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P. Krishnaiah Setty Vs. A.V. Lakshmana Rao and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 334 and 335 of 1951-52
Judge
Reported inAIR1952Kant139; AIR1952Mys139
ActsTransfer of Property Act, 1882 - Sections 106, 110 and 116; Mysore House Rent Control and Accommodation Order, 1948
AppellantP. Krishnaiah Setty
RespondentA.V. Lakshmana Rao and anr.
Appellant AdvocateV. Krishna Murthy, Adv.
Respondent AdvocateS. Gundappa, Adv.
Excerpt:
.....the appellant companys activity of providing broadband connectivity to its subscribers under service level agreement entered into by it with them, it is found that the appellant company has given its subscribers the right to use its ofc network and also to use and consume the light energy created by it artificially for the purpose of carrying their data/information and it has been collecting from them an ascertained sum of money towards the same. - the subsequent period of tenancy it was argued thus began on the 2nd of june and ended on the first of each month and as the tenancy continued it must necessarily end on the midnight of 1st march and that the notice was therefore bad. moreover if hyper-criticisms are to be indulged in, a notice to quit at the first moment of the..........morning of 6th september 1949. it has been held in a privy council case that if the tenancy is a monthly tenancy from the 1st o a month it expires at midnight of the 1st of each succeeding month. in the light of this decision the notice under advertence is not valid inasmuch as it calls upon the tenant to quit in the morning of 6th october, while the tenancy expires in the midnight of 6th october. i hold therefore the notice is not valid. similarly the notice issued in the other case also is invalid for the reasons set forth above.'it is represented that the privy council case relied upon in the order is -- 'benoy krishna das v. salsiccioni' , which is a decision based on the application of section 110 of the transfer of property act section 110 of the transfer of property act runs.....
Judgment:
ORDER

1. These petitions arise out of proceedings under the Mysore House Rent Control and Accommodation Order of 1948. The petitioner in both these cases is the owner of the premises described in the schedule thereto, comprising of shops and dwelling portion and the respondents are the tenants of different portions thereof. The petitions were filed for evicting the respondents on the ground that the premises were required for the bona fide use and occupation by the owner himself. The House Rent Controller found in favour of the petitioner and directed eviction; but on appeal the Appellate Authority reversed the order and dismissed the petitions on the ground that the notices to quit were invalid in law.

2. The first of these petitions C. R. P. 334/ 51-52 arises from H. R. C. 20/49-50 filed by the petitioner against the respondent. Lakshmana Rao, the respondent took the lease of the portion of the property on 6-3-1944 from Thimmaiah and Nagappa, the mortgagees with possession for a period of 11 months on a rental of Rs. 13/- per mensem. After the expiry of the term of the lease the rent was raised to Rs. 15/-per mensem and the respondent continued to be a tenant from month to month paying the stipulated rent.

3. In H. R. C. 19/49-50 out of which C. R. P. 335/51-52 arises the respondent Narasimha Naidu took a shop portion comprised in the premises at a rent of Rs. 8/- per mensem from the said mortgagees, for a period of 11 months from 1-1-46. Subsequently he also continued as a tenant from month to month paying the agreed rent. The petitioner purchased the entire property concerned in both these petitions from its owner on 22-1-48 for a sum of Rs. 10,000/- and the mortgage was discharged.

4. On 11-8-49 the petitioner gave notices to both the respondents determining the tenancy and demanding possession of the property. The notice to Narasimha Naidu stated that the tenancy had been terminated on 31-8-49 and the property should be delivered to the owner on the morning of 1-9-49. Likewise, Lakshmana Rao was also served with a notice determining his tenancy on 5-9-49 with a demand to put the petitioner in possession of the property on the morning of 6-9-1949. Both of them denied the right of the petitioner to determine the tenancy, whereupon eviction proceedings were started.

5. The respondents did not challenge the validity of the notices in the trial court. That point appears to have been developed in the appellate' Court, which however, upheld the contention and dismissed the applications on the preliminary point of invalidity of notices, without arriving at any decision on the merits of the cases.

6. The common question that arises for consideration in these petitions is the sufficiency or otherwise of the notice under section 106 of the Transfer of Property Act and this again turns upon the interpretation of Section 110 of the Transfer of Property Act in relation to the commencement and expiry of the tenancies. A common argument is addressed as the point involved is similar in both the cases. In the single order relating to both the cases, the learned Appellate Judge has reasoned as under:

'Under Section 106 of the Transfer of Property Act one important requirement of a valid notice is that it must designate proper time for determination of the tenancy. This time again must be so fixed that the notice must expire with the end of a month of the tenancy. If these tests are applied it becomes clear the notice is not in accordance with the provisions of law. The notice calls upon the tenant to quit the premises on the morning of 6th September 1949. It has been held in a Privy Council case that if the tenancy is a monthly tenancy from the 1st o a month it expires at midnight of the 1st of each succeeding month. In the light of this decision the notice under advertence is not valid inasmuch as it calls upon the tenant to quit in the morning of 6th October, while the tenancy expires in the midnight of 6th October. I hold therefore the notice is not valid. Similarly the notice issued in the other case also is invalid for the reasons set forth above.'

It is represented that the Privy Council case relied upon in the order is -- 'Benoy Krishna Das v. Salsiccioni' , which is a decision based on the application of Section 110 of the Transfer of Property Act Section 110 of the Transfer of Property Act runs thus:

'Where the time limited by a lease of immoveable property is expressed as commencing from a particular day, in computing that time' such day shall be excluded. Where no day of commencement is named, the time so limited begins from the making of the lease.

