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 liabilities of lessee. Section 108 clauses (k) to (q) deals with the liabilities 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

(a) ………… (j)

(k) the lessee is bound to disclose to the lessor any fact as to the nature or extent of the interest which the lessee is about to take, of which the lessee is, and the lessor is not, aware, and which materially increases the value of such interest;

(l) the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf;

(m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left;

(n) if the lessee becomes aware of any proceeding to recover the property or any part thereof, or of any encroachment made upon, or any interference with, the lessor’s rights concerning such property, he is bound to give, with reasonable diligence, notice thereof to the lessor;

(o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell 3[or sell] timber, pull down or damage buildings 3[belonging to the lessor, or] work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto;

(p) he must not, without the lessor’s consent, erect on the property any permanent structure, except for agricultural purposes;

(q) on the determination of the lease, the lessee is bound to put the lessor into possession of the property.

• Section 108 (k) lays down that the lessee is under an obligation to disclose all related material facts which are likely to increase the value of the property for which the lessee has an interest in and the lessor is not aware of. There is no such duty when there is a contract or local usage to the contrary. This clause is not applicable to agricultural leases. In the event of non-disclosure by the lessee of an advantage taken by him, the lessor’s remedy would be not the avoidance of leases but compensation or damages.

• Section 108 (l) lays down that the lessee is under an obligation to pay the rent or premium which is settled upon in the agreement to the lessor or his agent within the prescribed time. This clause is not applicable when there is a contract or local usage to the contrary. This clause is not applicable to agricultural leases.

In Rameshwar Dayal v. Mani Lal. AIR 1977 All 534 (535) case, the Court held that once remittance of rent is proved, the presumption would arise under S. 114 of the Indian Evidence Act that ordinary course of events was followed and the amount must have been tendered to the addressee and received by him.

• Section 108 (m) lays down that the lessee is under an obligation to maintain the property in the condition that he initially got the property on commencement of the lease and he has to return it in the same condition. The changes caused by reasonable wear and tear or irresistible force are acceptable. This Section allows lessor and his agent during the term of the lease and at a reasonable time to enter upon the property and inspect its condition. The lessor is powered to give notice of any defect found and is entitled to make good, within three months after notice.

In Paritosh Ghosh v. Ashim Kumar Gupta, 2003 AIHC 291 (297,  298) (Cal) case, where the tenant made holes in walls for fixing air coolers, replaced brass water caps by plastic caps, in violation of leases agreement, the eviction of the tenant was held proper.

• Section 108 (n) lays down that if lessee gets to know about any proceedings relating to the property or any encroachment or any interference, then lessee is under an obligation to give notice to the lessor. This clause is for protection of the lessor’s interest in the property. This clause is not applicable when there is a contract or local usage to the contrary. This clause is not applicable to agricultural leases.

• Section 108 (o) lays down that the lessee has a right to use all the assets and goods which are on the property as an owner would use which is preserving it to the best of its nature. He is although under obligation to prevent any other person from using that asset or good for any other purpose from what was prescribed in the lease agreement.

• Section 108 (p) lays down that the lessee cannot attach any permanent structure without the consent of the lessor except for the purpose of agriculture.

In Rameshwar Roy v. Baidendra Kinkar Patra, AIR 1998 Cal 292 (298) case, the Court held that the clauses (m), (o) and (p) would apply only to premises demised, and none of this clause would apply in respect of other property, as property mentioned in these clauses would mean only the premises demised and not any other property or premises.

• Section 108 (q) lays down that the lessee is under an obligation to give the possession of the property back to the lessor after the expiry of the prescribed term of the lease.

In Sky Land International Pvt. Ltd. v. Kavita P. Lalwani, 2012 (191) DLT 594 (Del) case, the Court held that upon expiry of the term of the lease or termination of monthly leases by notice to quit, the lessee must vacate the property on his own and not wait for lessor to bring a suit where he can raise all kinds of contests in order to profit from Court delays.

In Santsaran v. Bankeylal Ramlal, AIR 1955 NUC 52 (MP) case, the Court held that even where the tenant has constructed a building on the land, the lessee’s obligation to restore possession to the lessor on the expiry of the leases is absolute.

In Hirabai v. Jivanlal, AIR 1955 Nag 134 (DB) case, the Court held that where the lessee wrongfully refuses to deliver possession, the lessee must pay damages to the lessor to the extent of the loss of rent suffered by latter during the period he remained out of possession.

Law > Civil Laws > Transfer of Property Act > Liabilities of Lessee

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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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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 liabilities and rights of lessor.

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) Rights and Liabilities of the Lessor

(a) The lessor is bound to disclose to the lessee any material defect in the property, with reference to its intended use, of which the former is and the latter is not aware, and which the latter could not with ordinary care discover;

(b) the lessor is bound on the lessee’s request to put him in possession of the property;

(c) the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption. The benefit of such contract shall be annexed to and go with the lessee’s interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

In Megh Lal v. Raj Kumar (1907) 34 Cal 358 case, the Court held that If the contract between the parties is silent in reference to matters dealt within the Section 108 of the Act, the law implies covenant to that effect. The covenants dealt with in the section need not be enumerated in the contracts. They are what are known as implied covenants as oppose to express covenants. When the parties regulate their contract in express terms, the latter would exclude the application of the provisions of the Section.

