Lease [either from locatio, Lat., the letting of property, or laisser, Fr., to let, or leapum, or leasum, Sax., to enter lawfully], sometimes also called demise (demissio), is a grant of property for life, or years, or from year to year or at will, by one who has greater interest in the property. The person granting is called the lessor, who is possessed of the reversion (as to a reversion being essential to a lease, see 1 Platt on Lease, pp. 9 et seq.); he to whom the property is granted, the lessee. The consideration is usually the payment of a rent or other annual recompense. The ancient operative words were 'demise, lease, and to farm let,' or 'demise and lease.'
The (English) Law of Property Act,1925, makes a distinction between leases for years which become legal estates if they consist of terms of years absolute and leases for life which have been converted into merely equitable interests if created under a settlement, but by s. 149 of the Act leases for life at a rent or in consideration of a fine have been converted into terms of 90 years, terminable by notice as there provided. A term of years absolute is defined [see s. 205 (xxvii.) of the Act] as a term of years, whether or not at a rent either certain or determinable, but not a lease for life or lives, or (not after 1925) limited to take effect in possession within 21 years as required by the Act; see infra.
Until 1926, under a lease for years, except a lease operating under the Statute of Uses, the lessee must have entered into the leased premises, for before entry he had only an interesse termini by virtue of his Common Law assurance, a right which could be assigned, but not surrendered, and which did not prevent the merger of two estates by its interposition, nor itself occasion a merger. The interest in a term in futuro is also called the interesse termini. By the (English) L.P. Act, 1925, s. 149, the doctrine of interesse termini was abolished and as from1st January, 1926, all terms of years absolute, whether created before or after that date, take effect from the date fixed for commencement of the term without actual entry, and a term at a rent or in consideration of a fine limited after 1925 to take effect more than 21 years from the date of its creation is void, a contract for such a term is also void but leases of an equitable interest under settlement or power to mortgage in settlements, or by way of indemnity and like purposes under the settlement are excepted from the prohibition, and a further exception to the rule is made by sub-s. (5) of s. 149, which saves legal terms taking effect in reversion expectant on a larger term.
The (English) Law of Property Act, 1925, ss. 51 to 55, reproducing and amending the Statute of Frauds, ss. 1, 2 and 3, and the (English) Real Property Act,1845 (8 & 9 Vict. c. 106), s. 3, requires that for the purposes of creating a legal estate all leases are to be by deed except leases taking effect in possession for term not exceeding three years and to the best rent which can be reasonably obtained without taking a fine, and such excepted leases may be made otherwise than by deed, i.e., by parol. The doctrine of part performance is not affected [s. 55(d)]. Under that doctrine leases which would be void because they are not made by deed may be enforceable as an agreement upon the same terms as if the lease had been granted, Walsh v. Lonsdale, (1882) 21 CD 9. Further, all agreements for a lease except a lease which may be made by parol (see above) must in all cases be in writing; (English) L.P. Act, 1925, s. 40 (reproducing part of s. 4 of the Statute of Frauds), unless the agreement is partly performed and specifically enforceable, see Maddison v. Alderson, (1883) 8 App Cas 467. Agreements which are not in writing and not specifically enforceable are interests at will only (see (English) L.P. Act, 1925, s. 54). Possession by the tenant and receipt of rent by the landlord are good evidence of a tenancy.
By the (English) Judicature Act,1925, s. 56, causes
for the specific performance of contracts for leases are assigned to the Chancery Division of the
High Court. See LANDLORD AND TENANT; COMPENSATION; GOODWILL; APPORTION-MENT; FORFEITURE; CONDITION; RENEWAL; also Chitty's Statutes, tit. 'Landlord and Tenant'; and consult Foa, Woodfall or Redman on Landlord and Tenant.
It includes a counterpart, kabuliyat, and undertaking to cultivate or occupy and an agreement to lease. [Registration Act, 1908 (16 of 1908), s. 2 (7)]
The normal connotation of the term lease is the preservation of the demised estate to be in occupation and enjoyment thereof for a specified period or in perpetuities for consideration; the corpus by user thereof does not disappear and at the expiry of the term or on termination the same is handed over to the lessor subject to the terms of the contract, express or implied, State of Karnataka v. Subhash Rukhmayya Guttedar, AIR 1993 SC 860: (1993) Supp 3 SCC 290.
An agreement for a lease, which a lease is by the Indian Registration Act declared to include, must be a document which effects an actual demise and operates as lease. It must create a present and immediate interest in land--a contingent agreement was not a lease within cl. (d) of section 17(1), Mangan Lal Deoshi v. Mohammad Moinul Haque, AIR 1951 SC 11: (1950) SCR 833.
Means a lease as defined in s. 105 of the Transfer of Property Act, 1882', Jai Dutt v. Stateof Uttar Pradesh, AIR 1979 SC 1303: (1979) 2 SCC 586: (1979) 2 SCR 175. [Registration Act, s. 2(c)]
A lease is a transfer of a right to enjoy the property, Tirath Ram Gupta v. Gurubachan Singh, AIR 1987 SC 770: (1987) 1 SCC 712.
The test to ascertain whether an instrument is a licence or lease, the substance of the document must be preferred to the form; the real test is the intention of the parties; if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property on which the legal possession continues with the owner, it is a licence; if under the document a party gets exclusive possession of the property, 'prima facie', he is considered to be a tenant, Associated Hotels of India Ltd. v. R.N. Kapoor, AIR 1959 SC 1262.
Means a lease of immovable property, and includes also--
(a) a patta;
(b) a kabuliyat or other undertaking in writing, not being a counterpart of a lease, to cultivate, occupy, or pay or delivery rent for, immovable property;
(c) any instrument by which tolls of any description are let;
(d) any writing on an application for a lease intended to signify that the application is granted. [Indian Stamp Act, 1899 (2 of 1899), s. 2(16)]
The essential elements of a lease are:
1. the parties
2. the subject matter, or immovable property
3. the demise, or partial transfer
4. the term, or period
5. the consideration, or rent, Puran Singh Sahni v. Sundari Bhagwandas, (1991) 2 SCC 180 (189). (Transfer of Property Act, 1882, s. 105)
A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value , to be rendered periodically or on specified occasion to the transferor by the transferee, who accepts the transfer on such terms. (Transfer of Property Act, 1882, s. 105)