| TABLE OF CONTENTS: 1. Introduction 2. Tenant 3. Landlord 4. Rent – Meaning 5. Kinds of Rents 6. Joint Tenancy 7. Joint tenancy and Common Tenancy 8. Lease – Meaning 9. Lease and Licence 10. Lease and Release 11 Lease – sub lease 12. Eviction 13.Case -Law |
Introduction:- The condition of a tenant; the temporary possession of what belongs to another. Tenancy is the transfer of a right to enjoy the premises; whereas a licence is a privilege to do something on the premises which otherwise would be unlawful. The transaction is tenancy, if it grants an interest in the property. It is a licence if it gives a personal privilege with no interest in the property, Asis Kumar Mitra v. Pradip Dutta, (2004) 4 CHN 68.
Tenant:- One that holds land of any one inclusive of the sovereign; it is therefore applicable to every subject holding land in this country; but the word is always used relatively and as the relation to the sovereign is seldom called in question, it more commonly signifies one who holds of another subject, as of the lord of a manor or of a landlord: the owner is seldom characterized as tenant except where it is necessary to particularize the quantity of his estate. The word ‘tenant’ covers a person whose lease has been determined either by landlord or by operation of law, Tavangowda Tamangowda Patil v. Yellappa Krishna Muchandi, (1980) 3 SCC 105. Tenant means any person by whom or on whose account rent is payable for any premises and includes such sub-tenants and other persons as have derived title under the tenant under any law for the time being in force, [Section 2(h), Requisitioning and Acquisition of Immovable Property Act, 1952.
Landlord:- Landlord means any person who for the time being is receiving or is entitled to receive, the rent of any premises, whether on his own account or on account or on behalf of for the benefit, of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant, [Section 2(c), Requisitioning and Acquisition of Immovable Property Act, 1952 . He of whom land or tenements are holden; who has a right to distrain for rent in arrear, etc. The definition of “landlord” is very wide and encompasses not only an owner but also persons “receiving or entitled to receive the rent of the building which has been let out or would be entitled to receive the rent of the building if it were let out to a tenant” in one of several capacities. Denial of title of the landlord is itself one of the grounds on which eviction can be sought, LIC v. India Automobiles & Co., (1990) 4 SCC 286. 4. The definition of landlord is very wide to include any person who is receiving or is entitled to receive the rent, S. Thangappan v. P. Padmavathy, (1999) 7 SCC 474. The statutory definition of the term landlord relates not only to the person who created the lease but contemplates and takes in every successive holder who could be entitled to evict a tenant. That person can only be one who has the right, at the time of filing the suit, to realise rents or evict persons in wrongful occupation, G. Ponniah Thevar v. Nalleyam Perumal Pillai, (1977) 1 SCC 500. The definition of “landlord” under S. 2 of the W.B. Premises Tenancy Act shows that even if the rent is received by a person not on his own account but on account of any other person, such as his principal or his ward, he is for the purpose of the Act a landlord, Swadesh Ranjan Sinha v. Haradeb Banerjee, (1991) 4 SCC 572.
| Rent – Meaning |
The word ‘Rent’ includes various amounts agreed to be paid by tenant, including e.g. an amount in respect of property tax payable in respect of tenanted premises, Abdul Kader v. G.D. Govindaraj, (2002) 5 SCC 51. A certain profit issuing yearly out of lands and tenements corporeal; it may be regarded as of a twofold nature; first, as something issuing out of the land, as a compensation for the possession during the term; and secondly, as an acknowledgment made by the tenant to the lord of his fealty or tenure. It must always be a profit, yet there is no necessity that it should be, as it usually is, a sum of money; for spurs, capons, horses, corn and other matters, may be and occasionally are, rendered by way of rent; it may also consist in services or manual operations, as to plough so many acres of ground and the like; which services, in the eye of the law, are profits. The profit must be certain or that which may be reduced to a certainty by either party; it must issue yearly, though it may be reserved every second, third or fourth year; it must issue out of the thing granted and not be part of the land or the thing itself.
Kinds of rents:- There are several kinds of rents, viz.: — (1) Rent-service, so called because it has some corporeal service incident to it, as at the least, fealty. (2) Rent-charge, where the owner of the rent has no future interest or reversion in the land. It is usually created by deed or will and accompanied with powers of distress and entry. (3) Fee farm rent, one issuing out of an estate in fee, of at least one-fourth of the value of the lands at the time of its reservation. (4) Rent-seck, a barren rent, which is in effect nothing more than a rent reserved by deed or will, but without any clause of distress. (5) Rents of assize, the certain established rents of the freeholders and ancient copyholders of a manor, which cannot be departed from. Those of the freeholders are frequently called: (a) Chief-rents and both sorts are indifferently denominated. (b) Quit-rents, because thereby the tenant goes quit and free of all services. (6) Rack-rent, a rent of the full value of the tenement or near it.
