PETITIONER: KRISHNAWATI Vs. RESPONDENT: HANS RAJ DATE OF JUDGMENT29/11/1973 BENCH: PALEKAR, D.G. BENCH: PALEKAR, D.G. KRISHNAIYER, V.R. SARKARIA, RANJIT SINGH CITATION: 1974 AIR 280 1974 SCR (2) 524 CITATOR INFO : RF 1987 SC1782 (15) R 1987 SC2055 (6) F 1988 SC1362 (6) R 1989 SC1141 (20) ACT: Delhi Rent Control Act (59 of 1958) Ss. 14 and 39 (2)-Onus of proving sub-letting--Mixed question of law and fact, what is. HEADNOTE: 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 toS. 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 wasno question of any subletting by the appellant. In second appeal, holding that two substantial questions of law were involved namely, one relatingto the status of the appellant as the wife of S, and the other, whether sub- lettingwas established, the High Court concluded that there was subletting in favour oOf 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, [1956] 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, [1968] 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] JUDGMENT:
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 rec
overy of
possession of the premises on one or more of
the following grounds only, namely
(a)……………………..
(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 person.
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 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) [1968] 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) [1956] S.C.R. 691.
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.
V.P.S.
Appeal allowed.
530