Madras High Court
Karthikeya Press, Printers And Book ... vs Madarsa Dawoodiya Arabic College ... on 4 March, 2002
JUDGMENT K. Govindarajan, J.
1. The 1st respondent/plaintiff filed the suits in O. S. Nos. 637 and 639 of 1987 against the appellants for recovery of possession of the suit properties and for damages on the basis that the 1st defendant-firm in the respective cases are the tenant with respect to the appellants' buildings in question leased out to the 1st defendant. By issuing a notice on 29. 10. 86 and terminating the tenancy, the 1st respondent/plaintiff sought for possession of the buildings leased out to the 1st defendant. Since possession was not handed over, plaintiff filed the above suits.
2. The defendants contested the suits contending inter alia that the suits are not maintainable as the civil court has no jurisdiction to sustain the suits. According to the defendants/tenants though the plaintiff is the trust, the proper remedy to recover possession is only under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter called the Act, as the plaintiff-trust is not exempted from the purview of the Act. It is also contended that the notice to terminate the tenancy is not in accordance with Sec. 106 of the Transfer of Property Act. It is further defended that since the plaintiff has come forward with the plea that the properties belong to the Wakf Board, and the competent person has; not filed the suits, the suits are not maintainable under the provisions of The Indian Wakf Act. In O. S. No. 639/87 the defendants have raised the additional defence stating that the suit is not maintainable for non-joinder and also misjoinder of parties.
3. The trial court rejecting the case of the defendants and accepting the case of the plaintiff decreed the suits as prayed for. So the defendants filed Appeal in A. S. Nos. 84 and 85 of 1991. The learned District Judge also concurred with the findings of the trial court dismissed the Appeals. Hence these Second Appeals.
4. The substantial questions of law that were formulated in these Second appeals are:
(1)Whether the civil court has jurisdiction to entertain a suit which is admittedly covered by the provisions of the Tamil Nadu Act 18 of 1960 and that there is no evidence to show that the property falls within the purview of G. O. Ms. No. 2000 Home Dated 16. 8. 1976?
(2)Whether the courts below were right in holding that it is for the defendants to establish that the property falls within the mischief of above G. O. and that since the defendants have not let in evidence to show that the property is not trust property, the suit is maintainable?
(3)Whether the courts below were right in entertaining the suit itself when P. W. 1 himself has stated in cross-examination that the property belongs to the Wakf Board when the Wakf Board has not instituted any suit, is it open to the President of the Madarasa Dawoodiya Arabic College Trust to institute a suit, particularly when there is no authorisation?
(4)Whether the notice terminating the tenancy is in accordance with the provisions of the Transfer of Property Act?
5. There is no dispute that the 1st appellant/1st defendant, the firm are the tenants under the 1st respondent/plaintiff with respect to the respective suit properties. It is also not in dispute that the plaintiff had issued notice on 29. 10. 86 asking the tenants to hand over possession of the suit properties on or before 30th November 1986.
6. Learned counsel appearing for the appellants submitted that -
(1)the 1st respondent/plaintiff has not established that they are public trust so as to enable them to get exemption from the provisions of the Act, granted under G. O. Ms. No. 2000, Home, dated 16. 8. 76;
(2) the notice of termination issued on 29. 10. 86 marked as Ex. A7 is not in accordance with and in compliance of the provisions of Sec. 106 of the Transfer of Property Act;
(3) though the plaintiff has claimed that the properties belong to the Wakf Board, it has not been established that they have registered their Wakf with the Wakf Board, and they have not obtained permission from the Wakf Board to sustain the suits;
(4) the suit in O. S. No. 639/87 cannot be sustained for non-joinder and also for mis-joidner of parties.
