Page |1

Section- 108 and 109 of Transfer of Property Act

 Page |2

ABSTRACT:

Every lease agreement has two parties:

1. lessor
2. lessee

The Transfer of Property Act confers certain rights and liabilities to lessors and lessees. The
lessor and the lessee of an immovable property possess these rights and are subject to some
liabilities. However, this is effective only in the absence of a contract. Further, these rights
and liabilities may also be affected by local usage to the contrary.

In This Article I have dealt with the Right of Lessor's Transferee, which is mentioned under
Section 109, Transfer of Property Act, 1872. This section deals with the case of an
assignment of the reversion, i.e., the lessor's interest. An assignment of the reversion may be:

(i) an assignment of the whole reversion, or

(ii) an assignment of the reversion in part of the property, or

(iii) Part of an assignment of the reversion.

This section tries to protect the interest of two parties they are the Transferee and the Lessee.
In case of lessee it tries to protect his interest from being doubly liable to the Transferor and
Transferee and in case of Transferee it tries to protect his interest from diversing him all the
Rights of the original Transferor. Supposedly, "sub-tenant, who is in possession, is a tenant
only of his lessor; and he will have neither a privity of contract nor privity of estate so far as
the superior lessor (in the present case the landlord) is concerned.
 Page |3

TABLE OF CONTENT

1. Definitions………………………………………………………….5
2. Essential ingredients of lease……………………………………….5
3. Section-108 of transfer of property act, 1882………………………6
 Liabilities of lessor
 Rights of lessee
 Liabilities of lessee
4. Section-109- rights of Lessor’s transferee…………………………...
5. Bibliography…………………………………………………………
 Page |4

 Definition:

Lease: A conveyance of lands or tenements to a person for life, for a term of years, at will, in
consideration of a return of rent some other recompense.

Lessor: The person who conveys lands or tenements is termed the lessor.

Lessee: The person to whom they are conveyed is termed the lessee.

Transfer: Transfer is an act of the parties, or of the law, by which the title to property is
conveyed from one living person to another.

 Essential ingrediants of a lease:

On review of section-105 of the act the essential ingrediants to constitute a valid lease of an
immovable property appear to be the following:

i. Transfer of the right on the property:-an interest in the subject of the property is to be
created in favour of the lessee by the lessor.
ii. Duration of lease:-interest created in the property could be for a specified period or
even in perpetuity. Parties to the lease are at liberty to decide the duration of the said
lease.
iii. Consideration:-a valid consideration needs to be paid, periodically or on specified
occasions by the lessee to the lessor.1

SECTION-108- RIGHTS AND LIABILITOES OF LESSOR AND LESSEE:

LIABILITIES OF LESSOR:

Duty of disclosure: [section-108 (a)]

In the absence of a contract or local usage to the contrary, the lessor is bound to disclose to
the lessee any material defects in the property but only with reference to its intended use,
provided

a) The lessor is aware of such material defect

b) The lessee is not aware of that material defect
c) The defect is such that the lessee could not with ordinary care discover.

1
http://docs.manupatra.in/newsline/articles/Upload/F26368F7-AA0D-4342-910D-8C3A0D89815E.pdf
 Page |5

There are two types of defects- those which are apparent and those which are not apparently
visible that is talent defects. The lessor is bound to disclose latent defects only because
defects cannot be discovered with ordinary care. The duty of disclosure is especially
important where the defect affect the enjoyment of the property.

Duty to give possession: [section-108 (b)]

The clause imposes statutory obligation upon the lessor to give possession of the premises to
the lessee. What amounts to delivery of possession depends on the nature of the property
leased. Where the lessor failed to deliver possession in spite of the lessee’s request to put him
in possession, the lessee may, in the absence of a contract to the contrary.

a) Repudiate or rescind the contract on the ground of failure of the lessor to give
possession, but he cannot do so, when he takes possession of a portion of the demised
premises, if the lessee rescind the whole contract, he can recover the consider, if any,
paid by him to the lessor,
b) Sue for damages for breach of the obligation,
c) Sue for the possession of the property demised, even though he has failed to pay the
stipulated consideration, he may also sue the third party in the possession,
d) Sue for specific performance,
e) He may withhold payment of rent, or claim abatement or suspension of the rent.

Raichurmatham Prabhakar & Anr vs Rawatmal Dugar:2

Facts:

 The landlord initiated proceedings for recovery of possession over the tenancy
premises alleging that the same were required bona fide by the landlord for the
immediate purpose of demolishing and erecting new building.
 The landlord was successful in both the proceedings and vide the order dated
21.2.1986, the Rent Controller directed the two tenants to put the landlord in
possession of the tenancy premises within one month from the date of the order.
 The tenants preferred appeals which were dismissed on 5.2.1987.
 The landlord gave an undertaking to the effect that on completion of the work of
repairs and alteration etc. in the building the same will be offered to the tenants.

