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Abdul Jalil Vs. Haji Abdul Jalil - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 38 of 1972
Judge
Reported inAIR1974All402
ActsTransfer of Property Act, 1882 - Sections 106 and 111; Transfer of Property (Amendment) Act
AppellantAbdul Jalil
RespondentHaji Abdul Jalil
Appellant AdvocateS. Misra, Adv.
Respondent AdvocateS.C. Das, Adv.
DispositionAppeal dismissed
Excerpt:
.....or termination of tenancy forthwith or intention of lessor not to keep tenancy open - valid notice - notice asking for vacation on expiry of thirty days from service of notice - invalid - mere demand for possession - no termination of tenancy. - - in a lease of this nature a notice of the intention to quit given by the lessee, and on his failure to apply for renewal of lease, a notice to quit issued by the lessor would be an appropriate notice. atkinson, (1885) ilr 7 all 899 (fb) a notice to quit has been described in the following words at page 902, which appears to be based on some english decision :a notice to quit has been described as a certain reasonable notice required by law, or by custom, or by special agreement, to enable either the landlord or the tenant, or the..........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. this section has been amended in its application to our state. the amended section provides that such lease shall be terminable on the part of either lessor or lessee by thirty days' notice. the section further lays down that every notice under this section must be in writing, signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.4. from the above provision it is.....
Judgment:

Jagmohan Lal, J.

1. The only point that arises for decision in this second appeal is the validity or otherwise of a notice under Section 106, Transfer of Property Act, which was served in this case by the plaintiff-respondent on the defendant-appellant.

2. In present days of scarcity of accommodation litigation between landlord and tenant has greatly increased. Most of the litigation centres round the question of the validity of the notice by means of which the tenancy is sought to be put an end to by the landlord. Though the general principles governing the validity of such notices have fairly been settled by the decisions of the Supreme Court and Full Bench and Division Bench decisions of this Court, in some individual cases discordant observations have been made by some learned Judges. The reference of this second appeal to this Bench is also the result of some divergent views expressed by two learned Judges of this Court in their decisions while considering the validity of the individual notices that came before them for interpretation. Though the learned single Judge who referred this second appeal to a Division Bench has not noted those decisions containing the divergent views, we are told by the learned counsel for the appellant that the reference is to H. Z. Islam v. Mohd. Raft reported in : AIR1971All302 decided by K. B. Asthana, J. and Phool Chand v. Jag-dish Prasad reported in 1971 All WR (HC) 456 decided by C. G. P. Singh J. As the question is of general importance usually arising in litigation of this nature, we propose to consider it in detail for the guidance of the subordinate courts.

3. The tenancy which was sought to be determined under the notice in question issued by the landlord was a month to month tenancy for a purpose other than agricultural or manufacturing purpose governed simply by Section 106 and there being no contract or local law or usage to the contrary governing that tenancy. The relevant provision of Section 106 relating to such tenancy lays down that a lease of immovable property for a purpose other than agricultural or manufacturing 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. This section has been amended in its application to our State. The amended section provides that such lease shall be terminable on the part of either lessor or lessee by thirty days' notice. The section further lays down that every notice under this section must be in writing, signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.

4. From the above provision it is evident that this section firstly lays down a rule of presumption that in the absence of a contract or local law or usage to the contrary, a lease of immovable property for purposes other than agricultural or manufacturing purposes shall be deemed to be a lease from month to month. In the second place, it lays down how such a lease would be terminable. The mode of such termination as provided in this section is by a thirty days' notice given by the lessor or lessee. It further provides that the notice shall be in writing sent by or on behalf of the person giving it. Lastly it prescribes the mode of service of that notice. But the section does not prescribe any form of the notice or the actual language that is to be used in drafting that notice. So long as the essential conditions laid down in this section are complied with and the notice expressly or impliedly gives out the intention of the notice-giver to terminate the lease it will be a valid notice to determine the lease on the expiry of the requisite period of the notice.

