Analysis of Notice under Section 111(g) TPA

The Indispensable Role of Notice under Section 111(g) of the Transfer of Property Act, 1882: A Scholarly Examination

Introduction

Section 111(g) of the Transfer of Property Act, 1882 (hereinafter "TPA") provides for the determination of a lease by forfeiture. This provision is pivotal in the governance of landlord-tenant relationships in India, outlining specific circumstances under which a lessor may prematurely terminate a lease due to certain actions or omissions by the lessee. A critical component of this statutory mechanism is the requirement for the lessor to give notice in writing to the lessee of his intention to determine the lease. This article undertakes a comprehensive analysis of this notice requirement, examining its nature, scope, mandatory character, and its interplay with other legal provisions, including State-specific Rent Control Acts. The analysis draws substantially from judicial pronouncements that have shaped the interpretation and application of this facet of Indian property law.

Understanding Forfeiture and the Genesis of Section 111(g) Notice

A lease of immovable property determines by forfeiture under Section 111(g) of the TPA in two primary scenarios:

  • (1) In case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or
  • (2) In case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself.

The Supreme Court in Raja Mohammad Amir Ahmad Khan v. Municipal Board Of Sitapur And Another (1965 AIR SC 1923) emphasized that for forfeiture to occur due to denial of the landlord's title, such denial or renunciation must be clear, unambiguous, and unequivocal. Mere assertions of more favorable terms or historical enjoyment do not automatically amount to a repudiation warranting forfeiture (Raja Mohammad Amir Ahmad Khan v. Municipal Board Of Sitapur And Another, 1965 AIR SC 1923, citing Maharaja of Jeypore v. Rukmini and Vithu v. Dhondi).

Crucially, Section 111(g) contains a proviso: "and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease". This notice is a condition precedent to the lessor's right to re-enter or file a suit for ejectment based on forfeiture. The Supreme Court in Namdeo Lokman Lodhi v. Narmadabai And Others (1953 AIR SC 228) considered whether this notice requirement applied to leases executed before the TPA came into force. It was held that the provision in Section 111(g) as to notice in writing, as a preliminary to a suit for ejectment based on forfeiture of a lease, is not based on any principle of justice, equity, or good conscience and thus would not automatically govern leases made prior to the TPA or those otherwise not governed by it (e.g., certain agricultural leases, as discussed in Somti Parkash v. Natha And Another, 1963 SCC ONLINE P&H 246). In such non-TPA governed cases, the institution of a suit for ejectment itself might be considered a sufficient manifestation of the intention to determine the lease (Somti Parkash v. Natha And Another, 1963 SCC ONLINE P&H 246, citing Rama Iyengar v. Gunisami Chetti, AIR 1919 Mad 897, which was approved in Namdeo Lokman Lodhi).

The Nature and Essential Elements of the Section 111(g) Notice

The notice mandated by the proviso to Section 111(g) has distinct characteristics:

  • Form: It must be in writing.
  • Parties: It must be given by the lessor or his transferee to the lessee.
  • Content: The notice must clearly express the lessor's "intention to determine the lease." The Bombay High Court in ZULQARNAIN ZULFIQAR HUSSAIN SAIFI v. DHIRAJLAL JAGJIVANDAS SANGANI AND 2 OTHERS (2010, Bombay High Court) affirmed that the intention of the landlord in issuing the notice is to be gathered from a reading of the notice, and that compliance with Section 111(g) requires conveying this intention.
  • Purpose: It serves as a formal communication that the lessor is exercising their right to end the lease due to a forfeiture incurred by the lessee. It is not a notice seeking remedy (which is covered under Section 114A for specific breaches) but a declaration of termination.
  • Service: While Section 111(g) itself does not detail the mode of service, general principles applicable to notices under the TPA would apply. For instance, the Delhi High Court in Ramesh Chand v. Messrs. Delhi Cloth & General Mills Co. Ltd. (1972, Delhi High Court), dealing with notice service, held that refusal to accept a registered notice can be deemed sufficient service, imputing knowledge of its contents to the addressee. The Allahabad High Court in Yashpal Lala Shiv Narain v. Allatala Tala Malik Waqf Ajakhan Mus (2005, Allahabad High Court), while discussing notice requirements (likely under Section 106 TPA as amended in U.P.), mentioned that notices must be signed and can be sent by post, delivered personally, or affixed to the property if other methods are impracticable. These general principles would lend guidance to the service of a Section 111(g) notice.

