Similarity Report ID: oid:9832:23991691

PAPER NAME

lease laws in india (3).docx

WORD COUNT CHARACTER COUNT

2743 Words 13556 Characters

PAGE COUNT FILE SIZE

13 Pages 190.8KB

SUBMISSION DATE REPORT DATE

Sep 25, 2022 4:26 PM GMT+5:30 Sep 25, 2022 4:27 PM GMT+5:30

61% Overall Similarity

The combined total of all matches, including overlapping sources, for each database.
58% Internet database 4% Publications database
Crossref database Crossref Posted Content database
28% Submitted Works database

Excluded from Similarity Report

Bibliographic material Quoted material
Cited material Small Matches (Less then 8 words)

Summary
 7
TRANSFER OF PROPERTY ACT
SEMESTER V
1
I. INTRODUCTION:

The right to property and its enjoyment has been ingrained in human culture for as long as it
has existed1 While the Indian Constitution recognised this right as a fundamental right, it was
later amended to include it as a constitutional right rather than a fundamental right that could
be held accountable if violated. While everyone has the unassailable right to enjoy their own
property, everyone also has the right to temporarily grant that right to someone else in exchange
for something. This includes leases, mortgages, and licences, among other things.
2
According to Stickney and Weil, “A lease is a contractual arrangement calling for the
user(lessee) to pay the owner (lessor) for use of an asset”2
11
In India, there are two types of tenancy agreements: lease agreements and leave and licence
agreements. Rent control laws apply to lease agreements. The amount of rent is calculated by
11
taking into account the cost of building the property and the market price of the land. Landlords
follow the strict rent laws that apply to these agreements when renting out property for a year.

11
Sushanth Salian, History of the Removal of the Fundamental Right to Property, CENTRE FOR CIVIL SOCIETY p.
232. (2005) https://ccs.in/internship_papers/2002/25.pdf
22
2 Stickney and Weil 2007 p. 791 (Glossary of Financial Accounting: An Intro. To Concepts, Methods, and Use
12e)

1
 TRANSFER OF PROPERTY ACT
SEMESTER V

II. LITERATURE REVIEW:

1
All technical aspects of the study had to be covered in accordance with the law as quoted for
1
the following research, “Transfer of Property Act 1882”3 by Dinshah Fardunji Mulla and Solil
Paul written by Dr Poonam Pradhan and “Textbook on the Transfer of Property Act”4 by
DrAvatar Singh was referred to further comprehend the provisions of the laws. Because a
1
section's applicability is dependent on the qualified fulfilment of its essentials, the books
1
provided the researcher with a detailed understanding of those essentials.

Further reading of the texts also enables the researcher to identify gaps in the literature that can
be addressed in the future of this paper. Furthermore, to ensure better legal precedents for
1
supporting this write-up, “The Transfer of Property Act”5 Prof (Dr) Harpreet Kaur's work was
1
also cited. In the context of the issues discussed, the text is especially useful as a guide in legal
1
precedents. Furthermore, the digest included information specific to the case under discussion
in this text.
1
Article published by renowned legal article website Academike, titled “Definition of License
and granting of licence”6 Ms. Yamini Rajora was referred to instil background information on
the specific nooks related to the licencing procedure and process, including the variability of
such contracts. C.F. Fernandes, a well-known lawyer, wrote a research paper on, titled “Lease
and Licence”.
1
Lastly, research article titled “Licence and its Revocation”7 was referred to in order to more
1
vividly understand the concepts surrounding the concept of licence under the Indian Easement
Act through careful analysis of each and every provision of the licencing as mentioned.

31
dr poonam pradhan, “the transfer of property act” (ed. 13, lexisnexis, 2018)
4
dr avatar singh, textbook on “the transfer of property act” (ed. 5, lexisnexis, 2015)
5
1
3 prof (dr) harpreet kaur, “the transfer of property act”. (ed 6, lexisnexis, 2021)
6
yamini rajora, definition of “licence and granting of licence”, academike. (30th april 2015, last visited 20th april
2021) https://www.lawctopus.com/academike/definition-license/#_edn2
7 1
achal gupta, licence and its revocation, scconline. (21st february, 2021) (last visited 22nd april, 2021)
https://www.scconline.com/blog/post/2021/02/27/license/

2
 TRANSFER OF PROPERTY ACT
SEMESTER V

III. Research Objectives:

1
• To comprehend in depth the provisions of Section 105 of “the Transfer of Property Act”
(leasing) and their essential components.

• To comprehend in depth the provision under Section 52 of the Easement Act (licencing) and
its essential components.

•Know the distinction between “Lease” and “Licensing”

Research question:
1
• What is “lease” under the Transfer of Property Act and what are its essentials?

