Law > Civil Laws > Transfer of Property Act > Rights of Lessee
Section 108 of the Act deals with the liabilities and rights of the lessor and lessee of immovable property. In this article, we shall discuss the rights of lessee.
Section 108: Rights and liabilities of lessor and lessee:
In the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:
(A) ………………
(B) Rights and Liabilities of the Lessee
(d) If during the continuance of the lease any accession is made to the property, such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease;
(e) if by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void: Provided that, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision;
(f) if the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor;
(g) if the lessor neglects to make any payment which he is bound to make, and which, if not made by him, is recoverable from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it from the lessor;
(h) the lessee may 1[even after the determination of the lease] remove, at any time 2[whilst he is in possession of the property leased but not afterwards] all things which he has attached to the earth; provided he leaves the property in the state in which he received it;
(i) when a lease of uncertain duration determines by any means except the fault of the lessee, he or his legal representative is entitled to all the crops planted or sown by the lessee and growing upon the property when the lease determines, and to free ingress and egress to gather and carry them;
(j) the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease; Nothing in this clause shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee;
(k) …………. (q)
Rights of Lessee:
- Section 108 (d) lays down that during the period lease is in effect if any alteration is made (alluvion for the time being in force) then that alteration will come under that same lease. This rule would not apply where the parties are governed by their contract or local usage. This clause is also not applicable to agricultural leases (S. 117 of the Act).
In Tabor v. Godfrey, (1895) 64 LJQB 245 case, the Court held that the clause deals with increament when during the currency of the lease the original land is increased by addition to it. According to the clause, in the absence of express stipulation or local usage to the contrary, such additions are deemed to be included in the land originally leased and subject to the same terms of tenancy as the parent land. This rule would not apply where the parties are governed by their contract or local usage.
- Section 108 (e) lays down that if a significant part of the property that has been leased is destroyed wholly or partly by fire, by flood, by war, by the violent acts of the mob or by any other means resulting in its inefficiency of being a benefit for the lessee. If this happens, the lease is voidable at lessee’s option. There is a provision to this section that if the damage is done due to any act of the lessee himself, this remedy will not be available for him.
In Dada Siba Estate v. Raja Dharmdev Chand, AIR 1961 Punj 143 (DB) case, the Court held that under the clause 108(e) the option of continuance of leases remains with the lessee.
In George J. Ovungal v. Peter, AIR 1991 Ker 55 case, the Court held that ton the destruction of leased property, landlord tenant relationship would not automatically terminate and come to an end.
- Section 108 (f) lays down that lessee has the right to deduct any expenses he has made for repairs in the property from the rent if the lessor has failed to in reasonable time after sending notice. This clause would not apply where the parties are governed by their contract or local usage. This clause is also not applicable to agricultural leases (S. 117 of the Act).
In Home School NO. 16, 17, & 18 v. M. Shafi Ul Huq, 2002 AIHC 753 (754) case, the Court held that to effe4ct repairs, the tenant is expected to give notice to the landlord.
In Pritam Prakash Davar & Sons HUF v. Krisan Kumar Bhasin, 2009 (158) DLT 662 case the Court held that where landlord neglects to effect repairs in a reasonable time, the tenant has right to effect the repairs and recover costs from the landlord.
In V. G. K. Design & Development Engineering Pvt. Ltd. v. H. N. Narayana Reddy, AIR 2008 (NOC) 739 (Kar) case, the Court held that where the tenant has not given notice to the lessor and obtained his implied or express consent he would not be entitled to recover the expenses incurred by him in carrying out the repairs in tenanted premises.
- Section 108 (g) lays down that lessee has a right to recover any such payment which a lessor is bound to make by can deducting it from the interest of the rent or directly from the lessor. He has this right when the lessor has neglected to make that required payment. This clause would not apply where the parties are governed by their contract or local usage. This clause is also not applicable to agricultural leases (S. 117 of the Act).
In Shakuntala Devi Darak v. Transport Corporatiuon of India Ltd., 2011 (6) ALT 47 (A.P.) case, the Court held that Section 108(g) is only subject to any agreement between the landlady/landlord and tenant.
- Section 108 (h) lays down that lessee has a right to detach all things that he may have attached in the property or earth. His only obligation is that he has to leave the property in the same condition as he received it. He can remove the things attached to the earth at any time whilst he is in possession but not afterwards. This clause would not apply where the parties are governed by their contract or local usage. This clause is applicable to agricultural leases (S. 117 of the Act).
In Narayan Das v. Jatindranath, AIR 1927 PC 135 case, the Court held that there may be separation of the ownership of the buildings from the ownership of the land, and there is no rule of law that whatever affixed or built on the soil becomes part of it and is subjected to the same rights of property as the soil itself.
In Kakalpudi Rangaraju v. Happavaluri Sitaramaya, AIR 1955 AP 62 case, the Court held that the trees of spontaneous growth on the land belong to the owner; the lessee cannot remove or cut such trees. The lessee can remove only such trees as have been planted by him after the leases.
- Section 108 (i) lays down that when a lease is of unspecified duration in the lease agreement, lessee or his legal representative have a right to collect all the profits or benefits from the crops which were sown by the lessee at that property. They also have a right of free ingress and egress from such property even if the lease ends. The provisions of this clause do not apply when such a lease determines by fault of the lessee. This clause is not applicable to agricultural leases (S. 117 of the Act).
- Meaning of ingress and egress: The tenant and his servants are given right to enter upon the leases after the termination of the leases to gather and carry the crops. The tenant cannot claim to retain possession until the crops are cut. Thus by this clause pass and repass for the carts carrying crops is allowed.
- Section 108 (j) lays down that lessee has a right to transfer absolutely the property or any part of his interest in that property by sub-leasing or through mortgaging. Lessee is not independent of the terms and conditions mentioned in the lease agreement.
In Maa Durga Enterprises v. State of Bihar, 2009 (74) AIC 432 (345) (Pat) case, the Court held that under Section 108 (j), a lessee has been given right to sublease whole or any part of his interest in his property with further right to transferring it upon the sub-lease.
Veeran Devi v. Lt. Governor, Delhi AIR 1982 Del 470 (473) (FB) case, the Court held that where lessee assigns the rights adjuncted to lease, to a third person, the provisions of Section 18 (j) may apply subject to a contract to contrary.
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