RAMENDRA MOHAN DATTA, J. ( 1 ) THE Defendant No. 1 was a lessee under the plaintiff by virtue of an Indenture of Lease dated January 12, 1961, in respect of the south-western section of the second floor of the premises No. 10, Bentinck Street, Calcutta, for a period of 21 years at a rent of Rs. 815 per month. One of the restrictive clauses in the said lease provided that the defendant would not be able "to sign the lease, transfer, sublet, or underlet in any from whatsoever the demises or any part thereof without the lessor's previous consent in writing". ( 2 ) IN 1961, the plaintiff gave consent to the Defendant No. 1 to sublet a portion of the demised premises to Messrs Edward Keventers (Successors) Private Ltd. subject to the condition that at the expiration or sooner determination of the said lease the Defendant No. 1 would remain bound to give back possession of the suit premises to the plaintiff free of such occupant, namely, Messrs Edward Keventers (Successors) Private Ltd. ( 3 ) THE plaintiff contends that on July 4, 1963, the Defendant No. 1 shifted its office to No. 1, Netaji Subhas Road, First floor, Calcutta, and sometimes prior to that date the Defendant No. 1 wrongfully transferred the residue of the suit premises, besides the portion sublet as aforesaid to Messrs Edward Keventers (Successors) Private Ltd. , in favour of two companies by the names of Patiala Biscuit Manufacturers Private Ltd. and South East Asia Industries Private Ltd. Thereupon the plaintiff caused a notice to be served upon the Defendant No. 1 on November 28, 1963, determining the said lease and calling upon the Defendant No. 1 "to make over vacant possession of the suit premises to the plaintiff immediately upon the expiry of the 31st day of December, 1963". ( 4 ) THE plaintiff's further contention is that the Defendant No. 1 defaulted in payment of rent for the months of July, August, September and Officer-in-Charge, 1963 and as such, the lease was determined and/or forfeited by that same notice. ( 5 ) BY a notification dated January 14, 1964, issued by the Central Government in its Ministry of Food and Agriculture (Department of Food), the management of the undertaking of the Defendant no. 1, known as Samastipur Central Sugar Co. ( 5 ) BY a notification dated January 14, 1964, issued by the Central Government in its Ministry of Food and Agriculture (Department of Food), the management of the undertaking of the Defendant no. 1, known as Samastipur Central Sugar Co. Ltd. , was taken over by the Central Government, and the Central Government in its turn appointed one Sri J. P. Goel as the authorized controller and authorized him to take over the management of the Defendant No. 1. The Union of India has been made the Defendant No. 2 and the Sri J. P. Goel has been made the Defendant No. 3 herein. ( 6 ) BY a notice dated March 30, 1964, the secretary of the Defendant No. 1 intimated the plaintiff that the Defendant No. 1 would quit and vacate the suit premises No. 10 Bentinck Street, Second floor, Calcutta-1, on the last day of the month of June 1964 on the expiry of which relationship of learned and tenant between the two parties in respect of the aforesaid premises would cease. The plaintiff was requested to take possession of the last day of the month of June 1964 in default of which it was intimated that the Defendant No. 1 would not be liable in respect of the said lease. It was specifically mentioned in the said notice that the company had been taken over by the Government of India, in its Ministry of Food and Agriculture (Department of Food), New Delhi-2, under the Defence of India Rules, 1962. ( 7 ) IT will be observed from the above that by that letter the Defendant No. 1 wanted to quit and vacate on the last day of June, 1964, but before that time expired, by another letter written on or about May 30, 1964 the secretary of the Defendant No. 1 intimated their intention to revoke the previous letter dated March 30, 1964, terminating the said lease. It was further intimated that their present decision was to continue the tenancy under the lease. By letter dated June 5, 1964, the plaintiff protested. Thereafter, certain correspondence followed and ultimately after serving a notice under Section 80 of the Code of Civil Procedure the plaintiff filed this suit. It was further intimated that their present decision was to continue the tenancy under the lease. By letter dated June 5, 1964, the plaintiff protested. Thereafter, certain correspondence followed and ultimately after serving a notice under Section 80 of the Code of Civil Procedure the plaintiff filed this suit. From the letter dated August 18, 1964, written by the authorized controller to the plaintiff's Advocate, it appears that there were defaults in payment of rent since July, 1963 in respect whereof the authorized controller requested the plaintiff to make contacts with the said secretary of the Defendant No. 1 for payment and the copy of the said letter was forwarded to the said secretary by the said authorized controller. ( 8 ) ONLY the Defendant No. 1 has filed its written statement. Although the Defendant No. 3 has entered appearance through the same Attorneys he has not chosen to file any separate written statement. In the written statement filed herein in para 5 thereof there is clear denial about default in payment of rent, but the denial as regards the transfer of tenancy is very evasive. The said defendant states as follows: with regard to para 7 of the plaint, this defendant denies that the Defendant No. 1 transferred the residue of the said premises to the two companies, namely, Patiala Biscuit Manufacturers Private Ltd. and South East Asia Industries Private Ltd. as alleged. Save as aforesaid, the statements made in the said paragraph are substantially correct. ( 9 ) THE last two sentences in para 7 of the plaint provide as follows: sometime prior to the said date, namely 4th July, 1963, the defendant transferred to the two companies, namely, Patiala Biscuit Manufacturers Private Ltd. (hereinafter for the sake of brevity called Patiala Biscuit Co.) and South East Asia Industries Private Ltd. (hereinafter for the sake of brevity called South East Asia Co.), severally the residue of the suit premises besides the portion thereof already subject to Edward Keventers aforesaid. Thus the defendant has ceased to be in actual