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Shiv NaraIn Vs. Chandrika Prasad - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2411 of 1971
Judge
Reported inAIR1973All155
ActsTransfer of Property Act, 1882 - Sections 106; Transfer of Property (Amendment) Act, 1954; General Clauses Act, 1897
AppellantShiv Narain
RespondentChandrika Prasad
Appellant AdvocateBashir Ahmed and ;G.S. Tewari, Advs.
Respondent AdvocateA.N. Varma, ;S.N. Verma and ;S.N. Zarr, Advs.
DispositionAppeal allowed
Excerpt:
.....the period mentioned in the notice under section 106 of the transfer of property act must be a clear period of fifteen days in other states and a period of thirty days in this state. --when a period is fixed before the expiration of which an act may not be done, the person for whose benefit the delay is prescribed has the benefit of the entire period and, accordingly, in computing it the delay from which it runs as well as the delay on which it expires must be excluded'.11. these expressions also lend support to the view that if the date on which the notice is served is included then the tenant is not getting a clear notice of thirty days as required under section 106 of the transfer of property act. in this case the plaintiff served his notices on the defendants on the 16th falgoon,..........these two points of time. there must be an interval of not less than 30 days and that means 30 days clear: see (1885) 29 oh d 204. the period must continue beyond the expiration of the stated time. whereas 'within' the stated period must mean what it says, something less than the moment of expiration. in my opinion therefore the notice is invalid and the question referred to must be answered in the negative'.13. in rambharoselal gahol v. state of madhya pradesh., air 1955 naff 35, ten clear days were needed to expire between the notice of a resolution of no-confidence and the motion of no-confidence. it was, therefore, held that there should be clear ten days and the first day was excluded.14. similar view was taken in anokhmal bhurelal v. chief panchayat officer. rajasthan where the.....
Judgment:

K.N. Srivastava, J.

1. This is a tenant's appeal in which the judgment of the lower appellate Court has been assailed mainly on the ground that the notice under Section 106 of the Transfer of Property Act was invalid so far as the notice did not allow the period of thirty days to the defendant mentioned in the section.

2. There is no dispute that the notice is dated 31-1-1967. There is also no dispute that this notice was received by the defendant on 7-2-1967. There is a mention in this notice Ext. 4 that the tenancy is being terminated with effect from 8th of March, 1967 and the tenant was directed to vacate the premises on 9th of March. There is also no controversy that if 7th February. 1967, the date on which the notice was received by the tenant and 8th March. 1967, the date on which the tenancy was terminated are included within the period of thirty days, then the notice was well within law as the period of thirty days was allowed, but if these two days or any of these days is excluded, then the time will fall short of the statutory period mentioned under Section 106 of the Transfer of Property Act and the notice will be certainly invalid.

3. It has, therefore, to be seen as to whether the date on which the notice is received by the tenant and the date on which the tenancy is terminated are to be excluded or included while computing the thirty days mentioned in Section 106 of the Transfer of Property Act.

4. The learned counsel for the appellant contended that Sections 9 and 10 of the General Clauses Act would not apply to the facts of the case because the statute i. e. Section 106 of the Transfer of Property Act is in itself quite clear and the question of application of the above two sections of the General Clauses Act does not arise. Section 9 of the General Clauses Act says that If the period commences from a particular date and ends on a particular date, then the date from which it begins and the date to which it ends shall be excluded. At this stage, it will be necessary to refer to the wordings of Section 106 of the Transfer of Property Act which reads as below:

'In the absence of a contract or local law or usage to the contrary a [ease of immovable property for agricultural and manufacturing purposes shall be deemed to be a lease from year to year terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy'.

5. We ere not concerned with the second part of Section 106 of the Transfer of Property Act and, therefore, It is not being quoted in this judgment.