2
(2004) 4 SCC 766
 Page |6

 The work was completed by the landlord within six months. The landlord sent an
offer to the tenants to occupy the rebuilt premises subject to payment of Rs.2400/- .
Earlier the rent was rs.250/-.
 The tenants preferred revision petitions before the High Court for the recovery of the
possession.

Issues:

Whether a new tenancy comes into existence, between the parties, on possession being
restored to the tenant over the newly erected building or any part thereof, which would entitle
the landlord to settle the rent and other terms of lease afresh?

Observations:

 Under Section 108 Clause (b) and (c) thereof, not only the lessor is bound on the
lessee's request to put him in possession of the property but there is also an implied
covenant for peaceful possession and enjoyment of the leased property by the tenant.
So long as the lessee pays the rent reserved by the lease and performs the obligations
cast on him by the contract of lease, he is entitled to hold and enjoy the property
without interruption by anyone including the lessor. Under Clause (l) the lessee is
bound to pay or tender, at the proper time and place, the premium or rent to the lessor.
 SECTION-12 of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act
1960 deals with Recovery of possession by landlord for repairs, alterations or
additions or for reconstruction. According to this section no order for recovery of
possession under this Section shall be passed unless the landlord gives an undertaking
that the building on completion of the repairs, alterations or additions or the new
building on its completion will be offered to the tenant, who delivered possession in
pursuance of an order under sub-section (1), for his occupation before the expiry of
such period as may be specified by the Controller in this behalf.
 In the cases covered by Section 12, Section 5 is available for fixation of fair rent by
way of revision over the rate of rent at which it was being paid previously. According
to Section 5 the fair rent of a building has been fixed under this Act, no further
increase in such fair rent shall be permissible but allowed only where some addition,
improvement or alteration has been carried out at the landlord's expense and if the
building is then in occupation of a tenant, at his request.
 Page |7

Conclusion:

 Court allowed the tenant to re-enter in to the premises, but it was open to the landlord
to take necessary steps for claiming fair rent. High court directed the controller to fix
the fair rent.

Covenant for quiet enjoyment: [section-108 (c)]

Sant Lal Jain vs Avtar Singh:3

FACTS:
 The appellant had taken a plot of land on lease under a lease-deed for a term of 10
years for M/s Jain Motors. At that time he was only a partner of M/s Jain Motors but
later he became its sole owner.
 The respondent took from the appellant on licence for one year under deed the suit
shed for carrying on work shop business.
 Since he did not vacate the shed after the expiry of the period the appellant terminated
the licence and filed the suit for a mandatory injunction directing the respondent to
vacate the premises.
 The respondent opposed the suit contending that the appellant sub-let to him a plot
of land and he had raised a new construction thereon and is carrying on workshop
business, and that the relationship between the parties was that of landlord and tenant
and the suit for mandatory injunction was not maintainable.
ISSUES:
 Whether the suit for mandatory ejection is valid?
OBSEVARTIONS:
 The appellant who had become the sole proprietor the appellant who had become the
sole proprietor.
 The respondent had become a licensee of the suit shed under the appellant when the
appellant was in possession of the whole of the demised premises including the suit
shed as tenant under the original owner.
 The licence in favour of the respondent had been revoked before the institution of the
present suit.

3
1985 AIR 857, 1985 SCR (3) 184
 Page |8

 In Milkha Singh v. Dvna& Ors it was held that After the termination of licence, the
licensee is under clear obligation to surrender his possession to the owner and if he
fails to do so, we do not see any reason why the licensee cannot be compelled to
discharge this obligation by way of a mandatory injunction under section- 55 of the
Specific Relief Act. We might further mention that even under English law a suit for
injunction to evict a licensee has always been held to be maintainable. Where a
licensor approaches the court for an injunction within a reasonable time after the
licence is terminated, he is entitled to the injunction. On the other hand, if the licensor
causes huge delay the court may refuse the discretion to grant an injunction on the
ground that the licensor had not been diligent and is that case the licensor will have to
bring a suit for possession which will be governed by section.7 (v ) of the Court Fees
Act."
CONCLUSION:
 The respondent has not surrendered possession of property to the appellant even after
the termination of the licence the suit.
 The appellant is, therefore, entitled to recover possession of the property.
RIGHTS OF LESSEE:

Right to enjoy the accretions: [section-108 (d)]

Literally the word accretion means the process of growing continuously, or continuous
coherence, or any extraneous addition, while the word accession means simple an increase. It
is not necessary for accretion to be imperceptible, it is sufficient, if it is gradual.

The conditions necessary for the application of this clause are:

a) There must be no contract or local usage to the contrary.

b) An accession must have been made to the demised property.
c) Such accession must have been made during the continuance of the lease.
d) There must be no law relating to allusion in force to the contrary.

