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Section 113: Waiver of notice to quit

Transfer of Property Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1882
Section 112 All 137 Sections of Transfer of Property Act Section 114

Legal Commentary & Landmark Judgments: Section 113

Section 113 codifies the doctrine of waiver of notice to quit, providing that a notice given under Section 106 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.

  • Bilateral Consent Standard: A notice given under Section 106 is waived with the express or implied consent of the person to whom it is given.
  • Affirmative Acts Showing Subsistence: Waiver occurs by any act on the part of the person giving the notice showing an intention to treat the lease as subsisting (e.g., accepting rent accrued after the notice period expires).
  • Distinction from Unilateral Waiver: Landlord cannot unilaterally waive a notice to quit; waiver requires bilateral consent of both landlord and tenant.
  • Second Notice Impact: Issuance of a second notice to quit generally operates as a waiver of the first notice, extending the tenancy.
Key Landmark Precedents:
  • Tayabali Jaffarbhai Tankiwala v. Asha & Co., (1970) 1 SCC 46: The Supreme Court authoritatively settled that under Section 113, waiver of a notice to quit requires a consensus ad idem between lessor and lessee to treat the lease as continuing; acceptance of rent for period after notice expiry creates a tenancy by holding over under Section 116.
  • Shanti Prasad Devi v. Shankar Mahto, (2005) 5 SCC 543: Reaffirmed that mere acceptance of mesne profits or rent during eviction litigation does not constitute waiver under Section 113.
Courtroom Practice & Strategic Litigation Guidance:

If you serve a Section 106 eviction notice, accept future payments strictly marked as 'without prejudice towards damages/use and occupation charges' to prevent the tenant from pleading Section 113 waiver.

Section 112 All 137 Sections of Transfer of Property Act Section 114