Bombay HC: Sub-tenant of deceased is not his legal heir, hence he is not entitled to seek revocation of his probate

There is no dispute about the proposition laid down by this decision but it cannot be ignored that the person applying for revocation must have some right or locus-standi to do so. It may be pointed out that the deceased as well as the respondent are Parsis. Mr. Madon drew my attention to the decision in Perviz Sarosh v. Mrs. Viloo Plumber MANU/MH/0309/2000 : AIR2000Bom189 , wherein a learned single Judge of this Court (Nijjar, J.) held that in order to have locus-standi for challenging the Probate in respect of the Will of a Parsi on the ground sets out in Section 263 of the Indian Succession Act, right in the inheritance under Section 51 of the Indian Succession Act has to be made out and the same is prerequisite for raising challenge under Section 263. The learned Judge observed that challenge to the probate under Section 263 is not in the nature of a public interest litigation and it can only be at the instance of a person who has a slight interest in the estate for themselves. Admittedly, the petitioner is a non-Parsi and he is not a legal heir of the deceased. Therefore, he has no locus standi or interest to challenge the probate under Section 263 granted in favour of the respondent. All that the petitioner claims is a right of sub-tenancy in respect of the above mentioned house flat which belonged to the deceased. The question whether the petitioner is or is not a tenant or sub-tenant of the said suit house is pending before the Small Causes Court. Even assuming for the sake of argument that the petitioner is a tenant in the said house, still he cannot be said to have a right to apply under Section 263 of the Indian Succession Act. In this respect, I am supported by a decision of a learned single Judge of the Delhi High Court in Dr. Jagdish Chandra v. State and Anr., MANU/DE/0276/1988 : 36(1988)DLT272 , wherein it was held that a tenant has no right to apply under Section 263 of the Indian Succession Act for cancellation or revocation of the probate granted for the Will executed by the landlord/owner to his adopted son. The ratio of this decision appears to be that a tenant does not have any interest in the estate of the deceased landlord. Even if the landlord dies intestate, the tenant is not likely to get anything unless he is one of the legal heirs of the deceased landlords. In the instant case, the petitioner is admittedly not related to the deceased nor he is her legal heir. He does not have interest in the estate of the deceased in the sense that testacy or intestacy of the deceased landlord does not affect his right as the tenant, if at all he is so. His interest is not such as would be affected by the grant of probate or letters of administration. He continues to be the tenant, if at all he is, irrespective of the fact whether the Will set up by the respondent is true or false and will get protection of the Bombay Rent Act. But he does not have any right or locus standi to challenge the Will of the deceased. {Para 7}

 IN THE HIGH COURT OF BOMBAY

Misc. Petition No. 49 of 2002

Decided On: 24.01.2003

Rajiv Ramprasad Gupta Vs. Rustom Sam Boyce

Hon'ble Judges/Coram:

J.A. Patil, J.

Citation: 2003(2) Bom C. R 460,MANU/MH/0147/2003.

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Whether the court should take into consideration the hardship of subtenant while deciding bonafide need of landlord in eviction suit?

Accordingly, the issue of comparative hardship is required to be decided in favour of the landlord. The tenant Thakkar has already unlawfully sublet the suit premises. The provisions contained in section 13(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 do not oblige the Court to take into consideration the issue of hardship, if any, that may occasion to unlawful sub tenants or any other persons who may be carrying on business from the suit premises. Thakkar, from the material on record appears to be content with some fixed amount or in any case 10% profits from out of the business being carried out from the suit premises. In such circumstances, it can never be the case of Thakkar that the issue of comparative hardship be decided in his favour and against the landlords.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1940 of 1996

Decided On: 24.07.2015

Taralakshmi Maneklal Thanawalla  Vs. Shantilal Makanji Dave

Hon'ble Judges/Coram:

M.S. Sonak, J.

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Whether court should entertain objection of tenant that eviction suit on ground of subletting is barred by limitation in absence of pleading?

 The Apex Court in the case of F.C.I. v. Babulal Agrawal MANU/SC/0013/2004 : (2004)2SCC712 has said, it is no doubt true that when suit was filed beyond limitation, it is liable to be dismissed even though limitation may not have been set up as a defence. This position is not in dispute. But, in all fairness, it is always desirable that if the defendant would like to raise such issue, he had better raised it in the pleadings so that the other party may also note the basis and the facts by reason of which the suit is sought to be dismissed as barred by time. That it is true that the Court may have to check it as to whether or not suit is within limitation. There is always an office report on the limitation at the time of filing of suit. In case, the Court does not prima facie; find it to be beyond time; at that stage, it would not be necessary to record any such finding on the point, much less a detailed one. In such a situation, at least at the appellate stage, if not earlier, it would be desirable on the part of the defendant to raise plea regarding limitation.

30. It is quite often that the question of limitation involves question of facts as well as law which are supposed to be raised and indicated by the defendant. The objecting party is not supposed to conveniently keep quiet till the matter reaches the High Court and wake up in a non-serious manner to argue that the Court failed in its duty in not dismissing the suit as barred by limitation,. The trial Court may not find the suit to be barred by time and proceed with the case but in that event the Court would not be required to record any such finding unless any plea is raised by the defendant. Since no such question was raised before either of the Courts, in my view, no consideration thereof is warranted.

