Tenants won’t be eligible for protection from eviction if they are not occupying the rented premises any longer, the Kerala high court held.


The ruling by a division bench comprising Justices K T Sankaran and P Ubaid came while considering a petition filed by C P Paul of Vytilla questioning Ernakulam rent control court’s order to evict him from a building on MG Road in Kochi.

After taking a portion of Alangadan Buildings (1,200 square feet) on MG Road on rent, Paul had given the premises to his daughter and son-in-law for running a dental clinic. This was after he bought a five-storied building with total space of 30,000 square feet in the same locality, where he is running a hotel.

Declining to interfere in the rent control court’s order, the judgment authored by Justice Ubaid said only those who are in possession of rented property has protection from eviction under Kerala Buildings (Lease and Rent Control) Act. Unscrupulous tenants, who try to continue on the premises by all means possible even when they have ceased to occupy the premises, or have otherwise handed over the premises to somebody, would not get the benefit of the protection under the Act. When such tenants come before the court, it must be the concern of the court that the provisions of the Act are not allowed to be misused, the court held.

The Act was introduced in Kerala with the social object of protecting tenants from unscrupulous and arbitrary eviction, while protecting the interests of landlords, the court pointed out.

The ruling by a division bench comprising of justices KT Sankaran and P Ubaid was while considering a petition filed by CP Paul of Vytilla questioning Ernakulam rent control court’s order to evict him from a building at MG Road in Kochi.

After availing a part of Alangadan Buildings (1,200 square feet) on MG Road on rent, Paul had given the premises to his daughter and son-in-law for running a dental clinic. This was after he bought a five-storied building with total space of 30,000 square feet in the same locality, where he is running a hotel.

Declining to interfere in the rent control court’s order, the judgment authored by justice Ubaid said only those who are in possession has protection from eviction under Kerala Buildings (Lease and Rent Control) Act. Unscrupulous tenants who would try to continue in the premises by all means possible, even when they have ceased to occupy the premises, or have otherwise handed over the premises to somebody, would not get the benefit of the protection under the Act. When such tenants come before the court, it must be the concern of the court that the provisions of the Act are not allowed to be misused, the court held.

The Act was introduced in Kerala with the social object of protecting tenants from unscrupulous and arbitrary eviction, while protecting the interests of landlords, the court pointed out. (Case no. RCR 407/2013)

Act Now to enhance the Old Low Rent of buildings


rally2After the passing of New Rent Control Act it is going to be more difficult to enhance the old rent. Longer and unnecessary procedure is prescribed for enhancement of rent. Hence this is the best time to file enhancement petition.rally

Model Rent Agreement


The content of this article is intended to provide a general guide line to the subject matter. Professional advice should be sought about your specific needs and circumstances.

This deed of LEASE is executed on this the ___th  day of [Month], 20__ between [Name of Building Owners] (Aadhar Card No. ______ ) aged ___ years, S/O [Name of father], [House Name], [Address], [Post] P.O., PIN – ________, [District] (which expression shall, unless it be repugnant to the context or meaning thereof, include their respective heirs, executors, administrators and assigns) of the ONE PART} (hereinafter referred to as the LEASER) and [Name of Tenant], (Aadhar Card No. ______ )  S/o [Name of father], [House Name], [Address], [Post] P.O., PIN – ________, [District] District (which expression SHALL NOT, unless it be repugnant to the context or meaning thereof include his/her heirs, executors and/or administrators and assigns) of the OTHER PART (hereinafter referred to as the LESSEE).

WHEREAS the leaser is the owner of property in re survey No.___ in Block No.____ in _____________ Village and part of the commercial building therein namely [Name of building complex], [place]. AND

WHEREAS the Lessee approached the owner/Leaser for leasing out the room on the Ground Floor, third room from east in the aforesaid [Name of building complex], [place] having a floor area of ___ sq feet and requested to permit the Lessee to use the said room for functioning it as the [business of the lessee] by the Lessee from [date of commencement of lease] to [date of termination of lease] and the Leaser/owner has accepted the said request and the parties have decided to fulfill the said lease arrangement on the following terms and conditions:-

  1. The Lessee is only permitted to use the said room for conducting his [business of the lessee].
  2. The Lessee shall in consideration of such lease as provided, pay the owner/Leaser the rent for the leased premises on the first day of every month without any delay or fault per month as follows:

a)                 Though the rent of the building is Rs. {higher rate} the building owner has agreed to give the building on lease to the tenant at a reduced rate of Rs. [Monthly Rental Amount]

b)                 Rent payable from 1.6.2014 to 1.5.2017 shall be Rs.[Monthly Rental Amount] /- per month

c)                  Rent payable from 1.5.2017 to 31.7.2017 (for the month ending on 31.7.2017) shall be Rs.[Monthly Rental Amount] /- per month.

d)                 Tenant agrees to pay, without demand, to Landlord as rent for the building the sum of [Monthly Rental Amount] per month in advance on the first day of each calendar month, at [Address for Rent Payments], or at such other place as Landlord may designate. Landlord may impose a late payment charge of [Late Pay Charge] per day for any amount that is more than five (5) days late. Rent will be prorated if the term does not start on the first day of the month or for any other partial month of the term.

  1. If the lessee continues the occupation of the rented building after the period of the tenancy agreed by this deed i.e. after 31.7.2017, the leaser is entitled to receive normal rent without enhancing the rent through a court of law and adducing evidence as to the cause of enhancement of rent as both the parties mutually agreed that the normal rate of rent in the locality is [higher rate] and 20 % yearly enhancement of rent is reasonable and proper in the said area.
  2. The lessee agrees to pay 15% of the rent as amenity charge in addition to the rent.
  3. The lessee agrees to pay 10% of the rent as maintenance charge in addition to the rent.
  4. The Lessee shall reimburse the amount of Service Tax to the Leaser, if Service Tax or any other statutory charges become payable with respect to the leased premises, after the execution of this deed in addition to the monthly rent payable.
  5. The Lessee shall pay the additional amount of Municipal taxes to the Leaser, as and when the Municipality enhances the tax as per statutory requirement, in addition to the monthly rent payable, in case the applicable Municipal Taxes are enhanced in excess of 100 % .
  6. The Lessee shall also duly pay the electricity and water charges with regard to the schedule building to the Leaser on every due date.   The Revenue Taxes for the leased building in the present rate shall be borne by the owner/Leaser.
  7. Upon execution of this Lease, Tenant deposits with Landlord [Security Deposit Amount], as security for the performance by Tenant of the terms of this Lease to be returned to Tenant, Without Interest, following the full and faithful performance by Tenant of this Lease. In the event of damage to the Building caused by Tenant or Tenant’s family, agents or visitors, Landlord may use funds from the deposit to repair, but is not limited to this fund and Tenant remains liable.
  8. The Leaser has got the right to realise the rent amount from the lessee and his assets.
  9. The Lessee shall not undertake any addition or alternation to the leased room. Any damages to the building and fittings caused during the lease period shall be made good by the Lessee with the permission of the Leaser.
  10.          A. Tenant agrees that Tenant has examined the Building, including the grounds and all buildings and improvements, and that they are, at the time of this Lease, in good order, good repair, safe, clean, and tenantable condition.
  11. B. Landlord and Tenant agree that a copy of the “Joint Inspection,” the original of which is maintained by Landlord and a copy provided to Tenant, attached hereto reflects the condition of the Building at the commencement of Tenant’s occupancy.
  12. A. Tenant shall make no alterations to the Building or construct any building or make other improvements without the prior written consent of Landlord.
  13. B. All alterations, changes, and improvements built, constructed, or placed on or around the Building by Tenant, with the exception of fixtures properly removable without damage to the Building and movable personal property, shall, unless otherwise provided by written agreement between Landlord and Tenant, be the property of Landlord and remain at the expiration or earlier termination of this Lease.
  14. The Lessee hereby agree to indemnify the Leaser for any loss or damage to property or injury to persons suffered on the Premises as a result of any act or omission by the Lessee or its servants or agents.
  15. Tenant will, at Tenant’s sole expense, keep and maintain the building and appurtenances in good and sanitary condition and tenantable repair during the term of this Lease.  In particular, Tenant shall keep the fixtures in the Building in good order and repair; and keep the walks free from dirt and debris.  Tenant shall, at Tenant’s sole expense, make all required repairs to the plumbing, electric fixtures, stair, floors, ceilings and walls whenever damage to such items shall have resulted from Tenant’s misuse, waste, or neglect, or that of the Tenant’s agent, or visitor.
  16. The Lessee shall repair any damage caused to the Premises during the Lease Period immediately upon called to do so.
  17. The Leaser will be entitled to enter into the leased premises at any time to verify as to the violation of terms of this lease.
  18. A. Tenant shall not assign this Lease, or sublet or grant any concession or license to use the Building or any part of the Building without Landlord’s prior written consent.
  19. B. Any assignment, subletting, concession, or license without the prior written consent of Landlord, or an assignment or subletting by operation of law, shall be void and, at Landlord’s option, terminate this Lease.
  20. The Lessee shall not keep any articles in the leased premises which are not permitted by law and he shall conduct his business abiding all Laws and Rules with respect the same.
  21. In case of failure to pay the rent in any of the months, the leaser will be entitled to realise the rent amount with 18% interest per annum.
  22. The lease period being the essential condition of this agreement, on the completion of 3 years and the Lessee shall vacate the premises with his articles, if any, on or before the date of expiry of the lease.
  23. Any notice given by or either Party in terms of this Agreement shall be given in writing and shall be delivered by hand to a responsible person present at or sent by facsimile transmission or prepaid registered post to the address of the addressee set of below in terms of this Agreement and whereupon it shall be deemed to have been received when so delivered or faxed or 3 business days after being so sent by post.
  24. The Lessee shall not knowingly or negligently cause or allow to be caused any obstruction or blockage of any sewerage pipes, drains and other supply equipment and installations serving the Premises and shall remove at his own cost any obstruction or blockage which occurs in such pipes or drain as a result of his actions and, where necessary, shall cause, at his own cost, such sewer, pipe or drain to be repaired.
  25. The Lessee shall not do or permit to be done any act which may render the Leaser’s insurance of the Premises against risk of loss or damage attributed to any of the clauses insured against which may increase the rate of premium payable by the Leaser in respect of the Premises with regard to such insurance.
  26. The Lessee shall be responsible for insuring his personal property brought onto the Premises. The Leaser shall not be responsible for any loss, theft or damage to the Lessee’s property, regardless of how such loss, theft or damage is caused.
  27. The Lessee shall not act, nor permit any act, in relation to the Premises which may be a source of annoyance or nuisance or cause damage or disturbance to the occupants of any neighbouring premises or properties.
  28. The Leaser shall, at all reasonable times during the lease Period and with prior arrangement with the Lessee be entitled to have access to and inspect the premises.
  29. The Lessee may apply to the Leaser, in writing, for the Lease Period to be renewed, provided such written application is received at least 2 (two) calendar months prior to the Renewal Period. Any renewal of the Agreement will be entirely at the Leaser’s discretion and on the terms to be negotiated between the Lessee and the Leaser which terms should be reduced to writing.
  30. The Lessee further agree the leaser to realize any dues to him arising out of this lease from the property of the lessee situated at Kottayam District, Kumaranallor Village, Survey No. 87/2 in Block No. 65, having an extend of 45 cents, which is  in the name of the lessee as per title deed No. 345 of 2003.
  31. Should the Leaser have to take legal action against the Lessee to enforce its obligations in terms of this Agreement, the Lessee shall pay all legal costs, including collection commission incurred by the Leaser on an attorney and own client scale..
  32. Any notice required or otherwise given pursuant to this Lease shall be in writing; hand delivered, mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service, if to Tenant, at the Building and if to Landlord, at the address for payment of rent.
  33. ii)   The tenancy hereby created shall  be determinable at the option of the either party by giving to the other party two calendar month’s notice in writing, or by giving two months rent in lue of notice.

