2

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

SECTION 116 AND 117 OF TRANSFER OF PROPERTY ACT

TRANSFER OF PROPERTY ACT

Sir. Jogi Naidu

HARSHIT MALVIYA

2016039

1|Page
ACKNOWLEDGEMENT

I have made my project titled “Section 116 and 117 Transfer of Property Act” under the
supervision of Sir. Jogi Naidu, Faculty Lecturer, DamodaramSanjivayya National Law
University. I find no words to express my sense of gratitude for Naidu sir for providing the
necessary guidance at every step during the completion of this project.

I am also grateful to the office, librarian and library staff of DSNLU, Visakhapatnam for
allowing me to use their library whenever I needed to. Further I am grateful to my learned
teachers for their academic patronage and persistent encouragement extended to me. I am
once again highly indebted to the office and Library Staff of DSNLU for the support and
cooperation extended by them from time to time. I cannot conclude with recording my thanks
to my friends for the assistance received from them in the preparation of this project.

2|Page
Table of Content

S.NO Content Page

1. Introduction 4
2. Definition Section 116 7
3. Case Analysis Referring Section 116 8
4. Definition Section 117 14
5. Case Analysis Referring Section 117 15
6. Bibliography 20

3|Page
INTRODUCTION

Importance and relevance of property in today‘s materialistic world is undeniable. Property

related disputes dominate the courts among strangers, former friends and relations who fight
tooth and nail with fret and flume wasting several precious years. It is also true that relevance
of property in the socio–economic life of an individual is relatable more with respect to its
disposition rather than its abstract content which indicates the inherent necessity of awareness
of the basic concepts with respect to transfer of property. Fighting immense battles and losing
precious lives and time can be avoided to a large extent with right guidance at the initial level
of its transfer. Property can be transferred in several ways, and conveyance of title in India is
not subject to one single piece of legislative enactment. Thus different legislations exist that
govern the transfer of title from one person to another with respect to the property depending
upon the mode of conveyance. One of the basic features of the Transfer of Property Act, 1882
is that it governs transfer of property inter vivos or between living persons only. It does not
apply to acquisition of title through inheritance and succession which are subject to distinct
religious specific personal .It is also inapplicable to dedication of property to God or where
the transfer is subject to the relevant religious and Charitable Endowment Acts. The Transfer
of Property Act primarily deals with transfer of immovable property and interests in
immovable property. However, some of its provisions also apply and govern transfer of
movable property. It provides a specific method of transfer of immovable property and one of
the very important feature of the Act is that barring few exceptions, transfer of immovable
property is no longer a private affair as it requires compulsory registration of the transfer
document. Prior to the Transfer of Property Act, 1882, there was practically no law as to real
estate in India. A few points were covered by the Regulations and Acts which were repealed
either wholly, or in part by section 2 of the Act. But for the rest of the law, the courts, in the
absence of any statutory provisions, adopted the English law as the rule of justice, equity and
good conscience. This was not satisfactory, for the rules of English law were not always
applicable to social conditions in India, and the case law became confused and conflicting. To
remedy this state of affairs, Commission was appointed in England to prepare a code of
substantive law of India. The classical law relating to transfer of property was purely
customary. Before the advent of the British and their active intervention in the Indian legal
system, Hindus and Muslims were governed by their respective law in relation to transfer of
property. This arrangement worked adequately in the informal and traditional judicial system
of panchayats because, those who decided the matter were not only familiar with the nature

4|Page
of the dispute but also with the law and the litigants as well. However, the same scenario
proved to be very confusing and uncertain with the establishment of the informal courts in
India by the British Govt. In this adversarial litigation system, the disputes were decided by
impartial judges who were unfamiliar with the litigants and the distinctive social system of
India. Realizing the absence of a concrete and ascertainable law of property comparable to
what they had in England, these courts applied English rules governing transfer of property
with modifications, to suit the Indian conditions. However, such application of the British
principles even with modifications, at times, was grossly inappropriate due to the social and
cultural differences between England and India. Thus, the desirability of enacting the law
relating to transfer of property, was perceived soon after the consolidation of British authority
in India.

5|Page
6|Page
SECTION 116 IN THE TRANSFER OF PROPERTY ACT, 1882

Definition:

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 lessor 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.