7. It is not in dispute that in both the cases, the notice under Ex. A7 dated 29. 10. 86 was issued under Sec. 106 of the Transfer of Property Act, by the plaintiff, asking the appellants/tenants to surrender vacant possession of the properties on or before 30. 11. 86. In view of the findings given by the courts below, we have to proceed only on the basis that the tenancy commences from the 1st of English calendar month. Under the notice marked as Ex. A7, it is specifically stated that "my client hereby terminates the tenancy and you are hereby called upon to surrender vacant possession of the building on or before 30th November 1986" Relying on these expressions in the notice, learned counsel for the appellants submitted that the tenancy was terminated by that notice dated 26. 10. 86, which came into effect on that day and so the said termination cannot be sustained in law. According to him, the monthly tenancy is terminable by expiry of 15 days notice from the date of giving notice, and the notice to terminate the tenancy must expire with the end of the month of the tenancy. On that basis he submitted that since Ex. A7 was issued on 29. 10. 86 terminating the tenancy with effect from 29. 10. 86, the same would be invalid under Sec. 106 of the Transfer of Property Act.
8. Learned counsel has relied on the decision in Y. Krishnamurthy v. A. Subba Rao, . In the said decision, the learned Judges dealt with the scope of the notice marked as Ex. A4, in which it is stated as follows:- "That my client hereby terminates the tenancy in your favour and requires you to vacate the premises by the end of Oct. , 1977 by which date the tenancy expires, failing which my client will be constrained to take appropriate steps against you in a Court of law for eviction. "
on the basis of the principles laid down by the Apex Court in the decision in Bhagwandas v. Bagvandas, , to the effect that if the notice terminates the tenancy with effect from an earlier date it would be clearly invalid, the learned Judge found that the words "hereby terminates" would indicate that the respondent intended to terminate the lease by that notice from that date itself and has given one month time to the appellants to vacate the premises. On that basis the learned Judge has held that the termination of lease was not according to law. With great respect to the learned Judge, I am not able to agree with the view taken by the learned Judge. The learned Judge has not appreciated the language of the notice in entirety. Though it is stated that "my clients hereby terminate the tenancy", it is further stated that "request you to vacate the premises by the end of October 1997 by which date the tenancy expires". The learned Judge has not considered the scope of the said expression in the notice.
9. Even in the decision referred to by the learned Judge in the abovesaid decision, namely, (supra), the Apex Court has held as follows:-
"3. Now, it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat. "The validity of a notice to quit" as pointed out by Lord Justice Lindley, L. J. in c "ought not to turn on the splitting of a straw". It must not be read in a hyper-critical manner, nor must its interpretation be affected by pedagogic pendantism or over refined subtley, but it must be construed in a commonsense way. See Harihar Banerji v. Ramsashi Roy, 45 Ind App 222 = (AIR 1918 PC 102). The notice to quit in the present case must be judged for its validity in the light of this well recognised principle of interpretation.
4. It is indisputable that under Section 106 of the Transfer of Property Act the notice to quit must expire with the end of the month of the tenancy or in other words, it must terminate the tenancy with effect from the expriation of the month of the tenancy. If it terminates the tenancy with effect from an earlier date it would be clearly invalid. Now, here the notice to quit required the respondents to vacate the premises "within the month of October 1962" and intimated to them that otherwise they would be "treated as trespassers from 1st November" in respect of the premises. The question is what is the meaning and effect of the words "within the month of October 1962" in the context in which they are used in the notice to quit? Do these words mean that the tenancy of the respondents was sought to be terminated at a date earlier than the expiration of the month of October 1962 and they were required to vacate the premises before such expiration? We do not think so. When the notice to quit required the respondents to vacate "within the month of October 1962", what is meant was that the respondents could vacate at any time within the month of October 1962 but not later than the expiration of that month. The last moment up to which the respondents, could, according to the notice to quit, lawfully continue to remain in possession of the premises was the mid-night of 31st October 1962. We fail to see any difference between a notice asking a tenant to vacate "within the month of October 1962" and a notice requiring a tenant to vacate latest by the mid-night of 31st October, 1962, because in both cases, the tenant would be entitled to occupy the premises up to the expiration of 31st October, 1962 but not beyond it. This position would seem to follow logically and incontestably as a matter of plain natural construction, from the use of the words "within the month of October 1962" without anything more, but here it is placed beyond doubt or controversy by the notice to quit proceeding to add that otherwise the respondents would be treated as trespassers from 1st November, 1962. This makes the intention of the authors of the notice clear that they are terminating the tenancy only with effect from the end of the month of October 1962 and not with effect from any earlier point of time during the currency of that month. If the respondents do not vacate the premises within the month of October 1962, they would be treated as trespassers from 1st November 1962 and not from any earlier date, clearly implying that ;they would lawfully continue as tenants up to the expiration of the month of October 1962. The tenancy was, therefore sought to be determined on the expiration of the month of October 1962 and not earlier and the notice to quit expired with the end of the month of tenancy as required by Section 106 of the Transfer of Property Act. It was in the circumstances a valid notice which effectively determined the tenancy of the respondents with effect from the mid-night of 31st October, 1962";.
