Section 108 - Rights and Liabilities of Lessor and Lessee
An explanation of the rights and duties of landlords and tenants under Section 108, including the complete substance of clauses (a) to (q).
Section 108 of the Transfer of Property Act, 1882 lays down the default rights and obligations of a landlord (lessor) and tenant (lessee) in a lease of immovable property. Its rules apply in the absence of a contract or local usage to the contrary, and only insofar as they are relevant to the leased property. Other applicable laws, including State rent-control legislation, may affect particular tenancies.
Under the official text of the Transfer of Property Act, Section 105 defines a lease as a transfer of a right to enjoy immovable property for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or money, a share of crops, service or another thing of value rendered periodically or on specified occasions. The transferor is the lessor, the transferee the lessee, the price the premium, and the periodic consideration the rent.
Section 108(A) - Rights and liabilities of the lessor
The lessor is the person granting the lease. Clauses (a) to (c) address disclosure of defects, delivery of possession and uninterrupted enjoyment when the tenant complies with the lease.
Clause (a) - Disclosure of material defects
the lessor is bound to disclose to the lessee any material defect in the property, with reference to its intended use, of which the former is and the latter is not aware, and which the latter could not with ordinary care discover;
Clause (b) - Delivery of possession
the lessor is bound, on the lessee's request to put him in possession of the property;
Clause (c) - Quiet enjoyment of property
the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contract binding on the lessee, he may hold the property during the time limited by the lease without interruption. The benefit of such contract shall be annexed to and go with the lessee's interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.
Section 108(B) - Rights and liabilities of the lessee
The lessee is the person receiving the right to enjoy the property. Clauses (d) to (q) regulate the lessee's rights concerning accessions, damage, repairs, fixtures, crops and transfers, and duties concerning disclosure, payment, maintenance, lawful use and return of possession.
Clause (d) - Accession to the leased property
if during the continuance of the lease any accession is made to the property, such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease;
Clause (e) - Destruction or permanent unfitness
if by fire, tempest or flood, or violence of any army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void : Provided that, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself to the benefit of this provision;
Clause (f) - Repairs neglected by lessor
if the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor;
Clause (g) - Payments neglected by lessor
if the lessor neglects to make any payment which he is bound to make, and which if not made by him, is recoverable from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it from the lessor;
Clause (h) - Removal of fixtures
the lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased but not afterwards, all things which he has attached to the earth : provided he leaves the property in the state in which he received it ;
Clause (i) - Growing crops when uncertain lease ends
when a lease of uncertain duration determines by any means except the fault of the lessee, he or his legal representative is entitled to all the crops planted or sown by the lessee and growing upon the property when the lease determines, and to free ingress and egress to gather and carry them;
Clause (j) - Transfer, mortgage and sublease
the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease; nothing in this clause shall be deemed to authorize a tenant having an un-transferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee;
Clause (k) - Disclosure of valuable information
the lessee is bound to disclose to the lessor any fact as to the nature or extent of the interest which the lessee is about to take, of which the lessee is, and the lessor is not, aware, and which materially increases the value of such interest;
Clause (l) - Payment of premium and rent
the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf;
Clause (m) - Maintenance, inspection and restoration
the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act of default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left;
Clause (n) - Notice of encroachment or proceedings
if the lessee becomes aware of any proceeding to recover the property or any part thereof, or of any encroachment made upon, or any interference with, the lessor's rights concerning such property, he is bound to give, with reasonable diligence, notice thereof to the lessor;
Clause (o) - Prudent use and prevention of damage
the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto;
Clause (p) - Permanent structures
he must not, without the lessor's consent, erect on the property any permanent structure, except for agricultural purposes;
Clause (q) - Return of possession
on the determination of the lease, the lessee is bound to put the lessor into possession of the property.
Practical application of Section 108
Repairs: Clauses (f) and (g) permit specified expenses and payments to be recovered or deducted with interest when the lessor defaults on an obligation, subject to the statutory conditions. They do not automatically make the lessor responsible for every repair.
Subletting: Clause (j) states a default power to transfer or sublease a leasehold interest, but a valid contract to the contrary, statutory restrictions and the clause's exceptions must be considered.
Property damage: Under clause (e), destruction or permanent unfitness caused by the specified irresistible events makes the lease void at the lessee's option, not automatically, and not where the damage results from the lessee's wrongful act or default.
Expiry and possession: Clause (q) obliges the lessee to restore possession when the lease determines. Termination, notice, forfeiture, relief and holding over are addressed separately in Sections 106 and 111 to 116, subject to applicable special laws.
Related provisions and official reference
See Section 107 - How leases are made, Section 111 - Determination of lease, and the India Code official Act PDF. Registration requirements under the Registration Act, 1908 and applicable State tenancy or rent-control laws should also be checked.