1. This second appeal of defendants 1 and 2 is against the confirming Judgment of the lower appellate Court arising out of a suit brought by the plaintiff for ejectment of the defendants in respect of a house situate in the town of Puri.
2. The only point urged in the second appeal is that the notice to quit is not valid.
3. The Courts below have concurrently found that in fact it was a case of monthly tenancy according to the English calendar month.
4. Defendant I is the original tenant. Defendant 2 is his brother. Defendants 3 to 7 are the Sub-tenants of defendant 1.
5. The relevant portion of the notice is to the effect that the defendants are to quit the house by the morning of 1-10-1949. This notice was issued by the plaintiff on 26-8-1949 and was served upon the defendants on 27-8-1949. Mr. Das, appearing on behalf of the appellants, contends that the notice is not in accordance with the provisions of Section 106, Transfer of Property Act as It does not expire with the expiry of the month of tenancy, i.e. the last day of September.
His contention is that according to the notice the tenancy extends to a part of the next month, because the defendants are allowed to remain in the house in question for sometime on the 1st of October. We are clearly of the view that the contention of Mr. Das is bound to fail. There is a direct authority of the Madras High Court of Venkatasubba Rao J. in the case of 'Gnanaprakasam Pillai v. F. S. Vaz', 1931 Mad 352 (AIR V18) (A) on the subject. There the notice ran:
'You are hereby called upon to vacate and deliver possession of our bungalow... .on the forenoon of 1st October 1930'.
The month of tenancy expired on the 30-9-1930. The case before Venkatasubba Rao J. appears to be a much worse case than ours as In the present case the notice was to quit by the morning of 1-10-1949. The notice was accepted as valid. Though this is a decision of a Single Judge, this is based upon very high authorities and the reasons given are convincing and appealing. It is worthwhile to quote a passage, which has also been quoted by Venkatasubba Rao J., from the case of 'Side-botham v. Holland', (1895) 1 QB 378 (B). Lindley L. J. and Lord Halsbury in their judgment observed:
'The validity of a notice to quit ought not to turn on the splitting of a straw. Moreover If hypercriticisnis are to be indulged in, a notice to quit at the first moment of the anniversary ought to be just as good as a notice to quit on the last moment of the day before. But such subtleties ought to be and are disregarded as out of place'.
Before their Lordships the notice was to quit on tne 19th May whereas the tenancy terminated on the 38th. On the above observations their Lordships accepted the notice to be a valid notice.
6. We may also refer to some observations of their Lordships of the Privy Council in the case of 'Harihar Banerjee v. Ramshahi Roy', 1918 PC 102 (AIR V5) (C).
'It is not required that the notice should be worded with the accuracy of a plea. It is not drawn with strict precision but I think it is sufficiently clear'.
The principle therefore for construing the provisions of Section 106, T. P. Act appears to be clear that we are to put a rational construction on the notice and ought not to split a straw. In that view of the matter the present notice seems to be valid and adequate. It cannot be said, on a perusal of the notice, that the plaintiff or the defendants intended that the plaintiff allowed the defendants to remain in the house for any part of the next month of tenancy. The notice, read as a whole, makes it absolutely clear that it was to terminate on the expiry of the month of tenancy, and the defendants were allowed to vacate by the morning of the next date.
7. Under these circumstances, therefore, in our opinion the notice is a valid one and the appeal fails and is dismissed with costs.
P.V.B. Rao, J.
8. I agree.