Sub-letting is among the most litigated eviction grounds under the MP Accommodation Control Act, 1961. Section 12(1)(b) lets a landlord recover possession where the tenant has unlawfully sub-let, assigned or otherwise parted with possession of the whole or part of the accommodation, for consideration or otherwise. The word unlawfully is the hinge: a sub-letting becomes unlawful only when it is done without the previous written consent the Act demands. Around that single word the Supreme Court has built a careful jurisprudence on exclusive possession, sham partnerships and the shifting burden of proof, which this note unpacks for the judiciary and CLAT-PG aspirant.
The statutory ground in Section 12(1)(b)
Section 12(1)(b) permits a suit for eviction on the ground “that the tenant has, whether before or after the commencement of this Act, unlawfully sub-let, assigned or otherwise parted with the possession of the whole or any part of the accommodation for consideration or otherwise.” Three distinct acts are caught: sub-letting (creating a sub-tenancy), assignment (transferring the leasehold interest itself) and otherwise parting with possession (a residual category covering arrangements that fall short of a formal sub-lease but still surrender control). The phrase “for consideration or otherwise” makes clear that the ground bites even where no rent or premium is shown, provided the other ingredients are made out. For the structure of Section 12 generally and the procedural framework, see our note on Section 12 and the broader survey of eviction grounds.
What makes a sub-letting 'unlawful'
The adjective unlawfully is not surplusage. A sub-letting is unlawful only when it offends the Act's substantive prohibition. Section 14 provides that no tenant shall, without the previous consent in writing of the landlord, sub-let the whole or any part of the accommodation or transfer or assign his rights in the tenancy. A sub-letting carried out with such prior written consent is therefore lawful and furnishes no ground for eviction under clause (b). Consent must be previous and in writing; an oral permission, or acquiescence after the event, does not satisfy Section 14. Section 15 reinforces the scheme by requiring the tenant or sub-tenant to give the landlord notice of the creation and termination of a lawful sub-tenancy within one month, in the prescribed manner. The Act also forbids a landlord from claiming or receiving any premium, pugree or other consideration in cash or kind as the price of consenting to a sub-letting, which keeps the consent mechanism honest. The interlocking of clause (b) with Section 14 means the landlord must plead and the court must find both the factual sub-letting and the absence of the requisite written consent; proof of one without the other is fatal to the suit. Because the words “before or after the commencement of this Act” appear in clause (b), a sub-letting that pre-dates the Act can still ground eviction, subject to the same requirement of unlawfulness. For the definitional vocabulary of ‘tenant’ and ‘landlord’ that frames this enquiry, see Definitions.
The twin ingredients: exclusive possession and consideration
The Supreme Court has distilled sub-letting into two cumulative ingredients. In Joginder Singh Sodhi v. Amar Kaur (2005) 1 SCC 31 the Court held that the landlord must establish (i) that a third party was in exclusive possession of the demised premises, and (ii) that the parting with possession was for monetary consideration. The classic formulation comes from Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh, AIR 1968 SC 933, where the Court explained that sub-letting means parting with legal possession in favour of another for a price; mere permissive user does not suffice. The restatement in Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar (2010) 1 SCC 217 puts it crisply: there must be parting with possession of the tenancy, or part of it, in favour of a third party with an exclusive right of possession, and that parting must be without the landlord's consent and in lieu of compensation or rent. Both limbs must coexist before clause (b) is attracted.
Sub-letting, assignment and parting with possession distinguished
Clause (b) is deliberately drafted in three limbs, each describing a different kind of transfer, and the distinction matters because the evidence and the consequences differ. A sub-letting creates a new tenancy: the tenant becomes a sub-lessor and a fresh landlord-tenant relationship arises between him and the sub-tenant, who pays him rent. An assignment is a transfer of the entire leasehold interest—the tenant steps out altogether and the assignee steps into his shoes for the unexpired term, so that privity of estate passes to the assignee. The residual phrase otherwise parted with the possession captures every other arrangement by which exclusive possession is handed over without fitting neatly into a sub-lease or assignment, for example a so-called ‘leave and licence’ that in substance surrenders control. What unites all three is the common requirement, drawn from Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh, AIR 1968 SC 933, that the tenant must have transferred legal possession, not merely permitted a use. A bare permission to use, however extensive, that leaves legal possession with the tenant falls outside all three limbs. The closing words “for consideration or otherwise” widen the assignment and parting-with-possession limbs so that even a gratuitous transfer of exclusive possession can attract the ground, although in practice consideration is almost always present and, for the sub-letting limb, is one of the twin ingredients the court will look for.
