Krishnawati Vs. Hans Raj  INSC
226 (29 November 1973)
SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 280 1974 SCR (2) 524
RF 1987 SC1782 (15) R 1987 SC2055 (6) F 1988
SC1362 (6) R 1989 SC1141 (20)
Delhi Rent Control Act (59 of 1958) Ss. 14
and 39 (2)-Onus of proving sub-letting--Mixed question of law and fact, what
The appellant took a lease of shop premises
from the respondent. From the time of letting, a chemist's business was carried
on in the shop by S with the occasional help of the appellant. S and the
appellant were living as husband and wife to the knowledge of the respondent.
The respondent applied under s. 14 of the Delhi Rent Control Act, 1958, for
eviction of the appellant on the ground that she had sublet the premises to s.
The Rent Controller and the Tribunal on appeal held that the appellant and S.
were living together as husband and wife, and that therefore there was no
question of any subletting by the appellant. In second appeal, holding that two
substantial questions of law were involved namely, one relating to the status
of the appellant as the wife of S, and the other, whether sub- letting was
established, the High Court concluded that there was subletting in favour of S.
Allowing the appeal to this Court,
HELD : (1) Under s. 39 (2) of the Act the
High.-Court could interfere in second appeal only if there was a substantial
question of law. On the question whether the appellant was legally married no
finding was necessary in the eviction suit. It was sufficient for the rent
court to proceed on the finding that the appellant and S were living together
as husband and wife, whether they were legally married or not.
[528C-D, E-F] (2)The question whether there
was subletting is not a mixed question of law and fact. In a mixed question of
law and fact the ultimate conclusion has to be drawn by applying principles of
law to basic findings, but in the determination of a question of fact no
application of any principle of law is required in finding either the basic
facts or in arriving at the ultimate conclusion. The question to be determined
in the circumstances of this case was whether it was likely that the appellant
had sublet the premises to S. The negative answer given by the rent court is
merely the factual common sense inference which did not call for the
application of any principle of law. [528F-G; 529A-B] Meenakshi Mills, Madurai
v. The Commissioner of Income-tax, Madras,  S.C.R. 691, followed.
(3)When eviction is sought on the ground of
subletting the onus of proving subletting is on the landlord. If the landlord
prima-facie shows that the occupant was in the exclusive possession of the
premises let out for valuable consideration, it would then be for the tenant to
rebut the evidence. But in the present case the respondent produced no evidence
to show subletting in spite of the appellant's denial in the written statement.
[527C-D] Associated Hotels of India Ltd. Delhi v. S. B. Sardar Ranjit Singh,
 2 S.C.R. 548, followed.
(4)Under s. 14 (4) premises could be deemed
to have been sub-let by the tenant only when the Controller is satisfied that
some person is let into possession ostensibly as a partner in business but
really for the purposes of subletting. This provision has no application to the
facts and circumstances of the present case. [526G-H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1475 of 1970.
Appeal by Special Leave from the Judgment and
Order. dated the 29th May, 1970 of the High Court of Delhi in Second Appeal No.
25-D of 1966.
525 V.M. Tarkunde, M. N. Bombhra and Saroja
Gopala Krishnan for the appellant.
Hardyal Hardy, S. K. Mehta, K. R. Nagaraja,
A. C. Sehgal and O. P. Gupta for the respondent.
The Judgment of the Court was, delivered by
PALEKAR, J.-This is an appeal by special leave from an order passed by the
single Judge of the High Court of Delhi in second appeal under section 39 of
the Delhi Rent Control Act, No. 59 of 1958.
On or about September 10, 1959 the respondent
landlord let out the premises in suit to the appellant on a rent of Rs.
125/- per month. The premises consisted of a
shop. On 1-9- 1962 the respondent applied under section 14 of the above Act to
the Rent Controller, Delhi for evicting the appellant on the ground that she
had sub-let the entire premises to one Sohan Singh who, according to the
respondent, was running a business under the name of Royal Dispensing Chemists
and Druggists in the shop. It was further alleged that the appellant was
charging a fabulous amount as rent from her sub-tenant Sohan Singh. The
appellant in her written statement admitted the tenancy but denied sub-
letting. She alleged that Sohan Singh was her husband and from the time of the
lease the business of a Chemist was being run there in the premises by her
husband and she also occasionally helped him in the running of the business.
