K.B. Asthana, J.
1. This is an appeal by the defendant against whom a decree for ejectment from a house situate in the city of Agra and for recovery of arrears of rent has been paused. The only point which calls for determination in this appeal is whether the so-called notice to quit or termination of tenancy sent by the plaintiff-respondents, the landlord, and served upon the defendant-appellant, the tenant, was valid and effective within the meaning of Section 106 of the Transfer of Property Act. It may be mentioned that the findings of fact recorded against the defendant-appellant on the question of the arrears due, the amount of arrears due and the default in complying with the notice calling upon him to pay up the arrears have not been challenged in this second appeal, it is clear, therefore, that if the appellant succeeds in establishing that the notice was not an effective notice under Section 106, the only consequence would be that the suit of the plaintiffs as far as the ejectment of the defendant is concerned, would stand dismissed and the decree of the Court below would be modified to that extent only.
2. In order to appreciate the submissions made at the Bar in regard to the validity of the notice as an effective notice under Section 106 of the Transfer of Property Act, it is necessary to reproduce the notice, a copy of which is paper No. 18-C on the record having been admitted in evidence duly proved as a true copy of the original notice sent to the defendant by the plaintiffs:
'From the office of : Johri Bazar, Agra,Jethanana Advocate. D/- 23-12-1959. To
Sri Chhida Ram son of Nand Kishore,
R/O H. No. 4979 Dhuliaganj, Agra.
Under instructions and on behalf of my clients, M/s Naru Mal son of Guloo Mal and Babru Mal son of Chhugo Mal residents of Shahganj Agra please take notice;
1. That whereas you are in occupation of one big Kamra on the ground floor at the rate of Rs. 4/-per month.
2. That whereas you are a bad pay master in respect of the rent and have not paid the rent since1-8-1058 despite repeated demands made in thisBehalf.
3. And that whereas you insult, annoy and intimidate my clients whenever they demand the rent from you and have constituted a nuisance in the premises.
This is therefore to call upon you please to vacate the premises in your occupation on the expiry of the 30th day of the receipt of this notice and also please remit my client the amount of rent due till then along with Rs. 3/50 nP. as the costs of this notice falling which I have instructions to proceed legally in the matter at your risk as to costs and consequences which please note.
Also please note that the rent that you are paying is absolutely insufficient and inadequate andtaking in consideration the accommodation the rent prevailing in the locality for similar accommodation and all other facts the most fair rent of the premises cannot be less than Rs. 8/- per month and you are required to pay rent at the said rate with effect from 1st Jan. 1960 failing which I have instructions to take legal action in this respect as well.
Swami Dayal, the learned counsel for the defendant-appellant, submitted that the requirement of the law is that the notice terminating the tenancy or to quit must be fair, unambiguous and unequivocal showing an absolute intention on the part of the landlord terminating the tenancy at the expiry of thirty days from the receipt of the notice and contended that the notice in question did not fulfil any of those requirements. The learned counsel characterised the notice as ambiguous, equivocal and showing an intention on the part of the landlord to continue the tenancy on an enhanced rent. On the evidence on the record it had been proved that the notice in question was duly served on the defendant on 30th December, 1959. Thus according to the notice the defendant was asked to quit and handover possession by the 29th of January, 1960. A question of some Importance then arises that in the notice the defendant is asked to pay 'rent' at the rate of Rs. 8/- from the 1st January, 1960, that is to say, during the period of the subsistence of the notice or notice period.
It was urged that had the defendant on receipt of the said notice agreed to pay the rent at Rs. 8/-from the 1st January, 1960 no question would have arisen for his handing over possession to the plaintiff on 29th January, 1960. Indeed that seems to be the clear implication of what has been mentioned in the notice. What effect it would have on the validity of the notice as bringing about the termination of the tenancy under Section 106 of the Transfer of Property Act will presently be discussed, S.K. Dhaon the learned counsel for the plaintiff-respondent, submitted that on a true construction of the contents of the notice in question it would appear that it could be divided into two distinct and Independent parts, the first part according to the learned counsel, unequivocally and clearly constitutes a notice to quit within the meaning of Section 111 of the Transfer of Property Act read with Section 106 of that Act, and the second part is nothing more than an offer to the defendant to enter into a fresh agreement with the plaintiffs and does rot in any manner affect the earner part. Reliance has been placed on the case of Ahearn v. Beliman, (1879) 4 Ex. D. 201. In that case the notice to quit, which was under consideration, by its first part terminated the tenancy and called upon the tenant to quit by a certain date, in the second part the language used was as follows:
'And I hereby further give you notice that should you retain possession of the premises after the day before mentioned an annual rental of the premises now held by you from me will be 1606, payable quarterly; in advance.'
