1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Chamber Summons No.1603 of 2006 IN Execution Application No.90 of 2006 IN Award dated 23 rd August 2004 Essar Shipping Limited .. .. Claimant V/s. R.C. Coastal Exports Pvt.Ltd. .. Respondent And Francis Castellino .. .. Applicant Mr.M. Khatri i/by Ms.M. Kohli for Claimant. Mr.D.H . Mehta with Mr.R.D. Suvarna for Applicant. Mr.S. Bhagwat for Respondent. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 2 nd September, 2008 JUDGMENT : 1. The Claimant obtained an Award against the Respondent. The Claimant has sought to execute the Award under its Execution Application dated 22.6.2006. The Claimant got the office premises and the movables along with the right, title and interest of the Respondent in the goodwill of the business together with the tenancy rights therein attached under Order 21 Rules 43 and 54 of the Code of Civil Procedure. The office premises is situate at Plot No.606, Garden Resort, Sion- Trombay Road, Mumbai 400 017. The 2 Applicant has taken out this Chamber Summons for raising the attachment. 2. It is the case of the Applicant that he is the sole owner of the suit premises. He has created a tenancy right in one Garden Resort. That is a proprietary 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 31 st 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 3 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. Castellino and others. C.J.A. Castellino, therefore, co-owned the property sought to be attached as well as the adjoining plot with other co-owners. The Applicant claims through the said C.J.A. Castellino but has not shown is lineage. 4. The Applicant claims that his son Agnello Castellino was only given the table space and consequently could be, at best, his gratuitous licensee. He states that the business activities of the Respondent- Company were carried on at their office at Ballard Pier, Mumbai. 5. The Applicant has relied upon several rent receipts issued in the name of Garden Resort in respect of shop Nos,2, 3, 4 and the office from time to time since about March 1996. The Applicant has also produced the corresponding counterfoils of the rent receipts showing certain rent receipts issued. The Applicant has also produced the Bank passbook, showing entries of credit of rents paid by Garden Resort to the Applicant. It is shown that indeed the Applicant was collecting rent from Garden Resort. 4 6. Garden Resort has not been shown to be the registered partnership Firm. The Applicant contends that he is the sole proprietor of Garden Resort. If that is so, it can be seen that the Applicant as a successor- in-title of one of the co-owners of the plot of land under No.606, has sought to create a tenancy in favour of himself. 7. Black's Law Dictionary Eighth Edition page 1427 by Bryan A. Garner has defined a sole proprietorship as a business in which one person owns all the assets, owes all liabilities and operates in his or her personal capacity. Such a Concern is also termed as “individual proprietorship”. 8. To consider the bonafides of the case of the Applicant, the question that arises is whether the Applicant could have created a transfer by way of a lease, which is one of the five modes of transfers contemplated under the Transfer of Property Act in favour of himself represented by his proprietary Concern. The ordinary meaning of transfer in Black's Law Dictionary, Eighth Edition at page 1535 is, inter alia, a conveyance of a property or title from one person to another. It also means to convey or move from one place or one person to another; to pass or hand over from one to another and to sell or give. 5 9. The question about a person transferring a property to himself came up for consideration in the case of Universal Commercial Corporation vs. Collector of Customs, Delhi reported in 1994 (69) E.L.T. 150 (Tribunal) (New Delhi). 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 vs. M/s.Fine Tubes reported in AIR 2007 SC 1634 , the concept of a proprietary Concern vis-a-vis 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 business can be sued in the 6 business name of his proprietary Concern. The real party that is being sued is the proprietor himself. The unity of interest in the proprietor and his proprietary Concern is, therefore, seen. 11. The question that remains is can a proprietor be eligible to create an interest in his proprietary Concern and show that interest as the interest of another entity to resist a claim made upon the party in possession of a particular property. 