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-SRIDHARA BABU.N
INDEX

NO

PARTICULARS

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SUB-LETTING OF TENANCY
In the case of Associated Hotels of India Ltd., Delhi v. S.B. Sardar Ranjit
Singh AIR 1968 SC 933, this Court held that when eviction is sought on the
ground of subletting, the onus to prove subletting is on the landlord. It

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was further held that if the landlord prima facie shows that the third party
is in exclusive possession of the premises let out for valuable
consideration, it would then be for the tenant to rebut the evidence.
In Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri & Others
(1987) 3 SCC 538, this Court held that in a case where a tenant becomes
a partner of a partnership firm and allows the firm to carry on business in
the demised premises while he himself retains legal possession thereof,
the act of the landlord does not amount to subletting. It was held that
whether there is genuine partnership or not must be judged in the facts of
each case in the light of the principles applicable to partnership.
Shalimar Tar Products Ltd. v. H.C. Sharma[(1988) 1 SCC 70] where it
was held that to constitute a sub-letting, there must be a parting of legal
possession, i.e., possession with the right to include and also right to
exclude others and whether in a particular case there was sub-letting was
substantially a question of fact.
A three-Judge Bench of this Court in Parvinder Singh v. Renu Gautam
and Others (2004) 4 SCC 794 "The rent control legislations which extend
many a protection to the tenant, also provide for grounds of eviction. One
such ground, most common in all the legislations, is sub-letting or parting
with possession of the tenancy premises by the tenant. Rent control laws
usually protect the tenant so long as he may himself use the premises but
not his transferee inducted into possession of the premises, in breach of
the contract or the law, which act is often done with the object of
illegitimate profiteering or rack-renting. To defeat the provisions of law, a
device is at times adopted by unscrupulous tenants and sub-tenants of
bringing into existence a deed of partnership which gives the relationship

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of tenant and sub-tenant an outward appearance of partnership while in


effect what has come into existence is a sub-tenancy or parting with
possession camouflaged under the cloak of partnership. Merely because a
tenant has entered into a partnership he cannot necessarily be held to
have sub-let the premises or parted with possession thereof in favour of
his partners. If the tenant is actively associated with the partnership
business and retains the use and control over the tenancy premises with
him, maybe along with the partners, the tenant may not be said to have
parted with possession. However, if the user and control of the tenancy
premises has been parted with and deed of partnership has been drawn
up as an indirect method of collecting the consideration for creation of
sub-tenancy or for providing a cloak or cover to conceal a transaction not
permitted by law, the court is not estopped from tearing the veil of
partnership and finding out the real nature of transaction entered into
between the tenant and the alleged sub-tenant. A person having secured a
lease of premises for the purpose of his business may be in need of capital
or finance or someone to assist him in his business and to achieve such
like purpose he may enter into partnership with strangers. Quite often
partnership is entered into between the members of any family as a part
of tax planning. There is no stranger brought on the premises. So long as
the premises remain in occupation of the tenant or in his control, a mere
entering into partnership may not provide a ground for eviction by
running into conflict with prohibition against 1 sub-letting or parting
with possession. This is a general statement of law which ought to be read
in the light of the lease agreement and the law governing the tenancy.
There are cases wherein the tenant sub-lets the premises or parts with
possession in defiance of the terms of lease or the rent control legislation
and in order to save himself from the peril of eviction brings into
existence, a deed of partnership between him and his sub-lessee to act as

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a cloak on the reality of the transaction. The existence of deed of


partnership between the tenant and the alleged sub-tenant would not
preclude

the

landlord from bringing

on

record material

and

circumstances, by adducing evidence or by means of cross-examination,


making out a case of sub- letting or parting with possession or interest in
tenancy premises by the tenant in favour of a third person. The rule as to
exclusion of oral by documentary evidence governs the parties to the
deed in writing. A stranger to the document is not bound by the terms of
the document and is, therefore, not excluded from demonstrating the
untrue or collusive nature of the document or the fraudulent or illegal
purpose for which it was brought into being. An enquiry into reality of
transaction is not excluded merely by availability of writing reciting the
transaction........."
In Parvinder Singh v. Renu Gautam 1 [(2004) 4 SCC 794] a threeJudge Bench of this Court devised the test in these terms: (SCC p. 799,
para 8) "If the tenant is actively associated with the partnership business
and retains the use and control over the tenancy premises with him,
maybe along with the partners, the tenant may not be said to have parted
with possession. However, if the user and control of the tenancy premises
has been parted with and deed of partnership has been drawn up as an
indirect method of collecting the consideration for creation of subtenancy or for providing a cloak or cover to conceal a transaction not
permitted by law, the court is not estopped from tearing the veil of
partnership and finding out the real nature of transaction entered into
between the tenant and the alleged sub- tenant"."
Ms. Celina Coelho Pereira & Ors. Vs Ulhas Mahabaleshwar Kholkar
& Ors. JUSTICE Tarun Chatterjee & JUSTICE R. M. Lodha DD 30-10-

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2009, The legal position was quoted by the court after discussing several
decisions and summarised as follows:
(i) In order to prove mischief of subletting as a ground for eviction under
rent control laws, two ingredients have to be established, (one) parting
with possession of tenancy or part of it by tenant in favour of a third party
with exclusive right of possession and (two) that such parting with
possession has been done without the consent of the landlord and in lieu
of compensation or rent.
(ii) Inducting a partner or partners in the business or profession by a
tenant by itself does not amount to subletting. However, if the purpose of
such partnership is ostensible and a deed of partnership is drawn to
conceal the real transaction of sub-letting, the court may tear the veil of
partnership to find out the real nature of transaction entered into by the
tenant.
(iii) The existence of deed of partnership between tenant and alleged subtenant or ostensible transaction in any other form would not preclude the
landlord from bringing on record material and circumstances, by
adducing evidence or by means of cross-examination, making out a case
of sub-letting or parting with possession in tenancy premises by the
tenant in favour of a third person.
(iv) If tenant is actively associated with the partnership business and
retains the control over the tenancy premises with him, may be along
with partners, the tenant may not be said to have parted with possession.
(v) Initial burden of proving subletting is on landlord but once he is able
to establish that a third party is in exclusive possession of the premises

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and that tenant has no legal possession of the tenanted premises, the onus
shifts to tenant to prove the nature of occupation of such third party and
that he (tenant) continues to hold legal possession in tenancy premises.
(vi) In other words, initial burden lying on landlord would stand
discharged by adducing prima facie proof of the fact that a party other
than tenant was in exclusive possession of the premises. A presumption of
sub-letting may then be raised and would amount to proof unless
rebutted.

TENANCY UNDER RENT ACT AND T.P. ACT


In V. Dhanapal Chettiar vs. Yesodai Ammal [1979 (4) SCC 214 ] the
question arose as to whether the landlord is required to give notice under
Section 106 of the Transfer of Property Act before filing a petition for
eviction under Tamil Nadu Building (Lease and Rent Control) Act. In that
context it was held thus : Purely as a matter of contract a lease comes into
existence under the Transfer of property Act. But in all social legislations
meant for the protection of the needy, there is appreciable inroad on the
freedom of contract and a person becomes a tenant of a landlord even
against his wishes on the allotment of a particular premises to him by the
authority concerned. Now, under the Transfer of Property Act no ground
for eviction of a tenant has to be made out once a contractual tenancy is
put to an end by service of a valid notice under Section 106. Once such a
notice is served it is open to the lessor to enforce his right of recovery of
possession of property. But when under the various State Rent Acts it has
been provided that a tenant can be evicted on the grounds mentioned in
certain sections of the said Acts no question of determination of a tenancy
by notice arises. Once the liability to be evicted is incurred by the tenant

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he cannot turn round and say that the contractual lease has not been
determined. The action of the landlord in instituting a suit for eviction on
the ground mentioned in any State Rent Act will be tantamount to an
expression of his intention that he does not want the tenant to continue as
his lessee and the jural relationship of lessor and lessee will come to an
end on the passing of an order or decree for eviction. Until then under the
extended definition of the word tenant under the various State Rent Acts
the tenants continues to be tenant even though the contractual tenancy
has been determined by giving of a valid notice under Section 106 of the
Transfer of Property Act, 1882.
In Pradesh Kumar Bajpai vs. Binod Behari Sarkar [1980 (3) SRR 348] it
was held that where a Rent Act is applicable to a premises and landlord
applies for eviction on the ground of default in payment of arrears of rent
the tenant cannot claim benefit under Section 114 of the Act and ask for
opportunity to deposit arrears. It was further held that the tenant is not
entitled to seek double protection of the State Rent Act and the Transfer
of Property Act.
In K.K. Krishnan vs. M.K. Vijaya Ragavan [1980(4) SCC 88] this Court held
that the right conferred on landlord and tenant by virtue of Section 108
and other provisions of the Transfer of Property Act has no application
where the premises is governed by the State Rent Act and if the tenant
has sought to proceed with under the Rent Act for his eviction the tenant
cannot resist the said eviction on the basis of rights conferred by the
Transfer of Property Act.
In Prithvichand Ramchand Sablok vs. S.Y. Shinde [1993 (3) SCC 271] it
was held that the provisions contained under the Rent Control Act being a
special provision would exclude the operation of Section 114 of the
Transfer of Property Act. In substance it was held that a building cannot

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be governed by the provisions of two Acts, one by the State Rent Act and
other by the Transfer of Property Act.
Apex Court in Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co.
((2001) 8 SCC 397) the Rent Act gives protection to the tenant from being
ejected except on the grounds referred to thereunder. In other words, it
protects the tenant from ejectment, it protects a tenant from the drastic
enhancement of the rent by the landlord which otherwise the landlord
could do under the general law. Thus the right of a tenant under the Rent
Act at the best could be said to be a protective right, which cannot be
construed to be a vested right. In effect in view of this special enactment
of the Rent Act, the right and remedies available to a landlord under the
general law remain suspended or eclipsed. In other words, the landlord's
vested right under the general law continues so long it is not abridged by
such protective legislation, but the moment when this protection is
withdrawn the landlord's normal vested right reappears which could be
enforced by him.
The Apex Court in Pujalal v. Bhagwat Prasad (AIR 1963 SC 120) held that
once contractual tenancy created by the T.P. Act comes to an end the
statutory tenancy created by the Rent Act comes into operation. The end
of the former is the beginning of the later. Provisions of the Rent Control
Act, are in addition to the provisions of the T.P. Act. But the non-obstante
provision used in Section 11 of the Kerala Act gives an overriding effect
when a tenant is sought to be evicted, but rest of the provision of T.P. Act
would still govern the rights and liabilities of the parties. Section 109 of
the Transfer of Property Act provides a transfer of the part of the
property and the transferee possess all the rights of the transferor, so also
subject to all the liabilities of the transferor.

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Apex Court in Mohar Singh v. Devi Charan (AIR 1988 SC 1365) wherein
the Apex Court examined the scope of Sections 109 and 106 of the
Transfer of Property Act read with Section 21 of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act. In paragraph 5 of the
judgment the Apex Court held as follows: "It is trite proposition that a
landlord cannot split the unity and integrity of the tenancy and recover
possession of a part of the demised premises from the tenant. But Section
109, T.P. Act, provides a statutory exception to this rule and enables an
assignee of a part of the reversion to exercise all the rights of the landlord
in respect of the portion respecting which the reversion is so assigned
subject, of course, to the other covenant running within the land. This is
the true effect of the words "shall possess all the rights ....... of the lessor as
to the property or part transferred........" occurring in Section 109, T.P. Act.
There is no need for a consensual attornment. The attornment is brought
about by operation of law. The limitation on the right of the landlord
against splitting up of the integrity of the tenancy, inhering in the
inhibitions of his own contract, does not visit the assignee of the part of
the reversion. There is no need for the consent of the tenant for the
severance of the reversion and the assignment of the part so severed. This
proposition is too well settled to require any further elucidation or
reiteration."

CO-OWNER OF A PROPERTY
Sri Ram Pasricha v. Jagannath (1976) 4 SCC 184 and Pal Singh v. Sunder
Singh... A co-owner is as much an owner of the entire property as a sole
owner of the property. It is not correct to say that a co-owner's property
was not its own. He owns several parts of the composite property
alongwith others and it cannot be said that he is only a part owner or a

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fractional owner in the property. That position will undergo a change only
when partition takes place and division was effected by metes and
bounds. Therefore, a co-owner of the property is an owner of the property
acquired but entitled to receive compensation pro rata.
In Kanta Goel v. B.P. Pathak (1977) 2 SCC 814, Court upheld an
application by one of the co-owners for eviction of a tenant for personal
occupation of the co-owners as being maintainable.
Supreme Court in the case of N.M. Engineer and others V. Narendra Singh
Virdi and another, reported in AIR 1995 SC 448, wherein it has been held
as under : "Where in a deed by which the right, title and interest in the
property in dispute was released in favour of one of the co-owners
nowhere any assignment of rent was made, the assignee was not entitled
to rent before assignment and the amount due prior to the deed could not
constitute arrears of rent as it was merely an actionable claim.
Consequently, notice demanding rent sent before the relinquishment
deed by the co-owner was not valid. It was more so when, there was
dispute as to amount of standard rent and the interim rent fixed by the
small cause court was deposited by the tenant. Moreover, there was no
arrears outstanding for the period of six moths on the date of notice and
thus the notice did not satisfy requirement of S. 12(3)(b) as it could not be
said that the tenant had neglected to pay the rent. In such case, it was not
open to the landlord to fall upon S. 12(3)(b)."
Supreme Court in C. Chandramohan v. Sengottaiyan A.I.R. 2000 S.C. 568
that mere assertion of tenant that landlord is co-owner because of lack of
knowledge of deed does not amount to denial of his title. If a tenant
asserts that plaintiff is co-landlord then it means that he is admitting him
to be landlord because a co-landlord is also landlord. I therefore hold that
the allegation of the defendant in his written statement filed in the
previous suit (SCC suit No. 77 of 1980) does not amount to denial of title.

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LIABILITY OF TENANT TO PAY RENT EVEN AFTER TERMINATION


SUBSISTS
In Smt. Chander Kali Bail and others vs. Jagdish Singh Thakur and another,
AIR 1977 SC 2262, the Supreme Court in paragraph 8, after referring to
Damadilal and others vs. Parashram and others, AIR 1976 SC 2229, has
held that if a suit is filed on the ground of non-payment of rent after
termination of the contractual tenancy, the tenant still continues to be a
tenant liable to pay rent not only for the past period but in future also and
further that in absence of a decree of eviction the person in occupation of
the accommodation continues to be a tenant and is not liable to pay any
damages as his occupation is not unauthorised or wrongful even after the
termination of the contractual tenancy.
In Siddalingamma and another vs. Mamtha Shenoy, (2001) 8 SCC 561 and
Sampath Kumar vs. Ayyakannu and another, AIR 2002 SC 3369, it has
been held that an amendment made in the plaint relates back to the date
of filing of the suit and that once the amendment is allowed, it would be
treated as if the pleadings are available from the date of filing of the suit.

CASES ON LEASES OF IMMOVABLE PROPERTY


http://sbn-caselaw.blogspot.com/2007/05/cases-on-leases-ofimmovable-property.html

DIFFERENCE BETWEEN LEASE AND LICENCE

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Whether particular agreement creates lease or licence has to be gathered


from circumstances of agreement Party claiming benefit of lease has to
prove existence of lease Annual auctioning of right to run hotel in
premises at bus stand belonging to Village Panchayat Agreement
between Panchayat and successful bidder in auction Agreement
creates no lease but only licence. Held: There is a very clear and distinct
distinction in law between the concept of tenancy and that of a licence. It
is true that in certain cases an arrangement between parties regardless of
what it is called or defined has been construed by a Court to be one that
confers tenancy rights particularly in cases where the person has been in
occupation for a long period of time. Various circumstances attendant in
each of such cases must unmistakably indicate that the contract was one
of tenancy arid that in order to deprive the occupant of the benefits and
protection of the statute, the document was given a different colour. The
first essential requirement is that these circumstances must be present
but more importantly, it is for the party claiming those benefits to aver
very specifically that the agreement was one of tenancy and thereafter to
establish this to the satisfaction of the Court. The arrangement emanated
from the usual auction of conducting rights for a period of one year and
therefore even to set up a plea of tenancy would be extremely far-fetched.
The agreement only conferred a licence for a period of twelve months and
nothing else and further more, what needs to be taken cognizance of is the
fact that the agreement and its execution itself are unchallenged. In these
circumstances, the petitioner herself would be virtually estopped from
even pleading any status other than that of a licensee. Under these
circumstances, the respondents who are the authority in-charge of the
premises would be justified in removing anybody including the petitioner,
if such persons come in the way of the party to whom the contract has
been awarded from functioning there. Smt. Prathima S. Bhat v

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Uppinangadi Grama Panchayath, Uppinangadi, Puttur Taluk, D.K. and


Another, 1995(6) Kar. LJ. 136.
The Forest Department held an auction in respect of various items of
forest produce and the auction notice required purchasers to comply with
sales tax and stamp law. The auction agreements were for a period of nine
to ten months and the purchasers were merely granted the right to cut
and carry away the forest produce. Held, the purchasers did not acquire
any interest in the soil but merely a right to cut the forest produce and
therefore the agreements were in the nature of licences and not leases so
as to attract Article 31 (e) of the (Indian) Stamp Act. A study of the
definition of 'immovable property' in Section 3{26) of the General Clauses
Act, Section 3 of the Transfer of Property Act, Section 2(6) of the Stamp
Act and Section 2(7} of the Sale of Goods Act shows that it is the creation
of an interest in immovable property or a right to possess it that
distinguishes a lease from a licence. No rights over the earnest deposits
made by bidders pending auction were created in favour of the State
Government and hence the security deposits were not in the nature of
mortgages and the purchasers could not be called upon to pay stamp duty
under Section 35(c) of the Stamp Act. Board of Revenue v A.M. Ansari,
AIR 1976 SC1813
Section 105 Easements Act, 1882, Section 52 Karnataka Rent
Control Act, 1961, Sections 21 and 31 Lease or licence Suit for
eviction of tenant after termination of tenancy in building exempted from
operation of Rent Control Act Compromise decree under which tenant
handed over portion of suit building to landlord and promised to vacate
remaining portion before specified date and also agreed to pay "rent" till
date of vacating Agreement under compromise decree, held, did not

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create fresh lease even though word "rent" is used Tenant has become
licensee Compromise decree can be executed when licensee has
breached his promise to vacate suit building Fresh order of eviction
under Section 21 of Rent Control Act Not necessary even though
exemption from operation of Rent Control Act in respect of suit building
has since been removed. Held.The decree was passed on 21-4-1984
much prior to 1-7-1986. (the date on which Section 31 was struck down).
If under the terms of the decree the party has agreed to abide by certain
conditions and if by those conditions the petitioner has handed over a
portion of the suit premises and retains some other portion of the
premises, agreeing to pay damages till vacant possession is delivered, it
would be difficult to go behind the decree and hold that the petitioner is
still a tenant. If the petitioner is not a tenant pursuant to the compromise
decree and pursuant to him handing over the possession of a portion of
the suit premises, then, it would not be possible to hold that the petitioner
retains the remaining portion of the property only as a tenant. Petitioner
will undoubtedly be, under the terms of the compromise only a licensee
and not a tenant. ... It is the intention of the parties which is the decisive
test, notwithstanding the fact that the word 'rent' being used in the
compromise decree. If it can be culled out from the decree passed by a
Court of competent jurisdiction that the intention of the parties was that
the tenant willingly acquiesced to be a licensee rather than a tenant then
he will undoubtedly be a licensee and nothing more. In these
circumstances the landlord was certainly entitled to execute the decree of
a Civil Court. ... In the first execution case, the tenant did not question the
jurisdiction of the Court but sought time to deliver vacant possession till
7-1-1991. It is only when the tenant did not deliver vacant possession on
7-1-1991 as agreed by him, the landlord was compelled to file the second
execution petition. ... It is difficult to impute an intention to create a fresh

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lease and that pursuant to the compromise decree there was no intention
for the parties to enter into a relationship of landlord and tenant. In the
facts and circumstances of the case, it has to be necessarily held that the
petitioner was only a licensee pursuant to the compromise decree and
that such decree is executable. C.L Seetharam v J.C. Rudra Sharma,
1997(3) Kar. L.J. 37 (DB).

GRANTED ONLY BY A PERSON COMPETENT TO CONTRACT


A Lease can be granted only by a person competent to contract and the
lessor must have title to the property or authority from the owner of the
property. Lakshman Gidwani v Thimmamma, 1987(2) Kar. L.J. 426.

TENANT AT WILL
Even if it is held that a tenant at will has no sure interest or estate, he
cannot be evicted without a notice, the duration of which would be
depended upon the nature of the lease. In the case of an Agricultural
Lease, the notice must expire with the end of the agriculture lease. A
tenant at will is none the less a tenant the concept of tenancy at will has
reference to duration and interest in the Sand. He is not a tenant at the

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sweet will and mercy of the landlord.

The status and possession of a

person who was admittedly a tenant of premises covered by local rent


restriction Act till date of commencement of a fresh lease, which turns out
to be void for want of registration during and at the expiry of the period
purporting to be reserved by such void lease would be that of a tenant.
Such a tenant could only be removed by proper legal proceeding and he is
not a licence without interest in the premises and could not be forceably
evicted by the landlord entering on the premises and locking the same.
Such tenant could defend his possession by a suit seeking a declaration
and mandatory injunction. Biswabani (Private) Limited v Santosh
Kurmr, 1979(2) Kar. L.J. Sh. N. 98 (SC).
Even if it is held that a tenant at will has no sure interest or estate, he
cannot be evicted without notice, the duration of which would be
dependent upon the nature of the lease. In the case of an agricultural
lease, the notice must expiry with the end of the agricultural lease. A
tenant at will is nonetheless a tenant. The concept of tenancy at will has
reference to duration and interest in the land. He is not a tenant at the
sweet will and mercy of the landlord. Hence, possession of the tenant at
will, where notice to quit has not been issued, is not on behalf of the
landlord and the landlord cannot to be in khas possession within Section
6 of the Bihar Land Reforms Act. The right to take possession is not khas
possession. A tenant at will enters possession with the consent of the
landlord and till his tenancy is determined, he is in lawful possession and
cannot be styled as a trespasser. Ramesh Bejoy v Pashupati Rai,
1979(2) Kar. LJ. Sh. N. 97 (SC).
Where the lease contained a specific condition that the tenant shall give
up possession of the house at the will of the landlord without demur and

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no definite period was fixed in the lease, the tenancy is one at will. Such
tenancy can be determined either by demand to give up possession or by
operation of law at the death of the lessor. Bhimangoud v Golangouda,
1983(1) Kar. LJ. Sh. N. 23.

A RIGHT TO CARRY ON MINING OPERATION


Section 105 Every interest in Immoveable property or a benefit arising
out of land will be immoveable property for the purpose of Section 105 of
T.P. Act. A right to carry on mining operation in land to extract a specified
mineral and to remove and appropriate it, is a right to enjoy immoveable
property within Section 105 of T.P. Act, more so when it is coupled with a
right to be in its exclusive has possession for a specified period, Shri
Shri Takeshwar Sio Thakur Jiu v Hari Dass. 1979(1) Kar. L.J, Sh. N. 71
(SC).

TENANT DIES THE LEGAL REPRESENTATIVE HAS NO HERITABLE RIGHT


TO THE TENANCY
Houses and Rent Statutory tenant termination of tenancy The
legal representative has no right to inherit the tenancy. The relationship
of landlord and tenant is regulated by the Provisions of the T.P. Act once
since relationship, which is Contractual, is terminated under Section 111
of the T.P. Act, the tenant, if he continued in possession of the premises is

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called statutory tenant, Since tenancy can be terminated only by having


recourse to the Rent Control Act. When the Court passes an order of
eviction, the tenancy stands terminated. If subsequently, the tenant dies
the legal representative has no heritable right to the tenancy
Radheshyam Modi v Jadunath Mahapatra, AIR 1991 Ori. 88.

PERPETUAL LEASE

Whether perpetual or for term Proof Onus Though there is no


presumption in law against perpetual lease, unambiguous language is
required to infer such lease which has effect of depriving owner of his
right to enjoy property for ever Mere fact that lease is for 99 years at
uniform fixed rent, with stipulation for renewal under same terms and
conditions at option of lessee and fact that lease is binding on heirs,
administrators, executors, successors and legatees of both lessor and
lessee and further fact that lessee has made constructions on leased
property at his own cost, would not raise presumption that lease is
perpetual lease Onus of proving that lease is perpetual is on lessee
In absence of provision for renewal at option of lessee for indefinite
length of time and from generation to generation, lease is to be held term
lease only with option for renewal for only once. Held: Though there is no
presumption against perpetual lease, clear and unambiguous language is
required to infer such a lease. If the language is ambiguous, not clear and
admits of some doubt, the Court is required to opt for an interpretation

Sridhara babu. N

rejecting the plea of a perpetual lease. This is necessary because if the


Court leans in favour of a perpetual lease in the absence of the language
being clear and unambiguous, the effect of such interpretation would be
to deprive a owner of his right to enjoy the property for ever. There is no
presumption in favour of the perpetual lease and the Courts are required
to lean against perpetual lease in the absence of stipulations in
that behalf being unambiguous or clear. . . . .The lease is for a period of 99
years. Therefore, there cannot be any doubt that when a period of 99
years is fixed in the lease deed, it is a term lease. The renewal, even if
done at the option of the lessee, again could be for a term of 99 years only.
Whether it be during the original period of Sease or even in the renewed
period, the option is given to the lessee to surrender at his discretion.
There is no provision in the lease deed which says that the renewal of the
lease is for an indefinite period. In the absence of a specific provision in
the lease deed providing that the renewal is required to be made at the
option of the lessee for an indefinite length of time and from generation to
generation, it is not possible to come to the conclusion that merely
because the lease provides for a renewal of the term fixed in the lease
deed under the same terms and conditions, that renewal is for an
indefinite period and the lease is a permanent lease. The lease is only for a
term of 99 years; and the option can be exercised to renew the lease only
once. .... -Since the lease was for construction of a building and for
establishing a Pressing and Ginning Factory, the term of the lease is fixed
fairly long and a clause for renewal of the lease also is provided.
Therefore, the long term provided in the lease with a renewal clause,
cannot be understood as meaning that the lease is a permanent lease.
Though the power of transfer or assignment of the lease is reserved to the
lessee, the said provision specifically states that the transfer or
assignment of leasehold interest of the lessee should not in any way affect

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the other conditions of the lease. The lease deed also provides that in the
event the lessee is required to cut any tree growth in the land leased if the
said tree growth becoming an obstruction to make use of the leased land
for the purpose it was let out, the lessee can cut the trees, but hand over
the tree growths to the lessor. This clearly shows that the lessor has
reserved substantial interest in the leased premises and he has a right to
the tree growths on the leased land in the event of the said tree growths
are required to be cut. It is also provided that in the event of lessee
vacating the demised land, he is required to deliver wood, stone and tiles
used for the construction of the building to the lessor and take only the
machineries and zinc sheets. Channabasappa Gurappa Belagavi and
Others u Laxmidas Bapudas Darbar and Another, 1999(1) Kar. L.J. 216A.

LEASE AND AGREEMENT TO GRANT LEASE


Payment of advance to owner to make necessary repairs and alterations
to buildings Agreement between parties speaking of present demise in
favour of payer of advance Property to be handed over after repairs
and alterations Mere use of expression "present demise" not decisive
for holding it to be lease when demise depended on completion of repairs
and alterations in accordance with agreement Contract is mere
executory contract and not lease. Held: The covenants between the
parties, it is clear that the possession over the property was to be handed
over to the plaintiff after construction of the building with necessary
alterations and additions as agreed to between the parties. The said
clause also speaks of the present demise in favour of the plaintiff. The
question is whether despite use of the words 'present demise', the
instrument can be construed as merely executory being in the nature of

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'agreement to lease' and not 'lease'. The mere words of present demise as
set out in the Document are not decisive for holding it to be a lease
because in fact the demise is depended on the completion of the building
in accordance with the requirement of the plaintiff which was under
construction on the date of the execution of the said document. Therefore,
the contract entered into by the parties has to be held as a mere executory
contract and not one which has created the demise in praesenti.
Sheshagiri v Belgaum District Co-operative Bank Limited, Belgaum,
1995(4) Kar. L.J. 403.

LEASE AND LICENCE


To ascertain the true intent and import of a document, the document
should be read as a whole. The proper function of the preamble is to
explain certain facts which are necessary to be explained before the
enacting part of the statute can be understood. This would equally apply
to a deed or a document. The preamble to the suit agreement show that
the plaintiff is the owner and the proprietrix of the industry called the
"Saravana Industries", that she has been doing business of manufacture
and sale of steel furniture, grits, gates, steel windows, industrial works
and fabrications pipe and electrical accessories etc., in the said industry
and in the last para of the preamble, it is stated that the plaintiff unable to
manage the industry more effectively due to her old age and therefore,
she is desirous of hiring out the business with the machinery and tools,
etc., to the defendant. The mere fact that the word 'factory' is not
introduced but only the words 'hiring out the business with the
machinery and tools etc.', are used, does not make the transaction any of

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the less of making over the factory will all the machineries and the tools
etc., for carrying on the business subject to the terms and conditions of
the agreement that were to follow in the deed. Hiring out the business
with the machinery and tools without the entire building including the
factory would not carry out the purpose and intention of the parties that
the defendant were to carry on the industry which was being carried on
by the plaintiff and which she was unable to carry on due to her old age.
Reading the suit agreement as a whole, there remain no doubt that it is a
lease of the factory along with the tools, machineries, furniture etc., and
not merely hiring of the business with the machinery and tools etc. The
subject-matter of the suit agreement is not a matter like a shandy place
where people are allowed to vend their articles by paying market fee or a
cycle stand where a party may keep his bicycle for few hours against
payment of certain charges, without having any actual possession of the
place or any interest being created in the land on which they transact
their business or keep their bicycle. The subject-matter of the transaction
between the plaintiff and defendant, in the instant case, is an industrial
unit, manufacturing steel article of various kinds and unless the defendant
had exclusive possession of the factory premises, the defendant could not
carry on the industry of manufacturing various kinds of steel articles he
was expected to manufacture. Considering the suit agreement as a whole,
there is no doubt that it is a 'lease' and not a 'licence'. Smt. Sundara Bai
Ammal and Others v K.V. Rajagopai and Others, ILR1985 Kar. 1706.

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LESSEE IS ENTITLED TO A LIMITED INJUNCTION FROM BEING


DISPOSSESSED FORCIBLY OTHERWISE THAN IN ACCORDANCE WITH
LAW

A lessee after the expiry of termination of the lease does not yield up
possession

Whether

entitled

to

injunction

against

forcible

dispossession by the lessor otherwise in accordance with the law


whether lessee has right to continue in possession and injunction can be
granted. There can be no forcible dispossession of a person who has
juridical possession and the landlord can be restrained from resorting to
high handed acts aimed at forcible dispossession, otherwise than in
accordance with law. No claim to a right to dispossess by the use of force
without recourse to procedure in accordance with law is recognised or
countenanced by Courts. Such a right in the respondent cannot be
recognised regardless of the question whether or not the appellant itself
has any subsisting right to remain in possession. The protection that the
Court affords is not of the possession Which in the circumstances is
litiguous possession and cannot be equated with lawful possession But
a protection against forcible dispossession. The basis of relief is a
corollary of the principle that even with the best of title there can be no
forcible dispossession.The lessee is entitled to a limited injunction from
being dispossessed forcibly otherwise than in accordance with law.
M/s. Patil Exhibitors (Private) Limited v The Corporation of the City of
Bangalore, ILR 1985 Kar. 3700 : AIR 1986 Kant 194.

PURCHASE THE PREMISES FROM THE LANDLORD

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When a tenant agrees to purchase the premises from the landlord it was
held that the tenant continue to be a tenant. Rudrappa by L.Rs. v
Danappa Malasiddappa, 1982(1) Kar. L.J. 284.