31. It is needless to mention that the original suit was filed well within limitation against original defendant No. 1-Mr.Mubarak seeking his eviction from the suit premises, which was also to result in eviction of the father of the petitioner, who was serving with Mr.Mubarak- original tenant. The petitioner was staying with his father during the pendency of the suit. After the death of his father, he came in possession of the suit premises. Therefore, it had become necessary to join him as party-defendant since this event had taken place during the pendency of the suit. Therefore, the present petitioner was rightly impleaded as party-defendant to the suit.

32. If one turns to plaint averments, the plaintiff has nowhere described the present petitioner as sub-tenant. Amendment to the plaint or his impleadment to the suit was never challenged by the present petitioner. In this view of the matter, plea of limitation can hardly be of any substance and at any rate, cannot be allowed to be raised. The said plea is thus, liable to be rejected as frivolous.

33. Since the parties were allowed to argue on the question of limitation to prima facie; demonstrate whether suit was in limitation, I deem it necessary to record my finding in this behalf.

34. As a matter of fact, if tenant is allowed to stay in the tenanted premises with his servants or relatives, then, each member staying with him need not be a party to the eviction suit. The -18 - eviction of tenant, automatically, results in eviction of other occupants unless special rights in their favour are crated by law. It was, therefore, not necessary to join father of the petitioner (who was servant of the original tenant) as party-defendant to the suit. However, after the death of his father and Mr.Mubarak, the petitioner started intermeddling with the suit property which was in possession of Mr.Mubarak as a tenant. In this view of the matter, it became necessary to join the present petitioner as party-defendant to the suit or eviction. Needless to observe that if the family members of the servant are staying in the servant quarter attached to the tenanted tenement, then it is not necessary to file separate suit against them for eviction and possession based on title of the property. Such disgruntled legal representatives of the servant can always be impleaded in the suit for eviction filed against a tenant. Otherwise, for decades together the landlord's right to claim eviction of tenant would be placed in jeopardy for no fault on his part. Such approach would result in putting unnecessary burden on the right of property of a person, that too, at the instance of a person who has no semblance of right in his favour. The submissions made in this behalf by the petitioner are without any substance. By no stretch of imagination suit could be said to be barred by limitation.

35. In the case of Dr.Anant Kumar Karmarkar v. Kanchanben Niranjan 1999 BCR 339 the Apex Court had occasion to consider similar situation. The Court held that in order to effectively decide all the points and controversies in the suit and to obtain the relief of possession, the plaintiff has right to amend the plaint and to join third person as a party-defendant to the suit to avoid multiplicity of the litigation. As a matter of fact, impleadment of the petitioner as party-defendant to suit was never challenged by him and, if subsequent events resulted in petitioner coming in possession of the premises during the pendency of the suit, then, certainly, it was all the more necessary for the plaintiff to join him as a party-defendant to the suit. Such impleadment, in the facts and circumstances of the case, cannot be faulted on the touchstone of law of limitation.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5906 of 1996

Decided On: 26.09.2006

 Kantilal Somabhai Kothari  Vs. Udayvare Raghavendra Acharya and Ors.

Hon'ble Judges/Coram:

V.C. Daga, J.

Citations: 2006 (6) BomCR 642

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When burden of proof is on sub tenant to prove date of sub tenancy?

38-A. Mr. Agarwal then contends that the onus of proving that the sub-tenancy had come into existence prior to 21-5-1959 was put wrongly upon defendant No. 3. I have my doubts as to whether it is open for Mr. Agarwal to urge that point at this stage. It may perhaps be possible for the plaintiffs to contend that defendant No. 3 had filed revision application to the Bench of two Judges against the order of the trial Court casting the onus upon defendant No. 3. There is nothing to show as to on what grounds the revision application was dismissed by the Bench. I am, however, prepared to assume in favour of Mr. Agarwal that the revision application was. rejected only on the ground that it was against an interlocutory order. I am even prepared to hold further that so far as this Court is concerned, the question about the onus is not res judicata. However, on the merits I find it very difficult to agree with Mr. Agarwal. To my mind the onus of proof as regards issue No. 16 was rightly put upon defendant No. 3. This is so firstly because under the Bombay Rent Act prohibition against sub-tenancy is the rule; whereas permission to sub-tenancy is only an exception carved out of the rule by Sub-section (2) of Section 15 as also by the contract to the contrary referred to in Sub-section (1) of Section 15. Defendant No. 3 is relying upon this exception and hence the circumstances which entitled him to avail of the exception must be proved by himself. This principle is analogous to the one contemplated by Section 105 of the Evidence Act.

39. Moreover, the provisions of Section 106 of the Evidence Act give rise to the same position. After all, the exact date of the sub-tenancy was a fact which could be within the exclusive knowledge of defendant No. 3 only. From the very nature of things that the plaintiff Trust could have no knowledge about the same, the onus of proving the date of the sub-tenancy must, therefore, lie upon defendant No. 3 only. Similar conclusion could be arrived at also by relying upon Section 102 of the Evidence Act. We find that in the instant case the parties have come out with the pleadings. The plaintiffs have alleged subletting by one in favour of defendant No. 3. Defendant No. 3 had admitted subletting, but has contended that the subletting was done before 2t-5-1959. Under the provisions of Section 102 of the Evidence Act, we shall have to apply the test regarding the onus by assuming that no evidence was led by either side. In the instant case if neither defendant No. 3 nor the plaintiffs led any evidence, defendant No. 3's case that sub-tenancy took place before 21-5-1959, therefore, could be deemed to have gone unproved. Moreover, it is defendant No. 3, who have been claiming a legal right regarding valid sub-tenancy in respect of the suit premises. That legal right can exist only if his sub-tenancy originated before 21-5-1959. It is, therefore, difficult to see as to how he could escape the onus of proving his legal right.