So, from the abovesaid decision it is clear that the intention of the author of the notice has to be looked into. Since the tenant was caused to vacate the premises on or before 30th November, 1986 the tenant could lawfully continue to remain in possession of the premises till mid-night of 30th November 1986. So, the intention of the author of the notice is clear not to terminate the tenancy with effect from any earlier point of time or during the currency of that month.
10. Even with respect to similar expression made in the notice to quit, in the decision in Laxmi Devi v. Chandramani, , it is held as follows:- "The word "hereby used in business and legal correspondence does not connote the point of time. It always means "through". When it is said that the tenancy is hereby terminated, it will mean that the tenancy is terminated through the notice. "
11. Accepting the said principle, the learned Judge of the Kerala High Court while construing the expression made in the similar notice, in the decision in Mohammed Haji v. Umananda Kamath, , has held as follows:- "I respectfully agree with the construction put on the expression "hereby" in that case. It follows, therefore, that the expression "hereby" used in Ext. A-2 means "through this notice" and not "from today". The authorities below were clearly wrong in taking the view that because of the use of the expression "hereby" the notice has the effect of terminating the tenancy forthwith. I am satisfied that Ex. A-2 is in conformity with Section 106 of the Transfer of Property Act and that there is a valid notice to quit as contemplated by law. The view taken; by the appellant and the revisional authorities cannot be sustained".
12. Similarly, in the decision in General Auto Agencies v. hazari Singh, , the learned Judge has held as follows: "25. . . . In hakim Ziaul Islam v. Mohd. Rafi, I find that the notice indicted that the landlord wanted to terminate "the tenancy immediately. " This authority can help the appellant only if I hold that in the present case the counsel who had drafted the notice on behalf of the plaintiff; indicated to the defendant the intention of his client to terminate the relationship of the landlord and the tenant immediately. The notice however, does not state that the tenancy was terminated forthwith. The expression 'hereby terminates' cannot be read to mean 'terminated forthwith'. The word 'hereby' means that the tenancy was terminated by that notice. The sentence when read as a whole makes it abundantly clear that the request was made by the landlord for the delivery of possession of the demised property either by the end of 31st October, 1969 or on such day on which the tenant considered that his month of tenancy came to an end. The notice in the light of its unambiguous language can be interpreted to mean that the counsel of the landlord indicated to the defendant that his client wanted to synchronise the act of termination of tenancy with the act of the delivering of vacant possession thereof. In my opinion the language used by the counsel for the plaintiff was intended to terminate the tenancy either on 31st of October or on the day on which the tenant considered that his month of tenancy expired. The notice Ex. 5 does not in any manner carry the idea that the landlord was keen to terminate the tenancy of the defendant immediately on the receipt of the notice. I, therefore, do not find any life in this argument also".