Illustrations

(a) A lets a house to B for five years. B underlets the house to C at a monthly rent of Rs. 100.
The five years expire, but C continues in possession of the house and pays the rent to A. C’s
lease is renewed from month to month.

(b) A lets a farm to B for the life of C. C dies, but B continues in possession with A’s assent.
B’s lease is renewed from year to year. Tenant at sufferance A person who is a tenant at
sufferance has no estate or interest in the leasehold property. A tenant holding after the expiry
of his term is a tenant at sufferance, which is a term useful to distinguish a possession rightful
in its inception but wrongful in its continuance from a trespass which is wrongful both in its
inception and in its continuance. A co-owner can maintain a suit by himself in ejectment of a
trespasser or a tenant at sufferance;

7|Page
RELEVANT CASE LAWS;

Case 1

Saraswati Construction Company Vs. Indian Overseas Bank

Court : Delhi

Decided On : Sep-07-1998

Reported in : 1998(47)DRJ316

Judge : M.S.A. Siddiqui, J.

Acts : Transfer of Property Act, 1882 - Sections 116

Appeal No. : Suit No. 902/90

Appellant : Saraswati Construction Company

Respondent : Indian Overseas Bank

Facts:

The plaintiff has filed this suit for defendant-bank's eviction from the basement, ground
floor, first floor and the second floor of the building bearing No. B-26-27, Community
Centre, Janak Puri, New Delhi (hereinafter referred to as suit premises) and also for recovery
of mesne profits @ Rs. 12/- per sq. ft. per month w.e.f. 1st February, 1990. Briefly stated, the
plaintiffs case is that on 1st March, 1981, the suit premises were let out to the defendant-bank
at a rent of Rs. 23,580/- per month. By the notice dated 10th January, 1990, the plaintiff
terminated the defendant-bank's tenancy w.e.f. 31st January, 1990. Despite service of the said
notice, the defendant-bank did not vacate the suit premises. Hence, this suit.

Issue Raised:
1. Whether the suit in the present form is not maintainable?

2. Whether the suit does not disclose any cause of action?

3. Whether the court has no jurisdiction?

4. Whether the tenancy of the defendant has been validly terminated?

8|Page
5. Whether the plaintiff is equated to possession?

Judgement

On 15th April, 1998, learned counsel for the defendant-bank intimated the Court about
defendant's willingness to vacate the suit premises provided reasonable time is granted for
vacating the suit premises. Accordingly, time was granted to the defendant-bank to vacate the
suit premises by 31st July, 1999. Pursuant to this direction, the defendant-bank filed an
undertaking in the form of an affidavit to vacate the suit premises by 31st July, 1999. The
undertaking filed by the defendantbank is accepted. Learned counsel for the parties submitted
that the only dispute which now survives between the parties is with regard to the amount of
mesne profits to be paid by the defendant-bank to the plaintiff. In this view issue Nos. 1,2,3,4
and 5 do not survive for determination.

9|Page
Case 2

Bhuneshwar Prasad and anr. Vs. United Commercial Bank and ors.

Court : Supreme Court of India

Decided On : Aug-25-2000

Reported in : AIR 2000 SC275

Judge : S.S.M. Quadri and; Y.K. Sabharwal, JJ.

Acts : Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 - Sections 11(1);
Transfer of Property Act, 1882 - Sections 116; Rent Restriction Act Appeal No. : C.A. No.
11756 of 1996

Appellant : Bhuneshwar Prasad and anr.

Respondent : United Commercial Bank and ors.

Facts:

The appellants and respondents 3 to 7 are owners and landlords of the premises in question.
United Commercial Bank-respondent No. 1 is the tenant. Respondent No. 2 is an officer of
the bank. A suit seeking a decree of eviction of the bank from the premises was filed by the
owners. It has been, inter alia, alleged in the plaint that the bank was inducted as a tenant in
the premises for a fixed period of five years commencing from 1st April, 1981 to 31st March,
1986 through a registered deed of lease. The bank was given an option to get the lease
renewed for two terms of five years each provided, it gives notice for renewal of the lease
each time one month prior to the expiration of the period of lease. The bank exercised this
option one month prior to 31st March, 1986 and accordingly the lease was renewed for the
period from 1 st April, 1986 to 31st March, 1991 at a monthly rent of Rs. 10,876/-. It seems
that before 31st March, 1991, the bank did not exercise option for renewal of the lease. The
bank was asked to vacate the premises by 31st May, 1991 under plaintiff's letter dated 22nd
April, 1991. Now, the bank by letter dated 24th April, 1991 requested the plaintiffs for
renewal of lease but the plaintiffs did not agree and requested for vacation of the premises. It
has also been stated in the plaint that after expiry of lease on 31st March, 1991, the bank used
to deposit the rent in the account of the plaintiffs in their branch but that was without their
consent and mere pay ment of rent without consent, would not create any fresh tenancy.

