CHAPTER 3

Tenant at Sufferance, Tenant at Will and Tenant by Holding Over

Q. What is meant by "tenant at sufferance" and "tenant at will"?

Q. What is the difference between "tenant at sufferance" and "tenant at will"?

Q. What do you mean by "tenancy by holding over"?

"Tenant at sufferance" is one who comes into possession of land by lawful title, but who holds it by wrong
after the termination of the term of expiry of the lease by efflux of time. The tenant at sufferance is,
therefore, one who wrongfully continues in possession after extinction of a lawful title. There is little
difference between him and a trespasser. A tenancy at sufferance is merely a fiction to avoid continuance
in possession operating as a trespass. It has been described as the least and lowest interest which can
subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a
person who has been in possession under a lawful title continues in possession after that title has been
determined, without the consent of the person entitled. A tenancy at sufferance does not create the
relationship of landlord and tenant. The act of the holding over after the expiration of the term does not
necessarily create a tenancy of any kind. If the lessee remaining in possession after determination of the
term, the common law rule is that he is the tenant on sufferance. The expression "holding over" is used in
the sense of retaining possession1. A distinction should be drawn between a tenant continuing in
possession after the determination of the lease, without the consent of the landlord and a tenant doing so
with the landlord's consent. The former is called a tenant by sufferance in the language of the English law
and the latter class of tenants is called 'a tenant holding over' or 'a tenant at Will'. The lessee holding over
with the consent of the lesser is in a better position than a mere tenant at Will. The tenancy on sufferance
is converted into a tenancy at Will by the assent of the landlord, but relationship of the landlord and the
tenant is not established until the rent was paid and accepted. The assent of the landlord to the
continuance of the tenancy after the determination of the tenancy would create a new tenancy. The
possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a
right to continue to possession after the termination of the tenancy, his possession is judicial; R.V. Bhupal
Prasad v. State of Andhra Pradesh, AIR 1966 SC 140."

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1. Mulla, Transfer of Property Act, 7th Edn., pp. 633, 769.

There is thus, however a subtle difference resultantly a definite distinction between a 'tenant by holding
over' and a tenant at sufferance, as noticed above in Bhupal prasad's decision (R.V. Bhupal Prasad v. State
of Andhra Pradesh, AIR 1966 SC 140). Holding over stands equivalent to the retention of possession after
determination of lease, but with the consent of the landlord-whereas, on similar circumstances if the
possession is without the consent of the landlord then the same stands out to be a tenant at sufferance.
Section 1161of the Transfer of Property Act, does let a statutory recognition to the concept of holding
over; Kewal Chand Mimani v. S.K. Sen, MANU/SC/0394/2001: AIR 2001 SC 2569.

CASE LAW

1. V. Dhanpal Chettiar v. Yesodai Ammal, MANU/SC/0505/1979: AIR 1979 SC 1745

Question of law decided: (a) Landlord is not under obligation to give notice under section 106 of
the Transfer of Property Act, 1882 to the tenant for seeking his eviction under the Rent Control Act;
(b) Acceptance by the landlord from the tenant, after the contractual tenancy had expired, of
amounts equivalent to rent, or amounts which were fixed as standard rent, did not amount to
acceptance of rent from a lessee within the meaning of section 116 of the Transfer of Property Act.
 Facts of the case: The respondent filed an application against the appellant under section 10(3)(a)
(iii) of the Tamil Nadu Building (Lease and Rent Control) Act, 1960, on the ground of personal
necessity. The Rent Controller held that the requirement of the respondent was not genuine and he
accordingly dismissed her petition. On appeal by the landlady the Appellate Court held in her
favour on the point of her requiring the premises bona fide for her personal necessity but
maintained the dismissal of her application on the ground that a notice to quit was necessary and
the one given by her was not in accordance with law. The landlady took up the matter in revision to
the Madras High Court. A learned Single Judge of that Court following his earlier decision in K.
Sukumaran Nair etc. v. Neelakantan Nair, (1976) 2 MLJ 84 held that notice to quit under section
106 of the Transfer of Property Act, 1882 was not necessary for seeking an eviction of a tenant
under The Tamil Nadu Rent Act. Hence this, appeal by the tenant.

