I.N. Modi, J.
1. This is a defendant's second appeal in a suit for ejectment which has been decreed by both courts below.
2. The material facts arc short and simple. The plaintiffs purchased the suit shop along with two others by a sale-deed dated the 17th July, 1956, Ex. 3, from Mazhar Ali and Khurshed Alam who were the previous owners thereof. The defendant is a tenant in the suit shop. It is common ground between the parties that the rent payable by him was Rs. 4/- per mensem. The plaintiffs' case was that they required the suit shop (in addition to the two other shops which they had purchased from Muzar Ali and Khurshed AH) for purposes of their own bona fide residence and so they gave a notice (Ex. A-1) to the defendant on the 24th January, 1957, asking him to vacate the shop by the 16th February, 1957.
The plaintiffs thought that the tenancy between the defendant and the plaintiffs commenced on the 17th July, 1956, and consequently they gave the notice to the defendant to vacate the shop by the 16th February, 1957. Thereafter the plaintiffs gave a second notice (Ex. 2) on the 5th March, 1957, presumably because it had struck them that the earlier notice was not good enough in law and in this second notice although they repeated that the defendant should quit the premises on the 16th April, 1957, on the footing that the tenancy began on the 17th July, 1956, they 'further took care to mention that if according to the defendant the tenancy commenced from the 1st of the English month, then the defendant should quit the premises by the 31st March, 1957.
It was also mentioned in the notice that if the defendant thought that his tenancy commenced on the 1st of the dark half of the Hindi month, then he should quit the premises on the 31st March, 1957, and in case he thought that the tenancy commenced on the 1st of the bright half of the Hindi month, then he should get out on the 14th April, 1957.
The choice was thus given to the defendant to vacate the premises on any of these dates on which he thought his tenancy would terminate, and it was also pointed out in the notice that in any case the time allowed to him for quitting the premises wasmore than 15 days from the date of notice. As the: defendant did not vacate the premises, the plaintiffs filed the present suit on the 29th May, 1957, on the allegation that they required the shop in suit for their bona fide residential purposes.
3. The defendant resisted the suit. He denied that the plaintiffs had any real necessity to occupy the shop of which he was in possession. He also contended that the notice which he had received from the plaintiffs was bad in law as being uncertain. It was finally contended that the first notice having been given to the defendant on the 24th January, 1957, the second notice could not form the basis of the suit as the first notice had not been waived. The courts below decided all these contentions in favour of the plaintiffs and decreed the suit. The defendant has now come upto this Court in second appeal.
4. On behalf of the defendant, the same contentions have been reiterated before this Court as were canvassed before the courts below. I shall take up the question of personal necessity, to start with, and all that I need say in this connection is that this is substantially a question of fact and cannot be re-agitated in this second appeal. The courts below have given reasons why they came to the conclusion to which they did, and I am unable to hold that the finding of the courts below on this point discloses any error of law. Consequently, I hold that learned counsel is not entitled to re-open this question at this stage of the'litigation and the matter must rest concluded where the courts below have found it.
5. The next and the most important point which has been strenuously argued on behalf of the defendant before me is that the notice in this case on which the suit was founded was bad in law. Learned counsel bases his contention on the language of Section 106 of the Transfer of Property Act and argues that the notice in order to be valid should not only have been of the duration of 15 days or more but should have expired with the end of the month of the tenancy.
His further contention in this connection is that it was an error on the part of the plaintiffs to suppose that the month of the tenancy was altered simply because the plaintiffs happened to purchase the disputed shop from its previous owners on a particular date and that the true date of the commencement of the tenancy in spite of the purchase continued to be the date which was in force between the defendant and the predecessors-in-title of the plaintiffs. This contention is undoubtedly correct and if any authority is needed in support thereof, I would refer to Babu Ram v. Narayan Das ILR (1959) 9 Raj 97.
The correct legal position, therefore, must be taken to be that the tenancy commenced in this case on the 1st of every English month. That however, does not conclude the matter because the further question that arises is whether the requirements of Sec. 106 of the Transfer of Property Act were properly satisfied when in addition to the date which the plaintiffs had chosen as the date of the commencement of the tenancy, though wrongly, they had alternatively offered three other dates to the defendant and had clearly told him that should the latter think that his tenancy ended on any one-of those dates, then he should vacate the premiseson such date as he thought on which his tenancy terminated.
I have given this matter my very careful and anxious consideration and have arrived at the conclusion that the notice which was so given by the plaintiffs in alternative terms cannot be said to fall foul of the requirements of Section 106. Although, we have no authority of our own Court on this point, the point is covered by decisions of other High Courts and to some of these I may now refer.
6. In Ganga Prasad v. Prem Kumar Kohli,AIR 1949 All 173, which is a decision of the Allahabad High Court, the plaintiff had given a notice to the defendant tenant to vacate the premises on 18th May, 1944, or on such date as his then current month of tenancy should end. It was held that although the tenancy commenced from the 1st of every English month the notice was still proper.
The principle was laid down that the object of a notice under Section 106 was to allow a tenantsufficient time to vacate the premises and that the notice should be liberally construed and the point to be considered was whether the person on whom the notice was served could understand what was really meant by the notice and it was then observed that the defendant well understood what was meant by the notice, namely, that he was called upon tovacate only on the termination of the month of the tenancy and that he was not required to vacate on18th May, 1944, if the month of his' tenancy did not terminate on that day, and, therefore, the noticewas proper.
