1. This is a second appeal by the defts. against the judgment & decree of the Disk Judge of Jaipur, dated 22-10-1948, upholding the decree of the Munsif West, Jaipur city, dated 19-7-48, for their ejectment from the pltfs. shop & for payment of Rs. 144 as rent to the reap.
2. On 27-7-1950 the applts. advocate had raised two grounds in appeal. His first contention was that there was a subsequent agreement for enhanced rent between the parties & therefore, the previous agreement on which the pltf had based his suit was not enforcible. This objection is untenable, because both the Cts. have recorded a concurrent finding that the subsequent agreement alleged by the applts. was not proved. This is a finding of fact & a second appeal thereon does not lie.
3. The next argument pressed by the applt's. counsel was that the notice given by the resp. was invalid since it did not comply with the requirements of Section 106, Transfer of Property Act, It was argued that the notice was not for 15 days & did not terminate with the month of the tenancy. From the perusal of the notice ex. 3 dated 19-7-1946 it certainly appears that it was given for one month & the period was to begin from 1-8-1946 but the rent deed ex. p. 4 shows that there was an agreement between the parties for one month's notice & this is why Ex. 3 was given in accordance with it. Section 106, T. P. Act, runs as follows:
'In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy, & a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.
Every notice under this section must be in writing signed by or on behalf of the person giving it, & either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.'
4. It is clear from the opening words of this section that a notice of 15 days terminating with the period of tenancy is necessary only in the absence of a contract to the contrary. When there was specific contract between the. parties & the notice was given according to that contract then it cannot be said to be invalid! for the reasons given by the applt's. advocate.
5. At the close of arguments on 27-7-1950 the learned advocate for the applts. presented a fresh appln. to permit him to raise a new point, because of a recent decision of this H. C. given by my learned brother Sharma J. That appln, has also been heard now. The applts'. advocate has pointed out that the notice Ex. 3 was addressed to both the applts. but it was tendered by the postman Srinarain p. w. 4 only to the applt., Ghulam Mohammad who refused to accept it. It has been argued that since applt. 1 had refused to accept the notice & since it was not offered to the other applt. Maula there was no service upon the latter. It is conceded by him that if this notice were received by applt. 1 Ghulam Mohammad, then applt 2. who is a joint tenant would have been bound by that notice in view of the observations made by their Lordships of the P. C. in Harihar Banerji v. Ram Shahi Boy, A. I. R. (5) 1918 P. C. 102 : (46 Oil. 453) & subsequent rulings of other H. Cs. to the same effect:
1. Bodardoja v. Ajijuddin Sircar, A. I. R. (16) 1929 Cal. 651: (57 Cal. 10).
2. Mohanlal v. Governor-General in Council, A. I. R. (32) 1945 Nag. 255: (I. L. R. (1945) Nag. 629).
6. According to him since this was not a case of acceptance but of refusal by the joint tenant, applt. 2 was not bound. He relies for his argument on a recent decision of my learned brother Sharma J. in the appeal No. 384 of 2005 Gobindnarain & Chiranjilal v. Shrimati Shantibai, decided on 27-7-1950. I have gone through this judgment but I think it does not support the applt. That case can be easily distinguished from the present one. In that case although the names of both the tenants were written in the notice, yet it was addressed to only one of them & therefore, it was held that it was not binding on the other tenant. In the present case, the notice was addressed to both the tenants & not to one. It was observed by Sharma J. himself in the case cited above that
'even if the notice In question were addressed to both the tenants & served only on one, I would probably have held that the service was good on both the defts.'
7. The applts. learned advocate has given no reasons why the refusal of the notice by applt. 1 should not be taken as a valid service upon applt 2. According to Section 106, T. P. Act referred to above, a notice may be tendered or delivered either personally to the tenant himself or to one of his family members or servants at his residence or affixed to a conspicious part of the property. In the present case, both the applts. are brothers & joint tenants, & when the notice was addressed to both, its tendering to one was a service not only upon him but also upon the other.
8. The appeal is therefore dismissed with