Landlord Notice to Quit: What Section 106 Actually Requires

Work down these questions in order. Most people jump straight to the fifteen days figure and land on the wrong rule.

1. Does your lease deed or rent agreement state its own notice period? If it does, that is where you start, not with Section 106. The section opens with the words in the absence of a contract or local law or usage to the contrary, so a notice clause you signed is not something Section 106 sweeps aside. Read your own document first, front to back, including the termination clause and any lock-in.
2. Does the rent control law of your state cover this tenancy? State rent legislation can displace what follows, and it varies from state to state. If your premises fall inside it, that statute and the machinery it sets up drive the answer. Check the law of the state where the property is, not a national summary.
3. If your agreement is silent and no local law or usage governs, what is the lease for? Section 106 splits every lease into two buckets: agricultural or manufacturing purposes on one side, any other purpose on the other. Nothing else about the tenancy matters at this step.
4. Which bucket did you land in? Any other purpose means the lease is deemed to run from month to month and is terminable by fifteen days notice. Agricultural or manufacturing purposes means it is deemed to run from year to year and is terminable by six months notice.
5. Now check the two things almost everyone gets wrong. The period runs from the date the notice was received, not the date typed on it, and the notice has to have been given in one of the ways the section permits. Both are covered below.

A notice to quit has arrived, or you are about to send one, and somebody has told you the number is fifteen days. That number is real, it sits in Section 106 of the Transfer of Property Act 1882, and it is also the most misquoted figure in Indian tenancy law, because almost nobody quotes the fourteen words in front of it.

Those fourteen words are: in the absence of a contract or local law or usage to the contrary. Section 106 is a gap filler. It supplies a notice period for a tenancy whose paperwork never bothered to. It is not a floor that overrides what the parties agreed, and it is not a shield against a state rent control statute.

Where Section 106 does apply, it recognises exactly two categories.

The words of sub-section 1, in full:

• “In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.”

Read the words terminable, on the part of either lessor or lessee. The section is symmetrical. It is not a landlord power. A tenant who wants out of a month to month tenancy is working with the same fifteen days.

Two cautions on that table, and neither is a technicality.

The Act qualifies its own agricultural limb. Section 106 sits in the Chapter of the Act that deals with leases, and a later section in that same Chapter says this:

• “None of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the State Government may by notification published in the Official Gazette, declare all or any of such provisions to be so applicable in the case of all or any such leases, together with, or subject to, those of the local law, if any, for the time being in force.”

So for an agricultural lease the six month row is not automatic. It depends on whether the State Government has notified the provisions of that Chapter applicable to agricultural leases in that state, together with or subject to the local law. That qualification is written for agricultural purposes only. Manufacturing is not touched by it.

The Act does not tell you what counts as manufacturing or agricultural. There is no definition supplied for this purpose, the classification turns on the facts of the particular tenancy, and it is regularly fought over. It is worth fighting over, because it is the difference between fifteen days and six months, and on the agricultural side it can also decide whether that Chapter reaches the tenancy at all. If your tenancy is anywhere near that line, get it looked at by a lawyer before you rely on either number.

This is where a technically sound notice quietly fails, and where a tenant who thinks the clock has run out discovers it has not.

• “Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.”

Not the date typed at the top of the letter. Not the date it was posted. The date of receipt.

The practical consequences run both ways. A landlord who dates a notice on the first, posts it on the fourth and has it delivered on the ninth has started a clock that runs from the ninth. A tenant counting from the printed date will think the period expired several days before it actually did.

Keep the reach of that opening phrase straight in your head. Notwithstanding anything contained in any other law for the time being in force is doing one job, which is fixing the moment the clock starts. It does not convert Section 106 into an override of your signed agreement, and it does not answer the earlier question of whether the fifteen day or six month default applies to you at all. That question is settled by the opening words of sub-section 1, which begin with the contract.

Sub-sections 2, 3 and 4 are not part of the original 1882 text. They came in when Section 106 was substituted by Act 3 of 2003, with effect from 31 December 2002.

A great many tenants believe that if the notice gives them less time than the law allows, the notice is void and the landlord has to start again. That is not what the Act says, and the correction is worth understanding precisely, because it is conditional.

• “A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.”

The saving is real, and so is the condition attached to it. The short notice survives where a suit or proceeding is filed after the expiry of the period specified in sub-section 1, meaning the full statutory period, not the shorter period the notice itself named.

So the sub-section is not a licence to write any number you like into a notice. It rescues a notice whose stated period was too short in a case where nothing was actually done until the full period had run out anyway. If proceedings are launched before that full period expires, this sub-section is not what saves them. Read it as forgiving a drafting slip, not as deleting the notice period.

There is a second point every landlord sending a notice should know, and every tenant receiving one should know as well. The Act contains a separate provision headed waiver of notice to quit:

• “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.”

The clause it points to is the one under which a lease determines on the expiration of a notice to quit duly given by one party to the other, which is exactly the notice this page is about.

The Act supplies its own illustrations of that, and they are blunt. If a landlord gives notice to quit, the notice expires, and the landlord then accepts rent that became due after the notice expired, the notice is waived. If a landlord gives notice, the notice expires, the tenant stays on, and the landlord then serves a second notice to quit, the first notice is waived. A landlord who carries on accepting rent that falls due after the notice has expired, as though nothing had changed, may be undoing the very notice they sent.

Sub-section 4 sets out the form and the permitted routes:

• “Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.”

Broken into its parts, a notice must be:

• In writing. An oral notice to quit is not what this sub-section describes.
• Signed by the person giving it, or signed on that person's behalf.