The learned judges construed the notice as one explicitly and clearly terminating the tenancy. Inregard to the second part, quoted by me above it was held that it was a separate and distinct notice not modifying the existing tenancy but offering a new one. On the same fine is the decision in the case of Shanker Lal v. Babu Ram, AIR 192l All 194 cited by the learned counsel. To my mind, in the Instant case no assistance can be drawn from those decisions relied upon by the learned counsel (or the defendant-appellant. The notice in question does not, as I construe it, by its second part make any otter to create a fresh tenancy after the termination of the earlier tenancy but clearly asks the tenant to modify the existing tenancy so far as the rate of rent was concerned. it would be seen that under the law the tenancy which was sought to be terminated by the notice in question could not stand terminated before the 29th January 1960 and when the landlord Intimated the tenant to note that after the 1st January, 1960 the rent of Rs. 8/- p.m. would be payable what he really intend ed was that there would be no end to the existing tenancy if the tenant agreed and was willing to pay Rs. 8/- per month as rent from 1st January, 1960. On a true reading of the contents of the notice in question the Inference is inescapable that the real intention of the plaintiffs was that in case the defendant was wining to pay Rs. 8/- per month from 1st January, 1960 as rent he was not to be disturbed. No doubt in the earlier part of the notice it is clearly mentioned that the tenant would vacate the premises in his occupation on the expiry of thirtieth day of the receipt of that notice but on the principles of harmonious construction of documents and to avoid conflict the document should be read as a whole and the second part could only be reconciled as showing an intention on the part of the plaintiffs to continue the tenancy without effecting its termination if the defendant agreed to pay Rs. 8/- p.m. as rent. The offer by the plaintiffs to the defendant to have the tenancy continued on the payment of Rs. 8/- per month cannot be construed as an offer for entering into a new contract of tenancy for the simple reason that by his acceptance of that offer on any day before the 29th January, 1960 the defendant as a tenant could continue the existing tenancy on a higher rent and avoid the consequences of handing over possession on the expiry of thirty days from the receipt of the notice as was intimated to him in the earlier part. in my view, the notice in question could be paraphrased as asking the defendant who is the tenant to pay Rs. 8/- per month as rent from 1st January, 1960 onwards, If he did not want to be visited with the consequence of the notice to quit contained in the earlier part. in the earlier part, therefore, the intention to terminate the tenancy was not unconditional but conditional which condition could be complied with by the defendant by agreeing to pay an enhanced rate of rent and avoiding termination of tenancy.
3. Sri Dhaon further relied on a single Judge decision of this Court in the case of Jugla v. Har Narain Singh, 19 Ind Cas 758 (All), in that case following a decision of the Bombay High Court in the case of Kikabhal v. Kalu, ILR 22 Bom 241 it was held that merely because a landlord called upon the tenant to enter into an agreement to pay an enhanced rent falling which he would be asked to quit and actually under the terms of the noticehe was asked to hand over possession by a certain date the notice terminating the tenancy within the meaning of Section 106 of the Transfer of Property Act was not rendered invalid. That was a case in which the decision turned on the peculiar terms of the notice.
In the Bombay case of Kikabhai Kalu, ILR 22 Bom 241 the learned Judges after construing the terms of the notice and holding it to be a valid notice observed at the end at p. 244 while taking notice of the observation of Garth, C. J. in the case Mohamaya Goopta v. Nilmadab Rai, ILR 11 Cal 533 that they did not think it necessary to decide whether the doubt expressed in Mohamaya Goopta's case, ILR 11 Cal 533 was well founded or not. In the Calcutta case the alternative presented to the tenant continued to be presented to Him until the date specified in the notice but in the case before the Bombay High Court the alternative ceased to be an alternative two days before the service 01 the notice where after the notice to quit left the tenant no other option than to deliver up' possession on the day named. Thus it would be seen that the learned Judges of the Bombay High Court who decided the case of Kikabhai distinguished the observations of Garth, C.J. in the case of ILR 11 Cal 533.
In the Calcutta case a tenant by a notice served upon him by the landlord was called upon to pay rent at the enhanced rate from the commencement of the ensuing year or quit though the decision turned on some other material points. Garth C.J. observed at p. 538 that he had some doubts whether the notice to quit was a valid one and laid down that a notice to quit ought to be clear and unambiguous. My attention was drawn to certain other decisions of various courts also which I do not consider necessary to discuss in this judgment. Each, one of the decisions cited fall in either of the two classes, namely, where a notice to quit contained a new offer of tenancy after the expiry of the earlier one or where the tenant was called upon to enter into a fresh agreement before the time under the notice to quit actually started running, i.e., before the date of service. in either case it is an offer of a now tenancy and not an otter for continuance of the existing tenancy on modified terms.
No case has been brought to my notice by Sri Dhaon holding a notice to quit, valid in which, during the notice period an alternative is offered and the tenant is given an option to comply with It, As 1 understand the law, the notice terminating the tenancy must be unconditional, unequivocal and clear, that is to say, a tenant whose tenancy is intended to be terminated and who is asked to quit has no power loft to arrest the effect of it and a tenancy must stand terminated on the expiry of the notice period. But in a case where before the expiry of the notice period and before the tenancy actually comes to an end the tenant is offered some alternative or some condition on the compliance of which the existing tenancy continues even though on modified terms such a notice would not be unequivocal, unambiguous and clear notice to quit. For these reasons, I think that the contention of the learned counsel for the defendant appellant that the notice in question did not comply with the requirementsof law and was not an effective notice terminating the tenancy within the meaning of Section 106 of the Transfer of Property Act has great force and is worthy Of being accepted. Disagreeing, therefore with the findings of the learned Judge of the lower appellate Court that the notice in question was an effective notice terminating the tenancy within the meaning of Section 106 of the Transfer of Property Act and was valid, 1 hold that it is not an effective notice and does not meet the requirements of Section 100 of the Transfer of Property Act.
4. The result is that this appeal partly succeeds. The decree of the Court below is modified to the extent that the suit of the plaintiffs as far as the relief for ejectment of the defendant is concerned will stand dismissed. The decree for mesne profits is also set aside. The rest of the decree shall stand. The parties are directed to bear their own costs for this appeal.