Lal Vs. Sheo Murti Gupta  INSC 12 (11 January 1994)
S. (J) Mohan, S. (J) Mukherjee M.K. (J)
1994 SCC (5) 339
Admittedly the appellant Janki Devi was the original lessee. The purpose of
letting was "for the use of education of children (school) only for one
shift'. The school was run under the name and style of "Tagore School" by a Society called Rabindra Educational Society
registered under the Registration of Societies Act. The said Janki Devi is the
Secretary of the said Society. Rent receipts were issued in the name of Tagore School. It was under these circumstances that the
respondent-landlord sought to evict lessee on the ground of subletting in favour
of the Society. All the courts below held against the tenant accepting the
landlord's contention of subletting.
this civil appeal before us, what is argued is that Janki Devi has effective
control and has not parted with the legal possession. The finding, that it is a
case of subletting, cannot be supported. In aid of this submission, three
decisions are cited, namely, Madras Bangalore Transport Co. (West) v. Inder
Singh1, Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri2 and Shalimar Tar
Products Ltd. v. H. C. Sharma3.
have given our careful consideration to the above arguments. We are unable to
agree with the submission.
is a case in which, as we have pointed out above, Janki Devi as a person was
the lessee while the school is run by Rabindra Educational Society under the name
and style of Tagore School. The question would be whether she is in juridical
possession of the premises. The test to determine a sublease is whether legal
possession still remains with the original lessee. It has to be carefully noted
in this case that Rabindra Educational Society is to be governed by a managing
body consisting of seven members. Paragraph 2 of the Rules and Regulations of
the Rabindra Educational Society is as below:
Society shall be governed by Managing Body consisting of seven members. These
members will be elected in a General Body Meeting from amongst the members
during the last week of March every year. President, Secretary and Joint
Secretary will be elected by the members themselves." 1 (1986) 3 SCC 62 2
(1987) 3 SCC 538 3 (1988) 1 SCC 70 339
Therefore, as Secretary, the appellant Janki Devi is participating in the
management. In such a case, the test as laid down in the very ruling cited by
learned counsel for the appellant is in Shalimar Tar ProduCtS3. "To
constitute subletting there must be parting of the legal possession i.e.
possession with the right to include and also right to exclude others".
she is merely the Secretary, this test is not answered. In other words, she
cannot either include or exclude others in relation to possession.
Bangalore Transport Co. case1 has no application to the facts because the
original lessee there was a partnership firm which later on became a company.
Under those circumstances, it was held to be a company as alter ego of the
original lessee. Hence that ruling is distinguishable.
Turning to the case-law of Helper Girdharbhai2, the tenant was a partner who
entered into a partnership. It was held that there was no subletting. This is
because in a partnership, nobody can predict as to what exactly is the share of
a partner and each partner owns the entire partnership until dissolution.
Therefore, this case is again distinguishable. Accordingly, we conclude that
there are no merits in this appeal, which is dismissed but in the circumstances