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Nanakram Das and ors. Vs. Nagarmal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 642 of 1950
Judge
Reported inAIR1956Ori95; 21(1955)CLT231
ActsTransfer of Property Act, 1882 - Sections 106
AppellantNanakram Das and ors.
RespondentNagarmal and ors.
Appellant AdvocateM.S. Rao, Adv.
Respondent AdvocateH. Sen, Adv.
Cases ReferredKishori Mohun Roy v. Nand Kumar
Excerpt:
.....glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 10/- per month, and as the defendants were in arrears of house rent, they were given due notice to quit on or before 1-9-47, and that they failed to vacate the house in accordance with the notice. but the courts below held that the equitable principle contained in most of the provisions of the act should be applied inasmuch as they are based on equity, justice and good conscience. in view of the partial success in this court on the question of damages, both parties should bear their own costs in this court, but the appellates (sic) should pay the costs of the two lower courts to the respondents on the reduced..........were exhorbitant. the trial court negatived the defendants' contention and held that it was a monthly tenancy, though the rent used to be paid annually and that reasonable notice to quit had been given. he assessed the damages at rs. 40/- per month, but the lower appellate court while maintaining his findings as regards the nature of the tenancy, the validity and the reasonableness of the notice reduced the damages to rs. 20/- per month.4. the parties belong to rajgangpur which was formerly included in the state of gangpur, a merged area. admittedly the defendants' predecessors-in-interest had been occupying the disputed houses for more than 20 years. it appears that in both the lower courts the parties proceeded on the assumption that prior to the merger (1-1-1948) the transfer of.....
Judgment:

Narasimham, J.

1. This is a defendants' appeal against the concurrent decisions of the two lower Courts decreeing the plaintiff's suit for eviction of the defendants from two houses situated at Rajagangapur and for other consequential reliefs.

2. The plaintiffs alleged that the defendants were their monthly tenants in respect of the two houses, and that the house rent was originally fixed at Rs. 5-12-0, but it had been raised to Rs. 10/- per month, and as the defendants were in arrears of house rent, they were given due notice to quit on or before 1-9-47, and that they failed to vacate the house in accordance with the notice. The plaintiffs further claimed damages at Rs. 1-8-0, per day for the unlawful occupation of the houses from the date of expiry of the notice.

3. The defendants took the plea that the notice was not validly given, that the tenancy was an annual tenancy, and that they were therefore entitled to one year's notice. They also urged that the damages claimed were exhorbitant. The trial Court negatived the defendants' contention and held that it was a monthly tenancy, though the rent used to be paid annually and that reasonable notice to quit had been given. He assessed the damages at Rs. 40/- per month, but the lower appellate Court while maintaining his findings as regards the nature of the tenancy, the validity and the reasonableness of the notice reduced the damages to Rs. 20/- per month.

4. The parties belong to Rajgangpur which was formerly included in the State of Gangpur, a merged area. Admittedly the defendants' predecessors-in-interest had been occupying the disputed houses for more than 20 years. It appears that in both the lower Courts the parties proceeded on the assumption that prior to the merger (1-1-1948) the Transfer of Property Act was not in force in Gangpur State and that consequently the provisions of Chap V of that Act would not in terms apply.

But the Courts below held that the equitable principle contained in most of the provisions of the Act should be applied inasmuch as they are based on equity, justice and good conscience. There is no doubt about the correctness of the view taken by the lower Courts about applying the equitable principles of the Transfer of Property Act, even though the Act might not have been in force in Gangpur State prior to the merger. There are several authorities to show that even in territories formerly known as 'British India' the equitable principles of the Transfer' of Property Act were applied in respect of leases which commenced prior to the coming into force of the said Act, (vide 'Debendra Nath v. Syama Prosanna'. 11 Cal WN 1124 (A), and the decisions cited therein).

5. The first question for consideration is whether both the Courts were justified in holding that the defendants were monthlv tenants. There was no direct evidence to prove the terms of the original tenancy as it took place during the time of the predecessor-in-interest either of the plaintiffs or the defendants. But the plaintiffs relied mainly on certain entries in their aecount-books which showed that in Sambat 2002 to 2004 rent used to be paid annually but calculated on a monthly rate of Rs. 5-12-0.

The correctness of the entries in the books was not challenged and therefore both the Courts-thought that notwithstanding the annual payment the calculation of rent on a monthly basis would show that the tenancy was really a monthly tenancy. In coming to this conclusion they relied mainly on Ext. 3(c) which showed that in Sambat year 1995-96, in which there were 13 months, the rent paid was in excess of what would be payable for 12 months at Rs. 5-12-0 per month.

