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Thacharakavil Manavikraman Tirumalpad Raja Avergal Vs. Noor Mahomed Sait - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1922Mad349; 66Ind.Cas.48; (1921)41MLJ265
AppellantThacharakavil Manavikraman Tirumalpad Raja Avergal
RespondentNoor Mahomed Sait
Cases ReferredTkavasi Animal v. Arumuga
Excerpt:
- .....the ground that the notice given by plaintiff was not an adequate notice under section 106 of-the transfer of property act. the learned subordinate judge has, howover, omitted all consideration of section 111, transfer of property act, and it appears to us that the notice ex. b was a sufficient compliance with that section. vide sivarama iyer v. alagappa chetty (1915) 2 l.w. 946 . by that notice he unequivocally expressed the intention to determine the lease on the ground of forfeiture. on this ground he is entitled to a decree for possession. it is further argued that plaintiff need pay no compensation and that 1st defendant is not entitled to remove his buildings after the expiry of the tenancy. the terms of the tenancy comprised in exs. a and i expressly preclude all compensation,.....
Judgment:

1. The Subordinate Judge has dismissed plaintiff's suit to recover possession oif lands leased to 1st defendant on the ground that the notice given by plaintiff was not an adequate notice under Section 106 of-the Transfer of Property Act. The learned Subordinate Judge has, howover, omitted all consideration of Section 111, Transfer of Property Act, and it appears to us that the notice Ex. B was a sufficient compliance with that section. Vide Sivarama Iyer v. Alagappa Chetty (1915) 2 L.W. 946 . By that notice he unequivocally expressed the intention to determine the lease on the ground of forfeiture. On this ground he is entitled to a decree for possession. It is further argued that plaintiff need pay no compensation and that 1st defendant is not entitled to remove his buildings after the expiry of the tenancy. The terms of the tenancy comprised in Exs. A and I expressly preclude all compensation, for 1st defendant agreed that none should be claimed. The Subordinate Judge has found that 1st defendant would be entitled to remove his buildings within a reasonable time and we are inclined to agree with him in the special circumstances of this case. There has been some difference of opinion in this Court as to whether Section 108(h) of the Transfer of Property Act is exhaustive or merely enabling. In Angammal v. Aslami Sahib I.L.R. 38 Mad. 710 two Judges were of one opinion and two of another, but in a more recent case (Full Bench) reported in Tkavasi Animal v. Arumuga JVattar 7 L.W. 178 four Judges were of opinion that in that case the tenants should be allowed a reasonable time (6 months) within which to remove the superstructure but the question was not fully discussed. The facts in that case were not entirely similar, but we are prepared to apply the decision here on equitable grounds, more especially as it is in accordance with the judgment of the lower Appellate Court. We would otherwise have referred this to a Full Bench for an authoritative interpretation of Section 108(h) were it not also that the respondent is not represented in this Court.

2. The result will be that the appeal will be allowed in part, and plaintiff will have a decree for possession of the pLalnt property and mesne profits and costs as decreed by the Munsif but 1st defendant will be allowed 3 months within which to remove his buildings.

3. Respondent will pay plaintiff's costs of this Second Appeal.


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