Holding

The agreement was for business management, not a sub‑tenancy; therefore the petitioner was not a sub‑tenant and the eviction decree binds him.

Summary

The petitioners, Md. Salim and others, claimed they were sub‑tenants under a 1966 agreement with the landlord, Md. Ali, and therefore should not be bound by an eviction decree issued against the principal tenant. The High Court held that the agreement was merely for the management of the landlord’s business and did not confer exclusive possession, so no sub‑tenancy was created. The petitioners appealed to the Supreme Court, arguing that the landlord’s knowledge and consent made the arrangement a valid sub‑tenancy and that they should have been joined as parties to the eviction suit. The Supreme Court examined the terms of the agreement, noted the absence of exclusive possession, and referred to section 2(4) of the West Bengal Premises Tenancy Act, 1956, concluding that the definition of “tenant” was not satisfied. Relying on the earlier decision in Mis. Girdhar Lal & Sons v. Balbir Nath Mathur, the Court held that consent alone does not create a sub‑tenancy where none exists. Consequently, the petitioners were deemed not to be sub‑tenants and were bound by the eviction decree. The special leave petition was dismissed.

Issues considered

Whether the 1966 agreement between the parties created a sub‑tenancy under the West Bengal Premises Tenancy Act, 1956.
Whether the decree of eviction against the principal tenant binds a person who is not a sub‑tenant.

Legislation cited

Subjects

sub‑tenancyeviction decreelandlord consentpremises tenancy actmanagement agreementexclusive possessiondefinition of tenant

Judgment

MD. SALIM A
v.
MD. ALI SINCE DECEASED THROUGH HIS
LRS. MD. ASSIM & ORS.

AUGUST 26, 1987.
~ B
[SABYASACHI MUKHARJI AND G.L. OZA, JJ.]
t'
West Bengal Premises Tenancy Act, 1956-Definition of 'tenant' in
section 2(4) thereof-Whether the petitioner was a sub-tenant not bound
... by decree of eviction against the tenant.

y c
This petition for special leave to appeal was flied against the judg-
ment and order of the High Court, whereby the High Court had held
that the petitioner was not a sub-tenant and as such he was bound by the
decree passed against the tenant for eviction. The petitioner challenged
before this Court the finding of the High Court and contended that he
-"( was a sub-tenant with the knowledge and consent of the landlord and as D
such the decree of eviction passed against the tenant did not bind him
because in the suit he had not been a party. He should have been made a
party to the suit.

....._
,.. Dismissing the petition, the Court,

HELD: The High Court was right. The attention of the Court was
drawn to an agreement of Ist September, 1966, with the contention that
E

that was an arrangement of sub-letting and in that document one of the
attesting witnesses was the landlord himself, and, therefore, the sub-
1 letting was done with the knowledge and consent of the landlord and, as
such, was valid. [I088G] F

One of the attesting witnesses to the said agreement was Md. Ali,
the respondent herein, who was at the relevant time the landlord, now
represented by his legal representatives in this petition. On a con-
struction of the different clauses of the aforesaid document, the Court
~ was of the opinion that this was an argreement of the business of the G
tenant. It was not and could not be construed as an agreement of sub-
tenancy. There was no parting of possession of the premises. There was
only a right to "manage" the business, looking after the 1,xisting busi-
ness with fixed monthly payments and this could not be construed as an
agreement of sub-tenancy. Therefore, though the landlord had know-
ledge of the document, it could not be said to be consent to an agreement H

1087
1088 SUPREME COURT REPORTS [1987] 3 S.C.R.
)
A of sub-tenancy. The attention of the Court was drawn to section 2(4) on
the expression 'tenant' in the West Bengal Premises Tenancy Act, 1956.
That definition did not affect the position of the petitioner in this case as
there was no sub-tenancy in the case. [1090C-E, G]

The High Court was right in the view it took. [1088F]
B
Mis. Girdhar Lal & Sons v. Balbir Nath Mathur and others,
[1968] 2 S.C.C. 237, referred to.

c
CIVIL APPELLATE JURISDICTION: Special Leave Petition
No. 4!20of 1987.

From the Judgment and Order dated 24. 12.1986 of the High
-
Court of Calcutta in Civil Rule No. 676 of 1985.

R.B. Mehrotra for the Petitioner.

D S.K. Bhattacharya for the Respondents.