5. There is another provision contained in Section 111(h) which is also relevant in this connection. It provides that a lease of immovable property determines on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. This Clause (h) speaks of three types of notices : (1) a notice to determine the lease, (2) a notice to quit, and (3) a notice of intention to quit. It is obvious that a notice of intention to quit will in the nature of things emanate from the lessee and not from the lessor while the other two types of notices can emanate either from the lessor or from the lessee. This clause, however, does not lay down what type of tenancy can be determined by one or the other type of the notices mentioned in it. In fact, this clause speaks only about the point of time at which the lease would determine as is evident from the use of the word 'on' in the beginning of this clause and not the word 'by'. By using the words 'dulygiven' this clause leaves the notice-giver to find out for himself from the terms of the lease or/and from other provisions of law as to which type of notice should be given and what should be the requirements of that notice to determine the lease validly on the expiration of that notice. If a lease under its very terms is a perpetual lease not terminable by either party under any circumstance, obviously none of the notices mentioned in Clause (h) can determine such lease. Again, it is conceivable that the lease may be for a fixed term of five years containing a further stipulation that if within one month after the expiry of five years' term of the lease, the lessee gives a notice in writing to the lessor to have the lease renewed, it shall stand renewed for another year, and if no such notice is given by the lessee within one month of the expiry of the period of lease, the lessor may give a notice to quit within the next fifteen days, and that if no such notice is given -by the lessor, the lease shall continue as a month to month lease. In respect of such a lease it is open to the lessee to serve a notice of his intention to quit even before the expiry of the fixed term of five years by intimating the lessor that he did not want to have the lease renewed and that he would quit the premises on the expiry of five years' term. If he wants to have the lease renewed, he has an option to give a notice in writing to the lessor within one month after the expiry of five years' term and thereafter the lease shall stand renewed for another year. It is also open to him not to give any such notice and just to keep quiet. In that case it will be for the lessor to give a notice to quit on the expiry of five years and one month and such a notice to quit should be given within fifteen days from that time. In that notice the lessor can fix any reasonable time calling upon the lessee to quit within that time. If he also does not give that notice, the lease would continue as a month to month lease. In a lease of this nature a notice of the intention to quit given by the lessee, and on his failure to apply for renewal of lease, a notice to quit issued by the lessor would be an appropriate notice. A notice to determine lease is hardly necessary.

6. The two usual types of notices as contemplated by Clause (h) of Section 111 are designated as notice to determine lease and notice to quit. But neither this clause nor any other provision in the Transfer of Property Act lays down the form of any of these notices or the real distinction between them. In the judgments of the courts also sometimes the two expressions are used indiscriminately. The real distinction between these two notices as can be understood from their captions is that in a pure notice to determine the lease the notice-giver purports to determine the lease on the expiry of a period stated therein which should be in accordance with the law governing that lease and he need ask no more from the lessee. After the expiry of that period the lessee would be under a legal duty to quit and if he does not do so, he would stay there at his own risk not as a lessee but as a trespasser. In a case of notice to quit given by the lessor, the lessee is required to vacate or quit the premises after the expiry of the time mentioned in that notice which should be in accordance with the requirement of law or the contract governing the lease, and on the expiry of that time the lease would determine by operation of law under Section 111(h) even though the notice does not expressly state about such determination.

7. In Bradley v. Atkinson, (1885) ILR 7 All 899 (FB) a notice to quit has been described in the following words at page 902, which appears to be based on some English decision :

'A notice to quit has been described as a certain reasonable notice required by law, or by custom, or by special agreement, to enable either the landlord or the tenant, or the assignees or representatives of either of them, without the consent of the other, to determine a tenancy from year to year, from two years to two years, or other like indefinite period.'

It was further observed that

'Documents of this kind must be certain, at all events in respect of the date of the determination of the tenancy; in other words, there must be a clear and explicit intimation to the tenant as to the date after which he will, if he remains in occupation of the premises, become a trespasser.'

8. It was held by the Privy Council in Harihar Banerji v. Ramshashi Roy, (AIR 1918 PC 102) that principles laid down in English decisions as to what would be a valid notice to quit are equally, applicable to cases arising in India.

9. It has also been held that notices should be liberally construed not with a desire to find fault in them which would render them defective but to construct at res inagis valeat quam pareat doe. But a liberal construction of a notice which would deprive the tenant of the facility of having the benefit of the minimum time allowed by Section 106 for vacating the premises, is not permissible as was observed by the Supreme Court in Mangilal v. Susan Chand Rathi : [1964]5SCR239 .

10. Bearing in mind these general principles let us examine some of the usual types of notices that come before the court and in that connection also consider the notice which is involved in the present second appeal. These cases are obviously illustrative and not exhaustive.

A. You are hereby informed or you are given this notice that your tenancy shall stand determined on the expiry of thirty days from the date of service of this notice.

B. You are informed that your tenancy will determine on the expiry of thirty days from the date of service of this notice and you are called upon to vacate the premises on the expiry of the said period of notice failing which a suit for ejectment shall be filed against you.

C. I do not want to keep you as my tenant. You are therefore given this notice and required to vacate the premises on the expiry of thirty days from the date of service of this notice on you.

D. Your tenancy is terminated with effect from today and you are required to vacate the premises on the expiry of thirty days from the date of service of this notice on you.