Findings of the Court: A bench of 7 Judges decided the question as to whether to get a decree or
order of eviction against a tenant under any State Rent Control Act, it is necessary to give a notice
under section 106 of the Transfer of Property Act, 1882. Answering the question in negative, the
Court surveyed various judgments on the issue and affirmed the law laid down in Rawal & Co. v.
K.G. Ramachandran, MANU/TN/0294/1967: AIR 1967 Mad 57, by the Madras High Court. It
observed that under the Transfer of Property Act in order to entitle the landlord to recover

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1. Section 116. Effect of holding over _ If a lessee or under-lessee of property remains in possession thereof after the

determination of the lease granted to the lessee, and the lesser or his legal representative accepts rent from the lessee or under-

lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary,

renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in

section 106.

possession determination of the lease is necessary as during its continuance he could not recover
possession, while under the State Rent Act the landlord becomes entitled to recover possession
only on the fulfillment of the rigor of law provided therein otherwise not. He cannot recover
possession merely by determination of tenancy. Nor can he be stopped from doing so on the
ground that he has not terminated the contractual tenancy. Under the State Rent Control Acts, the
concept of the contractual tenancy has lost much of its significance and force.

Q. Can the landlord charge improportionate rents from the tenants? What is the remedy avail
under the Rent Act to the tenant?

The Court further observed that Rent Act is intended to restrict the rights which the landlord
possessed either for charging excessive rents or for evicting tenants. But if within the ambit of
those restricted rights he makes out his case it is a mere empty formality to ask him to determine
the contractual tenancy before institution of a suit for eviction. As pointed out above, this was
necessary under the Transfer of Property Act, as mere termination of the lease entitled the landlord
to re-cover possession. But under the Rent Control Acts it becomes an unnecessary technicality to
insist that the landlord must determine the contractual tenancy. It is of no practical use after so
many restrictions on his right to evict the tenant have been put. The restricted area under the
various State Rent Acts, has done away to a large extent with requirement of the law of contract
and the Transfer of Property Act. If this be so why unnecessarily, illogically and unjustifiably a
formality of terminating the contractual lease should be insisted upon? Lastly, the Court also relied
upon its decision in Firm Sardari Lal Vishwanath v. Pritam Singh, MANU/SC/0377/1978: AIR 1978
SC 1518, wherein the lease had come to an end by efflux of time. The tenant continued in
possession and became so called statutory tenant. The argument, that a fresh notice under section
106 of the Transfer of Property Act was necessary, was rejected on the ground that-
 "Having examined the matter on authority and precedent it must be frankly confessed that
no other conclusion is possible on the first principle. Lease of urban immovable property
represents a contract between the lesser and the lessee. If the contract is to be put to an
end it has to be terminated by a notice to quit as envisaged under section 106 of the
Transfer of Property Act, but it is equally clear as provided by section 111 of the Transfer of
Property Act, that the lease of immovable property determines by various modes therein
prescribed. Now, if the lease of immovable property determines in any one of the modes
prescribed under section 111 the contract of lease comes to an end, and the landlord can
exercise, his right of re-entry. This right of re-entry is further restricted and fettered by the
provisions of the Rent Restriction Act. Nonetheless the contract of lease had expired and the
tenant-lessee continues in possession under the protective wing of the Rent Restriction Act,
until the lessee loses protection. But there is no question of terminating the contract
because the contract comes to an end once the lease determines in any one of the modes
prescribed under section 111. There is, therefore, no question of giving a notice to quit to
such a lessee who continued in possession after the determination of the lease, i.e., after
the contract came to an end under the protection of the Rent Restriction Act. If the contract
once came to an end there was no question of terminating the contract over again by a
fresh notice."

Thus, the Court came to the conclusion that determination of a lease in accordance with the
Transfer of Property Act, is unnecessary and a mere surplusage because the landlord cannot get
eviction of the tenant even after such determination. The tenant continues to be so even thereafter.
That being so, making out a case under the Rent Act, for eviction of the tenant by itself is sufficient
and it is not obligatory to found the proceeding on the basis of the determination of the lease by
issue of notice in accordance with section 106 of the Transfer of Property Act, 1882.

2. Bhawanji Lakhamshi v. Himatlal Jamnadas Dani, MANU/SC/0703/1971: AIR 1972 SC 819.

Q. Explain the theory of Acceptance of Rent within the meaning of section 716 of Transfer of
Property Act, 1882.

Question of law decided: Acceptance by the landlord from the tenant, after the contractual tenancy
had expired, of amounts equivalent to rent, or amounts which were fixed as standard rent, did not
amount to acceptance of rent from a lessee within the meaning of section 116 of the Transfer of
Property Act.

