JUDGMENT : Mohapatra, J. - This is a Plaintiffs' second appeal against the judgment and decree D/10-8-1951 of Sri P.C. De, Subordinate Judge of Berhampur, modlfying the decree passed by the trial court and rejecting the Plaintiff's prayer for ejectment. The Plaintiff's case is that the Defendant was a tenant of the suit house for a period one year commencing on 12-9-1947 agreeing to pay rent at the rate of Rs. 10/- per month payable at the end of every month. The Defendant paid rent up to 12-9-1948 and he was in arrears since then. The Plaintiff served a notice on Defendant to quit the suit-house by one week from the date of service that is, from 9-12-1949. The Defendant however replied on 16-12-1948 agreeing to vacate the house within three months. The Defendant has not vacated the house on the expiry of three months. The Plaintiff therefore sues for ejectment of the Defendant and for recovery of arrears of rent which is Rs. 90/-. 2. The Defendant however denied any arrears of rent and took the further plea that the suit was not maintainable in the absence of the permission under the House Rent Control Order. The Defendant also resisted the claim of the Plaintiff for ejectment. 3. The trial court gave a decree In favour of the Plaintiff both for ejectment and arrears of rent is but, however, the lower appellate court, while affirming the decision of the trial court for arrears of rent, has reversed the finding of the trial court that the Plaintiff is entitled to the relief of ejectment. So this present appeal by the Plaintiff. 4. There was a lease-deed executed for one year on 12.9.1947. There cannot be any dispute over the position that according to the provisions of Section 107 of the Transfer of Property Act, a lease can be created either by a registered document or by delivery of possession. This document not being registered is inadmissible in evidence. But nevertheless it is the admitted case of both parties that possession was delivered in favour of the Defendant and the Defendant was the tenant in respect of the suit-house. The document lease also has not been executed by both parties as required u/s 107. This document not being registered is inadmissible in evidence. But nevertheless it is the admitted case of both parties that possession was delivered in favour of the Defendant and the Defendant was the tenant in respect of the suit-house. The document lease also has not been executed by both parties as required u/s 107. In a case of this nature where the document is inadmissible and invalid on account of non-compliance of the provisions of Section 107 if is the settled law that if the tenancy will be coverned by the provisions of Section 106 of the Transfer of Property Act, Vide Ramkumar v. Jagadish Chandra AIR 1952 S.C. 32. As this tenancy is for residential purposes, it will be deemed to be a monthly tenancy terminable only by a clear notice of fifteen days expiring with the end of a month of the tenancy. In the case before us, the notice served upon the Defendant to quit the house within one week is clearly therefore invalid on account of the non-compliance of the provisions of Section 106 of the Act. But there is one other important aspect of the case on account of which different consideration should prevail and the case is taken out of the mischief of the provisions of Section 106. The Defendant in reply to the notice sent by the Plaintiff sent a letter D/16.12.1948. The clear averments in the reply are to the effect "But however since your client is the immediate landlord and my client having executed a rent-deed in his favour, my client is magnanimous enough to offer half of the portion of the said house if your client is prepared to take the same. If, however, your client wants the complete house he will have to wait till three months hence by which time my client will remove his business to another house and leave the house in question to your client's possession." These terms cearly indicate that the Defendant sent an offer to the Plaintiff to vacate the house within three months and leave the house in Plaintiff's possession. The Plaintiff has preserved this document and filed and got it exhibited as Ex. 1. He also avers in the plaint that in spite of the Defendant promising to vacate within three months he is still continuing in possession and so he has prayed for ejectment. The Plaintiff has preserved this document and filed and got it exhibited as Ex. 1. He also avers in the plaint that in spite of the Defendant promising to vacate within three months he is still continuing in possession and so he has prayed for ejectment. In our opinion, the Plaintiff has also clearly accepted this reasonable offer of the Defendant and in fact waited till 11.7.1949 to file the suit. This amounts to a contract between the parties that the Defendant would vacate the house on the expiry of the three months from the date of his reply, that is, from 16.12.1948. As is clear from a mere perusal of Section 106 of the T.P. Act, the provisions are always subject to any contract between the parties and we have no doubt In our mind to come to the conclusion that this contract between the parties takes the present case out of the mischief of the provisions of the section demanding a clear notice of fifteen days to terminate the tenancy. On this simple ground, therefore, the Plaintiff is entitled to the relief of ejectment as prayed for. 5. Mr. Panda, appearing on behalf of the Defendant-Respondent, however, urges that even though it may be taken that the tenancy terminated on the expiry of three months from the date of the reply, there has been a new tenancy created on account of the provisions of Section 116 of the Transfer of Property Act as the Plaintiff on 12-7-1949 has accepted a sum of Rs. 70/- sent by the Defendant by Money Order towards the rental of the said house. The main difficulty in the way of Mr. Panda to succeed on this plea is not only that there is no finding of either of the courts below that this amount sent by the Defendant was accepted by the Plaintiff as rental of the house but there is no material placed on record to come to the same conclusion that the Plaintiff had accepted it as rental and not towards damages for use and occupation of the Defendant. The law on the subject is clearly elucidated in the decision in the Case of AIR 1949 124 (Privy Council), that the tenancy which is created by the holding over of a lessee