• What are the major differences between Leasing and Licensing?

• what is the Model Tenancy Act?

IV. Research Methodology:

1
For the current research, the researcher has strictly followed Doctrinal research method taking
1
into account the time and the economic constraint. secondary sources are evaluated and
subsequently be used in the paper

3
 TRANSFER OF PROPERTY ACT
SEMESTER V

V. LEASE AND LICENCE UNDER INDIAN LEGISLATIONS:

1
Lease under the transfer of property act, 1882 and licence under the easement act, 1882
definition –
12
The concept of lease of immovable property is addressed in Chapter V of “The Transfer of
1
Property Act” of 1882. To grasp the concept of lease, one must first grasp the concept of
immovable property. Immovable property is what it sounds like –
1
“Immovable property shall include land, benefits to arise out of land, things attached to the
earth, or permanently fastened to anything attached to the earth”8.

According to the definition, everything that comes from land or benefits from it comes from
1
land9, Immovable Property is anything that is attached to the land and cannot be severed.
Although this definition suffices, it is also important to examine the definition provided by The
Transfer of Property Act.
10
In the case of “Byramjee Jeejeebhoy (P) Ltd. V. State of Maharashtra”10, A lease, according
2
to the Supreme Court, is a transfer of a right to enjoy land for a term or in perpetuity in exchange
for a price paid or promised or service or other valuable things to be rendered on a regular or
stipulated basis by the transferor of the property.
1
A simple reading of the Transfer of Property Act definition reveals that it is, in fact, negative
in nature. This means that, with the exception of standing timber, growing crops, and grass,
everything included in the definition of immovable object is an immovable property.

“Lease” is defined under Section 105 of the Transfer of Property Act –

1
A simple reading of the section reveals that a lease transfers the mere right of enjoyment
associated with the immovable property in exchange for a consideration that is periodically
replenished. A leasing agreement's parties are known as the “Lessor” and “Lessee”. The
transferor is known as a “lessor”, and the transferee is known as a “lessee”.

“License” is defined under section 52 of the Easement Act, 1882 as –

1
A simple reading of the section reveals that the licence is nothing more than a permit to do
1
something related to the property. In contrast to a lease, there is no actual transfer of complete

81
Article 3(26), THE GENERAL CLAUSES ACT, No. 10 of 1897, INDIA CODE
9
Shiv Dayal V. Pattu Lal, 140 Ind Cas 491 (1933)
10
AIR 1965 SC 590

4
 7
TRANSFER OF PROPERTY ACT
SEMESTER V
1
enjoyments; instead, only a specific enjoyment associated with the property that would
otherwise constitute trespass is transferred.

VI. LEASE AGREEMENT:

10
A lease is defined as an agreement between two parties (the Lessor and the Lessee) to transfer
8
an interest in real estate. Leases are discussed in Section 105 of the Transfer of Property Act.
A lease of immovable property is a transfer of the right to enjoy such property for a specific
9
time, express or implied, or in perpetuity, in exchange for money, a share of crops, service, or
any other valuable item to be rendered to the transferor on specified occasions by the transferee,
15
who accepts the transfer on such terms. Because this is a contractual relationship between the
Lessor and the Lessee, the essential requirements of a valid contract must be met as per The
14
Indian Contract Act of 1872. The main pieces of legislation governing lease deed registration
are the “Registration Act of 1908” and The Transfer of Property Act of 1882”.

VII. Essential elements of lease11: -

1
 The subject matter of the lease, also known as the objective of the lease agreement,
must be specified in the contract in order to fulfil the requirements of the agreement. It
19
is needed that the objective of the transfer of the right of the immovable property, the

11 2
N. Krishnamoorthy & Prasanth Kumar Singh – Transfer of property Act, 1882, Edition 2008

5
 TRANSFER OF PROPERTY ACT
SEMESTER V

services and profit decided upon and any other relevant information be written down
in the lease contract.
16
 The existence of two or more parties is required for a lease agreement in order to ensure
that the rights to the immovable property are transferred in an appropriate manner.
20
 A lease agreement can be established for immovable property or assets only. It is not
possible to do this with movable property. The immovable property will be used in
accordance with the terms of the leased space, and the rights to the property will be
traded between the lessor and the lessee.
 It is essential to have lawful consideration in order to fulfil the requirements of a lease
contract.
18
 The duration of a lease agreement is an essential component that indicates the
beginning of the contract as well as the length of time for which the services and rights
will be transferred.

