K. Nasir Basha v. Turukkan Chatram Charities — 1975 DIGILAW 344 (MAD)

Judgement JUDGMENT :- Defendants are the appellants. The suit was for ejectment on the allegations that the plaintiff-trust is the owner of the suit property, that the first defendant is a monthly tenant under the plaintiff, that the first defendant, according to the lease, should vacate after 30 days, notice, that no improvement had been made by the defendants as to claim compensation at the time of vacating, that to the notice issued the first defendant replied denying the tenancy, that thereupon a fresh notice dated 26-1-1968 was issued determining the tenancy and that the second defendant has been impleaded as a party as the first defendant has transferred the lease to him. The plaintiff no doubt denied the alleged transfer and also denied any practice in respect of chatram properties, alleged by the defendant. 2. The first defendant contended that he transferred the lease to the second defendant on 21-11-1967, which has been recognised by the plaintiff, that compensation has to be paid for the improvement made and that the lease is a permanent one and cannot be terminated, particularly against the wish of the creator of the trust who wanted to benefit his relations. The first defendant also contended that the notice to quit is defective and that he is an unnecessary party since the second defendant alone is the tenant, whose tenancy has not been terminated. It has also been alleged by the first defendant that the suit property is a minor inam, that the defendants are entitled to patta and that the matter should be referred to the Settlement Tahsildar. Finally, the first defendant pleaded that the suit is bad for misjoinder of causes of action. 3. The second defendant, in his written statement, alleged that he is the tenant, that no valid notice of termination has been given to him, and that as he got a transfer of the lease by paying Rs. 3,000 the said amount should be paid to him by the plaintiff. In other respects, the second defendant adopted the written statement filed by the first defendant. 4. The trial court, on the issues framed, held that the lease deed Ex. A-1, executed by the first defendant clearly mentions that the lease can be terminated by 30 days, notice, that the lease is not a permanent one, that Ex. In other respects, the second defendant adopted the written statement filed by the first defendant. 4. The trial court, on the issues framed, held that the lease deed Ex. A-1, executed by the first defendant clearly mentions that the lease can be terminated by 30 days, notice, that the lease is not a permanent one, that Ex. B-12, the lease deed in favour of the second defendant, is a fabricated one and as such it is only the first defendant who is the lessee under the plaintiff and not the second defendant, and that Ex. A-2, the notice determining the tenancy of the first defendant giving him 30 days' notice as per the terms of the lease, is valid and enforceable in law. The trial court further held that no compensation need be paid to the defendants for the alleged improvements and there is no question of misjoinder of parties and causes of action, as pleaded by the defendants. On these findings, the trial court directed the defendants to hand over vacant possession of the suit property within a month from 23-10-1972. 5. Aggrieved by the said decision of the trial court, the defendants preferred an appeal to the Sub-Court, Chingleput. The Subordinate Judge of Chingleput, confirmed the findings of the trial court and dismissed the appeal, A. S. 116 of 1973. Aggrieved by the decisions of the courts below, the defendants have now preferred this second appeal. 6. The main points argued by Sri Srinivasan, the learned counsel for the appellants are-(i) that the lower appellate court has not discussed the evidence on record as the final court of facts, and as such the decision given by the lower appellate court has to be set aside; (ii) That Ex. A-2, the notice to quit, is not valid in law; (iii) and that the suit is bad for misjoinder of causes of action. 7. Sri T.V. Subramaniam, learned counsel appearing for the plaintiffs-respondent contended that the evidence is before this court and the discussion made by the trial court is also there in its judgment and as such this court can decide the matter without any difficulty, that Section 106 of the Transfer of Property Act cannot be strictly enforced in view of the agreement Ex. A-1, and that as such the notice Ex. A-2 is valid in law. A-1, and that as such the notice Ex. A-2 is valid in law. The learned counsel also submitted that there is no question of any misjoinder of causes of action or parties to warrant a dismissal of the suit. 8. Ex. A-1 is the lease deed. It is mentioned in the lease deed that the first defendant should vacate the property whenever needed by the plaintiff on the plaintiff giving 30 days' notice to the first defendant. Thus, Ex. A-1 is a clear contract specifying the time to be given to the first defendant for vacating the property. Ex. A-2 is the notice to quit given to the first defendant. In the said notice, reference has been made to the lease agreement dated 7-11-1967 (Ex. A-1). It determined the tenancy of the first defendant by the end of 30 days after the receipt thereof. Ex. A-2 also called upon the first defendant to quit and deliver vacant possession of the property after the expiration of the abovesaid period. Section 106 of the Transfer of Property Act states- " In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year;...; and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either the lessor or lessee, by 15 days' notice expiring with the end of a month of the tenancy." 