NAME OF THE STUDENT:R.

SREENIDHI

REGISTRATION NUMBER:20DBLAW042

PROGRAMME: BBA.LLB[HONS]

SEMESTER: 5TH SEMESTER

COURSE NAME: PROPERTY LAW

DATE OF SUBMISSION: 23.11.22

SUBMITTED TO: PROF. NIRMALA HARISH

1
 A CRITICAL STUDY ON THE DOCTORINE OF HOLDING OVER
UNDER TRANFER OF PROPERTY ACT,1882

ABSTRACT: According to the doctrine of holding over, if the lessee or an under-

lessee of a property continues to be in possession after the determination of lease
(also known as the termination of lease under the Transfer of Property Act, 1872)
and the lessor or his legal representative consents to this and accepts the rent
therefor, the lease will be renewed in accordance with the terms of the Transfer of
Property Act, 1872, absent any agreement to the contrary. It should be noted that
the lessor or his legal agent must consent in full for this clause to take effect by
either granting consent or taking rent in both cases. This demonstrates that when it
comes to maintaining possession after the lease's termination, the lessor or his legal
representative must agree with the lessee or the under-lessee. The primary goal of
the project is to discuss the laws that relate to holding onto property after the term
of the lease has expired and the tenant is still in possession of it, their importance
and application, as well as the laws that relate to it and the legal precedents that
have been established by the courts. The contrast between tenancy by holding over
and tenant at sufferance is another area of emphasis for the project.

KEYWORDS: Doctrine of holding over; tenancy; sufferance

INTRODUCTION: The lessor gives the lessee the right to use the property in
exchange for a price that has been agreed upon or paid. On lease determination, as
required by the Act, the lessee must, however, surrender possession to the lessor.
However, the "Holding Over" clause provided by Section 116 of the Act comes into
effect if the lessee continues to retain the immovable property, refuses to relinquish
it, and the lessor consents to such possession. This clause states that if the lessee
maintains possession of the real estate after the lease's expiration and the lessor
continues to collect rent from him or permits his continued possession then the
lessee becomes a "Tenancy by Holding Over" tenant. Furthermore, any notification
provided pursuant to section 111(h 1) is deemed waived with the express or implicit
permission of the person to whom it is provided as specified in section 113 2.
However, according to Section 106 of the Act, which governs lessor and lessee in the
absence of a contract, the lease must be renewed every month or every year. Due to
the "Holding Over's" complex nature, which frequently leads to confusion with other
property law doctrines, numerous court statements have been made to clarify the
doctrine's true nature.

OBJECTIVE: - The main goal of the project is to discuss the laws that are related to
the effect of holding the property when the time in the lease contract has expired
and the tenant is still in possession of the property, its application and importance,
and the laws related to it, as well as the precedents set by the courts. The project
1
Section 111 in The Transfer of Property Act, 1882

2
Section 113 in The Transfer of Property Act, 1882
2
also examines the distinction between tenancy by holding over and tenant at
sufferance.

HYPOTHESIS:-

One of the grounds for terminating a lease under the provisions of the Transfer of
Property Act of 1882 (TPA) is the passage of time. Both lessors and lessees must be
aware of the consequences of a lease expiration to ensure clarity over their
respective rights and entitlements. Due to the passage of time, particularly the
various implications of choosing between an "extensions," "renewal," or "holding
over" of a lease these legal concepts apply in situations where a lessee wishes to
continue lawfully occupying the leased premises after the original lease expires.

"HOLDING OVER" IN COMPARISON TO "TENANT AT

SUFFERANCE"

On the surface, the difference between the two principles appears to be minor and
insignificant, but as we delve deeper into the complexities of law, it appears to be
significant. In the case of RV Bhupal Prasad v. State of AP 3, however, the Supreme
Court made a clear distinction between the doctrines of 'Holding Over' and 'Tenancy
at Sufferance.' In the former, the lessee's possession is legal even after the lease
expires because he obtains the owner's consent, whereas in the latter, the lessee's
possession is illegal because it is barred by the lease determination. Despite the fact
that the property is occupied by tenants in both cases, Even after the lease is
determined, the lessee's position is protected by the lessors' consent and acceptance
of rent when he falls under the scope of Holding Over, and it is formidable when he
continues possession under Tenancy At Sufferance. As a result, the consent and
acceptance of rent are critical points of differentiation, the absence of which confers
the lessee with the title of "tenancy at sufferance" but creates no legal right.
However, a tenancy at sufferance can be converted to a tenancy at will if the owner
consents to the lessee's possession and accepts the rent in exchange.