occupation of any portion of the suit premises from the time the said three companies have been occupying the entire suit premises. Thus the defendant has ceased to be in actual occupation of any portion of the suit premises from the time the said three companies have been occupying the entire suit premises. ( 10 ) THE above denial appears to suggest that the Defendant No. 1 was denying the date of the transfer as mentioned in the plaint, but otherwise the other statements made in the said para 7 of the plaint had been admitted. If the fact of transfer was to be definitely denied then after the words 'as alleged' the words' or at all' would surely have been added. ( 11 ) AS regards the notice dated March 30, 1964, nothing has been stated about its invalidity save and except that the Defendant No. 1 has craved reference to it for ascertaining the contents and effect thereof. The defendant states that the tenancy continues because the said notice was withdrawn. ( 12 ) IT is necessary here to mention that after the Defendant No. 1 entered appearance through its Solicitor the plaintiff made an application under Chapter XIIIA of the Rules of the Original Side of this High Court for summary judgment and in the said application an order was made by consent on August 18, 1965, to the following effect: it is ordered that the said defendants do within one month from the date hereof deposit with the persons mentioned hereinafter the sum of Rs. 15,485 equivalent to the rent for the period from January, 1964 to July, 1965 and also do within one month from the date herein pay the said decretal amount of Rs. 4,890. And it is further ordered that the said defendants shall go on depositing every month by the 15th day of each succeeding month the sum of Rs. 815 the amount equivalent to the rent from the month of August, 1965 and it is further ordered that all such deposits and payment as hereinbefore mentioned to be made to Sovendra Nath Ghose, Attorney for the Plaintiff, with liberty to him to make over the said moneys to the plaintiff as and when it comes to his hands and it is further ordered that in default of the said defendants making such payments of the said decretal amount or making the said deposit of the said sum of Rs. 15,485 or making any three of the said monthly payments of the sum of Rs. 815 as aforesaid within the time aforesaid a decree as of this day be drawn up in favour of the plaintiff for possession in terms of clause (a) (1) of the said Master's Summons and for mesne profits at the rate of the sum of Rs. 815 per month from the 1st day of October, 1964 for the balance that may remain due if payment is made in the meantime and for costs. And it is further ordered that if at all such payments and deposits as aforesaid are made within the aforesaid the said defendants shall within one month from the date hereof file their written statement in this suit herein. And it is further ordered that the parties to this suit as aforesaid shall within one week from the date of the reopening of this Court the after ensuing long vacation file their affidavits as to documents in their respective possession or power relating to the matters in question in the suit and shall forthwith thereafter allow each other inspection of the documents to be discovered in their said affidavits except such of them, if any, as they may, thereby object to produce. And it is further ordered that this suit be placed in appropriate prospective list of suits on the 3rd day of January next and it is further ordered that the parties to the suit appearing as aforesaid be at liberty to apply to this Court for having an early date to be fixed for the hearing of this suit. And it is further ordered that if all such payments are made on the prompt date as aforesaid the costs of and incidental to this application be costs in this suit. ( 13 ) IN the recital part of the said consent order the said sum of Rs. 4,890 has been described as arrears of rent from July to December, 1963. ( 14 ) THE effect of the said consent order was that by consent the suit was partly decreed for the sums mentioned therein, but as regards the rest of the claim in the plaint the defendants were given conditional leave to defend - the condition being the payment of the decretal amount and the deposit of the amounts of the monthly sums as stated therein. But in default of any of the aforesaid payment or deposits the suit was directed to be decreed in full including the decree for possession and mesne profits from October 1, 1964. ( 15 ) THE defendants having performed the said obligations under the said order were allowed to defend the other part of the suit and to take steps as provided therein. Pursuant thereto the Defendant No. 1 only filed its written statement and the suit has come up before me for final disposal thereof. ( 16 ) THE following issues were raised at the trial: (i) Did the Defendant No. 1 transfer any portion of the demised premises to M/s. Patiala Biscuit Manufacturers Private Ltd. or to South East Asia Industries Private Ltd. (ii) Has the tenancy of the Defendant No. 1 been determined by the notice dated November 28, 1963, as alleged in para 9 of the plaint. (iii) What is the effect of the letter dated May 30, 1964, by which the Defendant No. 1 wanted to withdraw the notice to quit served by them on March 30, 1964. (iv) Was the defendant ready and willing to pay all arrears of rent to the plaintiff as alleged in para 14 of the written statement. (v) What relief, if any, is the plaintiff entitled to. ( 17 ) THE plaintiff has given evidence besides calling two other witnesses to prove that the Defendant No. 1 had left the suit premises and had transferred its tenancy in favour of the said two companies. The Defendant No. 1 did not call any witness. ( 18 ) WITH regard to issue No. (i) I have already indicated hereinabove about the pleadings made in para 7 of the plaint and the evasive denial thereof in para 5 of the written statement of the Defendant No. 1. Besides the above pleadings, there is enough evidence both oral and documentary from which it appears that the remaining portion of the premises in suit was transferred in favour of M/s. Patiala Biscuit Manufacturers Private Limited and to M/s. South East Asia Industries Private Limited. It is also in evidence that by and with the consent of the plaintiff the Defendant No. 1 had