7. The same view was aporoved in Pahlad Das v. Ganga Saran, AIR 1958 All 774, by a Division Bench of the same High Court. What was observed in this case was that it was left entirely to the defendant to decide on which date the month of his tenancy expired and he could leave the shop on any date on which, according to his own case, the month expired, and, therefore, the defendant could not be heard to say that he was prejudiced in any way by not getting sufficient notice to vacate the shop.
7-a. Earlier, in a bench decision of the Patna High Court in Sanker Ram v. Tulsi Bhagat, AIR 1921 Pat 307, the same view was upheld and it wasobserved that an alternative notice was not at all uncertain, for the date for vacating the premises had been clearly and definitely fixed in the notice by the plaintiff, but that an option was allowed to the defendants to vacate the premises on suchother date as they thought their tenancy terminatedon, in order to avoid all doubt or dispute whichmight otherwise arise later in this connection.
8. With respect, I agree with the view propounded in the cases cited above.
9. All that Section 106 of the Transfer of Property Act requires is that the notice, apart from being of a certain duration as required by law, according to the nature of the tenancy, should also be such that it expires at the end of the month ox the year of the tenancy as the case may be. Usually, there is hardly any room for doubt or dispute as to the commencement of a tenancy where it has been brought about by a writing. But thereare cases where there is no writing, and, therefore, there is room for dispute as to when the tenancy started.
Now, I see no sound reason in law or in common-sense why in cases of this type the notice should be held to be bad) simply because apart from his own stand as to when the tenancy commenced and therefore should stand terminated, the plaintiff throws out a choice to the defendant and allows him an option to choose his date of the termination of the tenancy. There is nothing in such a procedure which prejudices the defendant tenant and on the other hand what a notice like this does is to give him a full and free choice to choose his own date of the termination of his tenancy.
10. Learned counsel, however, draws a distinction between the present case and the cases to which I have made reference above in the sense that whereas in the cases cited the plaintiff-landlord mentioned a particular date and in addition to that gave the tenant liberty to quit on any other date without specifying it, on which the tenant thought his tenancy terminated, the present case is not a case of that type and what the plaintiffs did here instead was to have given three other dates and the defendant was left to choose such date thereout on which his tenancy terminated.
I am however of opinion that the distinction which learned counsel draws between the two types of cases is without any real difference. In fact it is obvious that in the cases on which I have relied, the matter was left far more at large by the plaintiff-landlord than in the present case, as here in addition to the date chosen by the plaintiffs for the commencement of the tenancy they also mentioned three other dates and left the defendant to choose out which ever he liked.
And be it noted that one of these alternative dates which was mentioned by the plaintiffs was a date on which, according to the defendant himself, the tenancy did begin. In these circumstances, I am definitely of the view that the principle of the decisions to which I have made reference above fully applies and that perhaps the present case stands on a stronger footing, and, therefore, the notice to quit cannot be held to be improper. I hold accordingly.
11. The only other point which calls for mention is whether the present suit was maintainable on the notice aforesaid while the plaintiff had given an earlier notice dated the 24th January, 1957, inasmuch as according to the submission of the learned counsel for the defendant, that earlier notice had not been waived. Learned counsel for the appellant draws my attention to Section 113 of the Transfer of Property Act. This section reads as follows:-
'A notice given under Section 111, Clause (h), it waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.'
It is submitted that the notice dated the 24th January, 1957, cannot be held to have been waived because the defendant had never given his express or implied consent to such waiver. As I look at the matter, there are two ways of meeting the objection raised by learned counsel. The first wayis to hold that when the tenant on receipt of the first notice continues to remain in possession of the disputed property, he thereby gives his implied consent to the waiver of the notice. This view finds considerable support from illustration (b) appended to Section 113. The illustration is like this :
'(b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.'
There is no doubt that the giving of a second notice to quit is a waiver to the first notice so far as the person giving notice is concerned. The only question which then arises is as to the consent express or implied of the person to whom the notice is given. There is authority for the proposition that the consent of the lessee to the waiver is implied in this case by his continuing in possession in spite of the first notice to quit.
There is, however, another way of meeting the objection of learned counsel that strikes me and that is this. The first notice, in order that a need should arise to waive it, should be a notice in accordance with law or it must be a notice which must be duly given according to Clause (h) of Section 111 of the Transfer of Property Act. Where a notice which was actually given happens to be insufficient in law inasmuch as it was not made to expire with the end of the month of the tenancy or the year as the case may be, such a notice, in my judgment, is hardly a notice which should call for any waiver for the simple reason that it was not a notice which is good in law.
The first notice was simply bad and a second notice was, therefore, necessary, and where it is given no fault can be found with the plaintiff, and when such is the case, it is only commonsense that he should give a second notice according to law, and I Can see no objection on principle or authority if a suit is eventually founded on such a notice.
I may also add that to expect a tenant consciously to waive a bad notice can hardly be expected in the vast majority of cases and if in such a case the plaintiff cannot give a second notice, the only consequence would be that any suit which he brings on the first notice would run a grave risk of being thrown out, and, in any case, it would leave the plaintiff landlord simply at the mercy of the recalcitrant tenant. I have, therefore, arrived at the conclusion that the first notice being bad in law, it was perfectly proper for the plaintiffs to have given a second notice to the defendant and founded their suit on that.
12. For the reasons mentioned above, this appeal fails and is hereby dismissed with Costs. Leaveto appeal is refused. The defendant is allowedtime to vacate the premises up to the 31st October, 1960; but, should he fail to do so, necessarysteps shall be taken in execution to evict him forthwith.