Supreme Court of India· 13 August 2026
What must the agreement to sell itself show for a court to infer that the landlord intended to surrender the tenancy, as distinguished from R. Kanthimathi?
NAZIM SHAIKH HASAN v. NASIR MUSHTAQ SHAIKH
2026 INSC 853 · SPECIAL LEAVE PETITION (CIVIL) NO.17699 OF 2026
Coram: Prashant Kumar Mishra; N.V. Anjaria
Answer
It must contain an express stipulation, akin to the acknowledgment in R. Kanthimathi that possession had 'already been surrendered', showing the landlord's willingness to change the jural relationship; an agreement that instead provides for the tenant to hand back possession 'as it was' shows no such intention.
Headnote
Transfer of Property Act, 1882 — s.111(e), s.111(f), s.53A, s.54 — Registration Act, 1908 — s.17(1A) — Surrender of tenancy — Agreement to sell — Part performance —
Transfer of Property Act, 1882 — s.111(e)(f) — Surrender — Mere agreement to sell insufficient —
Held: The mere execution of an agreement to sell between a landlord and tenant, even on part payment, does not ipso facto determine the tenancy. Determination requires an express or implied surrender under Section 111(e) or (f) of the Transfer of Property Act. (¶20, 21)
Surrender — Terms of the agreement — Reversion of possession negatives surrender —
Held further: Surrender must appear from the agreement's own terms or conduct inconsistent with continuing tenancy — as in R. Kanthimathi, where possession was expressly acknowledged as already surrendered. The present agreement instead provided for reversion of possession "as it was" if the loan fell through, negativing any surrender. (¶12, 22)
Section 53A — Part performance — Possession must be referable to the agreement —
Held further: Continuous possession as a tenant after an agreement to sell is not part performance under Section 53A unless referable to the agreement rather than the antecedent tenancy. Having entered as a tenant, the petitioner could not show his possession had become that of a transferee. (¶18, 24)
Registration Act, 1908 — s.17(1A) — Unregistered agreement — No s.53A protection —
Held further: An unregistered agreement to sell executed after the 2001 amendment to Section 17(1A) of the Registration Act has no effect for the purposes of Section 53A. The petitioner could not invoke that protection, and the Special Leave Petition was dismissed. (¶25, 29)
In the Court's own words
Paragraph 12On a careful perusal of the above adjudication, it is evident that the agreement to sell executed therein contained an express stipulation that the demised property had already been surrendered to the possession of the tenant, which was consciously incorporated to indicate the willingness of the landlord to effect a change in the jural relationship. The intention of the parties was clearly discernible from the terms of the agreement to sell itself. It is equally significant that such willingness flowed from the fact that a substantial part of the consideration Rs.20,000/- out of Rs.25,000/- had already been paid by the tenant, leaving only a balance of Rs.5,000/- to be paid at the time of registration. The decision in R. Kanthimathi (supra) was thus one rendered entirely on its own peculiar facts, turning on the specific language employed in the agreement to sell and the near-complete payment of consideration thereunder.
Paragraph 14A plain reading of the aforesaid recitals makes it evident that the agreement to sell executed in the present case contains no stipulation indicating that the possession of the petitioner/defendant thereafter would be referable to the agreement to sell, nor does it provide for cessation of the obligation to pay rent or otherwise evince an intention to alter the subsisting landlord-tenant relationship. The marked distinction between the terms of the present agreement to sell and those considered in R. Kanthimathi (supra) necessitates an examination of whether the tenancy stood determined in law by way of either express or implied surrender under Section 111 of the Transfer of Property Act, 1882[^3].
Paragraph 22The terms of the agreement to sell itself lend further reinforcement to this conclusion. Clause 4 of the agreement to sell expressly stipulates that in the event the loan of the petitioner/defendant is not sanctioned within the stipulated period, the agreement would stand cancelled and the petitioner/defendant would be required to hand over possession of the shop back "as it was in the previous condition." This recital is wholly consistent with the continuance of the tenancy and, in fact, proceeds on the clear premise that the existing possession of the petitioner/defendant was referable to the tenancy and not to the agreement to sell. Far from evidencing a change in the jural relationship, this demonstrates that the parties themselves contemplated a reversion to the status quo ante upon the failure of the sale.
Acts & Sections
Transfer of Property Act, 1882 — s.111(e)Transfer of Property Act, 1882 — s.111(f)Transfer of Property Act, 1882 — s.53ATransfer of Property Act, 1882 — s.54Registration Act, 1908 — s.17(1A)One judgment a day. That's the whole habit.
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