L.N. Chhangani, J.
1. This is a plaintiff's second appeal against the appellate decree of the Civil Judge, Balotra dated 25-9-1954, dismissing the plaintiffs suit for ejectment in respect of a shop situated in Balotra.
2-3. The facts, which to a great extent are not in dispute, are as follows:
The defendant Nihalsingh came to Balotra some time after 1947. He took on rent a shop belonging to the original plaintiff, Mst. Munni widow of Meg-raj, now dead and represented by Ramniwas (a legatee under a will) at Rs. 16/12/- per month. When this shop was taken on lease, is not clear from the materials on record. It, however, appears that soon after, the defendant Nihalsingh took proceedings before the Sub-divisional Officer, Balotra for the determination of the fair rent under the Marwar House Rent Control Act No. XXV of 1949 (hereinafter referred to as the Marwar Act). The Sub-divisional Officer vide his order dated 6th July, 1950 fixed fair rent of the shop as Rs. 9/- per month. A fresh rent-note was thereupon executed by the defendant Nihalsingh in favour of Mst. Munni on 6th July, 1950, in which a specific condition was incorporated, reading as follows:
jktjs dkuwu jh 'krksZa jh mYya?kujsaV daVksy jh dj.k ij Fks [kkyh djk ldksyk oj.kk ugha A
4. I have emphasized this condition, as the main controversy has centered round this fact. TheRajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No. 17 of 1950) (hereinafter referred to as the Rajasthan Act) was promulgated in the year 1950 and it repealed the Marwar Act. This Act was, however, not extended to the town of Balotra. The original plaintiff, Mt. Munni consequently thought that she was entitled to eject the defendant under the general law and served a notice dated 16th July, 1951 upon the defendant determining the lease and requiring him to vacate the shop up to 31st July, 1951.
The defendant having paid no heed, a suit was ultimately instituted in the court of the Munsif, Balotra on 3rd October, 1952. In the suit, the plaintiff prayed for a decree for ejectment and claimed arrears of rent amounting to Rs. 259/10/- at Rs. 16/12/- p. m. from 1st May, 1951 to 16th August, 1952, on an allegation that with the repeal of the Marwar Act so far as Balotra is concerned, she was entitled to Rs. 16/12/- p, m. on the basis of an agreement between the parties to pay rent originally fixed in case of the repeal of the Act.
5. The defendant resisted the plaintiffs suit. He definitely stated that the allegation of the plaintiff that Rent Control Act was no longer in force in Balotra is definitely wrong. He pleaded that in Rajasthan, the Rent Control Act is still in force. Merely because some provisions of the Act are not applicable in a particular place, cannot justify an assumption that the Act is not in force.
He, therefore, disputed the tight of the plaintiff to eject him. Further, he pleaded that the plaintiff was not entitled to claim rent at the rate of Rs. 16/12/- per month, as under an agreement embodied in the rent-note, the rent was fixed at Rs. 9/-per month and it was not open to the parties to go behind the agreement and to claim rent at the rate of Rs. 16/12/- p, m. He denied the oral agreement to pay rent at the original rate on the repeal of the Act.
Incidentally, he also mentioned that he had been sending the rent to the plaintiff by money-orders. In one case, the money-order was accepted and in the other case, the money-order was refused. It also appears that during the course of the hearing, the defendant deposited an amount of Rs. 252/- on various dates.
6. The trial court, after iraming issues and recording evidence of the parties, passed a decree for ejectment on two grounds;
(1) That, the defendant had been irregular in the payment of rent; an inference mainly drawn from the manner of the deposits made by the defendants in Court.
(2) That, the plaintiff had otherwise a right to eject the defendant under the general law on the repeal of the Marwar Act.
7. The Munsif passed no decree with regard to the arrears of rent and merely observed that the plaintiff would be at liberty to withdraw the amount deposited by the defendant in court. However, a decree for future rent at Rs. 9/- p. m. was passed with a direction that the decree could be executed only on paying the court-fees.
8-9. The defendant went in appeal which was heard by the Civil Judge, Balotra, who arrived at the following findings:
The finding of the Munsif that the defendant was a defaulter was not accepted by the Civil Judge, On the other hand, he found that the plaintiff having not based his suit on the default of the defendant, he cannot claim ejectment on that ground. The Civil Judge also overruled the contention that the defendant was merely a tenant-at-will.
10. Curiously, before the Civil Judge the defendant raised a plea that the lease was void on account of uncertainty as no period was specified. This contention, of course, was overruled.
11. However, discussing the effect of the condition in the lease already quoted in full, he purported to hold that insertion of the condition in the lease-deed amounted to the incorporation of the provisions of the Marwar Act in force at the time of the execution of the rent note regarding the protection of tenants against eviction and the ground on which the tenant could be ejected, into the rent-note as the terms and conditions of the lease itself binding upon the parties irrespective of the continuance or the repeal of the law. In his view of the agreement, the repeal of law did not affect the rights oi the parties and the tenant was not liable to be ejected except on the grounds mentioned in the Marwar Act.
