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Copal Vs. Baso Mal Jagat NaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 43 of 1981
Judge
Reported in23(1983)DLT221; 1983RLR226
ActsTransfer of Property Act, 1882 - Sections 186
AppellantCopal
RespondentBaso Mal Jagat NaraIn and ors.
Advocates: P.N. Bhardwaj and; Shyam Kishore, Advs
Cases Referred and Bhagwandas Agarwala v. Bhatgwandas Kanu and
Excerpt:
tenancy - notice - section 106 of transfer of property act, 1882 - appeal against order declaring termination of tenancy - technical rule embodied in section 106 not applicable on properties to which transfer of property act does not apply - held, notice dated 14.03.1970 served on 17.03.1970 requiring tenant to vacate by 30.04.1970 valid notice determining tenancy of deceased tenant. - - 182, it has been held by the division bench that the principles of transfer of property act, which are baled upon justice, equity and good conscience would apply to disput's relating to even those properties which arc situated in areas to which the transfer of property act has not been made applicable......1953 executed by the deceased radhey shyam gupta. after the expiry of fixed period of tenancy the deceased tenant continued to reside by virtue of the protection against eviction available to him under delhi and ajmer rent control act, 1952. the plaintiff-respondent no. i on march 14, 1970 served a notice terminating the tenancy of the deceased tenant radhey shyam gupta requiring him to vacate the premises by 30th april, 1970 which notice was served on march 17, 1970. radhey shyam gupta died as statutory tenant on january 20, 1971. on november 30, 1971 the plaintiff-respondent no. i filed a suit for possession and recovery of rs. 616.00 on account of damages for use and occupation against the defendants heirs of the deceased tenant. the defendants pleaded that radhey shyam gupta was a.....
Judgment:

Sultan Singh, J.

(1) This second appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree of the Additional District Judge dated October 17, 1980 confirming the judgment and decree of the commercial Sub Judge, Delhi dated September Ii, 1978, holding that the tenancy of Radhey Shyam Gupta was validly terminated during his life time. Briefly the facts arc that Radhey Shyam Gupta predecessor of the appellant and respondents Nos. 2 and 6 was inducted by respondent No. I as a tenant at Rs. 66.00 per month in a portion of property No. 648, Gali Sethan, Katra Neel, Delhi for period of eleven months with effect from lit November, 1953 in terms of the rent note dated October 29, 1953 executed by the deceased Radhey Shyam Gupta. After the expiry of fixed period of tenancy the deceased tenant continued to reside by virtue of the protection against eviction available to him under Delhi and Ajmer Rent Control Act, 1952. The plaintiff-respondent No. I on March 14, 1970 served a notice terminating the tenancy of the deceased tenant Radhey Shyam Gupta requiring him to vacate the premises by 30th April, 1970 which notice was served on March 17, 1970. Radhey Shyam Gupta died as statutory tenant on January 20, 1971. On November 30, 1971 the plaintiff-respondent No. I filed a suit for possession and recovery of Rs. 616.00 on account of damages for use and occupation against the defendants heirs of the deceased tenant. The defendants pleaded that Radhey Shyam Gupta was a contractual tenant and thereforee they inherited the tenancy rights. During the pendency of the suit the definitition of the word 'tenant' under the Delhi Rent Control Act, 1958 (for ihort 'the Act') was amended and thereforee after determination of tenancy the tenant rights were made heritable by certain heirs of the tenant as detailed in Section 2(1) which reads as under :-

