What is 'holding' over under the Transfer of Property?
Find the answer to the mains question of Property Law only on Legal Bites.
Question: What is 'holding' over under the Transfer of Property? [RJS 1986]Find the answer to the mains question of Property Law only on Legal Bites. [What is 'holding' over under the Transfer of Property?] Answer‘Holding over’ refers to the situation where a lessee remains in possession of the leased property even after the lease term has expired, and the lessor accepts rent or otherwise assents to such continued possession.Section 116 of the Transfer of Property Act, 1882 governs...
Question: What is 'holding' over under the Transfer of Property? [RJS 1986]
Find the answer to the mains question of Property Law only on Legal Bites. [What is 'holding' over under the Transfer of Property?]
Answer
‘Holding over’ refers to the situation where a lessee remains in possession of the leased property even after the lease term has expired, and the lessor accepts rent or otherwise assents to such continued possession.
Section 116 of the Transfer of Property Act, 1882 governs the doctrine of holding over. It provides that if a lessee or under-lessee remains in possession after the lease ends, and the lessor accepts rent or agrees to such possession, a tenancy by holding over is implied.
Key Elements:
- Expiry of Lease: The original lease must have expired either by efflux of time or termination.
- Continued Possession: The tenant remains in possession.
- Assent of Lessor: The landlord accepts rent or otherwise indicates consent.
- New Tenancy: A fresh tenancy (monthly or yearly, depending on the purpose) is presumed.
Important Case Laws:
K.K. Verma v. Union of India (AIR 1954 Bom 358): The Court held that mere retention of possession does not amount to holding over unless the landlord assents.
C.M. Beena v. P.N. Ramachandra Rao (2004) 3 SCC 595: The Supreme Court clarified that acceptance of rent must be with knowledge and intention to create a new tenancy.
Legal Consequences:
- A fresh lease is deemed to have been created under the same terms as the original lease.
- The tenant cannot be treated as a trespasser but will be bound by the new implied tenancy.
Distinction from Trespass: If the landlord does not assent to the continued possession, the tenant becomes a tenant at sufferance or trespasser, not a tenant holding over.
Holding over under Section 116 of the TPA protects tenants from being treated as trespassers when they lawfully stay back after lease expiry with the landlord’s assent, converting their status into that of a deemed tenant under law.
Mayank Shekhar
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