12. He agreed with the findings of the Munsif with regard to the liability of the defendant for rent only at Rs. 9/- p. m. In this view of the matter, the Civil Judge accepted the appeal of the defendant and dismissed the plaintiff's suit for ejectment. The plaintiff has filed this second appeal, which is now being continued and prosecuted by her legal representative, Ramniwas.
13. I have heard Mr. Kishoresingh for the appellant and Mr. H. G. Thanvi for the respondent at a considerable length.
14. The main contention urged on behalf of the learned counsel for the appellant is that the condition in the lease was inserted only to ensure that the provisions of the law relating to control of evication would be respected and followed and that there was no intention to incorporate the provisions of the Marwar Act as specific terms and conditions of the lease and consequently after the repeal of the Marwar Act and the Rajasthan Act having not been extended to Balotra, the plaintiff acquired the right to eject the defendant in accordance with the general law embodied in the Transfer of Property Act. Mr. Thanvi has very strenuously opposed this contention of the appellant's counsel,
15. The main question in this appeal is what is the true effect of the condition in the rent-note. It will be hardly useful to consider this condition in the abstract. Indeed, it is necessary to examine it in the light of the general principles of law governing the relations of landlord and tenant.
16. Section 106 of the Transfer of Property Act provides that ordinarily a lease of immovable property for agricultural or manufacturing purposes should be deemed to be one from year to year and a lease for any other purpose should be deemed to be one from month to month. Further it provides that the latter kind of lease will be determinable on 15 days' notice expiring at the end of the month of the tenancy. The section no doubt contemplatesa contract to the contrary which may purport to create a lease different in kind from a month to month lease.
It may be a lease in perpetuity or a lease tor life-time or a lease for a certain period. It also contemplates an agreement varying the rule relating to notice and the period of notice. There is thus a statutory presumption for construing a lease of the present kind as one from month to month and the burden of proving a contract to the contrary lies very heavy upon the defendant and he must have satisfactory evidence to displace the presumption and to establish a definite contract.
17. The question which, therefore, emerges for consideration is whether this condition purports to create a lease different from a lease from month to month. Mr. Thanvi has suggested that the lease in this case is for a certain period which has been specified and limited with reference to an act of default under the Marwar Act which may entitle the landlord to eject the tenant- He contends that the period of lease need not be specified expressly in years and months and that it can be fixed with reference to the happening of a future event.
He cited an analogy of a lease for the period of war-time and cited some cases to support his contention that the period of the lease can be specified in the manner suggested by him. It is unnecessary to notice and discuss these cases, as I have no quarrel with the general proposition stated by Mr. Thanvi, although I may observe in passing that the stand taken on behalf of the tenant in the lower appellate court was that the lease was not for any certain period and was, therefore, void.
18. However, I find a number of difficulties in accepting the contention of Mr. Thanvi that the parties to the lease in this case intended to Specify period of lease by incorporating this condition.
19. The first difficulty is that the defendant himself did not set up a particular kind of lease in his written statement and did not take the plea, now advanced. On the other hand, he contended that the Rajasthan Act was in force in Balotra at the time of the commencement of the suit. Further, when he was cross-examined on behalf of the plaintiff, on the case set up by the plaintiff to the effect that the parties had agreed that the rent would be payable at Rs. 16/12/- p. m. after the repeal of the Rent Control Act he stated that the parties could never have contemplated the repeal of the law at the time of entering into an agreement of the lease. If the repeal of the law could not be contemplated for that purpose, it is difficult to see that how it could be contemplated for the purposes of inserting in the abstract the conditions of the Marwar Act as terms and conditions of the lease.
20. Secondly, I very much doubt whether the parties can be imputed an intention to specify the period by reference to an act of default in terms ofspecial legislation provided for the protection of the tenants against eviction.
21. Thirdly, a still greater difficulty arises because the condition does not say that the lease will be automatically terminable on the commission of an act of default by the tenant under the provisions of the Marwar Act. In can only be construed to give an option to the landlord to determine the lease onthe commission of an act of default and to eject the tenant and one can easily conceive that this option may not be exercised at all, and, therefore, specification of period of lease in this manner cannot be legally contemplated.
22. Finally, there is a more fundamental difficulty and it is this that there is no corresponding restriction on the right of the tenant to determine the lease at any time and it is open to him to terminate even without committing a default, and, therefore, a lease for a specified time binding on both the parlies cannot be conceived. I am, therefore, unable to accept the argument that the parties really intended to limit or specify the period by incorporating this condition.