6. In 1954, by U. P. Amendment Act (XXIV), an amendment was made by this State in Section 106 of the Transfer of Property Act and the words 'expiring with the end of a year of the tenancy' and 'expiring with the end of a month of the tenancy' were excluded and the words 'fifteen days' notice' were substituted for 'thirty days' notice',

7. Thus a plain reading of this section will show that the notice had to be terminated by thirdy days. Thus the words 'from' and 'to' neither precede nor follow the time given in this section. In this view of the matter, I don't think the provisions of Section 9 of the General Clauses Act would apply to the facts of this case and the section has to be interpreted independently of the aforesaid two sections of the General Clauses Act. Even Section 10 of the General Clauses Act too does not apply to this section. Applying the general principle of interpretation it has to be seen as to what the Legislature meant by the words 'by thirty Days'. There is no dispute that this High Court as well as other High Courts in a series of decisions have held that the period mentioned in the notice under Section 106 of the Transfer of Property Act must be a clear period of fifteen days in other States and a period of thirty days in this State. In support of this contention, the case of Ghasi Ram v. Chaubey Mitra Sen : AIR1953All218 can be quoted.

8. Thus it is certain that a tenant must get thirty days' clear notice as required under Section 106 of the Transfer of Property Act If a tenant has to get thirty clear days of notice, then.a date on which the notice is received cannot be included as a clear day and, therefore this would mean that the tenant is not getting thirty days' clear notice. There may be large number of cases where a notice is served on the tenant at the end of the day or say in the evening at 6 p. m. In that case, It cannot be said that the date on which the notice is served is a clear day to be included within the period of thirty days mentioned in Section 106 of the Transfer of Property Act. There are other statutes interpreting the period of limitation. It has been held in a number of oases that when a statute gave a clear number of days, a date on which the notice is received or act is done is generally excluded.

9. On the Interpretation of Statute by Maxwell. Tenth Edition, page 351 we find:

'Again when so many 'clear days', or so many days at least 'are given to do an act or 'not less than' so many days are to intervene both the terminal days are excluded from computation'.

10. Similar view has been expressed in 'Legislation and Interpretation' by Swarup at page 351 referring to a quotation from Halsbury's Laws of England 2nd, Ed. Vol. 32 pp. 140 and 205 which reads as below:--

'When a period is fixed before the expiration of which an act may not be done, the person for whose benefit the delay is prescribed has the benefit of the entire period and, accordingly, in computing it the delay from which it runs as well as the delay on which it expires must be excluded'.

11. These expressions also lend support to the view that if the date on which the notice is served is included then the tenant is not getting a clear notice of thirty days as required under Section 106 of the Transfer of Property Act.

12. There are other cases where clear notice was required and the period of the notice or the act was included. The first case in this series is Commr. of Income-tax v. Ekbal & Co., AIR 1945 Boon 318. In this case thirty days' time was allowed on the notice. It was ob-served as below:--

'In my judgment expressions 'within 30 days' and 'not less than 30 days' are two quite different things. 'Within 30 days' is within two points of tuna one at which the period begins and the other at which it expires. On the other hand, 'not less than 30 days' is outside these two points of time. There must be an interval of not less than 30 days and that means 30 days clear: see (1885) 29 Oh D 204. The period must continue beyond the expiration of the stated time. Whereas 'within' the stated period must mean what it says, something less than the moment of expiration. In my opinion therefore the notice is invalid and the question referred to must be answered in the negative'.

13. In Rambharoselal Gahol v. State of Madhya Pradesh., AIR 1955 Naff 35, ten clear days were needed to expire between the notice of a resolution of no-confidence and the motion of no-confidence. It was, therefore, held that there should be clear ten days and the first day was excluded.

14. Similar view was taken in Anokhmal Bhurelal v. Chief Panchayat Officer. Rajasthan where the rules required clear seven days for the election.

