KUNHAMBU v. KUNHAYISSUMMA — 1976 DIGILAW 196 (KER)

Judgment :- 1. The defendant in O. S. No. 207 of 1972 on the file of the Munsiff, Taliparamba, a suit for recovery of possession of a shop-room with arrears of rent is the appellant in this second appeal. The short point that arises for consideration in this second appeal is this. The plaintiff-landlord issued a notice on 24 71972 terminating the tenancy with effect from 191972 alleging that the tenancy commenced on 141972. In the notice an option was also given to the tenant to put an end to the tenancy with effect from the date of commencement of tenancy if, according to him, the date or commencement was not 1 41952. The court found that the date of commencement of the tenancy was 10th Medom 1127 M. E. and not 141952. Then, can it be said that there is a proper and valid notice terminating the tenancy under S.106 of the Transfer of Property Act, 1882. Should not the notice contain a clear intention to terminate the lease on a specific date? 2. The plaint case is that a shop-room belonging to the plaintiff was leased out to the defendant on 1-4-1952 for eight months on a monthly rent of Rs. 30/-. The plaintiff terminated the tenancy by Ext A-1 registered notice dated 24-7-1972. By Ext. A-1 the tenancy was terminated with effect from 1-9-1972. But by Ext. A-1 an option was also given to the defendant-tenant to put an end to the tenancy with effect from the date of entrustment if, according to him, the date of entrustment was not 1-4-1952. As the defendant did not vacate even after the expiry of the time fixed in the notice the plaintiff filed the suit. In the written statement the defendant pointed out that the tenancy commenced on 10th Medom 1127 M. E. and contended that the tenancy has not been put an end to by Ext A-1 notice sent. Though the trial court came to the conclusion that the entrustment was on 10th Medom as contended by the defendant it was also held that Ext A-1 notice to quit was proper and valid. Accordingly, a decree for possession was given. From the judgment and decree of the trial court the defendant went in appeal before the court below. The plaintiff also filed a memorandum of cross-objections. Accordingly, a decree for possession was given. From the judgment and decree of the trial court the defendant went in appeal before the court below. The plaintiff also filed a memorandum of cross-objections. The court below agreed with the trial court on the question of sufficiency of the notice to quit. The memorandum of cross-objections was partly allowed. In this second appeal the defendant questions the judgments and decrees of the courts below. 3. In Madhavan Vydiar v. Janaki (1973 KLT. 490) it is said: "In the instant case the position is this. In Ext. A-3 notice the plaintiff stated that the tenancy commenced on 1-3-1952. The defendant in Ext. A-5 reply stated that the tenancy was on 12-2-1952. In these circumstances the plaintiff should have proved that the tenancy commenced on 1-3-1952 and that it has been terminated by a valid notice under S.106 of the T. P. Act, or should have treated the date of commencement of the tenancy as 12-2-1952 as put forward by the defendant in his reply notice and terminated the tenancy by a notice in terms of S.106 of the T. P. Act. If the plaintiff thought that the date of commencement of the tenancy as put forward by the defendant was not acceptable to her she could have in Ext A-3 notice at least given an option to the defendant to vacate on another definite date if according to the defendant the tenancy did not terminate on the 30th November 1968. The plaintiff courted the difficulty by asserting that the tenancy commenced on 131952 and failing to prove it. She also gave no option to the defendant to vacate on a definite date on which, as per the defendant's assertion, the tenancy would end. It has been observed by the Supreme Court in Firm Srinivas Ram Kumar v. Mahabir Prasad (AIR. 1951 SC. 177) A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings' The benefit of such a view is not available to the plaintiff because she did not choose to give the option to the defendant placing reliance on his admission or assertion." In Muthamodkutty v. Moideenkutty (AIR. 1965 Kerala 174) it is said: "No decision has been placed before me which would warrant the proposition that if the tenant were to set up a different tenancy, than the one alleged in the plaint and fail to prove it, the plaintiff need not give a notice to quit and determine the particular tenancy pleaded by him in the plaint. In this case the [defendant has not denied the landlord's title. He has only set up the contention that he was holding the property and the building under a tenancy, the terms of which were different from that set up in the plaint. In such a case, I think, if the landlord wants to recover possession of the property, he must have given the requisite notice to quit and determined the tenancy act up by him notwithstanding the contention of the defendant that he was in possession under a different tenancy." In Ganga Prasad v. Prem Kumar Kohli (AIR. 1949 All. 173) the landlord issued a notice to the tenant requiring him to vacate on the 18th of May 1944 or on such date as 'your then current month of tenancy will end'. The court found that the tenancy commenced from the 1st of every English month and then held that 'the object of a notice under S.106 is only to allow a tenant sufficient time to vacate the premises the appellant well-understood what was meant by the notice, namely, that he was called upon to vacate only on the termination of the month of tenancy and that he was not required to vacate on 18th May 1944, if the month of tenancy did not terminate on that day. There is no force in the contention that the notice was invalid." In Venkataratham v. Suryanarayana (AIR. 1953 Orissa 58) the rent deed was dated 8101934. But the notice given to the tenant required him to vacate the premises