As per the Supreme Court, "for deciding the question whether the tenant had created sub-tenancy, the relationship between the tenant and sub-tenant is not material."
If a tenant parts with the possession of his rented premises, and allows his relatives to live there instead, it could be presumed to be a case of 'sub-letting', the Bombay high court recently held.
Justice Nishita Mhatre confirmed the lower court's order which evicted the tenant in this case. The high court's ruling came 33 years after a landlord filed the original suit.
VV Relan, who had let out his flat to HH Shah, filed the suit in a small causes court in Mumbai in 1977, seeking back the possession of his flat. Relan alleged that Shah had defaulted on payment of rent.
Relan also alleged that Shah himself did not live in the Mumbai flat, but lived in London, and had sub-let the flat to his (Shah's) brothers, thus violating the lease agreement.
The lower court upheld Relan's argument, and passed an order in 2000, evicting Shah. Shah filed an appeal in the high court, where his lawyer argued that it was not proven that Shah was collecting any rent from his brothers; and allowing one's relatives to occupy the premises won't amount to subletting.
However, Justice Mhatre did not accept the argument. She said in the ruling last week that "the Supreme Court has held (in earlier cases) that the proof of payment of monetary consideration is not a sine qua non (absolutely necessary) to establish subletting. In a case of eviction on the ground of sub-letting,
the landlord is required to prove that the tenant had parted with possession of the premises. The burden would then shift on to the tenant to explain his possession. If the tenant fails to discharge that onus, the Court can presume that such possession was for monetary consideration," the Court observed.
Further, the Court pointed out that as per the law laid down by the Supreme Court, "for deciding the question whether the tenant had created sub-tenancy, the relationship between the tenant and sub-tenant is not material."
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