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Haridas Tapadar Vs. Sailendra Chandra De (Minor) and anr. - Court Judgment

LegalCrystal Citation
Subject;Tenancy
CourtGuwahati High Court
Decided On
Case NumberSecond Appeal No. 20 of 1951
Judge
ActsTransfer of Property Act, 1882 - Sections 106
AppellantHaridas Tapadar
RespondentSailendra Chandra De (Minor) and anr.
Appellant AdvocateK.P. Bhattacharjee, Adv.
Respondent AdvocateK.R. Barooah and A.R. Barooah, Advs.
DispositionAppeal partly allowed
Excerpt:
- - the learned subordinate judge modified the trial court's decree on the point and decreed ejectment, holding that the notice sent satisfied the requirements of law......also an alternative plea to the effect that if the tenancy was held to be from month to month, 15 days notice expiring with the end of a month of the english calendar should have been given. the notice required the defendant to vacate the land by the end of the month of 'ashar'. it v/as a 15 days' notice.3. it is common ground that the tenancy in this case was not for agricultural or manufacturing purposes. it was admittedly for residential purposes. the tenancy or the lease, therefore, has to be deemed to be a lease from month to month terminable on the part of either lessor or lessee by 15 days' notice expiring with the end of the month of the tenancy as provided in section 106, t. p. act. the learned advocate for the appellant has not argued that a six months' notice was necessary.4......
Judgment:

Ram Labhaya, J.

1. This appeal arises out of a suit for ejectment and rent. At this stage there is no dispute about the rent. The trial Court disallowed the prayer for ejectment on the ground that a valid notice determining the tenancy had not been sent to the defendant. The learned Subordinate Judge modified the trial Court's decree on the point and decreed ejectment, holding that the notice sent satisfied the requirements of law.

2. The facts bearing on the question of the validity of notice may now be stated. The land in suit belonged to one Kopilram Deka. It was purchased by the minor plaintiffs. Defendant was admittedly a tenant at the time of the purchase. It is also admitted that the defendant had been in occupation of the land for a number of years before plaintiffs purchased it. The defendant pleaded that the notice was not valid as the tenancy was from year to year and ended with the Bengali year, which ended at the end of the month of 'Magh'. There was also an alternative plea to the effect that if the tenancy was held to be from month to month, 15 days notice expiring with the end of a month of the English calendar should have been given. The notice required the defendant to vacate the land by the end of the month of 'Ashar'. It v/as a 15 days' notice.

3. It is common ground that the tenancy in this case was not for agricultural or manufacturing purposes. It was admittedly for residential purposes. The tenancy or the lease, therefore, has to be deemed to be a lease from month to month terminable on the part of either lessor or lessee by 15 days' notice expiring with the end of the month of the tenancy as provided in Section 106, T. P. Act. The learned Advocate for the appellant has not argued that a six months' notice was necessary.

4. It is settled law that the year or month of the tenancy at the end of which a notice under Section 106 should expire is not the calendar year or month in which the notice is given. The period, whether it may be the year or the month, is the period calculated with reference to the commencement of the tenancy. We have, therefore, to find out the date of the commencement of the tenancy. There is no evidence from plaintiffs' side on this point. We have, however, the defendant's admission that the tenancy was from year to year and could be terminated at the end of the Bengali year. Since he was a tenant for a number of years, the tenancy in each year commenced from the commencement of the Bengali year. The notice that was served on the defendant required him to vacate the land by the end of the month of 'Ashar'. Having found that the tenancy was from month to month, a notice expiring with the end of a month of the Bengali year would be valid.

5. The learned counsel for the appellant, however, contends that even a notice terminating the tenancy by 15 days, notice should have ended with the end of a month of the English calendar. In support of his contention he has relied on--'Calcutta L. & S. Co. v. Victor Oil Co.', AIR 1944

Cal 84 (A). In that case the date of the commencement of the tenancy was found to be the 1st of June and the question whether a notice ending with the month of Bengali year could satisfy the requirements of law did not arise. If Section 106, T. P. Act, applies to a case and the tenancy is from month to month, a notice terminating the tenancy should end with the end of a month according to British calendar in the absence of a contract or some local usage or custom to the contrary. Where there is an express or implied contract that the period in a lease from year to year or month to month should be reckoned according to Bengali year and not according to British calendar, a notice expiring with end of the year or the month of the tenancy calculated according to the Bengali calendar will be sufficient to terminate the tenancy.

This view receives support from a Division Bench decision of the Calcutta High Court reported in--'Behari Nath v. Kailas Chandra', AIR 1916 Cal 576 (B). In this case the terms of a lease governed by the Transfer of Property Act showed that there was an implied contract that the tenancy would be held from year to year according to the Bengali calendar. The rent was payable in instalments on certain specified dates which were the last days of the months of the Bengali year. It was held that the parties intended that the tenancy would be regulated according to the Bengali year. It was further held that if there was a tenancy from year to year on the basis of a year calculated according to the Bengali calendar, a month of that year should be calculated according to that calendar. I am in agreement with this view and hold that the principle enunciated in the case should apply 'mutatis mutandis' to a tenancy from month to month.

In this view of the law the reckoning of the period in this case will have to be dose according to the Bengali calendar as the admission of the defendant in his written statement shows that the necessary implication of the arrangement between the parties was that, reckoning of the period of the tenancy was to be done according to the Bengali calendar. The notice in this case ends with the end of a month of the Bengali year. It is, therefore, valid and the tenancy was terminated effectually by it.

6. Since it was a tenancy for residential purposes and the defendant has got structures on the

land, it would be desirable on equitable grounds

that he should be allowed some time to remove

these structures. I consider, a period of six

months would be enough for this purpose. The

appellate decree is, therefore, modified to the ex

tent that it shall not be executed for a period of

six months from the date of this order. The

appeal is allowed to the extent indicated above,

Parties shall bear their own costs in this Court.


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