Section 108 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 108 is the rulebook that applies between landlord and tenant when the lease does not say otherwise. This first article covers the opening words and clauses (a) to (j): the lessor's three duties and the lessee's rights, from repairs to removing fixtures to sub-letting. The lessee's duties, clauses (k) to (q), are in the second article on section 108. This is explained as per the text of the Act consulted.
"In the absence of a contract or local usage to the contrary", the lessor must disclose a material defect the lessee cannot discover with ordinary care, give possession on request, and let the lessee hold the property without interruption while rent is paid. The lessee's rights include: accessions fall within the lease, the lease is void at his option if the property is destroyed or made unfit, repair-and-deduct rights, removal of fixtures, crops on a lease of uncertain duration, and the right to transfer, mortgage or sub-let his interest.
Source note
The text consulted is a publisher's print of the Act showing amendments up to the Transfer of Property (Amendment) Act, 2002 (3 of 2003); later amendments should be checked. Parts of section 108 are in square brackets, which marks inserted or substituted wording. Two printing features should be noted. The opening words read "the rules next followed", which reads as though "following" was meant. And the sub-heading "(B) Rights and liabilities of the lessee" stands before clause (d), so in the copy clauses (d) to (q) all appear under it, although clauses (d) to (j) are rights and (k) to (q) are duties.
The section applies "in the absence of a contract or local usage to the contrary", and only to such of the rules as are applicable to the property leased. For what a lease is, see our article on section 105; for how a lease is made, see the article on section 107. If you need these points set out in a lease, our agreement drafting service can do it.
(A) Rights and liabilities of the lessor: clauses (a) to (c)
| Clause | The lessor |
|---|---|
| (a) | Is bound to disclose to the lessee any material defect in the property, with reference to its intended use, of which the lessor is aware and the lessee is not, and which the lessee could not discover with ordinary care |
| (b) | Is bound on the lessee's request to put him in possession of the property |
| (c) | Is deemed to contract that, if the lessee pays the rent reserved and performs the contracts binding on him, he may hold the property during the time limited by the lease without interruption |
After clause (c), the text adds that the benefit of that contract is annexed to and goes with the lessee's interest, and may be enforced by every person in whom that interest is vested.
Example. Rohit lets an office to Zoya knowing of seepage hidden behind new paint that she cannot discover with ordinary care. Clause (a) required Rohit to disclose it.
(B) The lessee's rights: clauses (d) to (j)
(d) Accession. If during the lease any accession is made to the property, it is deemed comprised in the lease, subject to the law on alluvion for the time being in force.
(e) Destruction or unfitness. If, by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property is wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease is void at the option of the lessee. The proviso: if the injury was caused by the wrongful act or default of the lessee, he cannot use this benefit.
(f) Repairs by the lessee. If the lessor neglects to make, within a reasonable time after notice, any repairs he is bound to make, the lessee may make them himself and deduct the expense with interest from the rent, or otherwise recover it from the lessor.
(g) Payments the lessor should make. If the lessor neglects to make any payment which he is bound to make and which, if not made by him, is recoverable from the lessee or against the property, the lessee may make it himself and deduct it with interest from the rent, or otherwise recover it from the lessor.
(h) Removing fixtures. The lessee may, even after the determination of the lease, remove, at any time whilst he is in possession of the property leased but not afterwards, all things which he has attached to the earth, provided he leaves the property in the state in which he received it. What "attached to the earth" means is in our article on section 3.
(i) Crops on a lease of uncertain duration. When such a lease determines by any means except the fault of the lessee, he or his legal representative is entitled to all crops planted or sown by the lessee and growing on the property at that time, and to unhindered access to enter and leave the land to gather and carry them.
(j) Transfer, mortgage and sub-lease. The lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest, and any transferee may transfer again. The lessee does not, by reason only of the transfer, cease to be subject to the liabilities attaching to the lease. As printed, nothing in the clause authorises a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee. For sub-lease documents, see our guide on sub-lease agreements.
Summary of the lessee's rights
| Clause | Right | Condition |
|---|---|---|
| (d) | Accessions are within the lease | Subject to the law on alluvion |
| (e) | Treat the lease as void | Material part destroyed or substantially and permanently unfit by irresistible force; not if the lessee's own fault |
| (f) | Repair and deduct | Lessor's neglect within a reasonable time after notice |
| (g) | Make lessor's payment and deduct | Payment is one the lessor is bound to make and is recoverable from the lessee or the property |
| (h) | Remove things attached to the earth | While in possession; property left as received |
| (i) | Crops and access | Lease of uncertain duration ends without lessee's fault |
| (j) | Transfer, mortgage or sub-let | Liabilities under the lease continue; listed tenants excluded |
Practical points
- Landlords: disclose hidden defects before letting; clause (a) turns on what the lessee could not find with ordinary care.
- Tenants: give written notice of a needed repair and keep proof, because clause (f) runs from notice and a reasonable time.
- Fixtures and sub-letting: remove fixtures while in possession; a sub-letting lessee stays liable, and the lease may restrict transfers.
- Rent control and licence versus lease: a separate law may apply, and a licence is different from a lease; see our guide on license versus lease listed under Read next.
Need help with lessor and lessee terms?
Because section 108 gives way to the contract, the lease itself is where these rights are settled. Our agreement drafting team can prepare a lease that sets out disclosure, repairs, fixtures and transfer rights clearly.
Key takeaways
- Section 108 applies where the lease or local usage does not say otherwise.
- The lessor must disclose hidden material defects, give possession on request and not disturb a paying lessee.
- The lessee may avoid the lease if the property is destroyed or made unfit by irresistible force, unless it is his own fault.
- The lessee may repair or pay and deduct from rent in the cases stated.
- Fixtures may be removed while in possession, leaving the property as received.
- The lessee may transfer, mortgage or sub-let, but stays liable under the lease.
Read next
- Section 108: duties of the lessee, rent, repairs and use
- Section 107: how a lease is made
- Sub-lease agreement: legality, format and consent
- License versus lease: key legal differences
Disclaimer: Based on a publisher's print of the Transfer of Property Act, 1882 showing amendments up to the Transfer of Property (Amendment) Act, 2002 (3 of 2003), as consulted on 2 October 2026. State amendments, later amendments, stamp duty and registration charges are not covered and should be checked. This article is general information, not legal advice; check the official text before acting.