The Judgment of the Court was delivered by

SABYASACHI MUKHARJI, J. This is a petition for special
leave to appeal against an order and judgment of the High Court of
E Calcutta dated 24th September, 1986. By the impugned judgment and ~-
order the High Court has held that the present petitioner was not a .-
sub-tenant and as such he was bound by the decree passed against the
tenant for eviction. The petitioner challenges that finding and con-
tends that he was a sub-tenant with knowledge and consent of the Y
landlord and as such it does not bind him because in the suit he was not
F a party. There should have been a separate suit according to him. He
should have been made a party to the suit. The High Court has held
against this contention. We are of the view that the High Court was
right. Our attention was drawn by Mr. Kacker to the agreement of 1st
of September, 1966, contending that this was an arrangement of sub-
letting and in that document one of the attesting witness was landlord
G himself. Therefore, this is done with the knowledge and consent of the ~
landlord and as such valid. The agreement states, inter alia as follows:

"THIS MEMORANDUM OF AGREEMENT made this
the !st September 1966 BETWEEN ABDUR RAHA-
MAN son of late Nabi Buksh by religion Muslim, by pro-
H fession business of 51/I, Watgunj Street, P.S. Watgunj
MD. SALIM v. MD. ALI [MUKHARJI, J.] 1089

"' District 24-Parganas, Calcutta-23, hereinafter called the A
FIRST PARTY OF THE ONE PART AND MD. SALIM
son of Waris Ali, by religion Muslim by profession business
residing at 2/3, Mominpore Road Police Station Ekbalpore
District 24-Parganas, Calcutta-23 hereinafter called the
-4 SECOND PARTY OF THE OTHER PART WHEREAS
fHE FIRST PARTY having taken settlement of a shop B
,., room. its landlord Md. Mea has been running a business
with the stock-in-trade as described in the schedule below
AND WHEREAS THE FIRST PARTY feels it inconve-

-
"{
nient to look after and manage the same personally at pre-
sent AND WHEREAS THE SECOND PARTY is willing
to manage the said business on behalf of the FIRST
PARTY on terms and conditions hereinafter appearing;
c
NOW THIS MEMORANDUM WITNESSES:
'
That the first party will remain the proprietor of the
aforesaid business and the business Licence shall stand in
the name of the FIRST PARTY and the costs thereof shall D
be paid by the SECOND PARTY:

That house rent of the shop room shall be paid by the
FIRST PARTY in his name; That the SECOND PARTY
run the business in the shop room with the stock-in-trade
supplied by the First Party as described in the schedule as E
also with other articles and stock-in-trade to be supplied by
him and manage the affairs of the said business under his
personal supervision for two (2) years with effect from
J.9.66 to 31.8.66 on behalf of the First Party and will re-
store the business alongwith the said articles in good condi-
tion with the expiry of the term of this contract; That the F
second party will pay to the First Party a sum of Rs.'iO
(Rupees Ninety) only per month payable within the 7th day
of each month for which it becomes payable. That the
SECOND PARTY will be entitled to appropriate the en-
tire issues and profits arising out of the business in its
entirely subject to the aforesaid payment to be made to G
FIRST PARTY and the costs of Licensee fees. That the
SECOND PARTY SHALL not encumber the business in
any way and shall not be entitled to raise any loan against
the business and the business shall not be liable for any
such, debt, if any, incurred by the SECOND PARTY That
the SECOND PARTY shall also bear all incidental costs H
1090 SUPREME COURT REPORTS [1987] 3 S.C.R.

A for carrying out the business properly. That if the
SECOND PARTY fails or neglects to pay the dues reser-
ved under this contract for two months or violates any of
the conditions mentioned herein then this agreement shall
be treated as cancelled and of no effect and the First partry
will be entitled to ~e-enter the shop room and business and ..
B
to take khas possession of the same along with the articles
mentioned in the schedule."

One of the attesting witness to the said agreement was Md. Ali,

C
the respondent herein, who was at the relevant time landlord and is
now represented by his legal representatives to this application. On a
construction of the different clauses of the aforesaid document we are
of the opinion that this was an agreement for management of the y
-
business of the tenant. It was not and cannot be construed as an agree-
ment of sub-tenancy. There was no exclusive possession with the
respondent. There was no parting of possession of the premises, there
D was only a right to "manage" the business, looking after the existing
business with fixed monthly payments and this cannot be construed as
an agreement of sub-tenancy. Therefore, though the landlord had
knowledge of the document and as such can be said to have consented
to the bargain it cannot be said to be consent to an agreement of
sub-tenancy.
E Our attention was drawn to the decision of this Court in Mis
Girdhar Lal & Sons v. Balbir Nath Mathur and Others, [1968] 2 SCC
237 where considering similar provision of Delhi Rent Control Act,
1958, it was held that where the landlord had in fact consented to the
sub-tenancy and as such the sub-tenancy was valid and landlord was
bound by it. But in the present case, there was no sub-tenancy created
p
by the agreement mentioned herein. Hence the consent and know-
ledge of the landlord do not help. Our attention was also drawn to
section 2(4) on the expression 'tenant' in West Bengal Premises
Tenancy Act, 1956. That definition does not affect the position of the
petitioner in the instant case as there was no sub-tenancy in the present
case.
G
In view of the above, we are of <ile opinion that the High Court
was right in the view it took. The Special leave petition is accordingly
dismissed. There will be no order as to costs.

S.L. Petition dismissed.