Supreme Court of India

MOHAMMAD KASAM HAJI GULAMBHAIversusBAKERALI FATEHALI (D) BY LRS.

Citation: 1998 INSC 352
Decided: 8 September 1998
Disposal: Case Allowed
Bench: A S ANAND

Holding

Section 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, absolutely prohibits a tenant from subletting, assigning or transferring his interest, and the tenant had divested himself, justifying eviction.

Summary

The landlord filed an eviction suit under Section 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, alleging that tenant Bakerali Fatehali had unlawfully sublet or transferred his interest in a shop to his two sons. Bakerali had originally taken the shop on his own name, later entered into a partnership with his sons in 1955 and subsequently retired from the business, with the sons continuing the business and paying rent, though receipts were issued in Bakerali's name. The lower courts decreed eviction, but the Gujarat High Court reversed, relying on Jagan Nath v. Chander Bhan. The Supreme Court held that clause (e) of Section 13(1) imposes an absolute prohibition on any subletting, assignment or transfer of interest, and that Bakerali had divested himself of both physical and legal possession, as his sons exercised exclusive control. Consequently, the eviction was upheld and the High Court judgment set aside.

Issues considered

Whether the tenant's arrangement with his sons amounts to subletting, assignment or any other transfer of interest under Section 13(1)(e) of the Bombay Rent Act.
Whether the tenant retained legal possession of the premises despite retiring from the partnership and the sons' exclusive control.
Whether the High Court erred in applying the precedent of Jagan Nath (deceased) v. Chander Bhan in the present facts.

Legislation cited

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947s. 13(1)(e), s. 14(1)(b), s. 15

Subjects

sublettingevictionrent controlpartnershiptenancySection 13(1)(e)legal possessiontransfer of interest

Judgment

MOHAMMAD KASAM HAJI GULAMBHAI A
v.
BAKERALI FATEHALI (D) BY LRS.

SEPTEMBER 8, 1998

[DR. A.S. ANAND AND D.P. WADHWA, JJ.) B

Rent Control & Evictio11 :

Bombay Rents, Hotel a11d Lodging House Rates Control Act,
1947-Section 13( l)(e)-Subletting-Of commercial premises-By C
Tenant-To his som having separate busi11ess-Tena11t llavi11g no co11cem
witlr that b11si11ess--Wlietl1er would amo1mt to sitblctting-Held, yes-171ere is
absolute prohibition 011 tire tenant from subletting, assig11i11g or tronsfening in
any otl1er ma1111er his interest in the tenanted premises.

Te11ant-Status-111 pannership-He retaim tire legal possession of tlze D
tenamed premises and does not divest lrinzself of his right in tlie premises.

'B' the respondent/tenant took a shop, the premises in question, on
rent from the predecessor of the appellanl/landJord. The premises was
later purchased by the appellant and 'B' continued to be his tenant. In the
rent notes n-ecuted in favour of the appellant and his predecessor, 'B' had
E
agreed not to sublet the premises to anyone. 'B' W'dS doing his business in
the premises in question as a sole proprietor. Ju 1955 'B' entered into
partnership with his four sons wherein he was exclusive proprietor and
owner of the place of business (i.e., the premises in question). In 1974 a
new partnership was entered into beht"eeB the two sons of 'B' whereby 'B' F 0

alongwith his other two sons retired from the business which was carried
on in the premises in question, but continued to be partner with his other
two sons in other business in some other premises. 'B' stopped paying rent
and the same was paid by one of his sons who was doing business in the
premises in question, but the rent receipt was given in the name of 'B'. G
Subsequently, one of the partners of the 1974 partnership died, and
another new partnership was executed in 1979, taking the son of the
deceased partner into the partnership. But this subsequent partnership
did not contain any of the recitals of the partnership deed of 1974.

The appellant filed an eliction suit under Section 13(1) (el of Bombay H
465
466 SUPREME COURT REPORTS (1998) SUPP. I S.C.R.

A Rent Act, on the ground that 'B' had unauthorisedly and unlawfully sublet
the suit premises to his two sons without obtaining his consent. The suit
was decreed ·and later confirmed by the appellate court. The revision
petition against the same was allowed by the High Court setting aside the
orders of both the courts below relying on Jaga11 Natlt's Case.