previously transferred a portion of the tenancy in favour of M/s. Edward Keventers (Successors) Private Limited. It is also in evidence that by and with the consent of the plaintiff the Defendant No. 1 had previously transferred a portion of the tenancy in favour of M/s. Edward Keventers (Successors) Private Limited. It is further in evidence that the plaintiff himself went to the demised premises in the middle of November, 1963 when he did not find the Defendant No. 1 but found in its place the aforesaid three concerns, viz. , M/s. Edward Keventers (Successors) Private Limited, Patiala Biscuit Manufacturers Private Limited and South East Asia Industries Private Limited. The plaintiff further stated in evidence that he found the signboards of the said three concerns both on the ground floor as also in the second floor; he did not find anybody of M/s. Samastipur Central Sugar Company Limited. On the question of transfer of the suit premises in favour of the two said concerns without the consent of the plaintiff, as indicated above, the plaintiff has also called two other witnesses. One Ajit Kumar Banerjee has been called from the Calcutta Telephones. He was the investigating inspector of the Calcutta Telephones. He has produced from the file kept in the name of the Defendant No. 1 with Calcutta Telephones, letters asking the Calcutta Telephones to shift their telephone No. 23-8487 from No. 10, Bentinck Street, second floor, to No. 1, Netaji Subhas Road, belonging to Samastipur Central Sugar Co. Ltd. The telephone directory has also been tendered as an exhibit and at page 736 the relevant telephone numbers appears in the name of Samastipur Central Sugar Co. Ltd. The other witness has been called on behalf of the plaintiff is one Sourendra Nath Roy Chowdhury, a clerk of the Central Telegraph Office. He has produced record from the Central Telegraph Office wherefrom it appears that the telegraphic address of M/s. Patiala Biscuit Manufacturers Private Limited was registered in respect of premises No. 10, Bentinck Street, Calcutta, on and from June 11, 1962. ( 19 ) ON behalf of the defendant no witness have been called to contradict the plaintiff and his witnesses. I have no reason to disbelieve the evidence adduced on behalf of the plaintiff and I accordingly accept the same. ( 20 ) MR. ( 19 ) ON behalf of the defendant no witness have been called to contradict the plaintiff and his witnesses. I have no reason to disbelieve the evidence adduced on behalf of the plaintiff and I accordingly accept the same. ( 20 ) MR. Chatterjee appearing on behalf of the Defendant No. 1 contended before me that the transfer, if any, would have to be in writing and has to be made by a conveyance and for that purpose he has relied on Section 5 of the Transfer of Property Act (IV of 1882 ). But Mr. Sinha appearing on behalf of the plaintiff, rightly points out that in that Section the word 'transfer' has not been defined, but the expression 'transfer of property' has been given a meaning for the purpose of the said Act. In my opinion, Section 5 of the Transfer of Property Act cannot be of any help in deciding this point. In the case of (1) Central Bank of India v. Hartford Fire Insurance Co. Ltd. , AIR 1965 SC 1288 (1290) Sarkar, J. , as he then was, observed as follows: the Court must give effect to the plain meaning of the words however it may dislike the result. This being a private document the word 'transfer' should be construed with reference to its own context. The word 'transfer' appears in the following clause in the said Indenture of Lease in suit: 6. Not at any time during the said term to assign the lease, transfer, subject, under-let, in any from whatsoever the said demised premises or any part thereof without the lessor's previous consent in writing. . . . . The words 'in any form whatsoever', in my opinion, make the meaning of the word 'transfer' more wider than what it would ordinarily connote. ( 21 ) IN the light of the above context, in my opinion, the word 'transfer' will mean and include parting with possession of the demised portion of the premises and thereby to allow the transferee to enjoy the possession thereof in the place and stead of the transferor. For the purpose of such transfer within the meaning of the said clause the expression 'transfer' need not amount to sub-letting or assignment. ( 22 ) ON the question of evasive denial the Supreme Court has observed in the case of (2) Badat and Co. For the purpose of such transfer within the meaning of the said clause the expression 'transfer' need not amount to sub-letting or assignment. ( 22 ) ON the question of evasive denial the Supreme Court has observed in the case of (2) Badat and Co. v. East India Trading Company, AIR 1964 SC 538 (545) - if the denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary. ( 23 ) ON the basis of the above observation of the Supreme Court and on the basis of the evidence on record I am satisfied and I hold that the Defendant No. 1 transferred the entire remaining portion occupied by it in respect of the demised premises to M/s. Patiala Biscuit Manufacturers Private Limited and to South East Asia Industries Private Limited besides the portion already sub-let as aforesaid to M/s. Edward Keventers (Successors) Private Limited. Such transfer was in breach of the aforesaid clause in the said Indenture of Lease. ( 24 ) THE issue No. (i) is accordingly answered in the affirmative. ( 25 ) THE same observation of the Supreme Court is equally applicable in deciding issue No. (ii) as well. In para 9 of the plaint the plaintiff has pleaded the notice and he further pleaded that by the said notice the plaintiff duly terminated the said lease, but the Defendant No. 1 was still in wrongful possession of the suit premises, Paragraph 7 of the written statement which deals with the said para 9 of the plaint does not indicate any denial whatsoever as to the validity of the said notice. All that is stated in para 7 thereof is as follows: with reference to paragraph 9 of the said plaint, this defendant craves reference to the said notice dated the 28th November, 1963 for the ascertainment of its contents. This defendant denies that the Defendant No. 1 continues to be in wrongful possession of the suit premises as alleged or at all. In spite of this pleading Mr. Chatterjee argues that the notice contains the inherent