Renuka Mukherjee v. Bhabani Chatterjee — 1975 DIGILAW 382 (CAL)

JUDGMENT The judgment of the Court was as follows : Bhattacharyya J : This appeal by the tenant-defendants under clause 15 of the Letters Patent is directed against the judgment passed by M.M. Dutt J. in S.A. No. 714 of 1970 affirming two concurrent decisions, whereby the appellants were directed to be evicted from the premises in dispute. 2. The only point pressed by Manindra Nath Ghose the learned Advocate for the appellants is that the notice to quit was not legally valid and reasonably sufficient and the tenancy of the defendants were not terminated thereby. 3. Facts necessary for the purpose of determination of this point may briefly be stated. The premises in suit comprising 58/4A, Raja Dinendra Street and 242, Vivekananda Road, Calcutta formerly belonged to one Kumud Ranjan Banerjee under whom the appellants, predecessor Madan Mahan Mukherjee was the original tenant. Madan Mohan took lease of the aforesaid premises from Kumud Ranjan at a monthly rental of Rs. 300/- payable according to the English Calendar month under a deed of lease, dated January 8, 1947 in accordance with the terms of which, the lease was to commence with effect from January 1, 1947. During his life time Kumud Ranjan filed a suit for ejectment against Madan Mohan, being Title Suit No. 85 of 1951 in the 6th Court of the Subordinate Judge at Alipore and the suit was dismissed on the ground of invalidity and insufficiency of the notice. An appeal against the said decision proved infructuous in so fat as the claim for ejectment was concerned. In his above decision, the learned Subordinate Judge came to the finding that the month of the tenancy was either from the second day of the month to the first day of following month or from the ninth day of a month to the eighth day of the following month and as the notice in that suit did not require defendants to quit and vacate with the expiry of the month of tenancy mentioned above the suit was dismissed. In the disputed premises, there is a school known as Maricktolla High School, which was set up as a tenant by the defendants' predecessor in the earlier suit, but this plea was negatived by the court and Mr. Ghose appearing for the appellants did not press this point any further. In the disputed premises, there is a school known as Maricktolla High School, which was set up as a tenant by the defendants' predecessor in the earlier suit, but this plea was negatived by the court and Mr. Ghose appearing for the appellants did not press this point any further. After the appeal was disposed of on April 25, 1958, Kumud Ranjan transferred the property in favour of the present respondent no. 1 sometimes in June 1959. Madan Mohan thereafter attorned in favour of the present plaintiff-respondent and paid rents to her. On January 15, 1963. Madan Mohan, the original tenant, died and on March 11 1967, the plaintiff-respondent instituted the suit, out of which the present appeal arises, for ejectment of the legal representatives of Madan Mohan, from the suit premises after serving a notice to quit on the defendant-appellants on February 24, 1966, The said notice to quit after reciting the above facts and also after referring to the finding of the learned Subordinate Judge in Title Suit No. 85 of 1954 of the 6th Court of the Subordinate Judge at Alipore. alleged that the defendants were defaulters in making payment of rents to the plaintiff and in making invalid deposits of the same since January 1963. The notice accordingly directed the termination of the tenancy of these persons 'with the expiry of the last day of your month of tenancy which would expire next after one month from the receipt of this notice' and further directed them to vacate and deliver up physical possession of the disputed premises to the plaintiff. As the appellants failed or neglected to comply, the present suit was instituted. 4. The defendant-appellants contested the suit with a joint written statement and set up a number of pleas which were all negatived by all the courts. Hence this appeal under clause 15 of the Letters Patent. 5. Mr. Ghose appearing for the appellants mainly contends that the above notice to quit which has been marked Ext. 9 series, is not legally valid and reasonably sufficient to terminate the tenancy of the defendants inasmuch as tile commencement of the month of tenancy or the date on which it is to expire has not been specifically mentioned. It was further contended by Mr. Ghose that the notice was bad inasmuch as it was not addressed to all the tenants. Mr. It was further contended by Mr. Ghose that the notice was bad inasmuch as it was not addressed to all the tenants. Mr. Ranjit Kumar Banerjee, learned Advocate appearing for the plaintiff-respondent, joined issue with Mr. Ghose on both these points. Mr. Ghose in support of his contention relied upon a decision of the Division Bench of this Court in the case of (1) Mozam Shaikh v. Annada Prasad (46 CWN 366). That was a suit in respect of a small plot of land in a bazar area in respect of which, the tenant defendant was in possession from before the date when a kabuliyat came to be executed