B ,The respondent contended that Section 13(1)(e) of the Bombay Rent
Act was not applicable as his act would not amount to subletting, because
the suit premises was taken on rent for and on behalf of the family of 'B',
and second and third partnerships were in continuation of the first
partnership which provided him ownership of the suit premises, and the
C rent receipts were always issued in the name of 'B'.

Allowing the appeal this Court

HELD : 1. Clause (e) of Section 13 (1) of the Bombay Rent Act is
couched in widest terms. There is absolute prohibition on the tenant from
D subletting, or transferring in any other manner his interest in the tenanted
premises. There appears to be no way around this subject of course if there
is any contract to the contrary between the landlord and the tenant. In
partnership where tenant is a partner, he retains legal possession of the
premises as partnership is a compendium of names of all the partners. In
E partnership the tenant does not divest himself of his right in the premises.
On the question of subletting etc. law is now very explicit. There is prohibi-
tion in absolute terms on the tenant from subletting, assignment or disposi-
tion of his interestin the tenanted premises. [476-C; D]

2. The facts of the present case do not show that B could exercise his
F powi;_r throughout the suit premises at his pleasure to the exclusion of hi~
two sons who were running their business in partnership there and that it
cannot be said that he continued to exercise control over the suit premises.
B had no concern with the partnership business now being carried on under
the partnership deeds dated November 14, 1974 and March 6, 1979 in the
G suit premises. In the absence of records of the partnership business which
the respondent failed to produce, it has to be presumed that rent was paid
by one of the sons of B in the new partnership from the partnership account.
It is now the sons of B who are in complete control of the suit premises and
were exercising complete control of the suit premises and use exercising
exclusive possession for the same to the exclusion of B. B completely
H divested himself of the suit premises as well as the business. Clause (7) of
MOHAMMADHAJI v. BAKERALIFATEHALI[D.P. WADHWA,J.) 467

the first partnership detd negatived any contention that B had taken the A
suit premises on lease for the benefit of the family. Record does not show
that he had earlier the power or the intention at any given time to exercise
his right of possession over the shop premises through his s1>ns who \vere
carrying on their independent business in the shop premises and paying
. rent therefor. B was neither in physical nor in actual or constructive pos-
session of the shop premises. It is not that B could just walk in and assert B
his right of possession to the shop premises. His sons were not in occupa-
tion of the shop premises and running their business as agents of B.
[476-E-H; 477-A-C]
Jaga11 Nath (deceased) through LRs. v. Chander Bhan & Ors., (1988) 3
sec 57, distinguished. c
Smt. Krislmawati v. Ha/IS Raj, [1974) 1 SCC 289; PA. Thomas & Anr.
v. M. Mohammed Tajuddin & Anr., [1989) 3 SCC 240; Deepak Ba11erjee v.
Leelaboti Ozakraboni, [1987) 4 SCC 161; Harshacha11dra Narsiblzai Patel &
Ors. v. Ibrahim Haji Klmbanbhai, (1984) GLH 965; Kedar Lal ;)'ea! &A1wther D
v. Hari Lal Seal, AIR (1952) SC 47 and Dudabhai Karsa11das Patel and Others
v.Suloc11a11abe11 Gopaldas Kothari, [1994) 1GLR541, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7957 of
1996.

From the Judgment and Order dated 2Jl,.7.95 of the Gujarat High
E
Court in C.R.A. No. 90 of 1994.

K.G. Shah, Ms. Suvira Lal and M.N. Shroff for the Appellant.

G.L. Sanghi, Aseem Mehrotra and A.P. MeJh for the Respondents.
F
The Judgment of the Court was delivered by

D.P. WADHWA, J. The appellant-landlord is aggrieved by the judg-
ment of the Gujarat High. Court. By this judgment in revision, High Court
reversed the judgments of two Courts below ordering eviction of the G
respondent-tenant on a petition filed by the appellant under clause (e) of
sub-section (1) of Section 13 of the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947 (for short, the 'Act') as applicable to the
· . State of Gujarat. Under this clause, a landlord is entitled to recover
possession of the premises on the ground that "the tenant has since the
coming into operation of this Act unlawfully sub-let the whole or part of H
468 SUPREME COURT REPORTS (1998] SUPP. 1 S.C.R.

