Section 113 of the Transfer of Property Act, 1882: Waiver of Notice to Quit
Section 113 explains when a notice terminating a lease can be waived by the conduct of the person who issued it, with the express or implied consent of the recipient. It must be read with Sections 106 and 111(h) of the Transfer of Property Act, 1882, and any applicable tenancy or rent-control law.
Text of Section 113: Waiver of notice to quit
113. A notice given under section 111, clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.
Statutory illustrations
(a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders, and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.
(b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.
Meaning of waiver of notice to quit
A notice to quit is a notice intended to terminate a lease or tenancy. Under Section 111(h), a lease determines on the expiration of a notice to determine the lease or to quit, duly given by one party to the other. Waiver under Section 113 means that the earlier notice ceases to operate because the issuer acts in a manner indicating that the lease continues, and the recipient expressly or impliedly consents.
Essential conditions under Section 113
- A notice under Section 111(h): A notice terminating the lease must have been given.
- Conduct of the person giving notice: That person must perform an act indicating an intention to treat the lease as continuing.
- Consent of the recipient: The person to whom notice was given must consent, expressly or by conduct.
- Intention established from circumstances: The entire course of dealing must support continuation of the lease; an isolated payment or receipt does not automatically decide the issue.
Acceptance of rent and second notice
Rent after expiry of notice: As illustration (a) shows, acceptance of rent that becomes due after expiry of the notice may establish waiver where the conduct and consent indicate a subsisting tenancy. However, receiving money merely as compensation for use and occupation, or receiving payment while pursuing eviction, does not necessarily establish waiver. The description of the payment, communications and circumstances matter.
Issuing another notice: Illustration (b) treats a second notice to quit given to the occupant as lessee as waiver of the first notice. The legal result in a dispute still depends on the intention shown and the statutory requirement of consent.
Relationship with other provisions
Section 106 governs duration and termination notice for certain leases in the absence of a contract, local law or usage to the contrary. It ordinarily provides six months' notice for leases for agricultural or manufacturing purposes and fifteen days' notice for other purposes, subject to its terms and applicable law.
Section 112 addresses waiver of forfeiture under Section 111(g), while Section 113 addresses waiver of a notice to quit under Section 111(h). These are distinct grounds for determination of a lease.
Section 116 concerns holding over after determination of a lease when the lessor accepts rent or otherwise assents to continued possession, subject to statutory conditions. Waiver of an earlier termination notice and creation or renewal of a tenancy by holding over are separate legal questions.
Practical considerations in tenancy disputes
Parties should retain copies of termination notices, proof of service, rent receipts, bank records, correspondence and any subsequent notice. A court may examine whether rent relates to a period before or after termination, whether payments were accepted without prejudice, whether an eviction proceeding was pending, and whether the recipient consented to continuation of the tenancy. State rent-control legislation and the terms of a valid lease may affect the outcome.
Frequently asked questions
Does accepting rent always waive a notice to quit?
No. Waiver requires conduct showing an intention to continue the lease and the recipient's express or implied consent. Acceptance of payment alone is not conclusive in every case.
Can waiver be implied?
Yes. Section 113 expressly recognizes implied consent, and the intention to continue the lease may be inferred from conduct.
Is waiver of forfeiture the same as waiver of notice?
No. Section 112 concerns forfeiture under Section 111(g); Section 113 concerns a notice under Section 111(h).
Official legal source
For the current central Act and its amendments, consult the India Code official legislative database and search for the Transfer of Property Act, 1882 (Act 4 of 1882), Sections 106 and 111 to 116. Applicable State legislation and judicial decisions should also be checked.