9. Sri Srinivasan, the learned counsel appearing for the appellants, submitted that under Ex. A-2, no doubt, 36 days' notice has been stipulated instead of 15 days as contemplated under Section 106 of the Transfer of Property Act, but that Section 106 further stipulates that such a notice must expire with the end of a month of the tenancy. It is thus argued that the notice Ex. A-2 terminating the tenancy by the end of 30 days of the receipt of Ex. A-2 is defective since it does not determine the tenancy with the end of a month of the tenancy. For this proposition, Sri Srinivasan cited number of decisions. 10. In Dixon v. Bradford and Dt. It is thus argued that the notice Ex. A-2 terminating the tenancy by the end of 30 days of the receipt of Ex. A-2 is defective since it does not determine the tenancy with the end of a month of the tenancy. For this proposition, Sri Srinivasan cited number of decisions. 10. In Dixon v. Bradford and Dt. Railway Servants Coal Supply Society, 1904-1 KB 444, the King's Bench Division, interpreting an agreement which mentioned "I beg to give you three months' notice that we shall cease the tenancy", came to the conclusion that in that case, there was an oral tenancy and that the three months to quit must expire with the year of tenancy. It further held that the tenancy had not been duly determined. 11. The next decision cited is Beevi Umma v. Allath Shamu Menon, 3 Mad LW 189 :(AIR 1917 Mad 141). In that case there was an agreement to deliver possession on demand. Dealing with the said provision, a Bench of this court held that the provision for delivery of possession on demand did not constitute a contract to the contrary within the meaning of Section 106, Transfer of Property Act, as it did not mention the time at which the demand should be made and that the provision for the payment of rent annually could not be split up. 12. Chunilal v. Chunilal, AIR 1923 Lah 659 lays down the principle as stated in Dixon v. Bradford and Dt. Railway Servants Coral Supply Society, 1904-1 KB 444. 13. In Baidyanath v. Onkarmal, AIR 1938 Cal 656, which dealt with a specific agreement pertaining to tenancy in that case, it was held that the only way by which either party could determine the tenancy was by observing the provisions of Section 106 and that in that case the lease was not terminated by the notice. 14. The next case cited is U. A. Mfg. Co. v. Motilal Bombay Mills, AIR 1943 Bom 306, wherein a Bench of the Bombay High Court has held that a provision in an agreement of tenancy to the effect that either side will give one clear month's notice to determine the tenancy does not affect the rule that the notice must expire with the expiration of the tenancy. Thus, this decision also follows the decision in Dixon v. Bradford and Dt. Railway Servants Coal Supply Society, 1904-1 KB 444. Thus, this decision also follows the decision in Dixon v. Bradford and Dt. Railway Servants Coal Supply Society, 1904-1 KB 444. 15. To the same effect is the decision in Mukanchand v. Gulabchand, AIR 1950 Ajmer 79, wherein the Ajmer High Court held- "Though the special contract as to notice abrogated the 1st rule in Sec.106 regarding 15 days' notice still the notice had to comply with the second rule in that section and was invalid as it did not expire on the last date of a month of the tenancy." Sri T.V. Subramaniam, to support his contention that the notice given under Ex. A-2, need not conform to the requirements of Section 106 in view of Ex. A-1, cited number of decisions. The first decision cited by him is Doe D Lucy Mary king v. Grafton, (1852) 88 RR 678. In that decision, dealing with the agreement entered into between the parties in that particular case, it was held that the tenancy cannot be construed as a yearly tenancy and the six months' notice to quit mentioned in the agreement need not end with the year of tenancy. As such the Queen's Bench held that the notice to quit was a valid one. 16. The next case cited by Sri Subramaniam is Arunachala Naicker v. Ghulam Md. Saheb, 1950-2 Mad LJ 535 : ( AIR 1951 Mad 408 ). In that decision, a Bench of this court, interpreting the contract entered into between the parties for determining the tenancy, stated- "It seems to us that when there is a contract governing the question of notice, we must read that contract in a reasonable was to ascertain what the parties intended by way of notice and not try to read into the contract some term that would have to be implied only if there were no contract. It seems to us reasonable to conclude from the passage set out in the opening paragraph that not merely did the parties intend that the period of notice should be one month, but also that the one month's notice should be