by the 7th of July 1949 or other date when the month ends. It was held that though the date of commencement of the tenancy is to be excluded, and, as such, the month of tenancy was to expire on the mid-night of 8th July and not 7th July as mentioned in the notice, the notice was regularised and validated by insertion of the subsequent clause or other date when the month ends'. It was held that though the date of commencement of the tenancy is to be excluded, and, as such, the month of tenancy was to expire on the mid-night of 8th July and not 7th July as mentioned in the notice, the notice was regularised and validated by insertion of the subsequent clause or other date when the month ends'. In Mohan Lal v. Kunwar Sen (AIR 1953 All. 598 in the case of a lease which commenced on the first day of each Hindi month the plaintiff first required the defendant-tenant to vacate the premises on the first day of the month following the month in which the notice was given. But as a precaution a further notice was sent by which the plaintiff allowed the defendant to vacate the premises on such day of the Hindi calendar month as the latter himself believed to be the date on which the tenancy expired. It was held that the notices given by the landlord were perfectly valid In Madanlal v. Manakchand (AIR. 1971 Raj. 55) a notice dated 8-8-1962 terminated the tenancy in question from the mid-night of 31st August 1962, or on such date as the tenant thinks the tenancy expires. The tenant challenged the validity of the notice on the ground that he was entitled to one month's notice. But it was held that in view of the form in which the notice was given, the objection regarding validity lost its force. In Gurdit Singh v Tata Iron & Steel Co. (AIR 1965 Patna 311), in the notice issued, the landlord required the tenant to vacate on the 30th June 1954 that will expire next after the end of 15 days from the date of service of the notice. It was contended that the notice was. vague and unsustainable in law. The court held: "If it appears from the facts and circumstances of a case and from the contents of a notice that there was no room for any misunderstanding on the part of the lessee, the notice should be taken to be valid and sufficient." In Pahlad Das v. Ganga Saran (AIR. 1958 All. vague and unsustainable in law. The court held: "If it appears from the facts and circumstances of a case and from the contents of a notice that there was no room for any misunderstanding on the part of the lessee, the notice should be taken to be valid and sufficient." In Pahlad Das v. Ganga Saran (AIR. 1958 All. 774) the notice issued required the tenant to vacate the shop on the 26th of the month or on any date on which the defendant considered that the month of his tenancy expired The court held: "It was left entirely to the defendant to decide on which date the month of his tenancy expired and he could leave the shop on any date on which according to his own case the month expired. The defendant could not in the circumstances say that he was prejudiced in any way by not getting sufficient notice to vacate the shop." In Harihar Banarji v. Ramshashi Roy (AIR. 1918 P.C.102) it is said: "The principles governing the construction of a notice to quit laid down by English cases are equally applicable to cases arising in India and they establish that notices to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances; and further, they are to be construed not with a desire to find fault in them which would render them defective but to be construed ut res magia valent quampereat Doe." Learned counsel for the respondent also referred to Puwada Venkateawara v. C. V. Raman (AIR. 1976 S.C. 869). 4. S.106 of the Transfer of Property Act, 1882, for short the Act, reads: "106. 1976 S.C. 869). 4. S.106 of the Transfer of Property Act, 1882, for short the Act, reads: "106. 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. Every notice under this section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property." As per the section, a tenancy from month to month like the one in question has to be terminated by 15 days' notice expiring with the end of the month of the tenancy. In this case, by Ext. A-1 notice the respondent-landlord terminated the tenancy with effect from the 1st of September, 1972. The notice was dated 24-7-1972. But the notice contained the following sentence also. The trial court found that the tenancy commenced not on 1-4-1952, but on 10th Medom 1127. It is true that the respondent-landlord has not required the tenant to vacate with effect from any other date even though he has agreed in Ext. A-1 notice for terminating the tenancy with effect from the date of the month on which, according to him, the tenancy commenced. But under S.106 of the T.P. Act, a tenancy from month to month is terminable by 15 days notice expiring with the end of the month of the tenancy. In this case, even if the 10th of Medom 1127 is taken as the date of tenancy, there is more than the required number of days notice expiring with the end of the month of the tenancy as the the notice is dated 24 7 1972. In this case, even if the 10th of Medom 1127 is taken as the date of tenancy, there is more than the required number of days notice expiring with the end of the month of the tenancy as the the notice is dated 24 7 1972. The intention to terminate the tenancy is also there in the notice. Then the question is whether the landlord should require the tenant to vacate on a date expiring with the end of the month of the tenancy. It is not necessary. It is enough that not less than 15 days notice expiring with the end of the month of the tenancy terminating the tenancy is there. The tenant is only given an option and for that reason a notice cannot be considered as not sufficient and invalid under S.106 of the Transfer of Property Act. 1882. 5. In the result, the second appeal is dismissed. There will be no order as to costs. Dismissed.