2
VIII. RIGHTS AND LIABILITIES OF LESSOR AND LESSEE:

Section 108 of the Transfer of Property Act, 1882 expresses the rights and liabilities of both
lessor and lessee

Rights of the Lessor:

6
 TRANSFER OF PROPERTY ACT
SEMESTER V
2
 The lessee has the right to recover the rent as stated in the lease agreement.
 The lessor has the right to reclaim possession of his property if the lessee violates the
terms and conditions of the lease agreement.
 The lessor has the right to seek compensation from the lessee if his property is damaged
as a result of the lessee's actions.
2
Liabilities of the Lessor:

 Duty to disclose defects-

The Lessor has a duty to disclose the property's defects to the Lessee prior to entering
into the lease agreement.

 Obligation to deliver possession-

2
After signing the lease agreement, the Lessor should grant the Lessee possession of his
property.

 Make a pact for quiet enjoyment-

2
When the Lessee follows the terms and conditions of the lease agreement and pays the
rent on time, the Lessor should not terminate the lease agreement.
2
In the case of “Jaswant Singh Mathura Singh V. Ahmedabad Municipal Corporation”12,
The court ruled that the lease creates rights and interests in the property and that the
tenant is entitled to keep possession of the property until the lease is fully terminated.

Rights of the Lessee:

2
• Right to repair property-

If the Lessor fails or is unable to repair the property, the Lessee may repair it himself.
2
That amount can later be deducted from the rent or recovered from the Lessor.

12
AIR 1991 SC 2130

7
 TRANSFER OF PROPERTY ACT
SEMESTER V

• Ability to remove fixtures-

If the Lessor fails or is unable to repair the property, the Lessee may repair it himself.
2
That amount can later be deducted from the rent or recovered from the Lessor.

• The right to reap crop benefits-

Lessor also has the right to enjoy the benefits of the property during the lease period
and to collect the benefits from the crops on the property as specified in the lease
agreement.

Liabilities of the Lessee:

• Duty to disclose facts-

The Lessee must disclose to the Lessor all true facts about the property.

• Rent payment obligation-

It is the Lessee's responsibility to pay the rent to the Lessor as specified in the lease
agreement.

• Obligation to maintain property-

The lessee is obligated to keep the property in good condition and return it to the Lessor
in the same condition that the Lessor handed over the property during the agreement,
and the lessee should also allow the Lessor or his agent to inspect the property..

IX. MODES OF DETERMINATION OF LEASE:

6
Modes are defined in Section 111 of the Transfer of Property Act 1882 as A lease of
immovable property determines-
 By efflux of the time limited thereby.

8
 7
TRANSFER OF PROPERTY ACT
SEMESTER V

 where such time is conditionally limited on the occurrence of some event-by the
occurrence of such event.
6
 In the event that the lessee's and lessor's interests in the entire property become
vested in the same person at the same time.
 By implied surrender.

2
X. KINDS OF LEASE:

There are many kinds of leases are followed in India. Section – 105 of the Transfer of
Property Act, 1882 recognizes only three main kinds of leases namely
5
 Leases for a set period of time- Leases for a set period of time In the section, the word
“certain” means that it is fixed or capable of being made certain at a later date. The time

9
 TRANSFER OF PROPERTY ACT
SEMESTER V

frame must be guaranteed. The lease period, terms, and conditions must be set or
guaranteed.
2
In the case of “Lord Kenyon in Goodright D Hall V. Richardson”13 , The court stated
2
that the certainty did not have to be determined at the time. If, in the course of time, a
2
day arrives that makes it certain, that is sufficient for such a lease.
5
 Periodic leases-Periodic leases are leases that are typically held for a fixed period of
time. This type of lease includes a lease for a set period of time, such as a month-to-
month or year-to-year lease.
2
In the case of “S.Rajeev Singh V. Punching Associates”14, Periodic leases are defined
as leases with a term that is continuous from period to period.
2 5
 Leases in perpetuity- A lease in perpetuity is a type of lease that is held for an extended
period of time. It is also known as a long-term lease or a permanent lease. The lease is
passed down from generation to generation in this case.
2
In the case of “Commissioner of income tax , Assam V. Panbari Tea Co Ltd”15, It was
decided that when the Lessor's interest was divided for a price, the paid price is the
premium, but the periodic payment for the enjoyment of benefits is a rent; in this case,
the premium is a capital income and the rent is a revenue receipt.

3
XI. What is the doctrine of frustration under Section 56 of the ICA?

Section 56 of the ICA provides for two types of contractual impossibility:

3
(a) An agreement to do an impossible act is void from the start; and

13 2
1789 2 Term Rep462
14
AIR 2008 Del 56
15
AIR 1965 SC 1871

10
 TRANSFER OF PROPERTY ACT
SEMESTER V
3
(b) An agreement to perform an act that becomes impossible after the agreement is made due
to the intervention of some event that the promisor could not prevent becoming void at the
stage of such event's occurrence.