If all the above conditions are fulfilled, then such accession shall be deemed to be comprised
in the lease.

Right to avoid the lease in case of any destruction by fire, tempest etc: [section-108 (e)]

The clause becomes applicable only if,

 Page |9

i. There is no contract or local usage to the contrary

ii. Any material part of the property demised is wholly destroyed or rendered
substantially and permanently unfit for the purpose for which it was let.
iii. By fire, or tempest, or flood, or violence of any arm or other irresistible force
iv. The injury is not occasioned by the wrongful act or default of the lessee

If the above conditions are fulfilled, the lease shall, at the option of the lessee, be void, but if
any of the above ingredients is not present, the lease shall not, at the option of the lessee, be
void, and the lessee shall not be entitled to avail himself of the benefit of the provision.

V. Kalpakam Amma vs Muthurama Iyer Muthurkrishna:4

Facts:

 The case of the plaintiff is that the buildings which is the subject matter of the lease
was completely destroyed in 1977 and as a result of the collapse of the building, the
tenant vacated the premises, surrendered the same and there was termination of
tenancy.
 It is further averred that subsequent to the termination of the tenancy, the deceased
appellant trespassed into the property and put up a construction.
 The suit was necessitated in view of the trespass. Apart from declaration and
recovery, the plaintiff has also sought a decree for mandatory injunction directing the
deceased appellant to remove the unauthorised construction, and in case she fails to
do so, to permit him to remove the same and recover costs from the defendants.
 According the defendant, the tenancy is not terminated and she is entitled to continue
in possession as its tenant.
 Trail court, held that there is no termination of tenancy, the entire building was not
destroyed, there is no surrender and relinquishment as alleged by the plaintiff and the
trespass alleged is not true.
 The plaintiff went into appeal against the order to district court, it ordered for eviction
of defendant. Defendant went into appeal against this decision.

Issues:

4
AIR 1995 Ker 99
 P a g e | 10

Whether on the destruction of the superstructure, there is a total destruction of the subject
matter of the lease?

Whether the destruction of the subject matter of the lease will automatically terminate the
lease without considering the question of option exercised by the lessee as per Section 108(e)
of the Transfer of Property Act?

Observations:

 District court relying on Sidharthan v. Ramadasan it was held that the defendant is
liable to be evicted from the property and the construction is also liable to be
removed. In that decision it was held that normally site is not included in the case of
lease of a building and by destruction of the structure, the lease will come to an end.

 According to Section 108(e) of the T.P. Act "If by fire, tempest, or flood or violence
of any army or of a mob or other irresistible force any material part of the property be
wholly destroyed or rendered substantially and permanently unfit for the purpose for
which it was let, the lease shall, at the option of the lessee, be void."
 Under the Kerala Buildings (Lease and Rent Control) Act, 1965, the word 'building' is
defined in Section 2(1) "building" means any building or hut or part of a building or
hut, let or to be let separately for residential or non-residential purposes and includes -
- (a) the garden, grounds, wells, tanks and structures, if any, appurtenant to such
building, hut, or part of such building or hut, and let or to be let along with such
building or hut;"
 In the Law of Real Property by Sir Robert Magarry (5th Edition) at page 691, it is
stated thus: "If there is a lease of land and building, the destruction of the building
does not affect the continuance of the lease, so that the lessee remains entitled to
possession of the land and any buildings that may subsequently be erected on it."
 In Sarada v. Kumaran, 1969 Ker LT 133, it was held by a learned single Judge of
this court that "the meaning of the word 'building' in ordinary language, comprises not
only the fabric of the building, but the land upon which it stands".

Conclusion:

 Appeal is allowed, the relief in the plaint seeking recovery of the property is refused.
 P a g e | 11

 Appellant is directed to remove the same within one month from the date of this
judgment and in case he fails to do so, plaintiff is permitted to remove the same in
execution.

Right to repair the property when lessor neglects to make and to deduct the expenses of
repairs from rent: [section-108 (f)]

The essential conditions for the application of this clause are:

i. There must be no contract or the contrary

ii. The lessee himself must be under no obligation to make any repairs to the property.
iii. The lessee must have given the notice to the lessor to make the repair within
reasonable time.
iv. The lessor must have neglected to make the repair within a reasonable time after
notice.

If all the above conditions are fulfilled, the lessee acquires the following rights:

a) To make the repair himself and deduct the expenses of such repairs with interest from
the rent
b) The recover the expense of such repairs with interest from the lessor.

