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Durga Parshad Vs. Smt. Bhagwan Devi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 64-D of 1966
Judge
Reported inAIR1967P& H404
ActsTransfer of Property Act, 1882 - Sections 106 and 110
AppellantDurga Parshad
RespondentSmt. Bhagwan Devi
Appellant Advocate A.R. Whig, Sr. Adv. and; S.P. Mahajan, Adv.
Respondent Advocate D.D. Chawla, Adv.
DispositionAppeal dismissed
Cases ReferredMangilal v. Sugan Chand.
Excerpt:
.....is stated to be 20-1-1960 to 19-2-1960, it clearly appears from the receipt dated 6-6-1964 (exhibit p. . does the notice expire with the month of tenancy'? consequently, it must be held that in the case of a monthly tenancy commencing from the 20th of a month a notice to quit expiring on the 19th would be a good notice to quit......durga pershad appellant was a tenant under shrimati bhagwan devi landlady. on 11th march, 1960, a rent-note (exhibit p. 7) was executed by durga pershad tenant whereunder a plot of land was taken by him on lease for a period of eleven months from 20th jan. 1960. the rent-note inter alia recited that in case the landlady wanted possession of the plot she should give a written notice in accordance with law. after the period covered by the rent-note had expired the tenant continued in occupation of the plot of land. some rent receipts were placed on the record showing that the parties always treated the month of tenancy as 20th to 19th of each succeeding month. exhibit p. 16 is a receipt dated 6-6-1964 evidencing the payment of rs. 40/- as rent from 20th may, 1904, to the 19th june, 1964......
Judgment:

S.K. Kapur, J.

1. Durga Pershad appellant was a tenant under Shrimati Bhagwan Devi landlady. On 11th March, 1960, a rent-note (Exhibit P. 7) was executed by Durga Pershad tenant whereunder a plot of land was taken by him on lease for a period of eleven months from 20th Jan. 1960. The rent-note inter alia recited that in case the landlady wanted possession of the plot she should give a written notice in accordance with law. After the period covered by the rent-note had expired the tenant continued in occupation of the plot of land. Some rent receipts were placed on the record showing that the parties always treated the month of tenancy as 20th to 19th of each succeeding month. Exhibit P. 16 is a receipt dated 6-6-1964 evidencing the payment of Rs. 40/- as rent from 20th May, 1904, to the 19th June, 1964. The landlady sent a notice dated 24th July. 1964 to the tenant which was served on him on 30th July 1964. In the said notice it was inter alia staled 'Your tenancy commences on the 201h of every English calendar month and terminates on the 19th of every subsequent month.' Paragraph 5, which has been the subject-matter of controversy, reads.

'Your tenancy is, therefore, hereby terminated and you are hereby called upon to vacate the premises and give vacant possession of the plot to my client on or before 19-8-1964.

2. The only question canvassed before me is regarding the validity of the said notice dated 24th July, 1964. Both the trial Court and the lower appellate Court decided that the notice was valid. Mr. A.R. Whig, the learned counsel for the appellant, has raised two contentions :-

(1) Under the rent-note, Exhibit P. 7. the tenancy was to commence from 20th January, 1960 and therefore in computing the period of eleven months the 20th day of January ought to have been excluded because 'of Section 110 of the Transfer of Properly Act. If that is excluded then after the expiry of 11 months covered by the rent-note the month of tenancy would be from 21st to 20th and consequently the notice requiring the tenant to vacate on the 19th would be short by at least a day.

(2) Even if the period of tenancy is taken as 20th to 19th of every month, the notice is still short by a day inasmuch as the tenancy would continue till the midnight of the 19th day of every month and consequently the tenant should have been called upon to deliver possession on 20th August, 1964. that is. after the midnight of the 19th August, 1964.

3. So far as the first contention is concerned, it need not detain me because apart from the fact that even in the rent receipt dated 6-2-1960 (Exhibit P. 9) the month of tenancy is stated to be 20-1-1960 to 19-2-1960, it clearly appears from the receipt dated 6-6-1964 (Exhibit P. 16) that after the expiry of the period of 11 months the month of tenancy was taken by the parties as 20th to 19th of the succeeding month. If that is treated by the parties as the month of tenancy, no question of exclusion of any day under Section 110 can arise. That provision could apply only in determining the period of tenancy under the rent-note and does not apply to monthly tenancies.

4. Then remains the second question as to whether the notice terminating the tenancy is valid. Under Section 106 of the Transfer of Properly Act a lease from month to month is terminable by fifteen days' notice expiring with the end of a month of the tenancy Nineteenth day of the month being the end of a month of the tenancy, I think the notice is valid because it, in effect, terminates the tenancy with the end of the month. The learned counsel for the appellant relies on Benoy Krishna Das v. Salsiccioni, AIR 1932 PC 279. On this point the decision seems to go against the appellant rather than support him. In this case notice was given by the tenant on 1st February, 1928, that they would vacate on 1st March, 1928. The lease was originally for a period of four years from 1st June. 1921. The Privy Council decided that the four years' period ended on the midnight of 1st June, 1925. and. therefore, the notice expressing intention to vacate on 1st March, 1928. was a notice expiring with the end of a month of tenancy, because the month of tenancy expired on 1-3-1928. Again in Utility Articles ., AIR 1943 Bom 306. the tenant was served with a notice terminating the tenancy and asking him to deliver vacant possession on the expiry of the month of February 1942. The High Court came to the conclusion that the tenancy in the case was a monthly tenancy which commenced from the 1st of each calendar month and, therefore, the notice was valid. Apart from the authorities, it appears that the object of Section 106. Transfer of Property Act, is to put an end to the tenancy before a fresh tenancy accretes to the existing one. Immediately on the expiry of the midnight of 19th August the tenancy for the next month would start and Section 106 requires that it must be put an end to simultaneously with the expiry of the month of the tenancy so that a fresh period of tenancy does not commence. May be that a characteristic of a periodical tenancy is that as each period commences, it is not a new tenancy but is really an accretion to the old tenancy. In other words, in case of monthly tenancies, as soon as the second month expires, there is an accretion to the existing tenancy and it becomes a tenancy for three months, but that does not make any difference in testing the validity of the notice, because the question is.. .. 'Does the notice expire with the month of tenancy'? Consequently, it must be held that in the case of a monthly tenancy commencing from the 20th of a month a notice to quit expiring on the 19th would be a good notice to quit. Reliance has also been placed on behalf of the appellant on Mangilal v. Sugan Chand. AIR 1965 SC 101. That decision is, however, of no avail to the appellant. There the notice was held to be invalid because it was not a notice of 15 clear days.

5. In these circumstances there is no merit in this appeal and the same is dismissed with no order as to costs.


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