given at any time." The relevant portion of the contract which was the subject-matter of interpretation in the above decision read as follows:- "Besides this, if you, after the said stipulated period, send me a notice giving one month's time I shall vacate the said land and deliver to you possession thereof." Thus, it is clear that the terms of the contract considered in the abovesaid Bench decision are analogous to the contract under Ex. A-1 in the case before us. 17. At this stage, Sri Srinivasan confronted the other side with the Bench decision in Beevi Umma v. Allath Shamu Menon, 3 Mad LW 189 : (AIR 1917 Mad 141) wherein it has been stated that the notice must end the tenancy with the month of tenancy. But in Beevi Umma v. Allath Shamu Menon, 3 Mad LW 189 : (AIR 1917 Mad 141) the words which came up for discussion were 'on demand'. In those circumstances, the court held that the demand must be in conformity with Section 106, Transfer of Property Act. I do not find any conflict of ruling in the above two decisions. 18. Sri T.V. Subramaniam also cited the decision in Kelu v. Ammad Kutti, 1910 Mad WN 794. There, a Bench of this court held that where the lease deed contained an express stipulation to surrender on demand, there is a contract to the contrary within the meaning of Section 106, Transfer of Property Act and that no notice to quit is necessary. 19. In Moosa Kutti v. Thekke, AIR 1928 Mad 687 , also, a Bench of this Court held that if according to the terms of the lease the tenant is not entitled to notice, it cannot be said that the cause of action does not arise till the period given in the notice to quit expires. Notice to quit is only one of the modes in which a tenancy could be determined. Section 106 only recognises two kinds of tenancies, one yearly tenancy and the other monthly tenancy. Notice to quit is only one of the modes in which a tenancy could be determined. Section 106 only recognises two kinds of tenancies, one yearly tenancy and the other monthly tenancy. There are cases which do not come within the ambit of Section 106 and they are governed by the terms of the contract of tenancy. It is only in cases where there is no contract as to notice that the provisions of Section 106 would be applicable; but where there is a contract as to giving notice or waiving notice the parties are governed by the terms of the contract and the law enacted in Section 106, Transfer of Property Act, cannot apply. Where the contract was that the tenant should surrender the property whenever required, the provisions as to notice in Section 106 cannot apply to it. 20. In Madhavarao v. Bhagwandas, AIR 1961 Madh Pra 138, the Madhya Pradesh High Court held- "When there is an agreement as to the period of notice, it is a contract to the contrary for all purposes of Section 106. The second provision requiring the notice to expire with the end of a tenancy month is concomitant part of the requirement and forms an indivisible condition." Sri Subramaniam also cited the decision in C.E. Treasurer v. S.F.B. Tyabji, AIR 1948 Bom 349, wherein a Bench of the Bombay Court categorically held that in the case of a lease, the privity of contract is between the lessor and the lessee, and not the lessor and the assignee from the lessee, and as such there is no need to give notice either as per Section 106 or according to the agreement, to the assignee of the lessee. 21. From the above discussion it is clear that, as has been held in Arunachala Naicker v Ghulam Md. Sahib, 1950-2 Mad LJ 535 : ( AIR 1951 Mad 408 ) that if there is a contract, the intention of the parties has to be ascertained in applying Section 106, Transfer of Property Act. As far as the present case is concerned, Ex. A-1, is a 'contract to the contrary' in relation to the provisions of Section 106. Sahib, 1950-2 Mad LJ 535 : ( AIR 1951 Mad 408 ) that if there is a contract, the intention of the parties has to be ascertained in applying Section 106, Transfer of Property Act. As far as the present case is concerned, Ex. A-1, is a 'contract to the contrary' in relation to the provisions of Section 106. From the said contract, it is clear that the parties intended that the period of notice should be one month and that a month's notice should be given at any time irrespective of the expiration of a month of the tenancy. In my view also, the second provision requiring the notice to expire with the end of a tenancy month is concomitant part of the requirement and forms an indivisible condition. 22. The contention of Sri Srinivasan as to want of discussion by the lower appellate court regarding facts, assumes little importance, inasmuch as I have discussed the necessary facts in detail in second appeal. 23. I do not also think there is any substance in the argument that the suit has to fail for misjoinder of parties and causes of action. The plaintiff has correctly given notice to the first defendant who is the lessee under him and there is no need to give notice to the assignee of the lessee. This apart, nobody is prejudiced by adding the assignee who claims that he is in possession by virtue of the assignment made by the lessee. 24. In these circumstances, the second appeal is dismissed. No costs. No leave.