VOID LEASE - DEFEND HIS POSSESSION UNDER SECTION 53-A OF T.P.


ACT
When there is void lease and consequently the lessee is put in possession
of the premises it does not become, a tenant under such void lease. He can
only defend his possession under Section 53-A of T.P. Act. Technicians
Studio (Private) Limited v Lila Ghosh, 1978(1) Kar. L.J. Sh. N. 9 (DB).

RENEWAL CLAUSE
Whenever a lease contains a renewal clause it confers an immediate right
to a further extension as the covenant runs with the land and it is
exercisable by the lesse at any time after the commence of the lease. R.
Kempraj v M/s. Burton Son and Company Private Limited, AIR 1970 SC
1872, relied on. When the Wakf Board has accorded sanction for leasing
the suit property with a clause for renewal for a further period of 20 years
at the option of the lessee, no further sanction was required to be
obtained from the Wakf Board for renewing the lease. After the coming
into force of the Transfer of Property Act, leases of immoveable property
are governed by Chap. V of the Transfer of Property Act. Therefore, any
principle opposed to the provisions in Chap. V of the Transfer of Property

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Act cannot be enforced. Vishvarma Hotels Limited v Anjuman-elmamia and Others, 1982(2) Kar. L.J. 264.
A licence in respect of a theatre was renewed on 29-12-1980 in favour of
the licensee who was a tenant of the premises. The landlord of the
premises challenged the renewal in a petition under Article 226 of the
Constitution, alleging that the license was not in a lawful possession of the
theatre on the date of the renewal. The lease was for 10 years from 10-71970 expiring on 9-7-1980. Under the lease deed option to renew the
lease was given to the tenant and the tenant exercised the option by
notice, dated 27-2-1980. Even after 9-7-1980 the landlord went on
accepting rent. The tenant had made a deposit to be adjusted towards the
rent of the last month but the landlord did not so adjust the deposit.
HELD, when the tenant exercised the option by notice to the landlord
before the expiry of the lease, a fresh lease came into existence. When the
deposit was not appropriated by the lessor towards the rents for the last
months of the tenancy expiring on 9-7-1980, it showed he had no
intention to determine the lease. Further, whereafter the period was over,
the lessor went on accepting the rents, it brought into effect a fresh
tenancy. A subsequent notice issued in November, 1980 by the landlord
determining the tenancy could not set at nought the tenancy which had
already come into existence

Manjunath V.R. and Another v M.V.

Veerendra Kumar and Another, 1981(2) Kar. L.J. 147.


A Lessee entitled to renewal of lease and in possession after the expiry of
the original period with the consent of the owner is a lessee for a renewed
period and is not merely holding over. 1964 Mys. LJ. Supp. 112.

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A tenancy for residence renewed by holding over can only be a month to


month tenancy, though the rent reserved was yearly. - Husensaheb
Sayadsaheb Attar v Muktabai and Another, 1962 Mys. LJ, 1000.

In the case of a tenant holding over, the question whether the renewal of
the lease is from year to year or month to month has to be determined
with reference to Sections 116 and 106 T.P. Act and where the lease is not
one for Agricultural or Manufacturing purpose, it must be deemed to be a
lease from month to month. Bheemappa Hanumanthappa and Another
v Nagaraj alias Shivanagappa, 1966(1) Mys. LJ. 664.

Lease during the period when a tenant is holding over, is renewed from
month to month, if the lease is not for Agricultural or Manufacturing
purposes. 1959 Mys. LJ. 165.

Lessee in occupation of property after the expiry of Lease, is a tenant


holding over. A suit for eviction without notice to quit under Section 116
is not maintainable. Such a tenant does not become a tenant at sufferance
on expiry of term under unregistered Lease Deed executed before filing of
suit. Satish Chand Makhan and Others v Govardhan Das Byas and
Others, AIR 1984 SC 143.

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LEASE OR MORTGAGE MERGER OF BOTH


Where a document is of a composite character disclosing features of both
mortgage and lease, it cannot be taken as a lease. The Court will have to
find out the predominant intention of the parties viewed from the
essential aspects of the transaction. There is one most essential feature
in a mortgage which is absent in a lease (i.e.) that the property
transferred is a security for the repayment of a debt whereas in a lease, it
is a transfer of a right to enjoy the property. Where this essential feature
of a mortgage is missing, the document is not a mortgage, Puzikkal
Kuttappan v Bhargavi, 1977(1) Kar. L.J. Sh. N. 66 (FB).
Where there were many features in the document which were more
consistent with a lease than a mortgage the transaction is a lease.
Tayawwa v Gangaiviva and Others, 1966(2) Mys. L.J. 560.
Usufructory mortgage in favour of lessee already in possession
Stipulation in mortgage deed that possession of mortgagee to be treated
as a fresn possession and that until payment of mortgage amounts,
mortgagee is entitled to continue in possession Absence of specific
recital as to recovery of possession Whether lessee had surrendered
his lease-hold right was the qviestion that arose for consideration Held,
recitals had the effect of putting an end to relationship of lessor and lessee
on creation of new relationship of mortgager and mortgagee
Explained. Syed Imdad v R. Ramaswamy, 1989(3) Kar. LJ. 422.
Possessory mortgage to tenant effect. Where a possessory mortgage was
given to appellant who was in possession as a tenant on 21-5-1953 and it
was stipulated that the lease was to exist upto 6-11-1953, the mortgagee

Sridhara babu. N

was given power to sublet, the mortgagor was to do repairs and the
possession was to be under the mortgage deed, and the mortgagee
undertook to deliver possession of the property on the expiry of ten years.
Held, the appellant had surrendered his tenancy from 7-11-1953 and
thereafter the possession was only that of mortgagee and there was no
question of the tenancy being kept in abeyance and reviving on expiration
of the period of mortgage. There cannot be a merger of lease and
mortgage in respect of the same property, since neither of them is a
higher or lesser interest than the other. _ Shah Mathuradas Maganlal and
Company v Nagappa Shankarappa Malaga, AIR 1976 SC 1565.
Landlord mortgaged the house to the tenant Tenant effected
improvements Landlord sold the property to respondent and another
Suit for redemption and possession Contended by the appellants
Decision in Regular Appeal in favour of respondents Challenged in RSA.
(1)Whether the leasehold rights of the appellant (mortgagor) got
merged in the mortgage? Held.It is well-settled that there is no question
of merger as such of a lease with the mortgagee. In other words, it is not
as if lease and mortgage cannot co-exist. This is clear from the decision of
the Supreme Court in Gambangi Appalaswamy Naidu and Others v Behara
Venkataramanayya Patro and Others, (1984)4 SCC 382 : AIR 1984 SC
1728. (2) Whether the lessee (defendant) impliedly surrendered his
lessee's rights for the purpose of taking usufructuary mortgage of the
property. HeldThe fact that there was no stipulation to pay any interest
on the mortgage money; the fact that there was no liability on the part of
the defendant to pay rent after the mortgage came into force; the fact that
there was no agreement to make any adjustment of payment of rent or
interest; the fact that the mortgage period is fixed for about eight years;
the fact that, if for some reason, plaintiff was unable to make payment

Sridhara babu. N

even at the end of eighth year, the defendant was given an opportunity to
continue on the land till the amount was paid and other circumstances
would unmistakably indicate that the intention of the parties was not to
continue the relationship of lessor and lessee as between the mortgagor
and mortgagee. In the opinion of this Court, if these circumstances are
tested by the guidelines given by the Supreme Court in Gambangi's case,
the same would unmistakably point to the conclusion that there was an
implied surrender of his tenancy on the part of the defendant
immediately .before usufructuary mortgage was executed in his favour.
Abdulmsoolsab Chamanasab Phaniband v Ruth, 1990(4) Kar. LJ. 382A.

AFTER CONSENT DECREE RECEIPT OF RENT DID NOT BRING FRESH


LEASE
Where the tenant was given time till the end of 1957 to hand over
possession of the property under a consent decree, and he paid the rent in
September, October, November and December, 1957 and mesne profits
for January, 1958 and the receipt mentioned that what was received was
rent, it was Held that the use of the word rent in respect of January, 1958
did not bring about a fresh lease between the parties. Habighai
Meharalli Bhavnagri v Shivaji Rao D. Jadhav, 1965(2) Mys. L.J. 672.

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STATUTORY TENANT

There is transfer of immovable property in favour of the petitioners. ....


The very_instrument is titled as 'Lease Deed' and throughout in the said
deed the words 'Lessor' and 'Lessee' are used. The sum of Rs. 6,00,000/paid by the lessees was for five years and eight months and the same was
paid in advance instead of paying monthly rent every month. The recitals
in the lease deed is binding upon the 3rd respondent as the execution of
the said document is not in dispute. Having agreed so, it is not open now
for the 3rd respondent to turn round and say that it was not a lease' but
'licence' and such licence was given to the petitioners to run the theatre
for and on behalf of him. If really the petitioners were permitted to run
the theatre for and on behalf of the 3rd respondent, there was no occasion
for the petitioners to pay such huge amount to the 3rd respondent. On the
other hand, the 3rd respondent himself would have paid amount to the
petitioners for the services rendered by them and the money realised
from the sale of tickets would have been taken by the 3rd respondent. The
stand taken by the 3rd respondent in this regard is wholly untenable and
such a stand is taken to suit his convenience. The 3rd respondent has
admitted that the monthly rental of the premises would be Rs. 8,823.52. ...
It is no doubt true that the lease deed is not registered and it is void. Nonregistration of lease deed does not take away the relationship of landlord
and tenants. Therefore, it is held that the petitioners are statutory tenants
under the 3rd respondent and their possession is lawful. . . . Admittedly,
the theatre is a non-residential building. The monthly rental of the theatre
is Rs. 8,823.52 p.m. for a period of 68 months. Hence, the Karnataka Rent

Sridhara babu. N

Control Act is not applicable. Therefore, for the eviction of the petitioners,
the 3rd respondent has to file a suit for ejection, after determining lease of
the premises. .... The petitioners took possession of the theatre by virtue
of the lease deed, pursuant to which possession was delivered to them.
Thus, they entered into the possession of the theatre lawfully. After the
expiry of lease period, their continuance in possession will not be
unlawful until they are evicted by due process of law as they are the
statutory tenants under the provisions of the Karnataka Rent Control Act.
In this view of the matter, both the impugned endorsement and the order
of the Appellate Authority are bad in law and are liable to be quashed.
R. Sreekanth and Another v The Divisional Commissioner, Bangalore
Division, Bangalore and Others, 2003(2) Kar. L.J. 231.
When a person remains in possession after termination of tenancy, he
becomes statutory tenant. Although he can remain in possession he
cannot enforce the terms of original tenancy. Anand Nivas Private
Limited v Anandji Kalyanji's Pedhi and Others, AIR 1965 SC 414.
There is a distinction between a tenant continuing in possession after the
determination of the term with the assent of the land lord and the tenant
doing so sans his consent. The former is a tenant at sufference and the
later a tenant holding over. Mere acceptance of amounts equivalent to
rent by land lord from a tenant in possession after a lease had been
determined, either by efflux of time or by notice to quit, and who enjoys
statutory immunity from eviction except on well defined grounds as in the
Act. If the tenant asserts that the land lord accepted the rent not as
Statutory Tenant but only as a legal rent indicating his assent to the
tenants continuing in possession it is for the tenant to establish it. Where

Sridhara babu. N

he fails to establish it cannot be said that there was holding over by him.
Bhaitxmji Lakhamshi v Himdatlal Jamnadas Dani, AIR 1972 SC 819.

NOTICE TO QUIT
a)

A notice to quit must be interpreted not with a desire to find flaws

in it which would render it defective, but it must be construed ut res


magis valeat quam pereat. Bhagabandas Agarwala v Bhagwandas Kanu
and Others, AIR 1977 SC 1120
b)

A person in occupation of property under an unregistered but

compulsorily registerable lease does not become a tenant from month to


month and a notice terminating the tenancy under Section 106 of the T.P.
Act, is not necessary. H- Mohammad Khan v H.K. Copal Shetty, 1963(2)
Mys. L.J. 494.
c)

A statutory tenant is not entitled to notice as envisaged by Section

106 if the transfer of property before an action in ejectment is


commenced against him under any of the enabling provisions of the
relevant rent restriction Act. Firm Sardarilal Vishwanath v Pritam
Singh, 1978(2) Kar. L.J. Sh. N. 25 (SC).

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d)

Before maintaining a petition for eviction under Section 21(1) of

the Karnataka Rent Control Act, 1961, it is not necessary for the landlord
to determine the contractual tenancy by issuing to the tenant a notice
under Section 106 of the T.P. Act

Papinayakanahalli Venkanna and

Others v Janadri Venkanna Setty, AIR 1981 Kant. 20 (FB)


e)

In order to get a decree or order for eviction against a tenant under

any State Rent Control Act, it is not necessary to give a notice under
Section 106 of T.P. Act. Determination of a lease in accordance with the
Transfer of Property Act is unnecessary and a mere surplusage, because
the landlord cannot get eviction of the tenant even after such
determination. The tenant continues to be so even thereafter. That being
so, making out a case under the Rent Act for eviction of the tenant by itself
is sufficient and it is not obligatory to find the proceedings on the basis of
the determination of the lease by issue of notice in accordance with
Section 106 of T.P. Act Dhanapal Chettair v Yasoda, 1980(1) Kar. L.J. Sh.
N. 90 (SC).
f)

Ground of Eviction need not be set out in the notice. Reasons

stated in notice does not estop landlord from pleading and proving
another reason. Issue of second notice to quit not necessarily waiver of
earlier notice. See Kamataka Rent Control Act, Sections 11, 21(d) and 26.
Raghavendra v Maratha Co-operative Credit Bank Limited, 1977(1)
Kar, L.J. 382.
g)

It must be deemed that there is due service of the notice of

termination of a tenancy where the letter is sent by registered post, it


being properly addressed, pre-paid and the letter contains the document.
The contrary that is required to be proved to take away the presumption

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is with reference to the four requirements referred to above. It is only to


meet the contingency of a person who is to be served with the notice
trying to evade it, that the service shall be deemed to have been effected if
the four conditions are fulfilled. Section 106 Para 2 does not prescribe
that the notice should be sent by registered post; it could also be sent by
ordinary post. Where the notice is sent under certificate of posting a
presumption arises under Section 114, Evidence Act, that there has been
due service. If tender or delivery to the party is known as impracticable, it
is open to the landlord to adopt the procedure of affixture. Achamma
Thomas v E.R. Fairman, 1969(2) Mys. L.J. 179.
h)

Notice by telegram : A notice through counsel by telegram

determining the tenancy complies substantially with Section 106-


Aldelli Gurusidappa v Veerabhadrappa, 1975(1) Kar. L.J. Sh. N. 76.
i)

Notice terminating tenancy should not be interpreted with

strictness but should receive a liberal interpretation. If the.notice is


sufficient to give impression that the tenancy is terminated at the end of
the tenancy month, the notice is valid Cherilal K. Wadhva v R.
Chandrasekhariah, 1969(2) Mys. LJ. 564.
j)

Person in occupation under an unregistered but compulsorily

registerable lease does not become a tenant from month to month and
notice terminating tenancy is not necessary. V. Ramu v M.V.
Venkatappa, 1971(1) Mys. L.J. 443,
k)

Possession after expiry of lease under unregistered deed notice to

quit not necessary. Doddappa alias Sidramappa Nagappa Yatgiri and

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Others v Basavanneppa Basappa Chinniwalar, 1978(1) Kar. LJ. 414: AIR


1978 Kant. 140.
l)

So long as there are words in the notice, justifying the view that the

notice itself determined the tenancy, the mere fact that there is no
termination in so many words will not make it any the less a notice under
Section 106. Sheshacharya Balacharya Morab v MaUawwa, 1965(1)
Mys. LJ. 697.
m)

When a suit for eviction and mesne profits was instituted without

giving notice to quit under Section 106 of the Transfer of Property Act
against a tenant in occupation of the rented property after expiry of the
lease the suit would not be maintainable. Such tenant is a tenant holding
over and notice of eviction under Section 106 of the T.P. Act was
necessary. It cannot be said that on expiry of the specified period under
the unregistered Lease Deed executed before the filing of the suit he
became tenant at sufference under Section 111 (a) of the T.P. Act and the
suit was maintainable without notice under Section 106 of that Act.
Satish Chand Makhan v Govardhan Das Eyas, AIR 1984 SC 143
n)

When the defective notice given by the tenant if accepted by the

landlord, it will determine the tenancy. Calcutta Credit Corporation


Limited and Another v Happy Homes (Private) Limited, AIR 1968 SC 471.
o)

When the landlord fails to serve notice under Section 106, it does

not mean that such failure estops him from claiming a decree for eviction
of tenant. Krishanadeo Narayan Aganval v Ram Krishan Rai, AIR 1982
SC 783.

Sridhara babu. N

p)

When the notice terminating tenancy does not grant longer time

for handing over possession, it does not mean that such failure affects the
validity of the termination of the tenancy. Arjunsa Shidramasa Mirajkar
v Ganapatsa Hanmantsa Bakale and Others, 1964(2) Mys. L.J. 164.
q)

Where the monthly tenancy was according to English calendar a

notice to determine possession on or before 30-11-1967 is valid.


Eventhough the quit notice asked the tenant to vacate the house on or
before 30-11-1967, the tenant was entitled to remain in possession till the
midnight of 30-11-1967 and thereafter vacate it and still comply with the
notice to quit. The notice was thus perfectly valid and complied with the
requirements of Section 106 of the T.P. Act Peter Paul Coelho and Others
v Constance D'Souza and Others, 1979(1) Kar. L.J. 219 : AIR 1980 Kant.
28.
r)

When a lease terminates by efflux of time, notice of termination is

not required. See Karnataka Rent Control Act, 1961, Section 31.
Raghunandan Prasad Garg v Sreeramiah Setty and Others, 1970(2) Mys.
L.J. 250.
s)

Where a lease is for a specified term it expires by efflux of time in

view of Section 111(a). Therefore service of a notice under Section 106 is


not necessary for termination of lease. Smt, Shanti Devi v Amal Kumar
Banerjee, AIR 1981 SC 1550.
t)

A notice which is defective may still determine the tenancy if it is

accepted by the landlord. A notice which complies with the requirements


of Section 106 of the Act operates to determine the tenancy, regardless of
the fact whether the party is served with the notice or not or whether the

Sridhara babu. N

party assents thereto or not Calcutta Credit Corporation Limited v


Happy Homes (Private) Limited, AIR 1968 SC 471.
u)

Once a notice is served terminating the tenancy or showing an

intention to quit on the expiry of the period of the notice, the tenancy is
terminated, unless with the consent of the other party to whom the notice
is given the tenancy is agreed to be treated as subsisting. Calcutta
Credit Corporation Limited v Happy Homes (Private) Limited, AIR 1968
SC 471.
v)

Landlord giving first notice to quit on grounds of arrears of rent

tenant fails to vacate and land lord gives second notice after one year and
demands rent for period between 1st and 2nd Notices. In a suit for
eviction land lord claims damages for use and occupation for period
subsequent to second notice. It was held that the first notice was waived
and the land lord had treated the tenancy as subsisting. Tayabali
Jaferbhai Tankiwala v M/s. Ahsan and Compamj, AIR 1971 SC 102.

DENIAL OF TITLE
A person cannot be given the benefit of right to continue as a tenant and
also contest the title of the landlord at the same time. When the tenant
disputes the title of the landlord, irrespective of the technicalities of
Section 106 of the T.P. Act, the landlord should be entitled to possession.

Sridhara babu. N

Rachavva and Another v Kariyappa Siddappa and Another, 1981(1)


Kar. L.J. 186.
The experience shows that in many HRC cases, tenants take up a plea of
denying the title of landlords and also set up title in themselves.
Ultimately, those contentions are found to be baseless. These pleas are
taken up in most cases only to prolong the litigation and as by raising
such a plea, the tenant is not going to lose anything. On the contrary, he
will gain time. The effect of such contentions is that the proceedings get
prolonged. Even after the order of eviction is passed, and sometimes even
during the pendency of the eviction proceedings, suits are filed by the
tenants claiming title in themselves and denying the title of the landlord
and even setting up a title in third parties. In order to curb such ungoing
to cost him with the order of eviction and also to see that the objects of
the Karnataka Rent Control Act are given effect to, it is necessary to make
a provision enabling a landlord to make it a ground for eviction in the
event the denial of title of the landlord by the tenant is found to be not
bona fide even if such a denial is made in the objection to the eviction
petition filed under Section 21(1) of the Karnataka Rent Control Act.
Smt. Govindamma v Murugesh Mudaliar and Others, ILR1990 Kar. 2639
(DB)

MANUFACTURING PURPOSE AND LEASE PERIOD


To constitute 'manufacture' there must be such transformation in the
change out of which a new and different article must emerge having a
distrinctive name, character or use. Generally coffee includes coffee

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powder. When coffee seeds are powdered without adding anything more,
the resulting powder cannot be said to be another article with a
distinctive name, character or use. The process out of which coffee seeds
are converted into powder is not 'manufacture'. Where the tenant had
taken the premises for grinding coffee seeds into powder and selling
them, he cannot be said to be engaged in the manufacture of coffee
powder and notice to quit giving 15 days time is sufficient. Meghraj v
Seshagiri Rao B., AIR 1977 Kant. 163
To be understood in popular sense in accordance with meaning in
dictionary Mere running of printing press cannot tantamount to
engagement in process of manufacturing. Held: The expression
'manufacturing purpose' as used in Section 106 has to be understood in a
popular sense in accordance with the meaning given in the Dictionaries.
Therefore, the said expression cannot be construed keeping in view the
special definition set out to those expressions in special statutes like
Factories Act. According to the Dictionary meaning, the word
'manufacture' implies a change. But every change is not manufacture. For
identifying a given change in an article as manufacturing, there must be a
transformation, a new and different article must emerge having
distinctive name, character or use. Keeping in view the facts of the
present case, mere running of a printing press cannot tantamount to an
engagement in any process of manufacturing though the process of
printing results in some change on the paper surface over which the
printing is done. Virupakshaiah alias Veeraiah v Shivaputrappa
Basappa Golappanavar, 1996(5) Kar. L.J. 53B.

Sridhara babu. N

A lease of premises for carrying on business of retreading of tyres is not a


lease for a manufacturing purpose, within Section 106 of the Transfer of
Property Act. The broad test for determining whether a process is
manufacturing process if whether it brings out a complete transformation
for the old components so as to produce a commercially different article
or commodity. Retreading process does not cause the old tyres to lose its
original character. Definitions of manufacture in other enactments such
as the Factories Act or the Excise Act should not be blindly applied to the
Transfer of Property Act. P.C Cheriyan v Darfi Devi, 1979(2) Kar. L.J. Sh.
N. 99 (SC).
When a lease is granted, the test to ascertain whether the lease is granted
for manufacturing process, the following points should be noted.
1. There must be evidence that a certain commodity was manufactured;
2.

That the process of production must involve either labour or

machinery;
3. That the product which comes into existence after the manufacturing
process is complete, should have a different name and should be put to a
different use.
where lease was granted for running a flour mill wherein wheat waft
transformed by manufacturing process which involved both labour and
machinery, into flour it was held that all the three tests were fully
satisfied and hence the lease was one for manufacturing process and
could be terminated by giving 6 months notice under this Section.
Idandas v Anant Ramchandra Phadke (dead) by LRs., AIR 1982 SC 127

Section 106 The lease deed was silent in regard to the purpose for
which the premises was leased. It showed that what had been leased was

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shop premises. It did not say that what had been leased was a workshop
premises. The word "Shop" ordinarily indicated that it was a place for
buying and selling goods. The Court below rightly came to the conclusion
that the lease was not for a manufacturing purpose, though the Appellant
infact might have used the premises for a manufacturing purpose a couple
of years after the premises was leased to him. As the lease was not for a
manufacturing purpose, the notice of 15 days given in the case was
proper and valid in Law. Vittal Narayana v Channappa, 1973(2) Mys.
LJ. Sh.N.12.

Where the lease was taken for carrying on bakery and saw mill business,
if a lease for manufacturing purpose and the notice of termination require
is of 6 months duration. Notwithstanding what is contained in Section
107, the Provisions of Sec. 106 of the Act will apply to a manufacturing
lease, whether the lease deed is registered or unregistered, so as to make
it a lease from year to year for the purpose of that Section, (i.e) to control
duration of the period of the notice. Rev Fatner John Augustine Peter
Miranda v N. Datha Naik, 1971(2) Mys. LJ. 204

RELATIONSHIP OF TENANT AND LANDLORD

The H.R.C. Tribunal has given a finding that there is no relationship of


landlord and tenant in the earlier proceedings between the same parties.
Subsequent thereto the present suit came to be filed and the finding given

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by the H.R.C. Tribunal has become final and conclusive. Therefore, when
on the question of legal-jural relationship between the parties competent
Court of law has already given a verdict, despite the said verdict if plaintiff
were to repeat and describe the relationship as landlord and tenant it
would be only a contention without legal basis and non-description of the
defendant's position as that of a trespasser also does not appear to be a
fatal one since the suit is based on title and if some other person is in
possession the owner of the property can always maintain a suit for
possession basing on the title. Hence, under the circumstances suit is
maintainable. M.S. Narayana Rao v S.K. Pundareeka, 2001(3) Kar. LJ.
339A (DB).

ATTORNMENT TO SUBSEQUENT LANDLORD


The month of tenancy was from 27th of each month and was to expire on
27-7-1974. Respondent purchased the property on 17-4-1967 and the
tenant attorned to the purchaser. Held, attornment implies a continuity of
tenancy created by the original landlord in favour of the tenant and the
month of tenancy does not get altered. Therefore, the notice to quit issued
by the purchaser requiring the tenant to quit and deliver possession on
the expiry of 16-11-1967 on the basis that the tenancy was from the 17th
of each month by virtue of the attornment was not according to law and
the purchaser acquired no right to evict the petitioner. As a purchaser
with knowledge of the petitioner being in possession as tenant, the
respondent was bound by the terms of the lease. Karupakale R.
Govindiah v C. Veerabhadriah, 1974(2) Kar. LJ. Sh. N. 135.

Sridhara babu. N

Where sale of a tenanted premises recited that vendor has attorned the
tenants to the purchaser and the tenant attested the sale deed, it was held
it proved attornment of tenancy to the purchaser. Sohanraj v Kanyalal
Daga, 1979(1) Kar. L.J. Sh. N. 45.
Rights of lessor's transferee to rent Transfer of property by lessor
without notice to lessee creates no privity of estate between lessee and
transferee Attornment of tenancy is legal pre-condition in case of
transfer of property, if contract of lease is to be created between lessee
and transferee If lessee, not having notice of transfer, had paid rent to
lessor even after transfer, lessee shall not be liable to pay such rent over
again to transferee. Attornment of tenancy is a legal precondition in cases
where changes take place with regard to the transfer of ownership. The
tenancy is a legal obligation between two parties and if a new person
comes into the shoes of the landlord, it is very necessary that notice of
this fact be given to the opposite party and that the tenancy be attorned.
In the absence of this being done, the right on the part of the new landlord
to demand and receive the rent cannot be enforced. . . . The record clearly
indicates that the petitioner had no notice of the change of ownership nor
was the tenancy attorned. . . . The decree passed against the petitioner is
vitiated in so far as it is impermissible to sustain that decree both on facts
and in law. T. Ratna Pandyan v P. Subramanyam Chetty, 1997(2) Kar.
L.J. 365.

PERMANENT LEASE

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A lease of 1914 for erecting a factory and appurtenant buildings stated: it


was to be for a term of 20 years certain, on payment of Rs. 350 as annual
rent; even though the lessee may not continue to occupy the land, the
lessee was granted the right to continue the lease as long as he desired to
do so; on his choosing to continue to enjoy the leasehold, the lessee was
obliged to pay annually the enhanced rent of Rs. 400 for the next ten years
after October 1,1934, and after the expiration of ten years, the rent was
further enhanced to Rs. 500 per annum; the lessee was given the option to
give up the lease at any time after October 1, 1934 without further
liability; the lessor bound himself not to call upon the lessee at any time to
give up possession of the leasehold as long as the lessee was prepared to
observe the terms of the lease. The lease was heritable and assignable.
Held, the lease was intended to create a permanent lease and after the
lapse of the first 20 years did not become a tenancy at will or even one for
an indefinite term and therefore a lease for the lifetime of the grantee.
Where land is let out for building purposes without a fixed period, the
presumption is that it was intended to create a permanent tenancy. This
presumption was not weakened by the fact that the lessee had stipulated
to be entitled to give up possession if and when he decided to do so. It was
an advantage specifically reserved to the lessee and did not confer any
corresponding benefit on the lessor. That the lease was not intended to be
for the life only of the grantee was clear not only from the facts, that it was
meant for building purposes, was heritable and assignable and had*not
reserved any right to the lessor to terminate the tenancy, but also from
the consideration that the lessor would not gamble upon the life of his
lessee when he was making sure of the term of at least 20 years.
Sivayogesivara

Cotton

Press,

Davangere

and

Panchaksharappa and Another, 1961 Mys. L.J. 1043 (SC).

Others

M.

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No permanent lease could be granted either orally or even by means of an


unregistered deed. Once it is held that the lease as a permanent lease is
invalid, then that lease will have to be treated as a precarious lease.
Where a lease is invalid (by reason of absence of a registered instrument
as required by Section 107 of the Transfer of Property Act), the fact it is
invalid in law is a matter which the lessee must be presumed to know and
he is not entitled to compensation for the permanent structure erected by
him. He is only entitled to have it removed. Rama Devadiga v Ganapami
Karantha, 1962 Mys. L.J. 861: ILR 1962 Mys. 250.

UNLESS THE LEASE IS DETERMINED IN ONE OF THE BODIES UNDER


SECTION 11 OF T.P. ACT, THE LANDLORD WOULD NOT BE ENTITLED
FOR RECOVERY OF POSSESSION
Section 21 Karnataka Rent Control Act refers to recovery of possession of
any premises by the landlord, before the landlord approaches the Rent
Control Court under Section 21(1), it is necessary that he should be
entitled for recovery of possession. Unless the lease is determined in one
of the bodies under Section 11 of T.P. Act, the landlord would not be
entitled for recovery of possession, hence an action under Section 21 Rent
Control Act cannot be instituted without first determining the lease.
Church of South India Trust Association v Sampangiraman, 1979(1) Kar.
LJ. 85.

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CONTRACTUAL TENANCY CONTRACT TO CONTRARY


Section 106 of the T.P. Act applies to a contractual tenancy, though
governed by Rent Control Act. Bhaiya Punjalal Bhagwanddin v Dave
Bhagwatprasad Prabhuprasad and Others, 1962 Mys. LJ. 712 (SC).
When the compromise petition which was incorporated in compromise
decree provided that the transferee should collect arrears of rent due, it is
a contract to the contrary and hence the transferee is entitled to arrears of
rent due before transfer. Girdharilal (dead) by L.Rs. v Hukum Singh,
AIR 1977 SC 129.
Second para of Section 110 though refers to a lease for a year or number
of years, principles reflected therein will apply even when time limited by
lease is a month or a week or a number of months or weeks Whether
the tenancy is for year/s or month/s or week/s, principles contained in
para 2 would be subject to an agreement to the contrary Where the
duration of lease was for period from 1-11-1974 to 31-1-1975, tenancy
holding over was held to commence from 1-2- 1975 and such tenancy
would be from month to month and that it should be terminated at the
end of the month of the tenancy Case-law discussed. S.P. Gurjar v
Muddanna Shetty, 1990(2) Kar. L.J. 213 : ILR 1990 Kar. 3099.