This document is prepared by [advocate]

Leaser/owner: [Name of Building Owner]

Lessee : [Name of Tenant]

 

Supreme Court on Rent during appeal


IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

Civil Appeal No. 7330 of 2013
(@ Special Leave Petition (C) No. 19428/2012)

M/s. Acme Constructions Corporation Appellant

VERSUS
M/s. Bharat Petroleum Corporation Limited and Others Respondents

O R D E R

Leave granted.
This appeal has been filed against the judgment and order which is interim in nature passed by the High Court of Judicature at Bombay in Civil Application No. 14 of 2011 in Writ Petition No. 3238 of 2004 by which the application filed the Appellant herein for vacating the interim order of stay granted by the High Court on April 12, 2004 by which dispossession of the respondent was stayed, was rejected but the appellant was granted liberty to execute the decree passed by the Court of Small Causes regarding mesne profits and the issue whether the order granting mesne profits can be stayed or not was left open to be decided by the Appellate Court.
Admittedly, the appellant has succeeded in getting a decree of eviction against the respondent-tenant. The respondent filed an appeal against the decree of eviction which was dismissed by the First Appellate Court and thereafter the respondent-tenant filed a writ in the High Court assailing the decree of eviction. However, the appeal filed by the respondent-tenant against the decree of mesne profits is still pending before the First Appellate Court.
The High Court stayed the decree of eviction vide order dated 12.04.2004 and the matter remained pending. The appellant felt aggrieved of the order of stay of eviction, clearly on the averment that while the respondent is enjoying stay of dispossession in spite of the appellant having succeeded in getting a decree of eviction, no condition was imposed on the respondent- judgment debtor and the appellant suffered in the process by getting a sum of Rs.500/- p.m. only for the property which can fetch a rent multiple times more. The appellant, therefore, filed an application for vacating the interim order of stay and the High Court while rejecting the application, allowed the appellant to execute the order of Trial Court regarding mesne profits as already stated hereinbefore.
Having heard counsel for the parties, we are conscious of the fact that the appellant although has succeeded in securing a decree of eviction in his favour, has not got possession and respondent is enjoying the premises without even having to pay the fair rent by way of damages in regard to the disputed premises.
It has been held in (2005) 1 SCC 705 ‘Atma Ram Properties (P) Ltd. Versus Federal Motors (P) Ltd.; (2005) 6 SCC 489 ‘Anderson Wright & Co. versus Amar Nath Roy and others’; and (2009) 9 SCC 772 ‘State of Maharashtra and Anr. Versus Super Max International Private Ltd. and others’ that if the appeal against the decree of eviction has been entertained by way of an appeal or a writ petition and the decree of eviction is stayed, then it is appropriate for the Court staying the decree of eviction to modify the decree of mesne profits by way of an interim arrangement which may be treated as rent or damages. However, the High Court has refused to vacate the order of stay granted earlier by it vide order dated 12.4.2004.
We are equally conscious of the fact that the Appellant in spite of having succeeded in securing a decree of eviction for the disputed premises and has also succeeded in securing a decree by way of mesne profits to be paid to him from the year 2000 up to the delivery of possession @ Rs.2,75,600/- p.m. to be paid every month by the contesting respondent to the appellant, the appellant has to remain content with only Rs.500/- p.m. during pendency of the writ petition.
However, since the writ petition assailing the decree of eviction is pending, the respondent submitted that they are not liable to pay this amount as the appeal regarding determination of mesne profits is still pending before the First Appellate Court.
In view of the aforesaid contentious issues, we thought it proper that in order to balance the equity and justice, a reconciliation formula be adopted and, therefore, we have accepted the suggestion made by learned counsel for the appellant that a sum of Rs.75,364/- be paid every month by the contesting respondent to the appellant and the total amount which accrues from 1.8.2000 to 31.12.2012 at this rate would be Rs.1,12,29,236/- (Rupees one crore twelve lakhs twenty nine thousand two hundred thirty six only) as against the approximate amount of Rs.6 crores which would accrue if the decree towards mesne profits passed in favour of the appellant is to be calculated.
Learned counsel for the respondent also had no objection to paying Rs.75,364/- to the appellant each month as also towards arrears at this rate to be calculated from 1.8.2000 till 31.12.2012. It is clarified that this amount shall not prejudice the case of the appellant before the executing court while executing the decree passed by the Trial Court in its favour, which, obviously, shall be subject to the result of the appeal pending in the First Appellate Court.
In order to avoid any future dispute, it is further clarified that the respondent shall continue to pay the amount of Rs.75,464/- to the appellant on month to month basis until the writ petition is finally decided by the High Court.
The appellant is further at liberty to impress upon the courts below for giving priority to the hearing of the matters.
The appeal is, accordingly, disposed of.

……………………J.
(GYAN SUDHA MISRA)

……………………J.
(PINAKI CHANDRA GHOSE)

NEW DELHI
AUGUST 14, 2013

ITEM NO.7 COURT NO.11 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil) No(s).19428/2012

(From the judgement and order dated 07/12/2011 in WP No.3238/2004, CA
No.14/2011 of The HIGH COURT OF BOMBAY)

M/S.ACME CONSTRUCTIONS CORP. Petitioner(s)

VERSUS

M/S.BHARAT PETROLEUM CORP.LTD.& ORS. Respondent(s)

(With appln(s) for exemption from filing c/c of the impugned order and
prayer for interim relief and office report)

Date: 14/08/2013 This Petition was called on for hearing today.

CORAM : HON’BLE MRS. JUSTICE GYAN SUDHA MISRA
HON’BLE MR. JUSTICE PINAKI CHANDRA GHOSE

For appellant(s) Mr. Mukul Rohatgi, Sr.Adv.
Mr. Ninad Laud, Adv.
Mr. Astad Randeria, Adv.
Mr. R.K. Satpalkar, Adv.
Mr. Saswat Patnaik, Adv.
Mr. Shiv Kumar Suri, Adv.

For Respondent(s) Mr. Sudhir Chandra, Sr.Adv.
Mr. Parijat Sinha, Adv.
Ms. Reshmi Rea Sinha, Adv.
Mr. Avaneesh Garg, Adv.
Mr. S.C. Ghosh, Adv.

UPON hearing counsel the Court made the following
O R D E R

Leave granted.

The appeal is disposed of in terms of the signed order.

(NAVEEN KUMAR) (S.S.R. KRISHNA)
COURT MASTER COURT MASTER
(Signed order is placed on the file)

Fixation of Fair Rent


Madras High Court
Dena Bank vs Mrs.P.Indira Prasad on 12 June, 2012
DATE:12.06.2012
CORAM
THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH
C.R.P.NPD. No.1023 of 2010
Dena Bank,
Aminjikarai Branch,
Rep. by its Senior Manager,
No.703, P.H.Road,
Chennai  600 029. .. Petitioner
Versus
Mrs.P.Indira Prasad … Respondent
Prayer: This Civil Revision Petition has been filed under Article 227 of Constitution of India to set aside the
judgment and decree in R.C.A.No.586 of 2008 dated 14.08.2009 by the Hon’ble VII Judge, Small Causes
Court, Chennai and the Judgment and decree passed by the Trial Court made in R.C.O.P.No.276 of 2007
dated 10.03.2008 on the file of the XIII Judge, Small Causes Court, Chennai and dismiss the R.C.O.P.No.276
of 2007 dated 10.03.2008 on the file of the XIII Judge, Small Causes Court, Chennai and dismiss the R.C.O.P.
Referred above. For Petitioner : Mr.G.R.Lakshmanan
For Respondent : Mr.A.Venkatesan
O R D E R
This revision is directed against the judgment and decree passed by the Rent Control Appellate Authority in
RCA.No.586 of 2008 dated 14.09.2009 of modifying the orders passed by the Rent Controller made in
RCOP.No.276 of 2007 dated 10.03.2008 in fixing the fair rent under Section 4 of the Tamil Nadu Buildings
Lease and Rent Control Act.
2. The appellant was the respondent/tenant and the respondent herein was the petitioner / landlord before the
learned Rent Controller.
3. The case of the petitioner / landlord, before the learned Rent Controller as stated in the petition would be as
follows:
The learned counsel for the petitioner would submit that the respondent is in occupation of the ground floor in
old block measuring about 2699 sq.ft and in new block about 1608 sq.ft and 347 sq.ft belonging to the
petitioner. All the basic and Schedule -1 amenities are available. The building is a Type-1 building. Extent of
land area is 2699/2 + 1608 + 1320 = 4277.5 sq.ft. The petition premises commands all locational advantages.
Therefore, the value of site is Rs.75 lakhs. Hence, this petition for fixation of fair rent at Rs.1,58,590/- pm.
Dena Bank vs Mrs.P.Indira Prasad on 12 June, 2012
Indian Kanoon – http://indiankanoon.org/doc/66708496/ 1

How subletting of a premises alleged by a landlord are to be established


M/s S.F. Engineer Vs. Metal Box India Ltd. & Anr.

Bombay Rent Act, 1947 – Section 13(1)(e) –Section 13(1)(k) – Subletting – How subletting of a premises alleged by a landlord are to be established – the Court under certain circumstances can draw its own inference on the basis of materials brought at the trial to arrive at the conclusion that there has been parting with the legal possession and acceptance of monetary consideration either in cash or in kind or having some kind of arrangement. The transaction of subletting can be proved by legitimate inference though the burden is on the person seeking eviction. The materials brought out in evidence can be gathered together for arriving at the conclusion that a plea of subletting is established. The constructive possession of the tenant by retention of control would not make it parting with possession as it has to be parting with legal possession. Sometimes emphasis has been laid on the fact that the sub-tenancy is created in a clandestine manner and there may not be direct proof on the part of a landlord to prove it but definitely it can bring materials on record from which such inference can be drawn.

Supreme Court on Sub letting – Inferernce about subt letting


IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

[Anil R. Dave] and [Dipak Misra] JJ.

March 28, 2014.

CIVIL APPEAL NO. 4189 OF 2014

(Arising out of SLP (Civil) No. 29888 of 2010)

M/s. S.F. Engineer … Appellant

Versus

Metal Box India Ltd. and Anr. …Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. This appeal, by special leave, by the landlord arises out of and is directed against the judgment and order dated 12.8.2010 of the Bombay High Court passed in Civil Revision Application No. 355 of 2010, allowing the respondent-tenants’ appeal and – in reversal of the concurrent findings of the courts below that there was an unauthorized subletting – dismissing appellant’s application under 13(1)(e) of the Bombay Rent Act, 1947 for an order for grant of possession.

3. The appellant-plaintiff, owner of the suit premises, i.e., Flat Nos. 201 and 204 on second floor of the building known as “Marlow” and two garages Nos. 7 and 8 on the ground floor of the suit building situate at 62-B, Pochkhanwala Road, Worli, Mumbai, instituted RAE No. 45/84 of 1997 for eviction of the first respondent (defendant No. 1) and its former employee, the respondent No. 2 (defendant No. 2). For the sake of convenience, the parties hereinafter shall be referred to as per the rank in the suit.

4. The case of the plaintiff in the court below was that the defendant No. 1 was a tenant under the plaintiff on a consolidated monthly rent of Rs.1075/-. The premises, as set forth in the plaint, was let out to the defendant No. 1 exclusively for the purpose of providing residential accommodation to its executive staff and not for any other purpose. Though the defendant No. 2 had no right to remain in possession of the flat No. 201, yet the employer company unlawfully sublet the said flat to him. The plaintiff vide notice dated 19.1.1989 terminated the tenancy of defendant No. 1. The said notice was replied to by the defendant No. 1 through its advocate on 13.2.1989 denying the assertions made in the notice. This compelled the plaintiff to initiate the civil action for eviction of the defendants from the suit premises on the ground of subletting, bona fide requirement and non-user for the purpose for which it was let out.

5. The defendant No. 1 filed its written statement and denied the averments in the plaint. Its affirmative stand was, it had not breached the conditions in using the suit premises for the purpose of which the same was let out for continuous period of six months preceding the date of the suit without reasonable cause and the suit premises had been illegally and wrongfully occupied by the defendant No. 2 against the will of defendant No. 1 by remaining in flat No. 201. As far as flat No. 204 was concerned, the stand of the defendant No. 1 was that it was in occupation of the staff, General Manager, officers and executives of the Company. The claim of bona fide requirement was seriously disputed on many a ground. It was the further case of defendant No.1 that the defendant No. 2, as an officer of defendant No. 1 was allotted flat No. 201 as a part of his service amenities under the terms and conditions stipulated in agreement dated 11.5.1982. On 27.5.1988 the defendant No. 1 was declared a sick company by the Board for Industrial and Financial Reconstruction (BIFR) under the provisions of the Sick Industrial Companies (Special Provision) Act, 1985 and thereafter on 11.2.1989 the defendant No. 2 resigned from his post which was accepted by the defendant No. 1. The defendant No. 2 continued to occupy the premises and the employer withheld his provident fund dues for which the Commissioner of Provident Fund on 19.10.1993 issued a notice to defendant No. 1. At that juncture, the defendant No. 1 filed writ petition No. 2134 of 1993 before the High Court against the Regional Provident Fund Commissioner and the defendant No. 2 for settlement of dues of the defendant No. 2 and for handing over vacant possession of the premises. The defendant No. 1 also filed a criminal complaint under Section 630 of the Companies Act, 1956 which was dismissed for non- prosecution. These asseverations were made to demolish the ground of subletting as asserted by the plaintiff and, eventually, the dismissal of the suit was sought.