In my opinion, the only dominant intention of the parties was to provide by way of abundant caution for strict enforcement of the law relating to the control of eviction that may be in force from time to time. The lower appellate court was mainly influenced by the fact that the law being in general binding, it was not necessary for the parties to provide for the observance of the law and, therefore, the parties must be deemed to have agreed for some thing else, and which in his opinion was that they wanted to incorporate the conditions of the Marwar Act as the conditions and terms of the lease.
I do not, however, agree with this view of the Civil Judge. In my opinion, the fact that the parties knew the law and felt bound by the law, cannot be considered decisive in interpreting the term like this, for we do come across sometimes agreements both providing for the observance of the law as also for contracting out of the provisions of law. In reaching a conclusion different from that of lower appellate court, I find further support from the following facts and circumstances. A reference to the law in the lease is in very general terms. The English rendering of the condition will be as follows:
'You, the landlord will be entitled to eject only on (the tenant's) violating the provisions of the laws of the State relating to Rent Control'.
23. The words, 'laws of the State' should obviously be understood in the general sense and cannot be construed to refer to a particular Act in force at a particular time. There was no specific mention of the Marwar Act. Indeed, I find great hesitation in holding that the parties by introducing this condition contemplated any thing else than the enforcement of the laws relating to control of eviction.
24. It is also worthy of note that a lease had been created prior to the execution of the rent note now relied upon and the rent was fixed at Rs. 18/12/-p, m. There is no suggestion that the lease was of any special kind and presumably it was an ordinary month to month lease. Then, the defendant got the rent reduced by proceeding under the provisions of the Marwar Rent Control Act and this was followed by the execution of the present rent note.
Is it then possible to expect that by means of a fresh rent note executed in pursuance of a decision under the Marwar Act, the parties agreed to alter the nature of the lease and to further stipulate that even on the repeal of law, the landlord willcontinue to remain subject to disabilities and terms not originally agreed to but brought about on a decision under the Act.
The answer must be in the negative on a mere consideration of normal human conduct. In view of what has been stated above, I have no doubt whatsoever that the lease created by the parties was an ordinary month to month lease and that the condition relied upon by Mr. Thanvi was not inserted to change the nature of lease and that it was merely intended to seek strict enforcement of the Rent Control Laws.
25. Mr. Thanvi alternatively suggested that the condition in the lease should be construed to mean that the lessee is entitled to hold so long as he pays rent or performs other obligations under the lease. In other words, the lease is for an indefinite period with an optinon to the tenant to terminate it at any time. For reasons advanced in connection with the earlier contention, namely, absence of plea and proper interpretation of the condition, I accept this contention of Mr. Thanvi.
26. Assuming that on a liberal and generous construction, the lease deed may be interpreted in this manner, yet the respondent cannot derive any benefit. The proper construction of a lease of this kind entitling the lessee to hold as long as he pays rent or performs other obligations in the lease, has been the subject-matter of many decisions and one finds varying and conflicting decisions. In some cases, such a lease has been considered as a permanent and heritable one while in some others, it has been treated as a lease for the life of the lessee.
A third category of cases treat such a lease as cieating a tenancy at-will or a month to month tenancy and in this category, we find, Manika Mu-daliar v. Chinnappa Mudaliar, ILR 36 Mad 557 and Ramlal v. Bibi Zohra, AIR 1941 Pat 228. In the Patna case, AIR 1941 Pat 228, Fazl Ali J. sitting with Harries C. J. after referring to English cases and statement of law in Halsbury's Laws of England considered the rule, as in force in England that 'a tenancy which is expressed to be at the will of one of the parties should by implication be treated at the will of either of the parties', very logical and felt no hesitation in applying it to India.
The opinion expressed in this case has my respectful concurrence on considerations of the principle of mutuality and I do not consider it necessary to notice and deal with the various cases on this point and hold that the lease cannot but be an ordinary month to month lease even on the construction suggested. The respondent cannot consequently resist ejectment on this argument.
27. The contentions of Mr. Thanvi having been found devoid of force, the conclusion is inescapable that the condition of the lease did not purport to create a lease other than a lease from month to month and the only purpose of the condition was to guarantee to the tenant the protection of the Rent Control legislation that may remain in force from time to time.
The Rent Control legislation having ceased to operate in the town of Balotra, the parties must be governed by the general law as embodied in the Transfer of Property Act. Under that law, the landlord has an unqualified right to determine thetenancy by a notice to quit. This having been done, I must hold that the plaintiff was entitled to eject the defendant.
28. In these circumstances, I am constrained to accept this appeal, set aside the decree of the lower appellate court and to restore the decree for ejectment passed by the trial court. In view of the peculiar circumstances of the case, the parties shall bear their own costs,
29. Mr. Thanvi has applied for leave to appeal.The leave is hereby granted.