defect as such no effect should be given to the same. Even though there is no pleading of waiver in the written statement relating to the said notice of forfeiture, yet Mr. In spite of this pleading Mr. Chatterjee argues that the notice contains the inherent defect as such no effect should be given to the same. Even though there is no pleading of waiver in the written statement relating to the said notice of forfeiture, yet Mr. Chatterjee argues that even then by construing the language of the notice the Court should come to the conclusion that waiver is writ large on the notice itself. The main paragraph in the said notice on which the argument is developed runs as follows: now therefore, I do hereby give you notice that on the ground of your aforesaid breaches of express conditions and each of the breaches, it is my client's intention to determine the lease and he hereby determines the lease and calls upon you hereby to quit and vacate the demised premises and deliver up to my client vacant and peaceful possession of the same immediately upon the expiry of the 31st day of December, 1963, failing which, please note that my client shall institute suit for recovery of khas possession of the demised premises. ( 26 ) THE date of the notice is November 28, 1963. It was sent by registered post with acknowledgement due slip. On the basis of that Mr. Chatterjee contends that the plaintiff's purported notice to determine the lease on November 28, 1963, became bad and did not amount to a notice within the meaning of section 111 (g) of the Transfer of Property Act as soon as the plaintiff purported to give time to vacate till December 31, 1963. His contention is that this type of notice suffers from an inherent defect. This is no notice of forfeiture at all. The lease is not determined until expiry of December 31, 1963. He relies on the provision of Section 111 (g) of the Transfer of Property Act, 1882, which runs as follows: 111. His contention is that this type of notice suffers from an inherent defect. This is no notice of forfeiture at all. The lease is not determined until expiry of December 31, 1963. He relies on the provision of Section 111 (g) of the Transfer of Property Act, 1882, which runs as follows: 111. A lease of immoveable property determines - (g) by forfeiture; that is to say, - (1) in case the lease breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a little in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease. ( 27 ) ON the basis of the said provision Mr. Chattejee argues that by the said notice of forfeiture the lease was to be determined then and there, i. e. on the date of the notice. The said notice having prolonged the life of the tenancy even after the date thereof could not be a notice within the meaning of Section 111 (g) of the Transfer of Property Act and, accordingly, it was invalid. The notice, according to him, would become inherently bad because it inherently contained the element of waiver. ( 28 ) IN support of his argument Mr. Chatterjee has rlied on the case of (3) Rukmini Vithu v. Rayaji Dattatraya Pat, AIR 1924 Bombay 454 (456 ). That was a case where the plaintiff was estopped from relying upon the forfeiture because he made an alternative claim in his plaint that his notice of July 28, 1915, should be treated as a notice terminating the annual tenancy as from July 1, 1917. The Division Bench of the Bombay High Court observed as follows: this was clearly inconsistent with the claim that the tenancy had been terminated by forfeiture as from the date of notice. It amounted to an assertion that the tenancy was still subsisting and was therefore waiver of the forfeiture. See on this point the case of (4) Evans v. Davis reported in (1878) 10 Ch D 747. It amounted to an assertion that the tenancy was still subsisting and was therefore waiver of the forfeiture. See on this point the case of (4) Evans v. Davis reported in (1878) 10 Ch D 747. ( 29 ) ON the facts of that case the Division Bench came to the conclusion that there was no forfeiture of tenancy because there was no disclaimer of the lessor's title by the tenant inasmuch as the defendant did not dispute that the plaintiff was the owner. In my opinion, the facts of that case are quite distinguishable from the facts involved in the case before me. It will clearly appear from the said observation of the Division Bench that the assertion of the tenancy even after forfeiture was clearly expressed by the said alternative claim. ( 30 ) IN the case before me the intention is not expressed either in that manner or at all. ( 31 ) IN my opinion, the clear intention, which is expressed by the notice dated November 28, 1963, is that the lease was determined by the said notice on November 28, 1963, but that the tenant was allowed time to vacate on the expiry of December 31, 1963, and during that period all that was expressed was that the Defendant No. 1 would be entitled to remain in possession under the leave and licence of the plaintiff. ( 32 ) MR. Chatterjee then relies on the case of (5) Taibot and Co. v. Haricharan Halwasiya, AIR 1952 Cal 47 . That was a case where in a notice of forfeiture dated February 28, 1947, the question of waiver was considered on the basis that the plaintiff claimed rent for the month of January, 1947 which accrued due prior to the date of forfeiture. That was a case where the defendant in breach of the covenant in the lease sublet a portion of the premises and the plaintiff came to know about that on February 24, 1947. In the written statement the defendant took up the defence of waiver of forfeiture in that on February 26, 1947, the plaintiffs with full knowledge of subletting demanded payment of rent for the month of January, 1947 which was paid by cheque and the plaintiffs retained possession of the cheque. That case decided that the demand for rent due until the date of forfeiture could not be considered as waiver. That case decided that the demand for rent due until the date of forfeiture could not be considered as waiver. There the principle of waiver was discussed and P. B. Mukherji, J. observed as follows: it is neither desirable nor possible to lay down any hard and fast rule which can be said to exhaust the categories of acts which can be regarded as showing an intention of the lessor to treat the lease as subsisting. Each case must be decided on its own