A the premises or assigned or transferred in any other manner his interest
therein".

The premises in question is a shop. It was let out to the tenant
Bakerali Fatehali ('Bakerali' for short) by predecessor of the appellant

B
w.e.f. December 1, 1946. A rent note was duly executed. ·Tue premises were
sold to the appellant in 1947. Bakerali executed second rent note in favour
of the appellant. There is no dispute that both the rent notes contained a
-
clause that the premises had been taken on lease by Bakerali for his own
use and occupation and that "he shall not sublet the premises in favour of
anybody".
c At this stage, we may also refer to Section 15 of the Act which puts
an embargo on the tenant "to sublet the whole or any part of the premises
let to him or to assign or transfer in any other manner his interest therein".
This is, however, subject to any contract to the contrary. Thus, irrespective
of there being no clause in the rent note entitling the tenant to sublet the
D premises the law forbids him from doing so. He cannot even assign or
transfer in any other manner his interest in the tenanted premises. In the
present case, a clause in the rent note specifically forbids Bakerali from
subletting the premises.

E The appellant filed proceedings for eviction of the respondent in
1978 in the court of Small Causes at Vadodara. On October 31, 1984, the
eviction suit was decreed. Against that judgment respondent filed an
appeal before the Joint District Judge who by judgment dated November
6, 1993 affirmed the judgment of the judge Small Causes and dismissed the
appeal. Thereafter, respondent took the matter to the High Court in
F revision. In the meantime, Bakerali died and his legal representatives were
brought on record. High Court, by the impugned judgment dated July 28,
1995, allowed the reVision and, as noted, set aside the orders of both, the
Judge Small Causes and the Joint District Judge.

The .appellant had alleged that Bakerali had unauthorisedly and
G unlawfully sublet, assigned or transferred his interest in the suit premises
to his two sons without obtaining his consent. Appellant said that Bakerali
earlier entered into a partnership with his four sons for carrying on the
business of sale of medicines in the suit premises and a partnership deed
dated November 15, 1955 was executed between them. This partnership
H deed specified the shares of the five partners in the profit and loss of the
MOHAMMADHAJI v. BAKERALIFATEHALI[D.P. WADHWA,J.] 469

firm. While Bakerali was having 4 anna share, his four sons were having 3 A
anna share . each. Earlier, Bakerali was having his business as a scale
proprietor in the name of M/s. Fatehali & Sons. After the partnership was
formed, it was given the name M/s. BA. Fatehali & Sons. The Partnership
was at will and under clause (7) thereof, it was provided that "only the
partner No. 1 (Bakerali) will be the exclusive proprietor and owner of the . B
goodwill of the business, place of the business and all other rights of the
business". This partnership continued till November 14, 1974 when a new
partnership deed between two sons of Bakerali was executed and in terms
thereof Bakerali and his two other sons retired from the business of the
partnership. They were the partners in the partnership deed dated
November 15, 1955 as well. The recitals of the partnership deed dated C
November 14, 1974 are as under:

"Whereas, the above two partners join the following partners in
the partnership, which partnership is doing business of medical
and provisions stores in the name and style of M/s. BA. Fatehali
& Sons, opposite to Raopura Tower, Vadodara, on the strength D
of the partnership deed made on Kartak Sud 1 of Samvat Year
2021, the 15th date of November, 1955. But the following three
partners have settled their accounts and have voluntarily retired
from the partnership business with effect from the date ofexecu-
tion of this deed, i.e., Kartak Sud 1, of Samvat Year 2031, Thursday, E
the 14th day of November, 1974. The said partners are :

1. Sheth Bakarali Fatehali

2. J afarali Bakarali and
F
3. Fatehali Bakarali.

The aforesaid three partners have decided to retire from the
partnership considering these two partners responsib~e and liable
for all the debts, outstanding dues, furniture, fixtures etc. as per
closure of the books of accounts as on Aso Vadi 30 of Samvat G
Year 2030. Now, we both the partners are responsible to inform
all the banks, traders, firm registration, Shops and Establishment
Department, Income-tax Department, Sales Tax Department and
all uther offices and departments wherever necessary for all other
licences and permits etc. of this partnership firm. H
470 SUPREME COURT REPORTS [1998] SUPP. l S.C.R.

