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Report No. 70

Chapter 103

Holding Over

Section 116

103.1. Introductory.-

After the termination of a lease by any of the modes laid down in section 111,-some of which are more particularly dealt with in sections 112 to 115-the lessee may still continue in possession of the premises. If such continuance is without the consent of acquiescence of the lessor, the person so continuing has no legal status. Occassionally; such a person is described as a "tenant by sufferance", but the expression "tenant is strictly speaking a misnomer, because no tenancy in the sense of a right of enjoyment arises either by contract or by statute in such a situation. The lessor can immediately institute legal proceedings for his eviction. This could only be on the basis that he is a trespasser.1

The position is, however different where there is consent or acquiescence on the part of the lessor. If the consent is express, further statutory authority for the tenant's continuance is not required, but it is still necessary to define the terms on which the tenant is to continue-in so far as such terms are not the subject-matter of a fresh contract. The more frequent situation, however, is of acquiescence by the lessor. It is then essential to define the terms on which the lessee is to continue in possession.

1. (a) Deputy Commissioner v. Vishan Dayal, AIR 1919 Oudh 278; (b)Maganlal v. Bhudar, AIR 1927 Bom 192; (c) Punjab National Bank v. Chaudhry, AIR 1945 Oudh 392 (395).

103.2. Holding over.-

The matter is dealt with in section 116. It seeks to define the terms on which a lessee who is allowed by the lessor to continue in possession after the termination of the lease, will hold the premises. The legal name devised is "holding over", but it must be understood that it is an essential ingredient for the application of that doctrine that the lessor must have given his assent, express or implied, to the continuance in possession of the lessee.

103.3. Renewal and its terms.-

Holding over is a bilateral transaction. The effect, stated in broad terms, is that the lease is "renewed". This, in general, implies that the terms of the prior lease continue to apply-but there is an important refinement and an important qualification in this regard. The refinement is as regards the duration of the renewed lease. The qualification is as regards the notice required for the termination of the renewed lease. We shall deal with these two aspects later1 both furnishing an interesting illustration of the much maligned labour saving device of "referential legislation."

1. Paras. 103.5 to 103.9, infra.

103.4. Section 116.-

The section reads-

"116. If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement of the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106.


(a) A lets a house to B for five years. B under-lets the house to C at a monthly rent of Rs. 100. The five years expire, but C continues in possession of the house and pays the rent to A. C's lease is renewed from month to month.

(b) A lets a farm to B for the life of C. C dies, but B continues in possession with A's assent. B's lease is renewed from year to year."

103.5. Period.-

We begin with the points that most frequently arise on the section. Questions have arisen often as to period of the renewed lease. In the absence of an agreement to the contrary, the period of the renewed lease is to be governed by section 106 the scheme of which, it may be recalled, is based on the purpose of the lease. This refinement is based on the purpose of the lease. This refinement is to be expressly found in section 116. As to the period of notice, the reference in section 116 to section 106 is not so explicit, but the better view1 is that the provision in the old lease (as to period of notice) is not operative, and the matter is governed by section 106. These matters of detail require some discussion.

1. See para. 103.6, infra.

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