Case: DR. H.K. SHARMA Vs. RAM LAL

(e) and (f) of section 111 of the Transfer of Property Act, is an yielding up of the term of the lessees interest to him who has the immediate reversion or the lessors interest. It takes effect like a contract by mutual consent on the lessors acceptance of the act of the lessee. The lessee cannot, therefore, surrender unless the term is vested in him; and the surrender must be to a person in whom the immediate reversion expectant on the term is vested. Implied surrender by operation of law occurs by the creation of a new relationship, or by relinquishment of possession. It the lessee accepts a new lease that in itself is a surrender. Surrender can also be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor. Relinquishment of possession operates as an implied surrender. There must be a taking of possession, not necessarily a physical taking, but something amounting to a virtual taking of possession. Whether this has occurred is a question of fact. 32. It is in the light of the aforementioned legal principle, the question involved in this case has to be examined. 33. Perusal of Agreement to Sell dated 13.05.1993 (Annexure P-1) shows that though the agreement contains 9 conditions but none of the conditions provides much less in specific terms as to what will be the fate of the tenancy. In other words, none of the conditions set out in the agreement 13.05.1993 can be construed for holding that the parties intended to surrender the tenancy rights. 34. Afortiori,the parties did not intend to surrender the tenancy rights despite entering into an agreement of sale of the tenanted property. In other words, if the parties really intended to surrender their tenancy rights as contemplated in clauses (e) or (f) of Section 111 of the TP Act while entering into an agreement to sell the suit house, it would have made necessary provision to that effect by providinga specific clause in the agreement. It was, however, not done. On the other hand,we find that the conditions set out in the agreement do not make out a case of express surrender under clause (e) or implied surrender under clause (f) of Section 111 of the TP Act. 35. It is for this reason, the law laid down by this Court in the case of R. Kanthimathi (supra) has no application to the facts of this case and is, therefore, distinguishable on facts. Indeed, it will be clear from mere perusal of para 4 of the said decision quoted hereinbelow: 4. As aforesaid, the question for consideration is, whether the status of tenant as such changes on the execution of an agreement of sale with the landlord. It is relevant at this junction first to examine the terms of the agreement of sale. The relevant portions of the agreement of sale records the following: I the aforesaid Mrs. Beatrice Xavier hereby agree out my own free will, to sell, convey and transfer the property to you Mrs. R. Kanthimathi wife of Mr. S. Ramaswami, 435 Trichy Road, Coimbatore for a mutually agreed sale consideration of Rs.25,000/-. I shall be proceeding to Coimbatore and shall execute the sale deed and present the same for admission and registration before the Registering Authority, accepting and acknowledge payment of the balance of consideration of Rs. 5000/- (Rupees five thousand only) at the time of registration and shall complete the transaction of sale and conveyance as the property demised has already been surrendered to your possession. (Emphasis in Original) 36. The words highlighted in italics of the agreement were construed by Their Lordships for holding that these italicized words in the agreement clearly indicate that the parties had really intended to surrender their tenancy rights on execution of the agreement of sale and bring to an end their jural relationship ofthe landlord and tenant. 37. As observed supra, such is not the case here because we do not find any such clause or a clause akin thereto in the agreement dated 13.05.1993 and nor we find that the existing conditions in the agreement discern the intention of the parties to surrender the tenancy agreement either expressly or impliedly. 38. In the light of the foregoing discussion, we are of the considered opinion that the tenancy in question between the parties did not result in its determination as contemplated under Section 111 of TP Act due to execution of the agreement dated 13.05.1993 between the parties for sale of the suit house and the same remained unaffected notwithstanding execution of the agreement dated 13.05.1993 39. A fortiori,the respondent (lessor) was rightly held entitled to file an application against the appellant (lessee) under Section 21 (1) (a) of the UP Act and seek the appellants eviction from the suit house after determining the tenancy in question. 40. Before parting, we make it clear that we examined the terms of the agreement dated 13.05.1993 only for deciding the question as to whether the execution of agreement, in any manner, resulted indetermination oftheexisting tenancy rights between the parties in relation to the suit house in the context of the TP Act and the UP Act and not beyond it. 41. Coming to the next question as to whether the respondent has made out a case of hisbona fide need for his residence and the members of his family as contemplated under the UP Act, suffice it to say, it being a question of fact, the finding recorded by the High Court on this question does not call for any interference in this appeal. It is binding on this Court.Even otherwise, we find no good ground to interfere in the finding for the reason that the respondent being a landlord and a retired man has every right to live in his house with his family.Therefore, there is no perversity in the finding of the High Court on this issue.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]23. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals26. In our considered opinion, the aforementioned question has to be decided keeping in view the provisions of Section 111 of the TP Act and the intention of the parties to the lease - whether the parties intended to surrender the lease on execution of such agreement in relation to the tenanted premises or they intended to keep the lease subsisting notwithstanding the execution of such agreement33. Perusal of Agreement to Sell dated 13.05.1993 (Annexure P-1) shows that though the agreement contains 9 conditions but none of the conditions provides much less in specific terms as to what will be the fate of the tenancy. In other words, none of the conditions set out in the agreement 13.05.1993 can be construed for holding that the parties intended to surrender the tenancy rights34. Afortiori,the parties did not intend to surrender the tenancy rights despite entering into an agreement of sale of the tenanted property. In other words, if the parties really intended to surrender their tenancy rights as contemplated in clauses (e) or (f) of Section 111 of the TP Act while entering into an agreement to sell the suit house, it would have made necessary provision to that effect by providinga specific clause in the agreement. It was, however, not done. On the other hand,we find that the conditions set out in the agreement do not make out a case of express surrender under clause (e) or implied surrender under clause (f) of Section 111 of the TP Act35. It is for this reason, the law laid down by this Court in the case of R. Kanthimathi (supra) has no application to the facts of this case and is, therefore, distinguishable on facts.36. The words highlighted in italics of the agreement were construed by Their Lordships for holding that these italicized words in the agreement clearly indicate that the parties had really intended to surrender their tenancy rights on execution of the agreement of sale and bring to an end their jural relationship ofthe landlord and tenant37. As observed supra, such is not the case here because we do not find any such clause or a clause akin thereto in the agreement dated 13.05.1993 and nor we find that the existing conditions in the agreement discern the intention of the parties to surrender the tenancy agreement either expressly or impliedly38. In the light of the foregoing discussion, we are of the considered opinion that the tenancy in question between the parties did not result in its determination as contemplated under Section 111 of TP Act due to execution of the agreement dated 13.05.1993 between the parties for sale of the suit house and the same remained unaffected notwithstanding execution of the agreement dated 13.05.199339. A fortiori,the respondent (lessor) was rightly held entitled to file an application against the appellant (lessee) under Section 21 (1) (a) of the UP Act and seek the appellants eviction from the suit house after determining the tenancy in question40. Before parting, we make it clear that we examined the terms of the agreement dated 13.05.1993 only for deciding the question as to whether the execution of agreement, in any manner, resulted indetermination oftheexisting tenancy rights between the parties in relation to the suit house in the context of the TP Act and the UP Act and not beyond it41. Coming to the next question as to whether the respondent has made out a case of hisbona fide need for his residence and the members of his family as contemplated under the UP Act, suffice it to say, it being a question of fact, the finding recorded by the High Court on this question does not call for any interference in this appeal. It is binding on this Court.Even otherwise, we find no good ground to interfere in the finding for the reason that the respondent being a landlord and a retired man has every right to live in his house with his family.Therefore, there is no perversity in the finding of the High Court on this issue.