6. The defendant No. 2 filed his separate written statement stating, inter alia, that he was not concerned with flat No. 204 and garage No. 8 and he was a statutory tenant in respect of flat No. 201 and he had been in long continuous use and occupation of the suit premises, i.e., flat No. 201 and garage No. 7. It was his further stand that he was not unlawfully occupying the suit premises because he was allowed to use the suit premises as an employee of the defendant No. 1 and hence, he was occupying the part of the suit premises as a lawful sub-tenant with the consent and knowledge of the plaintiff.

7. The trial Judge initially framed the following issues: –

“(1) Whether the plaintiffs prove that the suit premises have not been used by the defendants without reasonable cause for the purpose for which they were let for a continuous period of 6 months immediately preceding the date of the suit?

2) Whether the plaintiffs prove that they required the suit premises reasonably and bonafide for their own use and occupation?

3) To whom greater hardship would be caused by passing the decree than by refusing to pass it?

4) Whether the plaintiffs are entitled to recover the possession of the suit premises from the defendants?

5) What decree, order and costs?”

And thereafter framed the following additional issue:-

“Do plaintiffs prove that the defendant No. 1 unlawfully sub-let the part of the suit premises to defendant no. 2?”

8. On consideration of the evidence brought on record the Small Causes court came to hold that the plaintiff had failed to prove that it required the suit premises reasonably and bona fide for his use and occupation and also it had not been proven that greater hardship would be caused to the plaintiff. Accordingly, the issue Nos. 2 and 3 were answered in the negative. As far as issue No. 1 was concerned, i.e. non-user for a period of six months for the purpose it was let out which is a ground under Section 13(1)(k) of the Bombay Rent Act, 1947 (for short “the Act”), the learned trial Judge came to hold that the plea of non-user in respect of flat No. 204 was not established but the said plea had been proven as far as flat No. 201 was concerned but, regard being had to the language used in the provision enshrined under Section 13(1)(k) of the Act to the effect that when a part of the tenanted premises was not in use of the tenant, the said provision would not be applicable and, accordingly, he answered the said issue against the plaintiff. While dealing with the additional issue the learned trial Judge referred to Section 13(1)(e) of the Act and came to hold that no case of unlawful subletting had been made out in respect of flat No. 204 and one garage, but, as far as flat No. 201 and another garage are concerned, plea of subletting stood established. To arrive at the same conclusion he took note of the fact that the use and occupation of defendant No. 2 on the said part of the suit premises before 12.2.1989 was on the basis of agreement Exh. 5A which showed that the defendant No. 2 was in use and occupation of flat No. 201 and garage No. 7 as licencee of his employer-defendant No.1 and thereafter from 12.2.1989 on ceasing to be in service of the defendant No. 1, the use and occupation of defendant No.2 in respect of the said premises could neither be considered as legal nor could it be protected under any provision of law. Thereafter, he considered the rival submissions and referred to clause 13 of the agreement dated 11.5.1982, Exh. 5A, the factum of resignation by the defendant No. 2 and acceptance thereof by the defendant No. 1, the liability on the part of defendant No. 1 to take appropriate legal steps to evict the defendant No. 2 from the said part of the suit premises within a reasonable time, the silence maintained by the defendant No. 1, the dismissal of the criminal proceeding instituted under Section 630 of the Companies Act for non- prosecution and filing of another criminal proceeding only in 2003, the use and occupation of the defendant No. 2 at the behest of the defendant No.1, the retention of provident fund by the defendant No. 1 of the defendant No. 2, the stand of the defendant No. 2 that he was in lawful occupation as a sub-tenant, the admission of the sole witness of the defendant No.1 to the effect that the defendant No.2 was in possession as a sub-tenant, and ultimately came to hold that the plaintiff had been able to establish that the defendant No. 1 had unlawfully sublet a part of the suit premises, i.e., flat No. 201 and garage No. 7 and, accordingly, directed that the defendant Nos. 1 and 2 jointly and severally to deliver the vacant possession of the suit premises, i.e., flat Nos. 201 and 204 along with garage Nos. 7 and 8.

9. On an appeal being preferred the Division Bench of the appellate court basically posed two questions, namely, (i) whether the suit premises, more particularly, flat No. 201 was illegally sublet by the defendant No. 1 to the defendant No. 2; and (ii) whether the flat Nos. 201 and 204 were not used for the purpose for which they were let out for more than 6 months without sufficient reason.

10. The appellate court answered the question No. 2 in the negative. As far as question No. 1 is concerned, the appellate court took note of the admission of the witness of the defendant No. 1, the inaction on the part of the plaintiff to take steps for eviction against defendant No.2 and proceeded to deal with the contours of Section 13(1)(e) of the Act and in that context opined thus: –

“It covers different aspects under the heading of subletting, it is not mere subletting, it includes assignment or creating third party interest. Non user of the premises in possession of defendant No.2 by the defendant No. 1 is clear. Defendant No. 2 already found to be not in service after his resignation. With a gap of about three or four years, litigation is started by the defendant No. 1 that too on the count of arrears of provident fund. No substantial suit for seeking possession was filed immediately and act continued on that day. Aspect of subletting has its own importance. We find evidence of defendant No.1’s witness is clear in itself. Ld. Trial Court arrived at the conclusion that this aspect attracts section 13(1)(e) of Rent Act. We find said aspect required to be accepted.”

11. Being of this opinion, it affirmed the view expressed by the learned trial Judge and upheld the judgment and decree passed against the defendants.

12. The non-success compelled the defendant No. 1 to invoke the civil revisional jurisdiction of the High Court. The learned single Judge referred to the filing of the writ petition with regard to the provident fund dues, appeal by way of special leave preferred by the defendant No. 1 and the ultimate settlement arrived at between the two defendants on 4.4.2007, the stand of the defendant No. 1 that there was no consensus between it and the defendant No. 2 allowing to occupy the premises after he ceased to be in Company’s employment and later to initiate action to evict him, and thereafter referred to the decisions in Bharat Sales Ltd. v. Life Insurance Corporation of India[1], Joginder Singh Sodhi v. Amar Kaur[2] and Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh[3] and took note of certain facts, namely, (i) defendant No. 2 was inducted as a licencee under a licence agreement which was produced before the Courts; (ii) after cessation of his employment defendant No. 2 continued to occupy the premises; (iii) applicant had filed a suit for recovery of overstayal charges and, eventually, was allowed to recover a sum of Rs.4,17,000/- in terms of order of the Court dated 15.3.2007, in Civil Appeal No. 2425 of 2007; (iv) applicant had vacated the premises on 4.4.2007 in terms of the settlement; and (v) applicant was a sick company and not in a position to receive any clandestine payment and concluded thus: –

“These facts are so glaring, as are the attempts of applicant to get rid of respondent No. 2 that it would be inconsistent with any clandestine agreement of sub-letting. True finding of facts by the courts below may be respected. But the conclusions drawn about a jural relationship was thoroughly unwarranted and runs in conflict with the very requirement of a consensus. Therefore, the decree of eviction on the ground of sub-letting passed by the trial court and maintained upon appeal by the appellate bench cannot at all be sustained.”

13. Criticizing the judgment and order passed by the learned single Judge, learned senior counsel for the appellant submitted that though the defendant No. 2, the employee, retired from service, yet the defendant No. 1, employer, did not take any steps for a period of more than four years from February, 1989 till October, 1993 and allowed the complaint filed under Section 630 of the Companies Act to be dismissed for non- prosecution and was constrained to prefer the writ petition challenging the direction of the Regional Provident Fund Commissioner only when it faced a statutory consequence and these circumstances go a long way to establish its conduct of tacit acceptance of the position of defendant No. 2 as a sub-tenant. He has also highlighted that the defendant No. 1 filed the second complaint under Section 630 of the Companies Act after a span of seven years and filed the summary suit under Section 37, CPC only for recovery of occupation charges and not for eviction after fourteen years of the resignation of the defendant No.2 from service of the defendant No.1 which ultimately resulted in a settlement before this Court, and these aspects, considered cumulatively, do clearly show that in effect the defendant No. 1, tenant, had sublet the premises in question and the High Court has fallen into grave error in overturning the finding based on legitimate inferences in exercise of revisional jurisdiction which is a limited one. It is his further submission that the finding recorded by the learned trial Judge and concurrence given to the same in appeal establish two aspects, namely, the defendant No. 2 was allowed to remain in exclusive use and occupation of the premises; and that there was involvement of consideration inasmuch as the employer withheld the provident fund to appropriate the same towards the occupational charges and the arrangement is obvious. The learned senior counsel would also contend that the sole witness of defendant No. 1 has categorically admitted that defendant No. 2 is an unlawful sub-tenant and after such an admission any stand to the contrary has to be treated as paving the path of tergiversation. He has also laid immense emphasis on the fact that the defendant No. 2 in his written statement has clearly admitted that he was a sub-tenant with the consent of the landlord, but the factum of consent has not been proven.

14. Mr. Ganesh, learned senior counsel, per contra, in support of the decision of the High Court would contend that necessary ingredients of subletting have not been fulfilled and when the reasonings ascribed by the trial court and the appellate court are absolutely on the basis of perverse consideration of the materials brought on record, it was obligatory on the part of the High Court to rectify the same in supervisory jurisdiction and that having been done the impugned order is absolutely flawless and totally infallible. It is put forth by him that reliance on some evidence and the stand and stance of the defendant No. 2 who had an axe to grind against the defendant No. 1 and further had an ambitious motive to get the flat from the plaintiff on ownership basis would not establish the plea of subletting. It is further contended that the defendant No. 1 had taken appropriate steps at the relevant time to prosecute the defendant No. 2 under various laws and hence, it is inapposite to say that there was a tacit consent allowing the employee to occupy the premises. In any case, submits Mr. Ganesh, that withholding of provident fund dues or settlement as regards the same before this Court would not make out a case of subletting as proponed by the plaintiff-appellant.

15. To appreciate the revalised submissions raised at the Bar it is first necessary to have a survey of authorities of this Court which state the position of law as to how subletting of a premises alleged by a landlord are to be established.

16. In Smt. Rajbir Kaur and another v. M/s. S. Chokesiri and Co.[4], after referring to the decision in Dipak Banerjee v. Smt. Lilabati Chakraborty[5] and other decisions the Court opined that if exclusive possession is established, and the version of the respondent as to the particulars and the incidents of the transaction is found acceptable in the particular facts and circumstances of the case, it may not be impermissible for the court to draw an inference that the transaction was entered into with monetary consideration in mind. It has been further observed that such transactions of subletting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the subtenant and there cannot be direct evidence got and it is not, unoften, a matter for legitimate inference. Dealing with the issue of burden it held that: –

“The burden of making good a case of subletting is, of course, on the appellants. The burden of establishing facts and contentions which support the party’s case is on the party who takes the risk of non- persuasion. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial.”

17. In this context, reference to a two-Judge Bench decision in Bhairab Chandra Nandan v. Ranadhir Chandra Dutta[6] would be apposite. In the said case the tenant had permanently shifted his residence elsewhere leaving the rooms completely to his brother for his occupation without obtaining the landlord’s permission. In that context, the Court observed thus: –

“5. Now coming to the question of sub-letting, once again we find that the courts below had adequate material to conclude that the respondent had sub-let the premises, albeit to his own brother and quit the place and the sub-letting was without the consent of the appellant. Admittedly, the respondent was living elsewhere and it is his brother Manadhir who was in occupation of the rooms taken on lease by the respondent. The High Court has taken the view that because Manadhir is the brother of the respondent, he will only be a licensee and not a sub-tenant. There is absolutely no warrant for this reasoning. It is not as if the respondent is still occupying the rooms and he has permitted his brother also to reside with him in the rooms. On the contrary, the respondent has permanently shifted his residence to another place and left the rooms completely to his brother for his occupation without obtaining the consent of the appellant. There is therefore no question of the respondent’s brother being only a licensee and not a sub-tenant.”

18. In M/s. Shalimar Tar Products Ltd. v. H.C. Sharma and others[7], while dealing with parting of legal possession, the two-Judge Bench observed that there is no dispute in the legal proposition that there must be parting of the legal possession. Parting to the legal possession means possession with the right to include and also right to exclude others.