merits and on the basis of the two fundamental principles I have indicated - Page 51 the plaintiff in the case before me has asked for rent till November 27, 1963, and has not evinced any such intention that the tenancy was to be continued till the expiry of December, 1963. Under those circumstances, in my opinion, the case of Talbot and Co. v. Haricharan Halwasiya (Supra), cannot be of any help in support of the argument of Mr. Chatterjee. ( 33 ) MOREOVER, in the instant case before me there is no pleading of waiver in the written statement. Nor in my opinion the language of the notice dated November 28, 1963, suggests any intention to waive the breach. ( 34 ) THE next case cited by Mr. Chatterjee is (6) Shiva Prasad Singh v. Sm. Manidra Kumari Debi, AIR 1940 Pat 478. In this case, there was a notice of forfeiture but there was an alternative case as well that if the plaintiff was not entitled to khas possession of the property he should be given a decree for arrears of rent at the rate of Rs. 6 per cottah which was the prevalent rate in Jharia for homestead land. It was conceded in that case that after the plaintiff had full knowledge of the breach of covenant he gave the defendant notice to quit the land and thus recognised the existence of the tenancy. Not only that, it would further appear from the said judgment that the rent was accepted with full knowledge of the breaches. On the basis of the said facts and the concessions made therein the Court came to the conclusion that there was waiver by acceptance of the said rent which accrued due after the forfeiture and by the subsequent notice the previous breach amounted to a waiver because there was recognition of the continuance of the tenancy. On the basis of the said facts and the concessions made therein the Court came to the conclusion that there was waiver by acceptance of the said rent which accrued due after the forfeiture and by the subsequent notice the previous breach amounted to a waiver because there was recognition of the continuance of the tenancy. In my opinion, the case before the Patna High Court proceeded on the basis of the facts which clearly showed the intention of the lessor to recognize the continuance of the tenancy and, moreover, most of the points there were conceded and the Court held that it was unnecessary to consider the difficult points arising as to whether there had or had not been a breach of covenant and whether the same entitled the plaintiff to claim the forfeiture of the lease. ( 35 ) IN view of the above, the said case cannot be of any help in support of the contention of Mr. Chatterjee. ( 36 ) ON this issue the next contention of Mr. Chatterjee is that the plaintiff by their own act and conduct affirmed the waiver of their own notice as will appear from their own lawyer's letter dated June 5, 1964. As indicated hereinabove, after the said notice of forfeiture dated November 28, 1963, was given, the Defendant No. 1 through its secretary gave a notice to quit dated March 30, 1964, to the plaintiff in respect of the demised premises on the last day of the month of June, 1964 in terms of the said lease to the following effect: please take notice that we shall quit and vacate the portion of the premises No. 10, Bentinck Street, (2nd floor) Calcutta 1, on the last day of the month of June, 1964, on the expiry of which the relationship of landlord and tenant subsisting between us in respect of the aforesaid premises shall cease. You are therefore requested to take possession on the last day of the month of June, 1964, in default of which we shall not be liable in respect of the tenancy of the premises. But before the expiry of June, 1964 the Defendant No. 1, through its secretary on May 30, 1964, purported to withdrew the said notice and intended to continue the tenancy. But before the expiry of June, 1964 the Defendant No. 1, through its secretary on May 30, 1964, purported to withdrew the said notice and intended to continue the tenancy. In protest against that letter of May 30, 1964, the plaintiff through his Solicitors wrote the said letter dated June 5, 1964, which, inter alia, provided as follows: adverting to your letter dated 30th May, 1964 under the signature of one Mr. A. K. Roy as Secretary, my client holds and states that the contents thereof are misconceived, illegal and invalid and my client refuses to acknowledge and recognize the same as legal and valid or effective for any purpose whatsoever. ( 37 ) ON the basis of the aforesaid statements, Mr. Chatterjee argues that the plaintiff by his act and conduct has expressed his desire to recognize the continuance of the tenancy till the expiry of the month of June, 1964, and if that be the position then the effect of the notice of forfeiture served by the plaintiff was gone. Mr. Chatterjee draws analogy from the cases where the second notice to quit automatically waives the previous notice to quit which becomes ineffective thereby. ( 38 ) IN my opinion, the said principle cannot be applied in a case like this where after the notice of forfeiture is served by the plaintiff the tenant voluntarily intends to quit and vacate on a particular date. This subsequent act showing the intention of the tenant to quit and vacate does not take away the plaintiff's right to enforce the notice of forfeiture. In addition to that right the plaintiff, i. e. , the landlord acquires a further right which is offered by the tenant thus agreeing to vacate the premises on a particular date. Under those circumstances the language used in the letter of protest dated June 5, 1964, by the plaintiff to the Defendant No. 1 does not, in any way, suggests that the plaintiff has in any manner given a go-by to their notice of forfeiture or in any manner expressed his intention to the continuance of the tenancy. Under those circumstances the language used in the letter of protest dated June 5, 1964, by the plaintiff to the Defendant No. 1 does not, in any way, suggests that the plaintiff has in any manner given a go-by to their notice of forfeiture or in any manner expressed his intention to the continuance of the tenancy. This letter dated June 5, 1964, was written pursuant to a notice to quit served by the tenant on the plaintiff and, in my opinion, the right created by this notice to quit by the tenant was an additional right with which the landlord's hands were more