IMPORTANT POINT
For any sub-letting written consent of the landlord is a pre-requisite.

ORDER

1. Leave granted.

2. This appeal has been filed by the landlord against the judgment and order of the High Court of Delhi in CM (M) No. 1574 of 2010. The High Court held that the respondent-tenant, Hakim Rai had not sub-let the premises to his son-in-law, Raj Kumar in pursuance of a partnership deed dated 20.05.1983 entered into between them.

3. Hakim Rai died and was substituted by respondent Nos.1 to 5 i.e. his widow and four daughters. The respondent No.1, Smt. Sumitra Devi, was deleted from the array of parties upon her death.

4. The landlord sought the eviction of the tenant on the ground that the tenant had sub-let the premises to his son-in-law in contravention of Section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as ‘the Act’). The landlord had also sought eviction of the tenant on the ground of arrears of rent. As of now the only ground that survives is that of sub-letting the tenant having paid off the arrears according to law.

5. The tenancy was in respect of a Kirana shop at the monthly rent of Rs. 50/-. The tenant was an old and infirm man, incapable of running the business on his own. It has been found that the son-in-law sat in the shop and conducted business exclusively therefrom. The dispute was whether he was doing business along with his father-in-law or independent of him, i.e. whether he was doing business exclusively behind the façade of a partnership or as a genuine partner. It is an uncontroverted fact before us that the landlord’s permission in writing was not obtained before the tenant had allowed the alleged sub-tenant to occupy the shop.

6. The Rent Controller found that the partnership was a ruse and that it was the son-in-law who was in exclusive possession of the shop and running the business on his own. No books of accounts were maintained, no profit and loss accounts were maintained, and no stock registers concerning the goods in the shop were maintained, as required by the partnership deed. Moreover, the tenancy rights with respect to the lease of the shop were found to have been made property of the partnership firm. The evidence of the widow of the tenant who inherited the tenanted premises and claimed to be running the business along with her son-in-law was held incredible. She was unable to give any details of the amount invested in the shop, or any details of profit and loss. Thus, the Rent Controller clearly found that the son-in-law had been put in possession of the shop in pursuance of a sham partnership deed and was not merely assisting in the shop as a son-in-law.

7. With regard to the arrears of rent, it was an undisputed position that the tenant had been granted the benefit of Section 14(2) of the Act, as it was a case of first default and the tenant had complied with the order passed under Section 15(1) of the Act.

8. The landlord contested the appeal on the only remaining ground of sub-tenancy. The Appellate Authority observed that it could not be said that there was a parting of possession if an alleged sub-tenant was closely related to a tenant, or if he was a person whose assistance was a matter of necessity for the survival of the business of the tenant. Thus, since the alleged sub-tenant was a close relative i.e. a son-in-law of the tenant, there was no parting of possession and therefore no sub-letting.

The appellate authority relied on Smt. Krishnawati Vs. Shri Hans Raj (1974) 1 SCC 289 in which it was held that in an arrangement where the premises was rented by the husband, and the wife was allowed to carry out business in a part of the premises, would not amount to sub-letting.

9. The High Court concurred with the finding of the appellate authority that the son-in-law had come to Delhi to assist his father-in-law in business for which a partnership deed had been executed between them, and he resided at the same premises as his father-in-law. The partnership was a genuine partnership as it could not be said that it had been entered into for the purp