A CRITICAL INSIGHT INTO THE DIFFERENT FACETS OF “CONCEPT OF HOLDING OVER” (SECTION 116 OF TOPA 1882)
Updated: Mar 11
Author: Damini Chouhan, IV Year of B.A.,LL.B(Hons), from Institute of Law, Nirma University.
The transfer of Property Act, 1882 was put in place to govern the various aspects of immovable property and one such is the terms of “Lease of Immovable Property”.
To apprehend this, it is imperative to understand that land is a scarce resource and not everyone can own a property in their name but there are certain people who owns it in abundance and then there are those who cannot afford to have even a single property. To ease this, people who have the vacant property lease out to those who need it, for a promised/paid consideration. Although, tenant sometimes refuses to restore the property in the possession of the owner even after the expiration of lease period, leaving the owner at bay. Thus, to address such situation, provision of “Holding Over” was introduced under the Act. This paper will give an overview of the doctrine and its implication in the absence of lease agreements with the help of decided case laws.
Keywords: Holding Over, Tenant at Sufferance, Adverse Possession
As provided under Section 105, the right to enjoyment of the immovable property is transferred to the lessee by lessor in the consideration of a price promised or paid. However, the lessee has an obligation to return the possession to the lessor on the determination of lease as required under section 108(q) of the Act.
But if the lessee continues to possess the immovable property and refuse to yield from it and lessor assents to such possession then the provision of “Holding Over” which is given under section 116 of the Act comes into play. As per this provision, when the lessee remains in the possession of the immovable property even after the conclusion of lease and the lessor continues to derive rent from him or consents to his continuance of such possession then the lessee acquires the status of “Tenancy by Holding Over”. In addition to that, if any notice is given under section 111(h) then that notice is considered to be waived with the express or implied consent of the person to whom it was given as mentioned under section 113. However, the lease is required to be renewed from month to month or year to year as per the section 106 of the Act to govern lessor and lessee in the absence of any contract.
Owing to the multifaceted nature of the “Holding Over”, it is often confused with the other principles of property law and thus many judicial pronouncements have been put in place to explain the true nature of doctrine.
“HOLDING OVER” IN CONTRAST WITH “TENANT AT SUFFERANCE”
On the prima facie, the difference between the two principles seems to be trifling and insignificant but as we go into the intricacies of law, it seems to be the substantial one. However, in the case of RV Bhupal Prasad v. State of AP, the Apex Court drew the clear demarcation between the doctrine of ‘Holding Over’ and ‘Tenancy At Sufferance’. In the former, the possession of the lessee is legal even after the expiration of lease as he gets the assent of the owner whereas in the latter, possession by the lessee is unlawful as it is barred by the determination of lease.
Although, in both the cases the property is occupied by the tenants after the lease is determined, still, the position of the lessee is protected by the reason of lessors’ consent and acceptance of rent when he falls under the scope of Holding Over and the same is formidable when he continues the possession under Tenancy At Sufferance.
Therefore, the consent and the acceptance of rent are the crucial points of differentiation, absence of which confers title of “tenancy at sufferance” upon the lessee and creates no legal right. However, tenancy at sufferance can become a tenancy at will, if the owner assents to the possession of the lessee and accepts the rent for that.
NEXUS BETWEEN THE PRINCIPLE OF HOLDING OVER AND ADVERSE POSSESSION
Over the years, it has been observed in the courts that tenants attempt to claim the Adverse Possession of immovable property on the grounds of “Tenancy by Holding Over” after the expiry of 12 years under Article 65 to Schedule I of the limitation Act, 1963. However, this conundrum has been cleared by the Apex Court in the case of Nand Ram v. Jagdish Prasad, it was held by the court that in both the cases either in Tenancy at Sufferance or Tenancy at will, the title of the lessee is that of a tenant and not the owner and just by non- payment of rent does not amount to cancellation of the title of tenancy and in order to establish the claim for adverse possession, forfeiture of tenancy before the expiration of tenancy needs to be established.
Moreover, section 108(q) make sure that the tenant returns the possession to the owner on the completion of lease period and if he defaults, he remains to be liable to the owner in the capacity of tenant irrespective of his status either as Tenancy at Sufferance or At Will and that status of tenancy can only be waived when he surrenders the title and acquires the hostile title. If the tenant fails to restore the possession of the owner the the applicability of section 116 is inevitable.
Thus, the title of adverse possession cannot be claimed unless the tenant restores possession of the property to the owner and his unlawful continuance cannot render the owner’s title defective.
DETERMINING THE CONSENT OF LESSOR UNDER SECTION 116 VIS A VIS SECTION 113
Section 113 of the Act implies that any ‘Notice Given to Quit’ under section 11(h) stands to be cancelled if it gets the consent of the person to whom it was issued and that consent can either be express or implied. Further, it can be any act which shows that there is an intention to survive the lease but the question arise as to whether the doctrine of “Holding Over” stands revoked on issuance of such notice under section 11(h) of the act and if it does not then whether it stands contrary to section 113. In the response to this, apex court in the case of Sarup Singh Gupta v. Jagdish Singh held that the issued notice u/s 11(h) would not be cancelled unless there was an act which showed that there was an intention to continue with the lease as required u/s 113, mere giving of rent is one of the factors and cannot not be absolute in itself and thus the case should be decided in the light of facts and circumstances of the case.
It was been observed by the court that the doctrine of holding over should not be given narrow understanding to decide any case and if the owner accepts the rent then it does not necessarily mean that he consents to such possession.
Even though, the doctrine is multifaceted and seem to be a little bit complicated to be applied in the context of other lease provisions, still, the principle has its own advantages as it protects the interests of both, the owner as well as the tenant. It defends the owners’ right in immovable property by precluding the tenant from acquiring hostile title over the property and at the same time it shields the tenant from labelling him as a trespasser. The objective behind the principle is to govern the relationship of the tenant and the owner with regards to the lease of the immovable property in the absence of any contrary contract.
Thus, to ensure that there exists an amicable relationship even after the expiration of lease it mandates the applicability of section 106 of the act. The principle is apt to govern the lease situations wherein tenant refuses to vacate the flat and tries to claim the ownership over the property and by that it has somehow lessen the burden on the judiciary as in the absence of such provisions, the judges would have been flooded with the complaints of the owners to claim their possession back.