LexMOHAMMAD KASAM HAJI GULAMBHAI versus BAKERALI FATEHALI (D) BY LRS.
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MOHAMMAD KASAM HAJI GULAMBHAI A v. BAKERALI FATEHALI (D) BY LRS. SEPTEMBER 8, 1998 [DR. A.S. ANAND AND D.P. WADHWA, JJ.) B Rent Control & Evictio11 : Bombay Rents, Hotel a11d Lodging House Rates Control Act, 1947-Section 13( l)(e)-Subletting-Of commercial premises-By C Tenant-To his som having separate busi11ess-Tena11t llavi11g no co11cem witlr that b11si11ess--Wlietl1er would amo1mt to sitblctting-Held, yes-171ere is absolute prohibition 011 tire tenant from subletting, assig11i11g or tronsfening in any otl1er ma1111er his interest in the tenanted premises. Te11ant-Status-111 pannership-He retaim tire legal possession of tlze D tenamed premises and does not divest lrinzself of his right in tlie premises. 'B' the respondent/tenant took a shop, the premises in question, on rent from the predecessor of the appellanl/landJord. The premises was later purchased by the appellant and 'B' continued to be his tenant. In the rent notes n-ecuted in favour of the appellant and his predecessor, 'B' had agreed not to sublet the premises to anyone. 'B' W'dS doing his business in the premises in question as a sole proprietor. Ju 1955 'B' entered into partnership with his four sons wherein he was exclusive proprietor and owner of the place of business (i.e., the premises in question). In 1974 a E new partnership was entered into beht"eeB the two sons of 'B' where 0by 'B' F alongwith his other two sons retired from the business which was carried on in the premises in question, but continued to be partner with his other two sons in other business in some other premises. 'B' stopped paying rent and the same was paid by one of his sons who was doing business in the premises in question, but the rent receipt was given in the name of 'B'. G Subsequently, one of the partners of the 1974 partnership died, and another new partnership was executed in 1979, taking the son of the deceased partner into the partnership. But this subsequent partnership did not contain any of the recitals of the partnership deed of 1974. The appellant filed an eliction suit under Section 13(1) (el of Bombay H 465 466 SUPREME COURT REPORTS (1998) SUPP. I S.C.R. A Rent Act, on the ground that 'B' had unauthorisedly and unlawfully sublet the suit premises to his two sons without obtaining his consent. The suit was decreed ·and later confirmed by the appellate court. The revision petition against the same was allowed by the High Court setting aside the orders of both the courts below relying on Jaga11 Natlt's Case. B ,The respondent contended that Section 13(1)(e) of the Bombay Rent Act was not applicable as his act would not amount to subletting, because the suit premises was taken on rent for and on behalf of the family of 'B', and second and third partnerships were in continuation of the first partnership which provided him ownership of the suit premises, and the C rent receipts were always issued in the name of 'B'. Allowing the appeal this Court HELD : 1. Clause (e) of Section 13 (1) of the Bombay Rent Act is couched in widest terms. There is absolute prohibition on the tenant from D subletting, or transferring in any other manner his interest in the tenanted premises. There appears to be no way around this subject of course if there is any contract to the contrary between the landlord and the tenant. In partnership where tenant is a partner, he retains legal possession of the premises as partnership is a compendium of names of all the partners. In E partnership the tenant does not divest himself of his right in the premises. On the question of subletting etc. law is now very explicit. There is prohibi- tion in absolute terms on the tenant from subletting, assignment or disposi- tion of his interestin the tenanted premises. [476-C; D] 2. The facts of the present case do not show that B could exercise his F powi;_r throughout the suit premises at his pleasure to the exclusion of hi~ two sons who were running their business in partnership there and that it cannot be said that he continued to exercise control over the suit premises. B had no concern with the partnership business now being carried on under the partnership deeds dated November 14, 1974 and March 6, 1979 in the G suit premises. In the absence of records of the partnership business which the respondent failed to produce, it has to be presumed that rent was paid by one of the sons of B in the new partnership from the partnership account
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