Mst. Indrasani v. Din Ali — 1967 DIGILAW 221 (ALL)

JUDGMENT D.P. Uniyal and A.K. Krty, JJ. - We have had the advantage of reading the judgment of our learned brother B. Dayal, J. but regret our inability to agree with the opinion expressed by him. We now proceed to give our reasons for the view we have taken of the case. 2. All the material facts have been set out in detail in the judgment of B. Dayal, J. and need not be repeated. The rent for the accommodation payable by the tenant Din Elahi was Rs. 3/8/- p.m. There being no special contract, Rs. 3/8/- on account of rent would fall due on the expiry of each month and become payable in each succeeding month. It was alleged by the Plaintiff that the Defendant had not paid rent for the months of March, April, May and June, 1958. On 7-7-1958 the Plaintiff gave a composite notice to the Defendant demanding payment of the arrears of rent for the period March to June, 1953, and also terminating the tenancy. It has been factually found that the Defendant had sent Rs. 3/8/- by money order in the month of May, 1958 and another sum of Rs. 7/- by money order in the month of June, 1958 and that both these money orders were refused by the Plaintiff. It is also an admitted fact that after service of notice dated 7-7-1958 the Defendant did not actually pay or remit by money order the amount demanded by the Plaintiff on account of arrears of rent for the period March to June, 1958. The question of law which arises on these facts and for the consideration of which the Full Bench was constituted is whether Din Elahi was a tenant in arrears of rent for more than three months so as to come under the mischief of Section 3(1)(a) of the UP (Temp.) Control of Rent and Eviction Act, 1947 (hereinafter referred to as the Act). It is, therefore, necessary to examine the language of Section 3(1)(a) of the Act, which is reproduced below: 3 (1) Subject to any order passed Under Sub-section (3) no suit shall, without the permission of the DM, be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the following grounds: (a) That the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of a demand.... Except to the extent specifically provided for in the Act, the general law in regard to landlord and tenant under the Transfer of Property Act remains unaffected in other respects. The rights and obligations of the lessor and the lessee are still governed by the provisions of the Transfer of Property Act, except, of course, in regard to matters which have been specifically provided for in the Act. Therefore, it will also have to be examined as to whether under the provisions of the Transfer of Property Act Din Elahi could be said to be a tenant in arrears of rent, because the first condition for the applicability of Section 3(1)(a) of the Act is that the tenant concerned is in arrears of rent for more than three months. If the tenant is not in arrears of rent for more than three months then the landlord will have no right to give a notice u/s 3(1)(a) of the Act and to file a suit for ejectment on the tenant's refusal to pay the amount demanded under the notice. This necessarily poses a question of prime importance, viz. when is a tenant in arrears of rent. 3. We may advert to the definition of lease u/s 105 of the Transfer of Properly Act. The definition is: A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called rent. The definition requires the transferee i.e. the lessee to render periodically or on specified occasions moneys, share of crops etc. in consideration of which the right to enjoy the subject matter of the lease has been transferred. Section 108 of the Transfer of Property Act provides for the rights and liabilities of the lessor and the lessee, which are applicable in the absence of a contract or a local usage to the contrary. We may refer to Clauses (c) and (1) of Section 108 of the Transfer of Property Act, which are reproduced below: (c) The lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and perform the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption. (1) the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf; From the aforesaid clauses of Section 108, as also the definition of lease u/s 105, it will be apparent that the legal obligation of the lessee is fully discharged either by payment of rent or by tendering it at the proper time and place to the lessor or his agent. If this has been done by the lessee he would be entitled to hold the property during the time limited by the lease without interruption. In Clause (c) the word "tender" has not been used, but in the context the word "pays" used in Clause (c) must be treated as synonymous with the word "tenders" otherwise it will result in an obvious legal anomaly, viz. that even though a tenant by offering to pay rent or tendering the same to the lessor or his agent fulfils his legal obligation and is discharged from his statutory liability still the lessor may refuse to perform his legal obligation Under Clause (c) of Section 108. The lessor may inspite of offer or tender of payment very well say that he will not permit the lessee to hold the property as the lessee has not actually paid the rent reserved by the lease to him. The lessor may inspite of offer or tender of payment very well say that he will not permit the lessee to hold the property as the lessee has not actually paid the rent reserved by the lease to him. The two clauses, therefore, in our opinion, have got to be harmoniously construed and upon a harmonious construction of the same it must be held that a proper tender is equated to actual payment. If this be so, then a tenant who has tendered payment of rent at proper time and place, as and when it fell due, cannot, in our opinion, be said to be in arrears of rent. 4. Lease is created by a combination of contract, and conveyance. Section 4 of the Transfer of Property Act itself provides that the chapters and sections of that Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872. Therefore, in so far as the contractual part of the lease is concerned, the provisions of the Contract Act may also be examined apart from the provisions contained in the Transfer of Property Act. Section 37 of the Contract Act provides that the parties to a contract must either perform or offer to perform their respective promises, unless such performance is dispensed with or excused under the provisions of that Act, or any other law. Section 38 of the said Act further provides that when the promisor has made an offer of performance of the promise, and the offer has not been accepted, the promisor is not responsible for the nonperformance nor does he thereby lose his rights under the contract. The offer to perform the promise must be unconditional and must be made at proper time and place. u/s 46 of the same Act a promisor is required to perform his promise within a reasonable time in cases where the promise is to be performed under the contract without application by the promisor and no time for performance is specified. In the case of a lease, the payment of rent rests on the promise of the lessee to periodically pay rent as agreed with the lessor. In the case of a lease, the payment of rent rests on the promise of the lessee to periodically pay rent as agreed with the lessor. Therefore, apart from the provisions of Section 108 of the Transfer of Property Act, even under the Contract Act, the lessee is bound to perform his promise to pay rent and this promise may be discharged either by actual performance or by offer of performance in accordance with the provisions of the Contract Act referred to above. So, a lessee who has proved that he had tendered rent which had fallen due to the lessor cannot be said to be in arrears of rent. Tender under certain circumstances must perforce be held to be tantamount to payment. Only by holding so can the anomaly which otherwise would result be avoided and the various provisions of the Act, the Contract Act and the Transfer of Property Act be harmoniously construed. 