IN THE HIGH COURT OF BOMBAY

Spl. Civil Appln. No. 537 of 1975 with C.R.A. No. 62 of 1975

Decided On: 14.01.1980

Zenna Sorabji Vs.  Mirabelle Hotel Co. (Pvt.) Ltd. 

Hon'ble Judges/Coram:

S.G. Manohar, J.

Citation: AIR 1981 Bombay 446

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Whether inaction on part of landlord to take objection against sub tenant amounts to his implied consent?

Learned counsel for the respondent has placed reliance upon a decision of this court Hiralal Kapur v. Prabhu Choudhury - MANU/SC/0189/1988 : [1988]2SCR1058 . The tenant in this case seems to have sub-let a part of his tenant to a Trust which started its activities from the premises of which landlord may also have been aware. The tenant had also started paying the rent by two cheques - one in his name and another cheque of Trust. The rent so tendered was duly accepted by the landlord. In some correspondence which took place between the tenant and the landlord, the Trust was not accepted as a sub-tenant. It was held by this Court that merely by the fact that the cheque of the Trust was being accepted as a part of the amount of rent and the fact that landlord may have the knowledge of the fact that the Trust was using part of the premises would not lead to any implied inference or consent of sub-lease in favour of the sub-tenant. For this conclusion no doubt the letters of the landlord had also been referred to by which sub-tenancy was not accepted by the landlord yet the fact remains that Court did not come to the conclusion that that before writing of those letters it was to be taken a case of sub-tenancy by conduct. The fact is that knowledge of possession or a part of the accommodation with the Trust and the acceptance of the part of the rent by cheque from the Trust were not considered conclusive of an inference of consent for sub-tenancy. Yet another case relied upon by the learned counsel for the respondent is Ram Saran v. Pyare Lal and Anr. - MANU/SC/0596/1996 : [1996]1SCR501 equivalent to In this case also the tenant surrendered his tenancy rights in favour of a registered Society without consent of the landlord. The landlord had also started accepting the rent tendered by the tenant in the name of the registered society. It was held that no inference of authorised sub-tenancy could be drawn nor inference of implied consent and it was held that the landlord was not estopped from seeking eviction on the ground of unauthorised sub-letting. The conduct of the landlord in accepting the rent from the society was held to be of no consequence. We have already observed earlier that the inference drawn from findings of fact is a legal question. It would not amount to interfering or substituting the finding of fact by the revisional court. Hence the decision in the case of Ubaiba (supra) relied upon by the learned counsel for the appellant would not be of any assistance to it.

14. In view of the discussion held above, we find no reason to interfere with the order passed by the High Court setting aside the orders of the appellate authority and upholding the orders of the trial court, refusing to draw any inference of implied consent on the basis of inaction or conduct of the landlord. The consent as envisaged under Section 11 (4) (i) of the Kerala Buildings (Lease and Rent Control) Act 1965 would mean consent with some positive act which may lead to inference of conferring right on the tenant to sub-let the premises and mere inaction would not be sufficient to amount to implied consent on the part of the landlord.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3158 of 2002

Decided On: 29.04.2002

P. John Chandy and Company (P) Ltd. Vs.  John P. Thomas

Hon'ble Judges/Coram:

D.P. Mohapatra and Brijesh Kumar, JJ.

Citation: AIR 2002(SC) 2057

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Whether sub-tenancy is created if part of tenanted premises is given to new partner of partnership firm?

Now, applying this example to the present case, Atalram was never there when the tenancy was created. He came into the partnership firm only by way of his entry in the year 1971. In law, therefore, it was only Ishwardas himself who continued to be the tenant, though Atalram's entry into the partnership firm did not change the nature and did not mean parting of the possession on the part of Ishwardas. It also did not confer any status of tenancy of Atalram himself for the simple reason that this entry was not with the knowledge and/or consent of the landlady. Once this partnership was broken and two separate premises were created by Ishwardas and Atalram and a separate exclusive user was contemplated for Atalram of a part of the shop, it was clear that the original tenant Ishwardas had parted with the possession and had allowed the user of that separated part of the premises to Atalram. This would be nothing but an ex ample of clear sub-tenancy. Again, the original rent of the whole premises was Rs. 700/-. In the new arrangement, Ishwardas was to pay Rs. 400/- only, while Rs. 300/- were to be paid by Atalram. Thus, Ishwardas had reduced his liability to pay rent of Rs. 700/- per month. This was definitely, therefore, a consideration for sub-tenancy.

- Tenancy in the name of partnership--Exclusive enjoyment of the part of premises by new inducted partner--Amounts to sub-tenancy--Tenant liable to be evicted.