Exclusive possession is the touchstone
The decisive question is whether the tenant has surrendered exclusive possession to the occupant, or merely allowed a permissive, shared or controlled user. In Gopal Saran v. Satyanarayana, AIR 1989 SC 1141, the Supreme Court emphasised that whether an arrangement is a tenancy, a licence or a parting with possession depends on the quality of occupation conferred; mere occupation by another is not enough to infer sub-tenancy or parting with possession. There the tenant, who had merely allowed advertisement boards to be displayed without conferring any independent right of occupation on a third person, was held not to have parted with possession at all. The same principle drives the residual limb “otherwise parted with the possession”: in Dipak Banerjee v. Lilabati Chakraborty (1987) 4 SCC 161, the Court held that parting with possession means giving up legal possession and effective control over the premises, so that a tenant who retains control and merely allows another to use the premises has not parted with possession within the meaning of the rent statute. The hallmark of exclusive possession is the occupant's power to exclude all others, including the tenant, from the demised portion. Where the tenant continues to have access, keeps his stock or business identity on the premises, pays the rent and tax, and exercises supervisory control, the courts treat the occupant as a licensee or servant rather than a sub-tenant. Conversely, a separate entrance, separate trade name, separate electricity meter, and the tenant's total absence are strong pointers to a surrender of exclusive possession. The enquiry is intensely fact-sensitive, which is why appellate courts are slow to disturb a concurrent finding on possession unless it is perverse.
Burden of proof and the shifting onus
The initial burden lies squarely on the landlord, but it is not an unattainable one. Resham Singh v. Raghbir Singh, AIR 1999 SC 3087, reaffirms that the onus to prove sub-letting rests on the landlord, who must show that a third party is in exclusive possession. Once that prima facie proof is led, however, the evidentiary burden shifts. As Joginder Singh Sodhi and Celina Coelho Pereira both hold, when the landlord establishes that a person other than the tenant is in exclusive possession, a presumption of sub-letting arises and the onus moves to the tenant to explain his continued legal possession or the innocent character of the occupant's presence. This shifting-onus rule is a practical concession to the difficulty a landlord faces in proving the internal terms of a clandestine arrangement to which he is a stranger. It is important to note what the rule does not do: it does not relieve the landlord of his initial burden, nor does it convert the mere presence of a stranger into proof of sub-letting. The landlord must first lead acceptable prima facie evidence of exclusive possession; only then does the presumption arise. If the landlord's evidence shows no more than joint occupation, casual presence, or use referable to the tenant, the onus never shifts and the suit fails at the threshold. The tenant, once the onus is on him, may discharge it by proving a genuine partnership, a family or employment relationship, a licence under his control, or the landlord's own written consent under Section 14.
Proving consideration: the permissible inference
The second ingredient, monetary consideration, is notoriously hard to prove because sub-letting in defiance of rent control is a covert affair. The Supreme Court has met this difficulty by permitting an inference. In Bharat Sales Ltd. v. Life Insurance Corporation of India (1998) 3 SCC 1, the Court held that it is not necessary in every case for the landlord to prove payment of consideration by direct evidence; where exclusive possession of a third party is established, the court may legitimately infer that the transaction was entered into with monetary consideration in mind, since such arrangements are “in their very nature clandestine”. Thus exclusive possession does double duty: it discharges the first ingredient outright and supplies the factual springboard from which consideration is inferred for the second. A tenant resisting eviction must therefore rebut both the possession and, with it, the presumed consideration.
Partnership: genuine arrangement or disguised sub-letting
A recurring evasion is the tenant who inducts the occupant as a ‘partner’ to clothe a sub-letting in the garb of a firm. The law looks to substance. In Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri (1987) 3 SCC 538, the Supreme Court held that where a tenant becomes a partner of a genuine firm and allows the firm to carry on business in the premises while he himself retains legal possession, there is no sub-letting; whether the partnership is genuine must be judged on the facts of each case by the principles of partnership law. Celina Coelho Pereira refines the test: merely inducting a partner does not amount to sub-letting, but if the partnership is ostensible and the deed is a device to conceal a real sub-letting, the court will lift the veil of partnership to find the true nature of the transaction. The controlling enquiry is whether the tenant remains actively associated with the business and retains use and control of the premises; if he does, possession has not passed.
