Indian Kanoon - Search engine for Indian Law

"(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;

(f) by implied surrender;"

17. It has been argued by learned counsel for the petitioner that a bare reading of Clauses (e) and (f) clearly provide that the legislative intent is to acknowledge surrender of lease rights by act of specific written document or by implied surrender to wit by consent and, therefore, he argues that since Clause-7 of the lease deed prescribes for surrender of lease rights, entitling the lessee to take such an action in the light of the provision as contained in Clause (e) and (f). He contends that if original lessee had written letter, expressing relinquishment of his lease rights in respect of lease land, it would be a valid one.

3. I agree. Under Section 111 of the Transfer of Property Act, a lease of Immovable property determines, by express surrender, that is to say, by the lessee yielding up his interest under the lease to the lessor, by mutual agreement between them. It is found that in this case the lessee did surrender her interest by mutual agreement, and it seems to me that it makes no difference that the mutual agreement was by reason of a consideration that was received from the tenant by the landlord. The Transfer of Property Act does not require a registered document in such cases and no authority has been shown to us in support of this contention."

"6. On a surrender by the lessee, a lease of immovable property comes to an end. It has to be ascertained whether there was an actual surrender or surrender in fact by the plaintiff of his leasehold right under Exhibit B-8 in favour of the lessor, his father. In England it has been held that where the subject- matter of the lease is a reversion, it is a '' a matter, lying in grant, and not in livery, and of which therefore, there could be no valid surrender in fact otherwise than by deed." Lyon v. Reed (1844) 153 ER 118 126 (E). under Section 111(e) of the Transfer of Property Act if a lessee yields up his interest under the lease to the lessor by mutual agreement between them, there is an express surrender or surrender in fact. In India, a surrender may be oral and may by inferred from the acts and conduct of the parties there being no statutory provision like Section 3 of the English Statute of Frauds that a surrender should be evidenced by a document in writing or like Section 3 of 8 and 9 Vic. C. 106 requiring a deed for the purposes. See Elias. Myer V. Maoranjan 22 Cal W/N 441: (AIR 1919 Cal 694) (F) Brojo Nath V. Maheswar 28 Cal LJ 220; (AIR 1918 Cal 233) (1) (G) Chunder Monee Nya Busan V. Sham-buchandra Chukerbutty 1884) WR CR 270 (H) and Narasimma V. Lakshmana ILR 13 Mad 124 126, 127 (I).

30. A fortiori, the parties died 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.