Fore-hand-rent, otherwise called rent payable in advance. Rent means any payment, by whatever name called, under any lease, sub-lease, tenancy or any other agreement or arrangement for the use of (either separately or together) any, — (a) land or (b) building (including factory building) or (c) land appurtenant to a building (including factory building) or (d) machinery or (e) plant or (f) equipment or (g) furniture or (h) fittings, whether or not any or all of the above are owned by the payee, Section 194-I, Explanation, Income Tax Act, 1961. Rent means whatever is lawfully payable, in cash or in kind or partly in cash and partly in kind, whether as a fixed quantity of produce or as a share of the produce, on account of the use or occupation of land or on account of any right in land but shall not include land revenue, Section 2(u), Manipur Land Revenue Reforms Act, 1960 .
Joint Tenancy:- This tenancy is created where the same interest in real or personal property is, by the act of the party, passed by the same matter of conveyance or claim in solido and not as merchandise or for purposes of speculation, to two or more persons in the same right, either simply or by construction or operation of law jointly, with a jus accrescendi, that is, a gradual concentration of property from more to fewer, by the accession of the part of him or them that die to the survivors or survivor, till it passes to a single hand and the joint-tenancy ceases. This jus accrescendi holds place as well in equity as at law. Equitable estates, therefore, are subject to joint-tenancy and its properties. The trust as well as the term passes to the survivor; and if the estate of two joint-tenants is assigned in trust for them or such a trust is raised by implication, the equitable interest follows the nature of the former legal estate. While equity recognizes this rule, yet it has laid down many exceptions to it, amongst the most important of which are the following:
(1) If two join in lending money on mortgage, though they take a joint security, yet equity holds that it could never have been intended that their interests should survive, the fair presumption being that each means to lend his own money and to be repaid his own again. The consequence is, that on the death of one the survivor who holds the entire legal estate by survivorship is deemed by equity a trustee for the personal representatives of the deceased co-mortgagee until the money be repaid. Equity then treats the two mortgagees as tenants in common. Where a mortgage is made to trustees who did not appear in that character on the face of the deed (lest the title be incumbered with notice of their trust), it was usual to insert a clause, called a joint account clause, providing against the application of this rule of equity.
(2) When two persons purchase an estate and advance the purchase-money between them in unequal portions, equity treats them as tenants in common, notwithstanding the transfer be made to them generally, but the inequality must appear on the face of the conveyance. If, however, the consideration money be paid by them in equal portions and the transfer is general, then equity has not any ground to infer that this was not a joint purchase of the chance of survivorship and they must be deemed, even in equity, as joint-tenants. Should one expend money in the repair and improvement of the estate, he will have a claim or lien on the estate for the amount of such money.
(3) When partners in trade purchase property for the partnership concern, equity treats them as tenants in common, holding the survivor to be trustee of the legal estate for the personal representatives of the deceased partner as to his share. Wares, merchandise and stock in trade belonging to partners, survive to the representatives of the deceased partner. The lex mercatoria excludes the jus accrescendi for the benefit of commerce, which is pro bono publico, the maxim being jus accrescendi inter mercatores locum non habet. A joint-tenancy, being created by the convention of parties, must arise out of the same deed, will or claim, for there must exist a unity of title between them which must be by purchase and not by mere operation of law and the estate must vest in them at one and the same time; for a joint-tenancy must subsist ab initio; an estate cannot become a joint-tenancy by the happening of any circumstances ex post facto. The same interest must be given to the parties, for one joint-tenant cannot have one estate in the property as for life and the other as for years; and they must hold it by the same undivided possession, for each has an undivided moiety of the whole and not the whole of an undivided moiety. Joint-tenants being seised per my et per tout or as Coke says, totum conjunctim et nihil per se separatim, enjoy a survivorship (jus accrescendi) which is held to be a good as a right by descent, the title of the survivor being paramount. It is a continuation of the estate by the survivorship of the tenants, the estate passing among the joint-owners without any perceptible degree of transition but the diminution of the number of persons to enjoy it. The last survivor takes the whole, as if the estate had originally been given to him only, unless any of his companions have conveyed away his own share in his lifetime, which, of course, each can do; so a partial alienation is a severance pro tanto, for alienatio rei praefertur juri accrescendi. The right or survivorship is necessarily reciprocal; for otherwise there would be different degrees of interest in the same estate, which is inconsistent with the nature of joint-tenancy. A body corporate, therefore, whose existence has no natural termination, cannot at Common Law be joint-tenant with a natural person; and as survivorship is necessarily included in joint-tenancy, two corporations cannot be joint-tenants together; for both being considered by the law of perpetual duration, it is impossible for one to survive the other.
