S.S. Dhavan, J.
1. This is an appeal against a decree for ejectment and arrears of rent. The appellant Sunder Lal was the tenant of a house in Farrukhabad. He fell into arrears of rent and the landlord sent him a notice demanding Rs. 175/-as rent. He disputed this amount and replied that only Rs. 135/- was due from him as the landlord owed him a sum of Rs. 40/- as costs awarded in some suit. He stated in his reply that he was remitting Rs. 135/- in full settlement after adjusting the sum of Rs. 40/-. His letter made it clear that after this payment the rent would be deemed to be fully paid.
The same statement was made in the coupon attached to the money order. The landlord accepted the money order for Rs. 135/-, and sent a further notice denying the appellant's right to adjust Rs. 40/- and demanded the balance of the rent which by that time had increased to Rs. 55/-. He also asked the appellant to vacate the house within one month and warned him that he would take legal proceedings if he did not do so. The appellant appears to have ignored this notice and on 31-7-1956 the landlord sent a second notice which was identically worded, except that the rent demanded was Rs. 50/-.
On 20-9-1956 the appellant remitted a sum of Rs. 50/- by money order which was refused by the landlord presumably because it was sent beyond time. The suit for ejectment and arrears of rent was filed on 1-2-1957. The appellant contested the suit on several grounds. He alleged that the landlord had agreed to adjust the amount of Rs. 40/-against rent, that the notice dated 31-7-1956 was not a proper notice to quit and, therefore, the suit for ejectment was not maintainable. The trial court rejected the defence and decreed the suit and the appellate Court upheld this decision. The appellant has now come to this Court in Second Appeal.
2. Mr. K. C. Saxena, learned counsel for the appellant advanced two arguments against the legality of the decree. First, the notice sent by the landlord was not in accordance with law is erroneous, and secondly the finding of the courts below that the appellant was a defaulter in rent is also wrong as it ignored the right of the appellant to adjust Rs. 40/- against rent.
3. Learned counsel for the appellant relied on a Full Bench decision of this Court in Bradley v. Atkinson, ILR 7 All 899, whereas counsel for the respondent cited a decision of the Privy Council in Harihar Banerji v. Ram Shashi Roy, ILR 46 Cal 458: (AIR 1918 PC 102). But I find no real conflict in the principles laid down in these two decisions, In my view no hard and fast rule or technical formula can be laid down about the language of a notice under Section 106 of the Transfer of Property Act. The precise words are immaterial provided the notice teminates the tenancy that is, it expresses a clear and unequivocal intention to terminate it. All the surrounding circumstances will be considered including any previous correspondence between the parties. In the present case, the landlord wrote to the tenant that he had not paid the rent in spite of repeated demands. The notice ends thus (Translated in English):--
'Now you will kindly pay by the end of July, 1956 a sum of Rs. 50/- in respect of rent and also vacate the house and hand over possession to us or else at the expiry of the period of this notice suitable action will be taken against you in the law courts.'
The question is whether this is a notice terminating the tenancy or a notice demanding rent coupled with a threat to resume possession. It is common experience that a landlord may demand rent under threats couched in language almost indistinguishable from a notice to quit but without any intention to terminate the tenancy. It is an admitted fact that the landlord was sending notice after notice to the tenant demanding rent. If his intention was to terminate the tenancy there was no occasion for him to go on making repeated demands for rent.
A single notice terminating the tenancy would have been sufficient, but repeated notices demanding rent create the impression that the landlord was really pressing the tenant for payment of rent. The notice is capable of the interpretation that it was another demand for rent coupled with a threat to terminate the tenancy. In such a situation the benefit of the doubt should go to the tenant. I am, therefore, inclined to hold, though not without some hesitation, that this notice does not indicate a clear decision to terminate the tenancy.
4. The landlord's suit must be dismissed on another ground though it had not been taken in the grounds of appeal. The landlord could not accept the tender of Rs. 135/- without accepting the condition that it was in full settlement of the arrears. It is common ground that the tenant disputed the landlord's claim for Rs. 175/- and remitted a sum of Rs. 135/- in full settlement of the rent, making it clear that after payment of this amount there would be no rent due from him, (is tarah kul kiraya bebak hota hai). The landlord accepted the money order, but refused to treat the payment in full settlement.
This he was not entitled to do. The appellant had tendered payment on condition that it was In full settlement of the claim. If the landlord was not prepared to accept the condition, the proper course for him was to have refused the money order and then file a suit. He could not accept the payment without accepting the condition attached to it. Under Section 8 of the Indian Contract Act, 'Performance of the conditions of a proposal or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal.' This section is based on the principle of the English Law that acceptance of the consideration or benefits of an offer, to which a condition is attached, amounts to an acceptance of the condition too.
This principle was applied by a Division Bench of this Court in an unreported case Pt. Ram Kirpal v. Shiromani Sugar Mill, First Appeal No. 444 of 1942. In that case Ram Kirpal was an engineer of a sugar mill and claimed a sum of Rs. 11,797/15/2. The management of the mill told him that a sum of Rs. 4,930/2/3 only was due to him and sent him a cross-cheque in full satisfaction of his claim. Ram Kirpal accepted the cheque but only in part satisfaction of his claim. The Company wrote a letter that as he was not accepting the cheque in full satisfaction he should return it, but Ram Kirpal had cashed the cheque before he received it. He then sued for the recovery of the balance. It was held by the Bench (Malik, C. J. and Bhargava, J.) that the plaintiff could not sue. It was observed:
'We are satisfied that the plaintiff cannot after having accepted the cheque claim the rest of the amount. The cheque was sent to the plaintiff in full satisfaction of plaintiffs claim. That was the condition attached to the payment. The plaintiff could not accept the payment and repudiate the condition. He had no right to write on the 4th of May, 1940 that he was accepting the cheque, but only in part satisfaction.....'
The principles laid down in that case apply to thecase before me. I, therefore, hold that in the present case the acceptance by the landlord of thepayment of Rs. 135/- meant the acceptance of thecondition that the payment was in full settlementof the claim for rent. After the landlord had accepted his money-order the appellant could not betreated by the landlord as a defaulter as regards theamount demanded by the latter. The suit for ejectment was, therefore, subject to the bar of Section 3(1)of the Control of Rent and Eviction Act and couldnot have been filed without the permission of theDistrict Magistrate.
5. For these reasons the appeal must succeed. I set aside the decree for ejectment passed against the appellant. In the circumstances of this case the parties shall bear their own costs throughout.
6. Leave to appeal is refused.