Mirza Afzal Beg vs Prabhu Dayal:5

Facts:

 The plaintiff filed a suit against the defendant for his ejectment from the
accommodation in question and for recovery of arrears of rent and future mesne
profits.
 The defendant had failed to pay the rent from 19th May, 1963. Notice dated 3-12-
1963 was served on the defendant on 5-12-1963 demanding arrears of rent and
determining the tenancy.
 As the defendant failed to comply with the same, a suit for the aforesaid relief was
filed.
 The defendant contended that the house needed repairs, he gave a notice to the
plaintiff to carry out those repairs. The plaintiff, however, failed to do so.

5
AIR 1973 All 26
 P a g e | 12

Consequently the defendant carried out the repairs and incurred an expense of Rs. 20/-
in that connection. Deducting this amount from the rent he remitted the balance
amount to the plaintiff which the plaintiff refused to accept. He was, therefore, not
liable to be evicted.

Issues:

Whether the defendant is eligible to claim the relief under section-108 of transfer of property
act to recover the amount he spent to repair the house?

Observations:

 According to Sub-clause (f) of Section 108 of the Transfer of Property Act –“If the
lessor neglects to make, within a reasonable time after notice, any repairs which he is
bound to make to the property, the lessee may make the same himself, and deduct the
expense of such repairs with interest from the rent, or otherwise recover it from the
lessor.”
 There are no provisions under U. P. Cantonment Rent Control Act to compel the
landlord to carry out certain necessary repairs and keep the accommodation
windproof and water proof.
 In the instant case, the defendant had given a notice requiring the plaintiff to carry out
certain repairs in the premises in question.
 It is also admitted that repairs were not carried out by the plaintiff in compliance with
that notice. It was also proved that the defendant carried out the repairs thereafter and
spent a sum of Rs. 20/- in that connection.
 But the defendant failed to prove that the plaintiff is bound to make the repairs.
 Sub-clause (f) of Section 108 referred to above does not by itself make a landlord
liable to carry out the repairs. It contemplates a situation where either under an
agreement, custom or law the landlord was bound to carry out the repairs.

Conclusion:

 As the defendant failed to prove that the plaintiff is bound to make the repair, he is
not entitled to deduct a sum of Rs. 20/- from the arrears of rent.

Right to pay the payments that are obligatory on lessor and to deduct the amount from
rent: [section-108 (g)]
 P a g e | 13

The necessary conditions for the application of this clause are:

i. There must be no contract to the contrary

ii. The lessor must have neglected to pay any payment, which is bound to make
iii. Which payment, if not made by him, must be recoverable from a) the lessee or b)
against the property.

If all the above conditions are satisfied, the lessee may make such payments himself, and
deduct it with interest from the rent or otherwise recover it from the lessee. Apart from this
clause the tenant has also the right to recover the amount under section-69 of the contacts act,
if he pays it under protest.

Right to remove fixtures made by him during tenancy: [section-108 (h)]

The clause applies only in the absence of a contract to the contrary. It empowers the lessee,
even after the determination of the lease, to remove, at any time, whilst he is in possession of
the property leased, but not afterwards, all things which he has attached to the earth. But he
can do so only, if after so doing, he can leave the property in the state in which he received.

K. Rangaraju And Ors. vs Illapavaluri Sitaramayya:6

Facts:

 The plaintiff is the owner of the suit land which is a tank in an estate. He leased it for
a period of five years to defendants 1 and 2 under a deed, dated 22.8.1939, for grazing
purposes.
 During the period of tenancy, there was spontaneous growth of babul trees on the
land.
 Nine of them were cut by the defendants shortly before the filling of the suit.
 The Courts found that the said babul trees were of spontaneous growth during the
period of the tenancy and that the ownership of the said trees is in the land-holder.
 On these findings a decree for an injunction was granted restraining the defendants
from cutting the babul trees and also for the recovery of the fuel of the trees cut by
them.
 The defendants preferred the above Second Appeal.

6
AIR 1955 AP 62
 P a g e | 14

Issue:

Whether trees of spontaneous growth on lease-hold property belong to the land-holder or the
tenant?

Observations:

 Though the land is situated in an estate, tank bed is excluded from the definition of
'ryoti land' under S. 3 (16), Madras Estates Land Act.

 In Woodfall on "Landlord and Tenant" 25th Edn., the following statement of law is
found at page 810: "The property in trees is vested in the owner of the inherintance of
the land upon which they grow, for the property in trees, or of that which is likely to
become timber, is in the landlord."
 According to "Section 108 (h) : The lessee may even after the determination of the
lease remove at any time while he is in possession of the property leased but not
afterwards all things which he has attached to the earth, provided he leaves the
property in the state in which he received it.