''tenant' means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract would be, payable, and includes;- (i) a sub-tenant; (ii) any person continuing in possession after the termination of his tenancy; and (iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succcssion and conditions specified, respectively, in Explanationn I and Ii to this clause, such of the aforesaid perions's- (b) son or daughter, or where there are both son and daughter, both of them. (C) parents, (d) daughter-in-law, being the widow of his pre-deccascd son as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include- (a) any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be re-opened under the proviso to Section 3 of the Delhi Rent Control (Amendment) Act, 1976; (b) any person to whom a license, as defined by Section 52 of the Indian Easements Act, 1882, has been granted.' Explanationn-1:-The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows:- (a) firstly, his surviving spouse; (b) secondly, his son or daughter, or both, if there is no surviving spouse, live with the deceased person as a member of his family up to the date of his death; (e) thirdly, his parents, if there is no surviving spouse, son or daughter of the deceased person, or if such surviving spouse, ion or daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death; and (d) fourthly, his daughter-in-law, being the widow of his pre-deceased son, if there is no surviving spouse, son, daughter or parents of the deceased person or if such surviving spouse, son, daughter or parents, or any of them, did not ordinarily live in the premiles as a member of the family of the deceased person up to the date of his death. Explanationn-11:-If the person who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after termination of the tenancy shall become extinguished. Explanationn-111:-for the removal of doubts, it is hereby declared that- (a) where, by reason of Explanationn II? the right of any successor to continue in possession after the termination of the tenancy becomes extiguished, such extinguishment shall not affect the right of any other successor of the same category to continue in possession after the termination of the tenancy, but if there is no other successor of the same category, the right to continue in possession after the termination of the tenancy shall not, on such extinguishment, pasi on to any other successor, specified in any lower category, as the case may be; (b) the right of every successor, referred to in Explanationn I, to continue in possession after the termination of the tenancy, shall be personal to him and ahall not, on the death of such successor, devolve on any of hia heirs.'

(2) The trial court held that the notice of termination dated March 14, 1970 wai valid and duly servcd. It was further held that Smt. Krishna Devi widow of the deceased tenant was entitled to remain in possession of the premises daring her life time as a tenant of the plaintiff at Rs. 66.00 per month in view of amended definition of the word 'tenant'. An appeal filed by some of the defendants was dismissed confirming the judgment and decree of the trial court by the Additional District Judge on October 17, 1980. It was held by the Additional District Judge that a valid notice terminating contractual tenancy was served upon the deceased tenant during his life time. In this second appeal the appellant has challenged the validity and service of the notice dated March 14, 197U. This appeal was admitted and the following three substantial questions of law as contained in the memorandum of appeal were formulated; (1) whether the notice dated March 14, 1970 by which the tenancy of Radhey Shyam Gupta was allegedly terminated is illegal (2) whether in the present circumstances of the case the provision of Section 110 of the Transfer of Property Act, shall apply or not (3) Whether the documents merely exhibited but not proved according to law could be read in evidence and whether judgment could be based on the reliance of such documents

(3) The learned counsel for respondent No. I has raised a preliminary objection that questions arc not substantial questions of law and thereforee the second appeal be dismissed. His argument is that both the courts have concurrently held that the eviction notice dated March 14, 1970 was valid and duly served. He further submits that before the first appellate court only question was about the validity and service of the notice and no argument were advanced by the appellant on question No. 3 as above. He submits that the third question formulated above does not arise out of the judgment of the first appellate court and the eviction notice dated March 14, 1970 was duly proved and exhibited.

(4) The notice dated March 14, 1970 wag sent by registered post and the acknowledgement receipt was duly signed by the daughter of the deceased tenant, Smt. Kamla Gupta who is also defendant in this case. Smt. Kamla Gupta has not been produced as a witness. Even her signatures have not been challenged during cross-examination of the plaintiff. It must, thereforee, be held that the notice dated March 14, 1970 addressed to the deceased tenant was duly served upon him through his daughter Smt. Kamla Gupta, defendant No. 6. As regards validity of notice the learned counsel for the appellant submits that it does not terminate the tenancy within the meaning of Section 106 of the Transfer of Property Act. This notice required the tenant to vacate the premises and hand over vacant possession by 30th April, 1970. The words used in the notice signified termination of the tenancy. Words used in a notice requiring the tenant to vacate the premises tentamount to termination of his tenancy.