Family members, servants and bare licensees
Not every third party in the premises is a sub-tenant. Occupation by family members, employees, agents or gratuitous licensees who occupy on the tenant's behalf, and under his control, is not parting with possession. The reasoning flows directly from the exclusive-possession test in Gopal Saran and Dipak Banerjee: where the tenant retains effective control and the occupant's presence is referable to the tenant's own occupation, no separate legal possession has been carved out. Close relatives living together as members of a single household, a manager running the tenant's shop, or a caretaker do not trigger clause (b). The vice the section targets is the surrender of independent, exclusive control to a person occupying in his own right for consideration, not the ordinary incidents of the tenant's own use of the accommodation.
Consequences and the position of the sub-tenant
An unlawful sub-letting proved under clause (b) entitles the landlord to a decree of eviction against the tenant, and the sub-tenancy being unlawful confers no protection on the occupant, who must go out with the tenant. By contrast, a sub-tenant inducted lawfully—with the landlord's previous written consent under Section 14 and duly notified under Section 15—enjoys statutory protection: on determination of the head tenancy, such a lawful sub-tenant is generally recognised as a direct tenant of the landlord. The distinction between a lawful and unlawful sub-tenancy therefore governs not only the landlord's right to evict the tenant but also the very survival of the occupant's interest. The arrears-of-rent ground operates independently of this ground; for that parallel route see Section 12 — arrears of rent.
Pleading and proof in practice
For the practitioner, success under clause (b) turns on disciplined pleading. The plaint must allege the specific act—sub-letting, assignment or parting with possession—identify the third party, assert his exclusive possession, and plead the absence of the previous written consent required by Section 14. At trial the landlord leads prima facie evidence of exclusive possession (rent receipts in the occupant's name, signage, electricity connections, municipal records, the tenant's own absence), whereupon the onus shifts under Joginder Singh Sodhi and Resham Singh. The tenant then rebuts by showing a genuine partnership (Helper Girdharbhai), a family or licensee arrangement, retained control (Dipak Banerjee), or valid written consent. Courts will not infer sub-letting from stray occupation alone; the quality of possession, tested as in Gopal Saran, remains decisive throughout. Return to the subject hub at MP Accommodation Control Act notes for the full map of grounds.
Frequently asked questions
What are the essential ingredients the landlord must prove under Section 12(1)(b)?
Two cumulative ingredients: that a third party is in exclusive possession of the whole or part of the accommodation, and that the parting with possession was for monetary consideration. The Supreme Court laid this down in Joginder Singh Sodhi v. Amar Kaur (2005) 1 SCC 31 and restated it in Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar (2010) 1 SCC 217.
When does a sub-letting become 'unlawful' so as to attract clause (b)?
When it is done without the previous written consent of the landlord required by Section 14. Consent obtained earlier and reduced to writing makes the sub-letting lawful; oral permission or later acquiescence does not satisfy the section, and a lawful sub-tenant must also be notified to the landlord under Section 15.
Does the landlord have to prove that money actually changed hands?
No. In Bharat Sales Ltd. v. LIC of India (1998) 3 SCC 1 the Court held that where exclusive possession of a third party is established, consideration may be inferred, since sub-letting against rent control is inherently clandestine and rarely supported by direct evidence of payment.
Who bears the burden of proof in a sub-letting case?
The initial burden is on the landlord. But once he shows prima facie that a third party is in exclusive possession, the onus shifts to the tenant to prove that he retains legal possession or that the occupant is not a sub-tenant. See Resham Singh v. Raghbir Singh, AIR 1999 SC 3087, and Joginder Singh Sodhi.
Does taking a partner into the business amount to sub-letting?
Not if the partnership is genuine and the tenant retains legal possession and active control, as held in Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri (1987) 3 SCC 538. But if the partnership is a sham device to conceal a sub-letting, the court will lift the veil, per Celina Coelho Pereira (2010) 1 SCC 217.
Is occupation by family members or a caretaker treated as sub-letting?
No. Where the occupant is a family member, employee or bare licensee occupying under the tenant's control, the tenant has not parted with exclusive possession. Following Gopal Saran v. Satyanarayana, AIR 1989 SC 1141, and Dipak Banerjee v. Lilabati Chakraborty (1987) 4 SCC 161, the quality of occupation and retention of effective control are decisive.