5. Before considering the cases cited at the Bar it may be useful to consider as to what is the meaning of the words "arrears of rent". u/s 105 of the Transfer of Property Act, the "money, share, service, or other things to be so rendered" is called "rent". Therefore, rent necessarily need not be money and it may consist of service required to be rendered periodically or at specified times in accordance with the agreement between the lessor and the lessee. Consider a case in which the consideration of the lease is the rendering of service to the lessor periodically by the lessee. If the lessee in accordance with the obligation undertaken by him offers to render the service in accordance with the stipulation between the parties and at the specified times, but the lessor refuses to avail of such service, can it be said that the lessee is in arrears of rent? In our opinion, in such a case, the offer to render service in accordance with the agreement may even completely discharge the lessee of the liability to perform such service at any time in future, because the performance itself has become an impossibility. If the tenancy continues the lessee certainly will remain liable to continue to perform or to offer to perform such service at specified times in the manner agreed upon between the parties. Now, let us consider the case in which the rent is to be paid in money. If the tenancy continues the lessee certainly will remain liable to continue to perform or to offer to perform such service at specified times in the manner agreed upon between the parties. Now, let us consider the case in which the rent is to be paid in money. If the rent is actually paid and accepted by the lessor then nothing would remain unperformed and there can arise no question of the tenant being in arrears of rent. But, what would happen in a case in which the tenant actually goes to the place of the landlord and offers to hand over the accrued rent unconditionally but the lessor refuses to take it or in a case where instead of going personally he sends the accrued rent by money order at his own expense unconditionally but the landlord refuses to take it. The lessee has done all that the law requires of him. He has done all that is practically possible to discharge his promise to pay rent. To hold even then that he is a tenant in arrears of rent would, in our opinion, be a travesty of the jural relationship between landlord and tenant on which the tenancy law is founded. That would be making the landlord an overlord and the tenant a serf. This, in our opinion, the law never contemplated. Therefore, the tenant in such circumstances cannot be said to be a tenant in arrears of rent. A tenant can be said to be in arrears of rent only when by non-performance of his legal obligation he has deprived the lessor of the benefit of the accrued rent. 6. The point may be further illustrated by considering some hypothetical cases. Let us consider the case of a tenant, who goes every month to the landlord's place with the rent for payment at the appointed time, but the landlord every month refuses to accept rent. The tenant thereafter again tenders rent by money order and pays the money order commission himself. The landlord still refuses to accept the rent sent by money order. This state of affairs let us assume, continues for 2-1/2 years and thereafter the landlord makes a sudden demand for payment of the rent for the entire period of 2-1/2 years. The tenant thereafter again tenders rent by money order and pays the money order commission himself. The landlord still refuses to accept the rent sent by money order. This state of affairs let us assume, continues for 2-1/2 years and thereafter the landlord makes a sudden demand for payment of the rent for the entire period of 2-1/2 years. The tenant again goes to the landlord's place to personally pay the rent but the landlord still refuses to accept payment, or he remits the amount by money order which the landlord refuses to take. Can the tenant in such circumstances be said to be in arrears of rent? Supposing he were to send the rent for 2-1/2 years by money order would he be liable to pay the money order commission over again or would he be entitled to deduct it out of the rent?. If he deducts the money order commission the landlord may refuse the money order on the ground that the entire amount has not been tendered. Inspite of all these specific acts on the tenant's part the accrued rent literally can be described as unpaid rent. Therefore, according to the contentions raised on behalf of the landlord the tenant will still remain a tenant in arrears of rent and any number of notices u/s 3(1)(a) of the Act can be given by the landlord so long as (he) chooses not to accept payment. This queer legal position could never have been contemplated by the legislature and can, in our opinion, only be avoided by holding that valid and proper tender of payment is equivalent to actual payment. It is true that the amount of rent which the landlord refuses to accept and which necessarily has to remain in the hands of the tenant does not become the latter's property. The rent had accrued to the landlord and the right to receive the same would still remain in him. The amount thus remaining in the hands of the tenant on account of the rent being not accepted by the landlord would be an amount belonging to the landlord held for the time being by the tenant. The matter may be considered also from another aspect. Suppose there is a lease in which there is a provision for payment of interest on the amount of arrears of rent. The matter may be considered also from another aspect. Suppose there is a lease in which there is a provision for payment of interest on the amount of arrears of rent. The tenant tenders the rent as and when it falls due but the landlord refuses to accept the same. Could it be said that the tenant is in arrears of rent and that the landlord is entitled to receive interest on the arrears of rent. All these anomalies can only be resolved by holding that a tenant who tenders payment of rent as and when it falls due is not a tenant in arrears of rent, even though the landlord has chosen not to accept payment. 7. Tender has been held to be equivalent to payment even in cases where payment within a fixed period is required by statute to be made. We may refer to Order XXI, Rule 85 CPC which provides that the full amount of purchase money payable shall be paid by the purchaser into the court before it closes on the 15th day from the sale of the property. It has been held that if the purchaser tenders the money on the 15th day, but deposits the same subsequently he will have done all that the law requires of him. The tender in such a case has been treated to be equivalent to payment itself vide Mst. Gomti v. Lachman Das 1934 (1) AWR 245 and Bijoy Singh Vs. Raja Kirtyanand Singh and Others, AIR 1932 Patna 342 8. Under the U.P. (Temporary) Control of Rent and Eviction Act, 1947, there is no provision in regard to the manner and time of payment of rent by a tenant. Therefore, the matter would be governed by the Transfer of Property Act and the Contract Act, the relevant provisions of which have already been considered by us, and, in our opinion, Din Elahi could not be treated as a tenant in arrears of rent for more than 3 months. 9. Another thing which requires consideration is the exact meaning to be given to the phrases "the tenant is in arrears of rent" and "has failed to pay the same to the landlord" occurring in Section 3(1)(a) of the Act. 9. Another thing which requires consideration is the exact meaning to be given to the phrases "the tenant is in arrears of rent" and "has failed to pay the same to the landlord" occurring in Section 3(1)(a) of the Act. In our opinion, the tenant can be said to be in arrears of rent only when, as a result of an act of omission on his part to do what is required of him under the law, the landlord has not been able to receive the accrued rent. Therefore, in Section 3(1)(a) of the Act something more appears to have been contemplated, other than the mere fact that rent for more than 3 months has not been actually received by the landlord. Certain amount of culpability must attach to the tenant because of failure or omission on his part to do what as a tenant he is required to do, viz., pay or tender rent at proper time and proper place before he is branded as a "tenant in arrears of rent". It seems to us that only in cases of tenants of the delinquent type, who neither pay nor tender payment, that the provisions of Section 3(1)(a) will be applicable. 10. In the expression "has failed to pay the same to the landlord" in Section 3(1)(a) of the Act the words "to pay" must in the context be held to integrally include the words 'or to tender'. A literal construction of Section 3(1)(a) of the Act adopted mechanically would render it an indefensible weapon in the hands of unscrupulous landlords. They will come to the court asking for the pound of flesh and courts will have to give it to them. No Portia even will be able to save the tenant because he will be a person who "has failed to pay the same (the arrears of rent) to the landlord", no matter whether the failure was due to the deliberate act of refusal on the part of landlord to accept payment. Yet this has never been permitted and courts have held that a proper tender is tentamount to payment. By no other interpretation can the absurdity which otherwise would inevitably ensue be eliminated. The question of "keeping alive the tender" does not really arise in cases where the consideration of the leave itself consists of money, service etc. to be rendered periodically or on specified occasions. By no other interpretation can the absurdity which otherwise would inevitably ensue be eliminated. The question of "keeping alive the tender" does not really arise in cases where the consideration of the leave itself consists of money, service etc. to be rendered periodically or on specified occasions. There can be no legal obligation on a tenant to tender the amount previously tendered but refused by the landlord, alongwith the tender for the subsequently accrued rent. Neither the Transfer of Property Act nor the Contract Act nor the U.P. (Temp.) Control of Rent and Eviction Act provide for any such tender. 