12. In the case of Rye vs. Rye reported in (1962) 1 A.E.R. 146, the concept of a transfer to oneself came to be enunciated by Lord Justice Denning. The point of law, which came to be decided in that judgment by him, was : “Is it possible for a person to grant a tenancy to himself? or for two persons to grant a tenancy to themselves?” It came to be answered thus: “ At common law it was clearly impossible. Nemo potest esse tenens et dominus. A person cannot, at the same time, be both landlord and tenant of the same premises : for as soon as the 7 tenancy and the reversion are in the same hands, the tenancy is merged, that is, sunk or drowned, in the reversion.” It is further observed : “Neither could a person at common law covenant with himself, nor could two persons with themselves. Neither could one person covenant with himself and others jointly. Such a covenant, said Pollock, C.B., is “senseless”. “ After enunciating the common law Lord Justice Denning considered the law under the Law of Property Act, 1925. He has observed that under the said Act where two persons grant a tenancy by writing to one of themselves, such a tenancy would be valid under Section 72(4) of the said Act as a conveyance and the covenants would be enforceable under Section 82(1) of the Act. Hence, notice to quit could be given by the two persons granting the tenancy to one of them who has been granted the tenancy. 13. He has further considered what would happen if a person would grant tenancy by writing to himself or if two persons grant it to themselves and there are the usual express or 8 implied covenants. It is held that such a tenancy would not come under Section 72(4) or 82(1) of the Law of Property Act, 1925, because both of the sections would apply only where one of the persons is not on both sides. The tenancy would have to be validated under Section 73(3) of 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 9 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 life-long 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 vs. Rye (supra) came up for consideration before the Supreme Court in the case of Life Insurance Corporation of India vs. India Automobiles and Co. & ors. reported in (1990) 4 Supreme Court Cases 286 . Considering Sections 5 and 105 of the Transfer of Properties Act, it was held that a transfer (lease) of immovable property executed by co-owners of the property in favour of one of them was valid though a contract between a person with himself and others is not valid under Section 10 of the Indian Contract Act. The Supreme Court considered that under Section 5 of the Transfer of Property Act, a transfer of property by a person to “one or more living persons or to himself” was envisaged. It was observed that such transfers were usually in the case of trust which was considered by the House of Lord in Rye vs. Rye (supra). But there was no reason to hold that such a contract was invalid. 15. That was the case of co-owners executing a transfer 10 in favour of one of them. When the property is co-owned, the co-owners have an undivided interest in the property. They can divide that interest by sub- dividing the property and granting a part thereof to one of them. That would tantamount to a transfer of interest in the property in whichever mode the transfer is effected. This may be under the family arrangement, by way of a partition, in a trust by way of a settlement or amongst co-owners by way of actual possession in addition to the five transfers contemplated under the Transfer of Property Act, including the lease. 16. In this case, C.J.A. Castellino was the only person granted sanad under the Agreement dated 30 th September 1942. He was not a co-owner with any other in respect of plot No.606. The interest of C.J.A. Castellino devolved upon the Applicant. The Applicant himself claims to be the owner of the property under plot No.606 aforesaid. Hence, on the date of the Execution Application as also this Chamber Summons, he owned the property in his personal capacity as having been inherited from C.J.A. Castellino. The transfer to his proprietary Concern Garden Resort sought to be shown and put up by him is not a transfer by the co-owners to a single owner as would fall within the umbrella of Section 5 of the Transfer of Property Act being a transfer of “one or more other living persons or to himself”. 11 17. The Indenture of Conveyance dated 27th November 1963 sought to be relied upon by the Applicant is not in respect of plot No.606. It is in respect of plot No.607, which was co-owned by C.J.A. Castellino with other co-owners. It is in respect of that plot that one of the co-owners 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 vs. Naranbhai Dahyabhai Patel & ors. reported in AIR 1980 Gujarat 165 , it was held that in a purported transaction in which a settlor created a trust of his immovable property 12 appointing himself as a sole trustee the transaction of a gift could not be made out. Gift is another mode of transfer under the Transfer of Property Act as defined in Section 122 thereof. It has been held in paragraph 8 of that judgment that for a transfer to become a gift there must firstly be a transfer of an immovable property voluntarily and without consideration. Therefore, (i) there must be a transferor, (ii) there must be a transferee, (iii) the transfer must be accepted by or on behalf of the donee. It is observed that none can gift the property to himself except in the case of a trust. It is observed that there cannot be a sale of property by his owner to himself. Similarly there cannot be a mortgage of any immovable property by the owner or the mortgagor to himself. Similarly there cannot be a lease of property from the owner to himself. An owner of an immovable property cannot also exchange one property of his with another and lastly except in cases of trust, there cannot be a gift of an immovable property by an owner to himself. 