S. P. GURJAR v. MUDDANNA SHETTY — 1990 DIGILAW 341 (KAR)

N D. V. BHAT, J. ( 1 ) THE question as to whether the quit notice issued under Section 106 of the transfer of Property Act is valid or not has arisen for consideration in this appeal. ( 2 ) WHEN the matter came up forhearing regarding admission, the Advocates on either side submitted that the aforesaid question is the only question that would arise for consideration in this appeal and both of them submitted that this appeal can be disposed of by raising the said substantial question for consideration and dispose of the same on merits itself on the basis of the materials avaiiabie on record. ( 3 ) WHEN the matter was taken upfor preparing the judgment it was noticed that it was not possible to write a satisfactory judgment without going through the plaint and the written statement as also the rent bond referred to in the Courts below. The learned Advocates, therefore, were requested on a subsequent date to make available copies of the plaint, written statement and the rent bond. On 11-7-1990, the learned Advocate, Sri k. Vyasa Rao, produced along with a memo a copy of the written statement as also a copy of the rent bond dated 27-10-1974. Sri Padubidri Raghavendra Rao, the learned Advocate endorsed therein as having received the copy. He submitted that the same may be looked into. It was also submitted by him that the copy of plaint was already produced along with the other annexures at the time of filing the appeal. Both the Learned Advocates submitted that they did not have anything more to add. ( 4 ) THE facts, in brief, relevant for consideration for the disposal of this appeal, are as under : plaintiff-respondent filed O. S. No. 21/1982 on the file of the Principal Munsiff, udupi against the defendant-appellant praying for recovery of vacant possession of the suit premises on the basis of the allegations made in the plaint. Among other things, it was alleged by the plaintiff that the defendant was a monthly tenant under him in respect of plaint 'a' schedule premises on a monthly rent of rs. 50/- and that the defendant had executed a rent bond dated 27-10-1974 in favour of the plaintiff in that behalf stipulating the terms and conditions of the lease. Among other things, it was alleged by the plaintiff that the defendant was a monthly tenant under him in respect of plaint 'a' schedule premises on a monthly rent of rs. 50/- and that the defendant had executed a rent bond dated 27-10-1974 in favour of the plaintiff in that behalf stipulating the terms and conditions of the lease. It was specifically alleged by the plaintiff that the tenancy commenced on 1-11-1974 and that the same was for a period of three months and after the expiry of the lease period, the defendant had continued in possession as a tenant holding over on the same terms and conditions. Plaintiff also alleged that defendant committed acts of wilful negligence snd default. Under these circumstances, plaintiff terminated the tenancy of the defendant by issuing a registered notice dated 17-11-1980 calling upon the defendant to surrender vacant possession of the suit premises on 1-11-1981. It was also alleged by the plaintiff that defendant had fallen into arrears of rent. On these grounds, plaintiff filed the aforesaid suit praying for the reliefs referred to earlier. ( 5 ) DEFENDANT-APPELLANT resisted thesuit of the plaintiff on various grounds. The title of the plaintiff was also dem'ed by him. However, he admitted that he has been in possession of the 'a' schedule premises as a tenant on a monthly rent of Rs. 60/- excluding electricity charges. He has given the other details in that behalf and he prayed for the dismissal of the suit of the plaintiff. ( 6 ) THE learned Munsiff, on a consideration of theevidence on record, decreed the suit of the plaintiff. Among other things, it was held by the learned munsiff that the quit notice issued by the plaintiff to the defendant before filing the suit was in accordance with law. Being aggrieved by the decree passed by the learned Munsiff, defendant preferred R. A. No. 6/1985 on the file of the Civil Judge, udupi. The learned Civil Judge, for the reasons referred to in his judgment, was pleased to dismiss the appeal. Hence, the instant second appeal. ( 7 ) AS pointed out earlier, this appeal is taken up for final disposal itself with consent and as desired by the learned advocates on either side with reference to the question as to whether the quit notice is valid in law. Hence, the instant second appeal. ( 7 ) AS pointed out earlier, this appeal is taken up for final disposal itself with consent and as desired by the learned advocates on either side with reference to the question as to whether the quit notice is valid in law. ( 8 ) SRI Padubidri Raghavendra Rao, the learned Advocate for the appellant contended that having regard to the fact that the lease in the instant case was a term lease and having regard to the fact that it was a lease for a period of 3 months which commenced on 1-11-1974, the tenancy of the defendant-appellant after the expiration of the said three months, by way of holding over would commence from the 2nd of the month following the month at the end of which the term of 3 months expired. In that view of the matter, it was contended by the learned Advocate for the appellant