Ponnan Nadar Krishnan Nadar v. Asanaru Pilla — 1984 DIGILAW 90 (KER)

JUDGMENT S.K. Kader, J. 1. The only question that arises for determination, in this Second Appeal filed by defendant tenant in O. S. No. 718 of 1981 on the file of the Principal Munsiff, Neyyattinkara, is whether the courts below were justified in their interpretation of Ext. A1 document and whether the tenancy in question has been validly terminated under S.106 and 116 of the cc? 2. The suit was instituted for recovery of possession of the plaint schedule building with arrears of rent due from the defendant. The defendant has been in possession of the plaint schedule building under Ext. A1 rent deed dated 7-10-1968 agreeing to pay a monthly rent of Rs. 30/-. The period of lease was for one year and as per the terms of the lease the defendant was to surrender possession of the building to the plaintiff on the expiry of the period of one year. After the expiry of the period of tenancy, the defendant continued in possession agreeing to pay enhanced rent of Rs. 80/- per mensem. The rent has been paid for the period upto May, 1981 and thereafter the rent has been in arrears. The plaintiff sent a registered notice, a copy of which is Ext. A2 dated 5-8-1981 to the defendant demanding surrender of possession of the plaint schedule building. As the defendant failed to surrender the building, the plaintiff instituted the suit. 3. The suit was resisted by the defendant mainly on the ground that the tenancy has not been properly terminated by issue of a notice as contemplated under S.106 of the Transfer of Property Act. The tenancy in question and the subsequent enhancement of rent to Rs. 80/- have been admitted by the defendant. 4. One of the issues raised by the Trial Court was whether the tenancy has been properly terminated? No oral evidence was adduced either by the plaintiff or by the defendant. Exts. A1 to A4 were marked on the side of the plaintiff; while there was no documents to be marked on the side of the defendant. 5. 4. One of the issues raised by the Trial Court was whether the tenancy has been properly terminated? No oral evidence was adduced either by the plaintiff or by the defendant. Exts. A1 to A4 were marked on the side of the plaintiff; while there was no documents to be marked on the side of the defendant. 5. The Trial Court on a consideration of the materials on record and relying on a decision of this Court in Subramania Iyer v. Madhavi Amma ( 1963 KLT 1009 ) held that the tenancy in question was one at will and such a tenancy can be determined by any demand for surrender of possession of the property made by the landlord and such demand may be even made in the plaint and therefore the defendant is not entitled to any quit notice as contemplated under S.1.06 of the Transfer of Property Act. The Trial Court decreed the suit as prayed for allowing the plaintiff to recover the plaint schedule building from the defendant and also to recover from the defendant a sum of Rs. 506.66 towards arrears of rent due till the period of 15-11-1981 and also rent at the rate of Rs. 80/- per mensem from 16-11-1981 till the expiry of a period of three years from the date of the decree which ever occurs earlier. 6. The matter was taken up in appeal by the defendant in A. S. No. 56 of 1983 and the learned I Additional District Judge, who heard the appeal, confirmed the decree and judgment of the court below and dismissed the appeal. 7. It is against the decree and judgment of the first appellate court that this appeal has been filed. 8. The fact that the appellant is a tenant of the respondent plaintiff, that he has been in possession of the plaint schedule building on the strength of rent deed Ext. A1 dated 7-10-1968 executed by him in favour of the respondent is not disputed. The original rent fixed in Ext. A1 was Rs. 30/- per mensem and the period of lease was one year. It is also not disputed that even after the expiry of the period of one year, the defendant continued in possession paying rent and subsequently enhanced rent at the rate of Rs. 80/- per mensem to the plaintiff. The original rent fixed in Ext. A1 was Rs. 30/- per mensem and the period of lease was one year. It is also not disputed that even after the expiry of the period of one year, the defendant continued in possession paying rent and subsequently enhanced rent at the rate of Rs. 80/- per mensem to the plaintiff. The important question for consideration is whether S.106 of the Transfer of Property Act applies to the facts of the case. It is not disputed that Ext. A2 notice is not a proper and valid notice as contemplated under S.106 of the Transfer of Property Act. According to the respondent's learned advocate, the transaction in question is a tenancy at will and therefore S.106 of the T. P. Act has no application to the facts of the case. As pointed out earlier, the courts below held that the tenancy in question is one at will and therefore there is no necessity to issue a quit notice under S.106 of the T. P. Act. The learned advocate appearing for the appellant vehemently attacked the findings of the courts below in this regard and submitted that on the admitted facts this is a clear case of holding over coming within the meaning of S.116 of the Transfer of Property Act, that the courts below have not properly understood and construed the relevant recitals in Ext. A1 and that Ext. A2 notice is not at all valid and proper and therefore the plaintiff is not entitled to recover possession of the plaint schedule building without issuing a notice validly terminating the tenancy as contemplated under S.106 of the Transfer of Property Act. The dispute therefore is whether the tenancy in question is one at will or whether this is a case of holding over. Admittedly, the defendant has been continuing in possession of the building even after the expiry of the period of one year stipulated in the rent deed and paying rent and thereafter the enhanced rent also. There is a clear distinction between a tenancy at will and a tenant or lessee holding over under S.116 of the Transfer of Property Act. A tenancy at will is a tenancy under which the tenant is in possession, and which is determinable at the will of either the landlord or the tenant. There is a clear distinction between a tenancy at will and a tenant or lessee holding over under S.116 of the Transfer of Property Act. A tenancy at will is a tenancy under which the tenant is in possession, and which is determinable at the will of either the landlord or the tenant. Every lease at will must in law be at the will of both parties and a tenancy at will arises by contract binding both landlord and tenant, and the contract, may be express or implied. Whereas, holding over under S.116 of the Transfer of Property Act would imply that it is only if a tenant remains in possession after the expiry of the tenancy that the tenant can be said to hold over and in