Devayani v. Pulickaparambil Hamsa Haji — 1996 DIGILAW 40 (KER)

ORDER J.B. Koshy, J 1. Both these revision petitions are filed by the tenants mother and son. Respondent landlord filed RCP No. 30 of 1987 before the Rent Control Court, Ottapalam for eviction of the tenant under S.11(2), 11(3), 11(4)(i) and S.11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act). It is contended that there is default in payment of rent, bona fide need of the premises in question for starting a business in stationary for landlord's son Abdul Jaleel, unauthorised subleasing of the premises by the first revision petitioner to the second revision petitioner and cessation of occupation of the premises continuously for a period of more than six months. The Rent Control Court found that the premises was sublet. It was also found that eventhough the Rent Deed was in favour of the first revision petitioner (mother) her son was in possession of the petition scheduled building and was conducting business in Kerosene under the name and style Jayabharath Oil Agencies, the rent receipts have been issued in the name of the second petitioner son and the transfer of possession from the first revision petitioner to second petitioner was acquiesced in by the landlord. The landlord has issued rent receipts in favour of the son (second revision petitioner). Therefore, Rent Control Court found that eviction cannot be ordered on the basis of subletting. With regard to the bona fide need, Rent Control Court found that there is bona fide need. Since the original tenant is the mother and son is a subtenant, he cannot claim the benefit of second proviso to S.11(3). Since first revision petitioner was not conducting business in the scheduled premises, it was found that she is not depending for her livelihood on the income from the business conducted in the scheduled premises. Since as a subtenant, the second revision petitioner cannot claim the benefit of S.11(3) following the judgment of this Court in A. V. Kammath and another v. M. K. Chandran and 5 others ( 1989 (1) KLJ 292 ) and as the mother is not conducting business but son is conducting business it cannot be stated that mother is depending upon the income from the business conducted in the petition scheduled premises, the Rent Control Court allowed the eviction of the revision petitioners/tenants under S.11(3) of the Act. Aggrieved by the finding of the Rent Control Court that there is no subtenancy landlord filed RCA No. 87 of 1990 and aggrieved by the finding regarding bona fide need of the landlord, the present revision petitioners filed RCA No. 88 of 1990. The Appellate Authority allowed the appeal filed by the landlord and dismissed the appeal filed by the tenants by a common judgment. Against the above common judgment these two revision petitions are filed by the tenants. 2. The revision petitioners are mother and son. One son of the first revision petitioner lost his life during the Pakistan Invasion of India in 1971 and the second revision petitioner is the only surviving son of the first revision petitioner. The first revision petitioner has got a licence from Indian Oil corporation for dealership in Kerosene oil and for conducting the above business petition scheduled premises were leased out on a monthly rent of Rs. 75/-. Lease deed was executed by the mother first revision petitioner by Ext. A1 Rent Chit dated 1.10.1973. It is the case of the revision petitioners that the Kerosene business was conducted as Jayabharath Oil Agencies. Eventhough licence was in the name of mother all arrangements for the business were being carried out by the son second revision petitioner. The mother is looked after by the only surviving son second revision petitioner. Ext. B1 post card issued by the landlord to the second revision petitioner son shows that the payment of advance and entrustment of the building was by and to the second revision petitioner son. Exts. B2 to B46 show that rent receipts were issued to the second revision petitioner son by the respondent landlord. The fact that the rent was being paid by the second revision petitioner son is not disputed. It is the case of the landlord that he was paying the same on behalf of the first revision petitioner and the first petitioner who took the house on rent was later transferred her possession without his knowledge. However, since the rent is being accepted by the landlord from the second revision petitioner son, it cannot be contended by the landlord that he was not aware that second revision petitioner was in possession of the building. However, since the rent is being accepted by the landlord from the second revision petitioner son, it cannot be contended by the landlord that he was not aware that second revision petitioner was in possession of the building. Totality of the evidence shows that even though mother got licence to deal with Indian Oil Corporation, due to the death of her first son during the Army Invasion, the business was being conducted by the surviving son. Ext. B1 would show that even from the very beginning the second revision petitioner was conducting the business in the disputed room and the rent receipts were also issued in favour of him. Exts. B2 to B46 would show that from 1.1.1974 onwards rent receipts were issued by the landlord to the son who was actually conducting Jayabharath Oil Agencies. The very purpose of letting the building was to conduct the dealership in Kerosene and second revision petitioner was carrying on the dealership business given to the mother first revision petitioner by the Indian Oil Corporation. As the licence was in the name of the mother Ext. A1 Rent Chit was given in the name of the mother. Apart from the above there is nothing in evidence to show that first revision petitioner mother was actually dealing with the business. The business in the name of the first revision petitioner was being conducted by the second revision petitioner. The real tenant is the second