Report No. 70

90.11. Tenancy at will.-

Another question to be considered is in connection with the term of a lease. Although there appears to be some misconception on the subject, it cannot be disputed that a tenancy which is terminable at the will of one party is not theoretically inconsistent with the concept of a lease: Provided the interest transferred is the right to exclusive possession of the property, and provided the right is transferred for consideration, it does not matter that the term is to end at the volition of one party.

90.12. Certainty of term in England.-

In England, the general rule is that the duration of leases for years ought to be ascertained either by the expressed limitation of the parties at the time of making the lease, or by a reference to some collateral act which may with equal certainty measures the continuance thereof; otherwise they are void.1 For this purpose, a collateral matter does not measure the continuance of the term with sufficient certainty unless that matter is itself capable of being rendered certain before the lease takes effect.2

It was for this reason that during the war time special legislation had to be passed in England to validate a grant of tenancy for the duration of the war.3 This legislation became necessary because at common law the grant of a tenancy for the duration of a war did not create an interest for "a certain term" because the duration depended upon a collateral matter which itself was incapable of being rendered certain by the time the lease took effect.4

1. Woodfall Landlord and Tenant, (1968), Vol. I, p. 217, para. 511.

2. Lace v. Chancier, 1944 KB 368.

3. Validation of War-time Lease Act, 1944, section 1(2) and section 7(3).

4. WoodfaII Landlord and Tenant, (1968), Vol. I, pp. 222, 223, para. 529.

90.13. Duration how determined.-

In India, a combined reading of sections 105-106 would show that with reference to their duration, leases fall into three principal categories, leaving aside, for the present, certain minor categories met with infrequently and also leaving aside leases which present features combining more than one of these categories. The three principal categories are-perpetual lease, leases for a specified period (capable of certainty) and periodic tenancies (section 106).

A determination of the category in which is particular lease falls is of importance with respect to heritability, procedure for termination and other features. A lease which does not create a definite term is void.1 But the question whether a particular lease is for a definite term is not always easy to decide.

1. Municipal Corporation of Bombay v. Secretary of State, ILR 29 Born 580.

90.14. Lease for the period for which lessee pays rent.-

A case in point is that of a lease which is expressed to be for some such period as-"so long as the lessee pays rent". Is it a perpetual lease-first category?1

Or is it a lease for a definite duration-second category? Or does it fall in any other class? The precise status of a lease for so long as the lessee pays rent, is at present obscure.

1. Para. 90.13, supra.

90.15. Various views.-

Some earlier cases regard such a lease as for perpetuity.1 According to some cases, such a lease is permanent and heritable one.2 In a Bombay case,3 Macleod, C.J. held that such a lease was a permanent lease, differing with an early Bombay case4 where a lease for so long as the lessee pleased to hold the land was said to be transferable, but is not necessarily heritable.5

1. Bai Sona v. Bai Jiragavri, AIR 1926 Born 374.

2. AIR 1926 Born 374.

3. Bai Sona v. Bai Jiragavri, AIR 1926 Born 374.

4. Vaman Shripad v. Makt, 1880 ILR 4 Born 424; Abdulrahim v. Sarafalli, (1928) 30 Born LR 1596.

5. Donkangowda v. Revanshidappa, AIR 1943 Born 148.

90.16. According to another Bombay case, such a lease may be transferable, but is not necessarily heritable.1

1. Donkangowda v. Revanshidappa, AIR 1943 Born 148.

90.17. Some High Courts1-3 take the view that such a grant ensures for the lifetime of the grantee unless there are words showing the intention that a heritable grant is made, and they hold this view notwithstanding the terms of section 106.4 It is construed as a lease for life in many other decisions.5-6 The reason given is that7-8 the continuation of the lease depends on the will of the lessee, which cannot be exercised after the lessee's death.