(5) The learned counsel for the appellant next submits that originally the tenancy was created with effect from 1st November, 1953 in terms of the rent note dated October 28, 1953 for a fixed period of eleven months. He submits that for calculating period of eleven months 1st November, 1953 would be excluded and that eleven months expired on 1st October, 1954. His argument is that after the expiry of the fixed term tenancy the month of tenancy continued from 2nd October, 1954 and thus the month of tenancy ended on the first of every English calendar month. He refers to Section 110 of the Transfer of Property Act which read* as under :-

'EXCLUSIONof day on which term commences'.-Where the time limited by a lease of immovable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. Where no day of commencement is named, the time so limited being from the making of the lease.'

Under this Section the date from which the tenancy commences is to be excluded in calculating the term of tenancy. There cannot be any dispute about it. But the learned counsel for the respondent submits the tenancy was created in 1953 while Transfer of Property Act specially provisions relating to lease of immovable property were made applicable to the Union Territory of Delhi in December 1962. His contention is that the technical provisions of Transfer of Property Act are not applicable to the tenancy created prior to December 1962. He also submits that even if Section 110 of the Transfer of Property Act is applicable, the eviction notice dated March 14, 1970 requiring the tenant to vacate by 30th April, 1970 is valid as the notice was served on March 17, 1970 and the tenant was given more than 15 days to vacate the premises. He submits that the technical rule that eviction notice under Section 106 of the Transfer of Property Act must expire with the end of the month of tenancy, will not be applicable to a tenancy created prior to the date of extension of Transfer of Property Act to the Union Territory of Delhi i.e. 1st December, 1962. The learned counsel for the appellant on the other hand submits that for filing a suit for possession or ejectment tenancy must have been determined in accordance with Section 106 of the Transfer of Property Act. The dispute is thus whether the period of notice must end with the month of tenancy in cases where tenancy was created prior to extension of the Transfer of Property Act to Delhi. In Sahib Dayal v. Joti Perahad, Iv (1968) D.L.T. 182, it has been held by the Division Bench that the principles of Transfer of Property Act, which are baled upon justice, equity and good conscience would apply to disput's relating to even those properties which arc situated in areas to which the Transfer of Property Act has not been made applicable. It has been further held that the technical provisions of the Transfer of Property Act cannot be invoked in cases relating to the property situated in areas not governed by the Transfer of Property Act. The rule embodied in Section 106 of the Transfer of Property Act that the notice of termination of the tenancy should expire with the end of the month of the tenancy is a rule of technical nature. It was held that the technical rule requiring a notice to end with the month of tenancy would not be applicable in respect of the properties to which the Transfer to Property Act was not applicable. In Batto Mal v. Rameshwar Nath, 1970 R.C.R. 532, another Division Bench of this court held that a notice of about 15 days even if not expiring by the end of the month of tenancy, would be valid with respect to the are as to which Transfer of Property Act was not applicable. In Smt. Savitri Devi Amar v. Shri A.M. Base., 1972 R.G.R. 741, this Court held that notice to quit must be of 15 days but need not expire with the month of tenancy in cases where tenancy was created prior to December 1,1962. The learned counsel for the appellant refers to Dattonpant Gopalwarao Dewakie v. Vithabrao Maruthirao Janagaval, 1976 R.G.R. 126 and Bhagwandas Agarwala v. Bhatgwandas Kanu and others, 1977 (1) R.G.R. 754 in support of his submission that the notice must expire with the end of the month of tenancy. These are cases of areas to which the provisions of the Transfer of Property Act were applicable and thereforee do not help the appellant.

(6) Thus, I am of the view that the notice dated March 14, 1970 served on March 17, 1970 requiring the tenant to vacate by April 30, 1970 was a valid notice determining the tenancy of the deceased tenant Radhey Shyam Gupta. It is not necessary to decide whether Section 110 of Transfer of Property Act is applicable to this case. Even if provision of Section 110 are applicable it must be held that the eviction notice dated March 14, 1970 was valid and duly served and the tenancy stood determined. Question No. 3 as above does not arise in this appeal as no such point was argued before the Additional District Judge. There is no infirmity in the judgment of the Courts below. There is no merit in the appeal and it is dismissed with no order as to costs.


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