revision petitioner. The evidence would show that the landlord was also accepting rent from the second revision petitioner son. Exts. B1 post card and B2 to B46 rent receipts would show that from the very beginning in the tenanted premises second revision petitioner son was carrying on business even though the licence as well as the Rent Chit were in the name of the mother. There cannot be any subtenancy in such cases. There is no evidence to show that there is subleasing etc. A Division Bench of this Court in Karshaka Union v. Bahuleyan ( 1996 (2) KLT 747 ) held that a mere transfer of physical possession may not be sufficient to constitute subletting. Every transfer of possession need not be a transfer of lease or subletting. There is no evidence to show that there is subleasing etc. A Division Bench of this Court in Karshaka Union v. Bahuleyan ( 1996 (2) KLT 747 ) held that a mere transfer of physical possession may not be sufficient to constitute subletting. Every transfer of possession need not be a transfer of lease or subletting. In order to prove a sublease, there must be transfer of an exclusive right to enjoy the property and there must be parting of legal possession with the right to include and right to exclude others and that mere occupation is not sufficient to constitute either subtenancy or parting with possession. In M/s. Delhi Stationers and Printers v. Rajendra Kumar ( AIR 1990 SC 1208 ) the Supreme Court held that the tenant is liable to be evicted if there is subletting or otherwise parting with the possession of the whole or any part of the premises without the permission of the landlord. Here from the very beginning eventhough the licence as well as the Rent Chit were in the name of the mother, the business was being conducted by the son. There is no transfer of possession. Landlord deposed that he was seeing the place every day. Therefore, acquiescence also cannot be questioned. Even if the finding of the Appellate Court is accepted, it can only be seen that on behalf of the mother he was conducting the business. In any event it was not proved by the landlord that earlier the business was being conducted by the mother alone and thereafter she transferred the business in favour of her son. The definite date or month of subletting was not mentioned or proved. When subletting is alleged, it is for the landlord to prove the same. It is not proved. 3. In this context we also refer to the decision of the Supreme Court in Smt. Krishnavati v. Shri Hans Raj ( 1974 (1) SCC 289 ). In that case two persons were living in a house as husband and wife and the case was that one of them who took the premises allowed other party to carry on business. The Supreme Court considered whether this is a subletting. Supreme Court held that subletting like letting is a particular type of demise of immovable property and is distinct from permissive user like that of a licensee. The Supreme Court considered whether this is a subletting. Supreme Court held that subletting 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 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. It was also held by the Apex Court that when eviction is sought on the ground of subletting the onus to prove subletting is on the landlord. Here the licence and Rent Chit were in favour of the mother . The facts that mother and son were living together, mother is an old lady who lost her first son during the Pakistan Invasion and that the business was being conducted in her name by the son were not disputed. In such circumstance, we cannot say that there is subletting by the mother to the son. Therefore, we are of the opinion that the Appellate Authority has committed a gross error of law in holding that mother has sublet the premises to the son. In fact son was carrying on the business of Kerosene dealership under the name of Jayabharath Oil Agencies and there is no sub letting. 4. It is contended by the respondent that jurisdiction under S.20 of the Act is very limited and unless there is gross error of law this Court should not interfere with that findings. In view of Ext. B1 post card as well as Exts. B2 to B46 rent receipts and from the totality of the evidence it is clear that eventhough Rent Chit was in favour of the mother son was conducting business for which licence was given in favour of the mother. As held by the Supreme Court in Krishnawati's case, in view of the close relationship and the son and mother are living together, in the absence of any other evidence the finding of subletting is a rash inference. Therefore, there is gross error of law. Since there is gross error of law, we set aside the finding of the Appellate Authority regarding subletting. From the facts of this case it is clear that there is no sub-tenancy. 5. Therefore, there is gross error of law. Since there is gross error of law, we set aside the finding of the Appellate Authority regarding subletting. From the facts of this case it is clear that there is no sub-tenancy. 5. With regard to the bona fide need of the landlord it is contended by the revision petitioners that the landlord has got several buildings and he has obtained vacant possession of several buildings during the recent past alleging that there is bona fide need for his son for occupation of the same. Thereafter, those buildings were rented to new tenants for higher rent. It is also contended that respondent's son is not conducting business in the petition scheduled room for his livelihood. According to the revision petitioners, respondent's son for whose bona fide need the building is required was a student at the time of filing the petition. The allegation that his son was a student during the time of filing the petition was denied by the landlord. After filing the revision petition a petition was filed before this Court for accepting additional evidence. It is contended that Abdul Rasheed, elder son of the landlord who was carrying on a provision store under the name and style of T. P. Store in the building belonging to the landlord left for Pollachi. Now Shri. Abdul Jeleel for whose bona fide need the present building is required is conducting the above 'P.P. Store' in a bigger way and therefore, at present there is no bona fide need. This was disputed by filing a counter affidavit by the respondent. 