19. In United Bank of India v. Cooks and Kelvey Properties (P) Limited[8] the question arose whether the appellant-Bank had sublet the premises to the union. This Court set aside the order of eviction on the ground that : –

“….though the appellant had inducted the trade union into the premises for carrying on the trade union activities, the bank has not received any monetary consideration from the trade union, which was permitted to use and enjoy it for its trade union activities. It is elicited in the cross-examination of the President of the trade union that the bank had retained its power to call upon the union to vacate the premises at any time and they had undertaken to vacate the premises. It is also elicited in the cross-examination that the bank has been maintaining the premises at its own expenses and also paying the electricity charges consumed by the trade union for using the demised premises. Under these circumstances, the inference that could be drawn is that the appellant had retained its legal control of the possession and let the trade union to occupy the premises for its trade union activities. Therefore, the only conclusion that could be reached is that though exclusive possession of the demised premises was given to the trade union, the possession must be deemed to be constructive possession held by it on behalf of the bank for using the premises for trade union activities so long as the union used the premises for trade union activities. The bank retains its control over the trade union whose membership is only confined to the employees of the bank. Under these circumstances, the inevitable conclusion is, that there is no transfer of right to enjoy the premises by the trade union exclusively, for consideration.”

20. In this context we may fruitfully refer to the decision in Joginder Singh Sodhi (supra) wherein the Court, dealing with the concept of subletting, has observed that to establish a plea of subletting two ingredients, namely, parting with possession and monetary consideration, therefor have to be established. In the said case reliance was placed on Shama Prashant Raje v. Ganpatrao[9] and Smt. Rajbir Kaur (supra). The Court also extensively referred to the principle stated in Bharat Sales Ltd. (supra) wherein it has been observed that it would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Though payment of rent, undoubtedly, is an essential element of lease or sub-lease, yet it may be paid in cash or in kind or may have been paid or promised to be paid, or it may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. The Court further observed that since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let.

21. In this regard reference to Celina Coelho Pereira (Ms) and others v. Ulhas Mahabaleshwar Kholkar and others[10] would be pertinent. In the said case a two-Judge Bench, after referring to number of authorities and the rent legislation, summarized the legal position relating to issue of sub-letting or creation of sub-tenancy. The two aspects which are of relevance to the present case are:

“(i) In order to prove mischief of sub-letting as a ground for eviction under rent control laws, two ingredients have to be established. (one parting with possession of tenancy or part of it by the tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.

(ii), (iii) & (iv) ………

(v) Initial burden of proving sub-letting is on the landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to the tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.”

22. In Vinaykishore Punamchand Mundhada and another v. Shri Bhumi Kalpataru and others[11] it has been held that it is well settled that sub-tenancy or sub-letting comes into existence when the tenant voluntarily surrenders possession of the tenanted premises wholly or in part and puts another person in exclusive possession thereof without the knowledge of the landlord. In all such cases, invariably the landlord is kept out of the scene rather, such arrangement whereby and whereunder the possession is parted away by the tenant is always clandestine and such arrangements takes place behind the back of the landlord. It is the actual physical and exclusive possession of the newly inducted person, instead of the tenant, which is material and it is that factor which reveals to the landlord and that the tenant has put some other person into possession of the tenanted property. It has been further observed that it would not be possible to establish by direct evidence as to whether the person inducted into possession by the tenant had paid monetary consideration to the tenant and such an arrangement cannot be proved by affirmative evidence and in such circumstances the court is required to draw its own inference upon the facts of the case proved at the enquiry.

23. We have referred to the aforesaid decisions only to reaffirm the proposition that the Court under certain circumstances can draw its own inference on the basis of materials brought at the trial to arrive at the conclusion that there has been parting with the legal possession and acceptance of monetary consideration either in cash or in kind or having some kind of arrangement. The aforesaid authorities make it further spectacularly clear that the transaction of subletting can be proved by legitimate inference though the burden is on the person seeking eviction. The materials brought out in evidence can be gathered together for arriving at the conclusion that a plea of subletting is established. The constructive possession of the tenant by retention of control like in Cooks and Kelvey Properties (P) Limited (supra) would not make it parting with possession as it has to be parting with legal possession. Sometimes emphasis has been laid on the fact that the sub-tenancy is created in a clandestine manner and there may not be direct proof on the part of a landlord to prove it but definitely it can bring materials on record from which such inference can be drawn.

24. Coming to the case at hand, on a studied scrutiny of the evidence it is quite vivid that an agreement was entered into by the landlord and the tenant in respect of the premises with the stipulation that it would be used only for providing the residential accommodation of the executive staff and not for any other purpose. It is not in dispute that the defendant No. 2 was a member of the executive and he was provided the premises as a part of the amenities towards his perquisites. As the company sustained loss and was declared sick under SICA, the defendant No. 2 resigned from his post on 11.1.1989 and the defendant No. 1 accepted the same. As is evincible, the plaintiff had terminated the tenancy on 19.1.1989. Submission of Mr. Sundaram, learned senior counsel, is that though the defendant No. 2 resigned from service and there was termination of tenancy, yet the defendant chose not to take any steps for evicting the defendant No. 2 from the premises in question. He has also highlighted on the factum that the application under Section 630 of the Companies Act, 1956 for seeking possession of the premises was filed after the notice for eviction was issued and the same was allowed to be dismissed for non- prosecution. It has also come out in evidence that only after a proceeding was initiated by the Regional Provident Fund Commissioner, the defendant No. 1 filed the writ petition and the controversy ended by way of settlement before this Court in an appeal. The summary suit was filed only for recovery of occupational charges after a span of 14 years wherein a decree was obtained. That apart, learned senior counsel has drawn our attention to the stand and stance put forth by the defendant No. 2 claiming himself as a sub-tenant. He has also, as has been stated earlier, referred to the admission of the witness cited by the defendant No. 1. It is apt to note here that from the aforesaid circumstances the learned trial Judge as well as the appellate court has drawn inferences to come to the conclusion that the defendant No. 2 was an unlawful sub-tenant thereby attracting the frown of Section 13(1)(e) of the Act justifying the eviction. Mr. Ganesh, learned senior counsel, submitted that mere procrastination on the part of the defendant No. 1 to take steps cannot be treated to have given rise to the legitimate inference to come to a conclusion that there was sub-letting in view of the authorities of this Court. He has also drawn inspiration from some parts of the assertions made by the defendant No. 2 in the written statement. To bolster the stand, he has pointed out that the defendant No.2 has clearly admitted that his possession was as sub-tenant as his entry was legal and further he had claimed that he had entered into negotiation with the plaintiff to become a tenant and thereafter to acquire ownership.

25. The facts being admitted, it really requires whether the High Court was justified in unsettling the conclusion arrived at by the courts below by taking note of certain factors into consideration. As we have stated earlier, the learned trial Judge has applied the principle of legitimate inference which has been given the stamp of approval by the learned appellate Judge. The basic question that emerges for consideration is whether in the obtaining factual matrix the principle of legitimate inference could have been invoked to come to a conclusion that the defendant No. 2 had been inducted as a sub-tenant. It is settled in law that the requisite conditions for establishing the factum of sub-letting are – parting of legal possession, and availing of monetary consideration which can be in cash or kind and which fact may not be required to be directly proven by the landlord in all circumstances. As is perceptible, the defendant No. 2 was given possession by the defendant No.1 as an executive of the company. It was made available to him under the conditions of service and such provision was in consonance with the agreement entered into by the landlord and the tenant, i.e., the plaintiff and the defendant No.1. Submission of the learned senior counsel for the appellant, as is clear, is founded on inference made by the learned trial Judge that the provident fund, gratuity and other dues of the defendant No. 2 were withheld in lieu of allowing the defendant No. 2 for such occupation. The aforesaid foundation needs to be tested. For the said purpose it is essential to refer to the stand put forth in the written statement by the defendant No. 2 which has been emphatically referred to by Mr. Sundaram: –

“This defendant submits that this defendant is occupying the suit premises as a lawful sub-tenant, sub tenancy having been created in favour of this Defendant with the knowledge and consent of the plaintiffs.”

Thereafter, the stand of the defendant No. 2 is as follows: –

“In February, 1988, there was a lock-out in defendant No. 1 company. The financial position of defendant No. 1 deteriorated. The defendant No. 1 was not even able to fulfill their minimum and urgent financial obligations and commitments. Since there was no scope of future progress with the defendant No. 1, this defendant resigned from the employment of Defendant No. 1 in January, 1989 on the understanding that he will continue to occupy the flat No. 201 and Garage No. 7 as Defendant No. 1 had no more use for the same and also the dues were still not settled. The defendant No. 1 was not even able to pay this defendant’s dues like Provident Fund, Gratuity, Leave Salary etc. The defendant No. 1 was not even in a position to pay rent in respect of the suit premises as also other outgoings in respect of the suit premises as also other outgoings incurred by the Marlow Residents Association. At the request of the Defendant No.1, this defendant continued to use and occupy the suit premises.”

Mr. Ganesh, learned senior counsel has also drawn immense inspiration from the written statement. The relevant part on which emphasis is put is as follows: –

“This defendant thereafter approached the Plaintiffs’ office to tender the rent in respect of part of suit premises. However, this defendant was told and assured by the plaintiffs that as soon as the plaintiffs would be able to settle with the Defendant No.1, they would accept the entire arrears of rent proportionately, i.e. rent of Flat No. 201 and Garage No. 7 from this defendant. Till 1994 and even till date, neither the plaintiffs nor the defendant no.2 has settled the accounts to enable this defendant to pay the rent in respect of the suit premises to the plaintiffs.”

xxx xxx xxx

The defendant No. 1 has been declared as a sick unit by BIFR. The Defendant No. 1 is now acting in collusion with the Plaintiffs. The plaintiffs and the defendant No. 1 are acting in collusion and falsely denying rights of this defendant in respect of Flat No. 201. This defendant is ready and willing to pay the rent in respect of the suit premises to the Plaintiffs.

The residents of Marlow Building formed Marlow Residents’ Welfare Fund. This defendant has also contributed towards the said Welfare Fund since its inception and continues to contribute like any other member including the Plaintiffs who is also a member. The said Welfare Fund has also carried out major repairs of the building. This defendant has contributed his share towards major repair of the building. These facts are known to the plaintiffs.”

26. On a close perusal of the assertions made by the defendant No. 2 it is luminous that he was allowed to occupy the premises as an executive by the company and thereafter as his dues could not be paid to him, he remained in occupation and also tried to become the owner of the premises. True it is, the defendant No. 1 did not initiate action at an early stage but in 1993 when the Provident Fund Commissioner made a demand, it moved the writ court and ultimately the matter was settled before this Court. The terms of the settlement in CA No. 1425 of 2007 are reproduced hereinbelow: –

“(i) The respondent shall pay to the appellant a sum of Rs. 3,24,000/- (Three Lakhs and Twenty Four Thousand only) in full and final settlement of the amount payable by the respondent for overstaying in the premises in question.

(ii) A sum of Rs.4,17,000 (Rupees Four Lakhs and Seventeen Thousand only) has been deposited by the appellant in the High Court of Bombay in Writ Petition No. 2134/1993. The said amount of Rs.4,17,000/- together with interest that may have accrued thereon, after deducting the amount of Rs. 3,24,000/- shall be paid to the respondent. The sum of Rs.3,23,000/- shall be paid to the appellant.

(iii) The respondent shall handover vacant possession of the premises in question to the appellant on a date and time to be fixed by the senior Prothonotary of the High Court of Bombay in the presence of a representative of the Senior Prothonotary who shall record a memorandum signed by the respondent and a representative of the appellant. The possession shall be handed over by the respondent to the appellant within a period of three weeks from today. The amount payable to the respondent shall be handed over to him forthwith, or soon after the possession of the premises in question is handed over to the appellant.

(iv) The parties agree that Summary Suit No. 947/2004 pending before the High Court of Bombay; Complaint Case No.1195/S/2003 pending before the Metropolitan Magistrate, Dadar, Bombay which is challenged before the High Court of Bombay in Criminal Writ Petition No. 2514/2006 and Writ Petition No. 2134/1993 shall be withdrawn by moving appropriate applications by the party concerned. Two suits, namely, RAE Suit No. 45/1984 pending before the Small Causes Court, Bombay giving rise to Appeal No. 372/2005 and TE&R Suit No. 153/165 of 2001 pending before the Small Causes Court, Bombay which have been filed by the landlord of the premises in question shall continue and the appellant herein may contest the same, if so advised. So far as the respondent herein is concerned, he shall stand absolved of any liability in the said wo suits before the Small Causes Court.”