Joint tenancy and Common Tenancy :— In the case of joint tenancy, there is unity of title, possession, interest and commencement of the little, common tenancy, there may be unity of possession and commencement of title, but two other features of the joint tenancy viz. unity of title and unity of interest are absent, Gopal Chandra Das v. Saraswati Basak, (2003) 1 CHN 287.
Lease – Meaning :- Lease means a lease of immovable property and includes also — (a) a patta; (b) a kabuliyat or other undertaking in writing, not being a counterpart of a lease, to cultivate, occupy or pay or delivery rent for, immovable property; (c) any instrument by which tolls of any description are let; (d) any writing on an application for a lease intended to signify that the application is grante, [Section 2(16), Stamp Act, 1899 . Transfer of Property Act, 1882 (India), S. 105. — The essential elements of a lease are: 1. the parties, 2. the subject matter or immovable property, 3. the demise or partial transfer, 4. the term or period, 5. the consideration or rent. The relationship of lessor and lessee is one of contract. When the agreement vests in the lessee a right of possession for a certain time it operates as a conveyance or transfer and is a lease. The section defines a lease as a partial transfer i.e. a transfer of a right of enjoyment for a certain time, Puran Singh Sahni v. Sundari Bhagwandas Kripalani, (1991) 2 SCC 180, 187-192.
A lease constitutes transfer of a right to enjoy such property, made on certain terms, express or implied or in perpetuity, Makali Engg. Works (P) Ltd. v. Dalhousie Properties Ltd., (2006) 1 CHN 419. Three essential items must be there to make a lease valid or good. (i) there must be a lessor, who has got legal right to execute the lease; (ii) there must be a thing demise which is demisable; and (iii) the acceptance which is clear from the last few words of the definition clause “who accepts the transfer on such term”, Murari Ganguly v. Kanailal Garai, (2002) 4 ICC 287 (Cal). Sometimes also called demise (demissio), is a grant of property for life or years or from year to year or at will, by one who has greater interest in the property. The person granting is called the lessor, who is possessed of the reversion (as to a reversion being essential to a lease, see Platt on Leases, 9 et seq.); he to whom the property is granted, the lessee. The consideration is usually the payment of a rent or other annual recompense. The ancient operative words were ‘demise, lease and to farm let’ or ‘demise and lease.’ Under a lease for years, the lessee must enter into the leased premises, for before entry he has only an interesse termini by virtue of his Common Law assurance, a right which can be assigned, but not surrendered and which will never prevent the merger of two estates by its interposition, nor itself occasion a merger. The interest in a term in futuro is also called the interesse termini.
Lease and Licence :— A lease is a transfer of an interest in land. The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease and it follows from it that the lessee gets that right to the exclusion of the lessor, Associated Hotels of India Ltd. v. R.N. Kapoor, AIR 1959 SC 1262, 1268: (1960) 1 SCR 368. A licence is normally created where a person is granted the right to use premises without becoming entitled to exclusive possession thereof or the circumstances and conduct of the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the land. If the agreement is merely for the use of the property in a certain way and on certain terms while the property remains in the possession and control of the owner, the agreement will operate as a licence, even though the agreement may employ words appropriate to a lease. (Halsbury’s Laws of England), Qudrat Ullah v. Municipal Board, Bareilly, (1974) 1 SCC 202, 208-209. The difference between a “lease” and “licence” is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful, C.M. Beena v. P.N. Ramachandra Rao, (2004) 3 SCC 595. A lease is the transfer of a right to enjoy the premises; whereas a licence is a privilege to do something on the premises which otherwise would be unlawful. The transaction is a lease if it grants an interest in the land; it is a licence if it gives a personal privilege with no interest in the land, B.M. Lall v. Dunlop Rubber Co. (India) Ltd., AIR 1968 SC 175, 177, 178: (1968) 1 SCR 23.
