A tenancy at will arises by mutual consent and can be determined by a demand for surrender of possession made by the landlord, as per S.106 of the Transfer of Property Act, 1882.

1. The material question that survives for consideration in this appeal is as to whether the appellant-plaintiff is entitled to recover possession of the leasehold, a building let out for the doing business, without proper quit-notice under S.106 of the Transfer of Property Act, 1882 (hereinafter referred to as the Act). The lease was for a term of three months from 1-1-1967. It is also provided in the lease deed, Ext. Al, that after the expiry of the term of three months on demand by the appellant-lessor, the respondent-lessee shall at his expense surrender possession of the leasehold without any objection and without raising any contest. The parties also agreed that if the lessee continues in possession after the term, he shall pay to lessor the stipulated rent of Rs. 15 /-per month, during such period. We will quote these relevant clauses:

2. The appellant sent Ext. A2 lawyer's notice dated 12-7-1971 stating that the tenancy is terminated with effect from 30-7-1971. This notice reached the respondent on 16-7-1971. He sent Ext. A3 reply notice. It is common case that rent till and inclusive of that for June 1971 has been paid and accepted and that rent offered was not accepted by the appellant thereafter. The suit was filed on 23-8-1971.

3. There is no evidence in this case to support the contention raised on behalf of the respondent in the course of the argument before us that the appellant had made an earlier demand for surrender of possession of the leasehold at some time after the expiry of the term of three months. The evidence of pw. 1, an attestor to Ext. Al and the husband of the appellant's uncle's daughter, which was relied on by the learned counsel for the respondent is: 'After 3 months the respondent did not surrender possession. I have demanded surrender of possession.' It is not clear as to which demand he refers; to, Ext. A2 demand or any other demand for surrender, of possession. Even assuming that the reference is to a demand other than Ext. A2 demand, we are unable to treat the demand, made by pw.1 as one competently made in the absence of proof of his authority to do so on behalf of the plaintiff-appellant. The respondent as dw.1 denies of any such demand for surrender after three months and prior to Ext. A2 notice. According to him the demand for surrender of the leasehold was for the first time made only by Ext. A2, lawyer's notice. We will therefore proceed to decide this appeal accepting the case advanced on behalf of the appellant that demand for surrender was made only as per Ext. A2 notice.

4. During the continuance of the lease, the lessor is not entitled to recover possession of the property leased. He can recover possession of it only on the determination of the lease. A lease for a term is determined by efflux of time. A lessee remaining in possession of the property after the lease has determined is a tenant at will or a tenant at sufferance depending upon whether his continuance in possession is or is not with the assent of the landlord. A tenancy at sufferance is therefore, obviously, not consensual in character and arises only by implication of law. This term is used to distinguish the quondam tenant who came into possession rightfully but remains in possession wrongfully from a trespasser whose entry into possession as also continuance of possession are wrongful. A tenancy at will is a new tenancy created by a bilateral act of offer and acceptance lessee's offer of taking a new lease evidenced by the lessee remaining in possession of the property 'after his term was over' and acceptance of that offer by the lessor evidenced by a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise'; Bhawanji v. Himatlal (AIR 1972 SC 819). Under the English law a tenancy at will is determinable at the will either of the landlord or of the tenant, and so the expression tenant at will.

"A tenancy at will is a tenancy under which the tenant is in