Facts of the case: The question was that since a fresh tenancy by holding over was created by the
acceptance of rent by the lessors after the determination of the lease by efflux of time, whether the
appellants were entitled to 6 months' notice expiring with the end of the year of tenancy, as lease
originally granted was for manufacturing purpose. The facts in brief are that a plot of land
measuring 2108 sq.yds. belonged to one Jamna Das Chhota Lal Dani, who executed on November
15, 1948, two leases in favour of one Bhawanji Lakhamshi and Maojibhai Jethabhai, defendant Nos.
1 and 2. The subject-matter of the first lease was two plots, the one referred to above and another
in the same area measuring 805 sq.yds. The subject-matter of the second lease was a third plot in
the same area. The leases were for a period of 10 years and in respect of first plot the rent payable
was Rs. 75 per month. In both the cases there was an option clause which entitled the lessees to
surrender the leased property by September 30, 1953. The lessees surrendered the plot other than
the plot which was the subject-matter of the present case, in pursuance of the above clause on
January 15, 1951. Jamna Dass, before his death on 14th August, 1951, made a gift of the lease
property in favour of the three respondents. The lease in respect of the plot in question determined
by efflux of time of September 30, 1958. But the lessee continued to remain in possession paying
rent @ Rs.75 per month. On August 7, 1959, the lessors gave notice purporting to terminate the
tenancy by the end of September 1959. Since lessees did not vacate the premises, the suit was
filed on October 22, 1959 in the Small Causes Court of Bombay. In this scenario after the High
Court took the view that no case was made out on new tenancy by holding over under section 116
 of the Transfer of Property Act as the appellant had obtained the status of irremovability under the
Act and as there was no contractual tenancy, the tenants were not entitled to any notice. The High
Court relied upon the decision of the Supreme Court in Ganga Dutt Murarka v. Kartik Chandra Das.
The High Court held that the lease which was granted for erecting a Saw Mill was not for
manufacturing purpose.

Findings of the Court: The Supreme Court while affirming the decision of Ganga Dutt Murarka v.
Kartik Chandra Das held that where a contractual tenancy, to which rent control legislation applied,
had expired by efflux of time or by determination by notice to quit and the tenant continued in
possession of the premises, acceptance of rent from the tenant by the landlord after the expiration
or determination of the contractual tenancy will not afford ground for holding that the landlord had
assented to a new contractual tenancy. It was further held that acceptance by the landlord from
the tenant, after the contractual tenancy had expired, of amounts equivalent to rent, or amounts
which were fixed as standard rent, did not amount to acceptance of rent from a lessee within the
meaning of section 116 of the Transfer of Property Act, 1882.

The Supreme Court reiterated its observation in Ganga Dutt Murarka v. Kartik Chandra Das, (1961)
3 SCR 813 as under:

"By the Rent Restriction Statutes at the material time, statutory immunity was granted to
the appellant against eviction, and acceptance of the amounts from him which were
equivalent to rent after the contractual tenancy had expired or which were fixed as standard
rent did not amount to acceptance of rent from a lessee within the meaning of section 116
of the Transfer of Property Act. Failure to take action which was consequent upon a
statutory prohibition imposed upon the courts and not the result of any voluntary conduct
on the part of the appellant did not also amount to "otherwise assenting to the lessee
continuing in possession". Of course, there is no prohibition against a landlord entering into
a fresh contract of tenancy with a tenant whose right of occupation is determined and who
remains in occupation by virtue of the statutory immunity. Apart from an express contract,
conduct of the parties may undoubtedly justify an inference that after determination of the
contractual tenancy, the landlord had entered into a fresh contract with the tenant, but
whether the conduct justifies such an inference must always depend upon the facts of each
case. Occupation of premises by a tenant whose tenancy is determined is by virtue of the
protection granted by the statute and not because of any right arising from the contract
which is determined. The statute protects his possession so long as the conditions which
justify a lessor in obtaining an order of eviction against him do not exist. Once the
prohibition against the exercise of jurisdiction by the Court is removed, the right to obtain
possession by the lessor under the ordinary law springs into action and the exercise of the
lessor's right to evict the tenant will not unless the statute provides otherwise, be
conditioned."

Finally court rejected the contention of the counsel for the appellant to reconsider the decision of
Ganga Dutt Murarka v. Kartik Chandra Das, which follows the principle laid down by the Federal
Court in Kai Khushrao Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden, 1949 50 FCR 262.

3. Shanti Prasad Devi v. Shankar Mahto, MANU/SC/0404/2005: AIR 2005 SC 2905.

Question of law decided: On expiry of period of lease, mere acceptance of rent for the subsequent
months in which the lessee continued to occupy the lease premises cannot be said to be a conduct
signifying 'assent' to the continuance of the lease even after expiry of lease period.

