can it be termed as sub-tenancy?
Querist :
Anonymous
(Querist) 05 March 2010
This query is : Resolved
The landlord had given room (in mumbai) to one person for commercial purpose however he started his business under partnership concern with another person( in the year 1981) now the said tenant has got retired from the said business and his only son who admitted later on has been running the same business under sole proprietorship concern? The landlord denies to take rent from the son of the tenant saying that he is subtenant.
1. whether the landlord would succeed to evict the son on the basis of subtenancy?
2. what will be the solution to safeguard the son if he would get evicted from the said room?
A V Vishal
(Expert) 05 March 2010
Under Tenancy laws no tenant shall, without the previous consent in writing of the landlord,-
(a) Sub-let the whole or any part of the premises held by him as tenant, or
(b) Transfer or assign his right in the tenancy or in any part thereof.
Moreover in the instant case the premises is utilized for commercial purpose and the original tenant has dissolved the partnership firm hence the owner has every right to evict the sub tentant viz. you.
Raj Kumar Makkad
(Expert) 05 March 2010
I differ with the opinion of vishal on the ground that initially also a single person had taken the building on rent and had thereafter created a partnership business therein and now after demise of one of the partners, his son can run the business in sole proprietorship and shiefting to son shall not be called as sub-tenancy as after father son is legally entitled to inherit all rights including right of tenancy in his favour so this is not sub-tenancy and owner cannot take any benefit out of this situation but on other points like residential area not meant for commercial activities etc. are strong in favour of owner of the building and he can get eviction on those grounds, though he by his own act and conduct condoned this point since last 20 years.
A V Vishal
(Expert) 05 March 2010
The original tenant is not dead he is still alive
Guest
(Expert) 05 March 2010
I agree with the reasoning of Mr.Makkad. I further say that since the landlord had abundant knowledge about the partnership business of his tenant with his partner had allowed it to be carried on without demur for nearly three decades, he lost his right to object for using the premises for commercial purposes; secondly, the landlord shall not object for the reconstitution of his tenant's enterprise so long as the son carries on the same nature of business which his father was carrying on. Hence it would be wrong to term it as "sub-tenancy" in any event now.
Uma parameswaran
(Expert) 05 March 2010
I am supporting the answer given by L.friend Vishal.Tenancy agreement is between father and the owner.Father retired.Father has the right to transfer his business to his son.But he could not transfer his tenancy right.
Parveen Kr. Aggarwal
(Expert) 06 March 2010
I also support the view of Learned Expert Vishal. Under law two individuals in whatever relations are treated two legal entities. So a father taking a premises on rent cannot tranfer the same to his son during his lifetime. The Rent Control Legislations are very clear on this point and even a father can sub-let the demised premises to his son. Remember, the Rent Control Legislations provide that 'the tenant has tranferred or assigned his rights in the tenancy in favour of any other person'. So, in the given case it is sub-letting.
Mr. Gurunarayana Rao, mere knowledge of the landlord about sub-tenancy cannot legalise the unlawful act of the original tenant. He cannot lose his right to evict his tenant on this ground irrespective of the length of time. Nature of the business is quite irrelevant while considering 'sub-letting' as a ground of eviction.
Kumar Thadhani
(Expert) 06 March 2010
Under the partnership business the are legally bound equally by it pfofit & lossess ratios and has nothing to properties belonging to them whether they own by self and being rented . Hence the tenancy rights cannot to transferred in this case.
Querist :
Anonymous
(Querist) 06 March 2010
Thanks to all
while opposing Mr. G. Rao , L'expert Parveen has said that nature of the business is irrelevant while considering sub-letting as a ground of eviction.
The son has been carrying same business under the same name & style which was started by his father in 1981.whether this fact would legalise the act of son?
Parveen Kr. Aggarwal
(Expert) 07 March 2010
No. The factum of running the same business cannot legalise the act of son. For deciding the ground of sub-letting, the only aspect to be considered by the Court is whether the tenant has tranferred or assigned his rights in the tenanted premises in favour of another and has himself parted with the possession of the premises. The tranferree may carry on a different business or the same business and that will not make any difference.
