Patna High Court
Baijnath Pandit vs Smt. Narvada Devi Kejariwal on 11 September, 1972
Equivalent citations: AIR1973PAT286, AIR 1973 PATNA 286
JUDGMENT S. Sarwar Ali, J.
1. The tenant is the appellant in this appeal. The landlord brought a suit for eviction of the tenant from the suit premises and for realisation of Rs. 220/-
being the arrears of rent from May, 1964 to February, 1965. Both the courts below have held that the tenant was a defaulter and that the tenancy had been terminated by a proper notice as contemplated under Section 106 of the Transfer of Property Act. Both these findings are challenged in this second appeal.
2. The first contention raised on behalf of the appellant is that the findings of the courts below that the plaintiff was in default in respect of rent is erroneous in law. During the course of argument, however, nothing has been shown which may induce me to take a view that the finding, which admittedly, is a finding of fact, is vitiated or is erroneous in law. On a consideration of the relevant evidence adduced by the parties both the trial Court and the lower appellate court have accepted the case of the plaintiff that the defendant had not paid rent for a period of ten months. Consequently the courts below were right in holding that he was liable to eviction under the provisions of Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947.
3. In view of this finding the defendant-tenant could succeed in this appeal only if he could establish that the notice, terminating the tenancy which according to the finding was served on him, did not conform with the requirement of law. But before noticing and deciding this point I may also state that an argument was advanced to the effect that the finding of the court below that notice was, in fact, served on the defendant is not sustainable. I, however, find that the court below has on the consideration of the relevant evidence come to a conclusion that the notice was sent to the appellant through registered post. This being the position the lower appellate Court was right in holding that there was a presumption that the notice has been delivered to the defendant. The evidence of denial of receipt of the notice having been rejected, I do not think that the court below was in error in holding that the notice will be deemed to have been served on the defendant in this case.
4. I now take up the main question of law that has been raised in this second appeal. It was contended on behalf of the appellant that the notice does not fulfil the requirement of Section 106 of the Transfer of Property Act. The section aforesaid requires that the notice terminating a monthly tenancy should expire with the end of the month of the tenancy. In this case the tenancy being tenancy according to English calendar month, the notice could be valid only if it determined the tenancy at the end of the calendar month. The learned counsel contended that the notice in this case did not expire at the end of the calendar month but expired earlier. It is, therefore, first necessary to refer to the notice itself. Paragraph 4 of the notice is to the following effect:
"That my client needs the house for her own occupation. That my client does not want you to remain in the house and as such determines the tenancy on and from 31st January, 1965".
The concluding portion of this notice says "I, therefore, request you to kindly vacate the premises occupied by you on or before the 31st January, 1965". The question, therefore, which falls for consideration is whether this notice fulfils the aforesaid requirement of Section 106 of the Transfer of Property Act.
5. The question as to what is the meaning of certain expression used in a notice is essentially a question of interpretation "of the document. The meaning which has to be given to the expression used determines whether there has been fulfilment of the requirement of the section aforesaid. It is true that the law in this regard is technical and technicality is too deep-rooted to be got rid of. But it has to be remembered, as was pithily observed by Lord Atkinson in the case of Harihar Banerji v. Ramshashi Roy, ATR 1918 PC 102 at p. 107 that notices under Section 106 are construed not with a desire to find faults in them which would render them defective but to be construed utres magic valeat quam pereat In construing, however, it has also to be borne in mind that no constrained or unnatural meaning must be given to the expression used in order to make an otherwise invalid notice, a valid notice. It is from these points of view that the question has to be approached.
6. I have already quoted the relevant portion of the notice in question. The notice purports to determine the tenancy on and from 31st January, 1965 and requires delivery of possession on or before the 31st January, 1965. The question, therefore, is whether these expressions, giving them a reasonable interpretation, mean that the tenancy is determined with effect from mid-night of the 31st January, 1965 or whether it is determined at a point of time earlier than mid-night. Putting it differently, if the tenant vacates the premises by midnight of 31st January, 1965, can he say I have complied with the notice? If he can, then there can be no doubt that the notice is a good and valid notice. In my view, and even without the recourse to authorities, I would say that the tenant would be perfectly entitled on the basis of this notice to continue in possession of the suit premises till the mid-night of the 31st January, 1965. When he vacates the premises at that point of time he can validly say "I have vacated the premises on and from 31st January, 1965." If my interpretation of this notice is correct then there can be no doubt that the notice (Ext. 1) fulfils he requirement of Section 106 of the Transfer of Property Act.