A lease for life, it may be noted, is a lease for a certain time, for it terminates with the death of the lessee.9

1. Ashutosh v. Chandicharan, AIR 1927 Cal 179.

2. Jogesh Chandra v. Magbool Ali, ILR 47 Cal 979.

3. Chandicharan v. Ashutosh, 40 CWN 52.

4. Para. 90.19.

5. Pool v. Secretary of State, 1886 PR 68.

6. Mania v. Lallubhai, (1900) 2 Born LR 488.

7. AIR 1964 Born 287 (291).

8. AIR 1929 Born 66.

9. Section 105.

90.18. According to another view, such a lease is a tenancy at Will.1 The reason given is that such a lease is really a tenancy at the will of the lessee, which, by implication of law, is a tenancy at the will of both the parties.2-3

1. AIR 1957 Pat 490.

2. 1913 ILR 36 Mad 557 (558).

3. 1886 ILR 8 All 198 (200).

90.19. According to yet another view,1 where the lease is totally silent as to duration, section 106 will apply.

1. Rajib v. Umeshwar, AIR 1937 Nag 321 (322).

90.20. Conflicting views summed up.-

To sum up, there is, at present, a multiplicity of views, and the lease under consideration is regarded as:-

(i) perpetual and heritable,1

(ii) transferable but not heritable,2

(iii) for life,3

(iv) a tenancy at Wil1,4 or

(v) governed by section 106.5

1. Para. 90.15.

2. Para. 90.16.

3. Para. 90.17.

4. Para. 90.18.

5. Para. 90.19.

90.21. Difficulties.-

Not only does this multiplicity of views create uncertainty, but also it is legitimate to point out that some of these views present their own theoretical or practical difficulties. For example, if the lease is for the lifetime of the grantee only but is heritable, then it conflicts with the general rule that an interest in immovable property is heritable. On the other hand, if the lease is taken as falling under section 106, then its term is precarious in the scheme that it can be terminated by notice. Then, the argument that the lease is perpetual in such circumstances has been rightly rejected by some courts1-2 but the view that the lease is not a lease within section 105 may create difficulties.3-4

1. Ram Mohan Rai v. Somabhai, AIR 1950 Born 161.

2. Donkangowda v. Revanshidappa, AIR 1943 Born 148.

3. AIR 1940 Cal 89.

4. Anwar Ali, 43 CWN 797.

90.22. English law.-

In England, a lease of lands for such a term as both parties shall think fit is a lease at Will.1 An agreement to let from year to year and so long as the tenant pays rent and the landlord has power to let, confers no particular estate beyond a tenancy from year to year.2 The English law has been discussed in a Madras case.3

1. Woodfall Landlord and Tenant, (1968), Vol. I, pp. 219, para. 513.

2. Wood v. Beard, (1876) 2 Exch D 30; Woodfall Landlord and Tenant, (1968), Vol. I, p. 218, para. 512.

3. 1913 ILR 36 Mad 557 (558).

90.23. Recommendation to amend section 106 in regard to a lease for payment of rent.-

It appears to us that instead of considering which view would be correct within the present statutory frame-work, the better course would be to consider what approach would be just and practical. On a careful consideration of the multiple aspects which normally are relevant whenever such a question arises, we have come to the conclusion that the best course would be to lay down that a lease which is by its terms to ensure so long as the lessee pays rent should, by a statutory fiction (to be newly inserted), be deemed to be a lease for the lifetime of the lessee, terminable by reasonable notice by the lessee.

It would not then be in the precarious condition of a lease terminable by notice by either party present (section 106). The lessee's interests would be sufficiently protected, since only he can terminate the lease. There would be no injustice to the lessor, since it would be a reasonable view to take that the phraseology used did not contemplate unilateral termination by the lessor by mere notice.

Of course, termination for a valid cause-e.g., non-payment of rent-would be available as in the case of any other lease. This recommendation will apply only where there is no contract or local law or usage to the contrary.1 As to its placing,2 it can be conveniently placed as part of section 106, being a statutory presumption by its nature, though applicable to circumstances slightly different from those to which section 106 applies, at present.

1. Cf. section 106.

2. To be carried out in section 106.