The firm to which the premises are let by the landlord holds the tenancy in favour of the then existing partner of the firm. If one of the partners retires and a new partner is brought in, such a new partner does not acquire tenancy rights and if he is given part of the premises exclusively and is to share the total rent, he is the sub-tenant and the landlord is entitled to the eviction of the tenant and the sub-tenant under Section 13(3)(iii) of the C.P. & Berar Rent Control Order.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 495 of 1990

Decided On: 08.10.1996

 Ishwardas and Brothers  Vs. Additional District Magistrate and Ors.

Hon'ble Judges/Coram:

V.S. Sirpurkar, J.

Citation: 1997(3) MHLJ 552

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Whether occupant of structure would be entitled to claim tenancy in respect of land underneath structure?

Before adverting to their contentions in detail, it must be borne in mind that the creation of tenancy is a matter governed by the provisions of Transfer of Property Act, 1882 and not by the Rent Act. It has been held by the Apex Court in Raizada Topandas and another v. M/s. Gorakhram Gokalchand, MANU/SC/0227/1963 : [1964]3SCR214 that the Rent Act does not create tenancy which is a matter of contract. Creation of tenancy must be established by a contract between the lessors (the plaintiffs) and the obstructionists in the present case. There has to be a privity of contract between the plaintiffs and the obstructionists. If there is no privity of contract between the landlord and the sub-lessees and where the landlord is the owner of the plot which has been let out to the lessee, who erects the structures and is the owner of the said structures and inducts licensees or sub-lessees the law recognises no independent right in the licensee or sub-lessee qua the landlord of the plot of land.

The Division Bench decision of this Court in S.R. Shetty's case make it clear that it would be almost impossible to accept the suggestion that the occupant of the structure would be entitled to claim tenancy in respect of the land underneath the structure. This would be all the more impossible where, in a multi-storied building, there are several tenants, one sitting on top of another and it would be impossible by any amount of ingenuity observed the Division Bench, for any Court to say on what portion of land, a particular occupant of the structure is a sub-tenant qua the land. There is thus no substance in the second contention of the petitioners.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2014, 2047, 2048, 2066 & 2093 of 1991

Decided On: 12.10.1999

Decided On: 13.10.1998

Ramkrishna Girishchandra Dode  Vs. Anand Govind Kelkar and Ors.

Hon'ble Judges/Coram:

A.V. Savant, J.

 Citation : AIR 1999 Bom 89

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Supreme Court: Provision of Maharashtra rent control Act is not applicable to Insurance Company

 From the aforesaid it is graphically clear that an Insurance

Company is not protected under the 1999 Act. Once it is held

that defendant No. 1, the New India Assurance Company, the

original tenant, is not protected, the question would be whether a

subtenant can be protected under the Act. In the case of Bhatia

Co-operative Housing Society Ltd. (supra), it has been clearly

laid down that Section 4(1) of the 1947 Act applies to premises

and not to parties or their relationship. Section 3 uses the term

‘premises’. The provision commences with the non-obstante

clause that the Act does not apply to any premises belonging to

the Government or a local authority. Sub-section 3(1)(b) makes

it clear that the Act does not apply to any bank, public sector

undertaking or certain other categories of tenants. The

Insurance Company is covered under Section 3(1)(b). Thus, as a

logical corollary, the Act does not apply to the premises held by

the Insurance Company who is a tenant.

23. The learned Single Judge has allowed protection to the

Government Department on the foundation that it has become a

tenant. We are disposed to think that the analysis is

fundamentally erroneous. When the Act does not cover the

tenant, namely, the Insurance Company as basically the

exemption applies only to premises and not to any relationship,

the subtenant who becomes a deemed tenant cannot enjoy a

better protection or privilege by ostracizing the concept of

premises which is the spine of the provision.

N THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos . 3356-3357/2012

Kesri Commissariat  Vs  Ministry of Food and Civil Supplies,

Dipak Misra , J

Dated:April 03, 2012.
Citation: AIR 2012 SC 1271:2012(5) MHLJ 212 SC

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Whether it is mandatory to prove that tenanted premises is in exclusive possession of sub tenant for getting eviction decree?

In case of Nirmal Kanta (supra), the Apex Court observed in paragraph 16 thus;

"What constitutes sub-letting has repeatedly fallen for the consideration of this Court in various cases and it is now well-established that a sub-tenancy or a subletting comes into existence when the tenant inducts a third party stranger to the landlord into the tenanted accommodation and parts with possession thereof wholly or in part in favour of such third party and puts him in exclusive possession thereof. The lessor and/or a landlord seeking eviction of a lessee or tenant alleging creation of a sub-tenancy has to prove such allegation by producing proper evidence to that effect. Once, it is proved that the lessee and/or tenant has parted with exclusive possession of the demised premises for a monetary consideration, the creation of a sub-tenancy and/or the allegation of subletting stands established".

