constituting that firm to enter into acontract of tenancy for and on – behalf of the firm. In my view,therefore, the learned District Judge was in error when he held thatthe defendants have failed to establish lawful tenancy whereby they
Dissanayake v. OIC, Police Station', Hanguranketa
were entitled to occupy the premises. Their occupation of thepremises from 1971, qua partners of the firm of Abdulla & Bro.,cannot be wrongful or unlawful and the plaintiff is, therefore notentitled to the reliefs claimed in the prayer to the plaint. In the result,I would allow this appeal and dismiss the plaintiff’s action, but I makeno order as regards costs.
WIJEYARATNE, J. – I agree
ABDUL AZEEZ AND ANOTHER v. THE YOUNG MENS BUDDHIST ASSOCIATION, KURUNEGALA