TMI Blog2008 (9) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... etary Concern of which he is the sole proprietor. He contends that, at the request of his son Agnello Castellino, who was a Director of the Respondent Company, he had given the Respondent Company a table space in his office premises in 1997. He further contends that he has not sublet the premises or transferred any interest or legal rights in the premises to the said Company or even to his son as the Director therein. He has also contended that prior to 31st March 2006, Garden Resort, his proprietary Concern, was a partnership Firm registered under the Indian Partnership Act, 1932 and by a Deed of Dissolution dated 5.4.2006, the partnership was dissolved on 31.3.2006 and he became the sole proprietor of Garden Resort. He has not shown the registration of the partnership Firm. 3. The Applicant has produced an Agreement dated 30.9.1942 between the District Deputy Collector and one C.J.A. Castellino in respect of plot No. 606 admeasuring 1215 sq. yards. He has also produced a registered Indenture of Conveyance dated 27.11.1963 between one N.S. Coutto and the said C.J.A. Castellino and others under which the adjoining plot No. 607 came to be transferred to the said C.J.A. Cast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Universal Commercial Corporation v. Collector of Customs, Delhi reported in. It was held in this judgment that the penalty on the proprietary Firm as well as the proprietor is not sustainable as it would amount to double penalty under Section 112 of the Customs Act, 1962. This is upon an observation that there is a total identity on interest of the unit and of its proprietor. The two cannot be considered as separate persons as observed in paragraph 34.2 of the said judgment. 10. In the case of Raghu Lakshminaraynan v. Fine Tubes reported in 2007CriLJ2436 the concept of a proprietary Concern visavis its proprietor has been considered. It has been observed in paragraph 13 of the judgment that the proprietary Concern is only the business name in which the proprietor of the business carries on the business. A Suit by or against a proprietary Concern is by or against the proprietor of the business. In the case of death of the proprietor of a proprietary Concern the legal representatives can sue or be sued in respect of the dealings of the proprietary business, though under the provisions of Order 30 Rule 10 of the Code of Civil Procedure the proprietor of a proprietary busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Act. Yet the covenants could not be validated. Considering such position in law, Lord Justice Denning concluded that a person cannot grant a tenancy to himself for the simple reason that every tenancy is based on an agreement between two persons and contains covenants expressed or implied by one person with the other. He observed: Now if a man cannot agree with himself and cannot covenant with himself, I do not see how he can grant a tenancy to himself.... The tenancy must stand fall with the agreement on which it is founded and with the covenants contained in it : and as they fall, so does the tenancy. He thereafter considered the anomaly that would arise if a notice to quit were given thus: If A grants a tenancy to himself A, can he mutter a notice to quit to himself and expect the law to take any notice of it? or, if A and B grant a yearly tenancy to themselves A and B, can there be a notice to quit unless both agree? Of course not. So that, instead of a yearly tenancy, it becomes a lifelong tenancy determinable only by the agreement of both, which is absurd. The truth is that they cannot grant a tenancy to themselves. 14. The case of Rye v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be relied upon by the Applicant is not in respect of plot No. 606. It is in respect of plot No. 607, which was coowned by C.J.A. Castellino with other coowners. It is in respect of that plot that one of the coowners is shown to have entered into a Lease Agreement on 14.1.1971 in favour of Canara Bank. No significant or the apparent resemblance is shown in the transaction sought to be made out by the Applicant in this case in favour of his proprietary Concern Garden Resort as what has been shown under that Agreement. That Agreement was for the adjoining plot sought to be transferred by an Agreement for lease made in favour of another entity. That is certainly a transfer contemplated between two persons. Passing rent receipts in favour of Garden Resort which is the proprietary Concern of the sole proprietor who is the lessor cannot show any transfer by way of lease to any other party who can claim to be in juridical possession of the property so transferred and tenanted. 18. In the case of Suleman Isubji Dadabhai v. Naranbhai Dahyabhai Patel and Ors. reported in AIR1980Guj165 it was held that in a purported transaction in which a settlor created a trust of his immovable prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erves for himself. It is difficult to imagine a person exchanging in his own favour one property of his for another property of his. Such a situation in the very nature of things is inconceivable. It is thereafter held: Therefore, ordinarily, `transfer' of an immovable property to oneself will be an exercise in futility inasmuch as he would transfer any rights of his - legal or beneficial - to a third party. It is impossible for us to conceive that a person can be a vendor and a vendee, a mortgagor and a mortgagee, a lessor and a lessee or a donor and a donee. Therefore, it is only in case of a trust that the concept of `transfer' to oneself comes into play, particularly when the settlor appoints himself as the sole trustee. Consequently, it is held that only in such a case a settlor can transfer the legal ownership of the trust to himself in his capacity as the sole trustee and the equitable or beneficial ownership to the beneficiaries of the trust. 21. Upon considering such a position in law, it can be seen that a mere reliance upon the rent receipts to show the creation of a tenancy and a transfer of the title of the Applicant to another party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubhai Mistry and Ors. reported in 1985 Bom. R.C. 18 in which it is held that a father allowing his son to live in the tenanted premises whilst he did not live there does not thereby create any sub tenancy in favour of his son and no such inference can be drawn. A son may enjoy the premises of the father as his family member - nothing more and nothing less - as held in the case of Conrad Dias v. Joseph Dias reported in AIR1995Bom210 or he may reside therein as his gratuitous licensee in which case, of course, he would not have title to the property. However, this is a case of a Limited Company showing its registered office at the place claimed by the Applicant as having been transferred to his proprietary Concern. 24. It is for the Applicant to show his right, title and interest in the attached premises. He has sought to show it by way of the rent receipts. No transfer is seen to have been created under the rent receipts. In any case, the full extent of Garden Resort House is not shown. Whether it consists of only shop Nos.2, 3, 4 and office is not shown. What, if any, is the other part of Garden Resort House is not shown. In which part of the RespondentCompany had its regi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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