Q. Can the mere acceptance of rent for the subsequent months, on the expiry of period of lease,
be said to be a conduct signifying `assent' to continuance of the lease on the part of lessor
within the meaning of section 116 of the Transfer of Property Act, 1882? Explain with the help
of relevant statutory provisions and case law.
Facts of the case: The appellant obtained possession on lease of the suit premises for running a
petrol pump under a registered lease deed dated
17-7-1962 for a period of fifteen years. It was an annual lease but the rent at agreed rate was
payable in monthly instalments. The period of lease expired on 17-7-1977. The registered sale
deed contained clauses No. (7) & (9) giving option of renewal for a further period which could be
exercised before expiry of the initial period. After the period of lease expired on 19-7-1977, the
lessee continued to remit the rent till August 19, 1977. On 23-8-1977 the lessee sent a lawyer's
notice exercising his option under clause (7) and seeking renewal of the lease. The lessee
thereafter remitted monthly rent of Rs. 345 each for three months from March to May 1978. The
rent was accepted by the lessor. Clause (7) of the lease providing option of renewal to the lessee
contained two conditions firstly, that the option has to be exercised before expiry of the lease and
secondly the terms and conditions of renewal for further period shall be decided either by mutual
consent of parties or in case of failure of mutual consent, through the intervention of local Mukhia
or Panchas of the village. To the legal notice given by the lessee seeking renewal of the lease, the
lesser gave no positive response and instead filed Title Suit No. 59/78 on 16-6-1978 seeking
ejectment of the lessee from the suit premises on the ground that the term of lease had expired.
The lessee filed a counter suit No. 13/80 seeking specific performance of the alleged agreement of
renewal of lease on his alleged right of option of renewal. The two cross suits were tried jointly and
decided by common judgment. The Trial Court by common judgment dated 16-3-1987 dismissed
the suit for ejectment filed by the lesser by holding that after expiry of the initial period of fifteen
years of lease, acceptance of rent by the lesser had resulted in renewal of lease and the lessee
would be held to be 'holding over' within the meaning of section 116 of the Transfer of Property
Act, 1882. Based on the above finding that the lessee was 'holding over' as a result of the
acceptance of rent by the lesser for the period subsequent to the expiry of lease, the Trial Court
came to the conclusion that the suit for ejectment could not have been filed without terminating
the lease by statutory notice under section 106 of the Transfer of Property Act, 1882. The Trial
Court by the common judgment dismissed the counter suit seeking specific performance of renewal
of lease by the lessee. It was held that in accordance with clause (9) of the lease deed, the option
of renewal was not exercised before expiry of original period. The specific performance of
agreement of renewal claimed was also rejected on the ground that the terms and conditions of
renewal were vague and incapable of enforcement. Thus, the trial Court dismissed both the suits.
The dismissal of two suits by the Trial Court gave rise to two cross appeals one at the instance of
lesser and the other at the instance of lessee. The first appellate court allowed the appeal of the
lesser and decreed the suit of ejectment. It held that mere acceptance of rent by the lesser sent by
the lessee after expiry of lease, in view of specific terms prescribing mode of renewal, did not
result in deemed renewal of lease and the doctrine of 'holding over' under section 116 of the
Transfer of Property Act, 1882 was not attracted. According to the first appellate court, the period
of lease having expired there was no legal requirement of terminating the alleged renewed lease by
issuing a statutory notice under section 106 of the Transfer of Property Act, 1882. The cross
appeals filed by the lessee were dismissed and the dismissal of suit for specific performance of the
alleged agreement of renewal was maintained. The lessee filed two Second Appeals in the High
Court. By the impugned common judgment the High Court upheld the common judgment of the
first appellate court. The High Court agreed with the reasoning of the first appellate court that
mere acceptance of rent by the lesser on expiry of original period of lease, for use and occupation
of the leased premises by the lessee, did not signify 'assent' of the lesser to the continuance in
possession of the lessee so as to infer deemed renewal of the lease under section 116 of the
Transfer of Property Act, 1882. The High Court agreed with the concurrent findings of the Trial
Court and the first appellate court that the option of renewal given to the lessee in the lease deed
was not exercised before expiry of the original period of lease. The High Court also agreed that
conditions stipulated for the renewed period of lease were vague and incapable of specific
enforcement. Thus, the dismissal of suit of the lessee for specific performance of contract of
renewal of lease was also upheld. Having thus lost her case in the Courts below, the lessee
approached Supreme Court in these two appeals.
Findings of the Court: The lesser in the present case had neither expressly nor impliedly agreed for
renewal. The renewal as provided in the original contract was required to be obtained by following
a specified procedure i.e., on mutually agreed terms or in the alternative through the mediation of
Mukhias and Panchas. In the instant case, there is a renewal clause in the contract prescribing a
particular period and mode of renewal which was 'an agreement to the contrary' within the
meaning of section 116 of the Transfer of Property Act, 1882. In the face of specific clauses (7) and
(9) for seeking renewal there could be no implied renewal by 'holding over' on mere acceptance of
the rent offered by the lessee. Option of renewal was exercised not in accordance with the terms of
renewal clause that is before the expiry of lease. It was exercised after expiry of lease and the
lessee continued to remain in use and occupation of the leased premises. The rent offered was
accepted by the lesser for the period the lessee overstayed on the leased premises. The lessee, in
the above circumstances, could not claim that he was 'holding over' as a lessee within the meaning
of section 116 of the Transfer of Property Act, 1882.

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