10 | P a g e
Under the aforesaid circumstances, the owners sought eviction of the bank on the sole ground
of expiry of the period of the lease under Clause (e) of Sub-section (1) of Section 11 of Bihar
Buildings (Lease, Rent and Eviction) Control Act, 1982.

Judgement:

In the present case, the bank from the conduct of the owners has established that the
acceptance of increased rent was in token of owners assent to the bank continuing in
possession after expiry of the lease, thereby creating lease from month to month within the
meaning of Section 116 of Transfer of Property Act, 1882. The High Court has rightly
reversed the judgment and decree of the trial court. Before parting we may make it clear that
we are not concerned with the proceedings for fixation of the rent, if pending before the
appropriate authorities under the Act, as the same are not the subject matter of this appeal and
the fixation of the standard rent and from when it is payable is a matter to be decided by the
said authorities in accordance with law. For the aforesaid reasons, dismiss the appeal. The
parties are, however, left to bear their costs.

11 | P a g e
Case 3

Daya Ram Vs. Gurcharan Das

Court : Allahabad

Decided On : Aug-10-1973

Reported in : AIR 1974 All 266

Judge : R.B. Misra, J.

Acts : Transfer of Property Act, 1882 - Sections 116

Appeal No. : Second Appeal No. 3079 of 1968

Appellant : Daya Ram

Respondent : Gurcharan

Facts:

The present appeal by the plaintiff arises out of a suit for ejectment from the ahata in suit
after demolition of the constructions made by the defendant. The disputed ahata is owned by
the plaintiff-appellant. By a registered deed of agreement dated 11th January, 1952, the
plaintiff let out the said ahata on an annual rent of Rs. 150/-to the defendant for a period of
three years, commencing from 12th November, 1951 to 11th November, 1954. It was let out
to the defendant for establishing a cotton machine and a flour mill. It was stipulated between
the parties that on the expiry of the term of the lease, the defendant would hand over
possession to the plaintiff and no notice to quit would be necessary. It was further stipulated
that the defendant might make any new construction or place chappar or make any additions
or alterations according to his needs and requirements, but, after the expiry of the term of the
lease, the defendant would restore the premises to its original condition and would hand over
the same to the plaintiff after removing his materials. But on the expiry of the term of the
lease, the defendant did not vacate the premises as stipulated. The plaintiff, therefore, sent a
composite notice of demand and quit to the defendant and, thereafter, filed a suit for recovery
of arrears of rent and ejectment.

Judgement:

From the Order Sheet, it is evident that the plaintiff had been given an opportunity to
produce documents in rebuttal, but he did not avail of the opportunity. He cannot now make a
12 | P a g e
grievance that he had no reasonable opportunity. The new papers sought to be filed by the
plaintiff before this Court cannot be accepted under Order 41, Rule 27, C. P. C. Neither the
defendant nor his counsel has any notice of the application under Order 41, Rule 27, Civil P.
C. filed by the plaintiff-appellant. For these reasons, the fresh evidence sought to be filed
before this Court, cannot be taken into consideration. From the materials, however, on the
record, I have not the slightest doubt that, in this case, the defendantrespondent has failed to
establish a fresh contract between the parties. The lower appellate Court has been swayed by
the mere fact that the plaintiff had accepted rent even after the expiry of the period of the
lease. That by itself may or may not amount to a fresh contract. That will depend upon the
circumstances of each case. But the circumstances in the present case do not warrant such a
conclusion. 20. For the reasons given above, the appeal must succeed. It is, accordingly,
allowed with costs and the judgment and decree of the lower appellate Court are set aside and
that of the Court of the first instance is restored. As the respondent has installed flour mill and
oil expeller, it seems desirable that he should be given some time to remove the installations.
He will not be ejected, in these circumstances, for a period of three months.