How is tenancy determined by holding over determined?

The following are the essential ingredients in determining the tenancy by holding
over:
Possession must be continued with the lessor's or his legal representatives' consent.
 In order for the tenancy to continue, the consent must be specific.
 Consent or assent must be consensus ad idem, leaving no room for loopholes or
insufficient inferences.
 Acceptance of rent must always be in clear recognition of tenancy acceptance.

3
1996 AIR 140, 1995 SCC (5) 698
3
Tenancy-at-sufferance

In the preceding scenario, possession was continued with the assent of the lessor or
his legal representatives since the lease determination. In contrast, if a lessee or an
under-lessee continues to possess the property after the determination,The tenancy
at sufferance is when a lease is granted without the consent of the lessor or his legal
representatives. The tenant in sufferance has no legal title and can be evicted
without being served with notice.
Renting at will

TENANCY AT WILL

A tenancy at will is one that can be terminated at the will of either the landlord or
the tenant. A tenancy at will can arise at any time by implication of law with the
owner's consent to continue in possession, or by an express agreement to pay
compensation on a day-to-day basis where the period of tenancy is not defined. The
power of alienation is one of the key distinctions between tenancy at will and tenancy
by holding over. Tenancy by holding over entitles the tenant to alienate the tenancy,
whereas tenancy at will does not. Tenancy at will is terminated/determined in the
following ways:
 Death of either the landlord or the tenant/lessee.
 When a tenant places possession on sublease or under lease.
 When the Tenant/Lessee acts contrary to the desire to continue.
 Alienation of tenancy.

IMPACT OF HOLDING OVER

The Exchange of Property Act accommodates the impact of Holding Over, that's
what it gives assuming that a lessor keeps on holding the belonging after the
assurance of the rent and the lessor
Acknowledges the lease or if not consents to the belonging then, without a trace of
opposite understanding the rent will be considered a year to year or month to month
rent. This will add up to another tenure however the provisions of the new rent
would be equivalent to of the lapsed one. Thusly, the new rent would be a year to
year or month to month regardless and the expulsion of the tenant is conceivable
solely after serving him a notification to stop. He can't be launched out without a
notification to stop. In this manner, for the use of Segment 116, two circumstances
are significant
 The occupant or the renter should be in control of the property after the
assurance of the rent.
 The lessor or his legitimate delegate should acknowledge lease from the
tenant or under resident or in any case consent to his possession.
This segment doesn't make a difference where the rent was for the existence of the
tenant, it is just material where the first rent was fixed for the year to year or month
4
to month. Tenure made by the ideals of this will rely on the consent of the lessor,
express or suggested. As expressed before the acknowledgment of lease by the
lessor suggests his acknowledgment to the holding over of the property by the
occupant/resident.

What is legitimate tenancy by holding over?

As per Segment 116 of the Exchange of Property Act 1882, the accompanying
circumstances would bring about tenancy by holding over: After the rent conceded to
the still up in the air, the resident or under-tenant of the property holds ownership.
The lessor or his legitimate delegate either acknowledges lease from the tenant or
under-resident or consents to the renter or under-resident proceeded with
ownership. There isn't any consent in actuality. In such conditions, the rent is re-
established on a yearly or month to month premise, contingent upon the reason for
which the property is leased. Expect A rents out a house to B for quite some time. B
rents out the house to C for Rs 5,000 every month. The five-year rent lapses, yet C
keeps the house and pays the lease to A. Thus, C's rent is re-established on a month-
to-month premise. Expect A rents out his home to B as long as necessary. C passes
on, yet B holds ownership with A's consent. B's rent is recharged on a yearly
premise.