11. In considering the meaning of the expression "the tenant is in arrears of rent for more than three months" in Section 3(1)(a) of the Act it must be remembered that one of the principal objects of the Act is to prevent the eviction of tenants from accommodation. It had become notorious that due to shortage of accommodations landlords had been reporting to mal-practices on a wide scale and were harassing tenants by rackrenting and by filing ejectment suits indiscriminately against tenants who were unable or unwilling to submit to the demands of the landlords for exhorbitant rents. In construing the provisions of the Act, therefore, the aforesaid object must not be lost sight of and no interpretation should be put on any provision of the Act, which would defeat or have a tendency to defeat the objects of the Act. Any interpretation, except in cases where no other interpretation is legally possible, which would result in giving arbitrary power to the landlord and would enable him to harass even a tenant who has been regularly remitting rent ought not to be countenanced. We have already mentioned at considerable length that unless tender is held to be equivalent to payment itself it would be giving the landlord a whip to be cracked at the tenant whenever he liked by merely refusing to accept rent whether offered personally or remitted by money order. This could never have been the intention of the legislature and the landlord certainly could not have been given the power to invoke the provisions of the Section 3(1)(a) of the Act for his benefit at his own will by refusing to accept rent for more than three months. 12. This could never have been the intention of the legislature and the landlord certainly could not have been given the power to invoke the provisions of the Section 3(1)(a) of the Act for his benefit at his own will by refusing to accept rent for more than three months. 12. In the Act as originally passed Section 3(1)(a) read as follows: that the tenant has willfully failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a notice of demand from the landlord. The legislature must have realised that the aforesaid provision might cause great hardship to tenants under certain circumstances and, therefore, by amendment it was provided that before any action could be permitted to be taken by the landlord there must be a tenant who is in arrears of rent for a period of over 3 months at least. u/s 3(1)(a) as it originally stood, action could have been taken even against a tenant who had failed to pay rent even for a month. The intention of the legislature in the original Act and also under the amended Act was clearly to withdraw the protection of the Act against delinquent tenants and not against tenants who dutifully paid or tendered rent as and when it fell due. The legislature could never have contemplated that a tenant who tenders payment of rent as and when it falls due would be placed in the same category as a tenant who does not do so. In the latter case the tenant certainly would be a tenant in arrears of rent, because of non-performance of legal duty by him, but in the former case it is the landlord alone who by his mere act of refusal to accept payment would be able to place the tenant under the category of a tenant in arrears of rent. This cannot possibly be supported on any rational ground and the expression "the tenant is in arrears of rent for more than three months" used by the legislature in Section 3(1)(a) must be held to have been intended to be applicable only to cases of tenants who by their own acts of omission have deprived the landlord of rent as and when it accrued. Another thing which is noteworthy is that Section 3(1)(a) of the original Act did not provide for taking any action "against a tenant in arrears of rent". Action could be taken only against a tenant who had willfully failed to make payment of "arrears of rent". The legislature was fully alive to this change in phraseology because in the amending Act of 1954 it deliberately used the words "where the tenant is in arrears of rent", in order to emphasise that only such tenants would be regarded as defaulters who had failed to pay or tender rent as and when it fell due. We are of the opinion that where nonpayment of rent is on account of the intransigence of the landlord to accept or receive the rent tendered to him he cannot call his own improper conduct in aid as a means to evict the tenant. We, therefore, hold that where rent due has been lawfully tendered to the landlord and is improperly refused by him, the tenant cannot be held to be in arrears of rent. 13. It was then said that the Act has given protection to the tenant against illegal refusal of the landlord to accept rent in that the former can invoke the provisions of Section 7-C and deposit the rent in question in the Munsif's court. The argument, though attractive, is fallacious and cannot bear scrutiny. It is common knowledge that a landlord may put off an innocent tenant from making payment of rent on one pretext or another and thus prevent him from making an application u/s 7-C within the time prescribed by law. Moreover the applicability of the above section to a given case rests on the condition precedent referred to in Clause (1) of Section 7-C, namely, refusal to accept "any rent lawfully paid" to the landlord by the tenant. The expression "any rent lawfully paid" must, in the context of the above sub-section be understood to mean rent which has been lawfully tendered to the landlord by his tenant, for, if the rent has been lawfully paid to the landlord, it would be a contradiction in terms to hold that the tenant is in arrears in respect of the rent so paid. Where payment has been made to the landlord he cannot complain of failure on the part of the tenant to pay the rent. Where payment has been made to the landlord he cannot complain of failure on the part of the tenant to pay the rent. There is, therefore, no rational ground on which payment of rent u/s 3(1)(a) of the Act can be said to exclude a valid and proper tender of rent. In our opinion Section 7-C of the Act does not furnish any answer to the question involved in this case. 14. We may point out that there is a clear distinction between a case in which a tenant is in arrears of rent and a case in which the rent is in arrears. In the former case arrears of rent are the consequence of the default committed by the tenant in paying rent; in the latter case the arrears of rent may be due to causes attributable to the improper conduct of the landlord in refusing to accept rent lawfully tendered to him. Where such is the case and arrears of rent are due to reasons beyond the control of the tenant the courts will give a beneficial construction to the provisions of the Act keeping in view aims and objects to fulfil which it was enacted. 15. In the Full Bench case of Kripa Sindhu Mukerjee v. Annada Sundari Debi ILR XXXV Cal 34 the question whether tender of money constituted a valid payment fell to be considered. That was a case under the Bengal Tenancy Act (VIII of 1885). u/s 67 of that Act it was provided that an arrear, i.e. an unpaid installment of rent, shall bear interest at 12% p.a. upto the date of the institution of the suit. The word "arrear" was defined u/s 54 of the Act as "any instalment or part of an instalment of rent not duly paid at or before the time when it falls due shall be deemed an arrear". The majority decision in the case was that a valid tender was as good as payment itself and that it was not obligatory on a tenant to follow up the tender by a deposit of the rent u/s 61 of the Bengal Tenancy Act in order to stop interest from running u/s 67 of that Act. The majority decision in the case was that a valid tender was as good as payment itself and that it was not obligatory on a tenant to follow up the tender by a deposit of the rent u/s 61 of the Bengal Tenancy Act in order to stop interest from running u/s 67 of that Act. It was further held that the rent which had been tendered with the intention of paying it to the person to whom it was due at the time when it was due, but it was without good cause not received by the person to whom it was due and to whom it was tendered, could not be regarded as an arrear of rent within the meaning of Section 54(3) and Section 67 of the said Act. The principles laid down by the learned Judges, who gave the majority decision, are not confined to the specific provisions of the Bengal Tenancy Act only. The principles, in our opinion, are squarely applicable in cases between landlords and tenants when questions arise as to whether rent