13. In the decision in Chandika v. Sukhnandan, , the learned Judge while construing similar notice and rejecting the contention raised to the effect that the phrase "if hereby . . . . terminated" shows that the tenancy of the defendant was sought to be terminated forthwith and that such termination of tenancy being "in prasenti" was not in accordance with law, has held as follows: "7. It is difficult to accept the submission. The word "hereby" as used in the context in which it occurs in the aforesaid paragraph means nothing more than that the tenancy of the defendant was being terminated through the notice. In the Legal Glossary compiled by the Government of India, Ministry of Law, Justice and Company Affairs (1969 Edition), the word "hereby" is shown to mean "by this act or document (Section 2(a), Transfer of Property Act). " To the same effect is the meaning given to that word in Webster's New International Dictionary Volume II at page 1058. The use of the word "hereby", therefore, cannot lead to the conclusion that the plaintiff intended to terminate the tenancy of the appellant in praesenti. Besides, reading paragraph 6 of the notice (quoted above) as a whole, it is obvious that the termination of the tenancy was intended to be brought about at the end of 30 days. In this respect, the notice in the present case clearly falls within the category of notices held to be valid by a Division Bench of this Court in the case of Abdul Jalil v. Haji Abdul Jalil ".
14. While construing the notice to terminate the tenancy, by determining the tenancy without mentioning any date, the learned Judge in the decision in P. P. Subba Raja v. E. S. Gurusamy, AIR 1989 Mad. 320, has held as follows:- "8. . . . viewed in this manner and giving the contents of Ex. B1 a plain as well as a natural construction, it is obvious hat the respondent had terminated the tenancy in favour of the tenancy by employing the expression that he is so determining the lease and further making the intention to determine the lease clear by a demand for delivery of vacant possession of the suit property from the tenant. There is no dispute that there is clear 15 days' notice and consequently, the lease in favour of the tenant had been, on the facts and the circumstances of this case, properly determined and only thereafter, the suit in ejectment had been laid on 12. 12. 1973, long after the tenant had declined to surrender possession pursuant to the notice to quit. Thus, on a consideration of the nature of the lease in the light of Ss. 106, 107 and 111(g) and (h)of the T. P. Act, the conclusion is irresistible that the lease in favour of the tenant was only a monthly tenancy and had also been properly terminated by the respondent by the issue of the notice to quit under Ex. B1 and therefore, the suit in ejectment had also been properly laid. The first contention of the learned Counsel for the tenant has therefore to be rejected".
15. From the abvoesaid discussions, it is clear that merely because the word "hereby" is used in the notice, it cannot be construed as the tenancy was terminated in praesenti or terminated forthwith. But it should be understood that the tenancy is terminated by the notice in question.
16. In the present case, the tenants were requested to vacate the premises only on or before 30th November and so the notices issued under Ex. A7 in the respective suits are compliance with the requirements under Sec. 106 of the Transfer of Property Act. The learned counsel for the appellants has not pointed out any portion of the evidence to show that the intention of the respondents was only to terminate the tenancy forthwith. So, the submission made by the learned counsel for the appellants in this case cannot be countenanced.
17. Learned counsel appearing for the appellants further submitted that the suit properties belong to the Wakf Board and so the 1st respondent/plaintiff cannot sustain the suits without getting permission from the Wakf Board. But, unfortunately, no such plea was raised before the trial court and no issue was also framed on this aspect. So, at this stage, I am not inclined to permit the appellants to raise such a contention.
18. Learned counsel for the appellants further submitted that the suit in O. S. No. 639/87 is bad for misjoinder of parties and also for non-joinder of necessary parties in the suit. According to him, defendants 2 to 4 are not partners in the 1st defendant-firm and so the 1st respondent/plaintiff had impleaded unnecessary parties without impleading the partners of the 1st defendant-firm. Referring to the pleadings, learned counsel submitted that the 1st defendant had raised such a pleading in paragraph 9 of the written statement, and, in spite of that the plaintiff trust did not take any steps to delete defendants 2 to 4, and implead the necessary parties. He has also relied on Exs. B7 to B10 in support of his submission that from the said documents, it can be seen that the persons mentioned therein are partners of 1st defendant-firm and so the suit has to be dismissed on that ground.