RENT ACCEPTANCE WAIVER OF NOTICE

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The lessee was holding certain land of lessor for running a mill since
1905. In 1936, the lessee transferred his rights to a Company. In the lease
deed there was not only an express clause under which the lessee was
entitled to remove the stocks and materials within 4 months after the
termination of the lease but thereafter there was another stipulation that
in case the lessee failed to do so, all the buildings etc., would become the
property of the lessor. The lessor sent to the Company a notice
terminating the lease deed on the ground of breach by the Company of
certain covenants contained therein. The time was allowed to the
Company for the removal of machinery stores etc. The Company,
however, secured an order from a Civil Court prohibiting the lessor from
ejecting it. In land acquisition proceedings at the instance of Company for
its own purpose, the questions were whether there was waiver of notice
by acceptance of rent by landlord, whether there was forfeiture of
tenancy under Section 111(g) of the T.P. Act and whether there was
compliance with Section 114-A of the T.P. Act. The Supreme Court held
that there was no waiver of notice. When there was no evidence to show
that the rent was accepted at any time after the notice was given to
Company, and secondly as the rent was accepted by lessor under protest,
it could not amount to waiver because there was no intention on the part
of the lessor to treat the lease as subsisting. Basant Lal (dead) by L.Rs.
and Another v State of Uttar Pradesh and Another, AIR 1981 SC 170
When the permanent lease is void for want of sanction, acceptance of rent
by landlord makes the tenant a monthly tenant. Non mention of year in
the notice can be reasonably construed. Where the intention was clear,
not stating that the tenancy is terminated not material. 1973(2) Mys.
L.J. Sh. N. 300.

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TRUST PROPERTY
When there are several trustee landlords one of them can terminate
tenancy 1962 Mys. LJ. 57.
LEASES OF INDEFINITE PERIOD
The rule of construction embodied in Section 106 of the T.P. Act is
applicable not only to express leases of indefinite period but also to leases
implied by law which may be inferred from possession and acceptance of
rent and other circumstances. Ram Kumar Das v Jagdish Chandra Deo,
Ohabal Deb and Another, AIR 1952 SC 23

LESSEE AND THE ASSIGNS


Where the lease is with the lessee and the assigns, the lessee and assigns
being called lessees, the lease permits sub letting, and consent is lessor is
not necessary for sub letting. 1964 Mys. L.J. Supp. 112.
In the case of a lease there is privity of contract between the lessor and
the lessee and the lessee cannot divest himself of his liability to the lessor
by merely making an assignment of the lease. Assignment of the lease
may result in primity of estate between the assignee and the lessor
inconsequence of which both the assigning lessee and assignee become
liable to the lessor for the payment of rents. Devidasa Bhatta v B.
Ratnakara Rao and Another, 1965(1) Mys. L.J. 731.

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The words "Such consent, however, not to be unreasonably withheld in


the case of respectable or responsible persons" contained in the covenant
in a lease allowing the lessee to assign his interest only with the lessor's
written consent does not amount to a separate or independent covenant
by the lessor that he would not refuse consent except upon reasonable
grounds in the case of respectable person, but they limit or qualify the
lessor's covenant not to assign the defined premises without the consent
in writing of the lessor. Kamala Ranjan Roy v Baijnath Bajoria, AIR
1951 SC 1
When the entire interest in land is transferred by lessee with reservation
to take back' possession on failure of transferee to discharge lessee's
liability towards lessor within stipulated time and the lessor accepts part
payment from transferee without recognising him as debtor, the lessee
has right to recover possession according to agreement between the
lessor and the lessee. Parkash Chand Khurana v Hamam Singh, AIR
1973 SC 2065.
When the tenant has sublet the premises and the subtenant caused
material damage to building, the landlord can evict the tenant on the
grounds that the subtenant has caused damage to the building. There is
no privity of contract between landlord and subtenant. The tenants
obligation to maintain the building in good condition continues even after
creation of sub-tenancy. The tenant is responsible for wrong acts of
subtenant and so liable to be evicted for damage caused by subtenant
M/s. Laxmi Narain Gauri Shankar v Gopal Krishan Kahoria and Another,
AIR 1987 SC 8.

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LEASE BY AFFLUX OF THE TIME


Where the tenant did not vacate the premises on the expiry of the lease by
afflux of the time under Section 111(f), T.P. Act, and the case is governed
by the provisions of the T.P. Act, the continuance in possession of the
tenant after the expiry of the lease is unauthorised and wrongful and a
decree for damages are mesne profits is rightly awarded against him.
Shyam Charon v Sheoji Bhai, 1978(1) Kar. LJ. Sh. N. 10 (DB).

CLAIM OF TITLE IN HIMSELF ON THE PART OF THE LESSEE


Where the very case of the landlord is based on a contractual tenancy, it
must be determined by a notice in accordance with Section 106, T.P. Act,
for the landlord to earn the right to obtain possession of the leased
premises under the Rent Control Act. This point was allowed to be taken
in revision for the first time. Claim of title in himself on the part of the
lessee would not ipso facto put an end to the lease. It confers a right on
the lessor, if he so elects, to determine the lease by a notice as required by
Section 111(g) of T.P. Act. Dyamappa Butti v Somappa, 1968(1) Mys. LJ.
221.

NOTICE CLAIMING RENT AT THE ENHANCED RATE


If a notice claiming rent at the enhanced rate is given by a landlord to his
tenant giving him the option to vacate in case he is unwilling or unable to
pay the enhanced rent and the tenant continues to be in occupation of the

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premises without protest, the landlord would be entitled to recover rent


at the enhanced rate, unless the Court finds that the enhanced rate is itself
unreasonable or penal. Where a tenant denied the right of the landlord to
enhance the rent unilaterally and refused to pay enhanced rent and the
landlord did not take steps to evict the tenant, the tenant is not liable for
the enhancement. The landlord could not unilaterally determine what is
the fair or reasonable rent for the premises and claim it from the tenant
so long as the relationship of landlord and tenant between them had not
come to an end. J.P. Sagar v State of Mysore, 1964 Mys. L.J. Supp. 605.

NOTICE IN THE ORIGINAL WRITTEN LEASE COULD NOT BE IMPORTED


INTO THE NEW TENANCY CREATED BY HOLDING OVER
A lease of a premises for a period of 10 years on an annual rent of Rs. 100
expired on 15-10-1958. The lease provided that if after five years from
the date of the lease the landlord wants the premises for constructing a
house for his own use he should ask for the premises after giving the
tenant six months' notice. That occasion did not arise and the tenant
continued in possession even after the expiry of the period of lease. On
15-10-1965 the tenant agreed to pay enhanced rent of Rs. 125 per year
and an endorsement was made on the original lease deed. On 19-5-1969
the landlord served notice on the tenant to surrender possession after six
months. On the expiry of the period of six months, the tenant refused to
surrender possession. Held, (1) The notice issued was not in accordance
with the terms of the lease. (2) That the term as to notice in the original
written lease could not be imported into the new tenancy created by
holding over and the necessary consequence was that the notice issued by

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the landlord was invalid. E. Keshavayya v R, Namsimha Prabhu,


1975(2) Kar. L.J. 232 : AIR 1976 Kant. 41.

LEASE OF FISHERY
A lease of fishery which is immoveable property as defined by Section
2(6) of the Registration Act, if it is for any term exceeding one year or
reserves a yearly rent should be registered by Section 17(l)(d) of the
Indian Registration Act, 1908 and Section 107 of the Transfer of Property
Act. Bihar Eastern Gangetic fishermen Co-oper.ative Society Limited v
Sipahi Singh, AIR 1977 SC 2149.

ALTERING EXISTING REGISTERED LEASE DEED


Any agreement which alters the essential terms and conditions of an
existing registered lease must be registered. Sunil Kumar Roy v M/s.
Bhaiura Kankanee Collieries Limited, AIR 1971 SC 751.

HEREDITABILITY OF TENANCY OF INDEFINITE TERM


The Courts in India cannot apply the principle of Law that if the term
mentioned in a lease is definite the interest of the lessee is heritable and if
the term mentioned is indefinite, the interest of the lessee is not heritable.
Whether the interest is heritable entirely depends on the wordings of the
document and the intention of the parties. Narayan Narasimha
Deshpandey v Kasiroya Sangappa, 1960 Mys. L.J. 530.

Sridhara babu. N

LEASE OF IMMOVABLE PROPERTY FOR PERIOD NOT EXCEEDING ONE


YEAR
Registration and attestation of lease deed not required Examination of
attestor not required to prove execution of such deed. Held: Section 107
of the Transfer of Property Act deals with the procedure as to how leases
have to be made. Section 107 does not require attestation of a lease not
exceeding one year. When the lease deed requires no attestation, Section
68 of the Evidence Act will not be applicable and lease deed could be
proved by examining the scribe as done in this case. T. Anthonidas alias
T.A. Das v S.P. Mariyappa, 1996(3) Kar. LJ. 329A.

Lease of immovable property from year to year Mandatory that such


lease should be by registered instrument Where it is not so made, tease
is to be taken as monthly lease for purpose of Section 106 of Act. Held:
Under Section 107 of the Act, it has been provided that a lease of
immovable property from year to year or for any term exceeding one
year, or reserving a yearly rent, can be made only by a registered
instrument. In view of this statutory provision, it was mandatory to
execute a registered instrument, if the tenancy was contemplated to be
annual in nature. In the present case, since admittedly it was not made by
a registered instrument, the lease cannot be taken to be an annual lease.
Therefore, necessarily it has to be taken as a monthly lease for the
purpose of Section 106 of the Act. Virupakshaiah alias Veeraiafi v
Shivaputrappa Basappa Golappanavar, 1996(5) Kar. L J. 53A.

Sridhara babu. N

VOID LEASE REGISTRATION COMPULSORY


Where a verbal agreement was made for the grant of a lease for 5 years
and in anticipation of execution of a lease deed, the lessee was put in
possession by the lessor who received 3 months rent as advance but no
lease deed was executed, it was held that lease was void because of the
prohibition under this Section. National Textile Corporation Limited v
Malathesha Enterprises and Another, 1980(2) Kar. LJ. 335.

When there is a lease agreement in respect of a building for indefinite


period for carrying on business in which the rent payable by the lessee is
agreed to be settled on basis of percentage of profits earned after 15
months from commencement of lease. The lease is evidenced by
unregistered document. It was held that the lease was one for a period
exceeding one year and hence registration was compulsory under Section
107 of the T.P. Act. Delhi Motor Company and Others v U.A. Basrurkar
(dead) by his LRs. and Others, AIR 1968 SC 794.

MULGENI LEASE

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Where a mulgeni lease (in South Kanara District) stated that 'if any timber
trees were cut and removed, the lease was liable to be forfeited and
determined'. Held, this provision indicated that there was a prohibition to
cut and remove timber trees and the lessee had no right in respect of
timber trees. That the lessor has no rights in future growth has been
recognised to be the principle prevailing in respect of trees in South
Kanara in regard to permanent leases. Hence, on the basis of the custom
or usage prevailing, and in the absence of any specific term in regard to
future growth, the tenant would be entitled to rights in trees of
spontaneous growth or that came to be planted after the date of the lease
deed : and the landlord would have no right to interfere with the right of
tenant to such tree. Seethamma v Louis Patroo, 1975(1) Kar. LJ. Sh. N.
36.
According to the terms of the mulgeni instrument, the tenant had a right
to continue to be in possession of the property from generation to
generation, the landlord having no right to resume the land. The only
right reserved for the landlord was the right to recover the rent as and
when it fell due and to recover it by the enforcement of a charge, which
had been created on the property, leased to the tenant. The only process
by which the landlord would perhaps be entitled to recover possession of
the land was when there was a reversion to him of that land by reason of
the death of the tenant for the time being, who left no heirs and died
intestate. The tenant cut and removed five trees, which were in existence
at the time of the lease. Held, (1) A lessee has no right to cut or destroy
trees which existed on the leased premises when the lease was created,
but that trees which have subsequently been planted on the premises by
the lessee or which have spontaneously grown after the commencement
of the lease may be so removed or cut by him. (2) The value of the trees

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removed would not represent the correct measure of damages, as the


landlord had no right to the immediate possession of the land or to the
trees. The measure of damages must rest on the dimunition in the value of
the reversion and the dimunition in the security. The proper damages
would be to estimate the diminution in the value of the property and
deduct from it a discount for immediate payment. Madhwaraya Udpa v
Dasa Tantri, 1963(2) Mys. LJ. 416: AIR 1964 Mys. 179.

PUTTING UP FIRST FLOOR ON TERRACE BY LESSEE


Lessee running business of manufacturing vermicelli using terrace
portion for drying vermicelli Lessee commenced putting up first floor
on terrace Lessee obtained an order of temporary injunction
Contended that lessor had not reserved right of re-entry and thus had no
right to put up 'building' on thereof Rights of lessor. Held, The view
that roof is not included in the definition of 'building' appears to prima
fade wrong. The terrace is the top portion of the roof. Merely because the
landlord has not reserved the right of re-entry, it does not mean that he
has no right to put up the first floor. His right to put up first storey on the
terrace of the building cannot be defeated only in the ground that he has
not reserved the right of re-entry. If interference does not affect the object
of the lease for which it is taken, then it cannot be said to be an
interference with the quiet enjoyment of the building. Salauddin v
Bommegowda, ILR 1985 Kar. 2959.

TERM OF LEASE

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When lease is made for a specified term a third person gets into
possession under title alleged to be derived from the lessee under certain
transfers. Lessor questions the validity of the Transfer and sues the third
person for possession. HELD, lessor cannot succeed till the expiry of term
of lease Parashram Mahadeo v Rajen Textile Mills (.Private) Limited,
AIR 1975 SC 2079.

COURT IS NOT AT LIBERTY TO BREAK UP THE CONTRACT


When the premises are let for residential and non-residential purposes,
the contract of tenancy should be deemed to be single and indivisible. The
Court is not at liberty to break up the contract. That the relief should be
limited to that portion which is used for residential purposes is not valid.
Miss S. Sanyal v Gian Chand, AIR 1968 SC 438.

ACCESSION TO ADJOINING AREA OF LEASED PROPERTY


Encroachment by tenant during tenancy upon landlord's vacant land
adjoining tenanted premises Presumption is that land encroached
upon are added to tenure for benefit of tenant so long as tenancy
continues Tenant cannot acquire title to encroached land by adverse
possession but obtain only right of tenancy under landlord Tenant is
obliged to hand over encroached area also to landlord on determination
of lease along with premises originally demised. Held.There is a
presumption that whenever a lessee or a tenant encroaches upon the

Sridhara babu. N

adjacent area to his leased or tenanted premises, then such encroached


area or premises or property, also gets included as the 'Leased or
Tenanted' property and the tenant is obliged to protect the landlord's
rights in respect of the encroached area also, and deliver up unto the
landlord at the end of tenancy the said encroached area alongwith the
original tenanted or leased area. . . . The open space on the northern and
eastern side of the leased portion prima facie belong to the landlord. This
disputed vacant land is also to be considered as tenanted property. If it is
held as a tenanted property then the relationship of the petitioner in
respect of the disputed property is also to be held as one of landlord and
tenant. In that view the petition under Section 21(1) is maintainable for
eviction. Syed Nazmuddin v N.S. Krishna Murthy, ILR 1998 Kar, Sh. N.
65.

When the lessee claims accession to lease hold land and makes
contradictory pleas in the alternative, the claim for accession of land by
the lessee cannot be sustained. Chapsibhai Dhanjibhai Dand v
Purushottam, AIR 1971 SC 1878.

ACT OF COURT SHALL NOT INJURE ANY ONE


Section 108(e) Kamataka Rent Control Act, 1961, Sections 21(l)(h) and
(j), 25, 26 and 27 Lease and right of re-entry Termination of lease
not automatic when leasehold is destroyed It is at option of lessee
Right of entry under Rent Control Act is traceable to provisions of Section
108(e) of Transfer of Property Act Interest of tenant does not survive
in case of eviction under Section 21(l)(h) His interest survives in case

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of eviction under Section 21(l)(j) Court has ample power to protect


tenant's interest in case of eviction under Section 21(1 )(j). Held: The
interest of the tenant does not survive in view of the order of eviction
under Section 21(l)(h) of the Act. This power of the Court can be traced to
the analogous rights of the parties that subsists under Section 108(e) of
the Transfer of Property Act. Under general law as codified in the Transfer
of Property Act, the tenant is entitled to treat the lease as subsisting in the
event the landlord of his own accord destroys the tenament. His
remaining in possession of the premises in question would be legal and
the landlord is not entitled to prevent his retaining possession. But in a
case under Section 21(l)(j), such entry and demolition of the tenament
has taken place under the authority of law. The authority of law conferred
on the landlord permitted him to enter into the leasehold property, pull
down the building only on his undertaking to reconstruct the same. If he
abuses this permission, namely, fails to honour his undertaking, his
remaining in possession of the premises after demolishing the building is
tantamount to remaining there without the authority of law. It is as if he
had no permission at all to enter the property and pull down the building.
If that be so, the principle that the act of Court shall not injure any one
should be applied and the Court be empowered to give all directions as is
in law a party is entitled to, so that the parties will be restored to the
position prior to the permission being granted under Section 21(l)(j) of
the Karnataka Rent Control Act. This can be achieved only if permission is
granted to the tenant to resurrect or reconstruct the building that is
demolished by the landlord. If that be so, in a case of eviction under
Section 21(l)(j), the Court has ample power and is bound as well to issue
such appropriate directions to meet the ends of justice which will enable
the tenant to reconstruct the building as well. Baburao Ganpatrao

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Tirmalle v Bhimappa Venkappa Kandakur since deceased by his L.Rs.,


1996(2) Kar. LJ. 32F.

TENANT ATTEMPTING TO CARRY OUT REPAIRS TO RENTED SHED AND


PUT UP PERMANENT STRUCTURE WITHOUT LANDLORD'S PERMISSION,
ILLEGAL.
The suit is in between the landlord and tenant. The rent karar was for a
period of 11 months and therefore the defendant's position is that of a
tenant holding over. Even then if the defendant felt insecurity or wanted
certain repairs to the building as a measure of security, he had every right
to approach the landlord, obtain his permission and put up construction.
There is nothing to indicate in the evidence that defendant at any time
approached the plaintiffs and obtained permission. Section 108(f) of the
Transfer of Property Act provides a remedy in a situation where the
landlord neglects or refuses to effect necessary repairs. Sub-section (h)
empowers him to remove such fixtures even after the determination of
the lease subject to the condition that he leaves the property in the state
in which he received it. These things and the question of law on the point
have been ignored by the Appellate Court in considering the evidence
both oral and documentary. It is an error in law and defect in procedure
which requires to be corrected in appeal. Noorulla Amin Musuba and
Others v Chandru Sheniyar Naik, 1996(6) Kar. LJ. 275D.

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LESSOR IS ENTITLED TO REMOVE COMPOUND WALL PUT UP WITHOUT


HIS CONSENT.

Even to effect repairs the tenant is expected to give notice to the landlord.
In the instant case the appellants have not even bothered either to
intimate the landlord or obtain necessary permission for the purpose of
erection of compound. Further, the appellants also never bothered to
know from the landlord regarding measurement of the premises bearing
No. 17. Further, the appellants are also not able to establish that they had
put up the compound within the premises bearing No. 17. Under these
circumstances the Trial Court is justified in not exercising its discretion in
the matter of granting injunction in favour of the appellants. .... The Trial
Court having considered all the materials placed before it declined to
grant injunction in favour of the appellants. If that is so, there is no reason
to interfere in the order of the Trial Court in these two appeals. The
Home School, Bangalore and Another v M. Shaft Ul Haji and Another,
2001(6) Kar. L.J. 93.

OWNERSHIP/REMOVAL OF BUILDING CONSTRUCTED BY TENANT


DEPENDS ON CONTRACT.
Lease of vacant land Condition permitting lessee to construct building
on leasehold land and requiring him to surrender possession of land with
building on expiry of lease without compensation Ownership of
building vests in lessee so long as lease is subsisting, and on expiry of
lease, it passes on to lessor Matter is one of contract between parties.

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Normally, under Section 108 of the Transfer of Property Act, before the
expiry of the lease, a lessee can remove all structures and building erected
by him on the demised land. All that was necessary for him to do was to
give back the land to the lessor, on the termination of the lease, in the
same condition as he found it. The ownership, therefore, of the building in
this case was not with the lessors but was with the lessees. Under Section
108 of the Transfer of Property Act, there was nothing to prevent the
lessees contracting to hand over any building or structure erected on the
land by them to the lessors without receiving any compensation. In other
words, although under Section 108 the lessees had the right to remove
the building, by the contract they had agreed to hand over the same to the
lessors without the right to receive compensation at the end of the lease,
the matter being entirely one of contract between the parties. Such a
contract, however did not transfer the ownership in the building to the
lessors while the lease subsisted. S. Shivamthan (deceased) by L.Rs. v
S.G. Narayana, ILR1998 Kar. Sh. N. 90.

A lessee who has put up a building with the consent of the landlord on the
leased premises, is not entitled to be compensated for the costs incurred
by him in respect of the structures put up by him, when the tenancy is
terminated and when he is called upon to quit and deliver the possession
of the property to the lessor Mohammad Hayat Sahab v Radhakrishna
Bhaktha, 1968(1) Mys. L.J. 63
Where lessee has agreed to construct building of value of not less than Rs.
15,000/- which at the expiry of the lease was to become the property of
the lessor and the building valued at Rs. 50,000/-, the lessor is entitled to

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building and not merely structures worth Rs. 15,000/-. Y:V. Srinivasa
Murthy by L.Rs. v Pillamnw and Others, 1973(2) Mys. L.J. 399.

When the Lease deed provides for passing of ownership of superstructure


built by lessee to lessor after expiry of tenancy, the lessor is under
obligation to pay certain percentage of market value of structure to lessee
under the agreement. The lessee cannot retain possession until amount is
paid Madan La! v BHai Anand Singh, AIR 1973 SC 721.

The lessor is not debarred from determining the lease or filing a suit for
ejectment merely because the lessee has made construction to the
knowledge of the lessor Jagat Ram Sethi v Rai Bahadur D.D. Jain, AIR
1972 SC 1727.

CHALGENI LEASE
A lessee under a chalgeni lease may, in the absence of a prohibition
contained in the lease itself assign his lease hold interest for the duration
of the term of the lease or the balance of it at the time when the
assignment is made. After the expiry of the term of the lease, the assignee
has no interest subsisting as to entitle him to a declaration of his being a
chalgeni tenant. A renewal of the lease by the tenant holding over and the
landlord receiving the rent, is a renewal of pre existing contractual
relationship, and the benefit of such renewal cannot be claimed by the

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assignee after the expiry of the term. Umamaheshiuara Temple by


Trustee v Leo Cresta, 1966(2) Mys. LJ. 483.

LESSEE FILING SUIT FOR MANDATORY INJUNCTION


Certain part of land was leased to a person. The lease granted a portion of
a land on license to another for a specified period. The license was
terminated after the expiry of the period. The lessee against licensee filed
a suit for mandatory injunction. The licensee claimed to have purchased
the land from the owner. Suit by lessee for possession is maintainable. See
Specific Relief Act, 1963, Section 6. Sant Lal Jain v Avtar Singh, AIR
1985 SC 857.

SUB-LESSEE RIGHTS
Premature surrender of leasehold rights by main lessee and its effect on
right of sub lessee Such surrender does not operate as eviction of sub
lessee It only brings sublessee into direct contact with lessor, making
sub lessee himself main lessee under lessor on terms of existing sublease
If, after such surrender, new lease is entered into with third party, such
third party who has become new lessee, does not step into shoes of his
predecessor lessee who had created sublease and does not ipso facto
become landlord of sub lessee for purpose of evicting sub lessee Where
main lessee, partnership firm, had prematurely surrendered its leasehold
rights after creating sublease, and on such surrender, third party

Sridhara babu. N

individual became main lessee, new lessee does not become landlord of
existing sublessee for purpose of evicting him. Held: It is well established
that the lease is a transfer of interest in immoveable property. Section 105
of the Transfer of Property Act, 1882 provides that a lease of immoveable
property is a transfer of right to enjoy such property made for a certain
time, express or implied, and for consideration. Clause (j) of Section 108
of the T.P. Act, subject to any contract to the contrary, authorizes the
lessee to sublease the whole or any part of his interest in the leasehold
property. .... During the subsistence of the lease, the sublessee in whom
the lessee's interest is vested, acquires right to continue in possession
over the demised premises during the subsistence of the lease. Therefore,
coming to the facts of the present case, but for the surrender of the lease
by the head lessee i.e., the firm, the petitioner was entitled to continue his
possession over the petition premises till 1978 in his own right since the
lease in favour of the firm was for a period of 9 years. . . . .Despite the
above noted statutory provisions and consequent right of the petitioner
flowing there from, the same was sought to be destroyed by the
respondent on the strength of a registered lease deed dated 6-2-1974
obtained from the owner by taking a plea that he had obtained the said
lease on surrendering of its leasehold rights by the firm and thus, he has
stepped into the shoes of erstwhile lessee firm. Thus, according to him,
he has become landlord of the petitioner as defined under Section 2(h) of
the KRC Act. According to the said provision, in respect of a subtenant, the
tenant, who has sublet the premises is the landlord for the purposes of the
said Act.. . .It is no doubt true that the sub lessee's interest being carved
out of lessee's interest, it will, as a general rule, be determined by the
determination of the lease itself. But, determination by surrender of the
lease by the lessee is an exception to this general rule. Surrendering being
a voluntary act on the part of the lessee, the principle that a man cannot

Sridhara babu. N

derogate from his own grant will come into play and the lessee's action
will not be allowed to prejudice the sub lessee. It is this equitable
principle, which has been incorporated in Section 115 of the T.P. Act. By
operation of this statutory provision on surrender of the lease by the
head-lessee, the sub lessee becomes a lessee of the lessor on the terms of
the sublease. Thus, the under lessee, by operation of law is brought into
direct contact with the lessor, except where surrender is made by the
head lessee for obtaining new lease. .... .The plea raised by the respondent
is that before the lease was granted to him on 6-2-1974, the firm had
expressly or impliedly surrendered the lease granted in its favour. If that
be so, then by operation of the statutory provisions under Section 115 of
the T.P. Act, the petitioner being the under lessee, himself became the
head lessee under the Math. Therefore, there could not have been any
occasion for granting any competing lease to the respondent in respect of
the petition premises. For this reason, it has to be held that respondent at
no point of time, became the landlord of the petitioner for the purpose of
the K.R.C. Act entitling him to maintain any eviction proceedings there
under against the petitioner. Krishnasa Kheerasa Habib v Shah
Parasmal Pittaji Jain, 2000(1) Kar. LJ. 12.

THE TENANT IS NOT ENTITLED TO SUSPEND PAYMENT OF RENT


When landlord fails to give possession of one out of three bed rooms of
demised premises, the tenant is not entitled to suspend payment of rent,
but he must pay proportionate rent. Surendra Nath Bibra v Stephen
Court Limited, AIR 1966 SC 1361.

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PURPOSE OF LEASE
The purpose of lease of certain land was that the premises was not to be
used for any purpose other than the specified purpose. When the tenant
uses the premises for other purpose which is connected with the main
purpose, it could not be said that the premises was used for the purpose
other than that of the lease. The inhibition of Section 108(o) is not
attracted. Jnan Ranjan v Arun Kumar, AIR 1975 SC 1994.

POSSESSION ON THE EXPIRY OF THE LEASE

A condition that the lessee has to put the lessor in possession on the
expiry of the lease is to be read in the lease even in the absence of such
condition. Thayarammal v People's Chanty fund and Others, 1978(1)
Kar. LJ. 438.

FUTURE LESSEE RIGHT TO EVICT EXISTING LESSEE

When the lease is to commence from expiry of the existing lease, the
lessee can sue for eviction of original lessee. The right of transferee under
the Section is not curtailed by Rent Control Act. See Karnataka Rent

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Control Act, Sections 3, 4 and 31. N. Venkataramana Bhat v A. Prabodh


Naik and Others, 1975(1) Kar. LJ. 262.

DETERMINATION OF LEASE
Where a widow having a right of residence in a family house created a
tenancy, such lease stood determined on her death. Section lll(c). See T.P.
Act, Section 6(g). Bhujabalappa Anandappa Baragali and Another v
Veerappa Mahabaleshappa Doddamani, 1966(2) Mys. L.J. 56.
Lease is determined on expiration of notice to determine thereof
Lessee is bound to put lessor into possession of property, on
determination of lease Question of bona fide requirements of landlord
not required to be gone into Provisions of Section 21(1) of Karnataka
Rent Control Act, 1961 regarding eviction of tenant are not attracted
when suit is under Transfer of Property Act and suit premises are situated
in place to which provisions of Rent Control Act do not apply. Held: The
suit instituted by the appellant under the provisions of the Transfer of
Property Act, 1882. The property in dispute is situated in Akki-Alur
village to which admittedly the provisions of the Karnataka Rent Control
Act, 1961 do not apply. Therefore the question of bona fide requirement
of the premises for appellant's use was not a matter that was required to
be gone into. The appellant incidentally or inadvertently referred to the

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requirement of the premises for his bona fide occupation but the
appellant was not required to prove that averment of bona fide
requirement of the premises for a decree of eviction. In a suit under the
provisions of the Transfer of Property Act, 1882 under Section 108 of the
Transfer of Property Act, 1882 under clause (q), on the determination of
the lease the lessee is bound to put the lessor into possession of the
property. Section 111, Transfer of Property Act which deals with
determination of lease states that lease of immovable property
determines on the expiration of a notice to determine the lease, or to quit,
or of intention to quit, the property leased, duly given by one party to the
other. Shantaveerappa Puttappa Chaushetti v Gangaram Hemajeppa
Kalal (since deceased) by L.Rs. and Others, 1996(3) Kar. L.J. 338.

SALE OF AGRICULTURAL LAND - WHERE TENANCY EXISTED


An agreement to sell was executed in favour of the plaintiff, a tenant and
the tenant continued in possession and in execution of a money decree
against the plaintiff-tenant, the property was brought to sale and
purchased by the decree-holder and thereafter the plaintiff brought a suit
for declaring the execution sale as void and not binding on him. No
objections were filed by plaintiff after the notice under Order 21, Rule 66
of the CPC was served on him. Section 28 of the Bombay Tenancy and
Agricultural Lands Act prohibited Sale of tenancy rights. Held, that the
question whether the plaintiff's rights of tenancy in the suit land got
merged in the rights acquired by plaintiff under Section 53-A of the
Transfer of Property Act cannot be raised for the first time in second

Sridhara babu. N

appeal. Since only the right to ask for specific performance had been
acquired by the plaintiff under the agreement to sell and since such right
does not constitute an interest in immoveable property, there was no
merger of the tenancy rights of the plaintiff with the right under the
agreement to sell, under Section 111(d) of the Transfer of Property Act.
Therefore, there was no bar of constructive res judicata to the plaintiff's
suit, which was in respect of his rights as tenant and which were not
brought to sale. The bar under Section 34 of the Specific Relief Act applies
when the plaintiff is entitled to ask for consequential relief but abstains
from doing so. As the plaintiff did ask for the consequential relief of
possession but the Court found that he was not entitled to it, the bar
under Section 34 of the Specific Relief Act did not apply and the plaintiff
was therefore entitled to a declaration that the execution sale was void.
Rangarao Ramarao Deshpande v Channappa Basappa Lakshmanahalli ,
1974(2) Kar. L.J. 208 : AIR 1975 Kant. 155

TENANT PURCHASING LAND FROM ONE OF MEMBERS OF JOINT FAMILY


Lease Determination of Tenant of land forming part of joint family
property purchasing land from one of members of joint family Since
what he has purchased is only undivided share of member in joint
property, he has no right to possession, either exclusive or joint, and
consequently there is no merger of interests of lessee and lessor in
property in himself Lease in such case is not determined. Held: Section
111(d) of the Transfer of Property Act provides that lease of immovable
property determines in case the interests of the lessee and the lessor in
the whole of the property become vested at the same time in one person
in the same right. Therefore, it is clear that it is only in case the interest of

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the lessee and the lessor in the whole of the property stands vested at the
same time in one person in the same right, there would be determination
of lease. In the instant case, where the original tenant has acquired only
one-fifth undivided interest of the lessor, it cannot be said that there is
determination of the lease. If there is no determination of lease, the
agrarian relationship of landlord and tenant continues. In the instant case,
both the original tenant as well as his sons did not seek for partition of
one-fifth undivided interest in the land and take even symbolic possession
of the same. Therefore, the conclusion reached by the Appellate Authority
that since the original tenant had purchased one-fifth undivided interest
in the land in question from the landlord, the petitioners are not entitied
for conferment of occupancy right, is unsustainable in law. The order
impugned is liable to be sot aside. Tukaram Govind Naganvakar
(Deceased) by LRs. and A nother v State of Kamataka and Others, 2001(4)
Kar. LJ. 505C

LESSEE ENTERING INTO CONTRACT FOR PURCHASE


Lessee entering into contract for purchase and entitled to possession
under Section 53-A Lease stands extinguished. Champalal
Bhaktawarmal v Smt. Sumithramma by LRs, 1972(2) Mys. LJ. 242 : AIR
1973 Mys. 110.