And then delivered by one of these routes:

• Sent by post to the party who is intended to be bound by it.
• Tendered or delivered personally to that party.
• Tendered or delivered to one of his family or servants at his residence.
• If such tender or delivery is not practicable, affixed to a conspicuous part of the property.

Note what the sub-section does and does not say about post. It says sent by post. It does not name a particular postal product, and it does not say the notice fails if some other permitted route was used instead.

Ordinarily the agreement. Section 106 applies in the absence of a contract or local law or usage to the contrary, so a notice period you signed up to is not overridden by the section, it is the very thing the section stands back for. This surprises people because the fifteen days figure is usually quoted on its own, stripped of the words in front of it. Treat a notice clause in your rent agreement as the starting point, and treat Section 106 as what fills the gap when the paperwork is silent. If the tenancy is also covered by state rent control legislation, that statute has to be checked as well, since it can change the position again.

The sub-section does not say that. It permits the notice to be sent by post, or tendered or delivered personally to the party, or to one of his family or servants at his residence, or, where that tender or delivery is not practicable, affixed to a conspicuous part of the property. Registered post with acknowledgement due is popular for a different reason: it is easier to prove. Since the clock under Section 106 runs from the date of receipt, the person who gave the notice may one day have to show when it was received, and a postal receipt and an acknowledgement do that job far better than an assertion. That is an evidence point, not a statutory requirement, but it is a good enough reason to use it.

Not automatically, and this is the correction most worth taking away. The Act says a notice is not to be deemed invalid merely because the period mentioned in it falls short of the period specified, where a suit or proceeding is filed after the expiry of the period specified in sub-section 1. Note the condition carefully. What is compared is the filing date against the full statutory period, not against the ten days the notice named. So a short notice followed by a suit filed only after the full period had run is not knocked out on that ground alone. A short notice acted on before the full period expired is a different situation, and this sub-section is not what answers it. Either way, a short period is a point to raise with a lawyer rather than a defence you can assume.

From the date you received it. Sub-section 2 says the period mentioned in sub-section 1 commences from the date of receipt of notice, and it says so notwithstanding anything contained in any other law for the time being in force. The date printed on the letter is only evidence of when it was written. Keep the envelope, the courier slip or the postal acknowledgement, because that is what fixes the start of the period. This cuts both ways: a tenant may have more time left than the letter suggests, and a landlord who assumed the clock started on the date of drafting may be counting from too early a day.

A shop let out for retail selling is not usually described as agricultural or manufacturing, so it commonly falls into the any other purpose limb, which is the month to month, fifteen day default. That is a general observation and not a ruling on your tenancy. The Act supplies no definition for this purpose, the classification depends on the facts of the actual use, and premises that combine selling with some form of processing or making are exactly where the argument starts. Before you act, read what your own agreement says about the permitted use and the notice period, since that comes first in any event, and if there is any real doubt about the category, take advice from a lawyer in your state.

1. Read your lease deed or rent agreement first, in full, and find its notice and termination clauses. That document comes before Section 106.
2. Check whether the rent control law of the state where the property is located covers this tenancy.
3. Only if the agreement is silent and no local law or usage governs, work out which of the two Section 106 limbs the lease falls in.
4. Fix the date of receipt, not the date of drafting, and keep whatever proves it.
5. Put the notice in writing and have it signed by or on behalf of the person giving it.
6. Use one of the permitted routes: post, personal tender or delivery to the party or to a family member or servant at the residence, or, where that is not practicable, affixing to a conspicuous part of the property.
7. If you are the landlord, think hard before accepting rent that falls due after the notice expires, because the Act treats conduct showing an intention to treat the lease as subsisting as a waiver of the notice.
8. Where the agricultural or manufacturing question is even arguable, get local advice before you rely on either fifteen days or six months.

Some of the documents in this fight sit with government offices rather than with either party. A copy of a registered lease is held by the sub registrar, mutation and land record entries sit with the revenue office, and the notification history that decides whether a state has extended the leases Chapter to agricultural leases is a state government record. When a counter clerk refuses to give you any of these, a written request under the Right to Information Act is a cheap way to press for them. Our RTI drafting tool will put the request into shape, The RTI Playbook takes you from that application through to a first appeal, and the practical guides cover how these offices tend to behave in practice.

• Transfer of Property Act 1882, Section 106, sub-section 1, setting the two default limbs: agricultural or manufacturing purposes deemed a lease from year to year terminable by six months notice, and any other purpose deemed a lease from month to month terminable by fifteen days notice, in each case in the absence of a contract or local law or usage to the contrary, and terminable on the part of either lessor or lessee.
• Transfer of Property Act 1882, Section 106, sub-section 2, providing that notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section 1 commences from the date of receipt of notice.
• Transfer of Property Act 1882, Section 106, sub-section 3, providing that a notice is not deemed invalid merely because the period mentioned in it falls short of the period specified, where a suit or proceeding is filed after the expiry of the period specified in that sub-section.
• Transfer of Property Act 1882, Section 106, sub-section 4, on the form of the notice and the permitted modes of giving it: in writing, signed by or on behalf of the giver, and sent by post, or tendered or delivered personally to the party or to one of his family or servants at his residence, or where that is not practicable affixed to a conspicuous part of the property.
• Transfer of Property Act 1882, Section 106 in its present form was substituted by Act 3 of 2003, section 2, with effect from 31 December 2002.
• Transfer of Property Act 1882, Section 117, exempting leases for agricultural purposes from the provisions of that Chapter except so far as the State Government declares them applicable by notification in the Official Gazette.
• Transfer of Property Act 1882, Section 111, clause h, under which a lease determines on the expiration of a notice to determine the lease or to quit duly given by one party to the other, and Section 113, on waiver of such a notice by conduct showing an intention to treat the lease as subsisting, with the illustrations set out in the Act.