|
|
|
|
 |
 |
|
|
Article Published in the Express Magazine Dated
August 19,
2001
General Attorney : Rajiv K. Luthra
I was running a parlour in a rented
accommodation, and two months back there was a
fire in which all the shops, including mine, were
completely destroyed. My landlord is not willing
to invest in the construction of another shop as
he feels he cannot afford it and would rather sell
the land off. Can I reconstruct a shop in that
place at my expense, even if the landlord is not
interested, because although the land may not be
my own, the tenure of my tenancy still exists?
Rahul Chaudhry, Patna
It is not advisable for you to construct a new
shop on the site where the old structure stood,
without the consent of the landlord, as the same
may not be legally allowed. The Hon'ble Supreme
Court has upheld this view and has elaborately
discussed the issue of the subsistence of tenancy
under circumstances where the leased property has
been completely destroyed due to a natural
calamity.
Under section 108(B) (e) of the Transfer of
Property Act, in case a property is destroyed by
fire, tempest or flood, or violence of any army
the lease may be rendered void at the option of
the lessee provided that such injury to the leased
property has not been occasioned by the wrongful
act or default of the lessee. However, it has been
held by the Hon'ble Supreme Court that this
section cannot be interpreted to mean that the
tenant is entitled to squat on the open land in
the hope that in future if any shop is constructed
on the site, he would have the right to occupy the
same on the strength of the original contract of
tenancy. Where the tenancy is exclusively for
premises and not for land, on the destruction of
the property, due to a natural calamity, which is
the subject matter of tenancy, the tenancy stands
extinguished. The lease of a shop is the transfer
of the property for its enjoyment. On the
destruction of the shop, the tenancy cannot be
said to be continuing since the tenancy of a shop
presupposes a property in existence and there
cannot be a subsisting tenancy where the property
is not in existence. However, if the property in
issue is governed by the State Rent Act, the
provisions of the said Act may need to be looked
into. From your query, it is not clear whether
your tenancy comes within the purview of the
applicable State Rent Act or not.
We are entering into a family partition and, in
this regard, I wish to clarify who should pay the
stamp duty if the partition deed is silent on the
issue, as per the law?
Gurpreet Singh, Chandigarh
Section 29 of the Indian Stamp Act 1899 deals with
the question of which party to an instrument
should bear the stamp duty in the absence of an
agreement to the contrary between the parties. The
section declares that the expenses of providing
proper stamp duty on the instrument of partition
is to be borne by the parties there to in
proportion to the respective shares in the
property partitioned. The Collector can proceed to
recover duties and penalties in the manner
prescribed under the Act only against each of the
parties in respect of the proportionate amount of
the duty due from him. By "parties thereto" is
meant not merely the party or parties applying for
partition but all the co-sharers who must
necessarily be parties in the partition
proceedings and are equally bound to bear the
proposed stamp duty.
When the partition is made in execution of an
order passed by the revenue authority, civil court
or arbitrator, the expense of providing the proper
stamp duty is to be borne by the parties in such
proportion as directed by such authority, civil
court or arbitrator.
|
|
| |
|
|
|
|
|