on 26th Falgoon, 1205, corresponding to the 9th March, 1899. The notice to quit required the tenant to quit and vacate by 30th Chaitra, 1343 B. S. In allowing the appeal their Lordships held that it is for the plaintiff in a suit for ejectment to prove that the notice in question legally determined the lease and in order to establish that, be must show that the notice served upon the tenant expired either with the end of the year of tenancy or with the end of the month of the tenancy and as there was no evidence to show when the tenancy commenced, the plaintiff's suit was dismissed. This decision, in our view, does not substantially support Mr. Ghose's contention. It is no doubt true that in any suit for ejectment based upon a notice to quit, it is for the plaintiff to establish that the notice terminating the tenancy must end with the expiry of the month or the year of the tenancy. In the instant case, the notice required the tenant to quit and vacate "with the expiry of the last day of your month of tenancy which would expire next after one month from the receipt of this notice". It has been pointed out by Woodfull in his treaties on Landlord and Tenant, 26tb Edn. In the instant case, the notice required the tenant to quit and vacate "with the expiry of the last day of your month of tenancy which would expire next after one month from the receipt of this notice". It has been pointed out by Woodfull in his treaties on Landlord and Tenant, 26tb Edn. Volume I, Page 998, Article 2170 that where it is unknown and cannot be ascertained or proved at what time of the year the tenancy actually commenced, the notice may validly be to quit on a specified day then next, "or at the expiration of the current year of your tenancy which shall expire next after the end of one half year from the service of this notice." The learned author however pointed out that the general words used must be clear in their intent and this view is also quoted with approval by Mulla in his Transfer of Property Act at page 670, 5th Edn. 1956 in the following words: "It is usual after mentioning the date of the anniversary of the tenancy to add in the alternative some such general words as "at the end of the year of the tenancy which will expire next after the end of one-half year from the date of the service of this notice." In the case of (2) Jatindra Nath v. Malai Ram Show (AIR 1953 Calcutta 352) a learned single Judge of this Court held that the demand for possession in the alternative form was perfectly valid and well recognised in law and in discussing the principle applicable to notice to quit, P. N. Mookerjeer J. referred to a series of English rulings as also other cases of our country and repelled the contention of the learned Advocate for the appellants that the notice in so far as it demands possession "at the end of a month of your tenancy which would expire next after 15 days from the receipt of this notice" was invalid, insufficient and vague and therefore ineffective in law to determine the tenancy. 6. The notice in that case required the tenant "to vacate and deliver up possession of the said two rooms with the end of 31-7-1945 or at the end of a month of your tenancy which would exparte next after fifteen days from the receipt of this notice". 6. The notice in that case required the tenant "to vacate and deliver up possession of the said two rooms with the end of 31-7-1945 or at the end of a month of your tenancy which would exparte next after fifteen days from the receipt of this notice". In agreeing with the above cited passage in Mulla, the learned Judge pointed out that there was nothing, either in principle or in authorities which runs counter to the suggestion of the learned author and he was accordingly inclined to accept the same and repelled the argument of the learned Advocate of the appellants on that score. A similar view was taken by another learned single Judge of this Court in the case of (3) Durgarani Devi v. Mohiuddin and ors, (86 CLJ 198). The notice in that suit on the original side of this Court required the tenant to vacate and deliver up peaceful possession of the divided portion of the suit premises on the expiry of a month of his tenancy which was to expire next after the end of one month from the service of the said notice. the learned Judge here quoted Mulla's above cited passage and after referring to the Privy Council decision in the case of (4) Harihar Banerji v. Ramsashi (45 Indian Appeal 222) held that the notice to quit in that case was a good notice and effectively terminated the tenancy of the defendant as from April 1946. 7. We may here appropriately refer to three decisions of the Allahabad High Court reported in (5) AIR 1952 All 32 , Pahlad Das v. Ganga Saran & Ors., (6) AIR 1958 All 774 Pahlad Das v. Ganga Saran & anr. and (7) AIR 1963 All. 54 B. S. K. Virajman Mandir v. Chuttan Lal. The latest case in (6) AIR 1958 All. 774 is a Letters Patent appeal from the decision reported in (5) AIR 1952 All 32 . J n all these cases, notices were issued to the tenants in the alternative form requiring them to vacate on a particular day or a date on which the defendant considered that the month of his tenancy expired. 