 'Vasudeva Nambudripad v. Valia Chathu Achan', 24 Mad 47 (FB) (C), as follows

: "Under the Transfer of Property Act, then, a lessee may, during the continuance of
the lease remove trees which he has himself planted and buildings which he has
himself erected, provided he leaves the property in the state in which he received it.
The prohibition in regard to the felling of timber and pulling down of buildings in Cl.
(o) does not limit the right declared in Cl. (h). It is subject to that right; that is, the
lessee must not fell timber or pull down buildings unless the timber had been planted
or the buildings ercted by the lessee and he must leave the property in the state in
which he received it".
 In 'Surya Rao v. The Chairman, Municipal Council, Cocanada', AIR 1936 Mad
919 (F), it was held that, in the case of a pathway vested in the Municipality, the
Zamindar would continue to be the owner of the soil of the pathway and trees
spontanceously growing on it. This can only be on the principle that trees of
spontaneous growth belong to the owner of the soil.
 The general and accepted principle is that the trees on a land belong to the owner.
They are part of the land and the right to cut and sell them is incidental to the
proprietorship of the land. This general principle is subject to the law of fixtures.
 P a g e | 15

 There is no provision enabling a tenant to remove trees of spontaneous growth in his

lease-hold property. It follows that unless there is an established practice or statutory
rule, trees of spontaneous growth on a land belongs to the owner.

Conclusion:

 No custom has been established enabling a tenant to cut trees of spontaneous growth.
No contract to that effect has been pleaded.
 As the trees grown spontaneously they belong to the plaintiff.

Right to have the benefit of the crop growing on the land planted by him: [section-108
(i)]

If the following conditions are fulfilled, namely

i. The is no contract or local usage to the contrary

ii. A lease of uncertain duration by any means except the fault of the lessee.

Then the lessee or his legal representative is entitled to

a) To all the crops planted or shown by the lessee and growing upon the property when
the lease determines,
b) Too free ingress and egress to gather and carry them.

Right to assign his interest in the leased property: [section-108 (j)]

i. the lessee may transfer absolutely the whole or any part of his interest in the demised
property
ii. the lessee may transfer by way of mortgage or sub-lease the whole or any part of his
interest in the demised property
iii. any transferee of such interest or part may again transfer it,
iv. the lessee cannot, by reason only of such transfer, cease to be subject to any of the
liabilities attaching to the lease

But this clause not deemed to be authorize if,

i. a tenant having an untransferable right of occupancy

ii. the farmer of an estate in respect of which default has been made in paying revenue,
or
 P a g e | 16

iii. The lessee of an estate under the management of the court of wards, to assign his
interest as such tenant, farmer or lessee.

LIABILITIES OF LESSEE

Duty to disclose facts materially increasing the value of the property: [section-108 (k)]

The lessee is bound to disclose to the lessor any fact as to the nature or extent of the interest
which the lessee is about to take, of which the lessee is and the lessor is not, aware, and
which materially increases the value of such interest.

Duty to pay rent or consideration of lease: [section-108 (l)]

The clause provides that, in the absence of a contract or local usage to the contrary, the lessee
is bound to pay or tender, at the proper time and place the premium or the rent to the lessor or
his agent only if the relationship of landlord and tenant arises and subsists between the
parties.

Duty to maintain the property: [section-108 (m)]

Chandrasekharan vs Alexander:7

Facts:

 The defendants are admittedly tenants of a building owned by the plaintiff.

 The case of the plaintiff is that the defendants had tried to alter the building and the
plaintiff obtained a decree in O.S. 129/1981 for injunction restraining them from
doing so.
 Thereafter the plaintiff came to know that the defendants had approached the
Municipality for giving water connection to the house.
 If the defendants are allowed to get water connection the building of the plaintiff will
be damaged.
 Therefore the suit is filed for permanent injunction restraining the defendants 1 and 2
from drawing water connection to the plaint schedule premises.

Issues:

7
AIR 2003 Ker 95
 P a g e | 17

Does the act of laying a pipe line for supply of drinking water amount to an act injurious to a
building?

Is the laying of a water supply connection an act of prudent use referable to Section 108 of
the Transfer of Property Act?

Observations:

 The trial court after taking the evidence disposed of the suit in the following manner:
"Under the circumstances it is only just and proper that the defendant be permitted to
have the pipe line drawn to the premises without making any damage to the structure,
and if the wall is to be pierced or floor is to be dug, it is imperative on the part of the
defendant to obtain the prior permission from the landlord and in the absence of that
the defendant can lay the pipe line in such a way that it shall not disturb the existing
structure in any manner whatsoever. The defendant at the time of vacating the
premises shall remove the pipe line and they are bound to hand over possession in
such a state as it had been prior to the lying of the pipe line. Subject to the above
observation these issues are answered against the plaintiff".