27. We have referred to the written statement in extenso and the terms that have been recorded by this Court solely for the purpose of appreciating the plea whether creation of sub-tenancy by the landlord has really been established. The thrust of the matter is whether the trial court and the appellate court have correctly arrived at the conclusion of sub-letting on the foundation of legitimate inference from the facts proven. As is evincible, the defendant No. 2 was put in possession by the defendant No. 1 while he was in service. There was an agreement between the defendant No. 2 and the defendant No. 1 which has been brought on record. The agreement of tenancy between the plaintiff and the defendant No. 1 is not disputed and one of the stipulations in the agreement is that the tenant has been given the premises on lease for the purpose of occupation of its executive staff. Thus, handing over of the possession of the premises to the defendant No. 2 is in accord with the terms and conditions of the agreement entered between the landlord and the tenant and, therefore, the entry of the defendant No. 2 into the premises is legal. The trial court as well as the appellate court has drawn inference that after the defendant No.2, the employee, resigned from service and remained in occupation while he was not entitled to, the defendant No. 1 did not take any steps to get back the possession and the proceedings initiated under the Companies Act were dismissed for non- prosecution and at a belated stage only a suit for recovery of occupational charges was instituted. The emphasis is on the inaction on the part of the defendant No. 1 to institute a suit for eviction. Such inaction would not by itself persuade a court to come to the conclusion that the sub-letting was proved. Nothing has been brought on record by way of documentary or oral evidence to suggest that there was any kind of arrangement between the defendant No. 1 and the defendant No. 2. The written statement which has been filed by the defendant No.2, in fact, is a series of self serving assertions for his own benefit. His stand would show that non-payment of provident fund and gratuity and other retiral dues amounted to consideration or a kind of arrangement. That apart, he has claimed himself to become a tenant under the landlord and also had put an aspirational asseveration that he had negotiated with the landlord to purchase the property to become the owner. The High Court has noted that the tenant, defendant No.1, was a sick company under the SICA and could not have received any money in a clandestine manner. Be that as it may, withholding of retiral dues cannot be considered as a consideration or any kind of arrangement. The settlement before this Court shows that the defendant No. 2 had paid the amount for overstaying in the premises in question and the deposited amount with the High Court was required to be paid towards the dues of the defendant No. 2 after deducting overstayal charges. Mr. Sundaram, learned senior counsel for the appellant, has contended that the settlement before this Court was between the defendant No.1 and the defendant No. 2 to which the landlord was not a party and hence, it cannot have any effect on the issue of sub-letting. True it is, it is a settlement between the defendant No. 1 and defendant No.2, but it is a settlement between an employer and an erstwhile employee and, therefore, the landlord had no role. We have noted the settlement only to show that barring withholding of the retiral dues the employer had not received any thing either in cash or in kind or otherwise from the defendant No. 2 and hence, under these circumstances, it is extremely difficult to hold that the factum of sub-letting has been established.

28. At this juncture, we are obliged to deal with the submission of Mr. Sundaram, learned senior counsel for the appellant, that the High Court in exercise of its civil revisional jurisdiction could not have dislodged the concurrent findings of the courts below. We have been commended to an authority in Renuka Das v. Maya Ganguly and another[12] wherein it has been opined that it is well settled that the High Court, in revision, is not entitled to interfere with the findings of the appellate court, until and unless it is found that such findings are perverse and arbitrary. There cannot be any cavil over the said proposition of law. But in the present case, as we notice, the trial court as well as the appellate court has reached their conclusions on the basis of inferences. As has been held by this Court, the issue of subletting can be established on the basis of legitimate inference drawn by a court. In P. John Chandy and Co. (P) Ltd. v. John P. Thomas[13], while dealing with a controversy under the rent legislation arising under the Kerala Buildings (Lease and Rent Control) Act, 1965, it has been ruled that drawing inference from the facts established is not purely a question of fact. In fact, it is always considered to be a point of law insofar as it relates to inferences to be drawn from finding of fact. We entirely agree with the aforesaid view. When inferences drawn do not clearly flow from facts and are not legally legitimate, any conclusion arrived at on that basis becomes absolutely legally fallible. Therefore, it cannot be said that the High Court has erred in exercise of its revisional jurisdiction by substituting the finding of fact which has been arrived at by the courts below. Therefore, we have no hesitation in holding that the High Court has not committed any illegality in its exercise of revisional jurisdiction under the obtaining facts and circumstances.

29. Consequently, we do not perceive any merit in this appeal and, accordingly, the same stands dismissed without any order as to costs.

———————–

[1] (1998) 3 SCC 1

[2] (2005) 1 SCC 31

[3] (1968) 2 SCR 548

[4] (1989) 1 SCC 19

[5] (1987) 4 SCC 161

[6] (1988) 1 SCC 383

[7] (1988) 1 SCC 70

[8] (1994) 5 SCC 9

[9] (2000) 7 SCC 522

[10] (2010) 1 SCC 217

[11] (2010) 9 SCC 129

[12] (2009) 9 SCC 413

[13] (2002) 5 SCC 90

Denial of Title


Denial of Title of the landlord

 

1. The second Proviso to section 11 (1) reads as:

Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bonafide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.
The elementary rule must be observed that no one should profess to-understand any part of a statute or of any other document before he had read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous. We tend to ignore the last part of this proviso, we are tempted to end our reading the words “on any of the grounds mentioned in this section” the last part states the circumstances where the proviso applies.
The second Proviso to Sub section (1) of section 11 disjunctively sets out two circumstances where section 11 does not apply viz. (1) denial of title of the landlord without bonafides and (2) claim of permanent tenancy rights without bona fides. Consequently either denial of title or claim of permanent tenancy without bonafides will attract second proviso of S. 11 (1).

Tenant remaining in possession of the tenanted premises cannot challenge the legality of gift deed executed in favour of the landlord on the ground that there has not been a delivery of property. The tenant has only defacto possession, dejure possession is with the landlord. Denial of title by the tenant must be bonafide. Tenant cannot blow hot and cold after remaining in possession. Tenant cannot be heard to content that delivery has not been effected.

The plaintiff purchased a house from the vendor who induced tenant into the premises. On being appraised of the fact of purchase, the tenant not only failed to pay the rent to the purchaser plaintiff but also took a plea that he was a tenant of the third party with whom he had entered an agreement of sale. On a suit being founded by the landlord purchaser on the ground of denial of title it was held that such a plea of denial substantially and adversely affected the interest of the landlord.
A tenant is not permitted to deny title of his landlord even if the partition suit is pending with respect to the property nor can demand stay of eviction proceedings till title of his landlord in partition suit is decided. (See discussion in Estoppel)
In a suit based on title, the plaintiff can succeed only on proof of his title and mere destruction of the defendant’s title carries the plaintiff nowhere.
In order to constitute denial of title the tenant should deny the proprietary title of the landlord. Mere denial of landlord tenant relationship is not enough. To enable a person to raise a plea of denial of title warranting an enquiry under S 11 (1) regarding bonafides of the plea the person raising the plea must admit that his status in the building is that of a tenant even when he contends that petitioner in Rent Control Petition is not his landlord. Essentially what is contemplated is not proprietary title but title as landlord. The second proviso to Section 11(1) is available to any person who disputes his status as tenant. He need not admit that he is a tenant to avail benefit of the proviso. The second proviso must be available not only to the proved or admitted tenant but also to any person in possession who disputes the title of the landlord. The landlord has to prove his title and any of the grounds as per Rent Control Act in order to get an order of eviction where the tenant denies the title of the landlord.
One or more of the grounds of eviction under S.11 need not be proved by the landlord if the suit is falling under the second proviso to S.11(1).
To allow the revision petitioners to raise a contention based on the first proviso to S.11(3) at this belated stage will result in serious prejudice to the landlords. The contention which was prominently and seriously raised and pursued by the revision petitioners was the contention of denial of the landlords’ title to the building. It was the tumultuous contention that the building itself belong to the tenant which was raised and pursued by him. The tenants failed miserably in substantiating their contention. According to us, it will be most inequitable, having regard to R.11(8) of the Kerala Buildings (Lease and Rent Control) Rules which provides that the Rent Control Court and other authorities under the statute shall be governed by the principles of justice, equity and good conscience, to allow the tenant to raise such a contention at this stage.

2. Denial of title
The tenant who denies the title of the landlord is excluded from the purview of the Rent Control Act by virtue of second proviso to the section 11 (1). The jurisdiction transfers to the civil court for such disputes. Such civil court can evict the tenant if found that the denial amount to forfeiture of lease, if it founds that the denial does not amount to forfeiture of lease then the civil court is vested with powers of rent control court to decide the issue on any of the grounds mentioned in the section.
Denial of landlord’s title or disclaimer of tenancy by tenant is an act which is likely to affect adversely and substantially the interest of the landlord and hence is a ground for eviction of tenant.
The second proviso comes into play in two circumstances, (1) where the tenant denies the title of the landlord (2) when he claims permanent tenancy. Then the Rent Control Court shall decide whether the denial of title or claim of permanent tenancy is bona fide and if the Rent Control Court records a finding that the denial or claim is bonafide. The rent control court can only find whether the tenant bonafide denied the title of the landlord, the court has got no jurisdictional competence as to look into the validity of the claim. The Rent Control Court has jurisdictional competence to hold that the landlord has no title or that there is no landlord tenant relationship Then the landlord shall be entitled to sue for eviction of the tenant in a civil court. This is the only case where the civil court is vested with the power to adjudicate on rent control matters.
“Such civil court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the court finds that such denial does not involve forfeiture of the lease.”

The civil court is required to conduct trial on any of the grounds under rent control Act is only when the denial does not involve forfeiture of the lease. It is not correct to say that the civil court can order eviction only on any of the grounds mentioned in this section irrespective of the finding whether the denial involves forfeiture of the lease or not. The scheme of the proviso to try the suit by a civil court is to determine the owner’s title and whether there is forfeiture. What is forfeiture can be seen in section 111 (g) 2 of Transfer of Property Act. If it were the intention of the legislature that the civil court can order eviction on any of the grounds mentioned in section 11 irrespective of whether there is forfeiture. The words would have been “notwithstanding that the court finds that such denial involve forfeiture of the lease” that is if the word ‘does not’ is not there then the meaning would have been that the civil court can pass order only on any of the grounds under Section 11 of the Act, in spite of the fact that the court finds that the denial involves forfeiture of the lease.

‘Every word in a statute to be given a meaning’. A construction which would leave without effect any part of the language of a statute will normally be rejected. Here the words “notwithstanding that the court finds that such denial does not involve forfeiture of the lease” is without any meaning or effect if it is said that the civil court can pass order of eviction only on any of the grounds mentioned in section 11 of The Kerala Buildings (Lease and Rent Control) Act, 1965. It is a well-settled principle of interpretation that words in a statute shall be given their natural, ordinary meaning, nothing should be added to them nor should any word be treated as otiose.

On the last part of the proviso there are two conditions under which the civil court may pass a decree for eviction on any of the grounds mentioned under section 11 of Kerala Buildings (Lease and Rent Control) Act. The first one is that ‘notwithstanding that the court finds that such denial does not involve forfeiture of the lease’. If there is no forfeiture, the civil court can pass eviction only on any of the grounds mentioned in section 11. If the Court finds that there is forfeiture of the lease the court can forthwith order eviction on forfeiture.

On the other hand if the court finds that there is no forfeiture of the lease due to some reason such as lessor not giving notice in writing of his intention to determine the lease or on ground that the tenant had not attributed the title in himself or in a third person, then the court need not send the case back to the Rent Control Court to consider the grounds for eviction. The civil court is vested with powers to pass a decree for eviction on any of the grounds mentioned in section 11 of the Act. The civil court is empowered to use the power of the Rent Control Court
If the denial does not involve forfeiture of the lease, either because all the ingredients are not present or because the denial is only Landlord tenant relationship and not the title, then the civil court may pass a decree for eviction on any of the grounds mentioned in this section. If the denial does involve forfeiture then the civil court can pass eviction of the tenant under forfeiture itself.
When the denial does not involve forfeiture of lease, the civil court can order eviction of the tenant only on any of the grounds of the Act. When there is forfeiture of lease then the civil court can pass order of eviction on forfeiture and need not revert to grounds under Rent Control Act.
The Rent Control Court on the basis of its finding that the tenant’s claim was not bonafide can pass an order of eviction.

In section 111 (g) 2 of the TP Act the words “has denied the title of the landlord” have not been used but the words used are “renounces his character as such by setting up a title in a third person or by claiming title in himself.” The term denial of title of landlord means renouncing the character of another as a landlord, whereas renouncing the character as a tenant, means that he is not a tenant of the plaintiff at all. It thus follows that denial of title of the landlord either results from the denial of relationship of landlord and tenant between the parties to suit or by setting up the tenancy relationship with a third person

Disclaimer under Section 111 (g) 2 of TP Act is a renunciation by lessee of his title as a tenant; the effect of disclaimer is to bring to an end the relationship of landlord and tenant, the cessation being by operation of law. Where the defendant claims to be a tenant not of the plaintiff but of a third person and paying rent to them even prior to suit, plea of disclaimer is established. In providing disclaimer as a ground for eviction of a tenant the provisions of S.111 (g) of the Transfer of Property Act have been given effect to in the second proviso. The principle of forfeiture on disclaimer is formed on the rule that a man cannot approbate and reprobate at the same time. Since the consequence of applying the rule is very serious, it must be held that denial has to be clear and in unequivocal terms. The first essential condition of ‘renunciation of title’ of the landlord must be a declaration by the tenant to the effect in unequivocal and unambiguous terms. Secondly the disclaimer of title of the landlord must be with the express object of repudiation of the tenancy.

