Sub-tenancy or subletting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sublet had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises are let out or sublet or it may have been paid or promised to be paid periodically. 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 sublet.” Flora Elias Nahoum v. Irdish Ali Laskar, (2018) 2 SCC 485.
Tag Archives: rent
In P.L. Kureel Talib Mankab v. Beni Prasad, AIR 1976 All 362, it has been said that it is an established proposition that ‘rent’ includes not only what is ordinarily described as ‘rent’ but also payment in respect of special amenities provided by the landlord. Rent includes all payments agreed by the tenant to be paid to the landlord for the use and occupation not only of the building but also of furnishing, electric installation and other amenities.
The Apex Court also in Karnani Properties Ltd. v. Miss Augustine and others, AIR 1957 SC 309, held that the ‘rent’ is comprehensive enough to include all payments agreed by the tenant to be paid to the landlord for the use and occupation not only in respect of the building and its appurtenances but also in respect of furnishings, electric installations and other amenities agreed between the parties to be provided to the tenant.
In Raj Kumar Pandey v. Rama Nand Upadhyay, while dealing with the definition of ‘rent’ in the light of the provisions of Section 105 of the Transfer of Property Act held that the definition of the ‘rent’ is very comprehensive and it includes service or any other thing of value to be rendered periodically or on any other specific occasions to the transferor by the transferee to enjoy the property transferred. It also held that water tax is a part of rent unless there is contract to the contrary.
In Smt. Raj Rani Kapoor v. Bhupinder Singh, 1986 (2) ARC 457, it was held that if tenant agrees to pay taxes, two situations may arise, either the taxes are payable alongwith the rent as part thereof or the tax amount may be payable separately in addition to the rent. It is always open to the parties to agree that the house tax and water tax to be paid as part of the rent. It was further held by the Hon’ble Apex Court in Smt. Raj Rani Kapoor v. Bhupinder Singh, 1991 (17) ALR 29, that for creating relationship of landlord and tenant the landlord transfer to the tenant the right to enjoy the property for a certain time or in perpetuity and anything which the tenant pays for this transfer of right to enjoy the property will be taken to be the ‘rent’ of the property.
The word ‘rent’ has been considered in Milap Chandra Jain v. Roop Kishor, 2014 (103) ALR 484 and it has been held therein that any periodic payment made by the tenant to the landlord for the enjoyment of the property which has been leased out either in the form of money or service or other things of value would constitute ‘rent’.
In Baleshwar Singh v. K.P. Singh, 2015 (108) ALR 136, it was held that as all taxes and charges towards fixtures and fittings were being paid together with rent, they will form part of the ‘rent’. Smt. Savitri Devi Didwania v. M/s Allied Pharmaceutical, 2015 (108) ALR 767.
Lease and Mortgage are species of the same genus viz., the ‘transfer of property’. Both of them bring about transfer of property, but with a substantial change as to the nature of disposition. The principal objective of a mortgage is to provide security for repayment of amount, whereas the one under lease is that the owner of an item of immovable property permits another to use it on payment of rent. Except in the case of usufructuary mortgage and mortgage through conditional sale, the possession of the property continues to be with the mortgagor.
In the case of lease, the transferee invariably gets the possession of the property. Apart from the broad difference, there are certain minute important aspects, that differentiate the mortgage from lease. Once a transaction of mortgage is brought about, the mortgagor gets the right to redeem and the mortgagee gets the corresponding tight to foreclose the mortgage. The nature of decree to be passed in a suit for foreclosure of mortgage differs substantially from the one to be passed in a suit for recovery of possession of property from a lessee. A preliminary decree is to be passed and it is followed by final decree. Chapter IV of the Transfer of Property Act, 1882 confers rights and places obligations on the mortgagors, on the one hand, and mortgagees, on the other hand, which are typical and germatone to such transactions. Prescription of any fixed term is alien to mortgages.
Lease, on the other hand, involves, just the permission being accorded by an owner of property, to another, to use it. The consideration therefor is the rent fixed with the consent of the parties. In a given case, the lease may be nominal or phenomenal. Further law does not prohibit the rent being paid in the form of adjustment from the amount due from the lessor to the lessee. What becomes important is the objective underlying the transaction, namely use of the property belonging to the lessor by the lessee, on payment of rent and for a stipulated term. Chapter V of the Act enlists the rights, which a lessor has against the lessee and vice versa. Termination of lease on the one hand, and foreclosure/redemption of mortgage, on the other hand, have nothing in common. When such is the radical difference between the two transactions, it is not at all possible to take the one for the other. Gita Cotton Trading Company v. CCRA, Hyderabad and another, 2013(121) RD 661 (AP).