accrued is in arrears or not, or a tenant is in arrears of rent. Brett, J. with whom Woodroffe, J., agreed, in his judgment observed as follows: The term 'arrear' involves the existence of some default on the part of the debtor. In the instance before us it has been found that there has been no default by the debtor, who so far as lay in his power has discharged the duty which lay on him to effect a payment. Payment of a debt no doubt requires a tender by the debtor, of the full amount due from him, at the due time and place, to the person to whom it is due, and the acceptance of the same by the latter. If, however, the latter for no good cause refuses to accept the tender of the money or offer to pay, as made in accordance with the law by the debtor, that sum of money cannot afterwards be regarded in law as an arrear for which the debtor is responsible. Mookerjee, J. in his judgment held: It is tolerably plain that if rent has been duly tendered before or at the time when it falls due, and the tender has been improperly refused, the rent cannot legitimately be said to be in arrear. Mookerjee, J. in his judgment held: It is tolerably plain that if rent has been duly tendered before or at the time when it falls due, and the tender has been improperly refused, the rent cannot legitimately be said to be in arrear. The term 'arrear' involves a twofold notion, namely, that there is a debt, and that the time for payment of it has expired; in other words, arrear is that which is behind in payment or which remains unpaid though due; there is no ambiguity about the word. There must be a debt, and it must also be due, because no payment has been made. To put the matter in another way, rent which has been properly tendered and which has been improperly refused, is rent still due, but it is not strictly rent in arrears as the tenant was not 'behind' to make payment when the rent fell due. I am unable to hold that the legislature ever intended that rent which had been properly tendered and improperly refused was to be treated as an arrear upon which it would be obligatory on the courts to allow interest. 16. It will thus appear that a tenant who has made a valid tender of the rent which fell due, in law cannot be treated as a tenant in arrears of rent nor even can the rent be said to be in arrears although the amount actually still remains payable to the landlord whether in the hands of the tenant or in deposit in court. 17. Mr. Justice Kaul in the case of Gaya Prasad Shastri v. Ramji Lal ILR 1949 All. 135 relying on the aforesaid Full Bench case of the Calcutta High Court held that when rent was remitted by the tenant to the landlord every month as it fell due, but it was improperly refused when tendered, the tenant cannot legitimately be said to be in arrears within the meaning of Clause 7 of the Lucknow Rent Control and Eviction Order of 1944. In the case of Abdul Baqi v. Akhlaq Ahmad 1963 AWR 18 a Division Bench of this Court held: When the law contemplates payment within the time laid down in the notice it must be held that tendering of full payment within that time is complete compliance with the requirements of the notice. In the case of Abdul Baqi v. Akhlaq Ahmad 1963 AWR 18 a Division Bench of this Court held: When the law contemplates payment within the time laid down in the notice it must be held that tendering of full payment within that time is complete compliance with the requirements of the notice. In other words, the learned Judges construed the phrase "has failed to pay the same to the landlord" in Section 3(1)(a) of the Act to include the words "has failed to tender". If tender of rent after service of notice u/s 3(1)(a) of the Act can be accepted as equivalent to payment itself, there is no reason to hold that before any such notice is given a tenant tendering rent as and when it falls due can be said to be in arrears since the landlord has refused to accept payment. At any rate, for the purpose of considering whether such a tenant is in arrears of rent or not the tender must be equated with payment. In Zareef Khan v. Mukhtar Ahmad 1964 AWR 91 referring to the provisions of Section 3(1)(a) of the Act it was held: The material time being the actual service of notice, if before it is served the tenant makes or tenders payment the effect of which is to reduce the arrears of three months rent or less, he cannot be served with a notice of demand Under Clause (a), and any notice reaching the tenant after he had tendered this payment is not a valid notice Under Clause (a). The learned Judge further observed in para 21 of the judgment as follows: Counsel for the Respondent landlord argued that it is the tenant's duty as a debtor to go to the landlord and tender rent and the Appellants could not ask the Respondent to collect rent from him. He also contended that the landlord's refusal to accept rent does not wipe out the arrears, and Under Clause (a) the tenant is under a duty to tender rent whenever the landlord demands it. Neither of these two arguments has any substance. It is true that a debtor must seek his creditor. But he is not required to approach him again and again after he has refused to accept payment several times without lawful excuse. Neither of these two arguments has any substance. It is true that a debtor must seek his creditor. But he is not required to approach him again and again after he has refused to accept payment several times without lawful excuse. If the circumstances indicate that the landlord's refusal is deliberate and for some reasons he does not want the rent to be paid off, the tenant is relieved of his obligation to go to the landlord to make payment and is entitled to ask him to collect the rent or to give an assurance that he is prepared to accept it. If the circumstances of the landlord's previous refusals make it certain that he will refuse again the tenant need not make a useless or futile remittance. The aforesaid observation of Dhavan, J. also lends support to the proposition that a tenant who has made a valid tender of rent is not a tenant who can be legally said to be a tenant in arrears of rent. We do not consider it necessary to endorse the views of Dhavan, J. in toto, but we agree with the underlying principle contained in the observation, just referred to above. Reliance was placed on behalf of the landlord on the case of Behari Lal v. Babu Rain 1964 AWR 172: ALJ 459 in which it was observed by Oak, J. as follows: All that Clause (a) requires is that the tenant should be in arrears of rent for more than three months. Such arrears can be the subject matter of a notice of demand to be served upon the tenant. There is no indication in Clause (a) that, such arrears must be recoverable through court. As explained above, a tenant's liability to pay arrears of rent is not extinguished, even if the landlord is not able to enforce payment through court due to the law of limitation. In that case Satish Chandra, J. observed as follows: Clause (a) uses the pharse "arrears of rent". There is nothing either in the object or in the language of this provision to indicate that this phrase is meant to convey anything different than what is generally understood". In that case Satish Chandra, J. observed as follows: Clause (a) uses the pharse "arrears of rent". There is nothing either in the object or in the language of this provision to indicate that this phrase is meant to convey anything different than what is generally understood". The question which fell for decision in Behari Lal's (supra) case was as to whether in a notice of demand u/s 3(1)(a) of the Act the landlord was entitled also to include an amount for which he had obtained a decree on account of arrears of rent but the execution of such a decree had become barred by limitation. It was held that although the claim may have become unenforceable in a court of law by virtue of the provisions of the limitation Act yet the debt was not extinguished and the said amount could also be included by the landlord in a notice of demand u/s 3(1)(a). The question as to when a tenant is in arrears of rent within the meaning of Clause (a) was neither considered nor decided. Whether the view expressed by the learned Judges in Behari Lal's (supra) case was correct or not is not a matter into which we need go into at all. In the same volume of 1964 ALJ a decision of Dhavan, J. in the case of Bal Krishna Gupta and Ors. v. Brijeshwari Prased (supra) at page 175 is reported. This decision, however, in our opinion, is not material on the question with which we are directly concerned. In the case of Bhagwan Prasad v. Ram Chandra and Anr. 1955 AWR 649 Randhir Singh, J. held: ...the Defendant had tendered the amount of rent from month to month or, at any rate, for the entire period not only up to the date of the notice but even for the month of October for which rent had not fallen into arrears on the day when the notice was served. There were, therefore, no arrears, so to say, which had not been