7. I find a number of decisions, both of English Courts and of the Courts in India, which throw considerable light on the question under consideration. Mr. Bishwanath Agarwal appearing for the opposite party has found out those decisions with diligence and has placed them with fairness.
8. In the well known treatise on the Law of Landlord and Tenant by Hill and Redman, the position has thus been summarised in paragraph 16 (1970 Edition Page 52);
"A notice to quit either on the 'anniversary' of the date of commencement of the tenancy or on the previous day is valid as a notice expiring at the end of a current period. A notice to quit 'on or before' that date is likewise valid, and so is a notice to quit 'by' that date which has the same meaning."
Similarly Article 1172 of Halsbury's Laws of England Third Edition states the same thing:
"A notice to quit 'on or before' a fixed date or even 'by' a fixed date may be valid."
Let me now examine some of the cases. In the case of Sidebotham v. Holland, (1895-1 OB 378) it was observed by Lindley L. J. with whom Lord Halsbury, concurred.
"When considering the validity of a notice to quit given in time and expiring on the anniversary of the commencement of a tenancy, I can find no distinction ever drawn between tenancies commencing 'at' a particular time or 'on' a particular day and 'from' the same day. 'At' 'on', 'from' and 'on and from' are for this purpose equivalent expressions."
This clarifies the position that the use of expression 'from' in paragraph 4 of the notice will not in any way detract from the full effect which has to be given to the expression 'on' as understood in law.
9. In the case of Dagger v. Shepherd, (1946) 1 All ER 133, the expression "on and before" was considered. In that case a house was let to the respondent for one year from March 25, 1939. The agreement further provided that the respondent was to have the option of remaining on the premises thereafter as a quarterly tenant, subject to a determination of the tenancy by 3 months' notice. The respondent stayed for a number of years without expressly exercising his option. On December 20, 1944, a notice was served on the respondent requiring him to quit on or before March 25 next and it was held that this notice amounted to an unequivocal statement to the tenant that on March 25, 1945, the rights and obligations of his tenancy, including his right of possession of the premises, will come to an end. It may be observed that this case further settled that the option to accept the determination of tenancy earlier than the named date did not bring any infirmity in the notice. This also answers an argument (which I must say was not advanced) that the use of expression 'before 31st January, 1965 in the concluding portion of the notice under consideration does not bring any infirmity in the notice.
10. The next case which may be noticed is the case of Crate v. Miller, (1947) 2 All ER 45. In this case the tenancy was a weekly tenancy commencing on a Saturday. A notice to quit was given on a Friday in the following terms:
"We hereby give you notice that the landlord will terminate your tenancy on Friday, July 19, 1946, or at the end of the next complete week of your tenancy from the date hereof, on which date you are hereby required to quit and deliver up possession."
The notice terminating the tenancy on Friday (19-7-1946), the day of expiry of the weekly tenancy, was held to be effectual to terminate the tenancy. The other point decided in this case was about the alternative form of notice with which we are not concerned in this case.
11. Eastaugh v. Macpherson, (1954) 3 All ER 214 was a case relating to a yearly tenancy commencing on April 1. The notice in that case required the tenant to vacate by March 31, 1954. This notice was interpreted by the Court of appeal to mean that the landlord was giving notice to determine the tenancy on the date when it was liable to be determined, namely, March 31. It was observed and he is, in other words, saying 'Accept three months' notice to vacate the office on or before March 31, 1954.' It is thus clear that since that expression 'by' was equated to the expression 'on or before' it was held to be a valid notice determining tenancy on March 31. I may state that the case just cited by me has been considered and followed by Shambhu Prasad Singh. J. in 1971 BLJR 657 (Badri Prasad Saraogi v. Shyam Narain Rahtogi).
12. In AIR 1954 Nag 292 (Rochaldas Tikamchand v. Ratanchand Bhagmal) a Division Bench of Nagpur High Court consisting Sinha, C. J. and Hidayatullah, J. dealt with the rule of construction which should govern the interpretation to be given to a notice under Section 106 of the Transfer of Property Act. Their Lordships observed:
"The requirement of the notice naturally is based on the necessity of the parties to the contract knowing a reasonable time beforehand that the tenancy is going to be terminated, so that if the landlord has served a notice the tenant may find another residence for himself or if the notice has been given by the tenant the landlord may find another tenant. The notice has not to be given with all the particularity of a pleading. Naturally, therefore, it is not subject to strict interpretation. A liberal construction has to be put upon the notice so as to find out the true intention of the party giving the notice and whether the party served with the notice could understand it in the sense meant by the giver of the notice. Applying that test Courts in India have given such construction as would not work a hardship on the tenant and would not strain the language too much against the landlord."
