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1988 DIGILAW 498 (KER)

JACOB v. SALEEM

1988-10-25

VARGHESE KALLIATH

body1988
Judgment :- In both these appeals the chief question that has to be considered by this court is the sufficiency of notice issued under S.106 of the Transfer of Property Act. The appellant herein instituted two suits against the tenants for ejectment of the shop buildings occupied by the tenants. The trial court after considering the evidence in the case found that notice under S.106 of the Transfer of Property Act is valid and sufficient and decreed the suits. The defeated defendants filed appeals. The appellate court by a common judgment found that the notices issued are defective and will not satisfy the requirement under S.106 of the Transfer of Property Act and so, there was no valid termination of the tenancy and the suits for ejectment have to be dismissed. The appeals were allowed and the suits were dismissed. Now, the defeated plaintiffs have filed these two appeals. 2. The question that bas to be considered in these cases is whether there was proper and valid notice. The plaintiffs in their plaints averred that the tenancy was commenced on 4-12-1963 and because of the huge arrears of rent, the plaintiffs did not want to continue the tenancy and wanted to terminate the tenancy and for that notices were issued to the defendants in the two suits and terminated the tenancy validly. Of course, the tenants have taken a ground that there is no valid and proper notice. Exts. B2 and B3 are the notices issued in the two suits. Exts. B2 and B3 are dated 10-8-1977. The suits were instituted on 14-10-1977. So, it is clear that the suits were instituted after the expiry of about 2 months from the date of notice. The crucial statements in the notice read thus: The above statement has to be read in a practical and pragmatic manner. Obviously, the landlord wants to give the statutory period of 15 days notice to the tenants. So, it is clear that the suits were instituted after the expiry of about 2 months from the date of notice. The crucial statements in the notice read thus: The above statement has to be read in a practical and pragmatic manner. Obviously, the landlord wants to give the statutory period of 15 days notice to the tenants. As early as in 1918, the Judicial Committee of the Privy Council in the decision reported in Harihar Banerji v. Ramshashi Roy (1918 P.C.102) has held thus: "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 magi's valeat quam pereat Doe". This decision has been usually followed by the Supreme Court. In a decision reported in Bharat Petro. Corporation Limited v. Khaja Midhat Noor (1988 (3) SCJ. 228) Sabyasachi Mukharji. J., said thus: "Admittedly, in this case, the lease was executed on 16th January, 1958 and from that date the lease came into existence. For computing the period often years the 16th January, 1958 had to be excluded. The tenancy was, therefore, terminated on! the expiry of 16th of the month. The notice in the instant case of the quit which was Ext. 7 before the court dated 30th November, 1972, was given on behalf of the respondent to Latifur Rehman lessee. In paragraph 4 of Ext. 7 it was stated that the lessee was to deliver the possession of the leasehold property by 16th January, 1973. In paragraph 5 of Ext. 7 the lessee and sub-lessee were required to remove the building plants etc. by the 16th January, 1973. In the last but one and the last paragraph of Ext. In paragraph 4 of Ext. 7 it was stated that the lessee was to deliver the possession of the leasehold property by 16th January, 1973. In paragraph 5 of Ext. 7 the lessee and sub-lessee were required to remove the building plants etc. by the 16th January, 1973. In the last but one and the last paragraph of Ext. 7 it was stated that the lessee was to surrender the properties of the lease hold land on the expiry of 15th January. 1973. The question is whether there was a valid notice. The High Court held that in the facts of this case, there was a valid notice of termination and after the valid notice of termination of the lease to the lessee, there was no need to give a fresh notice to the sublessee. Notice must be read in the context of the facts of each particular case having regard to the situation of the parties to whom it is addressed". 3. It is well settled that a notice to quit under S.106 of the Transfer of Property Act is a technical rule. It should not be construed in a pedantic and impractical way so as to pick-holes and find fault with the notice. The aim of the interpretation should be only to ascertain whether the person receiving the notice has understood the same. A liberal construction would always enable to do practical justice to the cause. So the court should construe the quit notice, in such a way that it should not be defeated by inaccuracies in the language of the notice especially in matters of the description of the premises, the name of the tenant or the name of the landlord or the date of expiry of the notice. The rule has been to make lame and inaccurate notices sensible where the recipient cannot have been misled as to the intention of the giver". (Mulla's Transfer of Property Act, Ab Edition, Page 663) "A liberal construction is put upon a notice to quit so that it is opt defeated by minor errors. The authorities establish the position that notices to quit, may notwithstanding erroneous particulars, be still good and effective so long as the recipient is not misled". (Vide AIR 19/2 Kerala P. 110). (Mulla's Transfer of Property Act, Ab Edition, Page 663) "A liberal construction is put upon a notice to quit so that it is opt defeated by minor errors. The authorities establish the position that notices to quit, may notwithstanding erroneous particulars, be still good and effective so long as the recipient is not misled". (Vide AIR 19/2 Kerala P. 110). Still it has to be remembered that the provision for notice is primarily meant for the benefit of lessees and so, the construction which deprives a tenant of the minimum period of notice stipulated in the section is not permissible. 4. In this case, the landlord has issued notices stating that he is giving the statutory period of 15 days and that the buildings have to be surrendered on the expiry of the statutory period. These notices have been issued to the tenants and so, the tenants have obtained the statutory period and the option to surrender the building on the expiry of the statutory period. id the decision reported in Ram Bandhan v. Guddar Ram (AIR. 1971 All. 485), the court observed thus? "Similarly in this case, the landlord terminated the tenancy and wrote to the tenant that after expiry of the statutory period, the tenant was to vacate the premises. As the tenancy was from year to year, therefore, the statutory period was six months and this is why the plaintiff mentioned in the notice "chatwen mahine khali kardijia". This clearly meant that the defendants had option to stay in the house till the expiry of the statutory period or to vacate it earlier. This did not mean that the tenant was asked to vacate the premises as soon as the sixth month started, In view of this, the notice Ext. A14 was not illegal or against the provisions of S.106 of Transfer of Property Act" 5. I think that the above quote from the Allahabad case is a apposite to the facts in this case. In the circumstances of the case, I have no doubt that the notices issued Exts. B2 and B3 are sufficient and valid and the tenancy has been terminated properly in accordance with the provisions contained in S.106 of the Transfer of Property Act. Since I have to bold that the notices are valid and legal the finding of the appellate court has to be vacated. B2 and B3 are sufficient and valid and the tenancy has been terminated properly in accordance with the provisions contained in S.106 of the Transfer of Property Act. Since I have to bold that the notices are valid and legal the finding of the appellate court has to be vacated. The appellate court has found that the notices are not valid and legal. I differ and disagree. The appeals have to be allowed. I allow the appeals and restore the judgments and decrees of the trial court. In the circumstances, no order as to costs. 6. Counsel for the respondents submitted before roe that considering the difficulties to get an alternate accommodation, this court should grant a little time to surrender the building to the landlord. Taking into account the difficulties, the respondents are given three months time to surrender the building in question on condition that they should file an undertaking in the form of an affidavit that they will surrender the building within three months from today. This undertaking should be filed within a month from today before the trial court. If the undertaking is not filed within the time stipulated above, the landlord can execute the decrees as such.