E.K. Moidu, J.
1. The 2nd defendant in O. S. 373 of 1965 of the Kottarakara Munsiff's Court challenges in this second appeal the decree and judgment of the courts below on the question as to want of notice to quit as a condition precedent for eviction of the suit property from the possession of the appellant.
2. The suit was instituted by the respondent-plaintiff for eviction with arrears and future rent on the basis of Ex. P1 dated 15-6-1960 executed by defendants 1 and 2 in respect of the land over which the appellant and the 1st defendant constructed two mobile shops. The 1st defendant died and the appellant is the sole legal representative. The rate of rent agreed to be paid under Ex. P1 was Rs. 10/- a month. On the expiry of the lease, the appellant continued to be in possession and while so the respondent instituted the suit in 1965 for eviction against the appellant and the 1st defendant
3. The courts below held that no notice to quit was necessary following 3 decisions (1) Abdul Hameed Rawther v. Balakrishna Pillai, 1966 Ker LT 865; (2) Subrahmonia Iyer v. Ammu, 1963 Ker LT 1009= (AIR 1964 Ker 218) & (3) Puran Chand v. Moti Lal, AIR 1964 SC 461. Of these decisions, decision No. 1 has been overruled, decision No. 2 distinguished and decision No. 3 explained in a Bench decision of this court in Abdul Hameed Rawther v. Balakrishna Pillai, 1968 Ker LT 865 = (AIR 1970 Ker 40) holding that a notice to quit was necessary.
4. Ex. P1 was for a period of one year. The said period was over on 15-6-1961. Thereafter, the appellant has been in possession. While they continued to be in possession, the respondent instituted another suit for recovery of rent and obtained a decree against the appellantand the 2nd defendant As the appellant is in possession even after the expiry of the term in Ex. P1, he can continue to do so only under the terms and conditions of the prior lease and in such a case a tenancy as required by Section 116 of the Transfer of Property Act is deemed to have been created. In that case a notice under Section 106 of the T. P. Act is necessary in determining the lease. It is admitted that the provisions of the T. P. Act would apply to the instant case. In 1968 Ker LT 865 = (AIR 1970 Ker 40) it is held that in the absence of a contract to the contrary Section 116 would apply to a lessee continuing in possession of the property after the expiry of the period of the lease and in such a case a notice satisfying the requirements of Section 106 is necessary to determine the lease. That decision on all fours fits in with the facts of the present case.
5. However, the learned counsel of the respondent contended on the anology of the decision in 1963 Ker LT 1009 = (AIR 1964 Ker 218) that even after the expiry of the lease the tenancy could be determined only by a demand by the landlord. So, so long as there is no case that such a demand was made, according to the learned counsel, the tenant shall be deemed to be in possession under the terms of the tenancy created and as the tenancy has not been determined, it was not a case of really holding over, but was in possession by virtue of the tenancy at will created by the document. As I have already pointed out this decision has been distinguished in the ruling cited in 1968 Ker LT 865 = (AIR 1970 Ker 40). The decision in 1963 Ker LT 1009 = (AIR 1964 Ker 218) was based upon the particular terms of the document involved in that decision. There was a contract to the contrary in the document which came for consideration in that case to the effect that the tenant shall surrender the property on demand. So in the absence of such a demand by the landlord the tenant would continue in possession on the terms and conditions of the original lease culminating to a tenancy at will. No notice to quit would be necessary to such a tenant. In the case of a tenant holding over as in this case a notice to quit is necessary. So 1963 Ker LT 1009 = (AIR 1964 Ker 218) was rightly distinguished. In a case where there is clear proof of holding over after the expiry of the original term contained in the lease, the provisions of Section 106 of the T. P. Act would operate and a notice to quit is absolutely necessary. In view of this finding, I hold that as a condition precedent for eviction in this case, the respondent should have sent a notice terminating the leasein accordance with law. There was no evidence that a valid notice had been issued in this case. Therefore, the suit for eviction without notice is not maintainable.
6. In the result, the decree and judgment of the courts below are both set aside and the suit for eviction is dismissed. The respondent would be entitled to get a decree for the arrears of rent claimed in the plaint with proportionate costs. Since 1968 Ker LT 865 = (AIR 1970 Ker 40) came to be decided after the judgment of the lower appellate court, I do not pass any order as to costs in this appeal.