Report No. 70
96.11. Section 111 (g).- Clause (g) deals with forfeiture of a lease in three situations, namely
(i) on breach of an express condition where a right of re-entry is provided for; or
(ii) on denial of the lessor's title by the lessee; or
(iii) on the insolvency of the lessee where the lease provides for a right of re-entry on such contingency.
Under the law, as it now stands, in all these cases it is also necessary that the lessor must give a written notice to the lessee of his intention to determine the lease.
If the other requirements of section 111(g) are satisfied, it is immaterial that the lease is by way of permanent tenancy1. Even a permanent lease can be forfeited on breach of a condition expressly providing for re-entry.2
1. Mohammad Amir v. Municipal Board, Sitapur, MR 1965 SC 1923 (1928), para. 11.
2. Gopal Krishna v. Narayna, AIR 1964 AP 528 (530).
96.12. Section 111(g) and the word "condition".-
In clause (g), the word "condition" is not used in the same sense as in English law, and overlaps what is called a covenant in English law. A condition puts a bridle or restraint on the estate granted.1 Thus, in a lease which stipulated and conditioned that the lessee would not assign except to his wife and children,2 these words indicated that the lease could be determined for breach of the condition. But a covenant only imports an agreement. Thus, in a lease where the lessee "hereby agrees that he will not underlet the premises without the consent in writing of the landlord".3 these words are a covenant the breach of which gives the lessor only the right to recover damages or obtain an injunction.
Under the section as it stands after the amendment of 1929, a provision in the lease that on the breach of a particular condition the lease shall be "void", or a provision using a similar phraseology, does not entail forfeiture. The amendment of 1929 thus requires a strict adherence to the letter of the law, in so far as it is now necessary that there must be an express provision for re-entry in the lease.
This was not the position before the Act of 1929. In old clause (g), it was stated that forfeiture could take place upon the breach of an express condition which provided that on breach thereof the lessor may re-enter or the lease shall become void. Hence, a covenant in a lease that on a failure to pay rent, the lease shall become null and void, entailed forfeiture.
Of course, against such forfeiture, relief was not granted by section 114.4 Whether this amendment restricting the scope of forfeiture for breach of a condition was or was not necessary, need not be discussed at this stage, since its practical effect, broadly stated, is merely that the draftsman of a lease should now be more careful and use the precise formula "the lessor shall be entitled to re-enter," instead of any other less stringent wording.
It may incidentally be stated that conditions making a lease void on their breach are also construed in English5 as well as in pre-1929 Indian cases6 as making the lease voidable at the option of the lessor.
1. Mu (1973), p. 747.
2. Deo D. Henniker v. Watt, (1828) 8 B&C 208.
3. Shaw v. Coffin, (1963) 14 CB (NS) 372,
4. Hiranandan v. Ramdhar, AIR 1922 Pat 528.
5. Davenport v. Queen, (1877) 3 App Cas 115;
Reid v. Parsons, (1817) 2 Chit 247 (the term shall cease);
Deo D. Bryan v. Banks, (1821) 4 B&Ald 401; Deo D. Nash v. Birch, (1830) 1 M&W 402;
Quesnel Forks Gold Mining Co. v. Ward, 1920 AC 222.
6. Hiranandan v. Ramdhar, AIR 1922 Pat 528.
96.13. Effect on Assignment.-
The question of evicting the lessee on violation of a condition against assignment or subletting of rights of the lessee has been discussed by us earlier.1 In regard to section 12, our recommendation was that in such a case the assignment should be void. This amendment of section 12 does not, of course, necessarily involve a change in section 111(g), which, as at present, will apply only where there is an express provision for re-entry in case of breach.
1. See discussion as to section 12, supra.
96.14. Denial of title.-
As to the situation of denial of title, it is a well established principle that if a tenant denies the title of the landlord, he can be evicted without notice to quit. As was observed by Best, J.-1
"There can be no necessity for a notice to end that which he (the lessee) says has no existence."
1. Deo v. Frowd, (1828) 130 Eng Rep 883 (884).
96.15. Section 111(g) (New)-Termination at the option of the lessee-Recommendation.-
We have dealt with clause (g). At this stage, we may refer to an important matter pertaining to the termination of a lease. Section 111 contains no clause providing for the termination of the lease at the option of the lessee on account of a breach of a contract by the lessor, even where the term broken by the lessor is, from the lessee's point of view, an important condition.