15. Similar view was also taken in Jai Bhagwan Sharma v. Matu Ram Bhola Ram., AIR 1964 Punj 135.

16. There are two cases of the Calcutta High Court which appear to be direct on the point The first is Suba-dini v. Durgacharan Lal. 11901) ILR 28 Cal 118. In this case, the date on which the notice under Section 106 of the Transfer of Property Act was served was excluded and it was observed as below:

'A third point is whether the defendant had 15 days clear notice to quit The pleader for the appellant maintains that under Section 106, the defendants were entitled to 15 days' notice but not to 15 clear days' notice; and in support of this view he cites the following three English cases: Glassington v Rawlins: (1803) 3 East 406, Castle v. Burditt; (1790) D. G. E. 623 and Migottt v. Colvill; (1879) 4 C. P. D. 233. The last of these is the case of a prisoner who was held entitled to be released on the 14th day of the period of 14 days' imprisonment to which he had been sentenced. The same rule is observed in this country; but we do not think that the case of a prisoner can throw any light on the provisions of Section 106 of the Transfer of Property Act. Nor do we think that the English cases cited by the learned pleader for the appellant can assist us in any way in interpreting the provisions of that section. In the absence of any Indian authorities to the contrary we must hold that the 15 days' notice referred to in the section means 15 clear days, and we do not think that the terms of this section have been complied with by the plaintiff. In this case the plaintiff served his notices on the defendants on the 16th Falgoon, and required them to quit the land on the 30th of the same month, so the defendants had only 14 clear days' notice and the notice to quit is bad'.

17. Similar view was taken in the other case of the Calcutta High Court Gobinda Chandra Saha v. Dwarka Nath Patita, AIR 1915 Cal 313 and it was held that the date on which the noticewas received being included, the tenant was not given fifteen days' clear notice to vacate the premises. In this view of the matter. I think that applying the general principle, the notice to the appellant did not comply with the provisions of Section 106 of the Transfer of Property Act as clear thirty days' notice was not given to the defendant to vacate the premises,

18. As against this, the learned counsel for the respondent relied on a Patna case, Mt. Natho v. Sital Prasad Sahu. : AIR1969Pat310 . In this case, a Single Judge of the Patna High Court held that Section 9 of the General Clauses Act does not apply in interpreting Section 106 of the Transfer of Property Act and it cannot be said that this section requires exclusion of the date on which the notice was received. In this Patna case, the earlier decisions of the Calcutta High Court were not considered. This point was also not considered as to whether 15 days' clear notice to which, under the law, the tenant was entitled had been given to him by the landlord. The only reasoning was that the wordings of Section 106 of the Transfer of Property Act do not So to show that the day of the receipt of the notice could be excluded. If the tenant was required to 15 days' clear notice, the question remained in Patna case as to whether the exclusion of the date of the service of the notice meant clear 15 days' notice to the tenant and it appears that this point was not argued at the bar in the Patna case nor the other cases were cited before the Hon'ble Judge who decided this case. It should be noted here that the two Calcutta cases are Division Bench cases and the abovesaid argument has been discussed in both these cases.

19. Some other cases were also cited by the learned counsel for the respondent. One of them is T. Nagappa v. T.C. Basappa, AIR 1954 Mys 102. In this case, the question before the Bench was about the computation of period for presentation of election petition and it was held that Sections 9 and 10 of the General Clauses Act had no application. This case is of no help in determining the point which is in issue in this case.

20. The other case is Vishnu Bhatta Subraya Bhatta v. Domakkee : AIR1958Ker325 . In this case, the question was about the interpretation of a debt in a mortgage bond. Therefore this case is also of no help in deciding the point in issue in this case.

21. The other case cited was Krishna Chandra Sharma v. Ramgulam : AIR1958MP295 . In this case also, the question was about the interpretation of Section 10 of the General Clauses Act and this case does not help us in deciding the point in issue in the present case.

22. The notice Ext. 4 was received by the defendant sometime in the day on 7-2-1967. If 7th February. 1967 as well as 8th March, 1967 are included in computing the period of thirty days, then and then alone the notice can be said to be valid. In my opinion the date on which the notice was received has to be excluded and, therefore, excluding that date the defendant was not given clear thirty days' notice. The result is that the defendant was not given clear thirty days' notice for vacating the premises. The notice is therefore, illegal. On this notice, the plain-tiffs suit for ejectment cannot succeed.

23. The appeal is therefore allowed with costs. The judgment and decree passed by the lower appellate Court are set aside and the ones passed by the trial Court are restored.


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