774 is a Letters Patent appeal from the decision reported in (5) AIR 1952 All 32 . J n all these cases, notices were issued to the tenants in the alternative form requiring them to vacate on a particular day or a date on which the defendant considered that the month of his tenancy expired. In the last cited case, the notice required the tenant to quit and vacate on the corresponding date on which the tenant thought his tenancy commenced and notices in all these cases were accepted as valid notices under Section 106 of the T.P. Act. 8. It is therefore clear from the discussions of the authorities referred to above that a notice either in alternative form or in a form requiring the tenant to quit at the end of the year or the end of the month of the tenancy which was due to expire next from the date of service of notice was a perfectly valid notice within the meaning of section 106 of the Transfer of property Act and such a notice could effectively terminate the tenancy of the defendant. The decision in (1) Mozam Shaikh v. Annada Prasad (46 CWN 366) relied on by Mr. Ghose in Our view does not militate against the principle mentioned above. In the circumstances of that case although the notice was accepted as valid notice by their Lordships, the suit was unsuccessful on the ground that there was no evidence to show when the year or the month of the tenancy commenced. 9. In the instant case, the landlord had set out the full circumstances about the origin of the tenancy, earlier suit between landlord and the tenant and the decision of the court in the earlier ejectment suit creating an uncertain and confusing situation. In such circumstances, the landlord after setting out the facts had called upon the tenant to vacate in the manner indicated above. It is well settled that the test of the sufficiency of a notice to quit is not what it would mean to a stranger ignorant of all the facts and circumstances touching the holding but what it would mean to tenants presumably conversant with all the facts (Harihar Banerji v. Ramsashi Supra). Accordingly we hold that the notice in the instant case is a valid notice that effectively determined the tenancy of the defendant and this contention of Mr. Accordingly we hold that the notice in the instant case is a valid notice that effectively determined the tenancy of the defendant and this contention of Mr. Ghose must therefore be overruled. 10. Another objection was taken by Mr. Ghose was that the notice was not addressed to all the joint tenants. Undoubtedly the appellants were joint tenants and after the notice was drawn up or addressed to all of them, mere non-service of the notice on some of the joint tenants would not render the notice defective. It is contended on behalf of the appellants that no such persons existed as were mentioned against defendants 4 and 5, a point which was not specifically taken in the defence nor was it canvassed before the court of first instance or the first appellate court. The plaintiff in paragraph 8 of her plaint had categorically stated that Madan Mohan Mukherjee died on or about the 15th January, 1963 leaving behind the defendants nos. 1 to 7 as his heirs and legal representatives to succeed to his estate, including the right of his tenancy in the demised premises. The defendants in paragraph 9 of the written statement admitted the death of their predecessor Madan Mohan Mukherjee and their succession to the estate left by him but did not specifically mention nor did they take any plea that the defendants 4 and 5 were not the daughters of Madan Mohan. Admittedly Madan Mohan left his widow, two sons and four daughters, who are all living in the same residence. In the circumstances, the failure on the part of the defendants to disclose the names of the two daughters of Madan Mohan, assuming them net to have been correctly described in the plaint, would by the principle of nontraverse be sufficient to clinch the issue and Mr. Ghose cannot now at this late stage be heard to contend that two of the daughters of Madan Mohan have not been made parties to the suit. No other objection has been pressed. In the result, therefore, the appeal fails and is accordingly dismissed with costs. The judgments and decrees of the Courts below are affirmed. Ghose cannot now at this late stage be heard to contend that two of the daughters of Madan Mohan have not been made parties to the suit. No other objection has been pressed. In the result, therefore, the appeal fails and is accordingly dismissed with costs. The judgments and decrees of the Courts below are affirmed. In the circumstances set out we allow the defendant appellants time till 31st March, 1976 to vacate, on condition that the appellants continue to deposit an amount equivalent to rent month by month in accordance with the English Calendar in the trial court by the 15th of each succeeding month, first of such deposit is to be made by the 15th January, 1976. The appellants should also deposit the cost due under all the decrees within that period, if not already deposited. In default of any of these conditions, the decree will become executable at once. Janab, J. I agree.