3
Using the frustration defence renders the agreement void, which means that the agreement and
3
the parties' obligations are terminated. Performance impossibility may imply physical
impossibility, i.e. the subject-matter of the agreement has been destroyed or is no longer in
existence, or performance of the contract has become impracticable or useless in light of the
3
contract's object and purpose when it was entered into. However, the supervening events should
be such that they take away the very basis of the contract. (Satyabrata Ghose v. Mugneeram
Bangur & Co.)

Applicability of Section 56 of ICA to leases

In “Sushila Devi And Anr vs Hari Singh And Ors”16, The Supreme Court addressed the
applicability of Section 56 of the ICA to lease agreements, observing that once a valid lease
3
exists, even if through an agreement, the agreement to lease disappears and is replaced by the
completed conveyance - the lease. The lessee now owns the property in addition to the
3
contractual right granted by the agreement. Section 56 of the ICA applies only to contracts and
cannot be applied to a completed conveyance.

4
XII. Model Tenancy Act:

The draught Model Tenancy Act, written by the Ministry of Housing and Urban Affairs in
2020, was approved by the Union Cabinet in 2021. According to the 2011 Census, nearly one

16
1971 AIR 1756

11
 TRANSFER OF PROPERTY ACT
SEMESTER V

crore residential properties are unrented or unoccupied in metropolitan regions. Among the
4
concerns are various issues in landlord-tenant relationships, fear of repossession, nonpayment,
late payment, damage to the premises, delayed court procedures, archaic local rental laws for
4
each State that has not been modified in decades, and so on. With the Model Tenancy Act,
2021, the Union Cabinet hopes to upgrade and improve the status of rent regulations after two
years of declaration and one year of drafting.

Because each state has already had local rent laws, when the Model Tenancy Law goes into
effect, state governments can either enact and adopt entirely new rent legislation to replace the
previous Rent Act, or they can amend their existing rent law to include the Model Tenancy
Law'sprovisions.

XIII. CONCLUSION AND SUGGESTION:

13
The lease is addressed in Chapter V, Sections 105-117 of the Transfer of Property Act of 1882.
The lease is a crucial concept in real estate law. The majority of individuals around the world

12
 TRANSFER OF PROPERTY ACT
SEMESTER V

will own estate, either their own or by paying rent or a premium for a third-party's property.
As a direct consequence, understanding leases is critical not only for lawyers but also for all
2
citizens, because everybody will own estate at some point in their lives. If a person enters into
a lease agreement without knowing or having a reasonable understanding of leases, he or she
2
may be misled and fail to have a proper lease agreement. A lease is simply a contract between
a lessor and a lessee for a set period of time. There needs to be clarity regarding the lease's
2
duration, term, amount to be paid, when and how it is to be paid, and so on. Violation of the
rules, regulations, provisions, and terms of the rental agreement is illegal and punishable by
law. A rental agreement is a smart option if both the lessor and lessee perform well. As a result,
17
we can gain a basic understanding of what a lease is, who the lessor and lessee are, and what
their respective rights and liabilities are.
2
“Property exists by grace of the law. It is not a fact, but a legal fiction” -Max Stimer

13
 Similarity Report ID: oid:9832:23991691

61% Overall Similarity

Top sources found in the following databases:
58% Internet database 4% Publications database
Crossref database Crossref Posted Content database
28% Submitted Works database

TOP SOURCES
The sources with the highest number of matches within the submission. Overlapping sources will not be
displayed.

ijlsi.com
1 21%
Internet

ijlmh.com
2 17%
Internet

mondaq.com
3 6%
Internet

lawyersclubindia.com
4 4%
Internet

PES University on 2022-09-14

5 3%
Submitted works

kupdf.net
6 2%
Internet

thefactfactor.com
7 1%
Internet

Symbiosis International University on 2021-08-14

8 1%
Submitted works

Sources overview
 Similarity Report ID: oid:9832:23991691

NALSAR University of Law Hyderabad on 2022-04-28

9 <1%
Submitted works

"Lease and license", University/Law/Land Law, 2003-10-30

10 <1%
Publication

indianrealestateforum.com
11 <1%
Internet

Symbiosis International University on 2021-08-14

12 <1%
Submitted works

Symbiosis International University on 2020-03-13

13 <1%
Submitted works

maheshspeak.com
14 <1%
Internet

Symbiosis International University on 2019-08-06

15 <1%
Submitted works

Kensington College of Business on 2010-10-06

16 <1%
Submitted works

Tamil Nadu National Law University on 2019-03-22

17 <1%
Submitted works

legalpaathshala.com
18 <1%
Internet

Gujarat National Law University on 2012-03-15

19 <1%
Submitted works

Institute of Technology, Nirma University on 2015-04-15

20 <1%
Submitted works

Sources overview