They also relied on the equitable principles laid down in Section 106, T. P. Act regarding the tenancy being a monthly tenancy. Apart from the provisions of Section 106, T. P. Act, I think the ac-count books of the plaintiffs are sufficient to support the findings of the Courts below. The mere payment of rent annually would not make the tenancy an annual tenancy, if there are clear indications to show that the rent is calculated on a monthly basis, in 'Shaller Bhagat v. Tulsi Bhagat', AIR 1921 Pat 307 (AD and 'Chinti Kaharin v. Kripashankar', AIR 1941 Pat 488 (B), there are some observations to support this view, though the aforesaid two decisions are distinguishable, because they dealt with leases to which Section 106, T. P. Act in terms applied. But the principle enunciated therein seems to be definitely of wider import.

Mr. Rao, however relied on 'Shamsoonessa 'Bibi V. Satya Sebak', AIR 1919 Cal 529 (C) where it was held that in the case of a lease reserving a yearly rental, the mere fact that the rent was paid in monthly instalments was not sufficient to show that it was a monthly tenancy. But the facts of that case seem to be just contrary to the facts of the present case and I do not think that it will be an authority for the proposition that where the rent is paid annually, but calculated on a monthly basis, the tenancy must be held to be annual tenancy especially when the property is a building used for residential purposes.

The calculation of rent on a monthly basis is I think fairly decisive of the question irrespective of the period at which the payment is made. I would also agree with the Courts below that the equitable principles of Section 106. Transfer of Property Act should be applied. Hence there is no reason to disturb the findings of both the Courts about the tenancy being a monthly tenancy.

6. The next question for consideration is whether the defendants were given reasonable notice to quit. It is admitted that they were served with notice on 31-7-47 directing them to give up possession of the disputed houses on or before 1-9-47, more than thirty days later. Mr. Rao urged that if the equitable principles of Section 106, T. P. Act were to be applied for purposes of holding that it was a monthly tenancy, the other provisions of that section should also apply with equal force and that he was entitled to 15 days' notice expiring with the end of the month of the tenancy.

Here the parties are Marwaris governed by Samvat year and consequently the notice should have expired with the end of the Samvat month. I am, however, unable to accept this argument. Though the equitable principles of many of the provisions of the T. P. Act may properly be applied in respect of leases which took place prior to the commencement of that Act, it does not mean that every provision of that Act should be applied to the very letter.

The provision in Section 106 requiring that the notice should expire with the end of the month of the tenancy need not be literally applied. On the other hand Mr. Rao himself cited several authorities to show that in respect of leases which took place prior to the commencement of the Transfer of Property Act, the Courts have held that reasonable notice would suffice; vide 'Haridas Tanti v. Upendra Narain', 16 CLJ 74 (D); and 'Hemangini v. Gobinda Chowdhury', 6 Cal WN 69 (E) and 'Kishori Mohun Roy v. Nand Kumar', 24 Cal 720 (F).

7. The question as to what would be reasonable notice would depend upon the facts of each case, and it is obvious that no general rule can be laid down. Doubtless in the aforesaid three decisions cited by Mr. Rao, it was held that six months' notice expiring at the end of the year of the tenancy was reasonable notice; but in all those cases it was held that the tenancy was an annual one, whereas in the present case I have upheld the concurrent findings of the two Courts that it is a monthly one.

Hence the aforesaid decisions cannot be taken as authority for the view that in the present case also six months' notice would be reasonable notice. I think one month's notice should be considered quite reasonable, bearing in mind the general principles laid down in Section 106, T. P. Act.

8. I should further note that In the trial Court the defendants denied the title of the plaintiff as their landlord; this was decided against them and they rightly did not press this point either in the lower appellate Court or before this Court. Mr. Sen, therefore, urged that a tenant who denied the title of the landlord was not entitled to any notice at all and that the question of reasonableness of the notice should be viewed against the background of the conduct of the defendants in challenging the title of the landlord.

Mr. Sen, however, does not appear to be quite correct on this legal question, Inasmuch as the equitable principles laid down In Section 111(g)(2). T. P. Act are to the effect that even if a tenant sets up a hostile title and thereby forfeits his tenancy, ft cannot be determined without giving notice in writing. Henec though the tenant may be entitled to notice, the period of one month given in the notice appears to be quite reasonable, considering the conduct of the tenant and the fact that the property is a residential house, and also in view of the finding that the defendants were in arrears of rent for some period. I am, therefore, not inclined to disturb this finding of the Courts below as regards the sufficiency and reasonableness of the notice.

9. Mr. Rao then urged that the damages fixed at Rs. 20/- per month by the lower appellate Court were arbitrary and too high. There is no data on the basis of which the lower appellate Court estimated the damages at Rs, 20/-per month. The plaintiff's case was that the rent of the two houses had been enhanced to Rs, 10/-, per month and all that they could reasonably claim is that if the defendants had vacated the houses on the date of the expiry of the notice, they could have realised the rent at that rate. I would, therefore, while maintaining the order of the lower appellate Court in this respect, reduce the damages to Rs. 10/- per month from the date of the expiry of the notice (1-9-47) till the date of the vacation of the two houses by the defendants.

In view of the partial success in this Court on the question of damages, both parties should bear their own costs in this Court, but the appellates (sic) should pay the costs of the two lower Courts to the respondents on the reduced scale.

Leave to appeal refused.


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