For some years prior to 1949 the suit property was let out by plaintiff to
defendant and defendant was running a Hotel. On 19-12-1949, plaintiff
conveyed the suit property to defendant for Rs. 7,000/- with a covenant

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for re-purchase for the same consideration within ten years of the
documents. It is also stipulated that during the period subsequent to
reconveyance, defendant should not be dispossessed for the 10 years
from the date of the sale and that the defendant should be hi occupation
as tenant on the same rent as before. Plaintiff sued for specific
performance of agreement for reconveyance. Held.The transaction of
1949 was a sale and not a mortgage, and it brought about the
extinguishment of the previous lease by merger under clause (d) of
Section 111 of the T.P. Act. The covenant that during the period between
the reconveyance and the expiry of 10 years from the Deed, the defendant
should be in occupation as a tenant should be regarded as an agreement
by plaintiff to grant a lease on the happening of a future contingency and
not as providing for a revival of the previous lease. Further, no deed of
reconveyance having been executed within time, the plaintiff was relieved
of necessity of granting the lease. Hence plaintiff was entitled under the
deed of 1949 to a Deed of reconveyance and to possession Shankara
Rao Rama Rao v Ekiwth Mallappa, RSA No. 360/1963, dated 13-7-1966.

RELINQUISHMENT OF THE LEASE - SURRENDER


A letter by the lessee stating that the leased premises had been kept
vacant does not amount to relinquishment of the lease State of Mysore
v B.R. Ramoo, 1967(2) Mys. LJ. 625.

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Implied surrender determining lease Surrender can be implied from


act of lessee abandoning possession and that of lessor taking over
possession Doctrine of Estoppel is basis of implied surrender One of
joint tenants vacating premises amounts to implied surrender on his part.
Held: Section 111(f) of Transfer of Property Act provides that a lease of
immovable property determines by implied surrender. Surrender can be
implied from such facts as the relinquishment of possession by the lessee
and taking over possession by the lessor. Implied surrender has its basis
on the Doctrine of Estoppel. If a tenant abandons or relinquishes
possession of the leasehold premises and the landlord acting on the basis
of such conduct of the tenant either takes over possession or where the
tenant who has abandoned that premises happens to be one of the joint
tenants does something to his detriment there would be an implied
surrender of the right of such tenant or joint tenant. Akkatai alias
Sujata v Baburao SattappaAngol (dead) by L.Rs. 1995(6) Kar. LJ. 219B.
A waiver is an intentional relinquishment of a known right. There could
be no waiver unless the person against whom the warver is claimed had
full knowledge of his rights and of facts enabling him to take effectual
action for the enforcement of such rights. Associated Hotels of India
Limited v S.H. Sardar Ranjit Singh, AIR 1968 SC 933.

AGREEMENT RESERVING RIGHT OF RE-ENTRY TO LANDLORD RIGHT


DOES NOT AUTHORISE BOARD TO FORCIBLY RESUME POSSESSION

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Determination of By forfeiture Agreement reserving right of reentry to landlord Right does not authorise Board to forcibly resume
possession Possession to be resumed either by initiating proceedings
under Karnataka Public Premises (Eviction of Unauthorised Occupants)
Act, 1974 or by filing suit. Held: The power of re-entry and 'resumption'
that is reserved by the Board in the lease-cum-sale agreement, does not
authorise the Board to directly or forcibly resume possession of the
leased land, on termination of the lease. It only authorises the Board to
take possession of the leased land in accordance with law. In this case,
that can be either by having recourse to the provisions of the Public
Premises Act or by filing a Civil Suit for possession and not otherwise.
M/s. Hanuman Silks and Another v Karnataka Industrial Areas
Development Board and Others, 1996(7) Kar. LJ. 277C

MERE ACCEPTANCE OF RENT FOR AND ON BEHALF OF THE LAND LORD


WILL NOT CREATE A TENANCY BY HOLDING OVER

The Touring Cinema of Respondent 1 was located on a site, which he


obtained under a Lease on 3-1-1979 for 11 months. After the expiry of the
lease, he has been paying rent to the son of the owner til] May, 1980.
When the renewal of the Cinema Licence was sought for, the owner
objected that Respondant 1 had no right to continue in possession.
Respondant No.l had filed a suit against the owner and obtained a
temporary injunction restraining interference with his possession the
District Magistrate granted Renewal of Licence. The same was challenged

Sridhara babu. N

in a Writ Petition. It was held that Respondant No. 1 cannot be said to be


in lawful possession of the site within the Rule 6 of the Cinema Rules. The
temporary injunction only protected Respondant 1 against unlawful
interference by the owner and was not conclusive, much less indicative of
the fact that Respondant No.l was holding over or a person in lawful
possession of the site. There being no evidence that the owner's son was
authorised to receive rents for and on behalf of the owner, nor any
evidence that during the term of the written lease, the son was also
receiving the rent, mere acceptance of rent for and on behalf of the land
lord will not create a tenancy by holding over. Kanthamma v S.A.
Sudarshan and Another, 1981(2) Kar. L.J. 249.

LEASE CONSISTING OF AGRICULTURAL LAND AS ALSO HOMESTEAD.


Main lease consisting of Agricultural land as also homestead. When Sub
lease of homestead only is made all such sub-leases are Agricultural
leases. The question should not be reopened even though the correctness
of the view is open to question. The rule that where terms of Statutes or
ordinance are clear then even a long and uniform course judicial
interpretation of it may be over ruled, if it is contrary to clear meaning of
enactment, is in applicable to decisions on the basis of which titles and
transactions must have been founded. Nirshi Dhobin and A nother v Dr.
Sudhir Kumar Mukherjee and Others, AIR 1969 SC 864.

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ILLUSTRATIONS IN T.P ACT


(a)

A, the lessor, gives B, the lessee, notice to quit the property leased.

The notice expires. B tenders and A accepts, rent which has become due in
respect of the property since the expiration of the notice. The notice is
waived.
(b)

A, the lessor, gives B, the lessee, notice to quit the property leased.

The notice expires, and 6 remains in possession. A gives to B as lessee a


second notice to quit. The first notice is waived.
(c)

A lets a house to B for 5 years. B underlets the house to C at a

monthly rent of Rs. WO/-. The 5 years expire, but C continues in


possession of the house and pays the rent to A. C's lease is renewed from
month to month.
(d)

A lets a farm to B for the life of C. C dies,,but B continues in

possession with A's assent. B's lease is renewed from year to year.

DR. K.A.DHAIRYAWAN & OTHERS VS R.THAKUR & OTHERS - AIR 1958 SC


789 and in the case of SILAMBANI SRI CHIDAMBARA VINAYAGAR
DEVASTHANAM, DEVAKOTTAI THROUGH ITS TRUSTEES VS DURAISAMY
NADAR & ANOTHER - (1967)2 MLJ 181, to contend that the lessee, in the
absence of the contract to the contrary is the owner of the building put up
by him while the lessor continues to be owner of the land and that the
distinct ownership one in the land and another in the building has been
recognized. He further points out by referring to the decision in the case

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of BISHAN DAS & OTHERS VS STATE OF PUNJAB & OTHERS - AIR 1961 SC
1570, that constructions put up by persons who are not the owners can
be removed by procedure known to law and the State to which the land
belongs cannot be said to have acquired rights over the buildings by
reason of they being the owners of the land belonging to the State.

MORTGAGOR, MORTGAGEE, TENANT AND LANDLORD RELATIONSHIPS


UNDER LAW
Carona Shop Co. v. K.C. Bhaskaran Nair AIR 1989 SC 1110

Their

Lordships of the Supreme Court in the said case propounded that under
mortgage deed mortgagee was not entitled to induct tenants who would
continue beyond the term of existence of mortgage or who would be given
rights even after expiry of mortgage. As no landlord and tenant
relationship existed between tenant and mortgagor, tenant was not
entitled to protection of Rent Act.
In Sahadu Bala Botre v. Namdeo Bapuji AIR 1996 SC 1658. Landlord was
mortgagor and the tenant was mortgagee hence it was held that on
redemption tenancy rights sprang up and the tenant could not be
dispossessed physically.
In Mangru v. Taraknathji AIR 1967 SC 1390 the question was whether
mortgagor in possession had power to leave the mortgage property, it
was held that the said question must be determined with reference to the
authority of the Mortgagor.
Chertyan Sosamma v. Sundaressan Pillai S. Amma AIR 1999 SC 947 was
the case where lease existed in favour of the husband of mortgagee. It was

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held that after redemption tenancy will survive as husband and wife are
one.
In Nemichand v. Onkar Lal AIR 1991 SC 2046, the mortgagee was existing
tenant.
The question in the case reported in AIR 1997 SC 208 was as to whether
the mortgagee became tenant under the provisions of Kerala Land
Reforms Act. Hence in the facts and circumstances of the case no physical
possession was handed over on redemption.
Dev Raj Dogra v. Gyan Chand Jain AIR 1981 SC 981 was the case related to
mortgagor's tenants.

In M/s Medan and Co. Versus Wazir Jaivir Chand AIR 1989 SC 630, Apex
Court has held as
under :- "All that a landlord can do to comply with this provision is to post
a prepaid registered letter (acknowledgment due or otherwise)
containing the tenants correct address. Once he does this and the letter is
delivered to the post office, he has no control over it. It is then presumed
to have been delivered to the addressee u/Sec. 27 of the General Clauses
Act. Under the rules of the post office, the letter is to be delivered to the
addressee or a person authorised by him. Such a person may either accept
the letter or decline to accept it. In either case, there is no difficulty, for
the acceptance or refusal can be treated as a service on, and receipt by,
the addressee. In this situation, we have to choose the more reasonable,
effective, equitable and practical interpretation and that would be to read
the words "served" as "sent by post", correctly and properly addressed to
the tenant, and the words "receipt" as the tender of the letter by the
postal peon at the address mentioned in the letter. No other

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interpretation, we think, will fit the situation as it is simply not possible


for a landlord to ensure that a registered letter sent by him gets served
on, or is received by, the tenant."
Har Charan vs. Shiv Rani AIR 1981 SC 1284, "Section 27 of the General
Clauses Act, 1897 deals with the topic-Meaning of service by post and
says that where any Central Act or Regulation authorises or requires any
document to be served by post, then unless a different intention appears,
the service shall be deemed to be effected by properly addressing, prepaying and posting it by registered post, a letter containing the document,
and unless the contrary is proved, to have been effected at the time at
which the letter would be delivered in the ordinary course of post. The
Section, thus arises a presumption of due service or proper service if the
document sought to be served is sent by properly addressing, pre-paying
and posting by registered post to the addressee and such presumption is
raised irrespective of whether any acknowledgment due is received from
the addressee or not. It is obvious that when the section raises the
presumption that the service shall be deemed to have been effected it
means the addressee to whom the communication is sent must be taken
to have known the contents of the documents sought to be served upon
him without anything more. Similar presumption is raised under
illustration (f) to section 114 of the Indian Evidence Act whereunder it is
stated that the court may presume that the common course of business
has been followed in a particular case."
PRINCIPLES TO BE FOLLOWED WHILE DEALING WITH THE SUITS
FOR EJECTMENT

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THE HON'BLE MR. JUSTICE J.R. MIDHA of HIGH COURT OF DELHI in the
case of Sky Land International Pvt. Ltd vs Kavita P Lalwani Decided on 25
May, 2012 After referring SC and DHC decisions deduced Principles to be
followed while dealing with the suits for ejectment in the following
manner:"26. From the analysis of the above decisions and provisions with which
we are concerned, the following principles emerge.
26.1 Upon expiry of the term of the lease or on termination of the monthly
lease by a notice to quit, the lessee must vacate the property on his own
and not wait for the lessor to bring a suit where he can raise all kinds of
contests in order to profit from Court delays.
26.2 Expiry of lease by efflux of time results in the determination of the
relationship between the lessor and the lessee and no notice of
determination of the lease is required. Mere acceptance of rent by the
landlord from the tenant in possession after the lease has been
determined either by efflux of time or by notice to quit would not create a
tenancy so as to confer on the erstwhile tenant the status of a tenant or a
right to be in possession.
26.3 Notice of termination of lease under Section 106 of the Transfer of
Property Act sent by registered post to the tenant is deemed to be served
under Section 27 of the General Clauses Act, 1897 and Section 114 of the
Indian Evidence Act, 1872.
26.4 The object of the termination notice under Section 106 of the
Transfer of Property Act is to communicate the intention of the landlord
that he wants the premises back and to give 15 days time to vacate. Such
notice is not a pleading but a mere communication of the intention of the

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recipient. Such notice is to be liberally construed as the tenants only


right is to get notice of 15 days to vacate. The tenant is under a statutory
obligation to vacate the subject property on the expiry of 15 days of the
notice.
26.5 A suit for ejectment is different from a title suit for possession
against a trespasser. In a suit for possession against a trespasser, title can
be in dispute but in a suit for ejectment against an erstwhile tenant,
ordinarily there is no dispute of title as the tenant is estopped from
denying the landlords title under Section 116 of the Indian Evidence Act.
The dispute is generally on two counts; one, about the assent to continue
after the expiry of the fixed term lease by efflux of time and second, about
the valid termination in case of monthly lease. The tenant resisting the
claim for possession has to plead with sufficiently detailed pleadings,
particulars and documents why he must not be ejected and what right he
has to continue in possession. There is really nothing else to be tried in
such a suit. A suit of this nature can ordinarily be decided on first hearing
itself either on the pleadings and the documents or, if need be, by
examining the parties under Order X of the Code of Civil Procedure or
Section 165 of the Indian Evidence Act.
26.6 A suit for ejectment of a lessee is not a type of a case where by
forging a postal receipt and falsely claiming the issue of the notice to quit,
the plaintiff would gain any particular advantage for he could have always
served a notice and filed a suit three weeks later. On the other hand, by
serving a self-serving denial, the defendant seeks to get an advantage of
dragging the proceedings and continuing to enjoy the property without
having to pay the current market rent. Having regard to the common
course of natural events, human conduct and probabilities, if a notice

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which can be issued and served again without loss of opportunity, the
probability that a person would file a fake proof of sending is nil. On the
other hand, if a notice is of a type which had to be served prior to an event
that has already occurred, and by its very nature cannot be remedied by a
fresh notice, there may be a possibility of it being faked such as a notice
exercising the option to renew lease before its expiry. In that case, the
Court will look at it differently. 26.7 The pleadings are the foundation of
litigation and must set-forth sufficient factual details. Experience has
shown that all kinds of pleadings are introduced and even false and
fabricated documents are filed in civil cases because there is an inherent
profit in continuation of possession. In a suit for ejectment, it is necessary
for the defendant to plead specifically as to the basis on which he is
claiming a right to continue in possession. A defendant has to show a
subsisting right to continue as a lessee. No issue arises on vague
pleadings. A vague denial of the receipt of a notice to quit is not sufficient
to raise an issue. To rebut the presumption of service of a notice to quit,
the defendant has to plead material particulars in the written statement
such as where after receiving the plaint and the documents, the defendant
has checked-up with the Post-Office and has obtained a certificate that the
postal receipt filed by the plaintiff was forged and was not issued by the
concerned Post Office.
26.8 A self-serving denial by the defendant and more so in these types of
cases, cannot hold back the Court from exercising its jurisdiction to
decree a suit under Order XII Rule 6 of the Code of Civil Procedure.
Raising a plea of non-receipt of notice to quit and seeking an issue on it is
obviously to drag on the litigation and keep on holding to the suit
property without having to pay the current market rentals, is not
sufficient to raise an issue and, therefore, liable to be rejected.

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26.9 If such a plea of denial of notice is treated as sufficient to non-suit the


plaintiff, the plaintiff will have serve a fresh notice to quit and then bring a
fresh suit where again the defendant would deny the receipt of notice to
seek an issue and trial. The process would go on repeating itself with
another notice, in fact, repeat ad-infinitum and in this manner, the
defendant will be able to effectively stay indefinitely till the plaintiff
settles with him for a price. The Court cannot remain a silent spectator
and allow the abuse of process of law. The eyes of the Courts are wide
enough to see the truth and do justice so that the faith of the people in the
institution of Courts is not lost.
26.10 In view the amendment brought about to Section 106 of the
Transfer of Property Act by Act 3 of 2003, no objection with regard to
termination of tenancy is permitted on the ground that the legal notice
did not validly terminate the tenancy by a notice ending with the expiry of
the tenancy month, as long as a period of 15 days was otherwise given to
the tenant to vacate the property. The intention of Legislature is therefore
clear that technical objections should not be permitted to defeat the
decree for possession of tenanted premises once the tenant has a period
of 15 days for vacating the tenanted premises.
26.11 A suit for possession cannot be dismissed on the ground of
invalidity of notice of termination because the tenant is only entitled to a
reasonable time of 15 days to vacate the property. Therefore, even if the
notice of termination is held to be invalid, service of summons of the suit
for possession can be taken as notice under Section 106 of the Transfer of
Property Act read with Order VII Rule 7 of the Code of Civil Procedure but
in that event the landlord would be entitled to mesne profits after the

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expiry of 15 days from the date of the receipt of summons and not from
the date of notice of termination.
26.12 The purpose of Order XII Rule 6 CPC is to give the plaintiff a right to
speedy judgment. The thrust of amendment of Order XII Rule 6 is that in
an appropriate case a party on the admission of the other party can press
for judgment as a matter of legal right. If a dishonest litigant is permitted
to delay the judgment on the ground that he would show during the trial
that he had not received the notice, the very purpose of the amendment
would be frustrated.
26.13 Under Section 116 of the Indian Evidence Act, the lessee is estopped
from denying the title of the transferee landlord. Section 116 of the Indian
Evidence Act provides that no tenant of immovable property shall, during
the continuance of the tenancy, be permitted to deny the title of the
landlord meaning thereby that so long as the tenant has not surrendered
the possession, he cannot dispute the title of the landlord. Howsoever,
defective the title of the landlord may be, a tenant is not permitted to
dispute the same unless he has surrendered the possession of his
landlord.
26.14 A lease of an immovable property is determined by forfeiture in
case the lessee renounces his character by setting up a title in a third
person. The effect of such a disclaimer is that it brings to an end the
relationship of landlord and tenant and such a tenant cannot continue in
possession. Section 111(g)(2) of Transfer of Property Act, 1882 is based
on public policy and the principle of estoppel.

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26.15 There is a flood of litigation unnecessarily burdening the Courts


only because obdurate tenants refuse to vacate the tenanted premises
even after their tenancy period expires by efflux of time or the monthly
tenancy has been brought to an end by service of a notice under Section
106 of Transfer of Property Act, 1882. It has become quite common for
the tenants whose tenancy has been terminated to continue the
occupation to drive the landlords to file suits for possession and mesne
profits and thereafter raise false claims and defences to continue the
possession of the premises. The motivation of the tenant to litigate with
the landlord is that he wants to continue the occupation on payment of
rent fixed years ago. The continuation of possession in such cases should
therefore be permitted upon payment of market rent. In that case,
inherent intent of the unscrupulous tenant to continue frivolous litigation
would be reduced to a large extent.
26.16 In all proceedings relating to possession of an immovable property
against an erstwhile tenant, the Court should broadly take into
consideration the prevailing market rentals in the locality for similar
premises and fix adhoc amount which the person continuing in
possession must pay or deposit as security. If such amount, as may be
fixed by the Court, is not paid or deposited as security, the Court may
remove the person and appoint a receiver of the property or strike out the
claim or defence. This is a very important exercise for balancing equities.
The Courts must carry out this exercise with extreme care and caution
while keeping pragmatic realities in mind. This is the requirement of
equity and justice.
26.17 In the last 40 years, a new creed of litigants have cropped up who
do not have any respect for truth. They shamelessly resort to falsehood

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and unethical means for achieving their goals. In order to meet the
challenge posed by this new creed of litigants, the Courts have, from time
to time, evolved new rules and it is now well established that a litigant,
who attempts to pollute the stream of justice or who touches the pure
fountain of justice with tainted hands, is not entitled to any relief, interim
or final.
26.18 False claims and defences are serious problems with real estate
litigation, predominantly because of ever escalating prices of the real
estate. Litigation pertaining to valuable real estate properties is dragged
on by unscrupulous litigants in the hope that the other party will tire out
and ultimately would settle with them by paying a huge amount. This
happens because of the enormous delay in adjudication of cases in our
Courts. If pragmatic approach is adopted, then this problem can be
minimized to a large extent.
26.19 Certain tenants, in this country, consider it an inherent right not to
vacate the premises even after either expiry of tenancy period by efflux of
time or after their tenancy is terminated by means of a notice under
Section 106 of Transfer of Property Act, 1882. Such tenants feel that they
ought to vacate the tenanted premises only when the Courts pass a decree
for possession against them. The tenants who illegally continue to occupy
the tenanted premises by raising frivolous defences should be
appropriately burdened with penal costs.
26.20 Dishonest and unnecessary litigations are a huge strain on the
judicial system. The Courts are continued to be flooded with litigation
with false and incoherent pleas and tainted evidence led by the parties.
The judicial system in the country is choked and such litigants are

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consuming courts time for a wrong cause. Efforts are made by the parties
to steal a march over their rivals by resorting to false and incoherent
statements made before the Court.
26.21 Truth should be the guiding star in the entire judicial process and it
must be the endeavour of the court to ascertain the truth in every matter.
Truth is the foundation of justice. Section 165 casts a duty on the Judge to
discover truth to do complete justice and empowers him to summon and
examine or recall and re- examine any such person if his evidence appears
to be essential to the just decision of the case. The Judge has to play an
active role to discover the truth. He is expected, and indeed it is his duty,
to explore all avenues open to him in order to discover the truth and, to
that end, question witnesses on points which the lawyers for the parties
have either overlooked or left obscure or willfully avoided. The Court can
also invoke Section 30 of the Code of Civil Procedure to ascertain the
truth.
26.22 Unless the Courts ensure that wrongdoers are denied profit or
undue benefit from the frivolous litigation, it would be difficult to control
frivolous and uncalled for litigations. In order to curb uncalled for and
frivolous litigation, the Courts have to ensure that there is no incentive or
motive for uncalled for litigation. It is a matter of common experience that
the Courts scarce and valuable time is consumed or more appropriately
wasted in a large number of uncalled for cases. It becomes the duty of the
Courts to see that such wrong doers are discouraged at every step and
even if they succeed in prolonging the litigation, ultimately they must
suffer the costs. Despite settled legal positions, the obvious wrong doers,
use one after another tier of judicial review mechanism as a gamble,
knowing fully well that the dice is always loaded in their favour, since

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even if they lose, the time gained is the real gain. This situation must be
redeemed by the Courts.
26.23 Imposition of actual, realistic or proper costs and or ordering
prosecution would go a long way in controlling the tendency of
introducing false pleadings and forged and fabricated documents by the
litigants. The cost should be equal to the benefits derived by the litigants,
and the harm and deprivation suffered by the rightful person so as to
check the frivolous litigations and prevent the people from reaping a rich
harvest of illegal acts through Court. The costs imposed by the Courts
must be the real costs equal to the deprivation suffered by the rightful
person and also considering how long they have compelled the other side
to contest and defend the litigation in various courts. In appropriate cases,
the Courts may consider ordering prosecution otherwise it may not be
possible to maintain purity and sanctity of judicial proceedings. The
parties raise fanciful claims and contests because the Courts are reluctant
to order prosecution."
REFERRED DECISIONS
A status of a tenant at sufferance has been explained by the Supreme
Court in R.V. Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140.
The Court held as under:- "8. Tenant at sufferance is one who comes into
possession of land by lawful title, but who holds it by wrong after the
termination of the term or expiry of the lease by efflux of time. The tenant
at sufferance is, therefore, one who wrongfully continues in possession
after the extinction of a lawful title. There is little difference between him
and a trespasser. In Mulla's Transfer of Property Act, (7th Edn.) at page
633, the position of tenancy at sufferance has been stated thus : A tenancy

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at sufferance is merely a fiction to avoid continuance in possession


operating as a trespass. It has been described as the least and lowest
interest which can subsist in reality. It, therefore, cannot be created by
contract and arises only by implication of law when a person who has
been in possession under a lawful title continues in possession after that
title has been determined, without the consent of the person entitled. A
tenancy at sufferance does not create the relationship of landlord and
tenant. At page 769, it is stated regarding the right of a tenant holding
over thus : The act of holding over after the expiration of the term does
not necessarily create a tenancy of any kind. If the lessee remaining in
possession after the determination of the term, the common law rule is
that he is a tenant on sufferance. The expression "holding over" is used in
the sense of retaining possession. A distinction should be drawn between
a tenant continuing in possession after the determination of the lease,
without the consent of the landlord and a tenant doing so with the
landlord's consent. The former is called a tenant by sufferance in the
language of the English law and the latter class of tenants is called a
tenant holding over or a tenant at will. The lessee RFA No.697/2010 Page
7 of 96 holding over with the consent of the lessor is in a better position
than a mere tenant at will. The tenancy on sufferance is converted into a
tenancy at will by the assent of the landlord, but the relationship of the
landlord and tenant is not established until the rent was paid and
accepted. The assent of the landlord to the continuance of the tenancy
after the determination of the tenancy would create a new tenancy. The
possession of a tenant who has ceased to be a tenant is protected by law.
Although he may not have a right to continue in possession after the
termination of the tenancy, his possession is juridical." "13. In view of the
settled position of law, the possession of the appellant is as tenant at
sufferance and is liable to ejectment in due course of law. But his

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possession is not legal nor lawful. In other words, his possession of the
theatre is unlawful or litigious possession. The appellant may remain in
possession until he is ejected in due course in execution of the decree in
the suit filed by the respondent. His possession cannot be considered to
be settled possession. He is akin to a trespasser, though initially he had
lawful entry."
In M/s. Raptakos Brett & Co. Ltd. v. Ganesh Property, AIR 1998 SC 3085,
the Supreme Court held that when a lease comes to an end by efflux of
time, or by notice of termination, or if there be a breach and the lessee's
rights are forfeited, the lessee becomes a tenant at sufferance, and it
becomes the duty of the lessee under Section 108(q) of the Transfer of
Property Act to restore possession to the lessor forthwith. The Supreme
Court held as under:- "22. ...Under law the erstwhile landlord is entitled to
restoration of possession by enforcement of statutory obligation of the
erstwhile tenant as statutorily imposed on him under Section 108(q) read
with Section 111(a) of the Property Act..."
In C. Albert Morris v. K. Chandrasekaran, (2006) 1 SCC 228, the Supreme
Court held as under:- "26. ...Much argument was advanced on the receipt
of the rent by the landlord after the cancellation of the lease. The
consensus of judicial opinion in this country is that a mere continuance in
occupation of the demised premises after the expiry of the lease,
notwithstanding the receipt of an amount by the quondam landlord,
would not create a tenancy so as to confer on the erstwhile tenant the
status of tenant or a right to be in possession..." "32. ...We are, therefore, of
the opinion that mere acceptance of rent by the landlord, the first
respondent herein, from the tenant in possession after the lease has been
determined either by efflux of time or by notice to quit would not create a

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tenancy so as to confer on the erstwhile tenant the status of a tenant or a


right to be in possession...
In Delhi Jal Board v. Surendra P. Malik, 104 (2003) DLT 151 (DB), the
Division Bench of Delhi High Court held as under:- "12. It is no longer a
grey area that where a tenancy had otherwise expired by efflux of time
but the tenant continued in possession of the premises, mere acceptance
of rent by the landlord could neither renew the tenancy nor create a new
one. That is so because such subsequent occupation of premises was not
in pursuance of any contract, express or implied between the parties..."
"13. ... In any case, this aspect does not assume any importance as no
notice under Section 106 was required to be served on appellant due to
the expiry of the Lease between the parties by efflux of time..."

In Usha Rani Jain v. Nirulas Corner House Private Limited, ILR (2005) II
Delhi 349, Delhi High Court held as under:- "17. Though a plea was taken
in the written statement about non determination of the lease because no
notice to quit as envisaged under Section 106 of the Transfer of Property
Act has been served on the defendants before filing of the present suit, but
this aspect was not pressed at the hearing. Even otherwise, it is a well
settled proposition of law that when the term of the lease has expired by
efflux of time, there is no need for a landlord to determine the lease by
serving quit notice...

In Inmacs Limited v. Prema Sinha, 153 (2008) DLT 311 (DB), the Division
Bench of Delhi High Court held as under:- "13. ...If a lease is evidence by a
contract, as in the instant case, the duration of the lease would be as per

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the contract and at the expiry of the lease period as per contract the lease
expires by efflux of time. Expiry of lease by efflux of time results in the
determination of the relationship between the lessor and the lessee and
since the lease expires under the contract by efflux of time, no notice of
determination of the lease is required.
In Ashok Chopra v. Syndicate Bank, 169 (2010) DLT 361, Delhi High Court
held as under:- "17. It is clear that the tenancy had come to an end by a
efflux of time. Admittedly, there was no document executed between the
parties renewing the lease. Tenancy having expired by efflux of time; no
notice was required to terminate the lease; ..."
In Nopany Investments (P) Ltd. v. Santokh Singh
(HUF), 2008 (2) SCC 728, the Supreme Court held that filing
of suit is itself a notice to quit on the tenant and therefore, no
notice to quit under Section 106 of the Transfer of Property Act
is necessary to enable the landlord to get the decree of
possession. The observations of the Supreme Court are
reproduced hereunder:In any view of the matter, it is well settled that filing of an eviction suit
under the general law itself is a notice to quit on the tenant. Therefore, we
have no hesitation to hold that no notice to quit was necessary under
Section 106 of the Transfer of Property Act in order to enable the
respondent to get a decree of eviction against the appellant.

In Shri Ram Pasricha v. Jagannath, AIR 1976 SC


2335, the Supreme Court held that in a suit for eviction, the

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tenant is estopped from questioning the title of landlord. The


Supreme Court held as under:"15. ...The tenant in such a suit is estopped from questioning the title of
the landlord under Section 116 of the Evidence Act. The tenant cannot
deny that the landlord had title to the premises at the commencement of
the tenancy. Under the general law, in a suit between landlord and tenant,
the question of title to the leased property is irrelevant. It is, therefore,
inconceivable to throw out the suit on account of non-pleading of other
co-owners as such."
In D. Satyanarayana v. P. Jagadish, AIR 1987 SC
2192, the Supreme Court held as under:"3. ...Section 116 of the Evidence Act provides that no tenant of
immovable property shall, during the continuance of the tenancy, be
permitted to deny that the landlord of such tenant had, at the beginning of
the tenancy, a title to such immovable property. Possession and
permission being established, estoppel would bind the tenant during the
continuance of the tenancy and until he surrenders his possession. The
words
RFA No.697/2010 Page 38 of 96 during the continuance of the tenancy
have been interpreted to mean during the continuance of the possession
that was received under the tenancy in question, and the Courts have
repeatedly laid down that estoppel operates even after the termination of

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the tenancy so that a tenant who had been let into possession, however,
defective it may be, so long as he has not openly surrendered possession,
cannot dispute the title of the landlord at the commencement of the
tenancy..." "4. The rule of estoppel embodied under Section 116 of the
Evidence Act is that, a tenant who has been let into possession cannot
deny his landlord's title, however defective it may be, so long as he has
not openly restored possession by surrender to his landlord..."
In Vashu Deo v. Balkishan, (2002) 1 SCR 171, the
Supreme Court summed up the law as to estoppel of tenant as
under:
"6. ...Section 116 of the Evidence Act, which codifies the common law rule
of estoppel between landlord and tenant, provides that no tenant of
immovable property or person claiming through such tenant, shall, during
the continuance of the tenancy, be permitted to deny that the landlord of
such tenant had at the beginning of the tenancy, a title to such immovable
property. The rule of estoppel so enacted has three main features : (i) the
tenant is estopped from disputing the title of his landlord over the
tenancy premises at the beginning of the tenancy; (ii) such estoppel
continues to operate so long as the tenancy continues and unless the
tenant has surrendered possession to the landlord; and (iii) Section 116
of the Evidence Act is not the whole law of estoppel between the landlord
and tenant. The principles emerging from Section 116 can be extended in
their application and also suitably adapted to suit the requirement of an
RFA No.697/2010 Page 39 of 96 individual case... the rule of estoppel
ceases to have applicability once the tenant has been evicted. His
obligation to restore possession to his landlord is fulfilled either by
actually fulfilling the obligation or by proving his landlords title having
been extinguished by a paramount title-holder..."