10. In the present case, the learned District Judge has observed in paragraph 11 that the suit premises was originally let out to one Yesammabai. The plaintiff claimed that defendant No. 1 Parubai was no way related to the original tenant. Since she was residing with the original tenant, the plaintiff recognized her as a tenant. The plaintiff alleged that defendant No. 1 has sublet the suit premises to defendants No. 2 and 3 who are no way related to defendant No. 1. The learned District Judge thereafter observed, "admittedly all the 3 defendants are residing in the suit premises". The question is whether the plaintiff has proved one of the ingredients of subletting. A perusal of the impugned order does not show that the learned District Judge recorded any finding as regards satisfaction of one of the ingredients of unlawful subletting. Before passing decree on the ground of subletting, it is necessary to record a finding to the effect that third party was found to be in exclusive possession of the rented premises. In the present case, no such finding is recorded by the learned District Judge. In view thereof, the impugned order cannot be sustained and as such is liable to be set aside.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1964 of 1998

Decided On: 01.02.2019

 Parubai Vithal Kamble Vs. Girdharilal Agarwal

Hon'ble Judges/Coram:

R.G. Ketkar, J.

Citation: 2019(4) MHLJ 67,2019(1) RCR(Rent) 365

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Whether tenant can file suit in civil court for recovery of possession from unlawful sub tenant?

That brings me to the question of jurisdiction. It was argued by Mr. Gauba ' that after the amendment the suit must be treated as a suit for possession falling within the ambit of Section 28 of the Bombay Rent Act. It was said that this is a suit between a landlord and a tenant relating to the recovery of possession of premises, to which the provisions of the Act apply. It was also said that the suit relates to a claim and question arising out of the Act and its provisions. Therefore, so the argument proceeded, this Court has no jurisdiction to grant any relief to the plaintiffs or either of them. It was argued on the other hand that Section 28 applies to a suit between a landlord and a tenant when there is or has been a valid and binding tenancy between the parties, and admittedly there is here no lawful tenancy. There is, to my mind, considerable force in this argument. There is nothing in the definitions given in the Act which may throw any appreciable light on this short question Which arises for my decision. It would seem, however, from the definitions of the expressions landlord and tenant in the Act that the part of it which is relied on as relevant for the purposes of this suit deals only with tenancy legislation and applies to premises for which rent is payable by agreement of the parties or in respect of which standard rent is or can be fixed under the Act, It can hardly be disputed that no standard rent can be fixed by the Court in respect of a tenancy purported to be created by the parties but is prohibited by law and therefore illegal. I have little doubt that a tenancy between a landlord and a tenant contemplated by the Act and Section 28 can only be one which is recognised by law. Sub-tenancy which is prohibited in express and explicit terms by Section 15 of the Act cannot be said to create any right between the parties to it such as can flow from the relationship of landlord and tenant. No such relationship can arise between the parties to any such agreement or dealing which is illegal in its inception. An examination of the various provisions of the Act also lends support to the view that a sub-tenancy intended to be created in contravention of the provisions of the Act is not within the purview of Section 28. Section 13 of the Act, for instance, clearly contemplates a legal: tenancy as the basis of the rights of the landlord enumerated in it. For all these reasons I am unable to see how the present claim of plaintiff No. 1 based solely on his title and absence of any right or interest in the defendants in the premises in suit can fall within the operation of the Rent Act.

My answers to the issues that remain for determination are:

(1) In the affirmative.

12. My answer to the issue added at the instance of the plaintiffs is that plaintiff No. 1 is entitled to recover possession of the flat from the defendants.

13. My answer to the newly added issue about jurisdiction is that this Court has jurisdiction to grant relief to plaintiff No. 1.

IN THE HIGH COURT OF BOMBAY

O.C.J. Suit No. 901 of 1952

Decided On: 30.01.1957

Jiwanjirao Scindia  Vs.  Muzammil Khurshid

Hon'ble Judges/Coram:

S.T. Desai, J.

Citation:(1957) 59 Bom. L.R. 1011

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Whether court can pass eviction decree on ground of subletting if exclusive possession of sub tenant is not proved?

 In the present case, the learned District Judge has observed in
paragraph 11 that the suit premises was originally let out to one Yesammabai.
The plaintiff claimed that defendant No.1 Parubai was no way related to the
original tenant. Since she was residing with the original tenant, the plaintiff
recognized her as a tenant. The plaintiff alleged that defendant No.1 has sublet
the suit premises to defendants No.2 and 3 who are no way related to
defendant No.1. The learned District Judge thereafter observed, “admittedly all
the 3 defendants are residing in the suit premises”. The question is whether the
plaintiff has proved one of the ingredients of subletting. A perusal of the
impugned order does not show that the learned District Judge recorded any
finding as regards satisfaction of one of the ingredients of unlawful subletting.
Before passing decree on the ground of subletting, it is necessary to record a
finding to the effect that third party was found to be in exclusive possession of
the rented premises. In the present case, no such finding is recorded by the
learned District Judge. In view thereof, the impugned order cannot be
sustained and as such is liable to be set aside. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO.1964 OF 1998

Parubai Vithal Kamble  Vs. Girdharilal Agarwal 


CORAM : R.G. KETKAR, J.
DATE : 1st FEBURARY, 2019.

Citation: 2019(4) MHLJ 67

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When sub tenant has failed to prove that he has become direct tenant of original landlord?

The very stand taken by the defendant in the written statement shows that he admits to have taken the suit premises on sublease from the plaintiff. And his specific plea is that he became a direct tenant under the original owners. In the light of the pleading of the defendant, the issue should have been framed in such a way as requiring proof by the defendant regarding surrender of lease by plaintiff and his becoming a direct tenant of the original owners. Section 103 of the Indian Evidence Act is applicable here. The defendant wishes the court to believe that he became direct tenant of the original owner and therefore he must prove it. If he fails to prove, obviously plaintiff succeeds. The trial court has missed to notice this aspect.

