MEHTA AND CO. v. LALEN — 1973 DIGILAW 330 (KER)

Judgment :- 1. The revision petitioner is a registered firm doing business within the Mattancherry Municipal area in a building bearing municipal No. 11/76 belonging to the respondent-landlord. Eviction proceedings under the Kerala Buildings (Lease and Rent Control) Act (shortly slated the Act) were taken against him and having been defeated in the courts below he has come up in revision. The point on which the parties joined issue before this court is as to whether the requirement of notice contemplated in S.106 of the Transfer of Property Act has been complied with. According to (he petitioner no valid notice under S.106 was ever served on him and the one viz., Ex-P2 is no proper notice in the eye of law. That Ex-P2 notice is insufficient and does not satisfy the requirements of law cannot admit of any doubt, because it is not a notice of 15 clear days. To extract the relevant clause in the notice: "Now this is therefore to make demand of you to surrender the building to my client with all arrears of rent up to date within 15 days of the receipt hereof by you failing which my client would be constrained to take legal proceedings " The rule is settled that the party should be given 15 clear days under S.106 of the T. P. Act. The Supreme Court has observed in Mangilal v. Suganchand Rathi (1964-5 SCR. 239) that: "Though the notice dated April 11, 1959 could be construed to be construed to be composite notice under S.4(a) of the Accommodation Act and S.106 of the Transfer of Properly Act it was ineffective under S.106 of the Transfer of Properly Act because it was not a notice of 15 clear days." In Subadini v. Durga Charan Lal (ILR. 28 Cal. 118) the learned judges observed: "The fifteen days' notice referred to in S.106 of the Transfer of Property Act means notice of fifteen clear days." "Within 15 days" would imply that the party should surrender before the expiry of 15 clear days. It must, therefore, be said that Ex.P2 notice is insufficient and is not in compliance with S.106 of the T. P. Act. Learned counsel for the landlord tried to escape out of the situation by saying that in so far as the rent deed contains b contract to the contrary there is no necessity for a notice. It must, therefore, be said that Ex.P2 notice is insufficient and is not in compliance with S.106 of the T. P. Act. Learned counsel for the landlord tried to escape out of the situation by saying that in so far as the rent deed contains b contract to the contrary there is no necessity for a notice. Learned counsel would rely on the wording of S.106 and argue that a notice is necessary only in cases where there is no contract to the contrary. S.106 of the Transfer of Property Act reads: "In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purpose shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days* notice expiring with the end of a month of the tenancy." Of course in cases where there is a contract or local law or usage to the contrary, notice can be dispensed with. The case of the landlord is that the tenant when be entered into the transaction had agreed to surrender the building on demand and this undertaking should be construed as a contract to the contrary dispensing with notice. Before going into the merits of this contention a preliminary objection raised on behalf of the landlord to the effect that as this point was not raised in the court below the tenant should not be permitted to raise it for the first time in this court, has to be considered. 2. Factually it is incorrect to say that the contention was raised for the first time in this court. True that in the objections filed in the court of the Rent Controller no specific ground was taken as to notice. But before the appellate authority as also before the District Judge, in revision, the question of absence of a valid notice of surrender was raised. True that in the objections filed in the court of the Rent Controller no specific ground was taken as to notice. But before the appellate authority as also before the District Judge, in revision, the question of absence of a valid notice of surrender was raised. In the memorandum of appeal before the appellate authority this point is seen taken in ground No. 9 and before the revisional authority in ground No. 16 of the revision petition. The point was stressed at the time of argument also before the appellate authority as is evident from Para.7 of his judgment, wherein the learned judge observes: "It has to be noted that the provision of S.106 of the Transfer of Property.Act regarding the termination of the tenancy by a notice in the prescribed manner applies only in the absence of a contract to the contrary. In para 2 of the petition, it is specifically alleged that the tenant had agreed to surrender the building on demand. This averment is not denied in the counter. Such an agreement would amount to a contract to the contrary." Even if such a ground was not taken in the courts below, being a question of law it could be raised before this court as observed by the Supreme Court in Chatterjee v. Kishun Tandon (AIR. 1972 SC. 2526). The observation is: "Where in a suit for ejectment of a tenant the plaint allegation as to termination of tenancy by a valid notice is neither denied nor any issue demanded thereon by the defendant, the point as to termination of tenancy being essentially one of law can be raised in second appeal and decided by the High Court without remanding the case." There the point was allowed to be taken in second appeal, but in the present case, as stated already, the point was allowed to be argued before the appellate authority and the point has judicially been considered by him. The Supreme Court would observe further in the case cited: "However, the point being essentially a point of law, the learned judge in second appeal permitted both sides to address him on the point and came to the conclusion that the contractual tenancy had been duly terminated by a notice. The Supreme Court would observe further in the case cited: "However, the point being essentially a point of law, the learned judge in second appeal permitted both sides to address him on the point and came to the conclusion that the contractual tenancy had been duly terminated by a notice. In these circumstances, we do not think that there is any substance in the submission of the learned counsel for the appellant before us that the learned judge should have remanded the case for a determination of the question." In the present case also, as seen already, the point was raised before the appellate authority, arguments were addressed on both sides and they were duly considered also by the court. In the circumstances there is no point in saying that the question is raised for the first time in this court. 