JUDGEMENTS ON HOLDING OVER

Throughout the long term the legal executive plays had an essential impact in
certifying the idea of holding over and getting rid of the vagueness of the different
parts of the law. Since the consent of the lessor is an issue of truth, the courts
occasionally have explained with respect to what will be an
consent and so forth?

On account of N.K. Rajendra Mohan v. Thrivamadi Elastic Co. Ltd 4 there was a
reestablishment of rent year to year on tenant's excess under lock and key after the
assurance of rent by efflux of time, the High Court held that such restoration is
fundamental qua reason for which land was initially rented. No one-sided adjustment
or change of direction is conceivable except if both the gatherings concur upon. In
the moment case the High Court held that when the first rent was not with the end
goal of the manor, that reason can't, with efflux of time, go into recharged rent just
on the grounds that ranch had been developed on rent hold hence by the tenant, who
had been given tact under unique rent to do so.Thus it very well may be construed
from this case that a rent can be restored exclusively for the reason it was rented
upon in the first rent.

4
AIR 2015 SC 2556
5
On account of C. Albert Morris v. K. Chandrasekaran5, the dispute of the litigant in
the High Court was that the lead of the property manager, who had documented a
suit for ejectment yet did not pursuing the same should be interpreted as the
landlord's approval. The Supreme Court rejected the argument, holding that the
conduct did not imply assent because the suit was withdrawn for the liberty to file a
new suit on the same cause of action.

In the case of Badrilal v. Municipal Corporation of Indore 6, the Municipal

Corporation raised the rent, but the plaintiff continued to pay the old rent, which the
Municipal Commissioner accepted. The Supreme Court ruled that the
Commissioner's acceptance of rent does not make the lessee a tenant holding over.
As a result, a notice under section 106 of the Transfer of Property Act of 1882 was
not required in this case.

CONCLUSION

At the point when a rent is enrolled in name of a tenant by the lessor, there is the
exchange of interest for a few thought and the rent is legitimate for a time span as
determined in the instrument. A rent still up in the air by different occasions, all such
conditions are determined under Section 111 of the Exchange of Property Act, 1882.
The investigation of holding over starts solely after the assurance of the rent, an
occupant who proceeds with the belonging over the property after the assurance of
rent with the assent of the lessor is supposed to an inhabitant hold over. Accordingly,
the resident is holding over the property for example proceeding with ownership
even after the assurance of the rent. Though assuming the occupant proceeds with
the belonging after the assurance of rent without the consent of the lessor, he will be
viewed as inhabitant by-fortitude. He won't be considered as an intruder yet his
position isn't superior to that of an intruder, he can be ousted without notice.
However, an occupant by holding over should be served a notification and can be
ousted by keeping a fair treatment of regulation. Whether a lessor has given his
5
C Albert Morris v K Chandrasekaran (2006) 1 SCC 228

6
Badrilal v Municipal Corporation of Indore (1973) 2 SCC 388
6
consent to the renter for proceeding with the belonging even after the assurance of
the rent is an issue of reality, however on the off chance that a lessor or the
legitimate delegate of the lessor acknowledge the lease from the tenant holding over
or consent to him if not, it will be considered that the lessor has given his consent.
Here the consent can be communicated or suggested. Be that as it may, now and
again circumstance can be unique, where giving rent won't compare to the consent
of the lessor. On the off chance that it is definitive that the tenant has the consent of
the lessor then, at that point, the new rent would be a year to year or month to
month regardless and the removal of the resident is conceivable solely after serving
him a notification to stop. Another rent made by the ideals of Section 116 can't be
utilized for some other reason for example the reason for the rent ought to be
equivalent to it was in the unique rent before the assurance. With the holding over of
the property, there are a few rights of the inhabitant holding over. He partakes in
similar arrangement of freedoms which he used to before the assurance of the rent.
He can rent the property holding over however the reason for the property for which
it was rented doesn’t

References
 https://www.commercialcafe.com/blog/holdover-clause-commercial-real-estate-
leases/
 https://indiankanoon.org/doc/16078343/
 www.hindustantimes.com
 www.manupatrafast.com/