Whether court can treat the tenanted property as joint family property if Karta is the tenant of said property?

 A perusal of the facts on record would show that it was a contract of tenancy entered upon by great grandfather of the plaintiff. Even if the great grandfather was maintaining the family out of the income generated from the hotel business, that itself would not make the other family members as coparceners in the hotel business. It was the contract of tenancy which was inherited by the grandfather of the plaintiff who later surrendered it in favour of the Wakf Board. The tenancy was an individual right vested with the grandfather of the plaintiff who was competent to surrender it to the landlord. The High Court has clearly erred in law by holding that since the grandfather was a tenant, the tenancy is a joint family asset. The contract of tenancy is an independent contract than the joint Hindu family business.{Para 32}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6149 OF 2015

KIRAN DEVI  Vs THE BIHAR STATE SUNNI WAKF BOARD

& ORS.

Author: HEMANT GUPTA, J.

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Whether surrender of tenancy by one co-lessee to the landlord will bind other co-lessee?

1) The appellant/plaintiff, on 6th June, 1984 instituted the suit from which this appeal arises, pleading (i) that the appellant/plaintiff and the respondent/defendant No. 1 Rakesh Kumar, vide Deed dated 3rd September, 1975 entered into a partnership, to start a firm in the name and style of M/s. Neel Jewellers, to carry on business of repair and sale of silver jewellery and repairing and making of gold ornaments, at Shop No. 47 U.B., Jawahar Nagar, Delhi which was jointly taken, on rent by the appellant/plaintiff and the respondent/defendant No. 1 Rakesh Kumar for partnership business, from the respondent/defendant No. 2 Maya Devi, who was the mother of the respondent/defendant No. 1 Rakesh Kumar.

2) A lease is nothing but a contract between the lessor/landlord and the lessee/tenant. Law relating to leases of immovable property is otherwise codified in the Transfer of Property Act. Section 4 of the Transfer of Property Act, which was enacted later in point of time, provides that the Chapters and Sections of the Transfer of Property Act which relate to contract shall be taken as part of the Contract Act. Chapter V, titled "Of Leases of Immoveable Property", of the Transfer of Property Act does not provide for relations inter se lessee, if more than one i.e. of performance of obligations of a lessee under the lease. However the same under Section 111 titled "Determination of Lease" provides for termination of lease inter alia by express or implied surrender. However it does not provide, whether surrender of lease, in the event of lease in favour of more than one person, has to be by all or even one of them is capable of so surrendering the lease and which surrender would bind the others as well. Mention may also be made of Section 108 titled "Rights and Liabilities of Lessor and Lessee", in the absence of a contract to be contrary, and which vide Section 108(B)(q) provides it to be a liability/obligation of the lessee to, on determination of lease, put the lessor into possession of the property. Here, there is no pleading or evidence of any contract between the appellant/plaintiff and the respondent/defendant No. 1 as lessees on the one hand and respondent/defendant No. 2 as lessor on the other hand, having contracted to the contrary. I had during the hearing also referred the counsels to Section 45 of the Transfer of Property Act which provides that when immovable property is transferred for consideration to two or more persons, they are, in the absence of a contract to the contrary, entitled to interests in such property equivalent to the proportion of the consideration paid by them and in the absence of evidence thereof, to equal interest in the property. A lease of property is a contract of transfer of property within the meaning of Section 45 of the Act.

3) I fail to see, that when under Section 43 of the Contract Act one of the two persons who have together taken a premises on rent, by making payment to the landlord is in a position to discharge the liability of the other tenant also, why the surrender of tenancy by respondent/defendant No. 1 herein, who along with the appellant/plaintiff had taken the premises on rent, would not bind the appellant/plaintiff. The appellant/plaintiff, if had intended to the contrary, considering that the landlord was none else but the mother of the respondent/defendant No. 1, ought to have contracted to the contrary and which was not done. In the absence of a contract to the contrary, under Section 43 of the Contract Act, the respondent/defendant No. 1 was entitled to surrender the tenancy.

IN THE HIGH COURT OF DELHI

RSA 146/2005

Decided On: 09.05.2020

 Gauri Shankar Vs.  Rakesh Kumar and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation:  MANU/DE/1023/2020

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Whether the tenant can claim adverse possession in the tenanted property without surrender of the tenancy?