such a case if the landlord accepts the rent or otherwise assents to the tenant continuing in possession a case of tenancy by holding over will arise. (See Subramania Iyer v. Madhavi Amma ( 1963 KLT 1009 ), Kariya Belchappada v. Vishnu Shabhogue ( 1971 KLT 340 ), Devaki v. Alavi ( 1979 KLT 67 (FB)) and Bhawanji Lakshmshi v. Himatlal Jamnadas Dani ( 1972 (1) SCC 388 ). Whether lease in question is one at will or holding over under S.116 of the Transfer of Property Act depends upon the construction of the relevant recitals in the document and facts admitted or proved in the case. It was relying on the decision in Subramania Iyer's case that the Trial Court as well as the appellate court held that the tenancy in the instant case is one at will and not holding over under S.116 of the Transfer of Property Act. In doing so, both the courts below have committed a serious error of law by not construing properly the relevant recitable in the rent deed. In Subramania Iyer's case, the relevant terms recited in the document were the following: XXX XXX XXX (underlining is mine) There, the term that the tenant shall surrender possession on demand. is very significant. It is true that the lease was for a period of three years that is for a period certain in the sense that neither the landlord nor the tenant could have terminated the tenancy within three years specified in the document. But the tenant continued in possession in that case even after p the expiry of three years stipulated in the document. But the tenant continued in possession in that case even after p the expiry of three years stipulated in the document. It has to be treated that he was holding the property as a tenant at will, as by virtue of the clause in the document, the tenant was to surrender the possession of the property on demand by the landlord. Therefore in the light of the recitals in the document, the Division Bench of this Court construed that document and held that the tenancy created therein was one for a period certain and thereafter a tenancy at will. It was also held in that case that according to the terms of the document the tenancy could be determined after the expiry of the period of three years only by a demand by the landlord and that so long as there was no case that demand was made by the landlord, a tenant must be deemed to be in possession under the terms of the tenancy created by the document and as the tenancy has not been determined the tenant was not really holding over but was in possession by virtue of the tenancy at will created by the document.Therefore Their Lordships held in that case that S.106 of the Transfer of Property Act was not applicable. Ext. A1 is the rent deed relied on in the instant case. The relevant recitals relied on by the courts below in Ext. A1 rent deed as regards notice and termination of tenancy at will are the following: XXX XXX XXX There is nothing in these recitals to show or indicate that on the expiry of the period mentioned therein, the tenant was to surrender possession of the building on demand at any time by the landlord. Therefore it cannot be said that this is a tenancy at will. A similar document with similar recitals came up for consideration before this Court in Karunakaran Nair v. Sekharan Nair ( 1982 KLT 727 ). The relevant recitable in the lease deed in that case read as follows: There was no stipulation in that document to surrender possession of the building on demand or whenever required or whenever wanted and the Division Bench of this Court held that the above recitals did not constitute a contract to the contrary as envisaged under S.106 of the Transfer of Property Act. Another agreement that was addressed in support of the appeal was that the appellate court also seriously erred in holding that there was a contract to the contrary in Ext. A1 so as to disentitle the appellant to claim the benefit of 106 of the Transfer of Property Act. There must be a contract dispensing the necessity to give notice as contemplated under S.106 of the Transfer of Property Act in the lease deed. Then only the landlord can claim that there is a contract to the contrary and therefore notice to quit as enjoined under S.106 of the Transfer of Property Act is not necessary. A similar question came up for consideration before the Full Bench of this Court in Devaki v. Alavi ( 1979 KLT 67 (FB)) where it was held that "a stipulation to the effect that the lessee shall surrender possession of the property leased on demand made in that behalfby the lessor is a contract to the contrary as envisaged by S.106 of the Act." The clauses in the lease deed that came up for interpretation before the Full Bench read: XXX XXX XXX There is no stipulation in Ext. A1 to surrender possession on demand made in whenever required or whenever wanted in this lease deed. It cannot, therefore, be said that there is a contract to the contrary in Ext. A1 which entitles the landlord to plead that no notice as enjoined under S.106 of the Transfer of Property Act is necessary. 9. On the admitted facts of the case, the tenancy in question is one of holding over under S.116 of the Transfer of Property Act. The tenant has been in possession for more than 12 years even after the expiry of the period of one year stipulated in Ext. A1. It was with the consent of the landlord, the appellant continued in possession of the building in question paying rent to him and thereafter enhanced rent also. Therefore, there can be no doubt that the tenancy in question has to be validly terminated by issue of notice as enjoined under S.106 of the Transfer of Property Act. Ext. A2 the suit notice sent in the case is admittedly not in accordance with the provision under S.106 of the Transfer of Property Act. Therefore, there can be no doubt that the tenancy in question has to be validly terminated by issue of notice as enjoined under S.106 of the Transfer of Property Act. Ext. A2 the suit notice sent in the case is admittedly not in accordance with the provision under S.106 of the Transfer of Property Act. The learned advocate appearing for the respondent pointed out that want of a valid and proper notice cannot in any way affect the decree passed for arrears of rent. The suit for recovery of possession of the building is bad for want of valid and proper notice under S.106 of the Transfer Property Act and therefore that portion of the decree and judgment of the courts below have to be interfered with. In the result this appeal is partly allowed and the decree and judgment of the courts below allowing the plaintiff to recover possession of the plaint schedule building are hereby set aside and in all other respects this appeal stands dismissed confirming the decree and judgment of the courts below. This judgment will not in any way prevent or bar the respondent from instituting a suit for recovery of possession of the plaint schedule building in accordance with law. No costs.