is a new tenancy in law ; and it cannot be disputed that to bring a new tenancy into existence there must be a bilateral act; what Section 116 contemplates is that on one side there should be an offer of taking a renewed or fresh demise evidenced by the lessee's continuing in occupation of the property after his interest has ceased and on the other side there must be a definite assent to this continuance of possession by the landlord and expressed by acceptance of rent or otherwise; the assent of the landlord which Is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. In the present case the lacuna is that there is no evidence to show that the Plaintiff had accepted the amount as rent. We may observe here that not only there is no Issue raised in the trial court but there is no discussion of the point in the judgments of either of the courts below. It appears, the point is being taken for the first time in second appeal. The only plea taken in this connexion is contained in paragraph 9 of written statement alleging that the Defendant sent Rs. 70/- on 8-7-1949 by Money Order towards the rental of the said house at the rate of Rs. 10/- per month; the Plaintiff received the amount on 12-7-1949, but he has not deducted the amount from the suit claim. It is not averred that the amount was received by the Plaintiff as rental or that on account of this acceptance there was a new tenancy created which would defeat the Plaintiff's claim for ejectment. The Money Order receipt has been filed to show that in fact this sum of Rs. 70/- was received by the Plaintiff on 12-7-1949; but there is no mention that it was received as rent. For the aforesaid reasons therefore the point taken by Mr. Panda must fail and the Plaintiff's appeal must succeed. 6. The appeal, therefore, is allowed. The Money Order receipt has been filed to show that in fact this sum of Rs. 70/- was received by the Plaintiff on 12-7-1949; but there is no mention that it was received as rent. For the aforesaid reasons therefore the point taken by Mr. Panda must fail and the Plaintiff's appeal must succeed. 6. The appeal, therefore, is allowed. The Plaintiff's suit for ejectment is decreed and the decree passed by -the courts below in respect of arrears of rent is affirmed. The Appellant is entitled to costs throughout. Narasimham, C.J. 7. I agree with the order proposed. But in fairness to Mr. Murty, the Advocate for the Appellant, I consider it desirable to notice an interesting argument raised by him regarding waiver of the defect in the notice u/s 106 of the Transfer of Property Act. 8. As pointed out by my learned brother, the tenancy became a monthly tenancy terminable by 15 days notice ending with the month of the tenancy. The Plaintiff-landlord in his notice to quit directed the Defendant to quit the house within one week from 9-12-1948. The period specified in the notice is thus clearly in contravention of the terms of Section 106 of the Transfer of Property Act: But the Defendant in his reply Instead of challenging the validity of the notice on that ground, agreed to vacate the house in three months time. Mr. Murty contended that this reply of the Defendant would in law amount to waiver of the defect in the notice. Doubtless, waiver of notice is dealt within Sections 112 and 113 of the T.P. Act. But Mr. Murty made a fine distinction between waiver of the notice on the one hand and waiver of the defect in the notice on the other and urged that waiver of defect in the notice may be inferred from the conduct of the parties bearing in mind the general principles of waiver. In support of his argument he relied on Deo D. Baker v. Woombwell 170 Eng. Rep. 1251. In that case, also, the landlord's notice to quit was defective but the tenant made no objection to the notice to quit but said that he would go out as soon as he could conveniently fix up some other house. In support of his argument he relied on Deo D. Baker v. Woombwell 170 Eng. Rep. 1251. In that case, also, the landlord's notice to quit was defective but the tenant made no objection to the notice to quit but said that he would go out as soon as he could conveniently fix up some other house. Lord Ellenborough observed that whatever defect there might be in the notice, from the conduct of the tenant in making no objection at the time and "giving a qualified promise to leave the premises", it may be understood that he admitted that the tenancy had been determines by the notice. In the present case, also it may be urged that the reply of the tenant amounted to an admission that the previous tenancy had determined and a fresh tenancy of three months duration was contracted between the parties. 9. In Foa's Law of Landlord and Tenants 6th Edition at page 658 are cited some decisions dealing with the circumstances under which even invalid notice may be binding on its recipient. I may quote the following passage: How far a notice to quit invalid by reason of not complying with the requirements to be hereafter pointed out may become binding by conduct on the part of its recipient from which an intention to waive the right of objection may be Inferred, raises what is perhaps a difficult question.... An intention to accept the notice may be inferred from an intimation given by its recipient, although it be not expressed in so many words. 10. Thus, in 1865 L.J.R. Queen's Bench Division, Vol. 64 page 253(2) a notice given by a tenant Intimating his intention to terminate the tenancy and requesting the landlord to inform him as to when the tenancy would expire and the reply of the landlord giving the information asked for was held sufficient notice for determining the tenancy. I am inclined to accept Mr. Murty's contention that in some circumstances the defect in the notice may be waived by the conduct of the parties so as to amount to termination of the tenancy. I am inclined to accept Mr. Murty's contention that in some circumstances the defect in the notice may be waived by the conduct of the parties so as to amount to termination of the tenancy. It is, however, unnecessary to further elaborate this point because I am in agreement with my learned brother that in any case the reply of the Defendant and the subsequent conduct of the parties had the effect of creating a new tenancy for three months and that on the expiry of that period the landlord was entitled to evict without any further notice. 11. Appeal allowed. Final Result : Allowed