Thinking through Timelines: Acceptance of Rent Amounts to Waiver of Termination of Lease?

On June 24, 2022, the Supreme Court of India while deciding the matter of Sri K.M. Manjunath Vs. Sri Erappa G,[i] held that mere acceptance of rent by landlord after the expiry of lease would not amount to waiver of termination of lease.



The dispute in this matter arose in connection with unregistered lease agreements for the lease of shop premises at Banaswadi Main Road, Bengaluru. Pursuant to the expiry of the last lease deed executed between the parties, the respondent-lessor filed a suit for ejectment before the Small Causes Court against the petitioner-lessee to obtain vacant possession of the shop premises. The Small Causes Court dismissed the suit for ejectment on the grounds that the suit was not maintainable as there was no valid termination of tenancy under section 106 of the Transfer of Property Act, 1882 (“ToP Act”) (detailed hereinbelow).

Aggrieved by the aforesaid dismissal, the respondent-lessor preferred a revision petition before the Karnataka High Court (“High Court”). Upon appreciation of the evidence on record, which inter alia consisted of unregistered lease agreements executed between the parties during the period of 1989 to 1995, the High Court noted that the duration of the lease agreements could be inferred to be for a period of 11 (eleven) months each, and thus the lease granted thereunder stood terminated by efflux of time. Hence, the petitioner-lessee was not entitled to notice under section 106 of the ToP Act. The High Court thus set aside the judgement of the Small Causes Court.

The petitioner-lessee thereafter filed a special leave petition (“Special Leave Petition”) before the Supreme Court challenging the judgment and final order of the High Court.


Applicable Provisions and Contentions


The primary contention in the matter was the applicability of section 106 of the ToP Act, which provides that where there is no written contract for the lease of immovable property, not being leased for agricultural or manufacturing purposes, the period of the lease shall be deemed to be from month to month and terminable by 15 (fifteen) days’ notice. The contention of the petitioner-lessee before the Small Causes Court was that no valid notice was served by the respondent-lessor as per this provision. On the basis of the aforesaid, the Small Causes Court ruled in favour of the petitioner-lessee. However, based on the aforementioned evidence evaluation, the High Court determined that the lease in this case stood determined by virtue of section 111(a) of the ToP Act, which provides that a lease may come to an end by efflux of time limited therein.

The Supreme Court, in the Special Leave Petition, took note of the contention of the petitioner-lessee that after the expiry of the period of the last lease agreement, the petitioner-lessee was continuing as a tenant in sufferance and had paid the rent till the date of the filing of the suit for ejectment.




Considering the above provisions and contentions, the Supreme Court appreciated the reiteration of the High Court, based on the precedents relied upon by the High Court, that mere acceptance of the rent does not amount to a waiver of the termination of the tenancy. The Supreme Court, however, granted the request of the petitioner-lessee for a grant of time to vacate the shop premises by allotting a period of 6 (six) months from the date of its judgement to hand over the possession of the shop premises to the respondent-lessor. The aforesaid extension was granted subject to the petitioner-lessee submitting an undertaking on affidavit to pay the arrears of rent at the rate of INR 1400/- (Indian Rupees One Thousand Four Hundred only) per month for the arrears pending from the year 2017 (as determined by the High Court) and extending to the aforesaid period of 6 (six) months.

Accordingly, the Supreme Court upheld the decision of the High Court and dismissed the Special Leave Petition for being devoid of merit.


The Takeaway


The reaffirmation of the Supreme Court on non-waiver of termination in this matter reinforces the significance of capturing the duration of the lease in crystal clear terms in lease agreements. Detailing timelines for termination and notice period is just as important. As seen in the facts of the discussed case, the absence of such agreed timelines can further complicate disputes arising between the parties. Hence, customising such timelines on a case-specific basis is critical, while adopting timelines based merely on common practice is best avoided.


[i]Petition For Special Leave To Appeal (C) NO.10700 OF 2022 filed before the Supreme Court Of India, Civil Original Jurisdiction.

Image Credits: Photo by  Tierra Mallorca on Unsplash

The reaffirmation of the Supreme Court on non-waiver of termination in this matter reinforces the significance of capturing the duration of the lease in crystal clear terms in lease agreements. Detailing timelines for termination and notice period is just as important. 


Property Rights of an Unborn Child in India

While most debates surrounding the existence of a person before birth and after death are theological or philosophical in nature which could go on endlesslythe debate concerning the right of yet-to-be-existent person needs to be settled conclusively. Especially, ascertaining property rights of an unborn is essential as it has a direct implication on the rights of other existent individuals. Although the Indian laws recognize the existence of an unborn as a legal person, rights are not granted until the birth of the child. Further, while a child in a mother’s womb is considered as person for many purposes, the extent of the unborn child’s personal or proprietary rights has not been categorically determined. The unborn is regarded by legal fiction as already born for creation of interest in property.  