 Now what needs to be further examined is whether the defendant has been able to prove his specific plea. Defendant who has adduced evidence as DW-1 has produced the lease deed dated 07.05.2002 as per Ex. D.1. Firstly this lease deed cannot be looked into as it is an unregistered instrument; since the duration of lease is three years, it should have been registered. Secondly, even if it can be looked into for collateral purpose of surrender of lease by the plaintiff, that aspect does not get established. In Ex. D1, there is a clear reference to suit premises being leased to plaintiff and the defendant being inducted as subtenant by the plaintiff. There is a recital that the erstwhile lessee requested the lessor i.e., the original owners to execute the lease agreement in favour of defendant. If this were to be the agreement reached among the original owners, the plaintiff and the defendant, the plaintiff should have been a party to Ex. D.1. She is not a party to the said document. Therefore the defendant cannot say that by virtue of Ex. D.1 he became a direct tenant under the original owners.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Regular First Appeal No. 121 of 2015

Decided On: 09.04.2018

 Fahima Irfan Patel  Vs. Troop Basheer Ahmed

Hon'ble Judges/Coram:

Sreenivas Harish Kumar, J.

Citation: AIR 2018 Karnataka 167

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Whether sub tenant is entitled to get protection of rent law if he fails to follow terms of tenancy?

By definition of word tenant as contained in section 5, Clause 11, sub-clause (a) such sub-tenants became themselves tenants and, therefore, they were bound to observe all the terms of tenancy and had to comply with all the provisions of the Rent Act, and if they committed a breach thereof then the protection would be taken away Section 14 cannot be read aside from the other provisions of the Act and if a sub-tenant became a lawful tenant from the inception of the sub-tenancy he was bound to Act strictly according to the Act i.e. must be ready and willing to observe the terms of the tenancy and must not to do anything that is prohibited by the Act. If he contravened the Act or did not observe the terms of the tenancy, section 14 could not possibly be regarded as giving him the right to be a tenant under the landlord. This is made clear by the words "shall, subject to the provisions of this Act be deemed to become the tenant." Since defendants Nos. 2 and 3 have not observed the terms of the tenancy by causing permanent alterations in the premises they are not entitled to be tenants of the landlord.

8. There is another aspect from which section 14 must be considered. The right of the sub-tenant is subject to the provisions of the Act and not an absolute right. The section therefore is controlled by the other sections of the Act, and if they entitle the landlord in a given case to obtain possession, section 14 cannot come in the way. Section 12 entitles the landlord to obtain possession for non-payment of rent and section 13 for other reasons. If therefore the landlord is entitled to obtain possession under any of these sections. S. 14 must give way. It would be preposterous to suggest that tenant who has destroyed the value of the property by unauthorized alterations should be able to successfully prevent the landlord from obtaining possession by parting it to a sub-tenant or who has not paid rent for years should prevent the landlord from obtaining possession by inducting a sub-tenant when notice is given. Again in a case where a landlord has sued both the tenant and sub-tenant for possession on the ground that he wants the premises for his personal use it could not be intended that he must thereafter start another litigation against the sub-tenant. For if section 14 is allowed to have uncontrolled effect after the termination of the tenant's tenancy the sub-tenant would become the tenant, and then he could claim a fresh notice for eviction.

IN THE HIGH COURT OF BOMBAY

Civil Revn. Appln. No. 349 of 1962 (with Civil Appln. No. 2932 of 1963)

Decided On: 15.11.1963

 Indian Coffee Workers' Co-operative Stores Ltd.

Vs.

 Bachoobai Cowasjee Dhanjeeshaw and Ors.

Hon'ble Judges/Coram:

D.V. Patel and Chitale, JJ.

Citation:1967 BCI 145

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Whether sub tenancy can be presumed if person other than tenant is present in shop?

The application for eviction was based on the allegation of sub-tenancy. The allegation that the premises had been sub-let to Pavan Trading Company had to be proved as a fact by the landlord and merely on the basis of photograph showing the presence of the son of the proprietor of Pavan Trading Company within the room, sub-letting could not be presumed. We must indicate that the approach of the trial Judge was totally vitiated. Merely from the presence of a person other than the tenants in the shop sub-letting cannot be presumed. There may be several situations in which a person other than the tenant may be found sitting in the shop ; for instance, he may be a customer waiting to be (sic) ant; a distributor who may have come to deliver his goods at the shop for sale; a creditor coming for collection of the dues; a friend visiting for some social purpose or the like. As long as control over the premises is kept by the tenant and the business run in the premises is of the tenant, sub-letting flowing from the presence of a person other than the tenant in the shop cannot be assumed. The Act does not require the Court to assume a subtenancy merely from the fact of presence of an outsider. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2147 of 1980

Decided On: 15.03.1984

Jagdish Prasad  Vs.Angoori Devi

Hon'ble Judges/Coram:

D.A. Desai and Ranganath Misra, JJ.

Citation: AIR 1984 SC 1447

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Whether lawful subtenancy is created if landlord accepts rent from sub tenant?