This, in my view, and I say so respectfully, is the correct approach which has to be adopted. It is in the light of this approach that I have already made observations regarding the interpretation of the notice.
13. The notice in AIR 1961 J & K 39 (Bhagwan Das Mengi v. Union of India) required the tenant to vacate the premises on the 32th of January, 1949; that being the date on which the tenancy terminated. Considering the question of validity of the notice it was observed:
"The plaintiff has not mentioned in the notice any particular time on the 12th of January for vacating the premises. He had merely mentioned the date on which the defendant had to vacate. The defendant could have complied with the terms of the notice by vacating the premises at midnight of 12th January, 1959. The notice, therefore, was perfectly valid because the lease commenced on 12th January, 1949, for a term of 10 years and ended on the midnight of 12th January, 1959. The notice therefore, expired with the end of the month of tenancy."
14. In AIR 1964 All 260 (FB) (Gorakh Lal v. Maha Prasad Narain Singh) the notice required the tenant to vacate the premises within thirty days of the service of notice. This was interpreted as fixing the outer limit by which the tenant had to vacate and that the limit fixed was the last moment of the thirtieth day of the notice. Consequently, it was held that the notice so construed was strictly according to the letter and spirit of the law and was valid.
15. In AIR 1965 Madh Pra 140 (Tolaram v. Ayaldas) the tenancy commenced from the 1st of July of the English calendar month. The notice in the case required the tenant to vacate the premises on the 31st July, 1960. In this case also it was held that the intention was to give the tenant time till the mid-night of 31st July, 1960 to vacate the premises. In such a situation it was held that the notice in question was not an invalid notice which did not expire with the end of a month of the tenancy. In that very case reference is made of an unreported Bench decision of the Nagpur High Court being Second Appeal No. 820 of 1951 (Nag.) (Pralhad v. Dattatraya), D/- 17-9-1954. In that case the monthly tenancy commenced on 20-11-1947 and the notice to quit required the tenant to vacate the suit premises 'before 20-1-1949'. This was interpreted to mean that the tenant was required to vacate the suit premises on or before the mid-night of 20-1-1949.
16. I may now mention the case re-ported in AIR 1971 All 485 (Ram Bandhan v. Guddar Ram). The expression in notice 'Chhatwen Mahine Khali Kardijia' was held to mean that the tenant had option to stay in the house till the expiry of the statutory period.
17. I must now notice two cases, in which notice had been held to be bad. In the case reported in AIR 1954 Trav-Co 467 (Chettalal Othamchand v. Arakkaparambil Padmanabha Shenoi) the notice was as follows:--
"1 terminate your tenancy with effect from, the last day of August, 1945. I hereby demand of you the surrender.....on the said date for which purpose I shall be present at the premises between 4 and 5 P.M. on 31-8-1945,"
This was interpreted to mean that the intended termination was not at mid-night but latest by 5 P.M. Naturally, therefore, if that be the construction of the notice, the notice could not be a valid notice in the eye of law. In AIR 1956 Bom 113 (Devshankar Gangaram v. Bachubha Devsing) the tenant was required to vacate before 31st March, 1950. The language used being "you are to handover possession to us for our personal cultivation before the above mentioned date.". These expressions were interpreted to mean that the tenancy was sought to be terminated before expiry of the month of tenancy. It will thus be seen that in both these cases, on the interpretation of the relevant notices, it was held that the notices in question purported to terminate the tenancy before the expiry of the month of tenancy. The present case is not at par with any of these two cases and is, therefore, clearly distinguishable.
18. Examining either, purely, from the point of view of construction of the notice, or with the assistance of decisions which have already been noticed by me, the conclusion is irresistible that the notice in this case conformed to the provision of Section 106 of the Transfer of Property Act and was consequently a valid notice terminating the tenancy of the appellant-tenant.
19. I am, thus, of the view that the suit of the landlord has been rightly decreed by the two courts below. This second appeal is accordingly dismissed but without costs.