Moreover, the right to life has been guaranteed as a fundamental right to everyone under Article 21 of the constitution of India, which may be deemed to include an unborn child. Renowned scholars have also opined that ‘the State should not discriminate between persons who have taken birth and persons who are still in the womb of a mother’. Therefore, the State is under an obligation under Article 21 not only to protect the life of an unborn child from arbitrary and unjust destruction but also not to deny it equal protection under Article 14.i  

Further, judicial pronouncements have tried to shed some light on the status and rights of an unborn child. In the case of Tagore V. Tagoreii, the Supreme Court observed that foetus/infant in a womb is a person in existence for the purpose of making a gift to an unborn child. Subsequently, in the case of Jabbar V. Stateiii, the Court has also held that the term ‘person’ would include an unborn child in the mother’s womb after seven months of pregnancy. This would mean that it is capable of being spoken of as a person if its body is developed sufficiently.  

Property Rights of an Unborn under the Transfer of Property Act, 1884 (“TP Act”): 

Under the Transfer of Property Act, 1882, any property (movable or immovable) can be bequeathed in favour of an unborn child. However, an interest created in favour of an unborn is contingent on the occurrence of birth. Further, interest cannot be transferred directly to an unborn, it must be transferred to another living person or a trust must be created for the purpose.  

Section 13 of the Transfer of Property Act reads as follows: 

‘Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transfer in the property.’ 

As the above provision defines an unborn child is a child or a baby in its mother’s womb. A person yet to be born does not have any existence and is not counted as a living person, still the property can be transferred to the unborn child/baby. 

Section 20 of the Transfer of Property Act reads as under:  

Where, on a transfer of property, an interest therein is created for the benefit of person not then living, he acquires upon his birth, unless a contrary intention appears from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth.’ 

Therefore, an unborn child i.e. an Infant En Ventre Sa mere can attain definite rights and inherit property only if he/she is born alive and such rights can be vested in the hands of his/her trustees.   

Conditions required for the transfer of property to an unborn child: 

  1. Absolute interest must be made in the favour of unborn child; 
  1. Creation of prior life interest in favour of a person who is in existence on the transfer date. 

As soon as the unborn child takes birth, the property rights immediately get transferred in his/her name. Post which he or she will be the sole owner of the property. 

Property Rights of an Unborn under the Hindu Succession Act, 1956: 

According to the Mitakshara school of law, a son by birth acquires an interest in the ancestral property of the joint family. Whereas, under the Dayabhaga school, the son has no automatic ownership right by birth but acquires it on the demise of his father.iv 

The conflict has been somewhat resolved by the express acknowledgment under Section 20 of the Hindu Succession Act, 1956 which recognises the rights of a child in the womb; 

A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born, before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.’ 

In the case of FM Devaru Ganapati Bhat V. Prabhakar Ganapati Bhatv, the Court held that ‘There is no ban on the transfer of an interest in favour of an unborn person. Section 20 permits an interest being created for the benefit of an unborn person who acquires interest upon his birth. Where the donor gifted the property in favour of the appellant, then living, and also stipulated that if other male children are later born to her brother they shall be joint holders with the appellant, the court also held that such stipulation is not hit by Section 13 of the Act. Creation of such a right is permissible under Section 20 of the Act. 

Mulla on Hindu Law, Fifteenth Edition, contains a commentary by the author while dealing with Section 20 of the Hindu Succession Act, 1956  The commentary reads thus: 

It is by fiction or indulgence of the law that the rights of a child born justo matrimonio are regarded by reference to the moment of conception and not of birth and the unborn child in the womb if born alive is treated as actually born for the purpose of conferring on him benefits of inheritance. The child in embryo is treated as in esse for various purposes when it is for his benefit to be so treated. This view is not peculiar to the ancient Hindu law but one which is adopted by all mature systems of jurisprudence. This section recognises that rule of beneficent indulgence and the child in utero although subsequently born is to be deemed to be born before the death of the intestate and inheritance is to be deemed to vest in the child with effect from the date of the death of the intestate.” 


Therefore, it is pertinent that the status of a human being in the making and the related rights are expressly clarified through adequate legislation. Judicial pronouncements, though binding, have been varying and evolving. In a country where even a defamed deceased has right to sue, it is essential that the property rights of future citizens are secured adequately.  


Image Credits: Photo by Ashton Mullins on Unsplash

It is pertinent that the status of a human being in the making and the related rights are expressly clarified through adequate legislation. Judicial pronouncements, though binding, have been varying and evolving.