Thus, in a Madras case,1 the lease was for 5 years and one of the terms of the lease was that within six months from the date of the lease, the lessor shall have a latrine constructed, a well sunk and a room built upstairs. The lessee occupied the house from November, 1916 to February, 1919 and thereafter after giving intimation in March 1919, vacated the house, as the well was not sunk and other necessary repairs were not effected. The landlord brought a suit for rent for the remaining period and was ultimately successful. It was held that the lessee had no right to terminate the lease, since the lease was for a fixed period.
1. Govindaswami v. Palaniappa, AIR 1925 Mad 833 (Ramesam, J.).
96.16. Recommendation to add clause (gg).-
We are of the view that the law should recognise such a right by allowing termination by the lessee for breach of an express condition providing for such termination after reasonable notice to the lessor. We, therefore, recommend that a new clause should be inserted-say, as section 111(gg)-for the purpose, in these terms:
"(gg) by repudiation, that is to say, in case the lessor breaks an express condition which provides that on breach thereof the lessee may repudiate the lease, and the lessee gives notice in writing to the lessor of his intention to determine the lease."
96.16A. Section 111(h).- Section 111(h) needs no change.
96.17. Section 111-Lessor's death.-
Before concluding our consideration of section 111, we may refer to a few matters not dealt within so many words in the section. The death of the lessor does not determine the lease, except in cases where his own interest ceases on his death or it is provided in the lease that the lease shall terminate on his death.1-2
As to the lessee's death, a lease, being a transfer of an interest in immovable property, is a heritable right,3-4 except where the lease provides to the contrary expressly or by implication. A contractual tenancy is subject to devolution on succession.
1. AIR 1957 Cal 173 (176).
2. AIR 1929 Nag 23 (26).
3. Nihal Chand v. Shin Narain, AIR 1958 Punj 263 (265).
4. Ram Barai v. Tirtha Pada, AIR 1957 Cal 173 (176).
96.18. Section 111 and tenancy at Will.-
As regards a tenancy at Will, it is to be noted that a formal notice is not necessary to terminate such a tenancy. By its very nature, such a tenancy contemplates that it survives only until a certain event happens. On the part of the lessor, a demand of possession is enough to terminate it and he need not give any time to the lessee for evicting where the tenancy is one at Will.
Of course, the notice itself can operate as a demand for possession. But, as a matter of principle, a tenancy at Will can be determined by a mere demand for possession, express or implied.1 Since the lease can be put to an end at any time, the case does not fall within the "notice to quit" contemplated by section 106 read with section 111(h). It should be regarded as falling within section 111, clause (b).
1. Ansar All v. Babulal Jamini, AIR 1940 Cal 89 (91).
96.19. Section 111 and Rent Control legislation.-
Finally, it is proper to take notice of an important development affecting the termination of tenancies regulated by local Rent Control legislation. Such legislation, as is well-known, is intended to confer, inter alia, special protection against eviction on tenants of the premises to which the particular legislation applies. In such cases, the fact that the tenancy is terminated in the manner laid down in the Transfer of Property Act is not sufficient to entitle the landlord to sue for eviction and certain statutory requirements must be satisfied. The tenant is entitled to remain in possession by statute which is the origin of the expression "statutory tenancy".
The converse question, namely, whether where the requirements of the Rent Control legislation justifying eviction have been fulfilled, it is also necessary that the tenancy should have been determined in the manner prescribed by the Transfer of Property Act is a difficult one. Judicial decisions on the subject, on a cursory study, show that the position is not very clear.1
The matter is, however, really suitable for being dealt with in the local Rent Control legislation, by providing either that the Rent Control legislation does not entitle the landlord to sue for eviction without a formal termination of the tenancy, or by providing that where the Rent Control legislation applies, formal termination of the tenancy is not required.2
1. Lhaiku Singh v. Chandrika Singh, AIR 1961 Pat 350 (353).
2. See discussion in Duttopant, AIR 1975 SC 1111 (1113, 1114), paras. 12 to 14.