A The retiring three partners shall give their signhtures etc.
wherever necessary on all the documents, applications and other
papers relating to this change in partnership.

Since there is a change in the constitution of the aforesaid old
partnership, this new partnership deed has been e_xecuted on the
B following terms and conditions."

The business of the new partnership was carried on in the .suit
premises. Various clauses of this partnership deed clearly showed that after
Bakerali retired from the earlier partnership M/s. B.A Fatehali & Sons,
C he was to have no concern, right, title or interest in the new partnership
which was now carrying on business in the suit premises, though in the
same name. It has come on record that one of the two partners of the new
partnership was paying rent to the appellant of the shop premises but the
appellant was issuing rent receipts invariably in the name of Bakerali.
D During rhe continuance of this partnership, one of the two partners died
and his son was taken into partnership and a new partnership deed dated
March 6, 1969 was executed which partnership deed did not contain any
of the recitals of partnership deed dated November 14, 1974. In these
circumstances, question arises if the case of the appellant falls within the
provisions of clause (e) of sub-section (1) of Section 13 of the Act entitling
E him to decree of eviction against the respondents.

The facts are not much in dispute. Respondents case is that Bakerali
did not efface himself completeiy from the shop premises altogether. He
had to retire from the business because of his ill-health and further that he
F used to come to the shop premises off and on. As far as ill-health of
Bakerali is concerned, it does not lend any credence to the case of the
respondents as Bakerali continued to be a partner in other business with
his other sons in some other ·premises. His coming to the shop premises
off and on is also of no significance as a father may like to visit his sons to
see how they are faring in the business. Both partnership deeds dated
G November 14, 1974 and March 6, 197~ unmistakably show that henceforth
Bakerali would have no concern either with the shop premises or with the
business being carried on by the new partnership in the shop premises.
Respondents contended that the suit premises where business was being
carried on under the new partnership was, in fact, taken on rent for and
H on behalf of the family of Bakerali. As Bakerali was the elderly member of
MOHAMMADHAJI v. BAKERALIFATEHALI[D.P.WADHWA,J.) 471

the family, the suit premises was taken on lease in his name. It was also A
pleaded that second and third partnerships were in continuation of the first
partnership wherein in clause (7) it was specifically stated that the suit
premises shall belong to Bakerali. But then this clause (7) in the first
partnership deed dated November 15, 1955 negatives any such contention
that suit premises were taken on lease by Bakerllli for the benefit of the
B
family. In order to dislodge the case of the appellant, respondents said that
rent receipts, as noted above, had always been issued by the appellant in
the name of Bakerali though the rent was being paid by one of his sons.
Thus, according to respondents, there had been some arrangement regard-
ing the affairs of the family assets and Bakerali did not attend to the
business because of advanced age and ill-health. They said this would not c
amount to any subletting or transfer or assignment of tenancy rights of
Bakerali to his sons. It is difficult to appreciate this line of defence by the
respondents. It rather shows that Bakerali stopped paying any rent to the
appellant landlord after partnership dated November 14, 1974 was ex-
ecuted and rent was being paid by one of his sons who was partner in the D
new partnership. A necessary inference would be that rent was paid from
the business of the new partnership and it is not material that the rent
receipts were being issued in the name of Bakerali. These had to be issued
in the name of Bakerali otherwise landlord could be said to have accepted
the son who was paying the rent or the new partnership as tenant of the E
suit premises. Documents brought on record do not show that what the
respondents contended was a mere arrangement of distribution of family
assets. Rather new partnership deeds show that business now carried on
by the two partners was independent of any right whatsoever of any other
person including Bakerali both as regards the suit premises as well as the
business. It is also difficult to accept the argument that partnership deed
F
dated November 14, 1974 is in continuation of the partnership deed dated
November 15, 1955. There is no clause in the partnership deed dated
November 14, 1974 that Bakerali will have any right in suit premises or in
the business being carried on there under the new partnership. Third
partnership deed dated March 6, 1979 destroys the case of the respondents G
altogether that Bakerali had even any say in the business of the new
partnership or in the place of business being the suit premises. One of the
partners in the new partnership appeared as the sole witness for the
respondents. No document of any nature whatsoever was produced by the
respondent in support of any of their contentions. These documents would H
472 SUPREME COURT REPORTS (1998) SUPP. 1 S.C.R.