19. In reply to the abovesaid submission, learned Senior Counsel appearing for 1st respondent/plaintiff submitted that though a general averment has been made in the written statement, the 1st defendant did not disclose the names of the partners, as the 1st defendant-firm was not registered, the plaintiff did not have any opportunity to know the name of such partners. He has also submitted that the 4th defendant, admittedly, is a partner and he retired from the partnership only in 1985, and the same was not informed to the plaintiff, which fact has also been admitted in the evidence. Referring to Ex. A8 reply, learned senior counsel submitted that the 2nd defendant did not deny that he was a partner of the 1st defendant firm.
20. The lower appellate court while dealing with the issue No. 3 has elaborately dealt with the said issue basing on the evidence and found that Ex. B9 partnership deed had been created for the purpose of the case and defendants 3 and 5 are continuing as partners in the 1st defendant-firm. The lower appellate court relied on the evidence of D. W. 1 himself and has come to such a conclusion. In the said evidence, D. W. 1 though has come forward with the plea that he (Annamalai), Saraswathi and Pongiammal are the partners from the beginning, it is stated that he did not know the reason as to why they have written the partnership deed in 1986. This fact was taken into consideration by the lower appellate court and doubted the case of the defendants in this regard saying that if those three persons had been partners from the beginning, there was no necessity to write the partnership deed in 1986 again. The lower appellate court had rejected Exs. B9 to B12 on the basis that the said documents had come into existence either immediately before the notice of termination or after the suit, and the same were filed pending the Appeal. Relying on the reply given by the defendants to the notice of termination under Ex. A7, the lower appellate court has observed that even under the said reply, it is not stated that the persons mentioned therein were not partners. D. W. 1 has specifically deposed that the 3rd defendant had been paying the rent. It is also deposed that D. W. 1 is the 2nd defendant's son, Saraswathi is the 5th defendant's wife and Pongiammal is the wife of the 3rd defendant. So, the lower appellate court has found that the case of the defendants that defendants 2 to 4 are not partners of the 1st defendant-firm cannot be sustained, and the plea raised regarding the same is only for the purpose of the case. In view of the factual findings given by the lower appellate court in this regard, I am not inclined to interfere with the said findings.
21. Learned counsel for the appellants further submitted that the 1st respondent/plaintiff has not established that they are the Public Religious and Charitable Trust to invoke exemption under the abovesaid Government Order from the purview of the Act. If the plaintiff is not able to establish so, the civil court cannot have any jurisdiction to entertain the suit for recovery of possession of the suit properties from the appellants/tenants. Though in O. S. No. 637/87 the defendants have not specifically raised such a plea, in O. S. No. 639/87 the defendants have raised such specific plea in the written statement. The trial court without even appreciating the scope of the said Government Order properly, simply rejected the case of the defendants, only on the basis that the plaintiff is a trust and so the suits filed by the plaintiffs are maintainable. But, unfortunately, the lower appellate court has not dealt with the said issue at all. Since the said issue goes to the root of the matter regarding jurisdiction of the court, the lower appellate court ought to have dealt with the same.
22. Learned Senior Counsel appearing for the 1st respondent submitted that the appellants have not raised any such plea in the Memorandum of Grounds filed before the lower appellate court. I am not inclined to reject the case of the appellants on that basis, as the trial court had framed an issue to that effect and dealt with the matter. Since the lower appellate court has not dealt with said issue, the same has to be decided on the basis of the evidence available in this case, and I am not inclined to deal with the same in this Second Appeal. So, I am inclined to leave the issue open to be dealt with by the lower appellate court on the basis of evidence available on record.
23. For all the foregoing reasons, the judgment and decree of the lower appellate court are set aside and the matter is remitted to the lower appellate court only to decide the issue whether the plaintiff can sustain the suits on the basis of the exemption granted under G. O. Ms. No. 2000, Home, dated 16. 8. 76. With respect to the other issues, I have already confirmed the findings of the lower appellate court and so the Lower Appellate Court need not go into the same again. Accordingly, this Second Appeal is allowed in part and remanded. No costs.