Denying title of a landlord who is claiming to be the heir of the original landlord does not amount to denial of title of the landlord and he is not renouncing his character as such, because he is entitled, without incurring any legal consequence in that behalf, to call upon such a person to prove his title on devolution. The denial of the relationship of landlord and tenant by the tenant in his written statement in a suit for ejectment determines a tenancy, forthwith thus giving the right to the landlord to the possession of the leased property.
The tenant, by denying the title of the plaintiff who inducted her in the suit premises, and by setting up title in herself, has lost the protection accords to her by the Act. Hence she is liable to be evicted. The disclaimer or the repudiation of the title of the landlord must be clear and unequivocal and made to the knowledge of the landlord.
The moment the tenant sets up a title in a third person, he becomes liable to ejectment, as a result of the determination of the lease by forfeiture, on account of his renouncing his character as a lessee.
Mere demand by tenant to furnish copy of agreement that entitles transfer to recover rent from him does not amount to disclaimer of title. Where the title of real heir of the original Lessor is denied it certainly amounts to setting up of a title in somebody else because the property does not remain in vacuum. For effective disclaimer it is necessary that it must be in a judicial proceeding or other public record so as to work as forfeiture. Every denial of title is not a ground for eviction. It must be such which is likely to affect adversely and substantially the interest of the landlord To constitute denial of title as a ground for eviction there should be specific pleading and necessary facts have to be proved.

The principles of T.P. Act need not be brought into service in deciding case in Rent Control Act. It would result in inequality between a tenant who questions the landlord’s title while resisting eviction, and another who resists eviction without questioning the title. Both should be treated equally. Questioning the title and denying the title and claiming the title in the tenant himself are different.

The Rent Control Acts in India have borrowed or rather adopted or incorporated some conditions from the parent Act i.e. The Transfer of Property Act. 1882 and this ground is one of the illustrative of such borrowing.

The tenant was precluded from denying the title of the landlord on the general principle of estoppel between landlord and tenant. The principle in its basic foundation means no more than that law considers it unjust to allow a person to approbate and reprobate.

Disclaimer means renunciation by the party of his character as tenant either by setting up a title in another or by claiming in himself. In order to make either a verbal or written disclaimer sufficient, it must amount to a direct repudiation of the relation of the landlord and tenant or to a distinct claim hold possession of the estate upon a ground wholly inconsistent with that relation which by necessary implication is a repudiation of it.

The contention of denial of title put forward at the fag end of the trial cannot be allowed. Section 11 (1) of the Act is intended to prevent unscrupulous litigants from seeking eviction of persons who are not their tenants and to prevent unscrupulous tenants from protracting the Rent Control proceedings by making false claim of denial of title of the landlord. A tenant who wants to protract the Rent Control proceedings and delay eviction may raise a false contention that the landlord has no title. If rent control court finds that the denial is not bonafide the Rent Control Court can proceed with the final trial and dispose the case. It cannot be held that the Rent Control Court has no jurisdiction to consider the respective contentions as to the question of title. Overruled by 2006 (2) KLT 250 (FB)
It is trite that no person should be allowed to approbate and reprobate. Contending that only a Rent Control Petition was maintainable to evict the tenant, she cannot be permitted to question the maintainability of the Rent Control proceedings. Her contention that she could be evicted only by taking resort to the provisions of the Rent Control Act presupposes an admission regarding her status as a tenant. Therefore, she cannot be permitted to turn round and contend that she was not a tenant but the owner of the building. Dispute between two persons who claim to be owner of the building is to be deiced by civil court, in such proceedings the one who was the former tenant should not be given protection of the rent control Act. The courts should seriously take the last part of the proviso with the seriousness it deserves.
Landlord in a given case although may not be able to prove the relationship of landlord and tenant, but in the event he proves his general title, may obtain a decree on the basis thereof. It is also well settled that one such relationship is admitted or established, tenant would be estopped and precluded from challenging the title of the landlord and if he does so, under the general rule, make himself liable for eviction on that ground. It, therefore, logically follows that a finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenant except in a case, as mentioned hereinbefore the plaintiff on payment of ad valorem Court fee may obtain a decree for eviction on the basis of his general title.

12. Difference between denial of title under second proviso to section 11 (1) and subsection 3 of section 10.
Where two rival landlords claim rent from the tenant in possession on the basis of alleged derivation of title and the tenant bonafidely entertaining doubt deposits the rent in Bank for a lawful landlord who may be so declared eventually by the court such act does not amount to denial of title. Mere demand by tenant to furnish copy of agreement that entitles transferee to recover rent from him does not amount to disclaimer of title.

3.  Landlord Tenant Relationship
The Act is applicable only if there is the relationship of landlord and tenant. It cannot apply where the house is in occupation of a co-owner.

4. What is Bonafide Denial
The denial of the title or claim of right of permanent tenancy shall only exclude the tenant from the protection of the Rent Control Law when the denial or the claim is bonafide. Bonafide means, if the tenant asserts the denial of the title or claim of right of permanent tenancy knowingly in unequivocal and unambiguous terms. Then only such plea will operate as a criterion for excluding the tenant from the protection of rent control legislation. The denial must be clear and unequivocal. The Rent Controller need only to look whether the denial was bonafide or not, The Rent Controller has got no jurisdictional competence to look whether the denial was valid or not. The Rent Controller need only look whether the tenant had denied the title in unambiguous terms and knowing fully well what he is doing. Mere enquiry as to who is the landlord or landlord should be put to proof of his title will not amount to denial of title.
The existence of Landlord Tenant relationship is inevitable for Rent control court to exercise its jurisdiction. The tribunal cannot decide dispute regarding title. That is the area where the civil court must entertain jurisdiction. The Rent Control Court can decide whether the denial of title is bonafide or not. It is not expected to and does not have jurisdictional competence to enter a finding whether the denial of title is valid or not. Rent Control Court can proceed to exercise its jurisdiction after recording a finding that the denial is not bonafide. Only a civil court can decide question of title.
Nature of the enquiry that is stipulated by the second proviso to S.11(1) of the Act as to whether the denial of title of the landlord by the tenant was bona fide or not. It has been held that the chances of success of the tenant in a civil suit is one of the tests for determining whether the plea of the tenant was bona fide or merely intended to protract matters. In my opinion the nature of enquiry regarding the bonafide of denial at this stage is to the extent of, whether the tenant has denied the title of the landlord with ample knowledge that he is doing such denial. Where the tenant has denied the title of the landlord and claimed title in himself, the legal system has no duty to cast the rights of the tenant on such person. He is claiming to be the landlord. Rent Control Act is not casting upon him the protection available to a tenant. The matter is to be decided on the strength of title. The civil court should decide whether there is forfeiture of lease, if there is no forfeiture the court has got power to order eviction on any of the grounds mentioned in the rent control Act.
Rent Control Court is entitled and bound to decide the question whether the question of title is bonafide or not. For finding bonafides of the claim Rent Control Court need only look into the materials before it. When a plea of permanent tenancy or permanent immunity from eviction is raised by the alleged tenant facing eviction proceedings in the Rent Control Court, the Rent Control Court has the jurisdiction to decide whether the claim is bona fide. Rent Control Court should permit both sides to produce materials which will enable the Court to decide whether the claim of permanent tenancy or permanent immunity from eviction raised by the revision petitioner is a bona fide one.

Denial of landlord’s title or disclaimer of tenancy by tenant is an act which is likely to affect adversely and substantially the interest of the landlord and hence is a ground for eviction of tenant. To amount to such denial or disclaimer, as would entail forfeiture of tenancy rights and incur the liability to be evicted, the tenant should have renounced his character as tenant and in clear and unequivocal terms set up title of the landlord in himself or in a third party, A tenant bonafide calling upon the landlord to prove his ownership or putting the landlord to proof of his title so as to protect himself (i.e. the tenant) or to earn a protection made available to him by Rent Control Law but without disowning his character of possession over the tenancy premises as tenant cannot be said to have denied the title of landlord or disclaimed the tenancy.

Wherein a rent control proceedings, the tenant asserted that he was neither the tenant of the landlord, nor of anybody else, it was held to be assertion of his own title impliedly amounting to a disclaimer of title. Where a tenant alleged that the landlord was not alone the person entitled to sue but there are other persons who are the co-sharers in the property leased, it was taken to be, in effect, the assertion, that the person is not a lesser and it amounted to disclaimer of title. When a tenant denies the title of one of the co-landlord and pleads sole ownership in other co-landlord, such plea amounts to denial of title.
The Rent Control Court should permit both sides to produce materials which will enable the Court to decide whether the claim of permanent tenancy or permanent immunity from eviction raised by the revision petitioner is a bona fide one. If the result of the enquiry is that claim is a bona fide one, then only the Rent Control Court will be justified in relegating the parties to a Civil Court.

5. Jurisdiction of Civil Court
There was a bonafide dispute as to title raised by the tenant/appellants and, therefore, the rent controller did not have jurisdiction to hear and finally adjudicate upon the application filed by the landlord/respondent before it. However, this finding is limited to the issue of the rent controller’s jurisdiction and shall not preclude the respondent landlord from approaching a competent civil court for determination of the issue finally and no observations made in this judgment will prejudice the trial of this or any other issue that the respondent may raise on merits. All the matters can be re-agitated in the Civil Court. Final adjudication of the dispute has to be done by the Civil Court, notwithstanding the earlier findings regarding title to the property and landlord tenant relationship and arrears of rent.
It is for the landlord, to withdraw the proceeding before the rent control court and to proceed against the tenant under the general law, where the law says so. That course having not been adopted by the landlord the proceeding under the Rent Control Act was clearly not maintainable and was rightly dismissed by the trial court.
In a civil suit on the strength of title where the tenant denies the title of the landlord Rent Control Act has no application, especially when claimed at the execution stage.

6. Tenant and landlord are governed by provisions of Rent Control Act
A cardinal principle of statutory interpretation is that a provision in a statute must be read as a whole and not in isolation ignoring the other provisions of that statute — While dealing with a statutory instrument, one cannot be allowed to pick and choose.

Hence a tenant who is denying the title of the landlord or claims permanent tenancy can be evicted only in accordance with the grounds specified in the Act. The tenant gets the protection of the Act even though the forum is Civil Court. The tenant who gets the protection of the Act is also liable under the act under section 12 and his rent can be fixed under section 5.

7. Forfeiture of lease
Forfeiture of the lease is defined in section 111 (g) of Transfer of Properties Act and forfeiture by denial of title of landlord is mentioned in section 111subsection g (2). Section 111 deals with determination of lease by 8 modes mentioned in subsections ‘a’ to ‘h’. (Out of these eight subsections, subsection’ g’ is divided further into 3 subsections.) All these provisions are over run by Act 2 of 1965 except S.111 (g) 2 (which is incorporated in the second proviso to said section 11) S.111 (g) 2 of T.P. Act 1882 reads as follows:- “A lease of immovable property determines by forfeiture, that is to say in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself and the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease”.

To constitute forfeiture as per Transfer of Property Act there are three sine qua non prerequisites and they are:-

1. Denial of title of the landlord, and then

2. The tenant should set up a title in himself or in a third person, just denying the title of the landlord does not constitute forfeiture of lease. (When the tenant sets up a title in a third person, it is called ‘justerti’)

3. The lessor or his transferee must give a notice in writing to the lessee of his intention to determine lease.

In Kerala Buildings (Lease and Rent Control) Act 1965 this section of Transfer of Property Act is given effect to by the second proviso of section 11. The Act 2 of 1965 does not insist on the three prerequisites of section 111 (g) 2 of the T P Act. Here if the court finds that there is forfeiture i.e.. all the prerequisites under S. 111 (g) 2 of the Transfer of Property Act is complied with then the court can pass a decree for eviction on that ground itself. But if the court finds that such denial of title does not involve forfeiture of the lease due to lack of any of the prerequisites such court may pass a decree for eviction on any of the grounds mentioned in this section ie. S.11 of Kerala Buildings (Lease and Rent Control) Act even if the landlord is not able to prove the ground.