In Ram Saran v. Pyare Lal and Anr. MANU/SC/0596/1996 : (1996) 11 SCC 728 this Court observed that "by a unilateral action of the tenant of surrendering his right of tenancy in favour of a third party by delivering possession of the tenanted premises to the said third party, no new tenancy is created which may legally bind the landlord. By mere acceptance of rent for the tenanted premises tendered by the tenant in the name of the registered society, neither a new tenancy nor a valid sub-tenancy in favour of the said registered society has been created." It is said in clear and categorical terms that "the Rent Act is a special statute governing and regulating tenancy and sub-tenancy. Such provisions in the special statute supersede the general law of tenancy if the provisions of the special statute are incompatible with the general law of tenancy". It is observed that "mere knowledge of the landlord about occupation of the tenanted premises by the said registered society and acceptance of rent for the tenanted premises tendered by the tenant in the name of the registered society, will not create a sub-tenancy unless induction of a sub-tenant is made with the written consent of the landlord. Even if the landlord has accepted payment of the rent for the disputed premises.... Such acceptance of rent will not constitute legal and valid sub-tenancy.... Consequently, landlord will not be estopped from claiming eviction of unauthorized sub-tenant along with the tenant for indulging in inducting sub-tenant without lawful authority. (emphasis by us)

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6299 of 2010 (Arising Out of Special Leave Petition (C) No. 2517 of 2007)

Decided On: 05.08.2010

Vinaykishore Punamchand Mundhada and Anr. Vs. Shri Bhumi Kalpataru and Ors.

Hon'ble Judges/Coram:

B. Sudershan Reddy and S.S. Nijjar, JJ.

Citation: 2011(1) MHLJ 41 SC,2010(6) ALLMR 474 SC,2010(5) Bom CR584 SC

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Whether sub tenant is necessary party to eviction petition?

In Importers and Manufacturers Ltd. v. Pheroze Framroze Taraporewala and Ors.,MANU/SC/0071/1952 : [1953]4SCR226 this Court held that in a suit for possession by a landlord against a tenant, sub-tenant is merely a proper party and not a necessary party.

28. In Rupchand Gupta v. Raghvanshi (Pvt.) Ltd. and Anr., MANU/SC/0296/1964 : [1964]7SCR760 an ex parte decree was passed in favour of the landlord and against the tenant. An application for setting aside the decree was made by the sub-tenant by invoking the provisions of Order IX, Rule 13 of the Code of Civil Procedure, 1908, inter alia contending that the decree was collusive inasmuch as the sub-tenant was not joined as party defendant. The decree was, therefore, liable to be set aside. Repelling the contention, this Court observed:

"(I)t is quite clear that the law does not require that the sub-lessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sublessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act. " (emphasis supplied)

29. In our considered opinion, the present respondents could not be said to be "necessary party" to the suit. Non-joinder of respondents, hence, would not make a decree passed by the Court of Small Causes, Bombay nullity or inexeculable. The High Court erroneously proceeded against the well settled principle of law by observing in the impugned judgment that since the respondents (petitioners before the High Court) were claiming through Papamiya and as they were not joined as 'party' in the suit, the orders passed by the court "would in no way affect or bind them". The above observation, in our opinion, did not lay down the law correctly.

30. Since the respondents were not necessary parties, it was not incumbent on the plaintiffs to join them in the suit. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5617 of 1999

Decided On: 13.08.2004

Balvant N. Viswamitra and Ors.

Vs.

Yadav Sadashiv Mule (dead) through Lrs. and Ors.

Hon'ble Judges/Coram:

R.C. Lahoti, C.J., G.P. Mathur and C.K. Thakker, JJ.

Citation: 2005(2) Bom CR 259

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Whether eviction suit can be dismissed if subtenant has subsequently vacated tenanted premises?

Insofar as the submission advanced on behalf of the respondents that even assuming that the plaintiff had established the case of subletting it would be essential to find out the date from which the sub tenancy was commenced and since there was no clear evidence about the said date it would be necessary to remand the matter. I fail to understand as to how this would affect the conclusion with regard to ground of subletting. In my view, it was sufficient for the plaintiff to bring on record that prior to the institution of the suit the defendants had sublet the suit premises. And there is ample material on record in the present case to indicate that defendant No. 5 was inducted as subtenant prior to the institution of the suit. Merely because the subtenant has subsequently vacated the suit premises that would be of no avail. This position is no more res integra and has been answered by the Apex Court in the case of Gajanan Dattatraya v. Sherbanu Hosang Patel and others, (supra) and the subsequent decision reported in Raghunathi and another v. Raju Ramappa Shetty (supra). Now coming to the other submission, the decision of the Division Bench of this Court has already concluded the Issue that the successor-in-interest can recover possession on the ground of subletting if the said ground was not waived by the original landlord. (See Radhabai Bapurao Shelar and others v. Trimbak Madhavrao Shirole and others. Admittedly in the present matter there is no pleading that the former landlord had waived the ground of subletting in favour of the defendants. In absence of such a plea it is not possible to entertain this contention as the same will not arise of consideration at all. As observed earlier in view of the settled legal position what is to be seen Is that on the date of institution of the suit whether ground of subletting has been made out, as in the present case. It is, therefore, not necessary to answer the question of waiver of sub-tenancy in the present case. Further the enquiry into the date of commencement of sub-tenancy would be wholly irrelevant having regard to the facts and circumstances of the present case, therefore, there is no need of remanding the matter to examine the said question as contended by the respondents.