tendered to the Plaintiff upto the date of the notice or which were about to fall due within one month of the notice. The case was governed by the provisions of Section 3(1)(a) of the Act before its amendment in 1954 and it was held that the non-payment of rent by the Defendant could not be deemed to be wilful. The case was governed by the provisions of Section 3(1)(a) of the Act before its amendment in 1954 and it was held that the non-payment of rent by the Defendant could not be deemed to be wilful. But the observations of the learned Judge would also aptly apply in a case u/s 3(1)(a) even after its amendment after 1954. Mithan Lal, J. in the case of Khushro S. Gandhi v. Ferjungi J. Gandhi 1962 AWR 862 held that where the tenant lawfully tendered and paid the rent due from him month by month and it was the landlord himself who unlawfully refused to accept the rent the tenant was not in arrears of rent at all. On principle Mithan Lal, J. also accepted that valid tender of rent is tantamount to payment and a tenant making such tender cannot be said to be in arrears of rent. The same view was expressed by Dhavan, J. in Kishori Lal v. Tirloki Nath 1962 AWR 274. The relevant passage from his judgment is noted below: The landlord sent his notice of demand for Rs. 30 which reached the tenant on 4th January. The amount included Rs. 10/- which had been remitted already by him. If the money order had not been wrongfully refused by the landlord the tenant would not have been in arrears for he remitted a further sum of Rs. 20 on 25th January which was accepted by the landlord. If the tenant tenders rent but the landlord wrongfully refuses to accept any part of it, the tender will be treated as equivalent to payment for the purpose of Section 3(1)(a) of the Control of Rent and Eviction Act, and the landlord cannot treat the tenant as a defaulter as regards the part of the rent which was refused by him. Dhavan, J. had expressed a similai view previously also in the case of Ram Krishna Prasad v. Mohd. Yahia 1960 AWR 437 and had held: If a landlord without lawful excuse refuses to accept rent tendered by the tenant, he cannot afterwards treat the tenant defaulter or serve a notice of demand u/s 3(1)(a) as an excuse for filing a suit for ejectment. Such a notice would be malafide and a fraud on the section. Yahia 1960 AWR 437 and had held: If a landlord without lawful excuse refuses to accept rent tendered by the tenant, he cannot afterwards treat the tenant defaulter or serve a notice of demand u/s 3(1)(a) as an excuse for filing a suit for ejectment. Such a notice would be malafide and a fraud on the section. The learned Judge was, therefore, in error in treating as irrelevant the Appellant's evidence that he had tendered payment several times before receiving the notice of demand. Reference was also made to the case of Saliq Ram v. Motilal 1960 ALJ 459: AWR 48 (J) decided by Oak, J. The question whether the tenant in that case was in arrears of rent at the time when notice u/s 3(1)(a) was given was not considered. The matter which fell for consideration was as to whether telegraphic remittance of the money by the tenant which had not been proved to have been taken by or tendered to the Plaintiff within the prescribed time protected the tenant from the ejectment suit. It would appear from this case also that if the amount had been actually tendered to the landlord within the required time, such tender would have been held to be sufficient to take the case out of the mischief of Section 3(1)(a) of the Act on the basis that the word "failed to pay" would also include "failed to tender." On behalf of the tenant reliance was placed on a decision from the Patna High Court in the case of S.K. Shaw and Brothers Vs. Brij Raj Krishna and Another, AIR 1949 Patna 474 and in particular on the passage noted below: It is well settled that a party is not bound to make a useless tender when he knows', for certain that this tender would be refused. See Alexander John Forbes v. Baboo Latchmeput Singh MIA 330 344 : 10 BLR 139 PC and Chelikani Venkatarayanim Garu v. Venkata Subbadrayamma 28 GWN 25 : AIR (10) 1923 PC 26. 18. Din Elahi the tenant was admitted to have sent two money orders for Rs. 3/8/- and Rs. 7/- respectively in the months of May and June, 1958. These money orders were refused and, therefore, it was urged that he could not have been called upon to make a useless tender again which in all likelihood would not have been accepted. 19. 3/8/- and Rs. 7/- respectively in the months of May and June, 1958. These money orders were refused and, therefore, it was urged that he could not have been called upon to make a useless tender again which in all likelihood would not have been accepted. 19. Strong reliance was placed on behalf of the landlord on the Division Bench decision of this Court in the case of Ram Babu Vs. Pershadi Lal, AIR 1964 All 192 The decision in this case does support the landlord directly. The judgment however, is very brief and does not appear to be based upon logical conclusions arrived on a full consideration of the relevant provisions of the Transfer of Property Act, the Contract Act and also those of the UP (Temp.) Control of Rent and Eviction Act itself. The learned Judges did not even hold that Khushro's case (supra) was wrongly decided but distinguished it on facts. The observations made in Ram Babu's case (supra), we may say with utmost respect, are too wide and do not appear to have been made upon a consideration of the pros and cons pertaining to the whole matter. In any event, after giving our anxious thought to all aspects of the case, we have come to a definite conclusion that Ram Babu's case was wrongly decided. 20. On a consideration of the whole matter we are of opinion that the question referred to the Full Bench must be answered in tenant's favour and it must be held that where a tenant remits rent by money order and the amount remitted covers rent for a particular month and the landlord refuses to accept the same the tenant cannot be said to be in arrears in respect of that month within the meaning of Section 3(1)(a) of the UP (Temp.) Control of Rent and Eviction Act B. Dayal, J. 21. The following question of law has been referred to this Full Bench by a Division Beach of this Court because the learned Judges thought that the decision in the Division Bench case of Ram Babu v. Parshadi Lal (supra) maybe reconsidered in view of the fact that there were a number of single Judge decisions taking a contrary view: Where a tenant remits rent by a money-order and the amount remitted covers rent for a month and the landlord refuses to accept the same, can the tenant be said to be in arrears in respect of that month within the meaning of Section 3(1)(a) of the UP (Temp.) Control of Rent and Eviction Act. 22. The case arises under the UP (Temp.) Control of Rent and Eviction Act and the facts of the case are now no more in dispute. The Appellant, Smt. Indrasani was the landlady of a building, one room of which had been let out to the Respondent Din Ali at Rs. 3/8/- per month. The Plaintiff's case was that the Defendant had not paid rent for the months of March, April, May and June, 1958 and hence the Plaintiff served a notice of demand and terminated the tenancy of the Defendant in July, 1958. Within one month from the service of that notice the rent demanded was not paid. Hence the suit was filed for the recovery of Rs. 17/8/- as arrears of rent for the months of March to July, 1958, the suit having been filed in August, 1958. In the written statement the defence taken by the tenant was that he had paid the rent of March, 1958 in cash to the Plaintiff and he had subsequently sent two money-orders--one for Rs. 3/8/- in the month of May, 1958 and the other for Rs. 7/- in the month of June, 1958 which were refused by the Plaintiff. Hence the Defendant was not in default and the Plaintiff had no right to file a suit. The trial court decreed the suit holding that the Defendant had not paid the rent for the month of March, 1958 and that the refusal by the Plaintiff of the two money orders sent by the Defendant in May and June, 1958 could not protect the tenant from his ejectment as he had failed to pay the amount after notice within the prescribed period. On appeal, the decision of the trial court was upheld and thus the suit was decreed by both the courts below. The Defendant filed a second appeal in this Court which was heard by a learned single Judge of this Court, who was of the opinion that the courts below had made a mistake in treating the Defendant as in "wilful" default. The reasoning, which appealed to the learned single Judge, was "if the Plaintiff-Respondent had accepted the money-order which was sent on 22-5-1958, there could not have been arrears for three months. The arrear was the result of the action of the Plaintiff-Respondent and she cannot be allowed to take advantage of it". It was further observed that "in a suit filed in a court of law, for