E. Your tenancy is terminated and you are required to vacate the premises on the expiry of thirty days from the date of service of this notice failing which a suit for ejectment shall be filed against you.

F. You are given this notice to quit or vacate the premises on the expiry of thirty days from the date of service of this notice failing which a suit for ejectment shall be filed against you.

G. You are required to vacate the premises on the expiry of thirty days from the date of receipt of this notice.

11. These illustrative notices have been framed on the basis of the amended Section 106. A corresponding notice under the unamended section can be suitably adapted by using the expression 'on the expiry of current tenancy (preferably stating the last date of the tenancy month on which the tenant is required to quit) and taking care to see that the interval between that date and the date of service of the notice on the tenant is at least clear 15 Jays. In such cases there is again a conflict of opinion if only the last date of the current tenancy month is to be mentioned as the date for vacating the premises or the first date of the next month can also be stated without rendering the notice invalid. For the purposes of this appeal we need not notice that conflict. We shall now consider these various types of notices seriatim and see in which category the notice which is the subject-matter of this appeal falls.

12. A. This type of notice fully satisfies the requirements of Section 106 and is a valid notice. It is not necessary for the landlord to demand possession from the tenant because after a valid termination of his tenancy it is the duty of the tenant himself to vacate the premises.

13. B. This type of notice is a composite notice of termination of lease and notice to quit. A notice terminating the tenancy may include a demand for possession and that does not make the notice invalid if the notice purports to terminate the tenancy in accordance with the requirements of Section 106. So this type of notice is also free from any legal defect.

14. C. A notice of this type is also a composite notice. It impliedly terminates the tenancy and asks the tenant to vacate the premises at a point of time which is in consonance with the provisions contained in Section 106. The tenancy would stand determined on the expiry of the notice under Section 111(h). It is a valid notice.

15. D. A notice of this type besides terminating the tenancy also combines a demand for possession from the tenant for which he is allowed thirty days time. A notice of this type came for consideration in 1971 All WR (HC) 121 (supra). It was held by K. B. Asthana, J. following the Division Bench decision in Ahmad Ali v. Jamal Uddin : AIR1963All581 that this notice was invalid as it purported to terminate the tenancy at a point of time which was not in conformity with the provision contained in Section 106. As pointed out by the Bench in that case, there is a distinction between terminating the tenancy at once and calling upon the tenant to deliver possession after thirty days and terminating the tenancy after thirty days. In the former case the relationship of landlord and tenant conies to an end at once and the tenant is given a right to remain in possession for thirty days either as a licensee or as a tenant on sufferance, whereas in the latter case he remains a tenant for thirty days. It was argued before Asthana J. in 1971 All WR (HC) 121 that the first part of the notice which purported to terminate the tenancy with effect from the date of the notice may be ignored and the remaining part of the notice may be treated as a valid notice to quit which would determine the tenancy under Section 111(h) after the expiry of thirty days from the date of service of that notice. This argument was repelled, and in our opinion rightly, if we may say so with all respect to the learned Judge, by Asthana J. If a lessor by his own act explicitly purports to terminate the tenancythrough a notice given by him to determine the lease at a point of time which is in violation of Section 106, the demand for possession combined in the same notice which allows the tenant requisite time of thirty days before vacating the premises, cannot be deemed to be a duly served notice to quit so as to determine the tenancy at the correct time by operation of law under Section 111(h). In such a case the faulty act of the lessor in terminating the tenancy at a wrong point of time leaves no scope for the application of Section 111(h) and thereby validly determines the lease under Section 106. A tenant is entitled to stay as tenant for thirty days after the receipt of a notice from the lessor to determine the lease under Section 106. When the lessor terminates that lease with effect from the date of notice, the grace allowed to the lessee to stay for thirty days before vacating the premises reduces him to the status of a licensee or a tenant on sufferance, which is in contravention of the law. As such a notice of this type would be an invalid notice and the case of 1971 All WR (HC) 121 has been correctly decided.

16. E. The notice which is the subject-matter of the present appeal falls in this category. It contained the following words as translated in English :

'Your tenancy is terminated by this notice. So after receipt of this notice you can remain in possession for thirty days upto the midnight and then deliver possession to the notice given and on your failure to do so a suit for ejectment shall be filed against you.'