 The Respondent continued to be in possession of the land leased vide registered lease deed dated 22nd September, 1954. The Respondent has admitted the ownership of the Appellants before the Reference Court. Such plea operates as estoppel against the Respondent in respect of the title of the Appellants. However, the claim of compensation put forward by the Respondent was declined for the reason that non-payment of rent disentitles the Respondent from compensation. In the present proceedings, the Respondent has denied his status as that of a tenant but claimed title in himself. The Respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. The Respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The Respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the reference Court nor he has surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. The question of adverse possession without admitting the title of the real owner is not tenable.         {Para 41}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9918 of 2011

Decided On: 19.03.2020

 Nand Ram  Vs.   Jagdish Prasad

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How to appreciate evidence if landlord takes plea that tenant has voluntarily surrendered tenanted premises?

As against this, the testimony on behalf of the defendant was that of one Prabhudayal Radhakrishnan. Sole reliance placed on the evidence of this witness by the counsel for the applicant is that when Mr. Prabhudayal asked a question to the plaintiff while he was loading the truck, the response that was received from the plaintiff was that he was shifting to a godown at Odhav. Except the evidence which is pressed into service by the applicant's counsel, the learned trial Judge upon appreciation of the evidence of the witness on behalf of the plaintiff came to the conclusion that the defendant failed to discharge his burden of showing that the plaintiff had voluntarily surrendered the possession of the suit premises in favour of the defendant. It has come on record through the railway reservation ticket that the plaintiff was out of station at Mumbai. During that period of time, he received a call from his servant Dineshbhai about the forcible eviction from the suit premises by the defendant. Dineshbhai in his evidence has categorically stated that on 09.12.1993, three persons came over including one Manish who threatened them with a knife. The furniture of the shop was thrown out and since he was scared he fled the shop and made a call to Mohanbhai at Mumbai. The fact that the defendant filed a Civil Suit before the City Civil Court for a restraint order suggests that the conduct of the defendant obviously was to cover up the forcible eviction that he undertook when the plaintiff was out. His case that he had subsequently sub-let the shop to Gujarat Investment and Finance Consultancy also does not stand good in view of the testimony of Mr. Jayantkumar Chimanlal Shah who has testified that he was working with such company which was owned and operated by the plaintiff and he was being remunerated by the plaintiff.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Civil Revision Application No. 66 of 2005

Decided On: 24.08.2018

Anilbhai Narayanshanker Jani Vs.  Mohanbhai Kakaram Sharma Akashdeep Transport Company

Hon'ble Judges/Coram:

Biren Vaishnav, J.

Citation: 2019(1) RCR(Rent) 45

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Whether tenancy will extinguish if agreement of sale is executed between landlord and tenant?

“19. A surrender under clauses (e) and (f)
of section 111 of the Transfer of Property
Act, is an yielding up of the term of the
lessee's interest to him who has the
immediate reversion or the lessor's interest.
It takes effect like a contract by mutual
consent on the lessor's acceptance of the act
of the lessee. The lessee cannot, therefore,
surrender unless the term is vested in him;
and the surrender must be to a person in
whom the immediate reversion expectant on
the term is vested. Implied surrender by
operation of law occurs by the creation of a
new relationship, or by relinquishment of
possession. It the lessee accepts a new lease
that in itself is a surrender. Surrender can
also be implied from the consent of the
parties or from such facts as the
relinquishment of possession by the lessee
and taking over possession by the lessor.
Relinquishment of possession operates as an
implied surrender. There must be a taking of
possession, not necessarily a physical taking,

but something amounting to a virtual taking
of possession. Whether this has occurred is a
question of fact.
32. It is in the light of the aforementioned legal
principle, the question involved in this case has to
be examined.
33. Perusal of Agreement to Sell dated 13.05.1993
(Annexure P1)
shows that though the agreement
contains 9 conditions but none of the conditions
provides much less in specific terms as to what will
be the fate of the tenancy. In other words, none of
the conditions set out in the agreement 13.05.1993
can be construed for holding that the parties
intended to surrender the tenancy rights.
34. A fortiori, the parties did not intend to
surrender the tenancy rights despite entering into
an agreement of sale of the tenanted property. In
other words, if the parties really intended to

surrender their tenancy rights as contemplated in
clauses (e) or (f) of Section 111 of the TP Act while
entering into an agreement to sell the suit house, it
would have made necessary provision to that effect
by providing a specific clause in the agreement. It
was, however, not done. On the other hand, we find
that the conditions set out in the agreement do not
make out a case of express surrender under clause
(e) or implied surrender under clause (f) of Section
111 of the TP Act.