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In Sheela v. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375, the
Supreme Court held as under:- "12. ...Section 116 of the Evidence Act
embodies therein a rule of estoppel. No tenant of immovable property, or
person claiming through such tenant, shall, during the continuance of the
tenancy, be permitted to deny that the landlord of such tenant had, at the
beginning of the tenancy, a title to such immovable property. This
estoppel so long as it binds the tenant excludes the tenant from raising a
plea disputing the title of his landlord at the commencement of the
tenancy. It flows as a corollary therefrom that the proof of landlord-tenant
relationship tantamounts during the continuance of tenancy to proof of
ownership of landlord over the tenancy premises at the beginning of the
tenancy so far as the tenant is concerned. It is significant to note that on
the phraseology of Section 116 of the Evidence Act the rule of estoppel
applies so long as the tenancy is not terminated and the rule estops the
tenant from laying challenge to the ownership of the landlord at the
commencement of the tenancy. But the rule of estoppel as incorporated in
Section 116 is not exhaustive and it may be extended or suitably modified
in its application to other situations as well, retaining the basic feature of
the rule. Clause (g) of Section 111 of the Transfer of Property Act, insofar
as relevant for our purpose, provides that a lease of immovable property
determines by forfeiture in case the lessee renounces his character as
such by setting up a title in a third person or by claiming title in himself.
This provision contemplates two fact situations which entail the lessee
having renounced his character as such and they are: (i) when the lessee
sets up a title in a third person, or (ii) when he claims title in himself. In
either case, the tenant has disputed and denied the title of his landlord
because a title in third person or title in himself cannot co-exist with the

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title in the landlord. .. "14. Denial of landlord's title or disclaimer


of tenancy, is it an act injurious to interest of landlord? How does this rule
operate and what makes it offensive? Evans and Smith state in the Law of
Landlord and Tenant (4th Edn., 1993, at p.89) that it is an implied
condition of every lease, fixed-term or periodic and formal or informal,
that the tenant is not expressly or impliedly to deny the landlord's title or
prejudice it by any acts which are inconsistent with the existence of a
tenancy. Disclaimer of the landlord's title is analogous to repudiation of a
contract. The rule is of feudal origin; the courts are not anxious to extend
it and so any breach of this condition must be clear and unambiguous. Hill
and Redman in Law of Landlord and Tenant (17th Edn., para 382, at pp.
445-446) dealing with "acts which prejudice lessor's title" state that there
is implied in every lease a condition that the lessee shall not do anything
that may prejudice the title of the lessor; and that if this is done the lessor
may re-enter for breach of this implied condition. Thus, it is a cause of
forfeiture if the lessee denies the title of the lessor by alleging that the title
of the landlord is in himself or another; or if he assists a stranger to set up
an adverse title or delivers the premises to him in order to enable him to
set up a title..."

In S. Makhan Singh v. Amarjeet Bali, 154 (2008)


DLT 211, this Court held as under:"5. ...Section 111(g) of Transfer of Property Act provides that a lease of
immovable
properties come to an end by forfeiture in case of lessee renouncing his
character as such by setting up a title in a third person or claiming title in
himself. Thus, once a lease stands forfeited by operation of law, the

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person in occupation of the premises cannot take benefit of the legal


tenancy. This provision under Section 111(g) is based on public policy
and the principle of estoppel. A person who takes premises on rent from
landlord is estopped from challenging his title or right to let out the
premises. If he does so he does at his own peril and law does not
recognize such a person as legal tenant in the premises..."

In Bhagirothi Mohanty v. Kasinath Das, 1996 AIHC


4918, the Orissa High Court held as under:"8. Section 116 of the Evidence Act envisages that a tenant is stopped to
deny the landlords title. RFA No.697/2010 Page 42 of 96 This doctrine is
based on equitable principle inasmuch as once one enters into the
premises as a tenant and continues to possess in that capacity, he cannot
be heard to deny the lessors title. If he does so, then Section 111(g) of the
Transfer of Property Act comes into play. As provided therein, the
lessees right to the lease-hold property is forfeited by happening of
certain events, one of such events being disclaimer or denial of the
lessors title. The disclaim as the word imports, necessarily means
renouncement by the party of his character as a tenant either by setting
up title by another or by claimant title in himself. The principle embodied
in Section 111(g) is based on the principle of justice, equity and good
conscience. So a tenant having lawfully entered into lease-hold premises,
if denies landlord's title, his position in relation to the lease-hold land is as
a trespasser. In such situation, one of the co- owners can maintain a suit
for eviction against him..."

In Maria Margarida Sequeria Fernandes v. Erasmo

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Jack de Sequeria, 2012 (3) SCALE 550, the Supreme Court


RFA No.697/2010 Page 43 of 96 held that the person resisting a claim for
recovery of
possession or claiming a right to continue in possession has to
establish that he has such a right. The observations of the
Supreme Court are as under:"66. A title suit for possession has two parts - first, adjudication of title,
and second, adjudication of possession. If the title dispute is removed and
the title is established in one or the other, then, in effect, it becomes a suit
for ejectment where the defendant must plead and prove why he must not
be ejected.
67. In an action for recovery of possession of immovable property, or for
protecting possession thereof, upon the legal title to the property being
established, the possession or occupation of the property by a person
other than the holder of the legal title will be presumed to have been
under and in subordination to the legal title, and it will be for the person
resisting a claim for recovery of possession or claiming a right to continue
in possession, to establish that he has such a right. To put it differently,
wherever pleadings and documents establish title to a particular property
and possession is in question, it will be for the person in
possession to give sufficiently detailed pleadings, particulars and
documents to support his claim in order to continue in possession.

In Surjit Sachdev v. Kazakhstan Investment


Services Private Limited, 66 (1997) DLT 54 (DB), the
Division Bench of this Court held as under:"16. A bare reading of Rule 6 would suggest that Court either on the
application of any party or on its own motion and without waiting for

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determination of any other question between the parties proceed RFA


No.697/2010 Page 44 of 96 to give judgment as it may think fit having
regard to the admission..."
"17. ...The factors which deserve to be taken into consideration in order to
enable the Court to pass a decree in plaintiff's favor as regards possession
in such like suit. are: (a) existence of relationship of Lesser and lessee or
entry in possession of the suit property by defendant as a tenant; and (b)
determination of such relation in any of the contingency, as envisaged in
Section 111 of the Transfer of Property Act. One of the modes stated
therein is by efflux of time limited by the lease. Only on unequivocal
admission of the above two factors will entitle the plaintiff to a decree on
admission. Admission need not be made expressly in the pleadings. Even
on constructive admissions Court can proceed to pass a decree in
plaintiff's favour.
18. Defendants in this case have not disputed the entry of defendant No. 1
in possession on the suit property on the basis of registered lease deed
dated 24.2.1994..."

In Maria Margarida Sequeria Fernandes v. Erasmo


Jack de Sequeria, 2012 (3) SCALE 550, the Supreme Court held that false
claims and defences are serious problems with real estate
litigation, predominantly because of ever escalating prices of
the real estate. The Supreme Court held as under:False claims and false defences
84. False claims and defences are really serious problems with real estate
litigation, predominantly because of ever escalating prices of the real
estate. Litigation pertaining to valuable real estate properties is dragged

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on by unscrupulous litigants in the hope that the other party will tire out
and ultimately would settle with them by paying a huge amount. This
happens because of the enormous delay in adjudication of cases in our
Courts. If pragmatic approach is adopted, then this problem can be
minimized to a large extent."

In Dalip Singh v. State of U.P., (2010) 2 SCC 114,


the Supreme Court observed that a new creed of litigants have
RFA No.697/2010 Page 51 of 96 cropped up in the last 40 years who do
not have any respect
for truth and shamelessly resort to falsehood and unethical
means for achieving their goals. The observations of the
Supreme Court are as under:"1. For many centuries, Indian society cherished two basic values of life
i.e., 'Satya' (truth) and 'Ahimsa' (non-violence). Mahavir, Gautam Buddha
and Mahatma Gandhi guided the people to ingrain these values in their
daily life. Truth constituted an integral part of the justice-delivery system
which was in vogue in the pre-Independence era and the people used to
feel proud to tell truth in the courts irrespective of the consequences.
However, post- Independence period has seen drastic changes in our
value system. The materialism has over shadowed the old ethos and the
quest for personal gain has become so intense that those involved in
litigation do not hesitate to take shelter of falsehood, misrepresentation
and suppression of facts in the court proceedings.

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2. In last 40 years, a new creed of litigants has cropped up. Those who
belong to this creed do not have any respect for truth. They shamelessly
resort to falsehood and unethical means for achieving their goals. In order
to meet the challenge posed by this new creed of litigants, the courts have,
from time to time, evolved new rules and it is now well established that a
litigant, who attempts to pollute the stream of justice or who touches the
pure fountain of justice with tainted hands, is not entitled to any relief,
interim or final.

In Mohammad Ahmad v. Atma Ram Chauhan,


(2011) 7 SCC 755, the Supreme Court observed that the
motivation of the tenant to litigate with the landlord is that he
doesnt want to pay the prevalent market rate of rent to the
landlord and continues to pay the rent fixed years ago. The
observation of the Supreme Court is as under:"1. .... One half of the lis between landlord and tenant would not reach
courts, if tenant agrees to pay the present prevalent market rate of rent of
the tenanted premises to the landlord. In that case landlord would also be
satisfied that he is getting adequate, just and proper return on the
property. But the trend in the litigation between landlord and tenant
shows otherwise. Tenant is happy in paying the meager amount of rent
fixed years ago and landlord continues to find out various grounds under
the Rent Acts, to evict him somehow or the other...

In Maria Margarida Sequeria Fernandes v. Erasmo


Jack de Sequeria 2012 (3) SCALE 550, the Supreme Court held that

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inherent interest to continue frivolous litigation by


unscrupulous litigants would be reduced to a large extent, if
continuation of possession is permitted upon payment of
market rent. The Supreme Court held as under:Mesne Profits
90. Experience has shown that all kinds of pleadings are introduced and
even false and fabricated documents are filed in civil cases because there
is an inherent profit in continuation of possession. In a large number of
cases, honest litigants suffer and dishonest litigants get undue benefit by
grant or refusal of an injunction because the Courts do not critically
examine pleadings and documents on record. In case while granting or
refusing injunction, the Court properly considers pleadings and
documents and
takes the pragmatic view and grants
appropriate mesne profit, then the inherent interest to continue frivolous
litigation by unscrupulous litigants would be reduced to a large extent.
91. The Court while granting injunction should broadly take into
consideration the prevailing market rentals in the locality for similar
premises. Based on that, the Court should fix adhoc amount which the
person continuing in possession must pay and on such payment, the
Plaintiff may withdraw after furnishing an undertaking and also making it
clear that should the Court pass any order for reimbursement, it will be a
charge upon the property.
92. The Court can also direct payment of a particular amount and for a
differential, direct furnishing of a security by the person who wishes RFA
No.697/2010 Page 55 of 96 to continue in possession. If such amount, as
may be fixed by the Court, is not paid as security, the Court may remove
the person and appoint a receiver of the property or strike out the claim

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or defence. This is a very important exercise for balancing equities. Courts


must carry out this exercise with extreme care and caution while keeping
pragmatic realities in mind and make a
proper order of granting mesne profit. This is the requirement of equity
and justice."

In Indian Council for Enviro and Legal Action v. Union of India, (2011) 8
SCC 161, the Supreme Court
explained the concept of restitution. The Court held that it is
the bounden duty and obligation of the Court to neutralize any
unjust, enrichment and undeserved gain made by any party by
invoking the jurisdiction of the Court. A person in a wrongful
possession should not only be removed as early as possible but
be compelled to pay for wrongful use of the premises, fine,
penalty as well as cost. The findings of the Supreme Court in
this regard are as under:"149. It is settled principle of law that no one can take advantage of his
own wrong. Unless courts disgorge all benefits that a party availed by
obstruction or delays or non-compliance, there will always be incentive
for non-compliance, and parties are ingenious enough to come up with all
kinds of pleas and other tactics to achieve their end because they know
that in the end the benefit will remain with them."
"162. We may add that restitution and unjust enrichment, along with an
overlap, have to be viewed with reference to the two stages i.e. pre-suit
and post-suit. In the former case, it becomes a substantive law (or
common law) right that the court will consider; but in the latter case,
when the parties are before the court and any act/omission, or simply

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passage of time, results in deprivation of one, or unjust enrichment of the


other, the jurisdiction of the court to levelise and do justice is
independent and must be readily wielded, otherwise it will be allowing
the courts own process, along with time delay, to do injustice.
163. For this second stage (post-suit), the need for restitution in relation
to court proceedings, gives full jurisdiction to the court, to pass
appropriate orders that levelise. Only the court has to levelise and not go
further into the realm of penalty which will be a separate area for
consideration altogether."
"191. In consonance with the principles of equity, justice and good
conscience Judges should ensure that the legal process is not abused by
the litigants in any manner. The court should never permit a litigant to
perpetuate illegality by abusing the legal process. It is the bounden duty
of the court to ensure that dishonesty and any attempt to abuse the legal
process must be effectively curbed and the court must ensure that there is
no wrongful, unauthorised or unjust gain for anyone by the abuse of the
process of the court. One way to curb this tendency is to impose realistic
costs, which the respondent or the defendant has in fact incurred in order
to defend himself in the legal proceedings. The courts would be fully
justified even imposing punitive costs where legal process has been
abused. No one should be permitted to use the judicial process for earning
undeserved gains or unjust profits. The court must effectively discourage
fraudulent, unscrupulous and dishonest litigation.
192. The courts constant endeavour must be to ensure that everyone
gets just and fair treatment. The court while rendering justice must adopt
a pragmatic approach and in appropriate cases realistic costs and
compensation be ordered in order to discourage dishonest litigation. The
object and true meaning of the concept of restitution cannot be achieved

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or accomplished unless the courts adopt a pragmatic approach in dealing


with the cases."
The other aspect which has been dealt with in great detail is to neutralise
any unjust enrichment and undeserved gain made by the litigants. While
adjudicating, the courts must keep the following principles in view:
(1) It is the bounden duty and obligation of the court to neutralise any
unjust enrichment and undeserved gain made by any party by invoking
the jurisdiction of the court.
(2) When a party applies and gets a stay or injunction from the court, it is
always at the risk and responsibility of the party applying. An order of
stay cannot be presumed to be conferment of additional right upon the
litigating party.
(3) Unscrupulous litigants be prevented from taking undue advantage by
invoking jurisdiction of the court.
(4) A person in wrongful possession should not only be removed from
that place as early as possible but be compelled to pay for wrongful use of
that premises fine, penalty and costs. Any leniency would seriously affect
the credibility of the judicial system.
(5) No litigant can derive benefit from the mere pendency of a case in a
court of law.
(6) A party cannot be allowed to take any benefit of his own wrongs.
(7) Litigation should not be permitted to turn into a fruitful industry so
that the unscrupulous litigants are encouraged to invoke the jurisdiction
of the court.
(8) The institution of litigation cannot be permitted to confer any
advantage on a party by delayed action of courts."

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In A. Shanmugam v. Ariya Kshatriya Rajakula


Vamsathu Madalaya Nandhavana Paripalanai Sangam,
MANU/SC/0336/2012, the Supreme Court held as under:- RFA
No.697/2010 Page 59 of 96 RESTITUTION AND MESNE PROFITS
34. Experience reveals that a large number of cases are filed on false
claims or evasive pleas are introduced by the defendant to cause delay in
the administration of justice and this can be sufficiently taken care of if
the Courts adopt realistic approach granting restitution. This Court in the
case of Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249 (of which
one of us, Bhandari, J. was the author of the judgment) in paragraph 52 (C,
D and G) of the judgment dealt with the aspect of imposition of actual or
realistic costs which are equally relevant for this case..."
"35. Unless wrongdoers are denied profit or undue benefit from frivolous
litigations, it would be difficult to control frivolous and uncalled for
litigations...We need to decide cases while keeping pragmatic realities in
view. We have to ensure that unscrupulous litigant is not permitted to
derive any benefit by abusing the judicial process."
"37. False averments of facts and untenable contentions are serious
problems faced by our courts. The other problem is that litigants
deliberately create confusion by introducing irrelevant and minimally
relevant facts and documents. The court cannot reject such claims,
defences and pleas at the first look. It may take quite sometime, at times
years, before the court is able to see through, discern and reach to the
truth. More often than not, they appear attractive at first blush and only
on a deeper examination the irrelevance and hollowness of those
pleadings and documents come to light.
38. Our courts are usually short of time because of huge pendency of cases
and at times the courts arrive at an erroneous conclusion because of false
pleas, claims, defences and irrelevant facts. A litigant could deviate from

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the facts which are liable for all the conclusions. In the journey of
discovering the truth, at times, this Court, on later stage, but once
discovered, it is the duty of the Court to take appropriate remedial and
preventive RFA No.697/2010 Page 60 of 96 steps so that no one should
derive benefits or advantages by abusing the process of law. The court
must effectively discourage fraudulent and dishonest litigants.
39. Now, when we revert to the facts of this case it becomes quite evident
that the appellant is guilty of suppressing material facts and introducing
false pleas and irrelevant documents. The appellant has also clouded the
entire case with pleas which have nothing to do with the main
controversy involved in the case."

In Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC


249, the Supreme Court has held that the Courts have to take
into consideration pragmatic realities and have to be realistic in
imposing the costs. The relevant paragraphs of the said
judgment are reproduced hereunder:"45. ........We are clearly of the view that unless we ensure that wrongdoers
are denied profit or undue benefit from the frivolous litigation, it would
be difficult to control frivolous and uncalled for litigations. In order to
curb uncalled for and frivolous litigation, the courts have to ensure that
there is no incentive or motive for uncalled for litigation. It is a matter of
common experience that court's otherwise scarce and valuable time is
consumed or more appropriately wasted in a large number of uncalled for
cases."
"52. The main question which arises for our consideration is whether the
prevailing delay in civil litigation can be curbed? In our considered
opinion the existing system can be drastically changed or improved if the

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following steps are taken by the trial courts while dealing with the civil
trials."

Court in Dalip Singh v. State of U.P. and Ors. (2010) 2 SCC 114
The Supreme Court laid down the following principles:"42. On the facts of the present case, following principles emerge:
1. It is the bounden duty of the Court to uphold the truth and do justice.
2. Every litigant is expected to state truth before the law court whether it
is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants
have no place in law courts.
3. The ultimate object of the judicial proceedings is to discern the truth
and do justice. It is imperative that pleadings and all other presentations
before the court should be truthful.
4. Once the court discovers falsehood,
concealment, distortion, obstruction or confusion in pleadings and
documents, the court should in addition to full restitution impose
appropriate costs. The court must ensure that there is no incentive for
wrong doer in the temple of justice. Truth is the foundation of justice and
it has to be the common endeavour of all to uphold the truth RFA
No.697/2010 Page 76 of 96 and no one should be permitted to pollute the
stream of justice.

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5. It is the bounden obligation of the Court to neutralize any unjust and/or


undeserved benefit or advantage obtained by abusing the judicial process.
6. Watchman, caretaker or a servant employed to look after the property
can never acquire interest in the property irrespective of his long
possession. The watchman, caretaker or a servant is under an obligation
to hand over the possession forthwith on demand. According to the
principles of justice, equity and good conscience, Courts are not justified
in protecting the possession of a watchman, caretaker or servant who was
only allowed to live into the premises to look after the same.
7. The watchman, caretaker or agent holds the property of the principal
only on behalf the principal. He acquires no right or interest whatsoever
in such property irrespective of his long stay or possession.
8. The protection of the Court can be granted or extended to the person
who has valid subsisting rent agreement, lease agreement or licence
agreement in his favour."

HON'BLE MR. JUSTICE A.K. PATHAK of HIGH COURT OF DELHI in the case
of Jai Bhagwan Mittal vs Meena Jain And Anr Decided on 25 February,
2013
In Parivar Seva Sansthan vs. Veena Kalra AIR 2000 Delhi 349 a Division
Bench of this Court has held that the use of the expression "any stage" in
the said rule itself shows that the legislatures intent is to give it widest

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possible meaning. Thus merely because issues are framed cannot by itself
deter the Court to pass the judgment on admission under Order 12 Rule 6
CPC. In Uttam Singh Duggal & Co. Ltd. versus United Bank of India &
Others (2000) 7 SCC 120, in the context of Order 12 Rule 6 of the Code,
Supreme Court has held thus "the object of the Rule is to enable the party
to obtain a speedy judgment at least to the extent of the relief to which
according to the admission of the defendant, the plaintiff is entitled. We
should not unduly narrow down the meaning of this Rule as the object is
to enable a party to obtain speedy judgment. Where the other party has
made a plain admission entitling the former to succeed, it should apply
and also wherever there is a clear admission of facts in the face of which
it is impossible for the party making such admission to succeed."

GUIDELINES ISSUED TO REDUCE LANDLORD-TENANT LITIGATION


JUSTICE DALVEER BHANDARI & JUSTICE DEEPAK VERMA OF SUPREME
COURT OF INDIA IN Mohammad Ahmad & Anr. Vs. Atma Ram Chauhan &
Ors (2011) 7 SCC 755 Issued GUIDELINES AND NORMS FOR TENANCY
AND EVICTION LITIGATIONS, SO AS TO MINIMIZE LANDLORD-TENANT
LITIGATION AT ALL LEVELS.
(i) The tenant must enhance the rent according to the terms of the
agreement or at least by ten percent, after every three years and
enhanced rent should then be made payable to the landlord. If the rent is
too low (in comparison to market rent), having been fixed almost 20 to 25
years back then the present market rate should be worked out either on
the basis of valuation report or reliable estimates of building rentals in
the surrounding areas, let out on rent recently.

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(ii) Apart from the rental, property tax, water tax, maintenance charges,
electricity charges for the actual consumption of the tenanted premises
and for common area shall be payable by the tenant only so that the
landlord gets the actual rent out of which nothing would be deductible. In
case there is enhancement in property tax, water tax or maintenance
charges, electricity charges then the same shall also be borne by the
tenant only.
(iii) The usual maintenance of the premises, except major repairs would
be carried out by the tenant only and the same would not be reimbursable
by the landlord.
(iv)But if any major repairs are required to be carried out then in that
case only after obtaining permission from the landlord in writing, the
same shall be carried out and modalities with regard to adjustment of the
amount spent thereon, would have to be worked out between the parties.
(v) If present and prevalent market rent assessed and fixed between the
parties is paid by the tenant then landlord shall not be entitled to bring
any action for his eviction against such a tenant at least for a period of 5
years. Thus for a period of 5 years the tenant shall enjoy immunity from
being evicted from the premises.
(vi) The parties shall be at liberty to get the rental fixed by the official
valuer or by any other agency, having expertise in the matter.
(vii) The rent so fixed should be just, proper and adequate, keeping in
mind, location, type of construction, accessibility with the main road,
parking space facilities available therein etc. Care ought to be taken that it
does not end up being a bonanza for the landlord.

DEMOLISHING OF TENANCY PREMISES LEASE RIGHTS DOES NOT END

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(2003) 5 Supreme Court Cases 150, T.Lakshmipathi and Others vs.


P.Nithyananda Reddy and Others. Paragraphs 20 to 23 which was
emphasized is usefully extracted here under: "20. The tenancy
cannot be said to have been determined by attracting applicability of the
doctrine of frustration consequent upon demolishing of the tenancy
premises. Doctrine of frustration belongs to the realm of law of contracts;
it does not apply to a transaction where not only a privity of contact but a
privity of estate has also been created inasmuch as lease is the transfer of
an interest in immovable property within the meaning of Section 5 of the
Transfer of Property Act (wherein the phrase "the transfer of
property" has been defined), read with Section 105, which defines a
lease of immovable property as a transfer of a right to enjoy such
property.

CASES ON LEASES OF IMMOVABLE PROPERTY


http://sbn-caselaw.blogspot.com/2007/05/cases-on-leases-ofimmovable-property.html

DIFFERENCE BETWEEN LEASE AND LICENCE


Whether particular agreement creates lease or licence has to be gathered
from circumstances of agreement - Party claiming benefit of lease has to
prove existence of lease - Annual auctioning of right to run hotel in
premises at bus stand belonging to Village Panchayat - Agreement
between Panchayat and successful bidder in auction - Agreement creates

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no lease but only licence. Held: There is a very clear and distinct
distinction in law between the concept of tenancy and that of a licence. It
is true that in certain cases an arrangement between parties regardless of
what it is called or defined has been construed by a Court to be one that
confers tenancy rights particularly in cases where the person has been in
occupation for a long period of time. Various circumstances attendant in
each of such cases must unmistakably indicate that the contract was one
of tenancy arid that in order to deprive the occupant of the benefits and
protection of the statute, the document was given a different colour. The
first essential requirement is that these circumstances must be present
but more importantly, it is for the party claiming those benefits to aver
very specifically that the agreement was one of tenancy and thereafter to
establish this to the satisfaction of the Court. The arrangement emanated
from the usual auction of conducting rights for a period of one year and
therefore even to set up a plea of tenancy would be extremely far-fetched.
The agreement only conferred a licence for a period of twelve months and
nothing else and further more, what needs to be taken cognizance of is the
fact that the agreement and its execution itself are unchallenged. In these
circumstances, the petitioner herself would be virtually estopped from
even pleading any status other than that of a licensee. Under these
circumstances, the respondents who are the authority in-charge of the
premises would be justified in removing anybody including the petitioner,
if such persons come in the way of the party to whom the contract has
been awarded from functioning there. - Smt. Prathima S. Bhat v
Uppinangadi Grama Panchayath, Uppinangadi, Puttur Taluk, D.K.
and Another, 1995(6) Kar. LJ. 136.
The Forest Department held an auction in respect of various items of
forest produce and the auction notice required purchasers to comply with

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sales tax and stamp law. The auction agreements were for a period of nine
to ten months and the purchasers were merely granted the right to cut
and carry away the forest produce. Held, the purchasers did not acquire
any interest in the soil but merely a right to cut the forest produce and
therefore the agreements were in the nature of licences and not leases so
as to attract Article 31 (e) of the (Indian) Stamp Act. A study of the
definition of 'immovable property' in Section 3{26) of the General Clauses
Act, Section 3 of the Transfer of Property Act, Section 2(6) of the Stamp
Act and Section 2(7} of the Sale of Goods Act shows that it is the creation
of an interest in immovable property or a right to possess it that
distinguishes a lease from a licence. No rights over the earnest deposits
made by bidders pending auction were created in favour of the State
Government and hence the security deposits were not in the nature of
mortgages and the purchasers could not be called upon to pay stamp duty
under Section 35(c) of the Stamp Act. - Board of Revenue v A.M. Ansari,
AIR 1976 SC1813
Section 105 - Easements Act, 1882, Section 52 - Karnataka Rent Control
Act, 1961, Sections 21 and 31 - Lease or licence - Suit for eviction of
tenant after termination of tenancy in building exempted from operation
of Rent Control Act - Compromise decree under which tenant handed over
portion of suit building to landlord and promised to vacate remaining
portion before specified date and also agreed to pay "rent" till date of
vacating - Agreement under compromise decree, held, did not create fresh
lease even though word "rent" is used - Tenant has become licensee Compromise decree can be executed when licensee has breached his
promise to vacate suit building - Fresh order of eviction under Section 21
of Rent Control Act - Not necessary even though exemption from
operation of Rent Control Act in respect of suit building has since been

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removed. Held.-The decree was passed on 21-4-1984 much prior to 1-71986. (the date on which Section 31 was struck down). If under the terms
of the decree the party has agreed to abide by certain conditions and if by
those conditions the petitioner has handed over a portion of the suit
premises and retains some other portion of the premises, agreeing to pay
damages till vacant possession is delivered, it would be difficult to go
behind the decree and hold that the petitioner is still a tenant. If the
petitioner is not a tenant pursuant to the compromise decree and
pursuant to him handing over the possession of a portion of the suit
premises, then, it would not be possible to hold that the petitioner retains
the remaining portion of the property only as a tenant. Petitioner will
undoubtedly be, under the terms of the compromise only a licensee and
not a tenant. ... It is the intention of the parties which is the decisive test,
notwithstanding the fact that the word 'rent' being used in the
compromise decree. If it can be culled out from the decree passed by a
Court of competent jurisdiction that the intention of the parties was that
the tenant willingly acquiesced to be a licensee rather than a tenant then
he will undoubtedly be a licensee and nothing more. In these
circumstances the landlord was certainly entitled to execute the decree of
a Civil Court. ... In the first execution case, the tenant did not question the
jurisdiction of the Court but sought time to deliver vacant possession till
7-1-1991. It is only when the tenant did not deliver vacant possession on
7-1-1991 as agreed by him, the landlord was compelled to file the second
execution petition. ... It is difficult to impute an intention to create a fresh
lease and that pursuant to the compromise decree there was no intention
for the parties to enter into a relationship of landlord and tenant. In the
facts and circumstances of the case, it has to be necessarily held that the
petitioner was only a licensee pursuant to the compromise decree and

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that such decree is executable. - C.L Seetharam v J.C. Rudra Sharma,


1997(3) Kar. L.J. 37 (DB).

GRANTED ONLY BY A PERSON COMPETENT TO CONTRACT


A Lease can be granted only by a person competent to contract and the
lessor must have title to the property or authority from the owner of the
property. - Lakshman Gidwani v Thimmamma, 1987(2) Kar. L.J. 426.

TENANT AT WILL
Even if it is held that a tenant at will has no sure interest or estate, he
cannot be evicted without a notice, the duration of which would be
depended upon the nature of the lease. In the case of an Agricultural
Lease, the notice must expire with the end of the agriculture lease. A
tenant at will is none the less a tenant the concept of tenancy at will has
reference to duration and interest in the Sand. He is not a tenant at the
sweet will and mercy of the landlord.

The status and possession of a

person who was admittedly a tenant of premises covered by local rent


restriction Act till date of commencement of a fresh lease, which turns out
to be void for want of registration during and at the expiry of the period

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purporting to be reserved by such void lease would be that of a tenant.


Such a tenant could only be removed by proper legal proceeding and he is
not a licence without interest in the premises and could not be forceably
evicted by the landlord entering on the premises and locking the same.
Such tenant could defend his possession by a suit seeking a declaration
and mandatory injunction. - Biswabani (Private) Limited v Santosh
Kurmr, 1979(2) Kar. L.J. Sh. N. 98 (SC).
Even if it is held that a tenant at will has no sure interest or estate, he
cannot be evicted without notice, the duration of which would be
dependent upon the nature of the lease. In the case of an agricultural
lease, the notice must expiry with the end of the agricultural lease. A
tenant at will is nonetheless a tenant. The concept of tenancy at will has
reference to duration and interest in the land. He is not a tenant at the
sweet will and mercy of the landlord. Hence, possession of the tenant at
will, where notice to quit has not been issued, is not on behalf of the
landlord and the landlord cannot to be in khas possession within Section
6 of the Bihar Land Reforms Act. The right to take possession is not khas
possession. A tenant at will enters possession with the consent of the
landlord and till his tenancy is determined, he is in lawful possession and
cannot be styled as a trespasser. - Ramesh Bejoy v Pashupati Rai,
1979(2) Kar. LJ. Sh. N. 97 (SC).
Where the lease contained a specific condition that the tenant shall give
up possession of the house at the will of the landlord without demur and
no definite period was fixed in the lease, the tenancy is one at will. Such
tenancy can be determined either by demand to give up possession or by
operation of law at the death of the lessor. - Bhimangoud v Golangouda,
1983(1) Kar. LJ. Sh. N. 23.

