What distinguishes implied surrender under Section 111(f) of the Transfer of Property Act from surrender by express agreement under Section 111(e)?

Paragraph 15It is relevant to note that Section 111 of the TP Act contemplates different modes by which a lease may be determined. Section 111(e) deals with express surrender, whereas Section 111(f) deals with implied surrender.

Paragraph 16The concept of surrender, as contemplated under Sections 111(e) and 111(f) of the TP Act was succinctly explained by this Court in Shah Mathuradas Maganlal & Co. v. Nagappa Shankarappa Malage and Others[^4], wherein it was observed that surrender involves yielding up of the lessee’s interest to the lessor by mutual agreement. In case of implied surrender, the intention of the parties has to be gathered from the circumstances and conduct which demonstrate that the earlier relationship could no longer subsist. The relevant observation reads as follows:

Paragraph 17A similar view on the enunciation of law on surrender as crystallised in Shah Mathuradas Maganlal & Co. (supra) was elaborated by this Court in Vayyaeti Srinivasarao v. Gaineedi Jagajyothi[^5], wherein, while considering an analogous question concerning an agreement to sell executed between a landlord and tenant, this Court undertook a comprehensive examination of the concepts of express surrender, implied surrender and the consequences flowing therefrom under Section 111 of the TP Act. The relevant observations read thus: “5.3. The expression “express surrender” means the lessee yields his interest under the lease to the lessor by mutual agreement between them. In other words, express surrender means giving up of the interest in the premises under the lease to the lessor by mutual agreement between the lessor and the lessee. Express surrender necessitates that the lessee has given up possession of the holding. Surrender need not be in writing nor by a registered deed. However, if there is an abatement of rent, it should be only by a registered instrument for it effects a variation in the contract of tenancy. The effect of surrender under clause (e) of Section 111 of the Act is the determination of the lease. 5.4. Clause (f) of Section 111 of the Act deals with the rule of implied surrender. Implied surrender is by operation of law and it can occur by - i) the creation of a new relationship of lease, or ii) relinquishment of possession i.e., there is yielding of possession by the lessee and taking over of possession by the lessor. It is created by the acceptance of, and not by the mere agreement for a new relation which, in effect, estops the lessee from setting up the old one. Implied surrender of tenancy can be established by the conduct of the parties and from attending circumstances. Implied surrender is by the operation of law and takes place in spite of the intention of the parties. It may come into being in a number of ways, e.g., by acceptance of a new lease, or by unequivocal giving up of possession by the lessee as a lessee, or by re-letting to another person by the landlord, or by accepting of a sub-tenant as his tenant by the landlord. 5.5. Where the agreement to sell entered into by the parties clearly states that from the date mentioned in the agreement, the tenant in possession of the property intended to be sold under the agreement shall not be liable to pay any rent and shall alone be in charge of any damage caused to the property in question, it would imply a surrender of rights as a tenant vide B. Paramashivaiah v. M.K. Shankar Prasad, AIR 2009 Kar 88. 5.6. A surrender by operation of law determines the lease and extinguishes the rights of the lessee in respect of the property surrendered, from the date of the surrender and the estate vests immediately in the lessor. The term “surrender by operation of law” is used to describe all those cases where the law implies a surrender from unequivocal conduct of both the parties which is inconsistent with the continuance of the existing tenancy. 5.7. There is a distinction between an express and implied surrender inasmuch as while express surrender is a matter of intention of the parties, implied surrender is by implication of the law. An implied surrender is the act of the law and takes place independently of and in some cases even in spite of the intention of the parties.” (emphasis supplied)