37. As observed supra, such is not the case here
because we do not find any such clause or a clause
akin thereto in the agreement dated 13.05.1993 and
nor we find that the existing conditions in the
agreement discern the intention of the parties to
surrender the tenancy agreement either expressly or
impliedly.
38. In the light of the foregoing discussion, we are
of the considered opinion that the tenancy in
question between the parties did not result in its
determination as contemplated under Section 111
of TP Act due to execution of the agreement dated
13.05.1993 between the parties for sale of the suit
house and the same remained unaffected

notwithstanding execution of the agreement dated
13.05.1993

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 12371238
OF 2019

Dr. H.K. Sharma Vs  Shri Ram Lal 

Abhay Manohar Sapre, J.

Dated:January 28, 2019.

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Whether tenancy will come to end if agreement of sale is executed between landlord and tenant?

 As observed supra, such is not the case here
because we do not find any such clause or a clause
akin thereto in the agreement dated 13.05.1993 and
nor we find that the existing conditions in the
agreement discern the intention of the parties to
surrender the tenancy agreement either expressly or
impliedly.
38. In the light of the foregoing discussion, we are
of the considered opinion that the tenancy in
question between the parties did not result in its
determination as contemplated under Section 111
of TP Act due to execution of the agreement dated
13.05.1993 between the parties for sale of the suit
house and the same remained unaffected

notwithstanding execution of the agreement dated
13.05.1993
39. A fortiori, the respondent (lessor) was rightly
held entitled to file an application against the
appellant (lessee) under Section 21 (1) (a) of the UP
Act and seek the appellant's eviction from the suit
house after determining the tenancy in question.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 12371238
OF 2019

Dr. H.K. Sharma Vs  Shri Ram Lal 

Dated:January 28, 2019.
Abhay Manohar Sapre, J.
Citation: 2019(1) RCR(Rent) 227 SC

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When sub tenant has failed to prove that he has become direct tenant of original landlord?

The very stand taken by the defendant in the written statement shows that he admits to have taken the suit premises on sublease from the plaintiff. And his specific plea is that he became a direct tenant under the original owners. In the light of the pleading of the defendant, the issue should have been framed in such a way as requiring proof by the defendant regarding surrender of lease by plaintiff and his becoming a direct tenant of the original owners. Section 103 of the Indian Evidence Act is applicable here. The defendant wishes the court to believe that he became direct tenant of the original owner and therefore he must prove it. If he fails to prove, obviously plaintiff succeeds. The trial court has missed to notice this aspect.

 Now what needs to be further examined is whether the defendant has been able to prove his specific plea. Defendant who has adduced evidence as DW-1 has produced the lease deed dated 07.05.2002 as per Ex. D.1. Firstly this lease deed cannot be looked into as it is an unregistered instrument; since the duration of lease is three years, it should have been registered. Secondly, even if it can be looked into for collateral purpose of surrender of lease by the plaintiff, that aspect does not get established. In Ex. D1, there is a clear reference to suit premises being leased to plaintiff and the defendant being inducted as subtenant by the plaintiff. There is a recital that the erstwhile lessee requested the lessor i.e., the original owners to execute the lease agreement in favour of defendant. If this were to be the agreement reached among the original owners, the plaintiff and the defendant, the plaintiff should have been a party to Ex. D.1. She is not a party to the said document. Therefore the defendant cannot say that by virtue of Ex. D.1 he became a direct tenant under the original owners.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Regular First Appeal No. 121 of 2015

Decided On: 09.04.2018

 Fahima Irfan Patel  Vs. Troop Basheer Ahmed

Hon'ble Judges/Coram:

Sreenivas Harish Kumar, J.

Citation: AIR 2018 Karnataka 167

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Whether there will be implied surrender of tenancy on execution of mortgage deed?