13 | P a g e
Section 117 in The Transfer of Property Act, 1882

Definition:

117. Exemption of leases for agricultural purposes.—None of the provisions of this Chapter
apply to leases for agricultural purposes, except in so far as the State Government may by
notification published in the Official Gazette declare all or any of such provisions to be so
applicable [in the case of all or any of such leases], together with, or subject to, those of the
local law, if any, for the time being in force. Such notification shall not take effect until the
expiry of six months from the date of its publication.

14 | P a g e
Relavant Case laws

Case 1

Nirshi DhobIn and anr. Vs. Dr. Sudhir Kumar Mukherjee and ors.

Court : Supreme Court of India

Decided On : Jul-30-1968

Reported in : AIR 1969 SC 864

Judge : R.S. Bachawat and; K.S. Hegde, JJ.

Acts : Code of Civil Procedure (CPC) , 1908; Bihar Tenancy Act, 1885 - Sections 1;
Transfer of Property Act, 1882 - Sections 117

Appellant : Nirshi DhobIn and anr

Respondent : Dr. Sudhir Kumar Mukherjee and ors.

Facts: One Chakrapani Singh was the lessee of a plot which consisted of agricultural lands as
well as a homestead. The homestead was later separately leased to ^defendants 1 and 2
(appellants). Thereafter the plaintiffs purchased the rights of the main lessee and sued the
appellants for possession of the homestead. The appellants resisted the suit mainly on the
ground that it had not been brought in accordance with the provisions of the Act and hence
not maintainable. The contention of the plaintiffs is that the lease is invalid as it did not
conform to the provisions of Section 117 of the Transfer of Property Act and therefore they
are entitled to evict the appellants.

Judgement:

where the terms of a statute or ordinance are clear then even a long and uniform course of
judicial interpretation of it may be overruled, if it is contrary to the clear meaning of the
enactment is inapplicable to decisions on the basis of which titles and transactions must have
been founded. 15. For the reasons mentioned hereinbefore this appeal is allowed and the suit
dismissed with costs of this Court.

15 | P a g e
Case 2

Naban Bewa Vs. Nabakishore Samal

Court : Orissa High Court

Decided On : Feb-25-1963

Reported in : AIR 196 Or i16; 29(1963)CLT428

Judge : R.K. Das, J.

Acts : Registration Act, 1908 - Sections 17(1) and 49; Transfer of Property Act, 1882 -
Sections 117; Evidence Act, 1872 - Sections 91

Appeal No. : Second Appeal No. 152 of 1961

Appellant : Naban Bewa

Respondent : Nabakishore Samal

Facts: The disputed land measuring 16 decimals forms part of plot No. 1082 which comprises
a total area of 24 decimals. The land originally was the Nijjote land of the zamindar Umesh
Chandra Roy, who by an unregistered patta Ext. 1 dated 7-4-45 settled the land in favour of
the plaintiff. According to the plaintiff he cultivated the suit land on Bhag for a period of
about 15 years prior to the execution of Ext. 1 and he also continued to remain in possession
after Execution of Ext. 1 and had acquired an occupancy right therein. The defendant who
was in possession of eight decimals of his homestead towards the south-west of the said plot,
being instigated by the enemies' of the plaintiff created trouble in the possession of the
plaintiff for which a proceeding under Section 145 Cr. P. C. was started in which the plaintiff
was the first party and the defendant was the second party. In the said proceeding the
possession of the defendant having been declared on 17-9-56, the plaintiff has filed the
present suit for the aforesaid reliefs.