taking up the plea that inasmuch as the amount sent by him had been wilfully refused by the landlord, it cannot be treated to be a case of arrears, and that if arrears existed that was because of the fault of the landlord himself." On these findings, the whole suit was dismissed. The decree for rent also was not maintained. Apparently, the learned single Judge was of the opinion that the amount having been offered once by means of the money orders, it must be deemed as paid and the Plaintiff was not entitled to a decree either for arrears of rent or for ejectment. On these facts, the question for consideration is whether the view of the learned single Judge was right. The relevant provision of the UP (Temp.) Control of Rent and Eviction Act (hereinafter called the Act) is in the following words: Section 3(1)...No suit shall, without the permission of the District Magistrate, be filed...except on one or more of the following grounds: (a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of the notice of demand. Under this section, before a suit for ejectment of a tenant can be filed without the permission of the Distt. Magistrate, three conditions have to be satisfied. (i) that the tenant is in arrears of rent for more than three months, (ii) he has been served with a notice of demand, and (iii) the tenant has failed to pay the same within one month of such service. Magistrate, three conditions have to be satisfied. (i) that the tenant is in arrears of rent for more than three months, (ii) he has been served with a notice of demand, and (iii) the tenant has failed to pay the same within one month of such service. In the present case, there is no dispute about the fact that the last two conditions are satisfied. The only point for consideration is whether in the circumstances mentioned above, it can be said that the tenant was in arrears of rent for more than three months. To my mind, the fact that the rent for the months of March, April, May, June and July, 1958 was due from the tenant, cannot be doubted. At the best, three months rent had been tendered to the landlady partly in May and partly in June, 1958 which was not accepted by the landlady. The point for consideration really is the effect of such tender and refusal. u/s 108 Sub-section (1) of the Transfer of Property Act it is the duty of the lessee "to pay or tender" rent to the landlord. The Transfer of Property Act only enumerates the duties of the tenant. In this case, all that can be said, is that the tenant; performed that duty in tendering the rent by money-orders. The Transfer of Property Act does not go further and does not indicate what is the result either of making the tender which is refused or of not making the payment or tender and thereby committing a breach of duty Section 38 of the Contract Act gives the effect of a valid tender having been made and refused, which is as follows: Where a promisor has made an offer of performance to the promisee and the offer has not been accepted, the promisor is not responsible for non-performance nor does he thereby lose his rights under the contract. Therefore, under this section the only effect of a valid tender which is refused is, that the promisor is not treated as having broken the contract and he is not held responsible for the nonperformance. He also does not lose his other rights under the contract which would otherwise do on such non-performance. This section does not provide that in case where an offer or performance is made and is refused, the performance shall be deemed to have been made. He also does not lose his other rights under the contract which would otherwise do on such non-performance. This section does not provide that in case where an offer or performance is made and is refused, the performance shall be deemed to have been made. The fact, therefore, remains that as a fact a part of the promise remains unperformed and obviously if later on, the promisee wants the performance thereof, there is no reason why it should not be performed when so demanded. Particularly in a case where that part of the performance is the payment of money under a contract, a tender of money at a proper time alone is not considered to be a valid tender. In order to prove that a tender was valid, it has further to be established that the tenderer was always able and willing to make the payment subsequently whenever demanded. This principle is well established in law and it is sufficient to quote the summary of it from the Halsbury's Laws of England, 3rd Edition, Vol. 8, paragraph 289, the relevant part of which is as follows: Where, however, the promise is to pay a sum of money the debt is not discharged by a tender of payment but such tender coupled with continued readiness to pay the debt is an answer to a subsequent action for non-payment if the amount of debt is paid into court and operates as a bar to any claim for subsequent interest...a plea of tender will fail if the Plaintiff can show that at any time whether before or after tender a demand for the payment of performance was made by him and was not complied with.... This position has never been doubted and has been followed both in England and in India and it is not necessary to burden this judgment by quoting further authorities. The position, therefore, is quite clear that Section 3 of the Act mentioned above, is wholly consistent with the general principle of law noted above. Where a landlord refuses to accept money, the rent remains unpaid, and under the Act no liability of the tenant arises merely from the fact of the rent remaining unpaid. The position, therefore, is quite clear that Section 3 of the Act mentioned above, is wholly consistent with the general principle of law noted above. Where a landlord refuses to accept money, the rent remains unpaid, and under the Act no liability of the tenant arises merely from the fact of the rent remaining unpaid. The law further provides that the landlord must make a demand for the payment of that amount and even when the money is not paid on that demand within a reasonable period of one month prescribed by the legislature, only then the consequence of a liability of ejectment of the tenant has been provided for. The provision of law, therefore, envisages the ejectment of a tenant only in a case where a tender, though once made, is not kept alive and as such is not a valid tender at all. If the provisions of the Act are, therefore, complied with, the previous tender made by the tenant is proved to be not a valid tender and the tenant is not entitled to any benefit on that account. I am, therefore, of the opinion that the legislature while providing the first condition mentioned above, namely, that "the tenant is in arrears of rent for more than three months" was not using the words "arrears of rent" in any special or technical sense. The term was used as in ordinary English language indicating the fact that rent had not actually been paid to the landlord and was in consequence an arrear of rent. 23. The legislature did not stop there and did not leave the matter so difficult for the tenant as required by the general law that he roust after making the first tender at the proper time always keep the money ready in hand and be vigilant to pay to the landlord whenever the money is demanded and in order to help the tenant to get out of this difficult situation against a landlord, who unreasonably refuses to receive the rent, made a provision in Section 7-C of the Act. Sub-section (1) of that section provides that in case a landlord refuses to accept any rent lawfully offered to him by the tenant, the tenant may deposit such rent in court. Sub-section (1) of that section provides that in case a landlord refuses to accept any rent lawfully offered to him by the tenant, the tenant may deposit such rent in court. The tenant has also been given a right to continue depositing such rent in respect of that accommodation subsequently also without making a fresh offer to the landlord. To this provision also there is an exception that such deposits will not be made if in the meantime the landlord signifies, in writing, his willingness to accept the rent. The other sub-sections are merely procedural but Sub-section (6) is important and should be quoted in extenso: In any case where a deposit has been made as aforesaid it shall be deemed that the rent has been duly paid by the tenant to the landlord. This sub-section creates a legal fiction. Although the rent has actually not been paid to the landlord, yet it provides that for all purposes, such a deposit in court shall be deemed to be a payment to the landlord. The very existence of such a provision of law indicates the intention of the legislature that unless such a deposit is made even a good tender cannot be taken equivalent to the rent having been paid to the landlord, for otherwise the provision of this sub-section would become wholly ineffective. The argument that a tender once made to the landlord would