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2016 DIGILAW 1571 (ALL)

Vinod Kumar v. Arya Samaj Mandir

2016-04-26

SUNITA AGARWAL

body2016
JUDGMENT Mrs. Sunita Agarwal, J. – Heard learned counsel for the parties and perused the record. 2. The question in the present case is whether the petitioner is entitled for benefit of Section 114 of the Transfer of Property Act. The suit property is exempted from the operation of U.P. Act No. 13 of 1972. The tenancy of the petitioner was determined by a valid notice dated 1.6.1999 received by him on 5.6.1999. The plea taken by the tenant is that he had deposited the dues of rent in the present suit and, therefore, was entitled for benefit of Section 114 of the Transfer of Property Act. It was held by the Court below that the tenancy was not determined under Section 111 (g) of the Act by forfeiture rather it was a simpliciter notice under Section 106 of Transfer of Property Act and, therefore, the protection granted under Section 114 cannot be given to the petitioner. 3. Learned counsel for the petitioner was granted time to prepare the matter to address on the applicability of Section 114 of the Transfer of Property Act. However he did not extend any argument on this issue. 4. Perused the record. A bare perusal of the notice dated 1.6.1999, at page 47 of the paper book makes it evident that the landlord made his intention clear that he did not want to continue the petitioner as tenant in the suit property, unpaid rent was demanded by the said notice. There is no forfeiture clause as per Section 111 (g) of Transfer of the Property Act and, therefore, the provisions of Section 114 will not apply. The tenancy was not for a fixed period and there was no written lease deed. Mere demand of rent would not be a ground to say that it was a case of determination of lease by forfeiture under Section 111 (g) of Transfer of Property Act. 5. Section 111 (g) of the Transfer of Property Act provides for determination of lease by forfeiture. Category I of clause (g) of Section 111 (g) of the Transfer of Property Act contemplates determination of lease by forfeiture in case, the lessee breaks an expression condition and that on breach thereof, the lessor may re-enter. 6. 5. Section 111 (g) of the Transfer of Property Act provides for determination of lease by forfeiture. Category I of clause (g) of Section 111 (g) of the Transfer of Property Act contemplates determination of lease by forfeiture in case, the lessee breaks an expression condition and that on breach thereof, the lessor may re-enter. 6. Category (II) of Clause (g) of Section 111 (g) of the Act provides for determination of lease by forfeiture in case the lessee renouncement his character as such by setting up a title in a third persons or by claiming title in himself. Category (III) of Clause (g) of Section 111 provides for forfeiture in case, the lessee is adjudicated in-solvent and lease provides that the lessor may re-enter on happening of such event. 7. In each of the aforesaid three categories, it is necessary that the lessor or his transferee must give notice in writing to the lessee of his intention to determine the lease. 8. Section 114 of the Transfer of Property Act further provides for relief against forfeiture for non payment of rent where the lessee pays or tenders to the lessor. In the event the rent in arrears, together with interest thereof and his full cost of suit is paid or security to the satisfaction of the Court at the hearing of the suit is given, the Court may in lieu of making a decree for ejectment pass an order relieving the lessee against the forfeiture and thereupon the lessee shall hold the property leased as forfeiture has not occurred. 9. A combined reading of these provisions shows that for the applicability of Section 114 of the Transfer of Property Act, it is necessary that the conditions as per the provisions of Section 111 (g), Category I of the Act must be fulfilled. 10. These conditions are: - (i) There must be an express condition in the lease deed regarding payment of rent. (ii) The express condition must provide that in case of breach of the said condition (regarding payment of rent), the lessor may re-enter. (iii) The lessee breaks such express condition. (iv) The lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease. 11. (ii) The express condition must provide that in case of breach of the said condition (regarding payment of rent), the lessor may re-enter. (iii) The lessee breaks such express condition. (iv) The lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease. 11. This is Court in Yashpal Lala Shiv Narain v. Allatala Tala Malik Waqf Ajakhan reported in AIR 2006 ALL 115 , referring to Geetabai Namdeo Df v. B.D. Manjrekar reported in AIR 1934 Bombay 400, has considered that there is a world of difference between liability of the tenant for eviction on the ground of forfeiture of tenancy and his liability on the ground of termination of the tenancy by a notice of termination simpliciter. If the tenancy is to come to an end by virtue of the Principle of forfeiture, what is required under the law is that the tenancy should be for a particular period and the lease deed must contain a clause of forfeiture on the ground of breach of certain conditions of the lease. If the breach is committed, the tenancy is liable to be forfeited even before the expiry of the agreed period. The landlord must exercise his right of forfeiture either expressly or by necessary implication. If he exercises the right of forfeiture, then the tenancy comes to an end even before the agreed period of tenancy. 12. Such question does not arise in a case of termination of tenancy by notice to quit simpliciter as provided by Section 106 of the Transfer of Property. The tenancy which is not for a particular fixed period but is only a periodical lease, yearly or monthly lease, the tenancy can be terminated by a simpliciter notice as contemplated under Section 106 of the Act, no question of forfeiture arises in such case. 13. The tenant might have been paying rent with punctuality, still, if the tenancy is terminated by the notice to quit the tenant has to go. Where there is no forfeiture clause in the agreement, the tenancy is not determined under Section 111(g) of the Act and Section 114 does not come into play. 14. 13. The tenant might have been paying rent with punctuality, still, if the tenancy is terminated by the notice to quit the tenant has to go. Where there is no forfeiture clause in the agreement, the tenancy is not determined under Section 111(g) of the Act and Section 114 does not come into play. 14. It was further held in paragraph 76 of the above report that for applicability of Section 111(g) and as such Section 114 of the Transfer of Property Act, it is necessary that the lease must be in writing containing the express condition as per the requirements of Section 111 (g) of the Act. 15. In case there is no written lease and the tenancy is commenced by an oral lease, these provisions will not apply. Referring to paragraph 2 of Srikant Gupta v. XIII Additional District Judge, Moradabad and Ors. reported in 1995 (1) ARC, it was held that the termination of tenancy by forfeiture as provided under Section 111 (g) applies only when lease is of perpetual nature and secondly, the terms of the lease provide that the tenancy can be determined only on the breach of such condition. 16. In Arun Kumar v. VIII Additional District Judge, Budaun and Anr. reported in 2002 (2) ARC 195, it is held that the tenant failed to demonstrate that there was any lease deed or agreement about the tenancy in writing between the parties in which there was a clause that the tenancy shall stand forfeited due to non-payment of rent. There being no such contingency, the tenancy stood terminated by written notice under Section 106 of Transfer of Property Act, the question of giving benefit of Section 114 of Transfer of Property Act does not arise. 17. Following the law discussed above, it is seen that present case is not a case where tenant was inducted through a written lease deed giving express conditions therein as contemplated under Section 111 (g) of the Act, therefore, the benefit of Section 114 of the Transfer of Property Act has rightly been denied to the petitioner. 18. There is no reason to interfere. 19. Dismissed.