Mandatory Nature and Non-Waiver of the Section 111(g) Notice

Where the Transfer of Property Act, 1882, applies, the requirement of giving a written notice of intention to determine the lease under Section 111(g) is generally considered mandatory. The Calcutta High Court in Chandra Nath Mukherjee v. Chulai Pashi (1958 SCC ONLINE CAL 54; also cited as Calcutta High Court, 1958 in Ref 5) unequivocally held that "the statutory requirement of notice specified in Section 111(g) of the Transfer of Property Act cannot be waived by contract and must prevail". This underscores the imperative nature of the notice as a statutory safeguard. The court emphasized that since no such notice was served by the plaintiff-appellant, he was not entitled to treat the lease as determined.

This mandatory character, for TPA-governed leases, distinguishes it from situations where principles of justice, equity, and good conscience might permit determination without formal notice (as discussed in Namdeo Lokman Lodhi for pre-TPA leases). The Supreme Court's observations in V. Dhanapal Chettiar v. Yesodai Ammal (1979 SCC 4 214, Ref 21), citing Ratan Lal v. Vardesh Chander (1976) 2 SCC 103, that the requirement of written notice in Section 111(g) is not based on any general rule of equity, must be understood in the context that its origin is statutory. For leases to which the TPA applies, the statute mandates the notice. The Ratan Lal case itself found that a landlord's assertion of forfeiture in a written statement in a prior suit could constitute sufficient manifestation of intention, thus satisfying the underlying principle of an unequivocal act, rather than dispensing with the need for such manifestation altogether.

Distinction from Other Notices under the Transfer of Property Act

The notice under Section 111(g) must be carefully distinguished from other notices contemplated by the TPA:

  • Notice under Section 106 TPA: This notice is for the termination of leases from year to year, or month to month, in the absence of a contract or local law or usage to the contrary (determination under Section 111(h) TPA). It is a "notice to quit" that brings a subsisting periodic tenancy to an end. The Section 111(g) notice, conversely, is an "notice of intention to determine the lease" consequent upon a forfeiture already incurred by the lessee. The Supreme Court in V. Dhanapal Chettiar v. Yesodai Ammal (1979 SCC 4 214) highlighted that the notice spoken of in clause (g) of Section 111 is a "different kind of notice" (Ref 13).
  • Notice under Section 114A TPA: This section provides for relief against forfeiture in certain cases, specifically for breach of an express condition other than one against assigning, underletting, parting with possession, or disposing of the property leased, or a condition for forfeiture on the lessee being adjudged an insolvent. Section 114A requires the lessor to give a notice in writing to the lessee specifying the particular breach complained of, and if the breach is capable of remedy, requiring the lessee to remedy the breach, and in any case, requiring the lessee to make compensation in money for the breach. This notice under Section 114A must be given before a suit for ejectment is filed, and the lessee must fail to comply within a reasonable time. The Calcutta High Court in Chandra Nath Mukherjee v. Chulai Pashi (1958 SCC ONLINE CAL 54) and the Allahabad High Court in Bishan Singh And Others v. Iii Addl. District Judge, Kanpur Nagar And Others (1993, Allahabad High Court) clarified that the notice under Section 114A is distinct from the notice under Section 111(g). The Section 114A notice offers an opportunity to avoid forfeiture for remediable breaches, whereas the Section 111(g) notice is a declaration that the lessor intends to determine the lease due to an incurred forfeiture.