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A RIGHT TO CARRY ON MINING OPERATION


Section 105 - Every interest in Immoveable property or a benefit arising
out of land will be immoveable property for the purpose of Section 105 of
T.P. Act. A right to carry on mining operation in land to extract a specified
mineral and to remove and appropriate it, is a right to enjoy immoveable
property within Section 105 of T.P. Act, more so when it is coupled with a
right to be in its exclusive has possession for a specified period, - Shri
Shri Takeshwar Sio Thakur Jiu v Hari Dass. - 1979(1) Kar. L.J, Sh. N.
71 (SC).

TENANT DIES THE LEGAL REPRESENTATIVE HAS NO HERITABLE


RIGHT TO THE TENANCY
Houses and Rent - Statutory tenant - termination of tenancy - The legal
representative has no right to inherit the tenancy. The relationship of
landlord and tenant is regulated by the Provisions of the T.P. Act once
since relationship, which is Contractual, is terminated under Section 111
of the T.P. Act, the tenant, if he continued in possession of the premises is
called statutory tenant, Since tenancy can be terminated only by having
recourse to the Rent Control Act. When the Court passes an order of
eviction, the tenancy stands terminated. If subsequently, the tenant dies

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the legal representative has no heritable right to the tenancy Radheshyam Modi v Jadunath Mahapatra, AIR 1991 Ori. 88.

PERPETUAL LEASE

Whether perpetual or for term - Proof - Onus - Though there is no


presumption in law against perpetual lease, unambiguous language is
required to infer such lease which has effect of depriving owner of his
right to enjoy property for ever - Mere fact that lease is for 99 years at
uniform fixed rent, with stipulation for renewal under same terms and
conditions at option of lessee and fact that lease is binding on heirs,
administrators, executors, successors and legatees of both lessor and
lessee and further fact that lessee has made constructions on leased
property at his own cost, would not raise presumption that lease is
perpetual lease - Onus of proving that lease is perpetual is on lessee - In
absence of provision for renewal at option of lessee for indefinite length
of time and from generation to generation, lease is to be held term lease
only with option for renewal for only once. Held: Though there is no
presumption against perpetual lease, clear and unambiguous language is
required to infer such a lease. If the language is ambiguous, not clear and
admits of some doubt, the Court is required to opt for an interpretation
rejecting the plea of a perpetual lease. This is necessary because if the
Court leans in favour of a perpetual lease in the absence of the language
being clear and unambiguous, the effect of such interpretation would be

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to deprive a owner of his right to enjoy the property for ever. There is no
presumption in favour of the perpetual lease and the Courts are required
to lean against perpetual lease in the absence of stipulations in
that behalf being unambiguous or clear. . . . .The lease is for a period of 99
years. Therefore, there cannot be any doubt that when a period of 99
years is fixed in the lease deed, it is a term lease. The renewal, even if
done at the option of the lessee, again could be for a term of 99 years only.
Whether it be during the original period of Sease or even in the renewed
period, the option is given to the lessee to surrender at his discretion.
There is no provision in the lease deed which says that the renewal of the
lease is for an indefinite period. In the absence of a specific provision in
the lease deed providing that the renewal is required to be made at the
option of the lessee for an indefinite length of time and from generation to
generation, it is not possible to come to the conclusion that merely
because the lease provides for a renewal of the term fixed in the lease
deed under the same terms and conditions, that renewal is for an
indefinite period and the lease is a permanent lease. The lease is only for a
term of 99 years; and the option can be exercised to renew the lease only
once. .... -Since the lease was for construction of a building and for
establishing a Pressing and Ginning Factory, the term of the lease is fixed
fairly long and a clause for renewal of the lease also is provided.
Therefore, the long term provided in the lease with a renewal clause,
cannot be understood as meaning that the lease is a permanent lease.
Though the power of transfer or assignment of the lease is reserved to the
lessee, the said provision specifically states that the transfer or
assignment of leasehold interest of the lessee should not in any way affect
the other conditions of the lease. The lease deed also provides that in the
event the lessee is required to cut any tree growth in the land leased if the
said tree growth becoming an obstruction to make use of the leased land

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for the purpose it was let out, the lessee can cut the trees, but hand over
the tree growths to the lessor. This clearly shows that the lessor has
reserved substantial interest in the leased premises and he has a right to
the tree growths on the leased land in the event of the said tree growths
are required to be cut. It is also provided that in the event of lessee
vacating the demised land, he is required to deliver wood, stone and tiles
used for the construction of the building to the lessor and take only the
machineries and zinc sheets. - Channabasappa Gurappa Belagavi and
Others u Laxmidas Bapudas Darbar and Another, 1999(1) Kar. L.J.
216A.

LEASE AND AGREEMENT TO GRANT LEASE


Payment of advance to owner to make necessary repairs and alterations
to buildings - Agreement between parties speaking of present demise in
favour of payer of advance - Property to be handed over after repairs and
alterations -Mere use of expression "present demise" not decisive for
holding it to be lease when demise depended on completion of repairs
and alterations in accordance with agreement - Contract is mere
executory contract and not lease. Held: The covenants between the
parties, it is clear that the possession over the property was to be handed
over to the plaintiff after construction of the building with necessary
alterations and additions as agreed to between the parties. The said
clause also speaks of the present demise in favour of the plaintiff. The
question is whether despite use of the words 'present demise', the
instrument can be construed as merely executory being in the nature of
'agreement to lease' and not 'lease'. The mere words of present demise as
set out in the Document are not decisive for holding it to be a lease

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because in fact the demise is depended on the completion of the building


in accordance with the requirement of the plaintiff which was under
construction on the date of the execution of the said document. Therefore,
the contract entered into by the parties has to be held as a mere executory
contract and not one which has created the demise in praesenti. Sheshagiri v Belgaum District Co-operative Bank Limited, Belgaum,
1995(4) Kar. L.J. 403.

LEASE AND LICENCE


To ascertain the true intent and import of a document, the document
should be read as a whole. The proper function of the preamble is to
explain certain facts which are necessary to be explained before the
enacting part of the statute can be understood. This would equally apply
to a deed or a document. The preamble to the suit agreement show that
the plaintiff is the owner and the proprietrix of the industry called the
"Saravana Industries", that she has been doing business of manufacture
and sale of steel furniture, grits, gates, steel windows, industrial works
and fabrications pipe and electrical accessories etc., in the said industry
and in the last para of the preamble, it is stated that the plaintiff unable to
manage the industry more effectively due to her old age and therefore,
she is desirous of hiring out the business with the machinery and tools,
etc., to the defendant. The mere fact that the word 'factory' is not
introduced but only the words 'hiring out the business with the
machinery and tools etc.', are used, does not make the transaction any of
the less of making over the factory will all the machineries and the tools
etc., for carrying on the business subject to the terms and conditions of

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the agreement that were to follow in the deed. Hiring out the business
with the machinery and tools without the entire building including the
factory would not carry out the purpose and intention of the parties that
the defendant were to carry on the industry which was being carried on
by the plaintiff and which she was unable to carry on due to her old age.
Reading the suit agreement as a whole, there remain no doubt that it is a
lease of the factory along with the tools, machineries, furniture etc., and
not merely hiring of the business with the machinery and tools etc. The
subject-matter of the suit agreement is not a matter like a shandy place
where people are allowed to vend their articles by paying market fee or a
cycle stand where a party may keep his bicycle for few hours against
payment of certain charges, without having any actual possession of the
place or any interest being created in the land on which they transact
their business or keep their bicycle. The subject-matter of the transaction
between the plaintiff and defendant, in the instant case, is an industrial
unit, manufacturing steel article of various kinds and unless the defendant
had exclusive possession of the factory premises, the defendant could not
carry on the industry of manufacturing various kinds of steel articles he
was expected to manufacture. Considering the suit agreement as a whole,
there is no doubt that it is a 'lease' and not a 'licence'. - Smt. Sundara Bai
Ammal and Others v K.V. Rajagopai and Others, ILR1985 Kar. 1706.

LESSEE IS ENTITLED TO A LIMITED INJUNCTION FROM BEING


DISPOSSESSED FORCIBLY OTHERWISE THAN IN ACCORDANCE WITH
LAW

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A lessee after the expiry of termination of the lease does not yield up
possession - Whether entitled to injunction against forcible dispossession
by the lessor otherwise in accordance with the law - whether lessee has
right to continue in possession and injunction can be granted. There can
be no forcible dispossession of a person who has juridical possession and
the landlord can be restrained from resorting to high handed acts aimed
at forcible dispossession, otherwise than in accordance with law. No claim
to a right to dispossess by the use of force without recourse to procedure
in accordance with law is recognised or countenanced by Courts. Such a
right in the respondent cannot be recognised regardless of the question
whether or not the appellant itself has any subsisting right to remain in
possession. The protection that the Court affords is not of the possession Which in the circumstances is litiguous possession and cannot be equated
with lawful possession - But a protection against forcible dispossession.
The basis of relief is a corollary of the principle that even with the best of
title there can be no forcible dispossession.The lessee is entitled to a
limited injunction from being dispossessed forcibly otherwise than in
accordance with law. - M/s. Patil Exhibitors (Private) Limited v The
Corporation of the City of Bangalore, ILR 1985 Kar. 3700 : AIR 1986
Kant 194.

PURCHASE THE PREMISES FROM THE LANDLORD


When a tenant agrees to purchase the premises from the landlord it was
held that the tenant continue to be a tenant. - Rudrappa by L.Rs. v
Danappa Malasiddappa, 1982(1) Kar. L.J. 284.

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VOID LEASE - DEFEND HIS POSSESSION UNDER SECTION 53-A OF T.P.


ACT
When there is void lease and consequently the lessee is put in possession
of the premises it does not become, a tenant under such void lease. He can
only defend his possession under Section 53-A of T.P. Act. - Technicians
Studio (Private) Limited v Lila Ghosh, 1978(1) Kar. L.J. Sh. N. 9 (DB).

RENEWAL CLAUSE
Whenever a lease contains a renewal clause it confers an immediate right
to a further extension as the covenant runs with the land and it is
exercisable by the lesse at any time after the commence of the lease. - R.
Kempraj v M/s. Burton Son and Company Private Limited, AIR 1970 SC
1872, relied on. When the Wakf Board has accorded sanction for leasing
the suit property with a clause for renewal for a further period of 20 years
at the option of the lessee, no further sanction was required to be
obtained from the Wakf Board for renewing the lease. After the coming
into force of the Transfer of Property Act, leases of immoveable property
are governed by Chap. V of the Transfer of Property Act. Therefore, any
principle opposed to the provisions in Chap. V of the Transfer of Property
Act cannot be enforced. - Vishvarma Hotels Limited v Anjuman-elmamia and Others, 1982(2) Kar. L.J. 264.
A licence in respect of a theatre was renewed on 29-12-1980 in favour of
the licensee who was a tenant of the premises. The landlord of the

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premises challenged the renewal in a petition under Article 226 of the


Constitution, alleging that the license was not in a lawful possession of the
theatre on the date of the renewal. The lease was for 10 years from 10-71970 expiring on 9-7-1980. Under the lease deed option to renew the
lease was given to the tenant and the tenant exercised the option by
notice, dated 27-2-1980. Even after 9-7-1980 the landlord went on
accepting rent. The tenant had made a deposit to be adjusted towards the
rent of the last month but the landlord did not so adjust the deposit.
HELD, when the tenant exercised the option by notice to the landlord
before the expiry of the lease, a fresh lease came into existence. When the
deposit was not appropriated by the lessor towards the rents for the last
months of the tenancy expiring on 9-7-1980, it showed he had no
intention to determine the lease. Further, whereafter the period was over,
the lessor went on accepting the rents, it brought into effect a fresh
tenancy. A subsequent notice issued in November, 1980 by the landlord
determining the tenancy could not set at nought the tenancy which had
already come into existence

Manjunath V.R. and Another v M.V.

Veerendra Kumar and Another, 1981(2) Kar. L.J. 147.


A Lessee entitled to renewal of lease and in possession after the expiry of
the original period with the consent of the owner is a lessee for a renewed
period and is not merely holding over. -1964 Mys. LJ. Supp. 112.
A tenancy for residence renewed by holding over can only be a month to
month tenancy, though the rent reserved was yearly. -- Husensaheb
Sayadsaheb Attar v Muktabai and Another, 1962 Mys. LJ, 1000.

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In the case of a tenant holding over, the question whether the renewal of
the lease is from year to year or month to month has to be determined
with reference to Sections 116 and 106 T.P. Act and where the lease is not
one for Agricultural or Manufacturing purpose, it must be deemed to be
a lease from month to month. - Bheemappa Hanumanthappa and
Another v Nagaraj alias Shivanagappa, 1966(1) Mys. LJ. 664.

Lease during the period when a tenant is holding over, is renewed from
month to month, if the lease is not for Agricultural or Manufacturing
purposes. - 1959 Mys. LJ. 165.

Lessee in occupation of property after the expiry of Lease, is a tenant


holding over. A suit for eviction without notice to quit under Section 116
is not maintainable. Such a tenant does not become a tenant at sufferance
on expiry of term under unregistered Lease Deed executed before filing
of suit. - Satish Chand Makhan and Others v Govardhan Das Byas and
Others, AIR 1984 SC 143.

LEASE OR MORTGAGE - MERGER OF BOTH


Where a document is of a composite character disclosing features of both
mortgage and lease, it cannot be taken as a lease. The Court will have to
find out the predominant intention of the parties viewed from the
essential aspects of the transaction. There is one most essential feature

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in a mortgage which is absent in a lease (i.e.) that the property


transferred is a security for the repayment of a debt whereas in a lease, it
is a transfer of a right to enjoy the property. Where this essential feature
of a mortgage is missing, the document is not a mortgage, - Puzikkal
Kuttappan v Bhargavi, 1977(1) Kar. L.J. Sh. N. 66 (FB).
Where there were many features in the document which were more
consistent with a lease than a mortgage the transaction is a lease. Tayawwa v Gangaiviva and Others, 1966(2) Mys. L.J. 560.
Usufructory mortgage in favour of lessee already in possession Stipulation in mortgage deed that possession of mortgagee to be treated
as a fresn possession and that until payment of mortgage amounts,
mortgagee is entitled to continue in possession - Absence of specific
recital as to recovery of possession - Whether lessee had surrendered his
lease-hold right was the qviestion that arose for consideration - Held,
recitals had the effect of putting an end to relationship of lessor and lessee
on creation of new relationship of mortgager and mortgagee - Explained. Syed Imdad v R. Ramaswamy, 1989(3) Kar. LJ. 422.
Possessory mortgage to tenant effect. Where a possessory mortgage was
given to appellant who was in possession as a tenant on 21-5-1953 and it
was stipulated that the lease was to exist upto 6-11-1953, the mortgagee
was given power to sublet, the mortgagor was to do repairs and the
possession was to be under the mortgage deed, and the mortgagee
undertook to deliver possession of the property on the expiry of ten years.
Held, the appellant had surrendered his tenancy from 7-11-1953 and
thereafter the possession was only that of mortgagee and there was no
question of the tenancy being kept in abeyance and reviving on expiration

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of the period of mortgage. There cannot be a merger of lease and


mortgage in respect of the same property, since neither of them is a
higher or lesser interest than the other. _ Shah Mathuradas Maganlal
and Company v Nagappa Shankarappa Malaga, AIR 1976 SC 1565.
Landlord mortgaged the house to the tenant - Tenant effected
improvements - Landlord sold the property to respondent and another Suit for redemption and possession - Contended by the appellants Decision in Regular Appeal in favour of respondents - Challenged in RSA. (1)Whether the leasehold rights of the appellant (mortgagor) got merged
in the mortgage? Held.-It is well-settled that there is no question of
merger as such of a lease with the mortgagee. In other words, it is not as if
lease and mortgage cannot co-exist. This is clear from the decision of the
Supreme Court in Gambangi Appalaswamy Naidu and Others v Behara
Venkataramanayya Patro and Others, (1984)4 SCC 382 : AIR 1984 SC
1728. (2) Whether the lessee (defendant) impliedly surrendered his
lessee's rights for the purpose of taking usufructuary mortgage of the
property. Held-The fact that there was no stipulation to pay any interest
on the mortgage money; the fact that there was no liability on the part of
the defendant to pay rent after the mortgage came into force; the fact that
there was no agreement to make any adjustment of payment of rent or
interest; the fact that the mortgage period is fixed for about eight years;
the fact that, if for some reason, plaintiff was unable to make payment
even at the end of eighth year, the defendant was given an opportunity to
continue on the land till the amount was paid and other circumstances
would unmistakably indicate that the intention of the parties was not to
continue the relationship of lessor and lessee as between the mortgagor
and mortgagee. In the opinion of this Court, if these circumstances are
tested by the guidelines given by the Supreme Court in Gambangi's case,

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the same would unmistakably point to the conclusion that there was an
implied surrender of his tenancy on the part of the defendant
immediately .before usufructuary mortgage was executed in his favour. Abdulmsoolsab Chamanasab Phaniband v Ruth, 1990(4) Kar. LJ.
382A.

AFTER CONSENT DECREE - RECEIPT OF RENT DID NOT BRING FRESH


LEASE
Where the tenant was given time till the end of 1957 to hand over
possession of the property under a consent decree, and he paid the rent in
September, October, November and December, 1957 and mesne profits
for January, 1958 and the receipt mentioned that what was received was
rent, it was Held that the use of the word rent in respect of January, 1958
did not bring about a fresh lease between the parties. - Habighai
Meharalli Bhavnagri v Shivaji Rao D. Jadhav, 1965(2) Mys. L.J. 672.

STATUTORY TENANT

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There is transfer of immovable property in favour of the petitioners. ....


The very_instrument is titled as 'Lease Deed' and throughout in the said
deed the words 'Lessor' and 'Lessee' are used. The sum of Rs. 6,00,000/paid by the lessees was for five years and eight months and the same was
paid in advance instead of paying monthly rent every month. The recitals
in the lease deed is binding upon the 3rd respondent as the execution of
the said document is not in dispute. Having agreed so, it is not open now
for the 3rd respondent to turn round and say that it was not a lease' but
'licence' and such licence was given to the petitioners to run the theatre
for and on behalf of him. If really the petitioners were permitted to run
the theatre for and on behalf of the 3rd respondent, there was no occasion
for the petitioners to pay such huge amount to the 3rd respondent. On the
other hand, the 3rd respondent himself would have paid amount to the
petitioners for the services rendered by them and the money realised
from the sale of tickets would have been taken by the 3rd respondent. The
stand taken by the 3rd respondent in this regard is wholly untenable and
such a stand is taken to suit his convenience. The 3rd respondent has
admitted that the monthly rental of the premises would be Rs. 8,823.52. ...
It is no doubt true that the lease deed is not registered and it is void. Nonregistration of lease deed does not take away the relationship of landlord
and tenants. Therefore, it is held that the petitioners are statutory tenants
under the 3rd respondent and their possession is lawful. . . . Admittedly,
the theatre is a non-residential building. The monthly rental of the theatre
is Rs. 8,823.52 p.m. for a period of 68 months. Hence, the Karnataka Rent
Control Act is not applicable. Therefore, for the eviction of the petitioners,
the 3rd respondent has to file a suit for ejection, after determining lease of
the premises. .... The petitioners took possession of the theatre by virtue
of the lease deed, pursuant to which possession was delivered to them.
Thus, they entered into the possession of the theatre lawfully. After the

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expiry of lease period, their continuance in possession will not be


unlawful until they are evicted by due process of law as they are the
statutory tenants under the provisions of the Karnataka Rent Control Act.
In this view of the matter, both the impugned endorsement and the order
of the Appellate Authority are bad in law and are liable to be quashed. - R.
Sreekanth and Another v The Divisional Commissioner, Bangalore
Division, Bangalore and Others, 2003(2) Kar. L.J. 231.
When a person remains in possession after termination of tenancy, he
becomes statutory tenant. Although he can remain in possession he
cannot enforce the terms of original tenancy. - Anand Nivas Private
Limited v Anandji Kalyanji's Pedhi and Others, AIR 1965 SC 414.
There is a distinction between a tenant continuing in possession after the
determination of the term with the assent of the land lord and the tenant
doing so sans his consent. The former is a tenant at sufference and the
later a tenant holding over. Mere acceptance of amounts equivalent to
rent by land lord from a tenant in possession after a lease had been
determined, either by efflux of time or by notice to quit, and who enjoys
statutory immunity from eviction except on well defined grounds as in the
Act. If the tenant asserts that the land lord accepted the rent not as
Statutory Tenant but only as a legal rent indicating his assent to the
tenants continuing in possession it is for the tenant to establish it. Where
he fails to establish it cannot be said that there was holding over by him. Bhaitxmji Lakhamshi v Himdatlal Jamnadas Dani, AIR 1972 SC 819.

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NOTICE TO QUIT
a)

A notice to quit must be interpreted not with a desire to find flaws

in it which would render it defective, but it must be construed ut res


magis valeat quam pereat. - Bhagabandas Agarwala v Bhagwandas
Kanu and Others, AIR 1977 SC 1120
b)

A person in occupation of property under an unregistered but

compulsorily registerable lease does not become a tenant from month to


month and a notice terminating the tenancy under Section 106 of the T.P.
Act, is not necessary. - H- Mohammad Khan v H.K. Copal Shetty,
1963(2) Mys. L.J. 494.
c)

A statutory tenant is not entitled to notice as envisaged by Section

106 if the transfer of property before an action in ejectment is


commenced against him under any of the enabling provisions of the
relevant rent restriction Act. - Firm Sardarilal Vishwanath v Pritam
Singh, 1978(2) Kar. L.J. Sh. N. 25 (SC).
d)

Before maintaining a petition for eviction under Section 21(1) of

the Karnataka Rent Control Act, 1961, it is not necessary for the landlord
to determine the contractual tenancy by issuing to the tenant a notice
under Section 106 of the T.P. Act

Papinayakanahalli Venkanna and

Others v Janadri Venkanna Setty, AIR 1981 Kant. 20 (FB)

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e)

In order to get a decree or order for eviction against a tenant under

any State Rent Control Act, it is not necessary to give a notice under
Section 106 of T.P. Act. Determination of a lease in accordance with the
Transfer of Property Act is unnecessary and a mere surplusage, because
the landlord cannot get eviction of the tenant even after such
determination. The tenant continues to be so even thereafter. That being
so, making out a case under the Rent Act for eviction of the tenant by itself
is sufficient and it is not obligatory to find the proceedings on the basis of
the determination of the lease by issue of notice in accordance with
Section 106 of T.P. Act Dhanapal Chettair v Yasoda, 1980(1) Kar. L.J.
Sh. N. 90 (SC).
f)

Ground of Eviction need not be set out in the notice. Reasons

stated in notice does not estop landlord from pleading and proving
another reason. Issue of second notice to quit not necessarily waiver of
earlier notice. See Kamataka Rent Control Act, Sections 11, 21(d) and 26. Raghavendra v Maratha Co-operative Credit Bank Limited, 1977(1)
Kar, L.J. 382.
g)

It must be deemed that there is due service of the notice of

termination of a tenancy where the letter is sent by registered post, it


being properly addressed, pre-paid and the letter contains the document.
The contrary that is required to be proved to take away the presumption
is with reference to the four requirements referred to above. It is only to
meet the contingency of a person who is to be served with the notice
trying to evade it, that the service shall be deemed to have been effected if
the four conditions are fulfilled. Section 106 Para 2 does not prescribe
that the notice should be sent by registered post; it could also be sent by
ordinary post. Where the notice is sent under certificate of posting a

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presumption arises under Section 114, Evidence Act, that there has been
due service. If tender or delivery to the party is known as impracticable, it
is open to the landlord to adopt the procedure of affixture. -Achamma
Thomas v E.R. Fairman, 1969(2) Mys. L.J. 179.
h)

Notice by telegram : A notice through counsel by telegram

determining the tenancy complies substantially with Section 106- Aldelli Gurusidappa v Veerabhadrappa, 1975(1) Kar. L.J. Sh. N. 76.
i)

Notice terminating tenancy should not be interpreted with

strictness but should receive a liberal interpretation. If the.notice is


sufficient to give impression that the tenancy is terminated at the end of
the tenancy month, the notice is valid - Cherilal K. Wadhva v R.
Chandrasekhariah, 1969(2) Mys. LJ. 564.
j)

Person in occupation under an unregistered but compulsorily

registerable lease does not become a tenant from month to month and
notice terminating tenancy is not necessary. - V. Ramu v M.V.
Venkatappa, 1971(1) Mys. L.J. 443,
k)

Possession after expiry of lease under unregistered deed notice to

quit not necessary. - Doddappa alias Sidramappa Nagappa Yatgiri and


Others v Basavanneppa Basappa Chinniwalar, 1978(1) Kar. LJ. 414:
AIR 1978 Kant. 140.
l)

So long as there are words in the notice, justifying the view that the

notice itself determined the tenancy, the mere fact that there is no
termination in so many words will not make it any the less a notice under

Sridhara babu. N

Section 106. - Sheshacharya Balacharya Morab v MaUawwa, 1965(1)


Mys. LJ. 697.
m)

When a suit for eviction and mesne profits was instituted without

giving notice to quit under Section 106 of the Transfer of Property Act
against a tenant in occupation of the rented property after expiry of the
lease the suit would not be maintainable. Such tenant is a tenant holding
over and notice of eviction under Section 106 of the T.P. Act was
necessary. It cannot be said that on expiry of the specified period under
the unregistered Lease Deed executed before the filing of the suit he
became tenant at sufference under Section 111 (a) of the T.P. Act and the
suit was maintainable without notice under Section 106 of that Act. Satish Chand Makhan v Govardhan Das Eyas, AIR 1984 SC 143
n)

When the defective notice given by the tenant if accepted by the

landlord, it will determine the tenancy. - Calcutta Credit Corporation


Limited and Another v Happy Homes (Private) Limited, AIR 1968 SC
471.
o)

When the landlord fails to serve notice under Section 106, it does

not mean that such failure estops him from claiming a decree for eviction
of tenant. - Krishanadeo Narayan Aganval v Ram Krishan Rai, AIR
1982 SC 783.
p)

When the notice terminating tenancy does not grant longer time

for handing over possession, it does not mean that such failure affects the
validity of the termination of the tenancy. - Arjunsa Shidramasa
Mirajkar v Ganapatsa Hanmantsa Bakale and Others, 1964(2) Mys.
L.J. 164.

Sridhara babu. N

q)

Where the monthly tenancy was according to English calendar a

notice to determine possession on or before 30-11-1967 is valid.


Eventhough the quit notice asked the tenant to vacate the house on or
before 30-11-1967, the tenant was entitled to remain in possession till the
midnight of 30-11-1967 and thereafter vacate it and still comply with the
notice to quit. The notice was thus perfectly valid and complied with the
requirements of Section 106 of the T.P. Act Peter Paul Coelho and
Others v Constance D'Souza and Others, 1979(1) Kar. L.J. 219 : AIR
1980 Kant. 28.
r)

When a lease terminates by efflux of time, notice of termination is

not required. See Karnataka Rent Control Act, 1961, Section 31. Raghunandan Prasad Garg v Sreeramiah Setty and Others, 1970(2)
Mys. L.J. 250.
s)

Where a lease is for a specified term it expires by efflux of time in

view of Section 111(a). Therefore service of a notice under Section 106 is


not necessary for termination of lease. - Smt, Shanti Devi v Amal Kumar
Banerjee, AIR 1981 SC 1550.
t)

A notice which is defective may still determine the tenancy if it is

accepted by the landlord. A notice which complies with the requirements


of Section 106 of the Act operates to determine the tenancy, regardless of
the fact whether the party is served with the notice or not or whether the
party assents thereto or not - Calcutta Credit Corporation Limited v
Happy Homes (Private) Limited, AIR 1968 SC 471.

Sridhara babu. N

u)

Once a notice is served terminating the tenancy or showing an

intention to quit on the expiry of the period of the notice, the tenancy is
terminated, unless with the consent of the other party to whom the notice
is given the tenancy is agreed to be treated as subsisting. - Calcutta
Credit Corporation Limited v Happy Homes (Private) Limited, AIR
1968 SC 471.
v)

Landlord giving first notice to quit on grounds of arrears of rent

tenant fails to vacate and land lord gives second notice after one year and
demands rent for period between 1st and 2nd Notices. In a suit for
eviction land lord claims damages for use and occupation for period
subsequent to second notice. It was held that the first notice was waived
and the land lord had treated the tenancy as subsisting. - Tayabali
Jaferbhai Tankiwala v M/s. Ahsan and Compamj, AIR 1971 SC 102.

DENIAL OF TITLE
A person cannot be given the benefit of right to continue as a tenant and
also contest the title of the landlord at the same time. When the tenant
disputes the title of the landlord, irrespective of the technicalities of
Section 106 of the T.P. Act, the landlord should be entitled to possession. Rachavva and Another v Kariyappa Siddappa and Another, 1981(1)
Kar. L.J. 186.

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The experience shows that in many HRC cases, tenants take up a plea of
denying the title of landlords and also set up title in themselves.
Ultimately, those contentions are found to be baseless. These pleas are
taken up in most cases only to prolong the litigation and as by raising
such a plea, the tenant is not going to lose anything. On the contrary, he
will gain time. The effect of such contentions is that the proceedings get
prolonged. Even after the order of eviction is passed, and sometimes even
during the pendency of the eviction proceedings, suits are filed by the
tenants claiming title in themselves and denying the title of the landlord
and even setting up a title in third parties. In order to curb such ungoing
to cost him with the order of eviction and also to see that the objects of
the Karnataka Rent Control Act are given effect to, it is necessary to make
a provision enabling a landlord to make it a ground for eviction in the
event the denial of title of the landlord by the tenant is found to be not
bona fide even if such a denial is made in the objection to the eviction
petition filed under Section 21(1) of the Karnataka Rent Control Act. Smt. Govindamma v Murugesh Mudaliar and Others, ILR1990 Kar.
2639 (DB)

MANUFACTURING PURPOSE AND LEASE PERIOD


To constitute 'manufacture' there must be such transformation in the
change out of which a new and different article must emerge having a
distrinctive name, character or use. Generally coffee includes coffee
powder. When coffee seeds are powdered without adding anything more,
the resulting powder cannot be said to be another article with a
distinctive name, character or use. The process out of which coffee seeds

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are converted into powder is not 'manufacture'. Where the tenant had
taken the premises for grinding coffee seeds into powder and selling
them, he cannot be said to be engaged in the manufacture of coffee
powder and notice to quit giving 15 days time is sufficient. - Meghraj v
Seshagiri Rao B., AIR 1977 Kant. 163
To be understood in popular sense in accordance with meaning in
dictionary - Mere running of printing press cannot tantamount to
engagement in process of manufacturing. Held: The expression
'manufacturing purpose' as used in Section 106 has to be understood in a
popular sense in accordance with the meaning given in the Dictionaries.
Therefore, the said expression cannot be construed keeping in view the
special definition set out to those expressions in special statutes like
Factories Act. According to the Dictionary meaning, the word
'manufacture' implies a change. But every change is not manufacture. For
identifying a given change in an article as manufacturing, there must be a
transformation, a new and different article must emerge having
distinctive name, character or use. Keeping in view the facts of the
present case, mere running of a printing press cannot tantamount to an
engagement in any process of manufacturing though the process of
printing results in some change on the paper surface over which the
printing is done. - Virupakshaiah alias Veeraiah v Shivaputrappa Basappa
Golappanavar, 1996(5) Kar. L.J. 53B.

