Kerala High Court
Madhavan Vydiar vs Janaki on 2 March, 1973
Equivalent citations: AIR 1973 KERALA 278, 1973 KER LT 490
JUDGMENT K. Bhaskaran, J.
1. Sri P. M. Balasubramoniam, the learned counsel for the appellant in the second appeal filed by the defendant, has stressed in his argument mainly one point; and that relates to a question of law pertaining to suit notice under Section 106 of the Transfer of Property Act. The relevant portion of Section 106 of the T. P. Act reads as follows:--
"...........and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.
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2. The plaintiffs case, briefly stated, is as follows:-- One Pokken, father of the plaintiff, was the owner of the Property in which the plaint schedule shop building is situate. Under the said Pokken one Kumaran, brother of the defendant, was a lessee, the date of lease being 1-3-1952 and the rate of rent being Rs. 6/- per month. There is no written agreement with respect to the lease. After the death of Pokken, the defendant had attorned to the plaintiff's brother, and later to the plaintiff, when the property in question was allotted to her in partition. On 29-10-1968 the plaintiff issued Ext A-3 notice to the defendant demanding surrender of the plaint schedule building with arrears of rent by 30-11-1968. To quote the actual words used--
"Athukondu 1968 November 30 am theevathikkakathu 1-5-1967 muthalkkulla vaatakayum palisayum ee notice chilavu 12 Ka 50 Paisavum ente kakshikku kotuthum etuppa utava theertha entekakshikku ozhiniukotuthum laksva prakaram karvam theerkendathanennum veezhcha varuthival aavaka nivarthikalk-kavi ente kakshi vyavaharappetunnathanennum............"
3. The Question is whether in and by Ext. A-3 notice there has been a proper and valid termination of the defendant's tenancy.
4. P. W. I is the husband of the plaintiff. He has admitted in the witness box that he had no direct knowledge about the date on which the tenancy commenced though in the plaint it has been stated that the lease in favour of Kumaran was on 1-3-1952. The allegation in the plaint, according to P. W. 1, was based on information furnished by the defendant. However, unfortunately for the plaintiff, the defendant neither in his written statement nor in his evidence as D. W. 1 supported this assertion of P. W. 1: all that the defendant could remember was that he got possession of the building from his brother Kumaran on 12-2-1952. According to him, his brother had tenancy right even as early as 1.2-2-1951. There is evidence in this case that even prior to 1-3-1952 either Kumaran or the defendant was in possession of the building. The plaintiff has not alleged or proved that this tenancy start-ed prior to 1-3-1952 has been terminated and a new tenancy has been commenced between the parties on and from 1-3-1952. No reliable material has been placed before the Court to take the view that the tenancy in question started on 1-3-1952 as alleged in the plaint. In other words, the tenancy of the date 1-3-1952 set up by the plaintiff has not been proved.
5. Reliance is placed by Shri P. P. Ananthanaravana Iyer, the learned counsel for the respondent, on the recitals in Exts. B-7 and B-10 for drawing an inference that the tenancy must have commenced on the 1st of March 1952 as alleged in the plaint, not on 12-2-1951 or 12-2-1952 as contended by the defendant. Ext. B-7 is a receipt evidencing payment of rent of Rs. 36/- for six months from 1-11-1966 to 30-4-1967 at the rate of Rs 6/- per month. Ext. B-10 is a receipt for payment of rent at the rate of Rs. 6/-, per month for six months from 1-11-1967 to 30-4-1968- All that these receipts can establish is that the rent was at the rate of Rs. 6/- per month and that during the relevant period rent was paid on a monthly basis commencing from the first day of the month and ending with the last day of the month. This does not, however, throw any light on the date of commencement of the tenancy which is the most relevant factor while considering the validity and sufficiency of Ex. A-3 notice.
6. Sri Ananthanaravana Iyer has also placed reliance on the decision reported in Venkataeopal v. Rangappa. (1884) ILR 7 Mad 365 where a Full Bench of the Madras High Court has held as follows:---
"Payment of rent in a particular form at a certain rate for a number of years is not only presumptive evidence of the existence of a contract to Ray rent in that form or at that rate for those years, but is also presumptive evidence that the parties have agreed that it is obligatory on the one party to pay and the other to receive rent in that form and at that rate, so long as the relation of landlord and tenant may continue."
This, I find, would only go to shew that there may arise a presumption (which, of course, is a rebuttable one) that the parties had been paying and receiving rent on a monthly basis as agreed to between them. It is not helpful to draw any inference as to the date of commencement of tenancy.
7. The counsel for the appellant submits that even assuming, without conceding, that the tenancy commenced from 1-3-1952 as is contended by the plaintiff, the order of eviction passed by the trial court and confirmed by the first appellate court, cannot sustain, as Ext. A-3 is not a proper notice terminating the tenancy in terms of Section 106 of the T. P. Act. In Sarada v. Kumaran. 1969 Ker LT 133. Krishnamoorthy Iver J. has observed as follows:--
"In view of the decisions of their Lordships of the Supreme Court in Abbasbhai v. Gulamnabi (AIR. 1964 SC 1341) Mangilal v. Sugan Chand. AIR 1965 SC 301 and Manujendra v. Purnedu (AIR 1967 SC 1419) a termination of the lease is necessary before the filing of a petition for eviction."
The learned counsel for the respondent points out that though in the earlier portion of the notice it has been stated that the surrender was to be made before 30-11-1968, in the later portion what has been stated is as follows:--
"Ningalute kutiyayma ee notice moolam 30-11-1968-am theeyathiyotukooti avasanippichirikkunnu ennum ningale ethinal ariyichirikkunnu".
