VARGHESE v. SIVARAMA PILLAI — 1985 DIGILAW 349 (KER)

Judgment :- This is an appeal by the plaintiff. The suit was for ejectment of the defendant-tenant from a building. It is a shop-room. The Kerala Buildings (Lease and Rent Control) Act is not applicable to the area where the building situates. 2. Normally, the tenant has to surrender the building. The only point that survived for the consideration of the courts below was whether there was a proper and valid termination of the tenancy by issuing a notice terminating the tenancy under S.106 of the Transfer of Property Act. The trial court decreed the suit, holding that there is no defect in the notice terminating the tenancy. The defendant filed an appeal. The appellate court allowed the appeal holding that there is no valid termination of the tenancy by a proper notice under S.106 of the T. P, Act. Now the plaintiff appeals. 3. I shall deal with the facts briefly. Ext. Al is the contract of lease. Ext. B2 is the notice sent to the defendant by the plaintiff terminating the tenancy. It is dated 24-4-1980. By the notice Ext. B2, the plaintiff wanted to terminate the tenancy with effect from 14-5-1980. The due date of payment of rent under the agreement by the parties is 15th of every month and that is admitted by the defendant. Ext. A3 is the reply to Ext. B2. It is not stated in Ext. A3 that no sufficient notice was given to the defendant. In the reply notice, the contention raised by the defendant is that there is no lease arrangement between the plaintiff and the defendant. Plaintiff has stated in the plaint that he required the building for his own occupation. 4. The point taken by the learned counsel for the respondent is that there is no valid and proper notice since there is evidence in the. case that notice in question has been received by the defendant only on 3-5-1980. He submits that Ext. B4 is a proof of this fact. Ext. B4 is the acknowledgement card. Further he submits that as per the notice, the tenancy stood terminated on 14-5-1980. It means the tenant did not get the required 15 days notice. I feel that the argument of the learned counsel for the respondent is effective and substantial. He submits that Ext. B4 is a proof of this fact. Ext. B4 is the acknowledgement card. Further he submits that as per the notice, the tenancy stood terminated on 14-5-1980. It means the tenant did not get the required 15 days notice. I feel that the argument of the learned counsel for the respondent is effective and substantial. 5; The learned counsel for the appellant has necessarily to meet the point raised by the learned counsel for the respondent. He submits that the plaintiff has sent the notice by posting the notice on 25-4-1980, and if normal time required for reaching a letter by post to the addressee is taken, it can be presumed that the letter should have been reached within three or four days, from the date of posting. He submits that if this presumption is taken, the notice satisfies the requirement under S.106 T.P. Act. The learned counsel for the appellant further submits that the appellant can rely on S.114 illustration (f) of the Evidence Act read with S.27 of the General Clauses Act, (10 of 1897). 6. It has to be noticed that S.27 of the General Clauses Act makes it clear that the presumption engrafted in the section is subject to "unless the contrary is proved". Of course, the presumption is that there will be proper service, at the time at which the letter would be delivered in the ordinary course of post." True, the presumption under the section is not restricted to or limited to the presumption that merely such a letter has been posted but extends to its receipt by the addressee at its destination and at the proper time according to the regular course of business of the post office. But, the presumption afforded by the section is only a presumptive proof. In other words it raises a conditional or rebuttable presumption. What I want to say is that it is not a conclusive proof; in other words, it does not raise a conclusive presumption. By conclusive proof, what we understand in law is that, it is a fact possessing probative force of such strength as not to permit effective contradiction. The fact relied on as a fact of conclusive presumption, would amount to proof irrespective of the existence or non-existence of any other facts whatsoever which may possess probative force in the contrary direction. By conclusive proof, what we understand in law is that, it is a fact possessing probative force of such strength as not to permit effective contradiction. The fact relied on as a fact of conclusive presumption, would amount to proof irrespective of the existence or non-existence of any other facts whatsoever which may possess probative force in the contrary direction. But presumptive or conditional proof, is a fact which certainly amounts to proof, but only so long as there exists no other fact amounting to disproof. It is only a temporary or conditional and provisional proof, valid until overthrown by contrary proof. The question is whether the contrary is proved. The learned counsel for the respondent rightly submits that "the contrary is proved" in this case, since Ext.B4 clearly shows that the notice has been received by the defendant only on 3-5-1980. 7. The learned counsel for the appellant submits that two other points have to be considered in this case regarding notice before finally taking a decision that the suit has to be dismissed for not issuing proper notice under S.106 of the T.P.Act. Learned counsel submits that no notice is required since the tenancy that was sought to be terminated is a tenancy at will. For this, he relies on Subramonia Iyer v. Madhavi Amma (1963 K.L.T. 1009). The learned counsel for the respondent submits that obviously the tenancy in question is a tenancy holding over and the holding over tenancy in this case is not a tenancy at will. He relies on Satish Chandv. Govardhan Das (A.I.R.1984 S.C.143). 