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Article Published in the Express Magazine Dated
February 24, 2002
General Attorney : Rajiv K. Luthra
My friend had let out his premises to a tenant
in Delhi. However, he has recently found out that
the woman he claimed to be his wife is only a
live-in. She is also running a creche in the
premises. Apart from that, he also takes a hefty
monthly rent from her. Can my friend evict him on
grounds of subletting his property as this was not
agreed in their lease agreement?
Sudhir Kumar, Gurgaon
Generally speaking, subletting is a pure question
of facts provable by the concerned parties.
Subletting, like letting, is a particular type of
demise of immovable property and is distinct from
permissive user like that of a licensee. In
sub-letting there should exist the relationship of
landlord and tenant as between the tenant and his
sub-tenant and all the incidents of letting or
tenancy have to be found, namely the transfer of
an interest in the estate, payment of rent and the
right to possession against tenant in respect of
the premises sub-let. Section 105 of the Transfer
of Property Act, 1882 defines a lease of immovable
property as to transfer the right to enjoy such
property. Therefore, to create a lease or
sub-lease a right to exclusive possession and
enjoyment of property should be conferred on
another. To constitute subletting, there must be
parting of legal possession. Parting of the legal
possession means possession with the right to
include and also the right to exclude others. The
mere fact that another person is allowed to use
the premises while the lessee retains possession
may not be enough to create a sub-lease.
The Hon'ble Supreme Court has while dealing with a
similar issue held that "if two people live
together in a house as husband and wife and one of
them who owns the house allows the other to carry
on business in a part of it, it will be in the
absence of any other evidence, a rash inference to
draw that the owner has let out that part of the
premises".
Whether the couple is legally married or not will
not be an issue for an eviction suit, so long as
they can show that they are living as husband and
wife. Thus, it will have to be determined whether
exclusive possession of the premises was given or
not to the woman by your friend's tenant. If the
tenant continues to be in possession of the
premises subject to the liability to pay to his
landlord, he may not be deemed to have sublet the
premises and hence may not constitute sufficient
ground for eviction.
My grandfather willed me all his property,
which will only pass on to me after the lifetime
of my parents. As I keep ill health and also have
some self-acquired property, I am interested in
making my own will. Can I include, in my will, the
property willed to me by my grandfather, since my
parents are still alive, and the property is not
yet in my name?
S.K. Mahan, Jaipur
Yes, you may include, in your will the property
willed to you by your grandfather, even though the
same has not actually passed on to you. According
to Section 19 of the Transfer of Property Act,
1882, where, on the transfer of property, an
interest is created therein in favour of a person,
interalia, upon the happening of an event, which
must happen, such interest is said to be vested,
unless a contrary intention appears from the
transfer. A vested interest, as per the section is
not defeated by the death of the transferee before
he obtains possession. In other words when an
interest is vested, it becomes the property of the
transferee and is transferable by him even before
he has obtained possession. Since your grandfather
has willed you the property that will pass on
after the lifetime of your parents, you have a
vested interest created in the same, which is
transferable and heritable.
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