Judgement : In the present case, the landlord's agent has been examined on behalf of the
plaintiff and has proved his possession as a tenant. The plaintiff also filed the rent receipts
(Ext. 2 series) for the years 1945, 1947, 1951 and1954, and the learned appellate Court held:
'The genuineness of the rent receipts were not challenged and not a word has been said by the
defendant suggesting that these rent-receipts are not genuine. The acceptance of the rent by
the landlord clearly establishes the relationship of the landlord and the tenant.' . It was

16 | P a g e
contended that Section 91 of the Evidence Act is a bar to prove the terms of the agreement.
Thatmay be so, but it is no bar to prove the very existenceof the lease itself. In view of the
finding of the appellateCourt in the present case, the position of the defendant sofar as the
suit property is concerned, is nothing more thanthat of a trespasser. It is well settled that the
possessionis prima facie proof of title so as to eject a trespasserunless the latter shows a better
title. A distinction must,however, be drawn between proving the terms of the leaseand the
existence of the lease itself. It is unnecessary for theplaintiff suing as against a trespasser to
prove the term of thelease. It is enough if he proved the factum of his lease or ofhis tenancy.
The appellate Court has clearly found that theplaintiff was inducted upon the suit-land by the
landlordwho accepted the rent from him and the plaintiff had beenin possession of the suit
land. In view of this finding, andthe position of law as stated above, the plaintiff's suitmust
succeed. In the result, there is no merit in this appeal whichis dismissed with costs.

17 | P a g e
Case 3

Govindasami Pillai Vs. T.M. Srinivasa Chettiar and ors.

Court : Chennai

Decided On : Jan-24-1968

Reported in : AIR 1969 Mad 172

Judge : Ismail, J.

Acts : Tenancy Laws; Madras Cultivating Tenants Protection Act, 1955 - Sections 2; Transfer
of Property Act, 1882 - Sections 117; Code of Civil Procedure (CPC) , 1908 - Sections 9, 11
and 100; Madras Estates Land (Reduction of Rent) Act, 1947 - Sections 3A(4)

Appeal No. : Second App. No. 345 of 1963, S.A. Nos. 571 of 1964 and 1357 and 1557 of
1965

Appellant : Govindasami Pillai

Respondent : T.M. Srinivasa Chettiar and ors.

Facts:

The village of Mathi in Tanjore Dt. is an estate to which the Madras Estates Land Act of
1908 and the Madras Estates Land (Reduction of Rent) Act 1947 applied; but not the Madras
Estates (Abolition and Conversion into Ryotwari) Act 1948. The respondents to the first three
appeals claimed that the lands with reference to which they filed the present suit for recovery
of rent were private lands. It is the common case of the parties that a notification under the
Madras Estates Land (Reduction of Rent) Act 1947 was made by the Government fixing
reduced rates of rent for ryoti lands in the village of Mathi. However, the Madras Estates
Land (Reduction of Rent) Act 1947, as originally passed did not contain any provision for
deciding the question whether a particular piece of land is a ryoti land or a private land in an
estate with reference to which a notification has been made under the said Act. Subsequently,
by an amendment made in 1956, namely, Madras Act 29 of 1956, Section 3-A was
introduced prescribing the machinery for the purpose of determining whether any land in a a
village is or is not ryoti land.

Judgement:

18 | P a g e
Whenever a question of jurisdiction, is involved, it will be the duty of the Court to consider
the same and decide it. The principle of res judicata cannot be allowed to defeat the
provisions of a statutory,enactment which affects the jurisdictionof a Court, and a party
cannot by his admission, omission or previous conduct orconsent confer jurisdiction on a
Court,where none exists. Hence I hold that theorder of this Court in the writ petitiondoes not
operate as to confer jurisdictionon the Civil Court to decide whether thesuit lands are ryoti
lands or not, whichjurisdiction has been taken away by theexpress provision contained in
Section3-A (4) (B) of Madras Act (30 of 1947).No other question arises in these appealsor
was argued before me. 9. The result is, dismiss S. A. 345 of 1963 and S. A. 571 of 1964. S.
A. 1357 of 1965 and 1557 of 1965 will stand allowed to the extent indicated already by me,
namely, to the extent of vacating the finding of the learned Subordinate Judge that the
appellants in S. A. 1357 of 1965 are not tenants, but trespassers, and will stand dismissed in
other respects. There will be no order as to costs in any of these appeals. No leave. In view of
the above conclusion , C. M. P. 5770 of 1967 and 5771 of 1967 are dismissed.

19 | P a g e
Bibliography

Books

1. Property Law, 2nd Edition, Dr. Poonam Pradhan Saxena

Websites

2. Westlaw India
3. Lexis Nexis India
4. SccOnline
5. Manupatra
6. Legal Crystal

20 | P a g e