8. In 1963 K.L.T. 1009, Mathew, J, observed thus: "It is clear that neither the landlord nor the tenant could have terminated the tenancy within the 3 years specified in Ext. Al. To that extent there can be no dispute that the tenancy created under Ext.Al was a tenancy for a period certain. Thereafter, if the tenant continued in possession, we think that he was holding the property as a tenant at will. The clause in Ext. Al that the tenant was to surrender possession of the property on demand by the landlord would indicate that the tenant if he continued in possession after the period fixed in Ext. Al would be a tenant at will who could be evicted at any time at the will of the landlord. The clause in Ext. Al that the tenant was to surrender possession of the property on demand by the landlord would indicate that the tenant if he continued in possession after the period fixed in Ext. Al would be a tenant at will who could be evicted at any time at the will of the landlord. Therefore, it is not correct to say that the tenancy created by Ext.Al is a tenancy for a period certain. As we understand it. the tenancy was one for a period certain and thereafter a tenancy at will." (emphasis added) It has to be noted that the learned judge has given the reason for holding that the tenancy in that case is a tenancy at will by saying that the contract of tenancy contained a clause that the tenant has to surrender possession of the property on demand. Further in paragraph 7 of the judgment, His Lordship Justice Mathew has emphasised the reason thus: "In this case, the tenant was bound to surrender on demand by the landlord and although no right to determine the tenancy was expressly reserved to the tenant, the law will imply a corresponding right in him to determine the tenancy at his will after the period specified in the document." The learned counsel for the respondent submits that such a clause is absent in the contract of tenancy in the case at hand. A tenancy at will has been defined in Halsbury's Laws of England 3rd Edn.Vol.23 page 505 as follows: "A tenancy at will is a tenancy under which the tenant is in possession, and which is determinable at the will of either landlord or tenant; and although upon its creation it is expressed to be at the will of the landlord only or at the will of the tenant only, yet the law implies that it shall be at the will of the other party also; for every lease at will must in law be at the will of both parties. As in other tenancies, a tenancy at will arises by contract binding both landlord and tenancy, and the contract may be express or implied." 9. As in other tenancies, a tenancy at will arises by contract binding both landlord and tenancy, and the contract may be express or implied." 9. In A.I.R.1984 S.C.143, the Supreme Court has held: "Where a suit for ejectment and mesne profits was filed without a notice to quit under S.106 of the Transfer of Property Act against a tenant in occupation of the rented property after expiry of lease, the suit would not be maintainable. Such person is a tenant holding over and notice to quit under S.106 of the T.P. Act was necessary. It cannot be said that on expiry of the specified term under the unregistered lease deed executed J before the filing of the suit, he became tenant at sufferance under .S.11 l(a) of the T.P. Act and the suit was maintainable without notice under S.106 of that Act." I do not think that it will be safe for me to say that the tenancy in question is a tenancy at will. 10. The second point urged by the learned counsel for the appellant is that it is possible to discern clearly "a contract to the contrary" in the contract of tenancy in this case. I have to examine this point. Ext. Al is the contract of tenancy. The counsel relies on one of the clauses in the contract Ext Al which reads thus: 11. A Full Bench of this Court in Philip v. State Bank of Travancore (1972 K.L.T. 914) considered the question as to what type of clauses in the agreement would amount to a contract to the contrary. In that case there was a clause which provided that the lessee should surrender possession of the leased building if he commits default of payment of rent for two months. This clause was considered as a contract to the contrary so as to dispense with the quit notice under S.106 of the T.P Act. The learned counsel for the respondent submits that even if the clause in the agreement of lease, I have quoted above, would amount to a contract to the contrary, it can have operation only if the landlord proves in the case that the condition required in the clause has been satisfied, to enable him to have immunity from the rigour of the provision contained in S.106 of the T.P. Act. I do not think that the learned counsel is correct. I do not think that the learned counsel is correct. The Full Bench held that the clause providing for liability to surrender and the right to evict, if rent for two consecutive months is defaulted, was a clear contract to the contrary. In that case, it was also held that the court cannot accept the contention raised by the appellant in that case that such a clause would have effect only during the currency of the lease deed and not when the original lease gets renewed statutorily from year to year, with the result that the term in the original lease is also statutorily incorporated into the tenancy by holding over. 12. Considering the Full Bench decision, in S. A. No. 410 of 1985,1 have held that what has to be considered is the contract itself, its terms and its language. Considering the terms of the contract, the court has to come to an independent conclusion whether the contract of tenancy is a contract which will exclude the compliance of section 106 of the T.P. Act. On this question, the Full Bench has said clearly that such a clause is a contract to the contrary. What the Full Bench has said is "the latter clause" providing for liability to surrender and right to evict, if rent for two consecutive months is defaulted, was a clear contract to the contrary. If the agreement of lease provides a "contract to the contrary" the transaction is freed from the grip of the section. I think the clause alone need be looked into. Whether the facts and events proved in the case would justify the operation of the clause enabling the landlord to get surrender of the building otherwise than in accordance with the provisions contained in the T.P. Act is outside the investigation when we consider whether the contract of lease contains a clause which would exclude the compliance of section 106 of the T, P. Act, I hold that the clause in question in the agreement of lease Ext. Al provides for "a contract to the contrary" and excludes the compliance of section 106 of the T. P. Act. 13. Al provides for "a contract to the contrary" and excludes the compliance of section 106 of the T. P. Act. 13. I shall also examine the question whether assuming what the learned counsel for the respondent submits is correct, namely that the courts are bound to investigate whether the clause which is considered to be a contract to the contrary had any operation on the facts disclosed in the case. I would say that the circumstances and facts proved in the case would really show that the clause which provided for surrender of the building for the particular requirement of the landlord, namely, re-construction of the building has been invoked by the plaintiff and he has proved it. The trial court has said thus:-"In addition to the bona fide need alleged in the plaint plaintiff as D.W.I deposed before court that he requires the building for reconstruction as according to him, it requires immediate repair and reconstruction. This is not controverted by the defendant." For the reasons stated above, I think I should allow this appeal. The appeal is allowed. The learned counsel for the respondent submitted that the tenant should be given some time to surrender the building to the landlord. In the circumstances, I allow six months' time to the tenant to surrender the building to the landlord. There will be no order as to costs.