strengthened in the matter of recovering possession of the premises on the basis of such admission. ( 39 ) THE last contention of Mr. Chatterjee on this issue is that the said notice of forfeiture has become invalid by reason of the averments made in para 16 of the plaint where the plaintiff has pleaded in the alternative that if the plaintiff's notice was held to be bad then the tenancy should be determined on the basis of the notice given by the Defendant No. 1, and on that basis the plaintiff should be entitled to receive the arrears of rent upto June, 1964 and thereafter mesne profit at the rate of rent. In my opinion, Mr. Chatterjee's argument would be untenable for the following reasons, viz. : (a) This alternative pleading comes into the picture only when the Court would hold against the plaintiff in respect of the notice of forfeiture served by the plaintiff; (b) under Section 112 of the Transfer of Property Act, after the filing of the suit, even an acceptance of rent which has become due since the forfeiture would not amount to a waiver of the forfeiture, and; (c) the pleading in para 16 of the plaint does not amount to an expression of any intention on the part of the plaintiff to treat the lease as subsisting. ( 40 ) AFTER considering all the above contentions and arguments advanced on behalf of both the parties I hold that the notice dated November 28, 1963, is valid and enforceable and the tenancy of the Defendant No. 1 has been duly terminated by the said notice and I accordingly decide the said issue in favour of the plaintiff. ( 40 ) AFTER considering all the above contentions and arguments advanced on behalf of both the parties I hold that the notice dated November 28, 1963, is valid and enforceable and the tenancy of the Defendant No. 1 has been duly terminated by the said notice and I accordingly decide the said issue in favour of the plaintiff. ( 41 ) IN respect of issue No. (iii), the point shortly is, whether a notice to quit once served could be withdrawn without the consent of the party on whom it was served. The case here is not the usual notice to quit which is served by the landlord upon the tenant. The tenant herein has served the notice to quit upon the landlord giving notice that on the expiry of a certain date the tenant would quit and vacate the premises. Before the expiry of the date to quit and vacate arrived, the tenant purported to withdraw the said notice and signified its intention to stay on. Under those circumstances the question is, had the tenant the right to withdraw the said notice to quite without the consent of the landlord upon whom the notice had been served. In other words, did the notice itself create a right on and from the date it was served or was it to be effective only from the date when the premises had been required thereby to be vacated. ( 42 ) MR. Sinha relies on the case of (7) Jiban Krishna Chakraborty v. Abdul Kader Chowdhury, 57 Cal LJ 477 a case under the Bengal Tenancy Act dealing with the question of the effect of the notice to quit. In that case also the question of the effect of notice to quit came up for the Court's consideration. There a notice to quit was served under Section 49b of the Bengal Tenancy Act to vacate the land after the end of the agricultural year but before the expiry of the time the Bengal Tenancy Amendment Act, IV of 1928, was passed replacing Section 49b by Section 48c of the new Act. The question arose whether the Amendment Act could affect the effect of the notice to quit served under the Bengal Tenancy Act as it stood before the amendment. The case came up before the Division Bench consisting of D. N. Mitter and M. C. Ghose, JJ. The question arose whether the Amendment Act could affect the effect of the notice to quit served under the Bengal Tenancy Act as it stood before the amendment. The case came up before the Division Bench consisting of D. N. Mitter and M. C. Ghose, JJ. , who having differed in opinion referred the same to the Chief Justice and, thereafter, the matter was considered by the Special Bench. The learned Judges of the Division Bench differed on the point as to from which date the right under the notice was acquired, i. e. , whether from the date of the notice or from the date when possession was to be delivered under it, i. e. , till after the expiration of the period of notice. The Special Bench considered the matter only from the point of view as to whether the Amending Act in any way affected the notice to quit and the conclusion arrived at by the Special Bench was that the Amending Act did not affect the rights of the parties and on that basis agreed with D. N. Mitter, J. , in his conclusion and in the Order which D. N. Mitter, J. proposed to make. D. N. Mitter, J. , observed as follows: the under-tenancy is determined on the expiration of the period of the notice which is one year from the date of service. The legal effect of the notice to quit under Section 49b of the Bengal Tenancy Act is to determine the tenancy on the expiration of the agricultural year. The landlord has a vested right to require the tenant to abandon possession at the end of the agricultural year following the year in which notice is given and the Legislature cannot interfere so as to impair this vested right unless the Legislature intended the Amending Act to be retrospective in its operation either by express enactment or necessary intendment. A vested right is one in respect of which all the events necessary to bring it into existence and vest it in a party has happened. Notice to quit has been duly given under the old Act and the right to evict the under-tenant on the expiration of the notice has vested in the landlord from the moment of the notice and cannot be affected by change of legislation before the expiration of period of notice.- Page 480. Notice to quit has been duly given under the old Act and the right to evict the under-tenant on the expiration of the notice has vested in the landlord from the moment of the notice and cannot be affected by change of legislation before the expiration of period of notice.