The Rent Controller was of the view that the
appellant was the legally Wedded wife of Sohan Singh. In any event he held,
Sohan Singh and the appellant were living together as husband and wife and,
therefore, there was no question of any sub--letting by the appellant of the
premises. That finding was confirmed in appeal by the Rent Control Tribunal,
Delhi. Aggrieved by the decision, the respondent went in second appeal to the
High Court under section 39(1) of the Act. It was contended before the court by
the respondent that two substantial questions of law and fact were involved in
the appeal-one relating to the status of the appellant as wife and the other
whether on the facts found the ground of sub-letting had been established. The
learned single Judge agreed that the appeal involved substantial questions of
law as submitted, and came to the conclusion that there was sub-setting in
favour of Sohan Singh. Accordingly, he gave an order for evicting the
appellant. So this appeal by special leave.
It is contended on behalf of the appellant
that the learned single Judge has interfered with a pure finding of fact.
Under section 39(2) of the Act the High Court
could interfere in second appeal only if there was a substantial question of
law. In the present case, he submitted, there was no question of law, much less
substantial question of law and, therefore, the High Court was in error in
interfering with the concurrent finding of the Rent Control authorities, There
is great force in this contention.
The High Court has dealt with the case as if
this is a matrimonial proceeding-in which the status of the appellant as the
wife of Sohan M8--602 SUP CI/74 526 Singh was under direct challenge. The
simple question which had to be determined in the case was whether having
regard to the fact that the appellant and Sohan Singh were living as husband
and wife, it was open to draw, in the absence of evidence to the contrary, the
factual inference that the wife had sub-let the premises to her husband.
Sub-letting like letting, is a particular type of demise of immovable property
and is distinct from permissive user like that of a licensee. If two persons
live together in a house as husband and wife and one of them who owns the house
allows the other to carry on business in a part of it, it will be in the
absence of any other evidence, a rash inference to draw that the owner has let
out that part of the premises. And that is what the learned single Judge has
done in the present case. He was of the view that even if it is assumed that
the appellant was the wife of Sohan Singh, she, who was entitled to possession
of the shop premises as a tenant, must be presumed to have sub-let the same to
Sohan Singh to carry on his business, In support of this conclusion he relied
on clause (b) of the proviso to sub-section (1) of section 14 of the Act read
with sub-section 4 of that section. The provisions are as follows :
14(1) Provided that the Controller may, on an
application made to him in the prescribed manner, make an order for the recovery
of possession of the premises on one or more of the following grounds only,
(b) that the tenant has, on or after the 9th
day of June, 1952 sub-let, assigned or otherwise parted with the possession of
the whole or any part of the premises without obtaining the consent in writing
of the landlord;" Sub-section (4) of section 14 is as follows :
"(4) For the purposes of clause (b) of
the proviso to sub-section (1),any premises which have been let for being used
for the purposes of business or profession shall be deemed to have been sub-let
by the tenant, if the Controller is satisfied that the tenant without obtaining
the consent in writing of the landlord has, after the 16th day of August, 1958,
allowed any person or occupy the whole or any part of the premises ostensibly
on the ground that such person is a partner of the tenant in the business or
profession but really for the purpose of sub-letting such premises to that
Under sub-section (4) referred to above the
premises could be deemed to have been sub-let by the tenant only when the
Controller is satisfied that some person is let into possession ostensibly as a
partner in business but really for the purposes of sub-letting. These
provisions evidently have no application to the facts of the present case. It
is not the case of anybody that the appellant was the owner of the business
carried on in the premises and she had let in Sohan Singh into possession
ostensibly as a partner in their business. The learned Judge was, 527
therefore, in error in relying on the provisions of the Act for presuming that
the appellant must have sub-let the premises.
The case of the respondent in his application
under section 14 of the Act was that the appellant had sub-let the whole
premises to Sohan Singh who was running the business under the name of Royal
Dispensing Chemists and Druggists and that the entire premises have been
sub-let by the appellant and the appellant had completely parted with
possession without the written consent of the respondent.