3. Now coming back to the question it is difficult for me to spell out a contract to the contrary in the undertaking by the tenant to surrender the premises on demand. A Division Bench of this court under similar circumstances, in Abdul Hameed Rawther v. Balakrishna Pillai (1968 KLT. 865), held that such a provision in the rent deed cannot amount to a contract to the contrary. The provision in the rent deed that they had to consider was to this effect: In that case the learned Single Judge was of the view that S.116 of the T.P. Act did not apply and as such the determination of lease by a notice as required by S.106 did not arise. The Division Bench disagreeing with the Single Judge observed: "We are, therefore, constrained to differ from the conclusion of our teamed brother, and hold that the plaintiffs are not entitled to get a decree for eviction in this suit, as the defendant has been holding over the property under S.116 of the Transfer of Property Act after the expiry of the period of the lease, and as the lease thus created has not been determined by a valid notice as required by S.106 of the Act." In the present case the landlord was a partner with his brother in a firm run under the name "Popatlal Muljee" and on 3131966 he got himself separated from the firm. He wanted to start his own separate business in tea, pepper and grains and for the purpose of that business he wanted surrender of the building. According to him several demands were made for surrender and finally on 15 6 66 a registered notice was issued requiring the tenant to put him in possession. Here also as in the case considered by the Division Bench the tenant must be held to have been holding over after the period of the lease. The tenant was in occupation on a monthly rent of Rs. 525/-. According to the revision petitioner-tenant when the premises went to the share of the respondent. landlord he wanted the rent to be enhanced; but the tenant was not agreeable However to settle matters amicably the tenant agreed to raise the rent to Rs. 530/-. Upto August 1966 the rent at this rate was deposited and the fact was intimated to the landlord. In Bhidyanath Basak v. Onkarmul Manicklal (AIR. 1938 Cal. 656) the plaintiff leased out a plot of land to the defendants on 19th September 1935 by a letter which ran, "Sirs, we rent the vacant land lying to the east of the front portion of your house No. 25/1, Ratan Sarkar Garden Street on a fixed rent of Rs. 31 per month and declare that we will pay the rent of the above premises by the 5th of each month, and when it will be necessary to give khas possession of the said premises we will give khas possession of the same to you within 7 days. If we fail to do so, then we will make good all your loss". On Ist May 1937, the plaintiffs served the defendants with a notice asking them to vacate the land and give possession of the same within 7 days from the receipt of the letter. The question arose as to whether the notice was a valid notice. Held: "S. 106 was applicable to the agreement contained in the letter of 19fh September 1935. The promise on the part of the defendants to take the land on fined rent and pay the rent on the 5th of each month was either a definite agreement for monthly tenancy, or if it could not be so construed, it certainly was not a contract to the contrary within the meaning of S.106. The promise on the part of the defendants to take the land on fined rent and pay the rent on the 5th of each month was either a definite agreement for monthly tenancy, or if it could not be so construed, it certainly was not a contract to the contrary within the meaning of S.106. The effect of the concluding portion of the letter was that if the lease was determined in any of the ways contemplated by S.111 the defendants covenanted to give khas possession within 7 days of such determination. The only way by which either party could determine tenancy was by observing the provisions of S.106 and the lease was not terminated by the notice." 4. In Moothorakutty v. Ayissa Bi (1963 KLJ. 556) a learned judge of this court held: "What S.106, T. P. Act, mentions is the absence of a contract dispensing with the necessity for a notice to quit. The mere absence of any provision regarding notice to quit is not to be construed as a contract dispending with such notice. The absence of such a provision is not a contract to the contrary which dispenses with the necessity of a notice to quit Hence it has to be held that the provision in the document is not a contract to the contrary dispensing with the necessity of a notice to quit. The term as to notice to quit contained in an expired lease should not be held to be a term of the lease arising by holding over under S.116. Therefore, even if the provision in the document is a contract to the contrary dispensing with the necessity of a notice to quit, that provision should not be considered to be a terra of the lease by holding over after the expiry of the term mentioned in the document." 5. The tenancy in the present case must be construed as one falling under S.116 of the T. P. Act which contemplates that on one side there should be an offer of taking a renewed or fresh demise evidenced by the lessee's continuing in occupation of the property after his interest has ceased and on the other side there must be a definite assertion to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. The Federal Court decision cited by the Division Bench in 1968 KLT. The Federal Court decision cited by the Division Bench in 1968 KLT. 865 is pertinent in this connection. The learned judge observed: "On the determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the lessor. If the lessee or a sub-lessee under him continued in possession even after the determination of the lease, the landlord undoubtedly baa the right to eject him forthwith; but if he does not, and there is neither assent nor dissent on his part to the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufferance who has no lawful title to the land but holds it merely through the laches of the landlord. If now the landlord accepts rent from such person or otherwise expresses assent to the continuance of his possession, a new tenancy comes into existence as is contemplated by S.116 T. P. Act, and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of S.106 of the Act." In such cases the tenancy is one from year to year or from month and such a tenancy can be terminated only by a notice as provided in S.106 of the Act. An oral undertaking to surrender on demand would in the circumstances be of no avail. 6. I am, therefore, of the view that S.106 of the Transfer of Property Act is applicable and the notice Ex. P2, which does not give 15 clear days for surrender is no notice in the eye of law and the order of eviction passed by the courts below has to be vacated. It is, however, open to the landlord to start fresh proceedings after issuing a notice as required by S.106. 7. The order of the court below is vacated and the C. R. P. is allowed. Parties will bear their costs.