A mean records of the Income-tax Authorities, Sales Tax Authorities, Shop
and Establishment Authorities and other authorities under the Drugs Act
since the business in the shop premises was that of selling medicines.
Witness admitted in his testimony that Bakerali had handed over the suit
shop to him and his brother Alibhai in the year 1974 and that Bakerali was
not visiting the shop after handing over the same to partners of the new
B
partnership, though he used to visit the shop premises occasionally. The
witness said Bakerali used to come the shop premises "to see as to how we
were doing the business".

In reversing the two judgments of the Courts below, High Court
c strongly relied upon a decision of this Court in Jaga11 Nath (deceased)
through Lrs. v. Chander Bha11 & Ors., [1988) 3 SCC 57. In this case, father
was the tenant. He retired from the business and his sons were looking
after the same. The question was had the father divested himself of the
legal right lo be in possession of the premises? This Court said that even
though the father had retired from the business, in the facts of the case, it
D
could not be said that he had divested himself of the legal right to be in
possession. The court found that the father was carrying on the business
with his sons and the family was a Joint Hindu Family and it was difficult
to presume that the father had parted with possession legally to attract the
mischief of Section 14(1)(b) of the Delhi Rent Control Act. This provision
E provides that the landlord could take possession of the premises from the
tenant if the tenant had sublet, assigned or otherwise parted with the
possession of the whole or part of the premises without obtaining the
consent in writing of the landlord. Considerations which led this Court to
allow the appeal of the tenant Jagan Nath (since deceased) were; (1) Jagan
Nath was being helped in his business of Bin~a Tent House by his two
F sons even prior to the incorporation of partnership of the two sons in the
name of Bindra Tent House; (2) the business of Bindra Tent House was
being carried on in part of the tenanted premises which was residential-
cum-cornrnercial; (3) Jagan Nath and his two sons constituted a Hindu
Undivided Family. Since Jagan Nath was carrying on the business with his
rnns and the family was a joint Hindu family it is difficult to presume that
G
father had parted with possession of any part of the premises. There is no
evidence that there has been any subletting or assignment; (4) even though
Jagan Nath had retired from the business his sons had been looking after
the same. From the facts which stood proved it cannot be said that
J agan Nath had divested himself of the legal right of possession; and (5)
H though much could be said on the conduct of Jagan Nath who had been
MOHAMMADHAJI v. BAKERALIFAIBHALI[D.P. WADHWA,J.] 473

sitting on the fence and avoiding the issue and had not been fair and frank A
in conduct of his case but that is no ground to disentitle him to the benefits
of law if the fact~ had been proved that he had not parted with possession.
After analyzing these facts this Court said~: "It is well settled that parting
with possession meant giving possession to persons other than those to
whose possession had been given by the lease and the parting with posses-
sion must have been by the tenant; user by other is not parting with B
possession so long as the tenant retains the legal possession himself, or in
other words there must be vesting of possession by the tenant in another
person by divesting himself not only of physical possession but also of the
right to possession. So long as the tenant retains the right to possession
there is no parting with possession in terms of clause (b) of Section 14(1)
of the Act. Even though the father had retired from the business and the
c
sons had been looking after the business, in the facts of this case, it cannot:
be said that the father had divested himself of the legal right to be in
possession. If the father has a right to displace the possession of the
occupants, i.e., his sons, it cannot be said that the tenant had parted with
posses~ion." The Court also relieJ on its earlier decision in Smt. Krish- D
nawati v~ Hans Raj, (1974] 1 SCC 289. In that case, two persons lived in
a house as husband and wife. One of them had rented the premises and
allowed the other to carry on business in a part of it. Again, the question
was if it amounted to subletting. This Court held that if two persons live
together in a house as husband and wife and one of them who was the
tenant of the house allows the other to carry on business in a part of E
it, it will, in the absence of any other evidence, a rash inference to draw
that the tenant has let out that part of the premises. The Court said that
it was a settled law that onus to prove subletting was on the landlord.
If the landlord prim a f acie shows that the occupant who was in the
exclusive possession of the premises let out for valuable consideration, it
F
would then be for the tenant to rebut the evidence. The Court said that
the landlord in that case produced no evidence to show subletting in spite
of the denial by the tenant in the written statement of any subletting.