- Page 480. ( 43 ) I see good reason and force behind the aforesaid observation and with respect I adopt the same view. In my opinion, as soon as the notice to quit is served it creates a right and a corresponding obligation on the respective parties. The notice itself may indicate when the tenancy will be determined, but that does not mean that until the said time is arrived at, the notice would remain in abeyance and the person giving the notice could withdraw it before the expiration of the said period. In my opinion, once the notice is served the rights are finalized and become vested rights and the notice under such circumstances cannot be withdrawn without the consent of the other party. ( 44 ) ON the question as to the effect of the notice to quit Mr. Sinha has also relied on the case of 98) Freeman v. Evans, LR (1922) 1 Ch 36 (43 ). That was a case where by virtue of the notice to quit a third party's right became involved in it. The Court of Appeal observed as follows: - but it is clear that, whether the notice to quit is given by the landlord or the tenant, the party to whom it is given is entitled to insist upon it, and it cannot be withdrawn without the consent of both. ( 45 ) MR. Chatterjee then argues that the purported notice to quit was purported to have been served by the secretary of the Defendant No. 1 which was invalid inasmuch as on the plaintiff's own case the notice should have been served by and on behalf of the said authorized controller being the said Sri J. P. Goel who is the Defendant No. 3 in this suit. This point although taken at the time of argument has not been pleaded in the written statement or indicated in the correspondence. This point although taken at the time of argument has not been pleaded in the written statement or indicated in the correspondence. It has nowhere been challenged that the secretary had no power to serve the notice on behalf of the Defendant No. 1 or that Sri A. K. Roy was not the secretary. Even until now the action of the secretary had not been repudiated by the said controller. The correspondence, on the contrary, shows that Sri J. P. Goel did authorize the said secretary to collect the rent. Furthermore, the said Sri J. P. Goel writes to the plaintiff to make contract with the secretary for collection of arrears of rent of the premises in suit. The written statement appears to have been signed and verified by the said secretary Sri A. K. Roy on behalf of the Defendant No. 1. The records show that the same Solicitor, has entered appearance on behalf of the Defendant No. 3, i. e. , for the said controller. My attention has also been drawn to the affidavit of the said secretary Sri A. K. Roy affirmed by him on October 6, 1965, in this suit and in para 1 thereof the said secretary specifically has stated that he had been authorized to affirm the said affidavit on behalf of the Defendant No. 1 as well as the Defendant No. 3, the authorized controller of the Defendant No. 1. The said affidavit was affirmed and used in opposition to the application of the plaintiff under Chapter XIIIA of the Original Side Rules of this Court for summary judgment. Moreover, a copy of the letter dated June 5, 1964, by which the plaintiff's lawyer protested against the withdrawal of the notice to quit was also served on the Defendant No. 3 being the said authorized controller, but in spite thereto there is no letter of objection from the said authorized controller denying the authority of the said secretary. It is obvious from the language of the letter dated March 30, 1964, that the same was being written by the said secretary under the advice of the said controller. In any even, none has come to the box to deny such authority and as such the Court is entitled to draw adverse inference against the defendants and to hold that the secretary was duly authorized by the said controller. In any even, none has come to the box to deny such authority and as such the Court is entitled to draw adverse inference against the defendants and to hold that the secretary was duly authorized by the said controller. Under those circumstances, I uphold the contention of Mr. Sinha that there is no prima facie illegality attached to the notice served by Sri A. K. Roy and, secondly, that the point should not be allowed to be taken without adequate pleading. Mr. Sinha relies on the case of (9) Kalyanpur Lime Works v. State of Bihar, AIR 1954 SC 165 (168, 169) and rightly contends that if this point was taken in the pleading or indicated in the correspondence then his client could have adduced sufficient evidence in order to clarify the exact position. Under those circumstances, in my opinion, there is no substance in the above contention raised by Mr. Chatterjee about the authority of the said secretary. ( 46 ) MR. Chatterjee then argues that under the provisions of Sections 111 (g) and (h) of the Transfer of Property Act, 1882, the language used by the Legislature is that the lease of immoveable property would determine on the expiration of a notice to determine the lease and not otherwise. According to Mr. Chatterjee this being a case governed by Section 111 (g) of the Transfer of Property Act the lessor may re-enter by giving a notice and the lease would terminate on the expiration of time provided by the said notice. In answer to that, Mr. Sinha contends that Section 111 (h) has no application to the facts of the present case and, in my opinion, Mr. Sinha has rightly contended that the notice to quit served by the Defendant No. 1 was so served in terms of the provisions in the Indenture of Lease itself which runs as follows: 1. This lease can be terminated before the 21 years only at the lessor's option and that too after giving the lessor in writing three clear calendar month's notice according to the English calendar. This lease can be terminated before the 21 years only at the lessor's option and that too after giving the lessor in writing three clear calendar month's notice according to the English calendar. ( 47 ) IN my opinion, the lessee having exercised his option in terms of the aforesaid clause, cannot be further allowed to retract therefrom without the consent of the lessor, and under those circumstances the option once having been exercised by the said notice, the same definitely had created a vested right on the lessor. ( 48 ) THE result is that the issue No. (iii) must be decided against the defendants and in favour of the plaintiff, and I hold that the letter dated May 30, 1964, could not have any effect so as to withdraw the notice to quit served on behalf of the Defendant No. 1 since there was no consent on the part of