Section 111 of Transfer of property Act

111.Determination of lease
.- A lease of immoveable property determines—

(a) by efflux of the time limited thereby:

(b) where such time is limited conditionally on the happening of some event—by the happening of such event:

(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event—by the happening of such event:

(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right:

(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them:

(f) by implied surrender:

(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease:

(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.

Illustration to clause (f)

A lessee accepts from his lessor a new lease of the property leased, to take effect during the continuance of the existing lease. This is an implied surrender of the former lease, and such lease determines thereupon.

The civil court has to examine whether there is forfeiture of tenancy. If there is forfeiture the civil court can declare that the tenancy had determined. In order to constitute forfeiture, the tenant should renounce his character as tenant by setting up a title in a third person or by claiming title himself. Then the landlord gets a right to determine the lease, the landlord is at liberty to exercise that right or not. In order to exercise the option the landlord has to give notice in writing to the lessee of his intention to determine the lease and file civil suit for declaration of title and recovery of possession.
Findings in rent control proceedings regarding absence of tenancy arrangement, will not act as resjudicata in a suit for declaration of title and recovery of possession.

7. Denial of title and principle of adverse possession
The tenant’s right of adverse possession starts from the date of denial of his landlord’s title and matures on the completion of the statutory period.
Adverse possession must commence in wrong and must be maintained against right and maintained for the statutory period. Limitation begins to run when the possession of the tenant becomes adverse to that of the owner. Mere declaration is not enough.

Although possession of a tenant, however, full and complete, does not of itself operate as an ouster of the owner, the mere fact that a person enters as a tenant, does not preclude him from acquiring title against his landlord by adverse possession. It can operate as an ouster if he abandons the idea of holding as a tenant and sets up and asserts an exclusive right in himself. He must either give notice of his claim, or his possession should be accompanied by some overt act asserting an ownership of such an open, notorious and hostile character as not to be easily misunderstood. Limitation begins to run when the possession of the tenant becomes adverse to that of the owner, that is, when the acts of the tenant are of such a character as to show that he claims exclusive ownership and denies the rights of the owner. Mere declaration is not enough.

Denial of landlord’s title or disclaimer of tenancy by tenant is an act, which is likely to affect adversely and substantially the interest of the landlord and hence is a ground for eviction of tenant. To amount to such denial or disclaimer, as would entail forfeiture of tenancy rights and incur the liability to be evicted, the tenant should have renounced his character as tenant and in clear and unequivocal terms set up title of the landlord in himself or in a third party, A tenant bonafide calling upon the landlord to prove his ownership or putting the landlord to proof of his title so as to protect himself (i.e. the tenant) or to earn a protection made available to him by Rent Control Law but without disowning his character of possession over the tenancy premises as tenant cannot be said to have denied the title of landlord or disclaimed the tenancy.

In a Rent Control Petition the tenant defendant had setup an independent title and denied the landlord tenant relationship. So civil suit was filed for declaration of title and recovery of possession on the basis of title. In such suit the plaintiff need not prove any of the grounds for eviction available under section 11.

Section 5 of the Specific Relief Act 1963
5. Recovery of specific immovable property.-
A person entitled to the possession of specific immovable property may it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908).

In case of denial of title of the landlord the tenant should be treated as a trespasser and the landlord can claim mesne profit for the use of the building.

The tenant’s denial of title will mature into adverse possession after the twelfth year, if the landlord fails to file civil suit within twelve years he cannot evict the tenant, or if the civil court which try the suit did not find any ground to evict the tenant and is allowed to continue in the building. The adverse possession will mature into prescriptive right in twelve years.

8. Provisions as to notice in writing
The word used is “giving notice” imposes lighter duty on the lesser because ‘giving notice imposes lighter duty than ‘serving the notice’. Hence a letter by ordinary post will suffice.
A conduct of claiming title in himself on the part of the lessee does not ipso facto put an end to lease thus enabling the landlord to obtain possession. But it confers a right on the lessor, if he so elects, to determine the lease by a notice as required by Sec. 111 (h) of Transfer of Property Act.
The happening of any one of the events mentioned under Section 111 (g) would not ipso facto determine the lease. The landlord will have to express his intention to determine the lease in a notice in writing which should be served on the lessee, but this does not mean that the lessor must give two notices, one expressing his intention to determine the lease and the other actually determining the lease. The notice can be any of the following natures 1) notice to determine lease, 2) notice to quit 3) notice of intention to quit. The landlord’s termination of tenancy even without a written notice is good at law.
The provision regarding sending notice under The Transfer of Property Act has been amended by Act 3 of 2003 as follows.
106.Duration of certain leases in absence of written contract or local usage.- 1) In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice; and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice.
2) Not withstanding anything contained in any other law for the time being in force the periods mentioned in subsection (1) shall commence from the date of receipt of notice.
3) A notice under subsection (1) shall not be deemed to be invalid merely because the period mentioned there falls short of the period specified under that subsection, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
4) Every notice under subsection (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it, or be tendered or delivered personally to such party or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.

9. Estoppel
Though the rent control litigation being a summary procedure, the Indian Evidence Act and other relevant provisions of different laws governed the conditions with regard to admission and rejection of evidence . While considering the principle of estoppel the provisions of Rent Control Act follows section 116 of the Indian Evidence Act.

The Section 116 of the Evidence Act reads as follows:
Estoppel of tenant; and of licensee of person in possession- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a tile to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.

The estoppel contemplated in section 116 is restricted to the denial of title at the commencement of tenancy and by implication it follows that a tenant is not estopped from contending that the title of the lessor had since come to an end. So a tenant is not precluded from denying the derivative title of the person claiming through the landlord. Tenants was inducted by predecessor in interest of respondent and paying rent to respondent. This fact leads to the conclusion that relationship of landlord and tenant existed. Question as to whether respondent was absolute owner of the premises, is not relevant in considering the question whether there existed the jural relationship of landlord and tenant.

When the tenancy has been determined by eviction by title paramount no question of estoppel arises under Section 116 of the Evidence Act. The estoppel is equally applicable in cases of attornment also generally, the question of title to the leased out premises is irrelevant in a suit between landlord and tenant. Once it is found that there was a contractual relationship of landlord and tenant between the parties, Section 116 will bar the further enquiry as to the title at the instance of tenant or a person claiming through him. A tenant is not estopped from questioning the derivative title of a transferee of his landlord. The estoppel under Section 116 does not exclude the rule of general estoppel. Section 116 of the Evidence Act also prohibits the tenant from denying the title of the landlord due to estoppel. Derivative title of vendee landlord denied on ground that the vendor of the premises, to whom the tenant had atoned, had himself no title. Held, Denial not based on ground of any infirmity or defect in flow of title from the vendor, and that the act amounted to denial of landlord’s title.
A tenant who has been let into possession cannot deny his landlord’s title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord. It is also well settled that during the continuance of the tenancy, the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlord’s title by mere assertion of such a right to the knowledge of the landlord.

10. Permanent Tenancy
The Second aspect of the proviso is applicable when the tenant claims right of permanent tenancy, then the Rent Control Court shall decide whether the claim of permanent tenancy is bonafide knowingly in unequivocal and unambiguous terms and if it records a finding that there is a bonafide clear claim, then the landlord shall be entitled to move the civil court for the eviction of the tenant, and such civil court may pass a decree for eviction on any of the grounds envisaged in this section if the court finds that the claim is unfounded. If the claim is well founded the tenants right becomes permanent.
Tenant claimed right of permanent tenancy. The Rent Control Court on the basis of its finding that the tenant’s claim was not bona fide can pass an order of eviction.
Jurisdiction to decide the claim for permanent tenancy is on the Rent Control Court.
Permanent tenancy can be claimed by a tenant only. Permanent tenancy means a permanent immunity from eviction or a tenancy which is to last forever till the subject matter exists. Investing of substantial amount by the tenant towards the improvement of the building of course with the consent of the landlord is a bar on the part of the landlord to evict the tenant unless and until the amount expended are paid back. The license become irrevocable license under section XXX of Easement Act.
When a tenant claims right of permanent tenancy, that tenant is thrown out of the purview of the Act by virtue of the proviso to S.11 as mentioned above. Section 11 starts with a non-obstante clause which makes the whole Act overriding all other contract or law, the scope of this section is very wide. The proviso to this wide section takes the tenant who claimed permanent tenancy from the purview of the Act itself not merely from the purview of the section, but from the purview of the Act. Hence the tenant gets no benefits under the Act.
It is seen that the appellant had the opportunity to raise the plea of the bona fide denial of title as well as the remedies of S. 72B and S. 106 of the Land Reforms Act. He chose to deny the title of the landlords setting up the plea that he constructed the buildings and that the lease was only of open land. However, the appellant chose to deny the title of the landlords and did not raise the plea of S. 106 of the Land Reforms Act. The rule of “might and ought” envisaged in Explanation IV to S.11, C.P.C. squarely applies to the facts of the case and, therefore, it is no longer open to the appellant to plead that, Civil Court has no jurisdiction to decide the matter and it shall be required to be referred to the Land Tribunal.
The civil court is vested with power to decide the provisions of Kerala Buildings (Lease and Rent Control) Act in this circumstance. This is to avoid shuttling of landlord between Rent Control Court and Civil Court and then to Rent Control Court. i.e.. At first the landlord filed a petition before the Rent Control Court, there the tenant put up a plea that he has got right of permanent tenancy, then the landlord has to file a civil suit in a competent civil court because the Rent Control Court is not competent to decide upon that matter, then if the civil court decide that there is permanent tenancy then the matter is settled, in favour of the tenant and he can not be evicted but if the court finds that there is no permanent tenancy and the civil court is not vested with the power to adjudicate the Rent Control matters then the landlord would have to file the petition in the Rent Control Court again. In order to avoid this inconvenience the legislature has wisely given the power to the Civil Court. The civil court is invested with jurisdiction in matters of eviction under any of the grounds mentioned in the Rent Control Act, under the second proviso to section 11 (1).
This denial of title or claim of right of permanent tenancy shall only operate as criteria for excluding the tenant from the rent legislation when the denial or the claim is bonafide. In other words if denial of title or claim of permanent tenancy is asserted and the tenant do so fully knowing the act he is doing, then only such plea will operate as a ground for eviction. Bonafide denying the title means denying title fully knowing that he is denying his landlord’s title. Whether the denial or claim is valid or not is not the point to be considered at this juncture further the denial or claim should be proved false and vexatious in the civil court. The civil court is invested with jurisdiction in matters of eviction under the second proviso to section 11 (1).
The right of the tenant under the Kerala Land Reforms Act and Kerala Buildings (Lease and Rent Control) Act are alternative rights. If a tenant avails of the right provided under one statute with full knowledge of the relevant facts, the right recognized under the other Act, must held to have been waived, and the tenant shall not be allowed to give up that stand and take a new stand. The tenant took contention that he was a cultivating tenant. The Land Tribunal rejected his plea. The tenant sought to amend his written statement by raising a claim of Kudikidappu. This amendment is not bonafide and is a belated one. Amendment cannot be allowed. Having elected to avail of the right conferred on the tenant under the Rent Control Act and got an order from the authorities constituted under that Act to the prejudice of the landlord, the petitioner shall not be permitted to give up that stand and take shelter under The Kerala Land Reforms Act and avail of the benefit of S. 75 thereof.
Tenant resisting eviction petition on the ground that he is a ‘kudikidappukaran’ entitled to protection under Land Reforms Act. Landlord contending that the building has 9 rooms and the value of the building is more than Rs.750. To calculate the value of the building in respect of which there is a ‘kudikidappu’ claim, the value of the additional construction made by the ‘kudikidappukaran’ is to be excluded. Tenant entitled to protection.

If the court finds that the claim of permanent tenancy is unfounded the outcome is that the tenant does not get a right of permanent tenancy and the tenant can be evicted by that civil court which decide the claim is empowered to consider the matter of grounds of eviction under Rent Control Act.
Denying the title of the landlord and claiming Kudikidappu or any such right of permanent tenancy will attract the impact of 2nd proviso of section 11. and thereby the tenant is disentitled to claim the benefits conferred to him by the Kerala Buildings (Lease and Rent Control) Act. This is based on the principle that “a man should not be allowed to approbate and reprobate in the same time.” Here the tenant renounces his character as such and consequently he cannot claim benefits of Rent Control Act which gives protection to tenants.

11. Court fees
In a suit filed under section 11 (1) second proviso the court fee is to be paid under section43 of the court fees and suit valuation Act, and not under section 30. A finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenant the plaintiff on payment of ad valorem Court fee may obtain a decree for eviction on the basis of his general title.

12. Deposit of rent where there is dispute or doubt of right to receive rent.
Where the tenant has got genuine doubt or dispute as to the ownership or bonafide doubt as to the person who is entitled to receive the rent the building he is occupying, the tenant can protect his right under S. 10 (3).