 In the facts of the present case, admittedly, there is no mention of the alleged tenancy in the mortgage deed. Moreover, the mortgage deed was admittedly for a fixed term of five years. The liability to pay rent was not kept alive and the right was given to consider it as a sale-deed, if the Respondent was unable to redeem the mortgage within stipulated period of 5 years. Therefore, the terms and conditions of the mortgage deed clearly spell out the implied surrender of the tenancy. Hence, as held in this judgment of Tarachand V/s. Sagarbai Alias Chaiyalibai (supra), assuming that the Appellant was in possession of the suit premises as a tenant, in view of the implied surrender of tenancy on execution of the mortgage deed, on redemption of mortgage the Respondent becomes entitled to get possession of the suit property. The Respondent-landlord was therefore not required to proceed against the Appellant under the provisions of Rent Control statute to recover the possession. Therefore, having surrendered his tenancy may be impliedly, the Appellant cannot retain his possession. Hence, on this ground also, the judgment and decree passed by the trial Court and confirmed by the Appellate Court does not call for any interference.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 265 of 1991 and Civil Application No. 1225 of 2017

Decided On: 27.06.2018

 Nivruti Dnyanu Patil Vs. Shankar Krishna Bhagat-Patil and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(6) MHLJ 167

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What is basic concept of implied surrender of tenancy?

37. The doctrine of implied surrender is a legal principle evolved for purpose of recognising a state of facts or a transaction relating to which there is no express document. Such an implied surrender in law is presumed where the new state of facts are inconsistent and incompatible with the continuation or existence of a former relationship. If the new facts and relationship found is inconsistent and incompatible and if the two cannot stated together viz. the new relationship found and the former relationship which existed then the law presumes that thee was an implied surrender by the holder of the former status of his rights in the property in question. Such an implied surrender is presumed where a new relationship which is incompatible and inconsistent is created by a simple relinquishment of possession.

 Mulla in his Transfer of Property Act, 6th Edition, Page 745 observed :---

"There must be a taking of possession, not necessarily a physical taking, but something amounting to a virtual taking of possession."

If, therefore, an inference that possession must have been taken and parted with is possible and if the conduct of the parties is inconsistent with such an hypothesis, then in such circumstances it will have to be held that possession of the kind which it was possible was parted with and delivered. Even a notional parting of possession would become surrender of possession. For rendering validity to a surrender, physical delivery of possession is not an absolute must, if a person is notionally in possession. If a person hands over possession of the kind which he can deliver and of which he was possessed, which he had then in law, even such parting of possession or character would clothe the transaction with an implied surrender.

46. In Shah Mathurdas Maganlal and Co. v. Nagappa Shankarappa Malaga and others, A.I.R. S C 1565 , a mortgage was executed in favour of the tenant and the question arose as to whether there was a merger and upon redemption whether the right of the tenant as tenant revived. It was held that :---

"Implied surrender by operation of law occurs by the creation of a new relationship, or by relinquishment of possession. If the lessee accepts a new lease that in itself is a surrender. Surrender can also be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor."

47. On behalf of the landlord, the learned Counsel Shri Abhyankar placed reliance upon a decision reported in Noratmal v. Mohanlal A.I.R. 1966 Raj 89 wherein it was observed that :---

"It may be a surrender by acceptance of a new lease or a surrender by unequivocal giving of possession or a surrender by re-letting to another person by the landlord. Even acceptance by the landlord of the sub-lessee as his tenant would amount to surrender."

It is, therefore, clear that where there was re-letting to another person by the landlord, there would be implied surrender. As I have pointed out the basis for the application of this legal doctrine is incompatibility and impossibility of existence of two inconsistent situations together. In such an event, law holds that the first has impliedly surrendered his interest and rights in the property when rights were created in favour of another person.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 1448 and 2744 of 1978

Decided On: 04.03.1983

 Sugrabi  Vs.  Cavas Navroji Patel and Ors.

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What are modes for extinguishment of tenancy rights?

