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Report No. 70

Chapter 95

Commencement of Leases

Section 110

95.1. Introductory.- Section 110 reads-

"110. Where the time limited by a lease of immovable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. Where no day of commencement is named, the time so limited begins from the making of the lease.

Where the time so limited is a year or a number of years, in the absence of an express agreement to the contrary, the lease shall last during the whole anniversary of the day from which such time commences.

Where the time so limited is expressed to be terminable before its expiration, and the lease omits to mention at whose option it is so terminable, the lessee, and not the lessor, shall have such option."

95.2. Scope.-

It has been held that where the lease is to commence from the date of putting the lessee in possession, then section 110 does not apply.1

According to the Assam High Court, section 110 applies only to written leases.2 We agree with this view, with respect. There are, however, observation in an earlier Calcutta case3 raising a query on the subject. We think that oral leases should be excluded from section 110, since the terms of an oral lease cannot always be precisely proved.

We recommend accordingly.

1. Rajan v. Gopal, (1975) 2 SCJ 1 (5).

2. Dudmere v. Haribhakti, AIR 1970 Assam 115.

3. Calcutta L&S Co. v. Victor Oil Co., AIR 1944 Cal 84 (85) (Rau, J.-obiter).

95.3. Section 110-Context to the contrary.-

The first paragraph of section 110 deals with the date of commencement of a lease. The word "from" (as a general rule) excludes the day from which the time is to be reckoned, except where the context requires a contrary rule to be adopted. This general rule is applicable whenever time is to be computed "from" a day specified, whether such time is fixed for the performance of a contract or is prescribed by law for the doing of an act or for the institution of proceedings in a Court of Law. This principle is found embodied in section 9(1) of the General Clauses Act which runs as follows:

"In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word from and, for the purpose of including the last in a series of days or any other period of time, to use the word to."

Section 12, sub-section (1) of the Limitation Act, 1963, runs as follows:

"In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded."

Rau, J. has observed:1

"The rule laid down in section 110 is not inflexible and the section must be read as qualified by some such phrase as 'unless the content otherwise requires' ".

We recommend that the section should be amended accordingly.

1. Calcutta L&S Co. v. Victor Oil Co., AIR 1944 Cal 84 (86) (Rau, J.-obiter).

95.4. Section 110-periodical tenancy.-

It has been held that section; 110 is not applicable to a periodical tenancy.1-4 Such as a tenancy from year to year or from month to month as in such a tenancy, time is limited by the notice to quit and not by the lease.

1. Durga Prasad v. Bhagwan, AIR 1967 Punj 404 (405).

2. AIR 1959 Assam 174 (175), para. 3; Ram Dhari v. Jogendra Kumar.

3. Carraba M&T Co. v. Chari, AIR 1957 Cal 357 (360).

4. Chand Mohamad v. Murtza Khan, AIR 1950 Nag 233 (234).

95.5. Recommendation.-

Having regard to the position discussed above, we are of the view that the scope of section 110 should be more precisely defined by providing that

(i) it does not apply to periodic tenancies1 (section 106);

(ii) it does not apply to oral leases;2 and

(iii) it does not apply where the context indicates to be contrary.3

The following is a rough re-draft of section 110 which we recommend to carry out the above changes:

Revised section 110

"110. (1) Where the time limited by a lease in writing of immovable property is expressed as commencing from a particular day, in computing that time such day shall be excluded.

(2) Where no day of commencement is named, the time so limited begins from the making of the lease.

(3) Where the time so limited is a year or a number of years, in the absence of an express agreement to the contrary, the lease shall last during the whole anniversary of the day from which such time commences.

(4) Where the time so limited is expressed to be terminable before its expiration, and the lease omits to mention at whose option it is so terminable, the lessee, and not the lessor, shall have such option.

Explanation.- Nothing in this section applies to leases governed by section 106 or where the context indicates to the contrary."

1. Para. 95.4.

2. Para. 95.2.

3. Para. 95.3.



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