IN THE HIGH COURT OF BOMBAY

Write Petition No. 5390 of 1987

Decided On: 22.12.2000

 Radhabai Krishnanand Vernekar Vs. Gourawwabai Sharnappa Bukka and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2001(2) MHLJ 645

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Whether sub tenancy can be proved on basis of photograph?

 Without going into the question whether the petition was maintainable or not, we find the assessment made by the High Court to be completely incorrect. The fact that the sub-tenant was carrying on business from the suit shop was admitted by him when he stepped into the witness box as D.W. 2. This assertion is equally supported by the photographs which were placed on record by the Appellant-landlord. It is common knowledge that normally in jewellery business the person who sits on the gaddi is the owner of the business in question. Be that as it may, once this fact stood admitted by D.W. 2, the findings recorded by the courts below were perfectly right and justified. Even if we were to consider the petition filed in the High Court to be one under Article 227 and not under Article 226 of the Constitution of India, there was no justification to upset the findings of fact concurrently recorded by courts below which findings are well-supported by the evidence on record.

IN THE SUPREME COURT OF INDIA

C.A. No. 5599 of 2010

Decided On: 21.07.2016

Devendra Prakash Bansal Vs. Sunil Kumar Verma and Ors.

Hon'ble Judges/Coram:

F.M. Ibrahim Kalifulla and U.U. Lalit, JJ.

Citation: (2016) 14 SCC 283.

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Whether exemption from rent law is in respect of premises or with respect to parties?

From the aforesaid it is graphically clear that an Insurance Company is not protected under the 1999 Act. Once it is held that Defendant No. 1, the New India Assurance Company, the original tenant, is not protected, the question would be whether a subtenant can be protected under the Act. In the case of Bhatia Co-operative Housing Society Ltd. (supra), it has been clearly laid down that Section 4(1) of the 1947 Act applies to premises and not to parties or their relationship. Section 3 uses the term 'premises'. The provision commences with the non-obstante clause that the Act does not apply to any premises belonging to the Government or a local authority. Sub-Section 3(1)(b) makes it clear that the Act does not apply to any bank, public sector undertaking or certain other categories of tenants. The Insurance Company is covered under Section 3(1)(b). Thus, as a logical corollary, the Act does not apply to the premises held by the Insurance Company who is a tenant.

23. The learned Single Judge has allowed protection to the Government Department on the foundation that it has become a tenant. We are disposed to think that the analysis is fundamentally erroneous. When the Act does not cover the tenant, namely, the Insurance Company as basically the exemption applies only to premises and not to any relationship, the subtenant who becomes a deemed tenant cannot enjoy a better protection or privilege by ostracizing the concept of premises which is the spine of the provision.
IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 3356-3357/2012 (Arising out of SLP (C) Nos. 3273-327 of 2011)

Decided On: 03.04.2012

 Kesri Commissariat and Ors. Vs. Ministry of Food and Civil Supplies, Govt. of Maharashtra, Mumbai and Anr.

Hon'ble Judges/Coram:

Dalveer Bhandari and Dipak Misra, JJ.
Citation: AIR 2012 SC 1271: 2012(5) MHLJ 212(SC)

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How to prove that tenant has sub-letted tenanted premises?

 Undoubtedly, the initial burden to prove that the sub-tenant is in exclusive possession of the property is on the owner, however, the onus to prove the exclusive possession of the sub tenant is that of preponderance of probability only and he has to prove the same prima facie only and if he succeeds then the burden to rebut the same lies on the tenant.

15) In this regard, it is appropriate to quote a decision of this Court in Associated Hotels of India Ltd., Delhi vs. S.B. Sardar Ranjit Singh AIR 1968 SC 933 wherein it was held that when eviction is sought on the ground of sub-letting, the onus to prove sub-letting is on the landlord. If the landlord prima-facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.

16) Again, in Kala and Anr. vs. Madho Parshad Vaidya, (1998) 6 SCC 573, this Court reiterated the very same principle. It was observed that the burden of proof of sub-letting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration.

17) In Vaishakhi Ram & Ors. vs. Sanjeev Kumar Bhatiani (2008) 14 SCC 356, it was held as under:-

“21. It is well settled that the burden of proving sub-letting is on the landlord but if the landlord proves that the sub-tenant is in exclusive possession of the suit premises, then the onus is shifted to the tenant to prove that it was not a case of sub-letting. Reliance can be placed on the decision of this Court in Joginder Singh Sodhi v. Amar Kaur.

Therefore, we are in full agreement with the High Court as well as the courts below that since Appellants 2 to 4 had been in exclusive possession of the suit shop and Appellant 1 could not prove that it was not a case of sub-letting, the suit shop had been sub-let by Appellant 1 in favour of Appellants 2 to 4. Therefore, no interference can be made with the findings arrived at by the High Court as well as the courts below on the question of sub-letting.”

18) Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person in possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom  the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case.

REPORTABLE

Supreme Court of India

Prem Prakash vs Santosh Kumar Jain on 30 August, 2017

Author: R Agrawal

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