the plaintiff. ( 49 ) AS regards issue No. (iv) the Defendant No. 1 in its written statement has not claimed and relief against forfeiture. Far from doing so, in para 2 of the written statement the Defendant No. 1 has denied that there was any default in payment of rent for the months of July, August, September and October, 1963 as alleged in para 4 of the plaint. In para 14 of the written statement all that the said defendant pleaded was that the Defendant No. 1 was ready and willing to pay such arrears of rent as the plaintiff would prove to be due as outstanding. The question, therefore, is whether on the facts and circumstances of this case the relief against forfeiture as provided under Section 114 of the Transfer of Property Act, 1882, could be made applicable or not. The relief provided under Section 114 of the Transfer of Property Act contemplates that the benefit must accrue both to the lessor as also to the lessee. The forfeiture should be for non-payment of rent alone and not for any other cause; the lessee must be prepared to pay not only the arrears of rent but also interest and the full cost of the suit or such suitable security as the Court would think sufficient for making the aforesaid payment within fifteen days. The forfeiture should be for non-payment of rent alone and not for any other cause; the lessee must be prepared to pay not only the arrears of rent but also interest and the full cost of the suit or such suitable security as the Court would think sufficient for making the aforesaid payment within fifteen days. In other words, the intention of the Legislature is that the lessor also would be granted relief in the quickest possible time by getting all his dues and the lessee also in order to save himself from eviction must pay up the lessor's dues. In order to obtain relief against forfeiture the lessee's attitude should not be of the kind which has been expressed in para 14 of the written statement herein, viz. , that the lessee would pay the arrears of rent if the same could ultimately be proved by the lessor to be due. The relief being discretionary in nature the Court would be reluctant to exercise its discretion in favour of the lessee who disputes the validity of the claim for arrears of rent resulting in forfeiture of the lease. ( 50 ) MOREOVER, the order passed in an application under Chap. XIIIA of the Original Side Rules of this Court does not indicate that such a situation actually arose. It appears that such relief against forfeiture was not prayed for nor the same was granted. But at that stage the defendants by consent submitted to the decree being passed for the amount equivalent of rent and on the basis of the said decree have paid the same equivalent of rent. Mr. Chatterjee contends that the interest has not been provided because the plaintiff consented not to demand and the same from the defendants. In other words, by consent the amount was accepted without interest. Mr. Chatterjee contends further that four months' rent as claimed had been paid and accepted and by the expression 'hearing of the suit' as provided under Section 114 of the Transfer of Property Act, the hearing which has taken place before me should be considered instead of the hearing which took place for final judgment in an application under Chap. XIIIa of the Original Side Rules of this High Court. XIIIa of the Original Side Rules of this High Court. ( 51 ) IN my opinion, Section 114 of the Transfer of Property Act cannot be applied in the facts and circumstances of this case, firstly, because this is not a suit for forfeiture of lease solely on the ground of non-payment of rent simpliciter; secondly, the relief should have been pleaded and prayed for, if at all, at the hearing of the suit which took place in the application for summary judgment; thirdly, in order to obtain relief against forfeiture the defendant lessee must pay interest and all costs of the suit or such security as the Court would deem fit and proper for the payment of arrears of rent interest and costs and within the period of fifteen days; fourthly the defendant lessee must not suffer a decree for the arrears of rent or interest or costs not even by consent as has been done in this case. What is contemplated under Section 114 of the Transfer of Property Act is the relief against forfeiture in lieu of making a decree for ejectment. If a decree is passed against the lessee that prima facie proves that the lessee was not entitled to any relief. By the passing of the decree the forfeiture is complete. Fifthly, at this stage the defendants cannot take advantage under the said Section 114 of the Transfer of Property Act, because by the passing of the decree in the application under Chap. XIIIA of the Original Side Rules of this Court it was no longer possible to hold there had been no forfeiture, and lastly, in the facts and circumstances of this case, the Court would feel reluctant to exercise its discretion in favour of the lessee. ( 52 ) UNDER those circumstances, I decide this issue against the defendants. ( 53 ) THE result is that in view of my findings respect of the above issues the suit herein is bound to be decreed in favour of the plaintiff. The Court has already passed a summary judgment and decree as indicated above and, as such, I propose to pass a decree herein in the manner hereinafter as follows: the plaintiff is entitled to a decree for recovery of possession of the suit premises more particularly described in sch. A annexed to the plaint. The Court has already passed a summary judgment and decree as indicated above and, as such, I propose to pass a decree herein in the manner hereinafter as follows: the plaintiff is entitled to a decree for recovery of possession of the suit premises more particularly described in sch. A annexed to the plaint. The plaintiff would be entitled to a decree for mesne profits calculated at the rate of Rs. 815 per month from November 28, 1963 until possession would be recovered. The plaintiff will give credit to the defendants of all sums paid or deposited by the defendants pursuant to the summary judgment passed herein and dated August 18, 1965, and would be entitled to appropriate the said sum in pro tanto satisfaction of the decree for mesne profits passed herein. The plaintiff is entitled to the costs of this suit Certified for two Counsel. Suit was decreed.