Liabilities of the Lessor

Liabilities of the lessor are laid down in Section 108(a) to Section 108(c)

• Section 108(a) lays down that the lessor has to disclose any material defect relating to the property which the lessee does not know and cannot with ordinary supervision find out. Thus lessor is under an obligation to reveal to the lessee all defects in the demised premises as are materials that is, such as would affect the use to which they are to be subjected by the lessee. There is no duty to disclose defects which are either known to the lessee or which the lessee would with ordinary care discover.

In Radha Krishna v. W. C. O. Flaherty (1869) 3 Beng LR 277 case, A lessor impliedly contracts with the lessee that premises are fit for the intended user. So where the plaintiff hired a dwelling house of the defendant, and in lighting a fire in the fireplace in one of the rooms, the chimney took fire, there was no vent, and the plaintiff’s furniture was destroyed, it was held that the defendant was liable for the loss.

In Keates v. Cadogan, (1851) 10 CP 591 case, the Court held that when the house is in a ruinous condition, there is no implied duty to inform the proposed tenant that it is unfit for human habitation and no action lies against the landlord.

In Syed Mukhtar v. rani Sunder Koer 17 C.W.N. 960 case, the Court held that a defect in the lessor’s title cannot be said to be a material defect in a property within the meaning of Section 108(a).

• Section 108 (b) lays down that the lessor is bound by the request of the lessee to give him the right of possession over his property.

In Harish Chander v. Mohinee Mohun case (1868) 9 WR 582 case, the Court held that a suit of rent will not lie when the lessee has not obtained possession.

In Munne Dutt v. William Cumpbell, (1869) 11 WR 278 case, the Court held that for in every case there is an implied contract that lessor will give peaceful possession of the land leased to the lessee.

In Pemmarazu v. The secretary of State of India, (1911) 34 Mad 108 case, the Court held that when the lessor is unable to put lessee in possession of area stipulated in the leases, he is liable to compensate the lessee by the way of damages.

• Section 108 (c) lays down that the lessor can enter into a contract with the lessee if he agrees to abide by all terms and conditions prescribed in the agreement, he can enjoy the property for the rest of the time period without any interference with an obligation to pay the rent later on.

In State Bank of Hyderabad v. Nehru Palace Hotels, AIR 1991 SC 2130 case, the Court held that a lease entails transfer of right to enjoy such property in respect of which a lease is made out for a defined time which is express or implied or even in perpetuity in consideration of price paid or promised to be paid in cash or anything of value which is to be rendered periodically or on specified occasions.

Rights of the Lessor:

Liabilities of Lessee are laid down in Sections 108(k) to Section 108(q), which can be considered as rights of lessor.

• Section 108 (l) lays down that the lessor has a right to recover the rent from the lease which was mentioned in the lease agreement.

• Section 108 (c) the lessor has a right to take back the possession of his property from the lessee if the lessee commits any breach of condition.

In Paritosh Ghosh v. Ashim Kumar Gupta, 2003 AIHC 291 (297,  298) (Cal) case, where the tenant made holes in walls for fixing air coolers, replaced brass water caps by plastic caps, in violation of leases agreement, the eviction of the tenant was held proper.

• Section 108 (m) lays down that the lessor has a right to recover the amount for damages from the lessee if there is any damage done to the property. This Section allows lessor and his agent during the term of the lease and at a reasonable time to enter upon the property and inspect its condition. The lessor is powered to give notice of any defect found and is entitled to make good, within three months after notice.

• Section 108 (q) lays down that the lessor has a right to take back the possession of his property from the lessee on the termination of the lease term prescribed in the agreement.

In Yashpal Lala Shiv Narain v. Allatala Tala Malik Waqf Ajakhan Mus, AIR 2006 All 115 (134) case, The provision in Section 108(q) of the Act in absence of any contract or local usage to contrary, overrates, is a statutory condition and is implied in every case.

In Sky Land International Pvt. Ltd. v. Kavita P. Lalwani, 2012 (191) DLT 594 (Del) case, the Court held that upon expiry of the term of the lease or termination of monthly leases by notice to quit, the lessee must vacate the property on his own and not wait for lessor to bring a suit where he can raise all kinds of contests in order to profit from Court delays.

In Santsaran v. Bankeylal Ramlal, AIR 1955 NUC 52 (MP) case, the Court held that even where the tenant has constructed a building on the land, the lessee’s obligation to restore possession to the lessor on the expiry of the leases is absolute.

In Hirabai v. Jivanlal, AIR 1955 Nag 134 (DB) case, the Court held that where the lessee wrongfully refuses to deliver possession, the lessee must pay damages to the lessor to the extent of the loss of rent suffered by latter during the period he remained out of possession.

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