Madras High Court
Arulmighu Thandumariamman Thirukkoil vs Erammal on 9 December, 1997
Equivalent citations: (1998)1MLJ728
JUDGMENT S. Jagadeesan, J.
1. Both the counsel represented that the question involved in the second appeal is whether there is proper notice of termination of lease. As that is the only question that arises for consideration, the counsel on both sides requested the appeal itself may be disposed finally. Hence the appeal is taken up for final disposal.
2. The respondent herein filed the suit O.S. No. 199 of 1992 seeking an order of injunction restraining the appellant herein from conducting any public auction regarding suit premises or otherwise from disturbing her possession of the suit premises till she is evicted under the procedure established by law. It is her case that originally her father took the property on lease as early as 20.3.1969 on an annual rent of Rs. 500 from one S.L. Kittain. After taking the land on lease, her father constructed a rice mill by spending more than Rs. 30,000. After the death of her father, she took the property on lease from the owner for 10 years from 16.4.1975 and after the expiry of the lease she continued to be the lessee by paying the rent. Presently the respondent is paying a rent of Rs. 1,000 per annum. The lease is an annual one and further is for manufacturing process and as such the lease has to be terminated by the appellant temple by issuing six months notice as prescribed under Section 106 of the Transfer of Property Act. Moreover she is entitled for the City Tenants' Protection Act.
3. The appellant herein filed a written statement contending that the suit property belongs to the temple. The said Kittaiya Gounder leased the land to one Krishna Gounder in the year 1969 only as a trustee of the temple. The lease is not a vacant site alone and as such the appellant is not entitled for the protection of the City Tenants' Protection Act. Since the lease deed is an unregistered one, the lessee is not entitled to claim any benefit under the invalid document. The lease is only a monthly one and hence the lease is liable to be terminated on 15 days notice. The suit property shall fetch a sum of Rs. 2,000 by way of monthly rent at the prevailing market rate. The appellant is simply squatting on the property by paying the low marginal rent. The notice of termination of lease issued to the appellant is perfectly valid.
4. Though the appellant has claimed the benefit under the City Tenants' Protection Act, she has not chosen to file any petition for such benefits.
5. On behalf of the plaintiff-respondent she alone was examined and some of the receipts had been produced. Similarly on behalf of the defendant appellant only the then trustee had been examined. After considering the evidence, the trial court dismissed the suit by its judgment and decree dated 20.4.1994.
6. Aggrieved by the same, the respondent preferred an appeal in A.S. No. 46 of 1994 on the file of Sub Court, Gobichettipalayam. The Subordinate Judge allowed the appeal by his judgment and decree dated 25.3.1996 and the present second appeal has been filed by the appellant.
7. At the time of admission, the following substantial questions of law have been framed:
(1) Whether or not the lower Appellate Court committed an illegality in treating a lease which is in violation of the mandatory provisions of Section 34 of H.R. & C.E. Act as valid?
(2) Whether or not the lower Appellate Court gravely erred in holding that possession of the tenant/respondent is lawful as against the true owner and the tenancy has to be terminated in accordance with law even though the lease on which the tenant seeks to sustain her possession is null and void?
(3) Whether or not the lower Appellate Court erred in holding that the notice terminating the monthly tenancy should end with 20th day of the month as the original tenancy was said to be 20.3.1969 in spite of the appellant asserting that the monthly tenancy is according to calendar month, or in the absence of any lease deed?
After hearing the arguments, the following substantial question of law arises for consideration:
Whether the respondent is entitled for any notice of termination as prescribed under Section 106 of the Transfer of Property Act after the lease in her favour had expired in April, 1985 itself?
8. The case of the respondent is that she entered into the lease with the appellant on 16.4.1975 for ten years and the lease deed had been executed to that effect. However, the same was not registered. As the lease is for more than one year, the lease deed has to be compulsorily registered. As the same has not been registered, the unregistered document cannot be relied upon to enforce the rights of the parties. Knowing fully well about this aspect, the respondent did not produce the unregistered lease deed. The trial court dismissed the suit relying upon the judgment reported in Jagat Taran v. Sant Singh A.I.R. 1980 Del. 7 by extracting the following portion:
Where a 15 days notice terminating an unregistered lease of immoveable property for manufacturing purpose was given the notice was valid. It could not be said that as the lease was for the purpose specified in Section 106, it should be deemed to be an yearly and six months notice was necessary. The lease could not be treated as yearly lease as such a lease should be by registered instrument only, by virtue of Section 107. " However, the lower Appellate Court relied upon Exs. A-14 to A-20, the receipts issued by the appellant herein for the payment of rent by the respondent. The lower Appellate Court had observed that under these documents the respondent has paid the annual rent on instalment. Relying upon the conduct of the parties, the lower Appellate Court had found that the lease is one of annual' as contended by the respondent herein.
