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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

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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

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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

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             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

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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.

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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