 Drinking water is an absolute necessity for human existence. By drawing pipe line to
the building in which the defendants are residing it cannot be said that the building
will be in any way damaged or wasted.
 Under Section 108(m) the tenant is also bound to keep the property in good condition
and to restore the property as in the same condition as it was entrusted subject to
changes caused by reasonable wear and tear, Therefore, it can be seen that the mere
drawing of pipe line to a building will not come under any of the categories
mentioned above so as to prevent the defendants from taking water connection to the
building. As a matter of fact the trial court had while disposing of the suit made all
necessary conditions to safeguard the interest of the landlord.
 The plaintiff has not produced the agreement prohibiting the defendants from taking
water connection to the building.
 The plaintiff had obtained a decree for injunction when the defendants tried to
construct an additional room. The plaintiff has no case that taking of water connection
to the residential house will amount to violation of the injunction decree.

Conclusion:
 P a g e | 18

 As water is essential commodity, and as the drawing of pipe would not cause any
damage to the building, the suit for injection was dismissed and decision of the trail
court was up held.

Duty to give notice of any encroachment on the property to the lessor: [section-108 (n)]

The clause enacts that the lessee, in the absence of a contract to the contrary, rests under an
obligation to give, with reasonable diligence, notice to the lessor, if the lessee become aware,

a) Of any proceeding to recover the property, or any part thereof, or

b) Of any encroachment made upon the lessor’s right concerning the demised property,
c) Any interference with the lessor’s right concerning the demised property.

Duty to use the property in reasonable manner: [section- 108 (o)]

Hari Rao vs N. Govindachari & Ors:8

Facts:

 The landlord leased the premises to the tenant for the purpose of a shoe trade or trade
in leather goods.
 While carrying on his business, the tenant had used a part of the premises for carrying
on a trade in readymade garments and that amounted to a user of the building by the
tenant for a purpose other than that for which it was leased, within the meaning of
Section 10 (2) (ii) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act,
1960.
 The tenant had also fixed name-boards outside and drilled two holes in the walls for
fixing racks for the purpose of his trade and had taken an independent three phase
electric connection and for that purpose he had made holes on the floor and on the
wall.
 These acts of the tenant amount to commission or causing the commission of such
acts of waste as are likely to impair materially, the value or utility of the building
within the meaning of Section 10 (2) (iii) of the Act.
 The landlord claimed eviction of the tenant, the appellant, on these two grounds.

Issue:

8
(2005) 7 SCC 643
 P a g e | 19

Whether the acts of the defendant are likely to impair materially, the value or utility of the
building

Whether the usage of the leased land for the purpose of other than it is leased gives the right
for the landlord for eviction?

Observations:

 The appellant resisted the claim. He contended that the original letting was not for the
purpose of trade in shoes or leather goods alone. He was still carrying on the business
of selling shoes, but had expanded his trade by including the trade in readymade
garments.
 His act again did not result in any damage to the building or amount to waste and
hence he was not liable to be evicted on that ground as well.
 According to Exhibit B-1 letter, written by the landlord to tenant referred to and
quoted by the Rent Controller, shows that the tenant was entitled to 'continue the
tenancy with the present increased rent, on the premises, with all tenancy rights
including the rights of putting up boards and painting on the walls of the portion of
the premises.
 The tenant took the stand that it was generally for the purpose of his trade that the
building was let, though, at the relevant time, he was only conducting a trade in shoes.
There was no violation by him of any term of the letting and there was no user of the
shop for a purpose other than the purpose for which it was let out to him. It is
necessary to notice here that there was no plea of the tenant having covenanted not to
use the building for any other trade.
 The concept of injury to the premises which forms the foundation of Section 108 (o)
of the Transfer of Property Act is the main basis for a provision similar to the one in
Section 10 (2) (ii) (b) of the Act.
 In Ram Gopal Vs. Jai Narain and others it was held that merely because a tenant,
who has taken a building for the purpose of running a trade, alters the commodity in
which he was trading when he took the building on lease or trades in other
commodities also, he could not be held to be using the premises for a purpose other
than the purpose for which it was let. The purpose has to be understood, as the
purpose of trade and in the absence of a covenant barring the using of it for any other
 P a g e | 20

trade, it will be open to the tenant to use the premises for expanding his trade or even
for taking up other lines of trade as befits a prudent trader.
 There is no evidence on the side of the landlord to show that there was material
impairment, either in the value or the utility of the building by the acts of the tenant.
 This Court referred to Om Prakash Vs. Amar Singh [(1987) 1 SCC 458], held,
'When a construction is alleged to have materially impaired the value and utility of the
premises, the construction should be of such a nature as to substantially diminish the
value of the building either from the commercial and monetary point of view or from
the utilitarian aspect of the building.'

Conclusion:

 As the plaintiff failed to prove that the acts of the tenant caused damage to the
property, his suit for eviction is not allowed.