9. The quesgtion for consideration is whether the lease is annual or otherwise. Even if it is accepted that the lease is 'annual' whether a notice prescribed under Section 106 of the Transfer of Property Act is necessary to terminate the lease after the lease came to an end by efflux of time.
10. The first question is concerned, the lower Appellate Court has given the finding only on the basis of Exs. P-14 to P-20. The case of the respondent is that the lease is one of 'annual' and the rent has been paid annually. A lease was entered into on 16.4.1975 for a period of 10 years. As per the respondent's case, the lease is to expire on 15.4.1985 and till then the respondent is entitled to pay the rent annually. Even though the unregistered lease deed has not been produced; but still the plea of the respondent can be taken into consideration for ascertaining the rights of the parties in conjunction with their conduct. The rent receipts Exs. A-14 to Ar20 are for the period 1982 to 1984 and they are dated from 1.1,1982 to 3.11.1984 i.e., prior to the expiry of the agreed lease. It may be worthy to mention that subsequent to the expiry of the lease, the respondent has not produced any receipt for the payment of the rent. Hence, the rent receipts produced by the respondent cannot be of any use to determine the nature of the lease subsequent to the termination of the lease by efflux of time, Hence, the lower Appellate Court is not correct in coming to the conclusion that the lease is one of 'annual' on the basis of these documents.
11. In the absence of any evidence to establish that the lease is an 'annual' one, only the conduct of the parties has to be taken into consideration. In this case even if the respondent's case is taken as it is, the lease entered into on 16.4.1975 is for 10 years and the same had expired on 15.4.1985, Admittedly thereafter there was no renewal of lease and no rent deed has been produced by the respondent to establish her case that she continued to be the tenant. When once the lease is for a particular period and the same is expired by efflux of item, it has been held that there is no need to issue any notice as prescribed under Section 106 of the Transfer of Property Act.
12. It may be worth to refer to three judgments. In the judgment reported in Bansidhar v. Ram Charan A.I.R. 1940 Oudh. 401, it has been held as follows:
We are of opinion that the defendant was a tenant at will from the beginning of the lease which was not made according to law up to the end of the term of five years for which that lease was given but that after the expiry of that period the appellant is no more than a tenant at sufferance and even a tenant at will has been held not entitled to notice: vide: Ramdhani Gope v. C.V. Scott A.I.R. 1925 Pat. 256, Ramkishnu Pande v. Bibi Sohila A.I.R. 1933 Pat. 561 and Janki v. Kanhaiya Lal, 1935 O.W.N. 1238.
13. In the judgment reported in Gur Prasad v. Hansraj A.I.R. 1946 Oudh. 144, it has been held as follows:
Apart from this if Ex. 3 is excluded from consideration as being inadmissible in evidence for want. of registration, the position of the defendants is no better than that of the tenants at will and in such a case a mere demand for possession is sufficient to determine the lease and no notice under Section 106, Transfer of Property Act, is required: see Janki v. Kanhaiya Lal A.I.R. Oudh 102.
14. In the judgment reported in Shanti Devi v. Amal Kumar A.I.R. 1981 S.C. 1550, it has been held as follows:
Undoubtedly, Section 11 l(a) of the Transfer of Property Act, which deals with determination of a lease by efflux of time, has to be read with Section 116 of the Act. But in the present case there is no allegation by the defendant that he was a tenant holding over within the meaning of Section 116 of the Act. Now, in order that a lease should be deemed to have been continued in favour of the defendant it was necessary to show that he remained in possession of the premises demised after the determination of the lease granted to him and the plaintiff had expressly or by necessary implication assented to his continued possession. There being no such plea of holding over, the matter falls to be governed by Section 111 (a) of the Transfer of Property Act. If the period of lease had expired on January 10, 1970, the relationship of landlord and tenant ceased and the defendant became a trespasser. In the present case, the respondent who was the defendant, in ground No. 6 of his memorandum of appeal before the High Court urged that the courts below should have held on the basis of the plaintiff's case read with the lease deed that the lease would expire on January 10, 1970. There was, therefore, no question of service of any notice under Section 106 of the Transfer of Property Act.
15. On the principles laid down in the above judgments, it is clear that in the absence of any registered lease deed, where the lease is to be compulsorily registered, the lease has to be construed as one at will. Where the lease is for a fixed period, then after the expiry of such period, the lease automatically terminates by virtue of Section 111 (a) of the Transfer of Property Act and no notice is necessary as prescribed under Section 106 of the Transfer of Property Act. On either ground, the respondent is not entitled for the notice as prescribed under Section 106 of the Transfer of Property Act and hence the notice of termination issued by the appellant under Ex. P-1 is valid. Hence, the judgment of the lower Appellate Court in A.S. No. 46 of 1994 cannot be sustained.
16. Both the courts below have held that the lease is not for manufacturing process and the finding is purely a question of fact. Hence, the second appeal is allowed with cost of Rs. 2,500.