Where two rival landlords claim rent from the tenant in possession on the basis of alleged derivation of title and the tenant bonafidely entertaining doubt deposits the rent in Bank for a lawful landlord who may be so declared eventually by the court such act does not amount to denial of title.

It is most important to mention that all those Acts, which prescribe the claim of permanent tenancy, would be a ground for eviction also make it abundantly clear that if the claim of the tenant to such a permanent tenancy is bonafide, it would not be a ground. This qualification to the ground was necessary for doing full justice to the tenants. Otherwise, every rightful claim for permanent tenancy would entail the eviction of the tenant. Thus the claim of permanent tenancy by the tenant would only operate as a ground when the claim is not bonafide and it is false, frivolous or vexatious and having no foundation.

All eviction petitions except suit under 11(1) are to be filed in the Rent Control Court. The civil suit under Section 11(1) second proviso can be filed in a civil court of competent jurisdiction, only after The Rent Control Court arrived at a finding that there exists a bonafide dispute as to title. The landlord cannot directly come to Civil Court claiming that his tenant had denied his title.

കേരള ബില്ഡിംഗ് റെന്റ് കണ്ട്രോള് നിയമം


1965 ല് നിലവില്വന്നതും ഇപ്പോഴും പ്രാബല്യത്തിലിരിക്കുന്നതുമായ കേരള ബില്ഡിംഗ് റെന്റ് കണ്ട്രോള് നിയമം കാലാല്പസരണമായി മാറ്റണമെന്ന് കേരള ഹൈക്കോടതി പല വിധിന്യായങ്ങളിലൂടെയും ആവശ്യപ്പെട്ടിട്ടുളളതും കേരള ലോ റിഫോമ്സ് കമ്മറ്റി ശുപാര്ശ ചെയ്തിട്ടുളളതുമാണ.്
1992 ല് കേന്ദ്ര ഗവണ്മെന്റ് മാതൃകാ വാടകനിയന്ത്രണം കൊണ്ടുവരുകയും എല്ലാ സംസ്ഥാനങ്ങളും അതിന്റെ പശ്ചാത്തലത്തില് കെട്ടിട ഉടമയുടെയും വാടകക്കാരന്റെയും ന്യായമായ അവകാശങ്ങള് തുല്യമായി സംരക്ഷിച്ചുകൊണ്ട് നിയമനിര്മ്മാണം നടത്തണമെന്നും ആവശ്യപ്പെടുകയുണ്ടായി. ആയതിന് പ്രകാരം 2002 ലും 2008 ലും 2013 ലും ഈ നിയമം ബില്ലായി കൊണ്ടുവന്നെങ്കിലും നിയമസഭയില് അവതരിപ്പിക്കാനോ പാസാക്കാനോ സാധിച്ചില്ല.
ഇന്ത്യയിലെ ഏതാനും സംസ്ഥാനങ്ങളിലൊഴികെ കര്ണ്ണാടക, ആന്ധ്രപ്രദേശ്, പഞ്ചാബ് എന്നീ സംസ്ഥാനങ്ങളുള്പ്പെടെയുളള സംസ്ഥാനങ്ങളില് കെട്ടിട ഉടമയുടെ അവകാശങ്ങളെ സംരക്ഷിച്ചുകൊണ്ടുളള നിയമം നടപ്പിലാക്കിയെങ്കിലും കേരളത്തില് ഇന്നുവരെ ഈ നിയമം പരിഷ്ക്കരിക്കാന് സാധിച്ചില്ല.
കെട്ടിട ഉടമകളുടെ അവകാശങ്ങളെ സംരക്ഷിക്കുന്ന നിയമം ഇല്ലാത്തതിനാല് കെട്ടിട ഉടമകള് അനുഭവിക്കുന്ന അനീതികള് അനവധിയാണ്. കെട്ടിട വാടകകൊണ്ട് കെട്ടിടത്തിന്റെ വര്ധിപ്പിച്ച കെട്ടിടനികുതിപോലും അടയ്ക്കാന് കഴിയാത്ത സ്ഥിതിയാണ്.
കെട്ടിടം പണിതു വാടകയ്ക്ക് കൊടുക്കുന്നത് ഒരു വ്യവസായമായി പരിഗണിക്കുകയും കെട്ടിടം പണിതുവാടകയ്ക്കു കൊടുക്കുന്നവരെ പ്രോത്സാഹിപ്പിക്കുകയും ചെയ്യാതെ കേരളത്തില് ആവശ്യത്തിനുകെട്ടിടം ഉണ്ടാകുകയില്ല. അതുമൂലം പകിടി സമ്പ്രദായവും ഉയര്ന്ന വാടകയും കേരളത്തില് നിലനില്ക്കുന്നു. ഇത് സംസ്ഥാനത്തെ വാണീജ്യവ്യവസായ മേഖലകളിളെ വികസനത്തെ പ്രതികൂലമയി ബാധിച്ചിട്ടുളളതാണല്ലോ.
ഈ ദുസ്ഥിതിക്കു പരിഹാരമായിതാഴെപറയുന്ന ആവശ്യങ്ങള് ഉള്ക്കൊള്ളിച്ചുകൊണ്ട് 1992 ലെ മാതൃക വാടകനിയമത്തിനനുസൃതമായി ഒരു വാടകനിയന്ത്രണനിയമം കൊണ്ടു വരേണ്ടത് കേരളത്തിന്റെ വളര്ച്ചയ്ക്ക് അനിവാര്യമാണ്.
1. കെട്ടിട ഉടമയും വാടകക്കാരനും തമ്മിലുളള കരാറിനു നിയമസാധുത നല്കുക
2. കെട്ടിട ഉടമയും വാടകക്കാരനും തമ്മിലുണ്ടാകുന്ന കേസുകള് തീര്ക്കാന് ഓരോ ഡിസ്ട്രിക്റ്റിലും ട്രൈബ്യൂണല് സ്ഥാപിക്കുക.
3. ന്യായമായതും കാലാനുസൃതവുമായ വാടക തീരുമാനിച്ചു നടപ്പിലാക്കുവാന് സമയബന്ധിതമായി നടപടികള് എടുക്കുക.
4. നിയമ നടപടികള് അന്യായമായി നീട്ടിക്കൊണ്ടുപോകുന്നതു തട യുന്ന നിയമ നിര്മ്മാണം നടത്തുക.
5. പതിനായിരം രൂപയില്ക്കൂടുതല് വാടകവരുന്ന കെട്ടിടങ്ങളെ വാടക നിയന്ത്രണ നിയമത്തിന്റെ പരിധിയില് നിന്നും ഒഴിവാക്കുക.
സ്വതന്ത്ര വാണീജ്യ വല്ക്കരണത്തിന്റെ പ്രധാന ഗുണഭോക്താക്കളായ കച്ചവടക്കാര് അതിന്റെ യാതൊരു ഗുണഫലവും കെട്ടിട ഉടമയ്ക്കു നല്കരുതെന്നു ശഠിക്കുന്നത് നിര്ഭാഗ്യകരമാണ്.
വാടകക്കാരായ വ്യാപാരികളുടെ സംഘടിത ശക്തിക്കും പണക്കൊഴുപ്പിനും മുമ്പില് ദശാബ്ദങ്ങളായി അനീതി അനീതിക്കു വിധേയരായികൊണ്ടിരിക്കുന്ന കെട്ടിട ഉടമകളുടെ ന്യായമായ അവകാശങ്ങള് അവഗണിക്കപ്പെടരുത് എന്നും 1992 ലെ കേന്ദ്ര മാതൃകാവാടക നിയന്ത്രണ നിയമത്തിന്റെ അന്തസത്ത ഉള്ക്കൊണ്ട് കെട്ടിട ഉടമകളുടെ ന്യായമായ അവകാശങ്ങള് മാനിച്ചു സ്ഥാപിച്ചുകൊണ്ട് നിയമം നിര്മ്മിക്കേണ്ടത് കാലഘട്ടത്തിന്റെ ആവശ്യമാണ്.

ഓള് കേരള റെന്റഡ് ബില്ഡിംഗ് ഓണേഴ്സ് അസോസിയേഷനുവേണ്ടി
സെക്രട്ടറി

Stamp Paper Required for a Lease and License Deed


The value of stamp paper required for a lease deed is same as Bottomry Bond or Conveyance depending upon the period of lease.

Apart from this, a lease that is for a period for more than one year is compulsorily registrable.  Hence 2 % registration charges also will be applicable.

But License deed need not be registered.

The Kerala Stamp Act, 1959 (Amended as per Finance Bill 2015 (Bill No. 345)

THE SCHEDULE

14.

Bottomry Bond, that is to say, any instrument whereby the master of a sea-going ship borrows money on the security of the ship to enable him to preserve the ship or prosecute her voyage: 40[Five rupees for every Rs. 100 or part thereof of the amount or value secured.]

44[21

Conveyance [as defined by Section 2(d), other than a conveyance specified in No. 22, not being a transfer charged or exempted under No. 55]: 45[Seven rupees for every rupees 100 or part thereof of the fair value of the land or the amount or value of the consideration for such conveyance, whichever is higher.]

46[22

Conveyance as defined by Section 2(d), not being a transfer charged or exempted under No. 55 of immovable property situated,—

(i)

within the Municipalities/ Townships/ Cantonments other than Corporations.
Eight rupees for every rupees 100 or part thereof of the fair value of the land or the amount or value of the consideration for such conveyance, whichever is higher.

(ii)

within the Municipal Corporations. Nine rupees for every rupees 100 or part thereof of the fair value of the land or the amount or value of the consideration for such conveyance, whichever is higher.]

33.

Lease – including an underlease or sub-lease and any agreement to let or sublet –

(a)

where by such lease the rent is fixed and no premium is paid or delivered –

(i)

where the lease purports to be for a term of less than one year: The same duty as a Bottomry Bond (No. 14) for the whole amount payable or deliverable under such lease.

(ii)

where the lease purports to be for a term of not less than one year but not more than 5 years: The same duty as a Bottomry Bond (No. 14) for the amount or value of the average annual rent reserved.

(iii)

where the lease purports to be for a term exceeding 5 years but not exceeding 10 years: The same duty as a conveyance (No. 21 or 22, as the case may be) for a consideration equal to the amount or value of the average annual rent reserved.

(iv)

where the lease purports to be for a term exceeding 10 years but not exceeding 20 years: The same duty as a conveyance (No. 21 or 22, as the case may be) for a consideration equal to twice the amount or value of the average annual rent reserved.

(v)

where the lease purports to be for a term exceeding 20 years but not exceeding 30 years: The same duty as a conveyance (No. 21 or 22, as the case may be) for a consideration equal to three times the amount or value of the average annual rent reserved.

(vi)

where the lease purports to be for a term exceeding 30 years but not exceeding 100 years: The same duty as a conveyance (No. 21 or 22, as the case may be) for a consideration equal to four times the amount or value of the average annual rent reserved.

(vii)

where the lease purports to be for a term exceeding 100 years or in perpetuity: The same duty as a conveyance (No. 21 or 22, as the case may be) for a consideration equal to one-sixth of the whole amount of rents which would be paid or delivered in respect of the first fifty years of the lease.

(viii)

where the lease does not purport to be for any definite term: The same duty as a conveyance (No. 21 or 22, as the case may be) for a consideration equal to three times the amount or value of the average annual rent which would be paid or delivered for the first ten years if the lease continued so long.
(b) The same duty as a conveyance (No. 21 or 22, as the case may be) for a consideration equal to the amount or value of such fine or premium or advance as set forth in the lease.
(c) The same duty as a conveyance (No. 21 or 22, as the case may be) for a consideration equal to the amount or value of such fine or premium or advance as set forth in the lease in addition to the duty which would have been payable on such lease if no fine or premium or advance had been paid or delivered:
Provided that in any case where an agreement to lease is stamped with ad valorem stamp required for a lease and a lease in pursuance of such agreement is subsequently executed, the duty on such lease shall not exceed one rupee ninety five paise.
 
35A. License to let
 including any agreement to let or sublet for rent or fee
The same duty as a lease
(No. 33)
 Inserted by Finance Act 2015

54. Surrender of lease�
(a) when the duty with which the lease is chargeable does not exceed thirty rupees: The duty with which such lease is chargeable.
(b) in any other case: Two Hundred and Fifty rupees

E. DUTY BY WHOM PAYABLE
30. Duties by whom payable: In the absence of an agreement to the contrary, the expense of providing the proper stamp shall be borne.
(b) in the case of a conveyance (including a reconveyance of mortgaged property) by the grantee; in the case of a lease or agreement to lease by the lessee or intended lessee;
(c) in the case of a counterpart of lease by the lessor;