Duty not to erect permanent structures on the property: [section-108 (p)]

Bharat Bhushan Deva vs State Of Bihar And Ors:9

Facts:

 The petitioner leased out Savitri Uchh Vidyalaya by a registered lease deed dated 8-5-
1954 for fifteen years for the said school.
 About two hundred yards away from the school was another substantial piece of
vacant land admeasuring five acres and fourteen decimals. This land was gifted by a
registered gift deed to the school.
 Subsequently, the State Government took over various schools including this school.
 They destroyed the pervious construction and start the construction of the new
building in place of the old building without the permission of the petitioner.

Issues:

 Whether the tenant has the right to demolish the building without the consent of the
petitioner to build a new build?

Observations:

9
AIR 2008 Pat 29, 2008 (2) JCR 237 Pat
 P a g e | 21

 The land stood transferred to the school by a registered deed of gift whereas the
school building was merely rented/leased to the school. The school was, thus, a
lessee/tenant taking the building which belonged to the ancestors of the petitioner. It
is then stated that once the lease expired, the school became month to month tenant
and continued to pay Rs. 2/- as monthly rent.
 Petitioner, on basis of lease and the specific assertion that neither he nor his ancestors
ever gifted the building in which the school is housed to the State or the school, has
asserted that the school was mere tenant on expiry of the lease aforesaid. The tenant
had no right to demolish the building itself even for the purposes of reconstructing it.
 The stand of the State is that from certain letters, it appears that probably the building
as well as the land was gifted by the ancestors of the petitioner to the school.
 Vennattankandy Ibrayi v. Kunhabdulla Hajee, in this t was held that petitioner
remained to be the owner of the premises and the premises mere tenant by sufferance,
cannot give right to the tenant to demolish any part of the premises itself. Such act on
the part of the tenant is defying his status as a tenant itself and liable to be evicted as
such.
 The State Counsel then submits that out of State fund received after demolition, walls
of two rooms of the building have been fully constructed.
 Referring Section 108(h) of the Transfer of Property Act as by their own act, State has
rendered themselves to be evicted from the premises. They, if they so want, can break
the construction done by them and carry them away but must restore the building in
the manner in which they had occupied or else pay compensation for the damage done
to the property owner.

Conclusion:

 Considering the aforesaid facts and the high-handed attitude of the State in asserting
right which they did not have and destroying the property of another without any legal
authority, the State is now a trespasser on the land and must vacate the same
forthwith.
 Hence, the state must restore the construction they had demolished or else pay a
compensation of Rs. 1,00,000/- to the petitioner.

Duty to retransfer the possession on determination of the lease: [section-108 (q)]

 P a g e | 22

Section-108 sets out the rights and liabilities of lessor and lessee. Clause (q) of that section
imposes a liability to put the lessor into possession of the property on the determination of the
lease. Such liability arises whether the lease is terminated by notice or by efflux of time.

SECTION-109

Rights of Lessor’s transferee:

The principle underlying Sec. 109 of the Act is that the rights attached to property which
arises out of possession and control of property will pass with the property. "Qui in jus
deminiumve alterius succedit jure ejus uti debet". When A ceased to have any right, title or
interest in the suit property he ceased to have any right, title or interest in the suit property he
ceased to be the tenant's landlord and it is B who became the landlord, and the right to
recover rent vested in B with effect from the date of relinquishment.

 The assignee of the lessor has against the lessee all the rights that the lessor had, and
can enforce not only covenants, but also conditions. The TP Act does not distinguish
conditions from covenants. He can recover rent due subsequent to the assignment, and
he can give notice to quit under s 106.10

Sheikh Noor And Anr vs Sheikh G.S. Ibrahim:11

Facts:

 The original owner of the land directed the tenant to pay the rent to Fatimabi.
 As they failed to pay the municipal taxes municipal council auctioned the house.
Fatima purchased the house in dispute in auction.
 She transferred her ownership rights in favour of respondent Sheikh Ghasu Sheikh
Ibrahim.
 Fatimabi addressed a communication to the appellants informing them that she had
transferred her rights in the property in favour of the respondent and directed the
tenants to pay the arrears of rent due prior to the date of transfer as well as future rent
to the respondent.
 Appellants refused to recognize the respondent as their landlord and pay the rent.

10
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=f7ba7039-90fb-48c3-96be-
3476c764d54f&txtsearch=Subject:%20Property
11
2003 (2) RCR 219 (SC)
 P a g e | 23

 Thereafter, the respondent filed separate suits seeking eviction against the appellants
on the grounds (i) that appellants were defaulters as they had failed to pay rent for due
for more than six months and (ii) that the respondent required the house bona fide for
his personal occupation.

Issues:

Whether the execution of sale deed in the favour of the respondent is valid?

Whether the transferee is entitled to collect the arrears of rent?