'Where the time so limited is a year or a number of years, in the absence of an express agreement to the contrary, the lease shall last during the whole anniversary of the day from which such time commences.'

The first part of Section 110 contemplates that (1) a time or a period should be limited by the lease and (2) the period must be expressed to commence from a particular date. When both these conditions are fulfilled the rule of interpretation laid down in the first part of the section applies to a case and in computing the period of lease the day of commencement expressed is excluded. The second part refers to the time so limited and prescribes that when the period is a year or a number of years, the lease lasts during the whole anniversary of the day from which the lease commences. The conditions are of course subject to agreements to the contrary. In the Privy Council case relied upon there was a tenancy for a term of 4 years commencing from 1st June 1921 and after the expiry of the period, the tenant held over and a notice was given by the tenant on 1-2-28 that he would give up possession on 1-3-28. It was contended that under Section 110. T. P. Act the first day of the commencement of the period should be excluded. The subsequent period of tenancy it was argued thus began on the 2nd of June and ended on the first of each month _and as the tenancy continued it must necessarily end on the midnight of 1st March and that the notice was therefore bad. His Lordship Lord Tomlin expressed thus:

'The lease from the 1st of June 1921 for a term of 4 years ends on the midnight of 1st June 1925 and a notice given by the lessee on 1st February 1928 for leaving the premises on 1st of March 1928 is a notice expiring with the end of the month of tenancy.'

This decision docs not apply to the circumstances of these present cases, as the date of commencement of the tenancy is not named in the written leases. The learned Appellate Judge is of opinion that the notice is short by about 12 hours as according to him the tenancies expired at midnight and not on the morning of the respective dates. That the notices in these cases are absolutely in conformity with Section 106, will be discussed later. Even otherwise, the interpretation of notices should not be over-technical. 'The law upon notices to quit is highly technical' observed Lord Justice Smith in -- 'Sidebotham v. Holland', (1894) 1 Q. B. 378 and 'I do not want to add one more technicality to it'. In that case the yearly tenancy ran from the 19th May of one year to the 18th May of the next year and the landlord gave wrong notice to quit on the 19th May instead of 18th. While holding that the notice substantially conformed to the provisions, Lord Justice Lindlay observed that

'the validity of the notice to quit ought not to turn on the splitting of a straw. Moreover if hyper-criticisms are to be indulged in, a notice to quit at the first moment of the anniversary ought to be just as good as a notice to quit at the last moment of the day before. But such subtleties ought to be and are disregarded as out of place.'

It was observed, in the portion of the order extracted, by the appellate authority that

'It has been held in the Privy Council case that if a tenancy is a monthly tenancy from 1st of the month, it expires at midnight on the 1st of the succeeding month.'

This inference does not appear to he warranted by the decision in . The period of the original lease in the P. C. case was for four years, and the lease was held to last during the whole anniversary of the day from which such time commenced, and the date happened to be the 1st of a month and thus the subsequent tenancy from month to month actually commenced from the 2nd of the month and lasted till the midnight of the 1st of the next month. It is a question of fact depending upon the commencement of the lease and that date determines the date of the expiry which is capable of being determined by a notice in accordance with Section 106, T. P. Act. In order to apply the rule of interpretation under Section 110. T. P. Act in the matter of exclusion of the day in the computation of the period of lease, it should have been expressed that the lease commenced from a particular day. In the absence of such expression, the principle of exclusion of the particular date does not arise. On the other hand the section states that where no day of commencement is named, the time so limited begins from the making of the lease. (7) Applying these tests to the present cases, the exclusion of the day under Section 110 is not called for. The leases were entered into for a period of eleven months; but in neither the day of the commencement of the lease was named. And hence, the time began from 1st and 6th of the months when the leases were made. After the expiry of the period of lease the tenants held over and became with the acquiescence of the landlord tenants from month to month. It is a rule of construction depending upon the expiry of the tenancy that when a new tenancy is created by a landlord allowing the tenant to hold over after the original lease terminates the terms governing the original lease will be deemed to have been accepted by the parties in the absence of agreement to the contrary (vide -- Lalman v. Mt. Mullo' and 'Badal v. Ram Bharosa' : AIR1938All649 ). No fresh agreement after the expiry of the original leases is set up, nor is it denied that the tenancies from month to month began on the corresponding dates of the original tenancies. The tenancies at the time of the notices ran from 1st of August and 6th August respectively and it is not contested that the. notices were not received clear 15 days before the expiry of the months of tenancy. Section 106, T. P. Act provides that in the absence of a contract to the contrary lease of immoveable property shall be deemed to be a lease from month to month in case of a dwelling house and shops terminable on the part of either the lessor or the lessee by 15 days' notice expiring with the end of the month of tenancy; the month of tenancy in these cases ended on the 31st August and 5th September respectively and the notices determining the tenancies on the 31st August and 5th September and demanding the delivery on the morning of the subsequent days, therefore conform to the requirements of Section 106. I am therefore unable to support the decision of the learned Appellate Judge. The order of dismissal of both these petitions is set aside. Holding that the notices to quit in both these cases are perfectly valid in law, I allow both the petitions, by setting aside the dismissal order and remand them to the Additional District Judge, Bangalore, for disposal on merits according to law. Posts of these petitions will abide the final results. Advocate's fee is Rs. 15/- in each.

7. Petitions allowed.


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