A lease of premises for carrying on business of retreading of tyres is not a


lease for a manufacturing purpose, within Section 106 of the Transfer of
Property Act. The broad test for determining whether a process is

Sridhara babu. N

manufacturing process if whether it brings out a complete transformation


for the old components so as to produce a commercially different article
or commodity. Retreading process does not cause the old tyres to lose its
original character. Definitions of manufacture in other enactments such
as the Factories Act or the Excise Act should not be blindly applied to the
Transfer of Property Act. - P.C Cheriyan v Darfi Devi, 1979(2) Kar. L.J.
Sh. N. 99 (SC).
When a lease is granted, the test to ascertain whether the lease is granted
for manufacturing process, the following points should be noted.1. There must be evidence that a certain commodity was manufactured;
2.

That the process of production must involve either labour or

machinery;
3. That the product which comes into existence after the manufacturing
process is complete, should have a different name and should be put to a
different use.
where lease was granted for running a flour mill wherein wheat waft
transformed by manufacturing process which involved both labour and
machinery, into flour it was held that all the three tests were fully
satisfied and hence the lease was one for manufacturing process and
could be terminated by giving 6 months notice under this Section. Idandas v Anant Ramchandra Phadke (dead) by LRs., AIR 1982 SC
127

Section 106 - The lease deed was silent in regard to the purpose for which
the premises was leased. It showed that what had been leased was shop
premises. It did not say that what had been leased was a workshop
premises. The word "Shop" ordinarily indicated that it was a place for

Sridhara babu. N

buying and selling goods. The Court below rightly came to the conclusion
that the lease was not for a manufacturing purpose, though the Appellant
infact might have used the premises for a manufacturing purpose a couple
of years after the premises was leased to him. As the lease was not for a
manufacturing purpose, the notice of 15 days given in the case was
proper and valid in Law. - Vittal Narayana v Channappa, 1973(2) Mys.
LJ. Sh.N.12.

Where the lease was taken for carrying on bakery and saw mill business,
if a lease for manufacturing purpose and the notice of termination require
is of 6 months duration. Notwithstanding what is contained in Section
107, the Provisions of Sec. 106 of the Act will apply to a manufacturing
lease, whether the lease deed is registered or unregistered, so as to make
it a lease from year to year for the purpose of that Section, (i.e) to control
duration of the period of the notice. - Rev Fatner John Augustine Peter
Miranda v N. Datha Naik, 1971(2) Mys. LJ. 204

RELATIONSHIP OF TENANT AND LANDLORD

The H.R.C. Tribunal has given a finding that there is no relationship of


landlord and tenant in the earlier proceedings between the same parties.
Subsequent thereto the present suit came to be filed and the finding given
by the H.R.C. Tribunal has become final and conclusive. Therefore, when
on the question of legal-jural relationship between the parties competent

Sridhara babu. N

Court of law has already given a verdict, despite the said verdict if plaintiff
were to repeat and describe the relationship as landlord and tenant it
would be only a contention without legal basis and non-description of the
defendant's position as that of a trespasser also does not appear to be a
fatal one since the suit is based on title and if some other person is in
possession the owner of the property can always maintain a suit for
possession basing on the title. Hence, under the circumstances suit is
maintainable. - M.S. Narayana Rao v S.K. Pundareeka, 2001(3) Kar. LJ.
339A (DB).

ATTORNMENT TO SUBSEQUENT LANDLORD


The month of tenancy was from 27th of each month and was to expire on
27-7-1974. Respondent purchased the property on 17-4-1967 and the
tenant attorned to the purchaser. Held, attornment implies a continuity of
tenancy created by the original landlord in favour of the tenant and the
month of tenancy does not get altered. Therefore, the notice to quit issued
by the purchaser requiring the tenant to quit and deliver possession on
the expiry of 16-11-1967 on the basis that the tenancy was from the 17th
of each month by virtue of the attornment was not according to law and
the purchaser acquired no right to evict the petitioner. As a purchaser
with knowledge of the petitioner being in possession as tenant, the
respondent was bound by the terms of the lease. - Karupakale R.
Govindiah v C. Veerabhadriah, 1974(2) Kar. LJ. Sh. N. 135.
Where sale of a tenanted premises recited that vendor has attorned the
tenants to the purchaser and the tenant attested the sale deed, it was held

Sridhara babu. N

it proved attornment of tenancy to the purchaser. Sohanraj v Kanyalal


Daga, 1979(1) Kar. L.J. Sh. N. 45.
Rights of lessor's transferee to rent - Transfer of property by lessor
without notice to lessee creates no privity of estate between lessee and
transferee - Attornment of tenancy is legal pre-condition in case of
transfer of property, if contract of lease is to be created between lessee
and transferee - If lessee, not having notice of transfer, had paid rent to
lessor even after transfer, lessee shall not be liable to pay such rent over
again to transferee. Attornment of tenancy is a legal precondition in cases
where changes take place with regard to the transfer of ownership. The
tenancy is a legal obligation between two parties and if a new person
comes into the shoes of the landlord, it is very necessary that notice of
this fact be given to the opposite party and that the tenancy be attorned.
In the absence of this being done, the right on the part of the new landlord
to demand and receive the rent cannot be enforced. . . . The record clearly
indicates that the petitioner had no notice of the change of ownership nor
was the tenancy attorned. . . . The decree passed against the petitioner is
vitiated in so far as it is impermissible to sustain that decree both on facts
and in law. - T. Ratna Pandyan v P. Subramanyam Chetty, 1997(2)
Kar. L.J. 365.

PERMANENT LEASE
A lease of 1914 for erecting a factory and appurtenant buildings stated: it
was to be for a term of 20 years certain, on payment of Rs. 350 as annual
rent; even though the lessee may not continue to occupy the land, the

Sridhara babu. N

lessee was granted the right to continue the lease as long as he desired to
do so; on his choosing to continue to enjoy the leasehold, the lessee was
obliged to pay annually the enhanced rent of Rs. 400 for the next ten years
after October 1,1934, and after the expiration of ten years, the rent was
further enhanced to Rs. 500 per annum; the lessee was given the option to
give up the lease at any time after October 1, 1934 without further
liability; the lessor bound himself not to call upon the lessee at any time to
give up possession of the leasehold as long as the lessee was prepared to
observe the terms of the lease. The lease was heritable and assignable.
Held, the lease was intended to create a permanent lease and after the
lapse of the first 20 years did not become a tenancy at will or even one for
an indefinite term and therefore a lease for the lifetime of the grantee.
Where land is let out for building purposes without a fixed period, the
presumption is that it was intended to create a permanent tenancy. This
presumption was not weakened by the fact that the lessee had stipulated
to be entitled to give up possession if and when he decided to do so. It was
an advantage specifically reserved to the lessee and did not confer any
corresponding benefit on the lessor. That the lease was not intended to be
for the life only of the grantee was clear not only from the facts, that it was
meant for building purposes, was heritable and assignable and had*not
reserved any right to the lessor to terminate the tenancy, but also from
the consideration that the lessor would not gamble upon the life of his
lessee when he was making sure of the term of at least 20 years. Sivayogesivara

Cotton

Press,

Davangere

and

Others

M.

Panchaksharappa and Another, 1961 Mys. L.J. 1043 (SC).


No permanent lease could be granted either orally or even by means of an
unregistered deed. Once it is held that the lease as a permanent lease is
invalid, then that lease will have to be treated as a precarious lease.

Sridhara babu. N

Where a lease is invalid (by reason of absence of a registered instrument


as required by Section 107 of the Transfer of Property Act), the fact it is
invalid in law is a matter which the lessee must be presumed to know and
he is not entitled to compensation for the permanent structure erected by
him. He is only entitled to have it removed. - Rama Devadiga v
Ganapami Karantha, 1962 Mys. L.J. 861: ILR 1962 Mys. 250.

UNLESS THE LEASE IS DETERMINED IN ONE OF THE BODIES UNDER


SECTION 11 OF T.P. ACT, THE LANDLORD WOULD NOT BE ENTITLED
FOR RECOVERY OF POSSESSION
Section 21 Karnataka Rent Control Act refers to recovery of possession of
any premises by the landlord, before the landlord approaches the Rent
Control Court under Section 21(1), it is necessary that he should be
entitled for recovery of possession. Unless the lease is determined in one
of the bodies under Section 11 of T.P. Act, the landlord would not be
entitled for recovery of possession, hence an action under Section 21 Rent
Control Act cannot be instituted without first determining the lease. Church of South India Trust Association v Sampangiraman, 1979(1)
Kar. LJ. 85.

CONTRACTUAL TENANCY - CONTRACT TO CONTRARY

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Section 106 of the T.P. Act applies to a contractual tenancy, though


governed by Rent Control Act. - Bhaiya Punjalal Bhagwanddin v Dave
Bhagwatprasad Prabhuprasad and Others, 1962 Mys. LJ. 712 (SC).
When the compromise petition which was incorporated in compromise
decree provided that the transferee should collect arrears of rent due, it is
a contract to the contrary and hence the transferee is entitled to arrears of
rent due before transfer. - Girdharilal (dead) by L.Rs. v Hukum Singh,
AIR 1977 SC 129.
Second para of Section 110 though refers to a lease for a year or number
of years, principles reflected therein will apply even when time limited by
lease is a month or a week or a number of months or weeks - Whether the
tenancy is for year/s or month/s or week/s, principles contained in para
2 would be subject to an agreement to the contrary - Where the duration
of lease was for period from 1-11-1974 to 31-1-1975, tenancy holding
over was held to commence from 1-2- 1975 and such tenancy would be
from month to month and that it should be terminated at the end of the
month of the tenancy - Case-law discussed. - S.P. Gurjar v Muddanna
Shetty, 1990(2) Kar. L.J. 213 : ILR 1990 Kar. 3099.

RENT ACCEPTANCE - WAIVER OF NOTICE


The lessee was holding certain land of lessor for running a mill since
1905. In 1936, the lessee transferred his rights to a Company. In the lease

Sridhara babu. N

deed there was not only an express clause under which the lessee was
entitled to remove the stocks and materials within 4 months after the
termination of the lease but thereafter there was another stipulation that
in case the lessee failed to do so, all the buildings etc., would become the
property of the lessor. The lessor sent to the Company a notice
terminating the lease deed on the ground of breach by the Company of
certain covenants contained therein. The time was allowed to the
Company for the removal of machinery stores etc. The Company,
however, secured an order from a Civil Court prohibiting the lessor from
ejecting it. In land acquisition proceedings at the instance of Company for
its own purpose, the questions were whether there was waiver of notice
by acceptance of rent by landlord, whether there was forfeiture of
tenancy under Section 111(g) of the T.P. Act and whether there was
compliance with Section 114-A of the T.P. Act. The Supreme Court held
that there was no waiver of notice. When there was no evidence to show
that the rent was accepted at any time after the notice was given to
Company, and secondly as the rent was accepted by lessor under protest,
it could not amount to waiver because there was no intention on the part
of the lessor to treat the lease as subsisting. - Basant Lal (dead) by L.Rs.
and Another v State of Uttar Pradesh and Another, AIR 1981 SC 170
When the permanent lease is void for want of sanction, acceptance of rent
by landlord makes the tenant a monthly tenant. Non mention of year in
the notice can be reasonably construed. Where the intention was clear,
not stating that the tenancy is terminated not material. - 1973(2) Mys.
L.J. Sh. N. 300.
TRUST PROPERTY

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When there are several trustee landlords one of them can terminate
tenancy - 1962 Mys. LJ. 57.
LEASES OF INDEFINITE PERIOD
The rule of construction embodied in Section 106 of the T.P. Act is
applicable not only to express leases of indefinite period but also to leases
implied by law which may be inferred from possession and acceptance of
rent and other circumstances. - Ram Kumar Das v Jagdish Chandra Deo,
Ohabal Deb and Another, AIR 1952 SC 23

LESSEE AND THE ASSIGNS


Where the lease is with the lessee and the assigns, the lessee and assigns
being called lessees, the lease permits sub letting, and consent is lessor is
not necessary for sub letting. - 1964 Mys. L.J. Supp. 112.
In the case of a lease there is privity of contract between the lessor and
the lessee and the lessee cannot divest himself of his liability to the lessor
by merely making an assignment of the lease. Assignment of the lease
may result in primity of estate between the assignee and the lessor
inconsequence of which both the assigning lessee and assignee become
liable to the lessor for the payment of rents. - Devidasa Bhatta v B.
Ratnakara Rao and Another, 1965(1) Mys. L.J. 731.
The words "Such consent, however, not to be unreasonably withheld in
the case of respectable or responsible persons" contained in the covenant
in a lease allowing the lessee to assign his interest only with the lessor's

Sridhara babu. N

written consent does not amount to a separate or independent covenant


by the lessor that he would not refuse consent except upon reasonable
grounds in the case of respectable person, but they limit or qualify the
lessor's covenant not to assign the defined premises without the consent
in writing of the lessor. - Kamala Ranjan Roy v Baijnath Bajoria, AIR
1951 SC 1
When the entire interest in land is transferred by lessee with reservation
to take back' possession on failure of transferee to discharge lessee's
liability towards lessor within stipulated time and the lessor accepts part
payment from transferee without recognising him as debtor, the lessee
has right to recover possession according to agreement between the
lessor and the lessee. - Parkash Chand Khurana v Hamam Singh, AIR
1973 SC 2065.
When the tenant has sublet the premises and the subtenant caused
material damage to building, the landlord can evict the tenant on the
grounds that the subtenant has caused damage to the building. There is
no privity of contract between landlord and subtenant. The tenants
obligation to maintain the building in good condition continues even after
creation of sub-tenancy. The tenant is responsible for wrong acts of
subtenant and so liable to be evicted for damage caused by subtenant M/s. Laxmi Narain Gauri Shankar v Gopal Krishan Kahoria and Another,
AIR 1987 SC 8.

LEASE BY AFFLUX OF THE TIME

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Where the tenant did not vacate the premises on the expiry of the lease by
afflux of the time under Section 111(f), T.P. Act, and the case is governed
by the provisions of the T.P. Act, the continuance in possession of the
tenant after the expiry of the lease is unauthorised and wrongful and a
decree for damages are mesne profits is rightly awarded against him. Shyam Charon v Sheoji Bhai, 1978(1) Kar. LJ. Sh. N. 10 (DB).

CLAIM OF TITLE IN HIMSELF ON THE PART OF THE LESSEE


Where the very case of the landlord is based on a contractual tenancy, it
must be determined by a notice in accordance with Section 106, T.P. Act,
for the landlord to earn the right to obtain possession of the leased
premises under the Rent Control Act. This point was allowed to be taken
in revision for the first time. Claim of title in himself on the part of the
lessee would not ipso facto put an end to the lease. It confers a right on
the lessor, if he so elects, to determine the lease by a notice as required by
Section 111(g) of T.P. Act. - Dyamappa Butti v Somappa, 1968(1) Mys.
LJ. 221.

NOTICE CLAIMING RENT AT THE ENHANCED RATE


If a notice claiming rent at the enhanced rate is given by a landlord to his
tenant giving him the option to vacate in case he is unwilling or unable to
pay the enhanced rent and the tenant continues to be in occupation of the
premises without protest, the landlord would be entitled to recover rent
at the enhanced rate, unless the Court finds that the enhanced rate is itself
unreasonable or penal. Where a tenant denied the right of the landlord to

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enhance the rent unilaterally and refused to pay enhanced rent and the
landlord did not take steps to evict the tenant, the tenant is not liable for
the enhancement. The landlord could not unilaterally determine what is
the fair or reasonable rent for the premises and claim it from the tenant
so long as the relationship of landlord and tenant between them had not
come to an end. - J.P. Sagar v State of Mysore, 1964 Mys. L.J. Supp. 605.

NOTICE IN THE ORIGINAL WRITTEN LEASE COULD NOT BE


IMPORTED INTO THE NEW TENANCY CREATED BY HOLDING OVER
A lease of a premises for a period of 10 years on an annual rent of Rs. 100
expired on 15-10-1958. The lease provided that if after five years from
the date of the lease the landlord wants the premises for constructing a
house for his own use he should ask for the premises after giving the
tenant six months' notice. That occasion did not arise and the tenant
continued in possession even after the expiry of the period of lease. On
15-10-1965 the tenant agreed to pay enhanced rent of Rs. 125 per year
and an endorsement was made on the original lease deed. On 19-5-1969
the landlord served notice on the tenant to surrender possession after six
months. On the expiry of the period of six months, the tenant refused to
surrender possession. Held, (1) The notice issued was not in accordance
with the terms of the lease. (2) That the term as to notice in the original
written lease could not be imported into the new tenancy created by
holding over and the necessary consequence was that the notice issued by
the landlord was invalid. - E. Keshavayya v R, Namsimha Prabhu,
1975(2) Kar. L.J. 232 : AIR 1976 Kant. 41.

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LEASE OF FISHERY
A lease of fishery which is immoveable property as defined by Section
2(6) of the Registration Act, if it is for any term exceeding one year or
reserves a yearly rent should be registered by Section 17(l)(d) of the
Indian Registration Act, 1908 and Section 107 of the Transfer of Property
Act. - Bihar Eastern Gangetic fishermen Co-oper.ative Society Limited
v Sipahi Singh, AIR 1977 SC 2149.

ALTERING EXISTING REGISTERED LEASE DEED


Any agreement which alters the essential terms and conditions of an
existing registered lease must be registered. - Sunil Kumar Roy v M/s.
Bhaiura Kankanee Collieries Limited, AIR 1971 SC 751.

HEREDITABILITY OF TENANCY OF INDEFINITE TERM


The Courts in India cannot apply the principle of Law that if the term
mentioned in a lease is definite the interest of the lessee is heritable and if
the term mentioned is indefinite, the interest of the lessee is not heritable.
Whether the interest is heritable entirely depends on the wordings of the
document and the intention of the parties. - Narayan Narasimha
Deshpandey v Kasiroya Sangappa, 1960 Mys. L.J. 530.

LEASE - OF IMMOVABLE PROPERTY FOR PERIOD NOT EXCEEDING


ONE YEAR

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Registration and attestation of lease deed not required - Examination of


attestor not required to prove execution of such deed. Held: Section 107
of the Transfer of Property Act deals with the procedure as to how leases
have to be made. Section 107 does not require attestation of a lease not
exceeding one year. When the lease deed requires no attestation, Section
68 of the Evidence Act will not be applicable and lease deed could be
proved by examining the scribe as done in this case. - T. Anthonidas alias
T.A. Das v S.P. Mariyappa, 1996(3) Kar. LJ. 329A.

Lease of immovable property from year to year - Mandatory that such


lease should be by registered instrument - Where it is not so made, tease
is to be taken as monthly lease for purpose of Section 106 of Act. Held:
Under Section 107 of the Act, it has been provided that a lease of
immovable property from year to year or for any term exceeding one
year, or reserving a yearly rent, can be made only by a registered
instrument. In view of this statutory provision, it was mandatory to
execute a registered instrument, if the tenancy was contemplated to be
annual in nature. In the present case, since admittedly it was not made by
a registered instrument, the lease cannot be taken to be an annual lease.
Therefore, necessarily it has to be taken as a monthly lease for the
purpose of Section 106 of the Act. - Virupakshaiah alias Veeraiafi v
Shivaputrappa Basappa Golappanavar, 1996(5) Kar. L J. 53A.

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VOID LEASE - REGISTRATION COMPULSORY


Where a verbal agreement was made for the grant of a lease for 5 years
and in anticipation of execution of a lease deed, the lessee was put in
possession by the lessor who received 3 months rent as advance but no
lease deed was executed, it was held that lease was void because of the
prohibition under this Section. - National Textile Corporation Limited v
Malathesha Enterprises and Another, 1980(2) Kar. LJ. 335.

When there is a lease agreement in respect of a building for indefinite


period for carrying on business in which the rent payable by the lessee is
agreed to be settled on basis of percentage of profits earned after 15
months from commencement of lease. The lease is evidenced by
unregistered document. It was held that the lease was one for a period
exceeding one year and hence registration was compulsory under Section
107 of the T.P. Act. - Delhi Motor Company and Others v U.A.
Basrurkar (dead) by his LRs. and Others, AIR 1968 SC 794.

MULGENI LEASE
Where a mulgeni lease (in South Kanara District) stated that 'if any timber
trees were cut and removed, the lease was liable to be forfeited and
determined'. Held, this provision indicated that there was a prohibition to
cut and remove timber trees and the lessee had no right in respect of
timber trees. That the lessor has no rights in future growth has been

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recognised to be the principle prevailing in respect of trees in South


Kanara in regard to permanent leases. Hence, on the basis of the custom
or usage prevailing, and in the absence of any specific term in regard to
future growth, the tenant would be entitled to rights in trees of
spontaneous growth or that came to be planted after the date of the lease
deed : and the landlord would have no right to interfere with the right of
tenant to such tree. - Seethamma v Louis Patroo, 1975(1) Kar. LJ. Sh. N.
36.
According to the terms of the mulgeni instrument, the tenant had a right
to continue to be in possession of the property from generation to
generation, the landlord having no right to resume the land. The only
right reserved for the landlord was the right to recover the rent as and
when it fell due and to recover it by the enforcement of a charge, which
had been created on the property, leased to the tenant. The only process
by which the landlord would perhaps be entitled to recover possession of
the land was when there was a reversion to him of that land by reason of
the death of the tenant for the time being, who left no heirs and died
intestate. The tenant cut and removed five trees, which were in existence
at the time of the lease. Held, (1) A lessee has no right to cut or destroy
trees which existed on the leased premises when the lease was created,
but that trees which have subsequently been planted on the premises by
the lessee or which have spontaneously grown after the commencement
of the lease may be so removed or cut by him. (2) The value of the trees
removed would not represent the correct measure of damages, as the
landlord had no right to the immediate possession of the land or to the
trees. The measure of damages must rest on the dimunition in the value of
the reversion and the dimunition in the security. The proper damages
would be to estimate the diminution in the value of the property and

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deduct from it a discount for immediate payment. - Madhwaraya Udpa v


Dasa Tantri, 1963(2) Mys. LJ. 416: AIR 1964 Mys. 179.

PUTTING UP FIRST FLOOR ON TERRACE BY LESSEE


Lessee running business of manufacturing vermicelli using terrace
portion for drying vermicelli - Lessee commenced putting up first floor on
terrace - Lessee obtained an order of temporary injunction - Contended
that lessor had not reserved right of re-entry and thus had no right to put
up 'building' on thereof - Rights of lessor. Held, The view that roof is not
included in the definition of 'building' appears to prima fade wrong. The
terrace is the top portion of the roof. Merely because the landlord has not
reserved the right of re-entry, it does not mean that he has no right to put
up the first floor. His right to put up first storey on the terrace of the
building cannot be defeated only in the ground that he has not reserved
the right of re-entry. If interference does not affect the object of the lease
for which it is taken, then it cannot be said to be an interference with the
quiet enjoyment of the building. - Salauddin v Bommegowda, ILR 1985
Kar. 2959.

TERM OF LEASE
When lease is made for a specified term a third person gets into
possession under title alleged to be derived from the lessee under certain
transfers. Lessor questions the validity of the Transfer and sues the third
person for possession. HELD, lessor cannot succeed till the expiry of term

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of lease - Parashram Mahadeo v Rajen Textile Mills (.Private)


Limited, AIR 1975 SC 2079.

COURT IS NOT AT LIBERTY TO BREAK UP THE CONTRACT


When the premises are let for residential and non-residential purposes,
the contract of tenancy should be deemed to be single and indivisible. The
Court is not at liberty to break up the contract. That the relief should be
limited to that portion which is used for residential purposes is not valid. Miss S. Sanyal v Gian Chand, AIR 1968 SC 438.

ACCESSION TO ADJOINING AREA OF LEASED PROPERTY


Encroachment by tenant during tenancy upon landlord's vacant land
adjoining tenanted premises - Presumption is that land encroached upon
are added to tenure for benefit of tenant so long as tenancy continues Tenant cannot acquire title to encroached land by adverse possession but
obtain only right of tenancy under landlord - Tenant is obliged to hand
over encroached area also to landlord on determination of lease along
with premises originally demised. Held.-There is a presumption that
whenever a lessee or a tenant encroaches upon the adjacent area to his
leased or tenanted premises, then such encroached area or premises or
property, also gets included as the 'Leased or Tenanted' property and the
tenant is obliged to protect the landlord's rights in respect of the
encroached area also, and deliver up unto the landlord at the end of
tenancy the said encroached area alongwith the original tenanted or

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leased area. . . . The open space on the northern and eastern side of the
leased portion prima facie belong to the landlord. This disputed vacant
land is also to be considered as tenanted property. If it is held as a
tenanted property then the relationship of the petitioner in respect of the
disputed property is also to be held as one of landlord and tenant. In that
view the petition under Section 21(1) is maintainable for eviction. - Syed
Nazmuddin v N.S. Krishna Murthy, ILR 1998 Kar, Sh. N. 65.

When the lessee claims accession to lease hold land and makes
contradictory pleas in the alternative, the claim for accession of land by
the lessee cannot be sustained. - Chapsibhai Dhanjibhai Dand v
Purushottam, AIR 1971 SC 1878.

ACT OF COURT SHALL NOT INJURE ANY ONE


Section 108(e) - Kamataka Rent Control Act, 1961, Sections 21(l)(h) and
(j), 25, 26 and 27 - Lease and right of re-entry - Termination of lease not
automatic when leasehold is destroyed - It is at option of lessee - Right of
entry under Rent Control Act is traceable to provisions of Section 108(e)
of Transfer of Property Act - Interest of tenant does not survive in case of
eviction under Section 21(l)(h) - His interest survives in case of eviction
under Section 21(l)(j) - Court has ample power to protect tenant's
interest in case of eviction under Section 21(1 )(j). Held: The interest of
the tenant does not survive in view of the order of eviction under Section
21(l)(h) of the Act. This power of the Court can be traced to the analogous
rights of the parties that subsists under Section 108(e) of the Transfer of
Property Act. Under general law as codified in the Transfer of Property

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Act, the tenant is entitled to treat the lease as subsisting in the event the
landlord of his own accord destroys the tenament. His remaining in
possession of the premises in question would be legal and the landlord is
not entitled to prevent his retaining possession. But in a case under
Section 21(l)(j), such entry and demolition of the tenament has taken
place under the authority of law. The authority of law conferred on the
landlord permitted him to enter into the leasehold property, pull down
the building only on his undertaking to reconstruct the same. If he abuses
this permission, namely, fails to honour his undertaking, his remaining in
possession of the premises after demolishing the building is tantamount
to remaining there without the authority of law. It is as if he had no
permission at all to enter the property and pull down the building. If that
be so, the principle that the act of Court shall not injure any one should be
applied and the Court be empowered to give all directions as is in law a
party is entitled to, so that the parties will be restored to the position
prior to the permission being granted under Section 21(l)(j) of the
Karnataka Rent Control Act. This can be achieved only if permission is
granted to the tenant to resurrect or reconstruct the building that is
demolished by the landlord. If that be so, in a case of eviction under
Section 21(l)(j), the Court has ample power and is bound as well to issue
such appropriate directions to meet the ends of justice which will enable
the tenant to reconstruct the building as well. - Baburao Ganpatrao
Tirmalle v Bhimappa Venkappa Kandakur since deceased by his
L.Rs., 1996(2) Kar. LJ. 32F.

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TENANT ATTEMPTING TO CARRY OUT REPAIRS TO RENTED SHED


AND PUT UP PERMANENT STRUCTURE WITHOUT LANDLORD'S
PERMISSION, ILLEGAL.
The suit is in between the landlord and tenant. The rent karar was for a
period of 11 months and therefore the defendant's position is that of a
tenant holding over. Even then if the defendant felt insecurity or wanted
certain repairs to the building as a measure of security, he had every right
to approach the landlord, obtain his permission and put up construction.
There is nothing to indicate in the evidence that defendant at any time
approached the plaintiffs and obtained permission. Section 108(f) of the
Transfer of Property Act provides a remedy in a situation where the
landlord neglects or refuses to effect necessary repairs. Sub-section (h)
empowers him to remove such fixtures even after the determination of
the lease subject to the condition that he leaves the property in the state
in which he received it. These things and the question of law on the point
have been ignored by the Appellate Court in considering the evidence
both oral and documentary. It is an error in law and defect in procedure
which requires to be corrected in appeal. - Noorulla Amin Musuba and
Others v Chandru Sheniyar Naik, 1996(6) Kar. LJ. 275D.

LESSOR IS ENTITLED TO REMOVE COMPOUND WALL PUT UP


WITHOUT HIS CONSENT.

Even to effect repairs the tenant is expected to give notice to the landlord.
In the instant case the appellants have not even bothered either to

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intimate the landlord or obtain necessary permission for the purpose of


erection of compound. Further, the appellants also never bothered to
know from the landlord regarding measurement of the premises bearing
No. 17. Further, the appellants are also not able to establish that they had
put up the compound within the premises bearing No. 17. Under these
circumstances the Trial Court is justified in not exercising its discretion in
the matter of granting injunction in favour of the appellants. .... The Trial
Court having considered all the materials placed before it declined to
grant injunction in favour of the appellants. If that is so, there is no reason
to interfere in the order of the Trial Court in these two appeals. - The
Home School, Bangalore and Another v M. Shaft Ul Haji and Another,
2001(6) Kar. L.J. 93.

OWNERSHIP/REMOVAL OF BUILDING CONSTRUCTED BY TENANT DEPENDS ON CONTRACT.


Lease of vacant land - Condition permitting lessee to construct building on
leasehold land and requiring him to surrender possession of land with
building on expiry of lease without compensation - Ownership of building
vests in lessee so long as lease is subsisting, and on expiry of lease, it
passes on to lessor - Matter is one of contract between parties. Normally,
under Section 108 of the Transfer of Property Act, before the expiry of the
lease, a lessee can remove all structures and building erected by him on
the demised land. All that was necessary for him to do was to give back
the land to the lessor, on the termination of the lease, in the same
condition as he found it. The ownership, therefore, of the building in this
case was not with the lessors but was with the lessees. Under Section 108
of the Transfer of Property Act, there was nothing to prevent the lessees

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contracting to hand over any building or structure erected on the land by


them to the lessors without receiving any compensation. In other words,
although under Section 108 the lessees had the right to remove the
building, by the contract they had agreed to hand over the same to the
lessors without the right to receive compensation at the end of the lease,
the matter being entirely one of contract between the parties. Such a
contract, however did not transfer the ownership in the building to the
lessors while the lease subsisted. - S. Shivamthan (deceased) by L.Rs. v
S.G. Narayana, ILR1998 Kar. Sh. N. 90.

A lessee who has put up a building with the consent of the landlord on the
leased premises, is not entitled to be compensated for the costs incurred
by him in respect of the structures put up by him, when the tenancy is
terminated and when he is called upon to quit and deliver the possession
of the property to the lessor - Mohammad Hayat Sahab v Radhakrishna
Bhaktha, 1968(1) Mys. L.J. 63
Where lessee has agreed to construct building of value of not less than Rs.
15,000/- which at the expiry of the lease was to become the property of
the lessor and the building valued at Rs. 50,000/-, the lessor is entitled to
building and not merely structures worth Rs. 15,000/-. Y:V. Srinivasa
Murthy by L.Rs. v Pillamnw and Others, 1973(2) Mys. L.J. 399.

When the Lease deed provides for passing of ownership of superstructure


built by lessee to lessor after expiry of tenancy, the lessor is under
obligation to pay certain percentage of market value of structure to lessee

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under the agreement. The lessee cannot retain possession until amount is
paid - Madan La! v BHai Anand Singh, AIR 1973 SC 721.

The lessor is not debarred from determining the lease or filing a suit for
ejectment merely because the lessee has made construction to the
knowledge of the lessor - Jagat Ram Sethi v Rai Bahadur D.D. Jain, AIR
1972 SC 1727.

