H.R. Krishan, J.
1. This is a second appeal by the unwilling tenant of a house from the judgment and decree against him for ejectment and arrears. The only material question at this stage is, whether the notice served on him before the suit was valid and in accordance with Section 106 of the Transfer of Property Act, because it might have terminated the tenancy on a date other than the one on which the lease term itself ended, even though more than 15 days had been given upto the last date of the lease term before the date of termination of the lease.
2. The house had been taken on rent on a monthly basis on Kartik Sudi 1 Samvat 1997; but the rent note was actually executed eight days later on the Sudi 9th of the same month, the corresponding English dates being the 17th and the 25th. October, respectively. The relevant notice was dated 16th February, 1953, and was actually served on the tenant on 17th calling upon him to quit by the 30th of March, 'Chet amavas tak makan chhod dena'.
The grounds sought for ejectment were bona fide personal necessity and failure to pay up the rent arrears on demand. The trial Court allowed the suit both for the arrears, and for the ejectment on the ground of failure to pay up on demand while it did not accept the plaintiff's contention regarding personal necessity. The appellate Court, whom the defendant approached, confirmed the decree.
The trial Court held that the tenancy actually commenced on the 1st of Kartik Sudi, so that a notice calling upon the tenant to vacate by the 15th Badi, that is, the last day of the month, was legal and in accordance with Section 106 of the Transfer of Property Act. The appellate Court held that either way, whether the tenancy commenced on the 1st Sudi which was the date from which the rent was paid, or the 9th Sudi which was the date on which the rent-note was actually written, the notice was valid.
3. Of all the provisions in our law, Section 106 Transfer of Property Act is one which has been sought to be interpreted and applied in a manner that it is at times quite unequitable. A tenant would come after several years sometimes -- though not in the present, instance -- in the appellate Court at the first instance, and seriously urge that the landlord should start all once over again, because there was shortage of one day in the notice though the litigation itself during which the tenant has been occupying the house with full notice of the landlord's intention, has gone on for years.
Here, for one thing, there was no shortage in any event; but the last date before which the tenant was to vacate was not according to the tenant, the last date of the lease term. Under that section, in the absence of a contract to the contrary, the tenant is entitled to two things; firstly he should have notice for a period equal to half the length of the term of the tenancy, in other words, if it is one of month to month, then 15 days, and if it is year to year, then six months; secondly, he should also be entitled, without prejudice to this right, to stay on till the end of a full month or a full year of the tenancy, as the case may be.
In other words, he should get either 15 days or the 6 months, or time till the date on which any one lease term ends, whichever is longer. There is no special sanctity in the tenancy commencing on this or that date; but it is important that the tenant having made his plans on the basis of a particular date, at the beginning and end of his lease term, should not be taken by surprise but should be allowed to stay on till that date and have, apart from it, at least 15 days or six months as the case may be, between the receipt of the notice and that date.
When these two conditions are fulfilled, even the most literal and technical application of the section should not lead to any grievance. If, for example, the time given is in excess of the half term, and the tenant is able to stay on for a half term before the date of the termination of the lease period, the section is complied with and in fact, more than complied with. In the present instance, if the tenancy commences on the 1st of the Hindi month, as indeed expressly has been written (1st Kartik Sudi etc.) then the notice is certainly valid. This is what the trial Court has found and what the first appellate Court has not distinguished.
4. Even on the assumption that the tenancy started on the 9th Sudi Kartik, there is no breach of Section 106 of the Transfer of Property Act. The notice was actually served on 17-2-1953; the Phagun/ Amavas was on the 28th February, or the 1st March, and the next 9th Sudi fell on the 9th of March, The defendant had, even if he thought he should quit on the 9th, much more than 15 days from the 17th February.
If he chose to avail of the permission of the landlord to stay on upto and quit in time before the 30th March, he had another spell of 21 days at his choice. Thus, even if the last date on the notice left to the option of the tenant was not the date of termination of the tenancy, still, the tenant had much more than 15 days upto the 9th Sudi on which according to himself a lease term ended.
5. All this on the assumption that the provision in Section 106, Transfer of Property Act is one of a strictly mandatory nature and not directory, and even the shortage of a single day Can, after years, be used as a justification for dismissing of the suit. Even on that assumption the law provides only the two benefits to the tenant, which in this case have been amply granted. To be sure, there are a few rulings to the effect that a shortage even of one day, before the end of the lease period, provided by the notice, can justify the dismissal of the landlord's suit.
But they are cases in which the tenant did not get the full 15 days before the last day of the lease term. But in the present case, the position is different; and though time was given to the learned Counsel, he has not been able to produce a single ruling where the tenant having had at least 15 days upto the date of the commencement of the lease term even on his own reckoning, the suit was dismissed.
6. In the result, I find that there is no substance in this second appeal which is accordinglydismissed with costs and pleader's fee payable tothe plaintiff-respondent.