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Yashpal Lala Shiv Narain vs Allatala Tala Malik Waqf Ajakhan ... on 22
December, 2005
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Section 108(q) of the Transfer of Property Act, inter-alia, provides that on

the determination of the lease, the lessee is bound to put the lessor into
possession of the property.

Referring to the aforesaid provisions of Sections 105, 107 and Section

108(m) and (q) of the Transferof Property Act, it is submitted by the
learned Counsel for the petitioner (defendant) that in view of Section
107 of the Transfer of Property Act, tenancy can be created either by a
written contract or by an oral agreement coupled with delivery of
possession. Section 107 makes no distinction between a written agreement
of tenancy and an oral agreement of tenancy. Statutory rights and liabilities
of the lessor and the lessee mentioned in Section 108 of the Transfer of
Property Act become conditions of contract between the lessor and the
lessee and have to be read as a part of the contract itself, unless there is a
contract or local usage to the contrary. Section 108 of the Transfer of
Property Act, it is submitted, covers both the tenancies/leases i.e. oral or
written. The statutory rights and liabilities laid down in Section 108 of
the Transfer of Property Act are to be read as part of the contract of
tenancy, whether such contract be oral or in writing. It is submitted that the
rights and liabilities mentioned in Section 108 of the Transfer of
Property Act partake the character of a written contract and have to be
read in every agreement of tenancy, and in the event of their breach,
forfeiture clause mentioned in Section 111(g) of the Transfer of
Property Act becomes applicable. Section 108(1), inter-alia, provides that
the lessee is bound to pay or tender, at the proper time and place, the
premium or rent to the lessor or his agent in this behalf. Hence, it is
submitted, in case the rent is not paid as per the requirement of Section
108(1) of the Transfer of Property Act, the lease would be forfeited
under Section 111(g) of the Transfer of Property Act, and the lessee
would be bound to restore possession under Section 108(m) and (q) of
the Transfer of Property Act. Therefore, it is submitted, in case there is
breach of the said condition laid down in Section 108(1) of the Transfer of
Property Act, the provisions of Section 111(g) of the Transfer of
Property Act are attracted. Consequently, the submission proceeds,
in case, the landlord accepts the rent after forfeiture, the tenant would be
entitled to the benefit of Section 112 of the Transfer of Property Act. It is
submitted that in case. Section 111(g), and consequently Section 112 of
the Transfer of Property Act is confined only to written lease, Section
111(g) becomes redundant. Learned Counsel for the petitioner (defendant)
has placed reliance on the following decisions in this regard:

28. In reply, the learned Counsel for the respondent (plaintiff-landlord) has
made the following submissions ;

(1) A perusal of the notice sent by the respondent (plaintiff/landlord) to the

petitioner (defendant) on 29th August, 1996 shows that the said notice was
a notice of determination of tenancy under Section 106 of the Transfer of
Property Act. Merely because rent was also demanded in the said notice, it
did not mean that the said notice was not a notice under Section 106 of
the Transfer of Property Act, Hence, the submission proceeds, the
present case was a case of determination of lease under Section 111(h) of
the Transfer of Property Act by service of notice under Section 106 of
the Transfer of Property Act to determine the lease or to quit. The
present case was not a case under Section 111(g) of the Transfer of
Property Act, and therefore, neither Section 112 nor Section 114 of
the Transfer of Property Act was attracted to the present case.
(2) Section 112 of the Transfer of Property Act as also Section 114 of
the Transfer of Property Actare attracted only in case of forfeiture of
lease under Section 111(g) of the Transfer of Property Act. Therefore, for
the applicability of Section 112 or Section 114 of the Transeter of
Property Act, it is necessary that Section 111(g) of the Transfer of
Property Act should be applicable to the case. In case, Section 111(g) of
the Transfer of Property Act Is not applicable, the provisions of Section
112 or Section 114 of the Transfer of Property Act would not apply to
the case.

116. This decision thus laid down that the discretion exercised by the
courts below giving relief against forfeiture of tenancy for non-payment of
rent under Section 114 of the Transfer of Property Actshould not
normally be interfered with by the higher court.

117. In my opinion, the said decision in R.S. Lala Pradurnan

Kumar case (AIR 1969 SC 1349) is not applicable to the facts and
circumstances of the present case. As noted above, question of exercising
discretion under Section 114 of the Transfer of Property Act would arise
only in case, the said Section is attracted to the facts and circumstances of
a case. In case, Section 114 of the Transfer of Property Act is attracted to
the farts and circumstances of a case, and the courts, below exercise
discretion in giving benefit of the said Section to the tenant then such
exercise of discretion should ordinarily not be interfered with by the higher
court. However, in case, the provisions of Section 114 of the Transfer of
Property Act are not attracted to the facts and circumstances of a case,
then there is no occasion for exercise of discretion under the said
provisions. In case, the courts below give benefit of Section 114 of
the Transfer of Property Act in a case where the said Section has no
application then the higher court would be justified in interfering with the
findings of the courts below in this regard.