It was also alleged that the appellant was
charging fabulous amount of rent from the sub-tenant Sohan Singh. Sub-letting
was,' therefore, the principal ground on which eviction was sought. When
eviction is sought on that ground it is now settled law that 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. See: Associated
Hotels of India Ltd., Delhi V. S.B. Sardar Ranjit Singh(1).In the present case
the respondent produced no evidence to show such sub-letting in spite of the
appellant's denial in the written statement of any sub-letting. It was averred
by her therein that Sohan Singh was her husband and that right from the taking
of the shop premises on rent Sohan Singh was carrying on business of a Chemist
therein and appellant also helped him occasionally as his wife. The averment
that she was the wife of Sohan Singh provided the necessary ammunition for a
formidable battle in which the respondent took upon himself to show that she
was not the legally married wife of Sohan Singh. He called Sohan Singh's first
wife as his first witness in this case but all that the lady was able to say
was that she had no knowledge if the appellant was married to Sohan Singh but
she knew that he lived with the appellant since about six years before her
deposition, recorded in 1963. The respondent himself in his testimony admitted
that he had never himself made any enquiry as to whether Sohan Singh and the
appellant are husband and wife or not. Nor could he deny that they were living
together. His reasons for saying that Sohan Singh was a sub-tenant were in his
own words ; "As Sohan Singh is the tenant, I can, therefore, say that the
capital invested in the shop might be that of Sohan Singh. Neither any talks
regarding sub-letting took place in my presence, nor the rent was paid in my
presence," In undertaking to prove that the appellant was not Sohan
Singh's wife the respondent completely lost sight of his own weak position. The
appel- lant had passed a rent note in the respondent's favour and it was the
case of the appellant that in that rent note the respondent had in his own
handwriting written' that the appellant was the wife of Sohan Singh. The
appellant summoned him to produce his rent note but the respondent did not
produce it. So in his cross examination he was shown a typed copy of it and
this he accepted as a true copy. The true copy disclosed that the appellant was
accepted as the wife of Sohan Singh. Besides, when the appellant and Sohan
Singh gave evidence of the ,fact that they were living as husband and wife and
looking after the (1)  2 S.C.R. 548.
528 business in the shop there was hardly any
cross examination on the point. The respondent relied principally on some
previous self-serving statements made by Sohan Singh in other proceedings which
could not be used as substantive evidence in the present case. The evidence was
clear namely, that to the knowledge of the respondent, the appel- lant and
Sohan Singh were living as husband and wife and from the day the rent note was
passed by the appellant in 1959 a Chemist's shop was opened in the premises
which was run principally by Sohan Singh but occasionally by the appellant
also. The question is whether that evidence gives rise to the factual inference
that the appellant had sublet the premises to Sohan Singh. The first two courts
held that it did not. This was a concurrent finding of fact and it seems to us
that the learned counsel for the appellant is right in contending that the High
Court in second appeal should not have interfered with that finding especially
when section 39(2) of the Act provides that no appeal shall it to the High
Court unless 'the appeal involved some substantial question of law.
The learned single Judge thought that two
substantial questions of law were involved-one relating to the status of the
appellant as the alleged wife of Sohan Singh and the second whether on the
facts found, sub-letting was established. Both these questions involved,
according to the learned Judge, substantial questions of mixed fact and law.
As to the first question whether the
appellant was legally married, that was a question on which no finding was
necessary in an eviction suit. It was sufficient for the Rent Court to proceed
on the finding that the appellant and Sohan Singh were living as husband and
wife, whether they were legally married or not. This was specifically pointed
out by the Additional Rent Controller in his judgment. As regards the second
question, one does not see how it is a mixed question of law and fact. In the
'determination of a question of fact no application of any principle of law is
required in finding either the basic facts or arriving at the ultimate
conclusion; in a mixed question of law and fact the ultimate conclusion has to
be drawn by applying principles of law to basic findings. See : Meenakshi
Mills, Madurai v. The Commissioner of Income-Tax, Madras (1).The basic facts in
the present case were (1) the appellant and Sohan Singh were living as husband
and wife to the knowledge of the respondent; (2) the appellant took the lease
of the shop premises from the respondent in 1959; (3) from the time of the
letting a Chemist's business was carried in the shop by Sohan Singh with the
occasional help of the appellant.
The question to be determined was whether in
the above circumstances it was likely that the appellant had (1)  S.C.R.
529 sub-let the premises to Sohan Singh. The
negative answer given to it by the Rent Courts is merely the factual common
sense inference which did not call for the application of any principle of law.
In out view, no question of law-much less, a substantial question of law-was
involved in the second appeal and the learned Judge was in error in disturbing
the concurrent findings of fact of the rent control authorities.
The appeal is, therefore, allowed, the order
passed by the High Court is set aside and that of the Rent Control Authorities
is restored with costs throughout.