Observations:

 Trial Court held that the respondent had become the owner of the suit premises being
transferee from Fatimabi. The ground of bona fide or personal occupation was
declined. The appellants were found to be in arrears of rent for more than six months
and consequently were ordered to be evicted.
 Writ petitions filed by the appellants in the High Court challenging the said order.
 Learned Counsel appearing for the appellants vehemently argued that Fatimabi was
neither landlord nor the owner of the property. She was only a rent collector on behalf
of the original owner. The sale was collusive and fraudulent.
 The other contention is that arrears of rent prior to the sale in favour of the respondent
could not be recovered as arrears of rent. Those arrears prior to the transfer in favour
of the respondent were in the nature of a 'debt due'. This plea was not taken in the
lower courts

 According to section-109 of the act, If the lessor transfers the property leased, or any
part thereof, or any part of his interest therein, the transferee, in the absence of a
contract to the contrary, shall possess all the rights, and, if the lessee show elects, be
subject to all the liabilities of the lessor as to the property or part transferred so long
as he is the owner of it; but the lessor shall not, by reason only of such transfer ceased
to be subject to any of the liabilities imposed upon him by the lease, unless the lessee
elects to treat the transferee as the person liable to him: Provided that the transferee is
not entitled to arrears of the rent due before the transfer, and that, if the lessee, not
having reason to believe that such transfer has been made, pays rent to the lessor, the
lessee shall not be liable to pay such rent over again to the transferee.
 P a g e | 24

 Right to recover the arrears of rent vested with the original owner and on transfer of
all his rights the same vests in the transferee as per provisions of Section 109 of the
Transfer of Property Act. Proviso to section 109 clearly indicates that if there is an
assignment of rent due then the transferee/landlord would be entitled to recover the
same from the tenant as arrears of rent.

 In N.M Engineer and Ors. v. Narendera Singh Virdi and Anr., AIR (1995) SC
448, this Court again held that in the absence of any assignment of the rent in favour
of the transferee the assignee is not entitled to the rent due before the assignment.
Negatively it means that if there was an assignment of the arrears then the same could
be recovered as arrears of rent by the subsequent transferee landlord.

Conclusion:

 Since in this case right to recover the arrears in favour of the respondent transferee he
was entitled to recover the same as arrears of rent.
 As the appellant failed to pay the rent for more than 6 month he is liable to evict the
premises.

Ambica Prasad vs Md. Alam and others:12

Facts:

 Ranjeet Prasad tranfered his property to the appellant through two exchanges deed in
the year 1975.
 In 1968, before the execution of the said exchange deed, Ranjeet Prasad was said to
have let one of the rooms in the building in the suit property to Rahim Baksh,
grandfather of the respondent.
 Even in the year 2006 ranjeet Prasad executed the tenancy agreement in favor of
rahim baksh.
 In the year, 2007 the appellant filed a suit for the eviction of the tenant on the grounds
of non-payment of rent and need for bona fide use.

Issues:

12
AIR 2015 SC 2459; 2015 SCC Online SC 308
 P a g e | 25

 Whether attornment by the tenant in case of transfer of tenanted land is requisite

under section-109 of the transfer of property act, 1882?

Observation:

 The defendant’s contention was that the appellant was not his landlord ranjeet was his
landlord hence, appellant has no right to ask for eviction.
 Even after the execution of the exchange deed, Ranjeet Prasad was stated to have
continued collecting rent from the tenants of the suit property including Rahim Baksh
and on Rahim's death, his son Abdul Karim till February, 2007 with the consent of the
appellant.
 Trail court held that Ranjeet Prasad had represented himself to be the landlord in the
agreement dated 20.05.2006 and in the rent receipts and also filed a suit for eviction
against one of the tenants in the suit property in the capacity of a landlord Ranjeet was
noted to have never stated being the representative of the appellant or there being a
property exchange. As the appellant failed to prove himself as the owner of the
property dismissed the suit. High court order for the eviction.
 According to section-109, If the lessor transfers the property leased, or any part
thereof, or any part of his interest therein, the transferee, in the absence of a contract
to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all
the liabilities of the lessor as to the property or part transferred so long as he is the
owner of it; but the lessor shall not, by reason only of such transfer cease to be subject
to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat
the transferee as the person liable to him.
 The lessor, the transferee and the lessee may determine what proportion of the
premium or rent reserved by the lease is payable in respect of the part so transferred,
and, in case they disagree, such determination may be made by any Court having
jurisdiction to entertain a suit for the possession of the property leased.

Conclusion:

 The respondent-tenant on many occasions approached the appellant, the transferee,

owner and the landlord to receive the rent. Further, admittedly, the electricity charges
of the tenanted premises were paid by the tenant to the present appellant.
 P a g e | 26

 Since attornment by the tenant is not required, a notice under Section 106 in terms of
the old terms of lease by the transferor landlord would be proper and so also the suit
for ejectment.