Reference was also made to another decision of this Court in PA.
Thomas & Anr. v. M. Mohammed Tajuddin & Anr., (1989] 3 SCC 240 where G
this Court remanded the matter to the High Court with a direction to give
finding as to the fact if appellant-tenant retained effective control over the
affairs of the partnership of which he was a partner. It was also a case of
eviction of the tenant. We do not think this judgment is of any relevance
to the controversy involved in the present appeal. In Dipak Banerjee v. H
474 SUPREME COURT REPORTS [1998) SUPP.1 S.C.R.

A Lilaboti Chakraborty, [1987) 4 SCC 161, which was a case under the West
Bengal Premises Tenancy Act, 1956, one of the issues before this Court
was if the allegation of the landlord that the premises let out to tenant, part
to which had been sublet by him: so as to entitle the landlord to evict the
tenant under Section 13(1)(a) of that Act. This Court said that in order to
B prove sub-tenancy, two ingredients are necessary to be established; (1) the
sub-tenant is in exclusive possession of part of the premises and the tenant
retains no control over that part of the business, and (2) right to occupy
the premises by the sub-tenant must be in view of payment of some
compensation or rent. In that case, the Court held that both the ingredients
C were missing and held that there was no subletting.

We have been referred to two judgments of learned single judges of
the Gujarat High Court interpreting clause (e) of Section 13(1) of the Act.
In Harshacha11dra Narsibhai Patel and Others v. Ibrahim Haji Khuba11bhai,
(1984) GLH 965 it was one of the terms of the tenancy that tenant would
D not sublet, assign or transfer his suit premises to anybody else. After some
time the tenant wound up his business and sublet the premises. On the
allegation of subletting suit was filed for recovery of possession of the suit
premises. It was not in dispute that the tenant was no longer in possession
and the suit premises was in possession of a third person. Both the trial
court and the appellate court decreed the suit of the landlord. The matter
E came in revision before the High Court. It was urged that even assumiµg
that possession of the suit premises was transferred by the tenant it cannot
be said that the premises was sublet by him as the landlord had failed to
prove that the transfer was for some consideration. It was pointed out that
neither in the pleading nor in the evidence it was stated by the landlord
F that suit premises was transferred by the tenant to a third person for some
consideration and therefore no case of subletting had been made out. The
Court rejected the plea of the petitioners and said :

"Moreover, it must be remembered that Section 13(1)(e) of the
Rent Act is much wider and it is not confined merely to the acts
G of unlawful sub-letting. It also provides that if a tenant has assigned
or transferred in any other manner his interest in the premises
taken on lease by him, then also the landlord will become entitled
to a decree for possession of the said premises. The words "transfer
in any other manner" are much wider and would include within
H their meaning and ambit a transfer made in favour of a relative or
MOHAMMAD HAJI v. BAKERALI FATEHALI [D.P. WADHWA,J.] 475

a known person, once it is proved that he has left the premises A
•,
and the transferee is put in exclusive possession. To give these
words a restricted meaning and equated such a transfer with
sub-letting is to make that part of the sub-section redundant. The
facts of this case clearly show that defendant No. 1 had transferred
his interest in the suit premises to defendant No. 2. If is found that
the premises were transferred for valuable consideration then it
B
will certainly amount to sub-letting. Even if it is not possible to
come to that conclusion, then also· it amounts to a transfer in any
other manner."

To support what the learned single judge said we may refer to a decision C
of this Court in Kedar Lal Seal and Another v. Hari Lal Seal, AIR (1952)
SC 47. In this case plaintiff though he did not use the word "subrogation"
he had asked in substance for the relief to which a subrogee would be
entitled under the Transfer of Property Act. This Court cautioned that a
case cannot be thrown out on mere technicalities and observed as under :
D
"I would be slow to throw out a claim on a mere technicality of
pleading when the substance of the thing is there and no prejudice
is caused to the other side, however, clumsily or inartistically the
plaint may be worded. In any event, it is always open to a Court
to give a plaintiff such general or other relief as it deems just to E
the same extent as if it had been asked for, provided that occasions
no prejudice to the other side beyond what can be compensated
for in costs."