I do not think that even if this portion is read along with the earlier portion matters will improve much for the respondent. The correct position seems to be that the tenancy has to be terminated either on the day on which the monthly tenancy commenced or at the end of the day preceding that date with a further stipulation that vacant possession of the building has to be given on the next day. This is the view that has been taken in Mania Bala v. Prodosh Ranian. AIR 1971 Assam & Naga 97. wherein it has been observed as follow:--
"Hence the notice under Section 106, Transfer of Property Act in the instant case will have to terminate the tenancy by the end of the 20th by demanding vacant possession on 21st of the month. By Ext. 6 the tenancy was terminated and vacant possession was demanded by the end of 21st Falgoon 1'370 B. S. Since the tenancy commenced on 21st of the Bengali month, it ended on 20th of the next month. Hence the notice should have terminated the tenancy by the end of 20th Falgoon and vacant possession should have been demanded by the end of 20th Falgoon or on 21st Falgoon. ............."
8. While considering the question of termination of tenancy it is profitable to note the illustration given at page 619 of Mulla's Transfer of Property Act. Fourth Edition--
"A let a house to B on the 1st of July. On the 11th of December of the same year. A gave notice to B as follows: 'if the house you occupy is not vacated within a month from this date I will file a suit against you for ejectment as well as for recovery of rent at an enhanced rate'. Thus was not a valid notice but merely a reauesl to vacate accompanied by a threat";
In V. Kamalaksha Pai v. Keshava Bhatta. 1971 Ker LJ 538 = (AIR 1.972 Ker 110) Krishna Iyer J. has observed as follows: --
"Granting a landlord-tenant relationship between the parties and further granting that both the leases arc capable of being terminated by notice to quit, unless there are special circumstances, we may construe the provisions regarding the determination of the lease by a notice under Section 106 of the Transfer of Property Act liberally so as to relate to the only case out of the two that subsists. The rule has been to make lame and inaccurate notices sensible where the recipient cannot have been misled as to the intention of the giver (Mulla. Transfer of Property Act (5th Edn) p. 666). A liberal construction is put upon a notice to quit so that it is not defeated by minor errors. In the present case, there is no circumstance which may reasonably mislead the defendant or preiudice him if Ext. A-2 is accepted as a lease that bound the plaintiff and the defendant in jural relationship."
The context in which the observation quoted above was made could be understood from the following sentences immediately preceding it:
"A notice has been sent in this case and no finding, nor even an issue, that the lease has not been terminated validly has been made. But the specific contention is that what was terminated was the supposed lease created by Ext. A-l while what is required, if the relief on the alternative lease pleaded by the defendant ought to be granted is the termination of the earlier lease''.
In the instant case the position is this: In Ext. A-3 notice the plaintiff stated that the tenancy commenced on 1-3-1952. The defendant in Ext. A-5 reply stated that the tenancy was on 12-2-1952. In these circumstances the plaintiff should have Proved that the tenancy commened or 1-3-52 and that it has been terminated by a valid notice under Section 106 of the T. P- Act, Or should have treated the date of commencement of the tenancy as 12-2-19,52 as put forward by the defendant in his reply notice and terminated the tenancy by a notice in terms of Section 106 of the T. P. Act. If the plaintiff thought that the date of commencement of the tenancy as put forward by the defendant was not acceptable to her, she could have in Ext. A-3 notice at least given an option to the defendant to vacate on another definite date if according to the defendant the tenancy did not terminate on the 30th November 3968. The plaintiff courted the difficulty by asserting that the tenancy commenced on 1-3-1952 and failing to prove it. She also gave no option to the defendant to vacate on a definite date on which, as per the defendant's assertion, the tenancy would end. It has been observed by the Supreme Court in Firm Srinivas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177.
"A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings".
The benefit of such a view is not available to the plaintiff because she did not choose to give the option to the defendant placing reliance on his admission or assertion.
9. The learned counsel for the respondent argues that in the case of holding over, the need for compliance with Section 106 of the Transfer of Property Act with reference to the original tenancy may not arise. This does not appear to be the correct position in law. In Mohamed Kani v. Meeran Kuniu. 1971 Ker LT 704 = (AIR 1972 Ker 63) Moidu J. has observed as follows: --
"In a case where there is clear proof of holding over after the expiry of the original term contained in the lease the provisions of Section 106 of the T. P. Act would operate and a notice to quit is absolutely necessary."
Considering all these aspects of the matter I have no hesitation in holding that Ext. A-3 is not a proper notice terminating the tenancy of the defendant.
10. One other contention raised by the learned counsel for the appellant is that there has been pleading in the written statement that the building was being used for the purpose of manufacturing medicine and as such, in terms of the earlier Part of the provisions contained in Section 106 of the T. P. Act, the defendant was entitled to get six months' notice for vacating the premises. The correctness of this assertion is disputed by the learned counsel for the respondent. I do not, however, think that it is necessary to so into this matter in this second appeal, in view of the fact that I have already taken the view that even treating it as a monthly tenancy the termination of the tenancy in and by Ext. A-3 is not proper and valid.
The second appeal is, therefore, allowed and the judgment and decree of the courts below in so far as they relate to recovery of possession of the plaint schedule property are set aside. The decrees of the courts below in so far as they relate to the arrears of rent will stand. Needless to say plaintiff will be at liberty to institute proper Proceedings at a later stage, if she is so advised, in due compliance with the requirements of Section 106 of the T. P. Act In the circumstances of the case there will be no order as to costs Leave to appeal granted.