6. It is alleged by the revision petitioners that Abdul Jaleel for whose bona fide need the building is required was a student at the time of filing the petition, and there is no bona fide need for him to start business. It is also contended that since Abdul Jaleel was not examined bona fide need was not proved. The bona fide need has to be proved by the landlord. It is contended that mere statement by the landlord that he requires the building for his son is not enough. Since his son is alive and healthy, his need could have been deposed by him. According to the revision petitioners, burden of prove was not discharged properly. The bona fide need has to be proved by the landlord. It is contended that mere statement by the landlord that he requires the building for his son is not enough. Since his son is alive and healthy, his need could have been deposed by him. According to the revision petitioners, burden of prove was not discharged properly. We are of the opinion that merely because landlord's son was not examined it cannot be stated that bona fide requirement cannot be proved. In Narasimhachari v. Kanakasabapathi ( 1964 (1) MLJ 256 ) it was held as follows: "When we consider the question whether the landlord requires the building bona fide for his own use, we have to bear in mind whether the premises may be required reasonably and bona fide. It is the duty of the Court to see whether the premises are required both reasonably and bona fide. Bona fides may be proved in an ordinary way like any other fact. There is no such rule of law that bona fides being the subject matter, can only be proved by the petitioner stepping into the witness box. It depends upon the facts and circumstances of each case." Whether bonafide need is established on the basis of the evidence is a question depending upon the facts of each case. In this case because of the specific averments and allegations made in the objection filed by the tenants we are of the opinion that it would have been more appropriate if the landlord's son for whose bona fide need landlord required the building have been examined. But we are not setting aside the above finding under S.11(3) merely on this ground. The tenants specifically pleaded the benefit of second proviso to S.11(3). The above proviso was held not applicable because the son who is a subtenant cannot get the benefit of the above proviso as decided by this Court earlier. Only a tenant can get the benefit of the above proviso. But, we have already found that there is no subtenancy and second petitioner son is the real tenant. The benefit of the second proviso to S.11(3) was considered by the courts below treating mother as the tenant. Only a tenant can get the benefit of the above proviso. But, we have already found that there is no subtenancy and second petitioner son is the real tenant. The benefit of the second proviso to S.11(3) was considered by the courts below treating mother as the tenant. Since there is no subtenancy as the 2nd petitioner son is the real tenant as already held, whether the benefit of second proviso to S.11(3) is applicable or not has to be decided independently. It was held by the Appellate Authority that mother has not proved that she is exclusively depending on the income from the business conducted in the tenanted property as she has transferred the business to the son and she is not dealing with the same. Since the finding of subtenancy is set aside, question regarding applicability of second proviso to S.11(3) has to be reconsidered. It is contended by the respondent that now the petition scheduled building is closed and no business is being carried on. The matter is to be remanded for independent finding whether second proviso to S.11(3) is attracted; whether the tenant is entitled to get the benefit of the said proviso; whether he is mainly depending upon the income from the business conducted in the tenanted premises and if so, whether suitable alternate accommodation is available etc. are to be considered by the Rent Control Court. As application of second proviso to S.11(3) and present bona fide need have to be considered simultaneously, the entire matter regarding claim for eviction under S.11(3) i.e., bona fide need as well as entitlement of the benefit of second proviso to S.11(3) are to be considered by the Rent Control Court afresh. Both landlord and tenant are free to adduce fresh evidence on these aspects. The landlord also can prove the allegation that the tenanted premises are closed down and therefore, tenant is not mainly depending upon the income from the business conducted in the above premises. In the result, we set aside the orders of the courts below and hold that there is no subletting and petitioners (mother and son) cannot be evicted on the ground that mother has sublet the premises to the son. The question of bona fide need and entitlement of the second proviso to S.11(3) are to be reconsidered by the Rent Control Court. Both sides are free to adduce fresh evidence. The question of bona fide need and entitlement of the second proviso to S.11(3) are to be reconsidered by the Rent Control Court. Both sides are free to adduce fresh evidence. Whether the landlord is entitled to evict the petitioners under S.11(3) has to be considered by the Rent Control Court on the basis of the earlier evidence and fresh evidence to be adduced by parties. We direct the Rent Control Court to decide the matter before the Court closes for the mid summer vacation. Parties may appear in Court on 9.12.1996. The revision petitions are allowed by remanding the matter. In the circumstances of the case no order as to costs.