19. This is based upon the reasoning that a transfer must be a transfer of an immovable property by an owner to someone else. There cannot be a transfer to oneself because such a transfer is meaningless. It would not bring a change in the character of ownership of the property and, therefore, 13 would not be a transfer. 20. These observations are made after considering Section 5 of the Transfer of Property Act in paragraph 10 of the said judgment. The amendment of Section 5 in 1929 under the Amending Act 20 of 1929 has been considered. Prior to the amendment, an immovable property could be transferred by a person to one or more other living persons or to himself, or to himself and one or more other living persons. He could not transfer it to himself. Pursuant to the amendment, the transfer to oneself was provided by Section 5. The judgment has considered the “transfer to oneself”. The judgment has also considered the legal ownership as well as beneficial ownership of an immovable property in cases of various transfers. So far as a lease is concerned, it is observed thus (Para- 10, page 168) : “When a person leases out his immovable property to another person, he transfers all his rights – legal and beneficial – to the lessee, except the right to recover rent and the right of re-entry, which he reserves 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.” 14 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, who is claimed to have been put in possession, is in vain. The property continues to remain of the ownership of the Applicant . The Applicant is seen to have derived the ownership from C.J.A. Castellino, 15 presumably by inheritance (though the relationship between C.J.A. Castellino and himself is not specifically stated). There is no question of plot No.606 being co-owned by any other co-owner. It is an admitted position that the registered office of the Respondent is on plot No.606. The Applicant's son is one of the Directors. The Annual Reports show him to be a Director. The entire property is Garden Resort House. The rent receipts of Garden Resort are in respect of three shops and one office. It is not known which is the other part of Garden Resort House where the registered office of the Respondent is situate. The Applicant has not shown that Garden Resort House consists only of shop Nos.2, 3 4 and office. Hence, it would be inequitable to disallow the execution in respect of the part of Garden Resort House actually in possession of the Respondent as its registered office. 22. Of course, neither the Applicant nor the Respondent would show the documentation with regard to the domicile of the Company. But the Claimant has produced copies of the Annual Reports statutorily required to be filed by the Respondent under Sections 159 to 163 of the Companies Act in which the particulars, inter alia, with regard to the registered office of the Company are given. The Advocate for the Claimant argued that the Company deals in huge 16 maritime contracts. It is not expected to have only a table space. The Respondent- Company has shown the said address in all the correspondence and in the litigation with the Claimant. It would now be too late in the day to allow or reject the claim of the Claimant to the immovable property of the Company where its registered office is situate, specially in view of the fact that the only other claim is shown to be in favour of the sole proprietary Concern of the Applicant by virtue of the rent receipts produced by the Applicant which on and from the date of the Execution Application in effect show no creation or interest of any legal right, title and interest in favour of Garden Resort. 23. Mr.Mehta on behalf of the Applicant has relied upon a judgment in the case of Krishnavadan Ramlal Chinai & ors. vs. Shantaben Charubhai Mistry & 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 vs. Joseph Dias reported in AIR 1995 Bombay 210 or he may reside therein as his gratuitous licensee in which case, of course, he would not have title to 17 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 Respondent- Company had its registered office is not specified. Hence, the Applicant's case that it is not the Respondent- Company but his own proprietary Concern Garden Resort which is in possession of the attached premises, cannot be accepted. 25. Consequently, the Chamber Summons is dismissed. No order as to costs. [SMT.ROSHAN DALVI, J.] 26. However, the Claimant shall not proceed to sell the attached premises for a period of 2 weeks. 18 [SMT.ROSHAN DALVI, J.]