CHALGENI LEASE
A lessee under a chalgeni lease may, in the absence of a prohibition
contained in the lease itself assign his lease hold interest for the duration
of the term of the lease or the balance of it at the time when the
assignment is made. After the expiry of the term of the lease, the assignee
has no interest subsisting as to entitle him to a declaration of his being a
chalgeni tenant. A renewal of the lease by the tenant holding over and the
landlord receiving the rent, is a renewal of pre existing contractual
relationship, and the benefit of such renewal cannot be claimed by the
assignee after the expiry of the term. - Umamaheshiuara Temple by
Trustee v Leo Cresta, 1966(2) Mys. LJ. 483.

LESSEE FILING SUIT FOR MANDATORY INJUNCTION


Certain part of land was leased to a person. The lease granted a portion of
a land on license to another for a specified period. The license was

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terminated after the expiry of the period. The lessee against licensee filed
a suit for mandatory injunction. The licensee claimed to have purchased
the land from the owner. Suit by lessee for possession is maintainable. See
Specific Relief Act, 1963, Section 6. - Sant Lal Jain v Avtar Singh, AIR
1985 SC 857.

SUB-LESSEE RIGHTS
Premature surrender of leasehold rights by main lessee and its effect on
right of sub lessee - Such surrender does not operate as eviction of sub
lessee - It only brings sublessee into direct contact with lessor, making
sub lessee himself main lessee under lessor on terms of existing sublease If, after such surrender, new lease is entered into with third party, such
third party who has become new lessee, does not step into shoes of his
predecessor lessee who had created sublease and does not ipso facto
become landlord of sub lessee for purpose of evicting sub lessee - Where
main lessee, partnership firm, had prematurely surrendered its leasehold
rights after creating sublease, and on such surrender, third party
individual became main lessee, new lessee does not become landlord of
existing sublessee for purpose of evicting him. Held: It is well established
that the lease is a transfer of interest in immoveable property. Section 105
of the Transfer of Property Act, 1882 provides that a lease of immoveable
property is a transfer of right to enjoy such property made for a certain
time, express or implied, and for consideration. Clause (j) of Section 108
of the T.P. Act, subject to any contract to the contrary, authorizes the
lessee to sublease the whole or any part of his interest in the leasehold

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property. .... During the subsistence of the lease, the sublessee in whom
the lessee's interest is vested, acquires right to continue in possession
over the demised premises during the subsistence of the lease. Therefore,
coming to the facts of the present case, but for the surrender of the lease
by the head lessee i.e., the firm, the petitioner was entitled to continue his
possession over the petition premises till 1978 in his own right since the
lease in favour of the firm was for a period of 9 years. . . . .Despite the
above noted statutory provisions and consequent right of the petitioner
flowing there from, the same was sought to be destroyed by the
respondent on the strength of a registered lease deed dated 6-2-1974
obtained from the owner by taking a plea that he had obtained the said
lease on surrendering of its leasehold rights by the firm and thus, he has
stepped into the shoes of erstwhile lessee firm. Thus, according to him,
he has become landlord of the petitioner as defined under Section 2(h) of
the KRC Act. According to the said provision, in respect of a subtenant, the
tenant, who has sublet the premises is the landlord for the purposes of the
said Act.. . .It is no doubt true that the sub lessee's interest being carved
out of lessee's interest, it will, as a general rule, be determined by the
determination of the lease itself. But, determination by surrender of the
lease by the lessee is an exception to this general rule. Surrendering being
a voluntary act on the part of the lessee, the principle that a man cannot
derogate from his own grant will come into play and the lessee's action
will not be allowed to prejudice the sub lessee. It is this equitable
principle, which has been incorporated in Section 115 of the T.P. Act. By
operation of this statutory provision on surrender of the lease by the
head-lessee, the sub lessee becomes a lessee of the lessor on the terms of
the sublease. Thus, the under lessee, by operation of law is brought into
direct contact with the lessor, except where surrender is made by the
head lessee for obtaining new lease. .... .The plea raised by the respondent

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is that before the lease was granted to him on 6-2-1974, the firm had
expressly or impliedly surrendered the lease granted in its favour. If that
be so, then by operation of the statutory provisions under Section 115 of
the T.P. Act, the petitioner being the under lessee, himself became the
head lessee under the Math. Therefore, there could not have been any
occasion for granting any competing lease to the respondent in respect of
the petition premises. For this reason, it has to be held that respondent at
no point of time, became the landlord of the petitioner for the purpose of
the K.R.C. Act entitling him to maintain any eviction proceedings there
under against the petitioner. - Krishnasa Kheerasa Habib v Shah
Parasmal Pittaji Jain, 2000(1) Kar. LJ. 12.

THE TENANT IS NOT ENTITLED TO SUSPEND PAYMENT OF RENT


When landlord fails to give possession of one out of three bed rooms of
demised premises, the tenant is not entitled to suspend payment of rent,
but he must pay proportionate rent. - Surendra Nath Bibra v Stephen
Court Limited, AIR 1966 SC 1361.

PURPOSE OF LEASE
The purpose of lease of certain land was that the premises was not to be
used for any purpose other than the specified purpose. When the tenant
uses the premises for other purpose which is connected with the main
purpose, it could not be said that the premises was used for the purpose

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other than that of the lease. The inhibition of Section 108(o) is not
attracted. - Jnan Ranjan v Arun Kumar, AIR 1975 SC 1994.

POSSESSION ON THE EXPIRY OF THE LEASE

A condition that the lessee has to put the lessor in possession on the
expiry of the lease is to be read in the lease even in the absence of such
condition. - Thayarammal v People's Chanty fund and Others, 1978(1)
Kar. LJ. 438.

FUTURE LESSEE RIGHT TO EVICT EXISTING LESSEE

When the lease is to commence from expiry of the existing lease, the
lessee can sue for eviction of original lessee. The right of transferee under
the Section is not curtailed by Rent Control Act. See Karnataka Rent
Control Act, Sections 3, 4 and 31. - N. Venkataramana Bhat v A. Prabodh
Naik and Others, 1975(1) Kar. LJ. 262.

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DETERMINATION OF LEASE
Where a widow having a right of residence in a family house created a
tenancy, such lease stood determined on her death. Section lll(c). See T.P.
Act, Section 6(g). - Bhujabalappa Anandappa Baragali and Another v
Veerappa Mahabaleshappa Doddamani, 1966(2) Mys. L.J. 56.
Lease is determined on expiration of notice to determine thereof - Lessee
is bound to put lessor into possession of property, on determination of
lease - Question of bona fide requirements of landlord not required to be
gone into - Provisions of Section 21(1) of Karnataka Rent Control Act,
1961 regarding eviction of tenant are not attracted when suit is under
Transfer of Property Act and suit premises are situated in place to which
provisions of Rent Control Act do not apply. Held: The suit instituted by
the appellant under the provisions of the Transfer of Property Act, 1882.
The property in dispute is situated in Akki-Alur village to which
admittedly the provisions of the Karnataka Rent Control Act, 1961 do not
apply. Therefore the question of bona fide requirement of the premises
for appellant's use was not a matter that was required to be gone into.
The appellant incidentally or inadvertently referred to the requirement of
the premises for his bona fide occupation but the appellant was not
required to prove that averment of bona fide requirement of the premises
for a decree of eviction. In a suit under the provisions of the Transfer of
Property Act, 1882 under Section 108 of the Transfer of Property Act,
1882 under clause (q), on the determination of the lease the lessee is
bound to put the lessor into possession of the property. Section 111,
Transfer of Property Act which deals with determination of lease states

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that lease of immovable property determines on the expiration of a notice


to determine the lease, or to quit, or of intention to quit, the property
leased, duly given by one party to the other. - Shantaveerappa Puttappa
Chaushetti v Gangaram Hemajeppa Kalal (since deceased) by L.Rs.
and Others, 1996(3) Kar. L.J. 338.

SALE OF AGRICULTURAL LAND - WHERE TENANCY EXISTED


An agreement to sell was executed in favour of the plaintiff, a tenant and
the tenant continued in possession and in execution of a money decree
against the plaintiff-tenant, the property was brought to sale and
purchased by the decree-holder and thereafter the plaintiff brought a suit
for declaring the execution sale as void and not binding on him. No
objections were filed by plaintiff after the notice under Order 21, Rule 66
of the CPC was served on him. Section 28 of the Bombay Tenancy and
Agricultural Lands Act prohibited Sale of tenancy rights. Held, that the
question whether the plaintiff's rights of tenancy in the suit land got
merged in the rights acquired by plaintiff under Section 53-A of the
Transfer of Property Act cannot be raised for the first time in second
appeal. Since only the right to ask for specific performance had been
acquired by the plaintiff under the agreement to sell and since such right
does not constitute an interest in immoveable property, there was no
merger of the tenancy rights of the plaintiff with the right under the
agreement to sell, under Section 111(d) of the Transfer of Property Act.
Therefore, there was no bar of constructive res judicata to the plaintiff's
suit, which was in respect of his rights as tenant and which were not

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brought to sale. The bar under Section 34 of the Specific Relief Act applies
when the plaintiff is entitled to ask for consequential relief but abstains
from doing so. As the plaintiff did ask for the consequential relief of
possession but the Court found that he was not entitled to it, the bar
under Section 34 of the Specific Relief Act did not apply and the plaintiff
was therefore entitled to a declaration that the execution sale was void. Rangarao

Ramarao

Deshpande

Channappa

Basappa

Lakshmanahalli , 1974(2) Kar. L.J. 208 : AIR 1975 Kant. 155

TENANT PURCHASING LAND FROM ONE OF MEMBERS OF JOINT


FAMILY
Lease - Determination of - Tenant of land forming part of joint family
property purchasing land from one of members of joint family - Since
what he has purchased is only undivided share of member in joint
property, he has no right to possession, either exclusive or joint, and
consequently there is no merger of interests of lessee and lessor in
property in himself - Lease in such case is not determined. Held: Section
111(d) of the Transfer of Property Act provides that lease of immovable
property determines in case the interests of the lessee and the lessor in
the whole of the property become vested at the same time in one person
in the same right. Therefore, it is clear that it is only in case the interest of
the lessee and the lessor in the whole of the property stands vested at the
same time in one person in the same right, there would be determination
of lease. In the instant case, where the original tenant has acquired only
one-fifth undivided interest of the lessor, it cannot be said that there is
determination of the lease. If there is no determination of lease, the
agrarian relationship of landlord and tenant continues. In the instant case,

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both the original tenant as well as his sons did not seek for partition of
one-fifth undivided interest in the land and take even symbolic possession
of the same. Therefore, the conclusion reached by the Appellate Authority
that since the original tenant had purchased one-fifth undivided interest
in the land in question from the landlord, the petitioners are not entitied
for conferment of occupancy right, is unsustainable in law. The order
impugned is liable to be sot aside. - Tukaram Govind Naganvakar
(Deceased) by LRs. and A nother v State of Kamataka and Others,
2001(4) Kar. LJ. 505C

LESSEE ENTERING INTO CONTRACT FOR PURCHASE


Lessee entering into contract for purchase and entitled to possession
under Section 53-A - Lease stands extinguished. - Champalal
Bhaktawarmal v Smt. Sumithramma by LRs, 1972(2) Mys. LJ. 242 :
AIR 1973 Mys. 110.

For some years prior to 1949 the suit property was let out by plaintiff to
defendant and defendant was running a Hotel. On 19-12-1949, plaintiff
conveyed the suit property to defendant for Rs. 7,000/- with a covenant
for re-purchase for the same consideration within ten years of the
documents. It is also stipulated that during the period subsequent to
reconveyance, defendant should not be dispossessed for the 10 years
from the date of the sale and that the defendant should be hi occupation
as tenant on the same rent as before. Plaintiff sued for specific
performance of agreement for reconveyance. Held.-The transaction of

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1949 was a sale and not a mortgage, and it brought about the
extinguishment of the previous lease by merger under clause (d) of
Section 111 of the T.P. Act. The covenant that during the period between
the reconveyance and the expiry of 10 years from the Deed, the defendant
should be in occupation as a tenant should be regarded as an agreement
by plaintiff to grant a lease on the happening of a future contingency and
not as providing for a revival of the previous lease. Further, no deed of
reconveyance having been executed within time, the plaintiff was relieved
of necessity of granting the lease. Hence plaintiff was entitled under the
deed of 1949 to a Deed of reconveyance and to possession - Shankara
Rao Rama Rao v Ekiwth Mallappa, RSA No. 360/1963, dated 13-71966.

RELINQUISHMENT OF THE LEASE - SURRENDER


A letter by the lessee stating that the leased premises had been kept
vacant does not amount to relinquishment of the lease - State of Mysore
v B.R. Ramoo, 1967(2) Mys. LJ. 625.

Implied surrender determining lease - Surrender can be implied from act


of lessee abandoning possession and that of lessor taking over possession
- Doctrine of Estoppel is basis of implied surrender - One of joint tenants
vacating premises amounts to implied surrender on his part. Held:
Section 111(f) of Transfer of Property Act provides that a lease of
immovable property determines by implied surrender. Surrender can be

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implied from such facts as the relinquishment of possession by the lessee


and taking over possession by the lessor. Implied surrender has its basis
on the Doctrine of Estoppel. If a tenant abandons or relinquishes
possession of the leasehold premises and the landlord acting on the basis
of such conduct of the tenant either takes over possession or where the
tenant who has abandoned that premises happens to be one of the joint
tenants does something to his detriment there would be an implied
surrender of the right of such tenant or joint tenant. - Akkatai alias
Sujata v Baburao SattappaAngol (dead) by L.Rs. 1995(6) Kar. LJ.
219B.
A waiver is an intentional relinquishment of a known right. There could
be no waiver unless the person against whom the warver is claimed had
full knowledge of his rights and of facts enabling him to take effectual
action for the enforcement of such rights. - Associated Hotels of India
Limited v S.H. Sardar Ranjit Singh, AIR 1968 SC 933.

AGREEMENT RESERVING RIGHT OF RE-ENTRY TO LANDLORD RIGHT DOES NOT AUTHORISE BOARD TO FORCIBLY RESUME
POSSESSION

Determination of - By forfeiture - Agreement reserving right of re-entry to


landlord - Right does not authorise Board to forcibly resume possession Possession to be resumed either by initiating proceedings under
Karnataka Public Premises (Eviction of Unauthorised Occupants) Act,
1974 or by filing suit. Held: The power of re-entry and 'resumption' that is

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reserved by the Board in the lease-cum-sale agreement, does not


authorise the Board to directly or forcibly resume possession of the
leased land, on termination of the lease. It only authorises the Board to
take possession of the leased land in accordance with law. In this case,
that can be either by having recourse to the provisions of the Public
Premises Act or by filing a Civil Suit for possession and not otherwise. M/s. Hanuman Silks and Another v Karnataka Industrial Areas
Development Board and Others, 1996(7) Kar. LJ. 277C

MERE ACCEPTANCE OF RENT FOR AND ON BEHALF OF THE LAND


LORD WILL NOT CREATE A TENANCY BY HOLDING OVER

The Touring Cinema of Respondent 1 was located on a site, which he


obtained under a Lease on 3-1-1979 for 11 months. After the expiry of the
lease, he has been paying rent to the son of the owner til] May, 1980.
When the renewal of the Cinema Licence was sought for, the owner
objected that Respondant 1 had no right to continue in possession.
Respondant No.l had filed a suit against the owner and obtained a
temporary injunction restraining interference with his possession the
District Magistrate granted Renewal of Licence. The same was challenged
in a Writ Petition. It was held that Respondant No. 1 cannot be said to be
in lawful possession of the site within the Rule 6 of the Cinema Rules. The
temporary injunction only protected Respondant 1 against unlawful
interference by the owner and was not conclusive, much less indicative of
the fact that Respondant No.l was holding over or a person in lawful

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possession of the site. There being no evidence that the owner's son was
authorised to receive rents for and on behalf of the owner, nor any
evidence that during the term of the written lease, the son was also
receiving the rent, mere acceptance of rent for and on behalf of the land
lord will not create a tenancy by holding over. - Kanthamma v S.A.
Sudarshan and Another, 1981(2) Kar. L.J. 249.

LEASE CONSISTING OF AGRICULTURAL LAND AS ALSO HOMESTEAD.


Main lease consisting of Agricultural land as also homestead. When Sub
lease of homestead only is made all such sub-leases are Agricultural
leases. The question should not be reopened even though the correctness
of the view is open to question. The rule that where terms of Statutes or
ordinance are clear then even a long and uniform course judicial
interpretation of it may be over ruled, if it is contrary to clear meaning of
enactment, is in applicable to decisions on the basis of which titles and
transactions must have been founded. - Nirshi Dhobin and A nother v
Dr. Sudhir Kumar Mukherjee and Others, AIR 1969 SC 864.

ILLUSTRATIONS IN T.P ACT

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(a)

A, the lessor, gives B, the lessee, notice to quit the property leased.

The notice expires. B tenders and A accepts, rent which has become due in
respect of the property since the expiration of the notice. The notice is
waived.
(b)

A, the lessor, gives B, the lessee, notice to quit the property leased.

The notice expires, and 6 remains in possession. A gives to B as lessee a


second notice to quit. The first notice is waived.
(c)

A lets a house to B for 5 years. B underlets the house to C at a

monthly rent of Rs. WO/-. The 5 years expire, but C continues in


possession of the house and pays the rent to A. C's lease is renewed from
month to month.
(d)

A lets a farm to B for the life of C. C dies,,but B continues in

possession with A's assent. B's lease is renewed from year to year.

Supreme Court in Smt. Shanti Devi v. Amal Kumar Banerjee, Air 1981
Sc 1550, wherein it was held that where the lease was for a definite
period and the said period expired by efflux of time and there was
no allegation of lessee holding over, in such a case there was no
requirement of issuing notice for determination of the lease.

NOTICE TO QUIT AND NOTICE TO DETERMINE TENANCY BY


FORFEITURE IS DIFFERENT
Yashpal Lala Shiv Narain vs Allatala Tala Malik Waqf Ajakhan AIR
2006 All 115 Quoted Geetabai Namdeo Daf v. B.D. Manjrekar AIR

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1934 Bombay 400, Observations The legal position to be noted is that


there is a world of difference between liability of the tenant for eviction
on the ground of forfeiture of tenancy and his liability on the ground of
termination of the tenancy by a notice of termination simpliciter. The law
relating to determination of tenancy is incorporated in Section 111 of the
Transfer of Property Act. There are various reasons for determining the
tenancy and there exist various modes by which the tenancy comes to an
end. If the tenancy is, to come to an end by virtue of the principle of
forfeiture, what is required under the law is that the tenancy should be for
a particular period and the lease deed must contain a clause of forfeiture
on the ground of breach of certain conditions of the tenancy. If the breach
is committed. the tenancy becomes liable for forfeiture even before the
expiry of the agreed period of the tenancy. When the tenant incurs
forfeiture, there is a further thing required to be done by the landlord,
namely, that the landlord must exercise his right of forfeiture either
expressly or by necessary implication. If he exercises the right of
forfeiture, then the tenancy comes to an end even before the agreed
period of tenancy. In such a case no question of notice of termination of
tenancy as provided by Section 106 of the Transfer of Property Act arises,
although, in certain cases, some kind of notice indicating cxercise of the
right of forfeiture by the landlord may be advisable. On the other hand,
when the lease is not for particular fixed period but is only a periodical
lease fide a yearly lease or a monthly lease and if the agreement of
tenancy provides that the lease can be terminated by notice of
termination as contemplated by Section 106 of the Transfer of Property
Act, no question of for feiture as such arise. If the lease is capable
of being terminated by a notice of termination under Section 106 of the
Transfer of Property Act, the legal position is not that the tenancy is
terminated by forfeiture. Termination of tenancy on account of forfeiture

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is an entirely different concept, and the court must bear in mind that the
concept of termination of tenancy on account of forfeiture and the
concept of termination of tenancy by a notice to quit under Section 106 of
the Transfer of Property Act are two distinct and Independent concepts.
In the instant case no doubt the plaintiff-landlady had a grievance against
the defendant that he had innate reluctance to pay the rent. It may be also
true that the motive behind terminating the tenancy was the tenant's
reluctance to pay the rent; but still when the tenant remained in arrears
of rent, no such thing as forfeiture was incurred by him, because the
tenancy was not for any fixed period, and hence there was no question of
there being any forfeiture clause in the agreement. Further, when the
landlady terminated the defendant's tenancy on account of her
dissatisfaction about him, no forfeiture was enforced by her, once again
because there existed no forfeiture clause in the agreement of tenancy.
The fact that the tenant had been guilty of non-payment of rent is just one
of the historical facts having no relevance whatsoever with the landlady's
right to terminate the tenancy. . I will explain the position further. If
there existed a forfeiture clause to the effect that on account of breach of
certain conditions of tenancy the landlady would be entitled to forfeit the
tenancy, any number of notices she might give and still the tenancy would
remain unaffected, if no breach of any of the conditions of the tenancy was
committed by the tenant. On the other hand, if there existed, no forfeiture
clause but the landlady was entitled to terminate the tenancy, the tenancy
being a monthly tenancy, the notice of termination will be effective in law,
even if no breach whatsoever was committed by the tenant. This is the
position in law resulting directly from the provisions of Section 111 of the
Transfer of Property Act.

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MERE ACCEPTANCE OF RENT AMOUNTS DOES NOT AMOUNTS TO


WAIVER OF NOTICE TO QUIT UNLESS THERE BE ANY OTHER
EVIDENCE TO PROVE OR ESTABLISH THAT THE LANDLORD SO
INTENDED
Sarup Singh Gupta vs S. Jagdish Singh And Ors. AIR 2006 SC 1734, In
the instant case, as we have noticed earlier, two notices to quit were given
on 10th February, 1979 and 17th March, 1979. The suit was filed on June
2, 1979. The tenant offered and the landlord accepted the rent for the
months of April, May and thereafter. The question is whether this by itself
constitute an act on the part of the landlord showing an Intention to treat
the lease as subsisting. In our view, mere acceptance of rent did not by
itself constituted an act of the nature envisaged by Section 113, Transfer
of Property Act showing an Intention to treat the lease as subsisting. The
fact remains that even after accepting the rent tendered, the landlord did
file a suit for eviction, and even while prosecuting the suit accepted rent
which was being paid to him by the tenant It cannot, therefore, be said
that by accepting rent, he intended to waive the notice to quit and to treat
the lease as subsisting. We cannot ignore the fact that in any event, even if
rent was neither tendered nor accepted, the landlord in the event of
success would be entitled to the payment of the arrears of rent. To avoid
any controversy, in the event of termination of lease the practice followed
by courts is to permit the landlord to receive each month by way of
compensation for the use and occupation of the premises, an amount
equal to the monthly rent payable by the tenant. It cannot, therefore, be
said that mere acceptance of rent amounts to waiver of notice to quit
unless there be any other evidence to prove or establish that the landlord
so Intended. In the instant case, we find no other fact or circumstance to

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support the plea of waiver. On the contrary the filing of and prosecution
of the eviction proceeding by the landlord suggests otherwise.

A somewhat similar situation arose in the case reported in Shanti Prasad


Devi vs Shankar Mahto 2005 (5) SCC 543. That was a case where the
landlord accepted rent even on expiry of the period of lease. A submission
was urged on behalf of the tenant in that case that Section 116, Transfer
of Property Act was attracted and there was a deemed renewal, of the
lease. Negativing the contention, Court observed that mere acceptance of
rent for the subsequent months in which the lessee continued to occupy
the premise even, after the expiry of the period of the lease, cannot be
said to be a conduct signifying his assent to the continuing of the lease
even after the expiry of the lease period. Their Lordships noticed the
conditions incorporated in the agreement itself, which provided for
renewal of the lease and held that those conditions having not been
fulfilled, the mere acceptance of rent after expiry of period of lease did not
signify assent to the continuance of the lease.

Supreme Court in Sheela and others vs. Firm Prahlad Rai Prem
Prakash, AIR 2002 SC 1264 Section 116 of the Evidence Act embodies
therein a rule of estoppel. No tenant of immovable property, or person
claiming through such tenant, shall, during the continuance of the
tenancy, be permitted to deny that the landlord of such tenant had, at the
beginning of the tenancy, a title to such immovable property. This
estoppel so long as it binds the tenant excludes the tenant from raising a
plea disputing the title of his landlord at the commencement of the
tenancy. It flows as a corollary therefrom that the proof of landlord-tenant

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relationship tantamounts during the continuance of tenancy to proof of


ownership of landlord over the tenancy premises at the beginning of the
tenancy so far as the tenant is concerned. It is significant to note that on
the phraseology of Section 116 of the Evidence Act the rule of estoppel
applies so long as the tenancy is not terminated and the rule estops the
tenant from laying challenge to the ownership of the landlord at the
commencement of the tenancy. But the rule of estoppel as incorporated in
Section 116 is not exhaustive and it may be extended or suitably modified
in its application to other situations as well, retaining the basic feature of
the rule. Clause (g) of Section 111 of the Transfer of Property Act, insofar
as relevant for our purpose, provides that a lease of immovable property
determines by forfeiture in case the lessee renounces his character as
such by setting up a title in a third person or by claiming title in himself.
.. After the creation of the tenancy if the title of landlord is transferred
or devolves upon a third person the tenant is not estopped from denying
such title. However, if the tenant having been apprised of the transfer,
assignment or devolution of rights acknowledges the title of transferee
either expressly or by paying rent to him, the rule of estoppel once again
comes into operation for it is unjust to allow tenant to approbate and
reprobate and so long as the tenant enjoys everything which his lease
purports to grant how does it concern him what the title of the
lessor A denial of title which falls foul of the rule of estoppel
contained in Section 116 of Evidence Act is considered in law a malicious
act on the part of the tenant as it is detrimental to the interest of the
landlord and does no good to the lessee himself. However, it has to be
borne in mind that since the consequences of applying the rule of
determination by forfeiture of tenancy as a result of denial of landlord's
title or disclaimer of tenancy by tenant are very serious, the denial or
disclaimer must be in clear and unequivocal terms.

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In M/s. Raptakos Brett & Co. Ltd. v. Ganesh Property, AIR 1998 SC 3085,
the Supreme Court held that when a lease comes to an end by efflux of
time, or by notice of termination, or if there be a breach and the lessee's
rights are forfeited, the lessee becomes a tenant at sufferance, and it
becomes the duty of the lessee under Section 108(q) of the Transfer of
Property Act to restore possession to the lessor forthwith. The Supreme
Court held as under:- "22. ...Under law the erstwhile landlord is entitled to
restoration of possession by enforcement of statutory obligation of the
erstwhile tenant as statutorily imposed on him under Section 108(q) read
with Section 111(a) of the Property Act..."
In C. Albert Morris v. K. Chandrasekaran, (2006) 1 SCC 228, the Supreme
Court held as under:- "26. ...Much argument was advanced on the receipt
of the rent by the landlord after the cancellation of the lease. The
consensus of judicial opinion in this country is that a mere continuance in
occupation of the demised premises after the expiry of the lease,
notwithstanding the receipt of an amount by the quondam landlord,
would not create a tenancy so as to confer on the erstwhile tenant the
status of tenant or a right to be in possession..." "32. ...We are, therefore,
of the opinion that mere acceptance of rent by the landlord, the first
respondent herein, from the tenant in possession after the lease has been
determined either by efflux of time or by notice to quit would not create a
tenancy so as to confer on the erstwhile tenant the status of a tenant or a
right to be in possession...
In Har Charan Singh v. Shiv Rani, AIR 1981 SC 1284, the Supreme Court
held that a presumption of service can be drawn under Section 27 of the
General Clauses Act, 1897 and Section 114(f) of the Indian Evidence Act,

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1872. The observations of the Supreme Court are reproduced hereunder:"7. Section 27 of the General Clauses Act, 1897 deals with the topic 'Meaning of service by post' and says that where any Central Act or
Regulation authorises or requires any document to be served by post,
then unless a different intention appears, the service shall be deemed to
be effected by properly addressing, pre-paying and posting it by
registered post, a letter containing the document, and unless the contrary
is proved, to have been effected at the time at which the letter would be
delivered in the ordinary course of post. The section thus arises a
presumption of due service or proper service if the document sought to
be served is sent by properly addressing, pre-paying and posting by
registered post to the addressee and such presumption is raised
irrespective of whether any acknowledgement due is received from the
addressee or not. It is obvious that when the section raises the
presumption that the service shall be deemed to have been effected it
means the addressee to whom the communication is sent must be taken
to have known the contents of the document sought to be served upon
him without anything more. Similar presumption is raised under
Illustration (f) to Section 114 of the Indian Evidence Act whereunder it is
stated that the Court may presume that the common course of business
has been followed in a particular case, that is to say, when a letter is sent
by post by pre-paying and properly addressing it the same has been
received by the addreseee. ...It would, therefore, be reasonable to hold
that when service is effected by refusal of a postal communication the
addressee must be imputed, with the knowledge of the contents thereof
and in our view, this follows upon the presumptions that are raised under
Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian
Evidence Act."

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In M/s Madan and Co. v. Wazir Jaivir Chand, AIR 1989 SC 630, the
Supreme Court held that a notice sent by registered post is presumed to
have been delivered to the addressee under Section 27 of the General
Clauses Act. The observations of the Supreme Court are reproduced
hereunder:- "6. ...All that a landlord can do to comply with this provision
is to post a prepaid registered letter (acknowledgement due or otherwise)
containing the tenant's correct address. Once he does this and the letter is
delivered to the post office, he has no control over it. It is then presumed
to have been delivered to the addressee under Section 27 of the General
Clauses Act. Under the rules of the post office, the letter is to be delivered
to the addressee or a person authorised by him. Such a person may either
accept the letter or decline to accept it. In either case, there is no difficulty,
for the acceptance or refusal can be treated as a service on, and receipt by,
the addressee... In this situation, we have to choose the more reasonable,
effective, equitable and practical interpretation and that would be to read
the words "served" as "sent by post", correctly and properly addressed to
the tenant, and the word "receipt" as the tender of the letter by the postal
peon at the address mentioned in the letter. No other interpretation, we
think, will fit the situation as it is simply not possible for a landlord to
ensure that a registered letter sent by him gets served on, or is received
by, the tenant."
In Nopany Investments (P) Ltd. v. Santokh Singh (HUF), 2008 (2) SCC 728,
the Supreme Court held that filing of suit is itself a notice to quit on the
tenant and therefore, no notice to quit under Section 106 of the Transfer
of Property Act is necessary to enable the landlord to get the decree of
possession. The observations of the Supreme Court are reproduced
hereunder:- In any view of the matter, it is well settled that filing of an
eviction suit under the general law itself is a notice to quit on the tenant.

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Therefore, we have no hesitation to hold that no notice to quit was


necessary under Section 106 of the Transfer of Property Act in order to
enable the respondent to get a decree of eviction against the appellant.
In Shri Ram Pasricha v. Jagannath, AIR 1976 SC 2335, the Supreme Court
held that in a suit for eviction, the tenant is estopped from questioning the
title of landlord. The Supreme Court held as under:- "15. ...The tenant in
such a suit is estopped from questioning the title of the landlord under
Section 116 of the Evidence Act. The tenant cannot deny that the landlord
had title to the premises at the commencement of the tenancy. Under the
general law, in a suit between landlord and tenant, the question of title to
the leased property is irrelevant. It is, therefore, inconceivable to throw
out the suit on account of non-pleading of other co-owners as such."
In Mohammad Ahmad v. Atma Ram Chauhan, (2011) 7 SCC 755, the
Supreme Court observed that the motivation of the tenant to litigate with
the landlord is that he doesnt want to pay the prevalent market rate of
rent to the landlord and continues to pay the rent fixed years ago. The
observation of the Supreme Court is as under:- "1. .... One half of the lis
between landlord and tenant would not reach courts, if tenant agrees to
pay the present prevalent market rate of rent of the tenanted premises to
the landlord. In that case landlord would also be satisfied that he is
getting adequate, just and proper return on the property. But the trend in
the litigation between landlord and tenant shows otherwise. Tenant is
happy in paying the meager amount of rent fixed years ago and landlord
continues to find out various grounds under the Rent Acts, to evict him
somehow or the other...

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