amount to a payment and the rent thereafter cannot be deemed to be in arrear is therefore not only contrary to the express provision of the Act but also to the well established general principle of law. The legislature has clearly provided that unless a deposit is made in court, at no earlier stage can the amount be deemed to have been paid, for if the amount is deemed to be paid even by a mere tender, it was unnecessary to provide that it shall be deemed paid on such a deposit being made. Applying this analysis of the law to the present case the position in my view is that although the tender was made to the landlady by means of the two money orders but when the landlady did demand the rent by means of the notice, the tenant failed to pay the same within the statutory period. The result of this failure was two-fold. The result of this failure was two-fold. In the first place, the effect was that his first so-called tender was proved by the landlady to be not a valid tender as it had not been kept alive and secondly that the tenant committed a breach of the third condition provided in Sub-section (a) of Section 3(1), namely, that he failed to pay arrears of rent demanded within a month and thereby incurred a liability to be ejected. In my view, therefore, there is no escape from the conclusion to which a Division Bench of this Court reached in Ram Babu v. Parshadi Lal (supra). The learned Judge, who delivered the judgment, observed: The word 'in arrears of rent' refer to an outstanding liability in respect of rent and it is plain that if the rent for more than three months has not, in fact, been paid it must be held that this rent is in arrears.... An unsuccessful attempt on the part of the tenant to pay the rent cannot lead to the conclusion that the rent has been paid and is not in arrears even if the failure of the attempt can be attributed to the landlord. The statute is concerned with the simple fact that there is an outstanding liability respecting rent whatever the reason for it may be. 24. I will now proceed to consider some of the authorities cited on behalf of the Respondent-tenant, which have laid down some principles on which reliance was placed by the Learned Counsel for the Respondent. In Bhagwan Pd. v. Ram Chandra (supra) the facts were that the tenant had continued to tender the rent from month to month regularly or at least at intervals of a few months till the date of notice and had even sent rent for the period not due when the notice was given. This notice had been sent by the landlord on 10-10-1949, which was served on the Defendant on 15-10-1949. Two days after the notice had actually been sent by the landlord, the tenant had on 12-10-1949, already dispatched a money-order for Rs. 71/- on account of rent for the months of July to October, 1949. Thus the amount claimed in the notice was sent actually by the tenant after the notice had been sent to him although it was before the tenant actually received the notice. 71/- on account of rent for the months of July to October, 1949. Thus the amount claimed in the notice was sent actually by the tenant after the notice had been sent to him although it was before the tenant actually received the notice. This money order therefore reached the landlord after he had sent the notice and in those circumstances it was held that the tenant was not liable to ejectment but a decree for arrears of rent was still passed as the landlord had refused to accept the money order. Before the learned single Judge reliance was placed upon the case of Chhotey Lal v. L. Chhakki Lal 1952 AWR 642 in which it had been held that the refusal of the money-orders by the landlord before notice, was not material and it was the duty of the tenant to send rent after receipt of a notice and on failure to do so, he was liable to ejectment. The learned Judge, who decided Bhagwan Pd.'s (supra) case distinguished the case of Chhote Lal (supra) on facts. He did not lay down any general proposition that in all cases where the landlord had refused to receive rent before notice, the rent will be deemed to have been paid and the tenant will not be deemed to be in arrears. 25. The next case relied upon is Ram Krishna v. Mohd. Yahia (supra). It was held by the learned single Judge: If a landlord without lawful excuse refuses to accept rent tendered by the tenant he cannot afterwards treat the tenant as a defaulter or serve a notice of demand u/s 3(1)(a) of the UP (Temp.) Control of Rent and Eviction Act as an excuse for filing a suit for ejectment. Such a notice would be malafide and a fraud on the section. In these observations, I am unable to agree with at least four suggestions, which necessarily arise out of these observations, (a) a demand of rent by the landlord after refusing the tender earlier has been dubbed as malafide. I am unable to see how it can be so described in every possible case. In these observations, I am unable to agree with at least four suggestions, which necessarily arise out of these observations, (a) a demand of rent by the landlord after refusing the tender earlier has been dubbed as malafide. I am unable to see how it can be so described in every possible case. There may be a variety of cases where a landlord may be disinclined to accept the rent from the tenant either because there is some controversy between the two about the amount of arrears or about the rent fixed and he may refuse to accept the tendered rent. The landlord may reconsider the matter later and instead of entering into a litigation over the controversy with the tenant, decide to accept the rent offered by the tenant and, therefore, make demand. There will be no question of malafides in those circumstances. In my opinion the legislature has avoided an enquiry into such difficult questions of fact by making a clear provision that if the rent has actually remained unpaid and a demand is made, the tenant must pay it as is his duty under the law. (b) the second suggestion in the above remark is that the landlord cannot treat the tenant as a defaulter which, in my opinion also, is not justified. The word 'default' necessarily implies a breach of duty on the part of a tenant. A mere demand of rent does not necessarily mean that the landlord considers the tenant to have committed a breach of duty. It merely indicates that the landlord is willing to accept the rent mentioned in the notice and in the example mentioned by me above there would be no question of the landlord treating the tenant as a defaulter. Even in the section while providing for there being arrears of rent for more than three months, the legislature has not conveyed the idea of the tenant being in default but has merely confined itself to a matter of fact that the rent is in arrears. The words 'default on the part of the tenant or breach of duty on the part of the tenant have been intentionally avoided by the legislature. The words 'default on the part of the tenant or breach of duty on the part of the tenant have been intentionally avoided by the legislature. If the intention of the legislature had been that even an offer of rent once made would be sufficient to protect the tenant from ejectment afterwards, there was no difficulty in repeating the language of Section 108(1) of the Transfer of Property Act and providing something like: 'the tenant has failed to pay or tender the rent to the landlord for more than three months etc,'. The language of the Transfer of Property Act must have been known to the legislature when the UP Act was being drafted to regulate the relation between the landlord and the tenant. I am, therefore, unable to see that the words "rent is in arrears" carry with it any notion of default on the part of the tenant. This is also made clear by the fact that no penalty accrues to the tenant merely on account of rent being in arrears. But the liability of ejectment arises after he had failed to pay the arrears on receipt of a notice of demand (c) the service of notice by the landlord has been treated in the above remark of the learned single Judge as an excuse for filing the suit. I am unable to agree. Notice is not given as an excuse. Notice is given squarely to give a fresh chance to that tenant to pay up the arrears and to avoid ejectment. On receipt of notice if the tenant pays, the landlord will have no such excuse to file a suit. It is the tenant who provides an opportunity to the landlord by not making the payment and lastly (d) the tenant, as stated above, being duty bound to keep the tender alive fails in his duty when he does not make the payment even after receiving the notice of demand and when it is made clear to him that the landlord has now withdrawn his refusal to accept the money. In fact, the tenant after receiving that notice has no excuse for not making the payment on the ground that the landlord had earlier refused to accept it. I am, therefore, of the opinion that these contentions of the Learned Counsel are wholly insufficient to come to a different conclusion. 