17. The notice that came for inter-pretation before the Division Bench on 1971 All WR (HC) 121 (supra), that which came before C. S. P. Singh J. in 1971 All WR (HC) 456 (supra), the one that came before K. B. Asthana J. in Suraj Prasad v. Kusumlata : AIR1973All198 and that which came before K. H. Srivastava J. in Mewa Lal v. Tara Rani : AIR1973All165 , were also similarly worded. All such notices were held to be valid. It was held in all these cases that the use of the present tense in relation to termination of the tenancy refers to the present act of giving the notice by means of which the tenancy was sought to be terminated and it did not mean that the tenancy was sought to be terminated forthwith or with effect from the date of notice. On the other hand, the demand for possession combined in that notice requiring the lessee to vacate the premises on the expiry of thirty days clearly indicated that the tenancy was meant to be terminated on the expiry of that period which would also follow by operation of law contained in Section 111(h). In our opinion also a notice of this type in which the present notice also falls, will be a valid notice of termination of lease under Section 106 read with Section 111(h).

18. It may however be stated that both C. S. P. Singh J. in 1971 All WR (HC) 456 and K. B. Asthana J. in : AIR1973All198 after holding that the use of the present tense did not mean that the tenancy was sought to be terminated forthwith and as such it did not invalidate that notice, went to consider an alternative argument advanced on behalf of the lessor. They appear to be of the view that even if by the use of the present tense it is inferred that the lessor intended to terminate the tenancy forthwith and as such the notice as a notice of termination of lease was invalid, it can still be justified as a valid notice to quit which allowed requisite time to the tenant for vacating the premises and which by operation of law would determine the tenancy at the appropriate time under Section 111(h). For the purpose of the decision of those cases this alternative argument was in the nature of obiter dicta. It has however given a ground to the learned counsel for the appellant before us to argue that the mere fact that in the notice in question the present tense has been used without specifically stating that the termination of the tenancy was to take effect from the date of notice is of no consequence and if the notice is construed in that manner it will be an invalid notice under Section 106 and thereafter the latter portion of this notice which contains a demand for possession after allowing requisite time to the lessee to vacate, cannot validly put an end to the relation of the landlord and tenant under Section 111(h). We are prepared to accept that this argument has some force in it. We have also observed above that if a notice to determine the tenancy purports to do so at a wrong point of time in violation of the provisions of Section 106, the demand for possession combined in the same notice could not be treated as a valid notice to quit so as to determine the tenancy at the correct time under Section 111(h). We are however unable to subscribe to the dictum of C. S. P. Singh J. and K. B. Asthana J. in those cases that even if the first part of the notice is construed as purporting to terminate the tenancy in present and as such it is deemed to be an invalid notice under Section 106, the subsequent part of the notice containing a demand for possession on the expiry of the requisite period of thirty days would make it a duly served notice to quit within the meaning of Section 111(h). We are of the opinion that a notice of this nature is only a notice of termination of the tenancy and it effects thattermination on the expiry of thirty days from the date of service of that notice. As such the notice is valid. It may be stated that in support of their dictum both the learned Judges C. S. P. Singh J and K. B. Asthana J. relied on a Division Bench decision in Ram Chandra v. Lala Dulichand : AIR1958All729 . In that case the lessor had given an earlier notice expressly terminating the lease but not at the correct point of time contemplated by the unamended Section 106. Subsequently he gave another notice in which he called upon the lessee to vacate the premises and deliver possession of it to the plaintiff on a date which complied with the requirements of Section 106. In the plaint he had relied on both these notices but at the subsequent stage the lessor confined himself only to this later notice which was obviously a notice to quit without making any specific mention about the termination of lease. The Bench also proceeded on the premise that the later notice was not at all a notice to determine the tenancy expressly or impliedly but it was simply a notice to quit. It was then held that if a notice to quit complies with the requirements of Section 106 as regards the time allowed to the lessee for vacating the premises, it would be deemed to be a valid notice in writing within the meaning of Section 106, and if duly served, it would have the effect of determining the tenancy under Section 111(h). So this Bench decision is of no help to support the view that a notice like a notice which falls under Category D and purports to terminate the tenancy in violation of the provisions contained in Section 106, can still bring about a valid termination of lease by being treated as a notice to quit under Section 111(h).

19. F. This is a simple notice to quit and as it satisfies the requirements of Section 106 as regards time it will validly determine the tenancy on the expiry of the period of notice under Section 111(h).

20. G. A notice of this type simply contains a demand for possession. It does not evidently purport to terminate the tenancy either expressly or impliedly. In the absence of any thing further so as to give a clear and explicit intimation to the tenant that if he remains in occupation of the premises after the date mentioned therein, he will become a trespasser, it may not be treated even as & valid notice to quit in view of the observations made by the Full Bench in (1885) ILR 7 All 899 (FB) (supra).

21. Since the notice in the present case falling as it does in category E was a valid notice, the courts below rightly decreed the suit for ejectment on itsbasis and this appeal is without any merits in it. The appeal is dismissed with costs to the plaintiff-respondent.


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