• In the present case before us there is no such ambiguity in the
pleadings and the landlord filed a suit for eviction on the ground that F
Bakerali had unauthorisedly and unlawfully sublet the premises or assigned
or transferred in any manner his interest therein.

In Dudabhai Karsandas Patel and Others. v. Sulochanaben Gopaldas
Kothari, (1994) 1 GLR 541 a business was being run in the tenanted
premises in partnership wherein the tenant was one of the partners. Upon G
dissolution of the firm the tenant walked out not only from the business of
the firm but also of the premises and left business and premises to the
remaining partners. Landlord sought eviction of the tenant and claimed
possession of the suit premises under clause (e) of Section 13(1) of the
Act. It was found that the tenant neither had any interest in the business H
476 SUPREME COURT REPORTS (1998) SUPP. 1 S.C.R.

A that was being carried on in the suit premises by the remaining partners
nor he had any interest in the tenancy rights and the exclusive possession
since the date of dissolution of the firm was with the remaining partners.
The court returned the finding that tenant had parted with not only
physical possession of the suit premises but also the legal possession
B thereof in favour of third persons.

Clause (e) of Section 13(1) of the Act is couched in widest terms.
There is absolute prohibition pn the tenant from subletting, assigning or
transferring in any other ma~er his interest in the tenanted premises.
There appears to be no way around this subject of course if there is any
C contract to the contrary between the landlord and the tenant. In partner-
ship where tenant is a partner, he retains legal possession of the premises
as partnership is a compendium of names of all the partners. In partnership
the tenant does not divest himself of his right in the premises. On the
question of subletting etc. law is now very explicit. There is prohibition in
D absolute terms on the tenant from subletting, assignment or disposition of
his interest in the tenanted premises.

To restate in the present case facts do not show that Bakerali could
exercise his power throughout the suit premises at his pleasure to the
exclusion of his two sons who were running their business in partnership
E there and it cannot be said that he continued to exercise control over the
suit premises. Bakerali had no concern with the partnership business now
being carried on under the partnership deeds dated November 14, 1974
and March 6, 1979 in the suit premises. In the absence of records of the
partnership business which the resi)ondents failed to produce, it has to be
F presumed that rent was paid by one of the sons of Bakerali in the new •
partnership from the partnership account. It is now the sons of Bakerali
who are in complete control of the suit premises and were exercising
exclusive possession for the same to the exclusion of Bakerali. That
Bakerali would occasionally visit the shop premises does not advance the
case of the respondents that he could exercise his rights over the shop
G premises. He had handed over the shop premises to his sons who were
exercising their independent right over the same and conducting their
business thereat. Bakerali completely divested himself of the suit premises
as well as the business. Clause (7) of the first partnership deed dated
November 15, 1955 negatived any contention that Bakerali had taken the
H suit premises on lease for the benefit of the family. Bakerali never paid
MOHAMMAD HAIT v. BAKERALI FATEHALI (D.P. WADHWA, J.) 477

rent of the shop premises which, as noted above, was paid from the A
partnership of his two sons. Bakerali was not exercising any physical
control over shop premises. Record does not show that he had either the
power or the intention at any given time to exercise his right of possession
over the shop premises. It cannot even be said that he was exercising
control over the shop premises through his sons who were carrying on their
independent business in the shop premises and paying rent therefor.
B
Bakerali was neither in physical nor in actual or constructive possession of
the shop premises. Physical control over the shop premises was now
exercised by his two sons to the exclusion of Bakerali. It is not that Bakerali
could just walk in and assert his right of possession to the shop premises.
His sons were not in occupation of the shop premises and running their C
business as agents of Bakerali We do not think that High Court in the
present case approached the question raised in the revision before it
properly. It relied on the judgment of his Court inlagan Nath's case (1988]
3 SCC 57, which was under the provision of Delhi Rent Control Act and
was confined to the facts of that case which were not applicable in the D
present case.

We, therefore, set aside the impugned judgment of the High Court
and restore that of the Judge, Small Causes Court and Joint District Judge,
Baroda. We grant six months' time to the respondents to vacate and hand
over the possession of the suit pi;emises to the appellant subject to his filing E
the usual undertaking in this Court in four weeks. The appeal is allowed
with costs.

K.K.T. Appeal allowed.

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