26. In fact, the tenant after receiving that notice has no excuse for not making the payment on the ground that the landlord had earlier refused to accept it. I am, therefore, of the opinion that these contentions of the Learned Counsel are wholly insufficient to come to a different conclusion. 26. The next case for consideration is Kishori lal v. Trilokinath (supra). This was again a case by the same learned Judge, who decided the case of Ram Krishna (supra) and lays down no new principle for the conclusion that a landlord has no right to give a notice u/s 3(1)(a) of the Act demanding arrears of rent which had been earlier refused. 27. Another case reported in Zarif Khan v. Mukhtar Ahmad (supra) was cited by the Learned Counsel but the facts of that case are very different and were very similar on principle to Bhagwan Pd.'s (supra) case mentioned above. Nothing more need be said about it. 28. At one stage it was also suggested that after making the tender once, which is refused by the landlord, the money remains in the hands of the tenant as a trustee for the landlord and it cannot be said to be arrears of rent any more. I cannot agree to this proposition. For creation of a trust some entrustment by a third person is essential either expressly for a purpose or for some purpose which has failed and the money remains unaccounted for in the hands of the person entrusted. The Indian Trust Act deals with such obligations Under Sections 82 to 95. None of those sections has any analogy to a case like the one in hand where a debtor seeks to pay his creditor but fails on account of refusal by the creditor. To my mind, no question of trust arises in such cases. 29. Great reliance has also been placed by the Learned Counsel for the Appellant (tenant) on a five judge Full Bench decision of the Calcutta High Court in Kripa Sindhu Mukerji v. Annda Sunderi Debi (supra). That was a case under the Bengal Tenancy Act and the question was whether the Plaintiff was entitled to a decree for interest on "arrears" of rent. That was a case under the Bengal Tenancy Act and the question was whether the Plaintiff was entitled to a decree for interest on "arrears" of rent. Section 54(3) of the Act defined "arrear" as an instalment or part of instalment of rent not duly paid at or before the time when it falls due shall be deemed an "arrear". It will be noticed that under this definition rent becomes "arrear" if not tendered when it becomes due. Even a subsequent tender will not save it from becoming "arrear" in the technical sense as defined. u/s 61 the tenant was permitted to deposit rent in court and obtain receipt u/s 82 which was to operate as an acquaintance as if payment had been made to the true landlord. And then Section 67 provided that "arrear shall bear interest at 12 1/2% p.a. till the date of institution of the suit". On facts it was found that the tenant had tendered rent, instalment by instalment, bat had been refused by the landlord as he wanted higher rent. When three years were about to expire and a suit was threatened the tenant again tendered rent both to the Plaintiff's lawyer and his agent but was refused and then the whole amount was deposited u/s 61 in court before the suit was actually filed. In the suit the Plaintiff was not found entitled to any enhanced rent and the suit was dismissed by the courts below and the Plaintiff was allowed to withdrawn the money in deposit. The Plaintiff appealed to the High Court claiming interest u/s 67. The matter was referred to a Full Bench due to earlier conflict in that court. Rampmi, ACJ held that (i) as the rent had neither been paid nor deposited Under Sections 61 and 62 it was in arrear and liable to interest. He also held (ii) that the tender of rent was also not valid as it was not kept good because the tenant did not tender full past rent with each instalment and was therefore shown to have not been always able and willing to pay the rent. Mr. Justice Brett took a different view and held that the tender was valid as it was sufficient to prove that after tender each instalment was kept in hand by the Defendant ready to be paid to the Plaintiff on demand. Mr. Justice Brett took a different view and held that the tender was valid as it was sufficient to prove that after tender each instalment was kept in hand by the Defendant ready to be paid to the Plaintiff on demand. He also he d that the deposit u/s 61 was optional with the tenant. He then posed the question "can rent which is tendered with the intention of paying it to the person to whom it is due at the time when it is due but which is without good cause not received by the person to whom it is due, be regarded as an arrear within the meaning of the law." And he answered it in the negative. Obviously he was using the word "arrear" in the special sense as defined in Section 54(3) of the Act on which interest was payable u/s 67. But in the UP Act there is no technicality about it and the words "the tenant is in arrears" merely refer to a state of facts existing. Mr. Justice Mitter agreed with the Acting C.J. in holding that in order to escape the liability for tent the tenant must make a deposit u/s 61 if he fails to pay. He held that equitable principle embodied in Section 38 of the contract Act had no application in view of the special provisions of the Bengal Tenancy Act. Mr. Justice Woodroffe merely agreed with Brett, J. and did not give a separate judgment. Mr. Justice Mukerjce gave a long judgment and held that the provisions of Bengal Rent Act did not change the existing law and came to the conclusion that "rent which has been properly tendered and which has been improperly refused is rent still due, but is not rent strictly in arrear as the tenant was 'inclined' to make payment when the rent fell due." He also held that the tender was valid as the "Defendant was always ready and willing to pay the money if the Plaintiff expressed his willingness to accept it." 30. On the above facts, the ruling is clearly distinguishable from the present case for several reasons. (i) In the Bengal case liability to pay interest arose out of mere non-payment in time. On the above facts, the ruling is clearly distinguishable from the present case for several reasons. (i) In the Bengal case liability to pay interest arose out of mere non-payment in time. So it was in the nature of penalty or damages for default but under the UP Act the fact of non payment does not itself entail any penalty but merely entitles the landlord to make a demand. It is the failure to pay after such demand that the liability to ejectment results. So that, in finding the arrears no element of default or penalty is involved. (ii) In the Bengal case the tender was held to be valid by four learned judges and all the five considered it necessary to avoid liability to pay interest. In the present case the tender is proved to be invalid when the tenant failed to pay even after service of notice of demand indicating that the landlord was willing to accept rent. Thus the original tender is not kept alive and hence invalid and of no avail to the tenant. (iii) Under the Bengal Act there was no provision like 7-C of the UP Act which provided an alternative remedy for the particular case where the landlord refused to accept rent and created a fiction that the deposit will be deemed to be payment to the landlord Under Sub-section (6). The creation of this fiction by necessary implication means that the legislature considered that the mere refusal by the landlord to accept rent would not lead to the conclusion that rent be deemed paid unless a deposit u/s 7-C was made, for otherwise, the whole of Section 7-C and particularly Sub-section (6) would be useless. Section 61 of the Bengal Act was a general right to deposit. 31. I, therefore, hold that the Appellant derive no help from Kripa Sindhus case (3). 32. The result therefore is that in' my opinion the question referred to this Full Bench must be answered as follows: Where a tenant remits rent by money order and the amount remitted covers rent for a month and the landlord refuses to accept the same, the tenant must be said to be in arrears of rent in respect of that month within the meaning of Section 3(1)(a) of the UP (Temp.) Control of Rent and Eviction Act. Such a tender cannot be treated as valid payment so as to enable the tenant to escape the consequence of default after receipt of the notice. 33. Let the papers be sent back to the Division Bench with the above answer. 34. We answer the question referred to us according to the majority view in the negative and hold that where a tenant remits rent by money order and the amount remitted covers rent for a particular month and the landlord refuses to accept the same, the tenant cannot be said to be in arrears in respect of that month within the meaning of Section 3(1)(a) of the UP (Temp.) Control of Rent and Eviction Act. 35. Let the case be sent back to the Division Bench with the above answer.