Parvinder
Singh Vs. Renu Gautam & Ors [2004] Insc 315 (22 April 2004)
R.C.
Lahoti, Brijesh Kumar & Arun Kumar. R.C. Lahoti, J.
The
suit premises consist of a shop bearing No.96/1, Lower Bazar, Shimla, governed
by the H.P. Urban Rent Control Act, 1987. The appellant is the
landlord-cum-owner of the shop. It was let out to late Vijay Gautam under an
oral lease. On 31.12.1988, a partnership deed was signed between late Vijay Gautam
and Harbhajan Singh, the respondent No.3 herein. On 26.6.1991, Vijay Gautam died.
The partnership stood dissolved consequent thereupon. On 29.6.1991, another
deed of partnership was signed between respondent No.1, the widow of late Vijay
Gautam acting for herself and as guardian of respondent No.2, the minor son of
Vijay Gautam, on the one hand and Harbhajan Singh, respondent No.3 on the other
hand.
On
7.7.1992, appellant initiated proceeding for eviction of the respondents from
the shop alleging that the tenant Vijay Gautam had sublet the premises to Harbhajan
Singh which subletting has been continued by the heirs Respondent No.1 &
2, after the death of Vijay Gautam. A ground of default in payment of rent was
also taken. The suit for eviction was dismissed by the Controller and the
dismissal was upheld by the appellate authority as also by the High Court in
civil revision. Feeling aggrieved, the landlord has filed this appeal by
special leave.
A
perusal of the three judgments ___ impugned herein ___ shows that the ground
for eviction for default in payment of rent has been negatived by all the three
Courts. So far as the ground of subletting is concerned, the plea has not been
gone into on merits by any of the Courts because of the law laid down by a Dharmalingam,
(1987) 1 SCC 180. In A.S. Sulochana's case, the tenant was sought to be evicted
on the ground of subletting within the meaning of Section 10(2)(ii)(a) of Tamil
Nadu Buildings (Lease and Rent Control) Act, 1960. The facts found therein were
that the original landlord and tenant between whom the lease was created had
both died. No evidence, direct or circumstantial, was available wherefrom it
could be inferred if the lease prohibited the tenant from creating a
sub-tenancy or whether the sub-tenancy was created by the tenant without the
written consent of the landlord. Under the Tamil Nadu Act, the landlord could
not succeed in evicting the tenant without establishing that Section 10(2)(ii)(a)
was violated. Thus, the Court found that an inference as to creation of an
unlawful sub- tenancy within the meaning of Section 10(2)(ii)(a) of the Tamil Nadu
Act could not be drawn. However, the Court went on to observe:- "When the
statute says the tenant who is sought to be evicted must be guilty of the
contravention, the court cannot say, 'guilt of his predecessor in interest'
will suffice. The flouting of the law, the sin under the Rent Act must be the
sin of the tenant sought to be evicted, and not that of his father or
predecessor in interest. Respondent inherited the tenancy, not the sin, if any,
of his father.
The
law in its wisdom seeks to punish the guilty who commits the sin, and not his
son who is innocent of the rent law offence. It being a penal provision in the
sense that it visits the violator with the punishment of eviction, it must be
strictly construed." A.S. Sulochana's case came up for the consideration
of a Chand & Ors., (2003) 4 SCC 635, though in the context of dealing with
a ground for eviction under a local rent control law of Madhya Pradesh. A.S. Sulochana's
case was distinguished and also adversely commented upon. The Court felt that
in A.S. Sulochana's case the Division bench was influenced by the opening
clause of the relevant provision in Tamil Nadu Act which begins with "a
landlord who seeks to evict his tenant" so as to hold that the facts
constituting the ground for eviction should be referable to the present tenant
and not to his predecessor who had already died. The Court further held in Imdad
Ali's case:- "It matters not whether such default is made by the original
tenant or by his successor inasmuch as the successor-in-interest of the
original tenant continues to be a tenant within the meaning of the provisions
thereof. By reason of death of the original tenant, a new tenancy is not
created. A successor-in-interest of a tenant holds his tenancy right subject to
rights and obligations of his predecessor. He does not and cannot claim a
higher right than his predecessor. It is now well settled that a person by
reason of inheritance or assignment does not derive any better title than his
predecessor, and, thus, the right which the original tenant did not possess
cannot be passed on to his successor." In Imdad Ali's case, the
three-Judges Bench opined that the law laid down in A.S. Sulochana's case was
not applicable for interpreting a provision in M.P. Accommodation Control Act
1961. The Bench also said ___ "We do not subscribe to the general
observations made in A.S. Sulochana's case and to the said extent it cannot be
held to have laid down a good law and is overruled accordingly".