Interplay with Rent Control Legislations

The applicability of TPA provisions, including the Section 111(g) notice requirement, in the context of premises governed by State-specific Rent Control Acts presents complexities. The Supreme Court in V. Dhanapal Chettiar v. Yesodai Ammal (1979 SCC 4 214) held that for initiating eviction proceedings against a tenant under State Rent Control Acts, a notice to quit under Section 106 of the TPA is not necessary. The rationale is that Rent Control Acts are special statutes providing a comprehensive code for tenant eviction, and the grounds for eviction specified therein operate independently of the TPA's provisions for termination of contractual tenancy.

While Dhanapal Chettiar primarily focused on Section 106 notice, it did observe that the Section 111(g) notice is "a different kind of notice" (Ref 13). The judgment further stated: "Only in those State Acts where a specific provision has been made for the giving of any notice requiring the tenant either to pay the arrears of rent or to do or not to do a particular thing within a specified time, failing which the tenant will be liable to be evicted, then and then alone the notice will have to be given" (Ref 13, V. Dhanapal Chettiar v. Yesodai Ammal, 1979 SCC 4 214). This implies that if a Rent Control Act itself prescribes a specific notice for a ground of eviction analogous to forfeiture (e.g., subletting without consent, as in Shalimar Tar Products Ltd. v. H.C Sharma And Others, 1988 SCC 1 70, which operated under the Delhi Rent Control Act), that statutory scheme would prevail. If the Rent Act is silent on a specific notice requirement for a particular act of forfeiture but recognizes such an act as a ground for eviction, the question of whether the TPA's Section 111(g) notice would still be required remains a subject of careful consideration, depending on the overriding effect of the specific Rent Act. Generally, Rent Acts aim to protect tenants, and any procedural safeguards, including notice, are strictly construed.

Waiver of Forfeiture (Section 112 TPA)

Section 112 of the TPA deals with waiver of forfeiture. A forfeiture under Section 111(g) is waived by any act on the part of the lessor showing an intention to treat the lease as subsisting, provided he is aware that the forfeiture has been incurred. Common examples include acceptance of rent which has become due since the forfeiture, or distress for such rent, or any other act affirming the tenancy. However, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver.

It is important to distinguish waiver of forfeiture under Section 112 from waiver of notice to quit under Section 113 (which applies to notices under Section 111(h)). The Allahabad High Court in Smt. Sharda Sharma v. Smt. Gulab Devi Dhwon (1971 SCC ONLINE ALL 364) highlighted this distinction, clarifying that acceptance of payments during the pendency of an ejectment suit, when claimed by the landlord as damages for use and occupation, does not automatically constitute waiver of notice to quit under Section 113, nor would it necessarily waive a forfeiture already acted upon by issuing a Section 111(g) notice and filing suit.

Conclusion

The notice requirement under the proviso to Section 111(g) of the Transfer of Property Act, 1882, is a cornerstone of the law relating to determination of leases by forfeiture in India. For leases governed by the TPA, this written notice of the lessor's intention to determine the lease is generally mandatory and cannot be contractually waived, as affirmed by judicial precedents like Chandra Nath Mukherjee v. Chulai Pashi. It is distinct in its purpose and nature from notices under Section 106 (notice to quit) and Section 114A (notice before forfeiture for remediable breaches).

While the principles of justice, equity, and good conscience may inform the determination of leases not strictly governed by the TPA (such as pre-TPA leases or certain agricultural tenancies), the statutory mandate of notice under Section 111(g) remains paramount for applicable leases. The interplay with State Rent Control legislations adds another layer of complexity, often with the special Act's provisions overriding the general law of the TPA if specific notice regimes are provided for eviction on grounds akin to forfeiture.

Ultimately, the Section 111(g) notice serves as a formal, unequivocal communication from the lessor, crystallizing the act of forfeiture and paving the way for recovery of possession. Adherence to this requirement is crucial for lessors to validly exercise their right of re-entry, ensuring that the determination of the lease by forfeiture is effected in accordance with the due process of law.

References

(Primary reference materials as provided have been integrated into the text with parenthetical citations. Key statutes and cases include):