 It is an admitted position that the relationship between the Petitioner tenant and Respondent landlord was governed by the provisions of Bombay Rent Act, 1947. Once such relationship was governed by the Bombay Rent Act, 1947 there can only be two modes of exstinguishment of tenancy rights. The first is by an express surrender of tenancy by a tenant which is not the case in hand. The second mode of extinguishment of tenancy is by a decree of competent Court. In V. Dhanpal Chettiar v/s. Yesodai Ammal MANU/SC/0505/1979 : 1979 (4) SCC 214 : AIR 1979 SC 1745, the Constitution Bench of the Supreme Court has clearly held that in respect of the premises governed by the Bombay Rent Act, 1947, the tenancy does not get terminated even by issuance of a notice of termination of tenancy and can come to an end only by a decree of a competent Court. This legal position is well established.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 115 of 2010

Decided On: 10.01.2012

 Pius Bonaventure Fernandes Vs. Manu Narang

Hon'ble Judges/Coram:

G.S. Godbole, J.

Citation: 2012(2) RCJ 77 Bom

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Whether lease can be surrendered unilaterally?

A surrender under clauses (e) and (f) of section 111 of the Transfer of Property Act, is an yielding up of the term of the lessee's interest to him who has the immediate reversion or the lessor's interest. It takes effect like a contract by mutual consent on the lessor's acceptance of the act of the lessee. The lessee cannot, therefore, surrender unless the term is vested in him; and the surrender must be to a person in whom the immediate reversion expectant on the term is vested. Implied surrender by operation of law occurs by the creation of a new relationship, or by relinquishment of possession. It the lessee accepts a new lease that in itself is a surrender. Surrender can also be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor. Relinquishment of possession operates as an implied surrender. There must be a taking of possession, not necessarily a physical taking, but something amounting to a virtual taking of possession. Whether this has occurred is a question of fact.

Supreme Court of India

Shah Mathuradas Maganlal & Co vs Nagappa Shankarappa Malage & Ors on 23 March, 1976

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Landmark judgment on law relating to landlord tenant dispute

The rights and liabilities of the lessor and the lessee or the landlord and the tenant are governed by the general law of Indian Contract Act and the Transfer of Property Act, which are the central legislations. The disputes in respect of such rights and liabilities can be resolved by invoking ordinary civil jurisdiction of the Civil Court under Section 9 of the Civil Procedure Code. The rent laws are the special enactments made by the State Legislatures to provide additional protection to the tenants by regulating the rates of rent, repairs of premises, eviction of tenants, etc., and provide a special machinery or the forum to decide the disputes in respect of it. The special law does not abrogate or repeal the general law and the remedies provided therein, but it merely keeps it in a dormant state. The landlord is not permitted to snap his relationship with the tenant merely by his act of service of notice to quit under Section 106 of the Transfer of Property Act, as is permissible under the general law. In spite of service of notice to quit, the rent law says that the tenant continues to be the tenant enjoying the rights of a lessee and cannot be evicted unless the grounds for eviction as are stipulated therein are made out.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 58 of 2004

Decided On: 14.08.2014

Anil Dhondu Shinde Vs. Govind Jagnnath Samant

Respondent: Govind Jagnnath Samant

Hon'ble Judges/Coram:R.K. Deshpande, J.

Citation; 2014(6)ALLMR575,2014(6)ABR375

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When surrender of tenancy by tenant of agricultural land can be held as legal and valid?

It will be seen from a combined reading of these provisions that a surrender of tenancy by a tenant in order to be valid and effective must fulfil these requirements: (1) It must be in writing. (2) It must be verified before the Mamlatdar. (3) While making such verification the Mamlatdar must satisfy himself in regard to two things, namely, (a) that the tenant understands the nature and consequences of the surrender, and (b) that it is voluntary. (4) The Mamlatdar must endorse his findings as to such satisfaction upon the document of surrender.

In the instant case, merely deletion of the name of the tenant by M.E. No. 1609 was not sufficient for the landlord to contend that he was cultivating the said land thereafter personally. It was necessary to prove by sufficient evidence that the tenant had surrendered the tenancy and the said surrender ought to satisfy the abovementioned tests in toto. There was no such evidence before either the Tenancy Awal Karkun or the SDO or even in the inquiry held on 13-11-1981 by the Resident Nayab Tahsildar.

Bombay High Court

Laxman Hari Tambe Since Deceased ... vs Dattu Sonu Pawar Since Deceased By ... on 12 July, 2006

Equivalent citations: 2006 (6) MhLj 289

B.H. Marlapalle, J.

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