The
relevant provision of the H.P. Act reads as under:- "14.(1) xxx xxx xxx
(2) A landlord who seeks to evict his tenant shall apply to the Controller for
a direction in that behalf. If the controller, after giving the tenant a
reasonable opportunity of showing cause against the applicant, is satisfied__
xxx xxx xxx (ii) that the tenant has after the commencement of this Act without
the written consent of the landlord__ (a) transferred his rights under the
lease or sublet the entire building or rented land or any portion thereof, or
xxx xxx xxx the Controller may make an order directing the tenant to put the
landlord in possession of the building or rented land and if the Controller is
not so satisfied he shall make an order rejecting the application:
xxx xxx
xxx" Tenancy is a heritable right unless a legal bar operating against
heritability is shown to exist. Thus, the one who inherits tenancy rights also
inherits the obligations incurred by the deceased tenant alongwith the rights
which he had. It is difficult to accept a proposition that on death of the
tenant his heirs inherit only rights and not obligations. If that be so, then
the heirs would not be liable to pay any arrears of rent which were not paid by
the deceased-tenant.
The
judgments of the Controller, the appellate authority and the High Court which
proceed on A.S. Sulochana's case cannot now be sustained and deserve to be set
aside.
The
rent control legislations which extend many a protection to the tenant, also
provide for grounds of eviction.
One
such ground, most common in all the legislations, is subletting or parting with
possession of the tenancy premises by the tenant. Rent control laws usually
protect the tenant so long as he may himself use the premises but not his
transferee inducted into possession of the premises, in breach of the contract
or the law, which act is often done with the object of illegitimate
profiteering or rack renting. To defeat the provisions of law, a device is at
times adopted by unscrupulous tenants and sub-tenants of bringing into existence
a deed of partnership which gives the relationship of tenant and sub-tenant an
outward appearance of partnership while in effect what has come into existence
is a sub-tenancy or parting with possession camouflaged under the cloak of
partnership. Merely because a tenant has entered into a partnership he cannot
necessarily be held to have sublet the premises or parted with possession
thereof in favour of his partners. If the tenant is actively associated with
the partnership business and retains the use and control over the tenancy
premises with him, may be along with the partners, the tenant may not be said
to have parted with possession. However, if the user and control of the tenancy
premises has been parted with and deed of partnership has been drawn up as an
indirect method of collecting the consideration for creation of sub-tenancy or
for providing a cloak or cover to conceal the transaction not permitted by law,
the Court is not estopped from tearing the veil of partnership and finding out
the real nature of transaction entered into between the tenant and the alleged
sub-tenant.
A
person having secured a lease of premises for the purpose of his business may
be in need of capital or finance or someone to assist him in his business and
to achieve such like purpose he may enter into partnership with strangers.
Quite often partnership is entered into between the members of any family as a
part of tax planning. There is no stranger brought on the premises. So long as
the premises remain in occupation of the tenant or in his control, a mere
entering into partnership may not provide a ground for eviction by running into
conflict with prohibition against subletting or parting with possession.
This
is a general statement of law which ought to be read in the light of the lease
agreement and the law governing the tenancy.
There
are cases wherein the tenant sublets the premises or parts with possession in
defiance of the terms of lease or the rent control legislation and in order to
save himself from the peril of eviction brings into existence, a deed of
partnership between him and his sub-lessee to act as a cloak on the reality of
the transaction. The existence of deed of partnership between the tenant and
the alleged sub-tenant would not preclude the landlord from bringing on record
material and circumstances, by adducing evidence or by means of cross
examination, making out a case of sub-letting or parting with possession or
interest in tenancy premises by tenant in favour of a third person. The rule as
to exclusion of oral by documentary evidence governs the parties to the deed in
writing. A stranger to the document is not bound by the terms of the document
and is, therefore, not excluded from demonstrating the untrue or collusive
nature of the document or the fraudulent or illegal purpose for which it was
brought into being. An enquiry into reality of transaction is not excluded
merely by availability of writing reciting the authority for the proposition
that oral evidence in departure from the terms of a written deed is admissible
to show that what is mentioned in the deed was not the real transaction between
the parties but it was something different. A lease of immovable property is
transfer of a right to enjoy such property. Parting with possession or control over
the tenancy premises by tenant in favour of a third person would amount to the
tenant having 'transferred his rights under the lease' within the meaning of
Section 14(2)(ii)(a) of the Act.
Shri Gourab
Banerjee, the learned senior counsel for the appellant, submitted that all the
relevant evidence and material are available on record and both the parties
have adduced the necessary evidence. All that is needed to be done is its
appreciation and to draw inferences. In such circumstances and keeping in view
the period of time for which the proceedings have already remained pending, we
deem it proper to remand the matter to the appellate authority for hearing and
decision afresh.
Accordingly,
the appeals are allowed. The judgments of the High Court and the Appellate
Authority are set aside. The case is remanded to the Appellate Authority to
hear and decide the appeal afresh after hearing the parties and to record a
finding on the availability of ground for eviction under Section 14(2) of H.P.
Urban Rent Control Act, 1987 and then decide the appeal finally. The costs
shall abide the result.
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