that the lease if at all ought to have been terminated at the end of the 2nd January and not with effect from 31-12-1980 as has been done by the plaintiff. In this connection, the learned Advocate for the appellant has invited the attention of this court in the decision in Dattopant Gopalva Rao Devakate v Vithal Rao Maruthi Rao Janagaval reported in (A. I. R. 1975 (2) S. C. at page 1111. Sri Vyasa Rao, the learned Advocate for the respondent contended that the decision pressed into service by the learned Advocate for the appellant has no application to the facts of this case. It was also contended by the learned Advocate for the respondent that the tenancy commenced from first of each month even after the expiration of the period of 3 months. In that view of the matter, it was argued that there is nothing wrong in the quit notice issued by the plaintiff-respondent. The learned advocate also pressed into service in the decision in Bhagabandas Agarwalla v bhagwandas Kanu and Ors reported in a. I. R. 1977 S. C. at page 1120. ( 9 ) I have given my anxious considerationto the submission made on either side. It is needless to say that the decision in each case on any issue in controversy depends on the facts of each case. ( 9 ) I have given my anxious considerationto the submission made on either side. It is needless to say that the decision in each case on any issue in controversy depends on the facts of each case. In the instant case, it is pointed out by the learned Munsiff at para-21 of his judgment under Issue No. 5 that as per the terms of the rent bond at Ex, P. 2, the commencement of the tenancy month is on 1-11-1974, though the rent bond was executed on 27-10-1974. It is also pointed out by the learned Munsiff that the defendant has not contended anything about the date of the commencement of the tenancy in his written statement or in his evidence. The learned Munsiff has further pointed out in para-21 of his judgment that the evidence adduced on behalf of the plaintiff clearly discloses that the tenancy month commences on the 1st day of the calendar month and ends on the last day of same month end defendant is liable to pay rent on the last day of the said month. Sri Padubidri Raghavendra Rao, the learned Advocate for the appellant as pointed out earlier, however, contended that having regard to the fact that the lease was a term lease to begin with the commencement of the tenancy after the expiration of the term and on account of the holding over will have to be determined having regard to the observation of the supreme Court in Dattopant's case. At this juncture, it is necessary to see as to what exactly were the facts of the case in Dattopant's case and as to what exactly is the ratio laid down by the supreme Court in the facts and circumstances of that case with reference to the commencement of tenancy and the validity of termination of tenancy. In Dattopant's case the tenancy was an yearly tenancy. The yearly tenancy commenced on April 9, 1945. In that context, it is pointed out by the Supreme Court that the said day had to be excluded in computing the period of one year under Section 110 of the transfer of Property Act and therefore, one year's tenancy ended on April 9, 1946 and by holding over the tenancy from month-to-month started from April 10, 1946 ending on the 9th day of the following month. It is also pointed out in the said case that the view taken by the appellate Court and the High Court that one year's tenancy ended on April 8, 1946 and monthly tenancy started from 9th of month ending on 8th of the following month was erroneous in law. In that context it is observed by the Supreme court that there was, therefore, no valid and legal termination of the contractual tenancy. A perspicacious view of the facts dealt with by the Supreme Court and the ratio laid down in that behalf in the way and manner as indicated hereinabove would make it absolutely clear that the said ratio cannot be made applicable to the facts of the instant case. ( 10 ) IT is needless to say that decision in each case depends upon its own facts. It is indeed necessary to remember that in the case dealt with by the Supreme Court the second para of Section 110 of the transfer of Properties Act operated on account of the fact that the time limited was a year and in the absence of an express agreement to the contrary the lease lasted during the whole anniversary of the day from which such time commenced. In order to attract para~2 of Section 110 of the Transfer of Property Act two conditions will have to be fulfilled. In the first place, time limited must bo a year or number of years. Secondly, there must be no express agreement to the contrary. When there is an agreement to the contrary, it is obvious that the agreement should prevail. It is also necessary to remember that the second para of Section 110 of the transfer of Property Act though refers to lease for a year or number of years, it is conceived that the principles reflected therein will apply even when the time limited is a month or a week or a number of months or weeks. It is, therefore, clear that whether the tenancy is for a year or years or for a month or months or for a week or weeks, the principles incorporated in second para of Section 110 of the Transfer of Property Act would be subject to an agreement to