Lease and Release :— A mode of conveyance which derived its effect from the Statute of Uses and operated by transmutation of possession compounded of a lease for a year, at Common Law or a bargain and sale for a year under the Statute of Uses and a Common Law Release. This compound conveyance originated thus: The Statute of Enrolments (27 Hen. 8, c. 16) seemed to be confined to cases where an estate or inheritance or freehold or the use thereof, was to be made or take effect by reason only of a bargain and sale; it was therefore concluded that if a bargain and sale were first made for an estate less than freehold, as for one year and then the inheritance or freehold were superadded by a separate deed of release, the transaction could not be affected by the statute; and that such release to the bargainee would be valid, without his entry upon the lands, as a consequence of the strong words, in the Statute of Uses, which converts all vested uses once into legal estates. The convenience and general applicability of the lease and release recommended and established it as a common assurance. For it was preferable to a bargain and sale and to a covenant to stand seised to uses, because it effected a transfer of the legal estate under the rules of the Common Law and therefore the declarations of uses upon it needed not to be confined to persons from whom a consideration moved. It was also preferable to a bargain and sale and still more to a feoffment, because no additional ceremony was necessary to its operation; but the transfer of property in land might have been effected by it in any part of the world, as instantaneously as the payment of money. And where the subject of conveyance was land in reversion or remainder, it was also preferable to a mere deed of grant, as it made it unnecessary for the grantee, if his title were called in question, to prove that there was a peculiar estate in existence at the time of the grant.
Lease and sub-lease :— What is “lease” between the owner of the property and his tenant becomes a sub-lease when entered into between the tenant and tenant of the tenant, the latter being sub-tenant qua the owner-landlord. A transfer of a right to enjoy such property to the exclusion of all others during the term of the lease is a sine qua non of a lease. A sub-lease would imply parting with by the tenant of the right to enjoy such property in favour of his sub-tenant, Mahendra Saree Emporium (2) v. G.V. Srinivasa Murthy, (2005) 1 SCC 481.
Eviction:- Eviction means dispossession; also a recovery of land, etc., by form of law. Section 202 of the Bombay Land Revenue Code (India) shows that eviction requires vacation of the land and vacation does not mean that anything done upon the land which was unauthorised is to be allowed to remain and only the person responsible for doing the unlawful act is to be removed from the land. That the words “eviction” and “vacation” do not mean mere physical removal of the occupant is clear from the very nature of the right. For the purpose of vacation it is necessary that any unauthorised construction put up must also be removed otherwise there cannot be any vacation of the land nor can the land be put to effective use for the purpose for which agricultural lands are normally accepted to be used, State of Bombay v. Fakir Umar Dhanse, AIR 1961 SC 722: 63 Bom LR 624.
Case-Law:-
Tenancy and Land Laws :
Proof of existence of relationship of landlord and tenant between the parties in relation to premises and such evidence. See. Kailash Chand v. Hem Wati, 1974 SCC OnLine Del 143; Mandir Dass Jain v. P.R. Varshneya, 1972 SCC OnLine Del 4; Niranjan Modak v. Lakshmi Narayan Guin, 1976 SCC OnLine Cal 20; K.R. Padmavathi Ammal v. E.R. Manickam, 1980 SCC OnLine Mad 208; Narayanan Namboodiri v. Kadeeja Umma, 1987 SCC OnLine Ker 233; Meera Paul v. Second Addl. District Judg …, 1985 SCC OnLine All 643; Chimmapudi Subramanyam v. Gadipalli Nars …, 1962 SCC OnLine AP 200; R. Ramanujam v. D. Venkat Rao, 1981 SCC OnLine AP 184;
Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 (37 of 1956) – See. Commr. of Survey Settlements and Land Re …, (1997) 8 SCC 34.
Bombay Tenancy and Agricultural Lands Act, 1949 – S. 43(1), Proviso and (2) – See. Maharashtra State Coop Land and Development.. See. 1983 SCC OnLine Bom 282.
Alienation of the agricultural land:- K. Mahalaxmi v. Government of Andhra Pra …, 2000 SCC OnLine AP 477
Section 38-E of Andhra Pradesh (Telangana Area Tenancy and Agricultural Lands Act, 1950. See. Lakshmi Bai v. Tahsildar, Madnoor Mandal, 2010 SCC OnLine AP 62.
Delhi Rent Control Act, 1958 – See. Govind Dass v. Kuldip Singh, A.I.R. 1971 Delhi 151.
Heritability of Tenancy – See. Ganpat Ladha v. Sashikant Vishnu Shinde, A.I.R. 1978 S.C. 955; Lal Chand v. Gopi Krishan, (1978) 1 R.C.J. 389 (DB).
Land Reforms law – Vajravelu v. Spl. Dy. Collector, AIR 1965 SC 1017; Also see. AIR 1960 SC 1080; AIR 1973 SC 2734. ; AIR 1951 Pat 91.
Samir Mukherjee v. Davinder K. Bajaj, (2001) 5 SCC 259
Rattan Lal v. Vardesh Chander, (1976) 2 SCC 103
Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693