Indian Kanoon - Search engine for Indian Law

12. I shall next consider the scope of Section 113, i.e., the receipt of rent by the landlord accruing due subsequent to the notice determining the lease followed by a suit in ejectment. The plain language of Section 113 indicates that a waiver does not ipso facto result from any act of omission or commission on the part of the lessor, but the act must be such as clear evidence of the lessor's intention to treat the lease as subsisting. It is the intention of the lessor to treat the lease as subsisting which is the predominant and deciding factor in bringing about a waiver and not any particular act by itself. Illustration (a) must, therefore, be understood and applied in consonance with the principle underlying the section with due reference to the intention of the lessor. There is no warrant for the view that me e receipt of rent, whatever may be the intention of the lessor, should of its own force, divorced from the circumstances of the case, be regarded as amounting to a waiver. Illustrations are useful as aids to construction and for securing the proper meaning of the section, but they cannot control the plain meaning of the section; See Koylash Chunder Chose v. Sonatun Chung Barooie (1881) I.L.R. 7 Cal. 132. Illustrations appended to sections of a statute are useful to show how sections may operate and are of relevance and value in construing the text. They should only be rejected as repugnant to the section as the last resort of construction : vide Maxwell on Statutes page 43 : Mohamed Syedol Ariffin v. Yeoh Ooi Gark L.R. (1916) 2 A.C. 575 at 581, and Jumma Masjid v. Kodimaniandra Deviah at 851. I do not see any repugnancy between the operative portion of Section 113 and the Illustration (a) as there is no difficulty in understanding the Illustration in consonance with the section. The context in which a particular act is referred to in Section 113 shows that the rent should be received at such time and in such manner as to be equivalent to the landlord assenting to the lessee continuing in possession. The receipt of rent may only create a presumption and cannot by its own force amount to a waiver. Section 113 consists of two limbs : (a) the express or implied consent of the person to whom notice is given and (b) "the act of the person giving the notice showing the intention to treat the lease as subsisting." In order to constitute a waiver, both the limbs must concurrently operate, which means, that an act by itself and of its own force, without reference to the intention of the parties, cannot bring about a waiver. So much is quite clear from the plain language of the section, which embodies the basic principles, and I find no justification for reading the Illustrations as being repugnant to the section. Every effort should be made to interpret the Illustration in conformity with the main section. The principle underlying Section 116 of the Act will also apply in applying Section 113 as this is also a case of continuance of the lease restoring the old tenancy. The English law regards the effect of waiver as creating a new tenancy, but the language of Section 113 points to a restoration of the old tenancy. As observed earlier, this is really a distinction without difference because, in either case the essential point to be considered is whether the other party is continuing in the relationship of a lessee, either under the old lease restored, or under a new tenancy, subject to the same terms and conditions of the prior lease, as specified in Section 116. It is in this connection that reference must be made to the following observations of the Supreme Court in Karnani Industrial Bank v. Province of Bengal .

Effect of withdrawal.--A notice to quit may be withdrawn or abandoned during its currency; or the right to enforce it may be waived, either expressly or by implication, before it has expired, but no withdrawal, abandonment, or waiver is effectual without the consent of the party to whom the notice is given.

It has been held that a withdrawal of the notice by consent during its currency does not nullify the notice, but operates as evidence of an agreement for a new tenancy to take effect on the determination of the old. Where the notice has expired, it is technically wrong to speak of a waiver though this convenient expression is commonly used. If the relationship of landlord and tenant continues thereafter it is by agreement between the parties constituting a new tenancy, since the old tenancy is already at an end.

If one may say so with respect to the learned Deputy Judge, he fell into the error of confusing an acceptance of rent after a notice to quit with an acceptance of rent after notice that an act of forfeiture has been committed. If a landlord seeks to recover possession of property on the ground that breach of covenant has entitled him to a forfeiture, it has always been held that acceptance of rent after notice waives the forfeiture, the reason being that in the case of a forfeiture the landlord has the option of saying whether or not he will treat the breach of covenant as a forfeiture. The lease is voidable, not void, and if the landlord accepts rent after notice of a forfeiture it has always been held that he thereby acknowledges or recognises that the lease is continuing. With regard to the payment of rent after a notice to quit, however that result has never followed. If a proper notice to quit has been given in respect of a periodic tenancy, such as a yearly tenancy, the effect of the notice is to bring the tenancy to an end just as effectually as if there has been a terms which has expired. Therefore, the tenancy having been brought to an end by a notice to quit, a payment of rent after the termination of the tenancy would only operate in favour of the tenant if it could be shown that the parties intended that there should be a new tenancy.

21. That has been the law ever since it was laid down by the Court of King's Bench in Doe d. Cheny v. Batten (1775) 1 Cowp. 245 where Lord Mansfield said:

The question therefore is, quo animo the rent was received, and what the real intention of both parties was?

22. It is impossible to say that the parties in this case intended that there should be a new tenancy. The landlord always desired to get possession of the premises. That is why he gave his notice to quit. The mere mistake of his agent in accepting the money as rent which had accrued is no evidence that the landlord was agreeing to a new tenancy. "