the contrary. If that be so, it will have to be, seen as to what is the agreement in the instant case. If that be so, it will have to be, seen as to what is the agreement in the instant case. Fortunately, there is a written agreement between the parties. The rent bond which is marked before the trial Court and a copy of which is produced before this Court as pointed out earlier reads, among other things, as under: The terms of the agreement between the parties culled out hereinabove, recite that the lease should commence from 1-11-1974 and it is for three months. It does r. 28 not stop there. The duration is specifically stated to be for the period from 1-11-1974 to 31-1-1975. If it was simply stated that the lease was for a period of 3 months from 1-11-1974, it would have been a different matter. The submission of Sri Padubidri Raghavendra Rao would have indeed gained force in that context. However, having regard to the fact that the duration is limited by agreement as from 1-11-1974 to 31-1-1975, it is a case of agreement to the contrary, which should and will prevail over the principles adumbrated in the first part of second para of Section 110 of the Transfer of Property act. It is, therefore, clear that the ratio of the decision in Dattopant's case referred to earlier has no application to the facts of the case. ( 11 ) HAVING regard to the fact thatthe rent bond clearly stipulates that the duration of the lease is for the period from 1-11-1974 to 31-1-1975, it is obvious that the duration fixed by the rent bond would expire at the midnight of 31-1-1975. It would, therefore, follow that the tenancy by holding over would commence from 1-2-1975 and that having regard to the provisions of Section 116 of the T. P. Act R/w Section 106 of the T. P. Act, the tenancy would be from month to month and according to the British calendar. In this connection, it is indeed refreshing to cull out the following para in Mulla's transfer of Property Act (Seventh Edition) which practically reflects the compendium of the decisions relevant for consideration:"the rule here enacted for the computation of time is the same as that in sec. 9 (1) of the General Clauses Act 10 of 1897. A lease from the day of date" or a lease "from henceforth" means a lease from the day of execution (v ). 9 (1) of the General Clauses Act 10 of 1897. A lease from the day of date" or a lease "from henceforth" means a lease from the day of execution (v ). If no date of commencement is named, the lease begins from the date of execution (w ). In Benoy Krishna Das v Salsiccioni (x) the Privy Council held that a lease for four years from the 1 st June 1921 expired on the 1 st June 1925. The tenant held over on a monthly tenancy, each month of which expired on the 1st on each succeeding month, and this monthly tenancy was validly terminated by a notice to quit of the 1st February 1928 which treated the tenancy as expiring at midnight of the 1st March 1928. This decision has been followed in the undernoted cases (y ). But there may be an express contract to the contrary within the meaning of the second para (z) and the section has no application where the lease provides as to when it wilt determine (a); where no date is fixed in the lease for commencement it would be held to have commenced on the first day of the month it was executed (b ). " ( 12 ) IT is, therefore, clear that once when it is held that the tenancy which was held over, subsequent to the expiration of the duration prescribed by the rent bond, was for month to month and would start from 1st February 1975, the tenancy will have to be terminated at the end of the month of tenancy, according to British calendar. It is not disputed before me by Sri Padubidri Raghavendra Rao that tenancy has been terminated at the end of the month of tenancy, according to British calendar or that there was no clear 15 days' period as required by Section 106 of the Transfer of Property Act. I may also point out here that even if there is any lack of clinical precision in the expression used iike 'with effect from' instead of 'at the end of the month' cannot be made much of having regard to the ratio laid down by the Hon'ble Supreme Court in the decision in Bhagabandas Agarwalla's case. ( 13 ) FOR the reasons stated herein-above, It would follow that the substantial question of law, viz. ( 13 ) FOR the reasons stated herein-above, It would follow that the substantial question of law, viz. , the question as to whether the quit notice is valid will have to be answered in the affirmative. ( 14 ) NO other point is pressed intoservice for the consideration of this Court. However, Sri Padubidri Raghavendra Rao, the learned Advocate for the appellant submitted that in the event of this Court dismissing this appeal, reasonable time be granted to the appellant to hand over the possession of the premises in question. find that the request is reasonable having regard to the fact that it is rainy season. Under these circumstances, 1 think it is just and reasonable to grant time till the end of October 1990. ( 15 ) IN the result, the appeal js dismissed. ( 16 ) IN the facts and circumstances of the case, there is no order as to costs. The appellant is granted time till the end of October 1990 (Nineteen hundred and ninety) to vacate the suit property. Appeal dismissed. --- *** --- .