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A.S. Gnanaprakasam Pillai Vs. F.S. Vaz - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1931Mad352; (1931)60MLJ293
AppellantA.S. Gnanaprakasam Pillai
RespondentF.S. Vaz
Cases ReferredHarihar Banerjee v. Ramsashi Roy
Excerpt:
.....to in the argument and at many more, and i can find none in which it has been held that a half-year's notice to quit on the anniversary of the day on which the tenancy commenced is bad. 8. it is obvious that, if notice to quit on the 18th is correct, notice to quit on the 19th is strictly speaking bad. but why does the learned lord justice say it is not bad ? i repeat his very words: moreover, if hypercriticisms arc to be indulged in, a notice to quit at the first moment of the anniversary ought to be just as good as a notice to quit on the last moment of the day before. : it cannot be denied that the law upon notices to quit is highly technical ;but the technicalities are too deeply rooted in our law to be now got rid of, and if any case had been found showing that a full six..........would expire at midnight of the 18th of the next may, observes as follows:but, although a half-year's notice to quit on the 18th would be correct, it does not follow that a notice to quit on the 19th, which is the anniversary of the day on which the tenancy commenced, is bad, and i am clearly of opinion that it is not. . 1 have looked at all the decisions which were referred to in the argument and at many more, and i can find none in which it has been held that a half-year's notice to quit on the anniversary of the day on which the tenancy commenced is bad. i should be very much surprised to find such a case.8. it is obvious that, if notice to quit on the 18th is correct, notice to quit on the 19th is strictly speaking bad. but why does the learned lord justice say it is not bad i.....
Judgment:

Venkatasubba Rao, J.

1. The question raised is an important one and relates to the sufficiency of a notice to quit. The plaintiff's counsel tells me that, although in the ordinary course he would have filed this suit in the City Civil Court, he has. chosen this forum anticipating that the defendant would raise the point he has now done. The terms of the lease are set forth in a writing, dated the 1st of December, 1924. It says:

The landlord lets and the tenant takes the dwelling-house from the 1st of December, 1924 to the 1st of January, 1925, and thereafter unless and until the tenancy should be determined by a notice as hereinafter provided.

2. The only other paragraph which is relevant reads thus:

The tenancy may be determined by either party giving to the other of them subsequent to the 1st January, 1925, fifteen days' notice in writing expiring with the calendar month.

3. This agreement has not been registered and the first question that arises is whether it is admissible in evidence. Section 107 of the Transfer of Property Act provides;

A lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.

All other leases of immoveablc property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.

4. The lease in question being for a year only, it is the second paragraph that applies. As both parties agree that there is a valid lease, I must assume that it was affected by an oral agreement accompanied by possession. Under the Transfer of Property Act, a registered instrument is not required to bring into existence such a lease as the one before me. A valid lease having come into existence independent of the document, can it be received in evidence or not, for the purpose of finding out the terms of the lease? To answer this question, we must advert not to the Transfer of Property Act, which deals with transactions, but to the Registration Act, which deals with documents. Section 49 of the latter Act forbids any document being received in evidence which contravenes the terms of Section 17. Under the last mentioned section, only certain leases are compulsorily registrable, namely, those from year to year, or for any term exceeding one year, or reserving a yearly rent. The agreement not being of this description, the Registration Act does not stand in the way of its being received in evidence. This view receives support from Rama Sahu v. Gowro Ratho I.L.R. (1920) M. 55 : 39 M.L.J. 639.

5. The notice to quit is dated the 15th September, 1930, and is in the: following terms:

Take notice that you are hereby called upon to vacate and deliver possession of our bungalow...on the forenoon of the 1st October, 1930.

6. For the defence, two contentions are raised in the alternative: first, that it is too long a notice; second, that it is too short a one. Let me deal with the first contention. It is put thus. The tenancy under the agreement is to commence from the 1st December, 1924. Section 110 of the Transfer of Property' Act says, that where the time limited by a lease is expressed as commencing from a particular day, in computing that time, such day shall be excluded. Read in the light of this section, the lease commences on 2nd December, 1924 and terminates on 1st January, 1925. The defendant's counsel then argues, that on the termination of the period fixed, a new tenancy commences on the 2nd January, 1925. The month of the tenancy is therefore from the 2nd January to the 1st February, 1925. This must be supposed to go on indefinitely. The period that matters, therefore, is from the 2nd of a month to the 1st of the succeeding month. The next step in the argument is, that this is, what the parties meant, by the expression 'the calendar month' in the agreement. If this be so, the notice to quit is bad, terminating the tenancy as it does, not on the expiry of the 1st October but on the forenoon of that day: in other words, the notice is too short by about 12 hours. I am not prepared to accept this contention. A 'calendar month' means, according to the Oxford Dictionary, one of the twelve months into which the year is divided according to the calendar; also the space of time from any day of any such month to the corresponding day of the next, as opposed to a lunar month of four weeks. There can be no doubt that the parties understood the expression in the former sense. In this case the original lease came to an end on the 1st January, 1925. Thereafter the parties dealt with each other on the footing that the rent was to be paid and received, for an English calendar month, that is to say, for January or February and so on.

7. Granting that the term 'calendar month' is used in the sense I have ascribed to it, the; question still arises, is the notice to quit a good or a bad notice? Mr. George Joseph, the defendant's counsel, contends that it is bad, because it terminates the tenancy on the forenoon of the 1st October, whereas it ought to have terminated it on the midnight of the 30th September; in other words, that the notice is too long by a few hours. This contention is strictly correct, but the question is, is the suit liable to be dismissed on that ground? On this point, Sidebotham v. Holland (1895) 1 Q.B. 378 (C.A.) is a very useful, case. By an agreement in writing the plaintiff agreed to let a house to the defendant as yearly tenant commencing on the 19th May, 1890. On November 17, 1893, the plaintiff gave the defendant notice calling upon him to quit on May 19 following. It was held that a notice; to quit on May 18 would have been good, but nevertheless that the notice to quit on May 19 must not be treated as bad. Lindley, L.J., with whom Lord Halsbury concurred, after stating that one year from the 19th would expire at midnight of the 18th of the next May, observes as follows:

But, although a half-year's notice to quit on the 18th would be correct, it does not follow that a notice to quit on the 19th, which is the anniversary of the day on which the tenancy commenced, is bad, and I am clearly of opinion that it is not. . 1 have looked at all the decisions which were referred to in the argument and at many more, and I can find none in which it has been held that a half-year's notice to quit on the anniversary of the day on which the tenancy commenced is bad. I should be very much surprised to find such a case.

8. It is obvious that, if notice to quit on the 18th is correct, notice to quit on the 19th is strictly speaking bad. But why does the learned Lord Justice say it is not bad I repeat his very words:

The validity of a notice to quit ought not to turn on the splitting of a straw. Moreover, if hypercriticisms arc to be indulged in, a notice to quit at the first moment of the anniversary ought to be just as good as a notice to quit on the last moment of the day before. But such subtleties ought to be and are disregarded as out of place.

9. In another place he remarks that the distinction is far too subtle for practical use. I am tempted to extract the following passage from the judgment of A. L. Smith, L.J.:

It cannot be denied that the law upon notices to quit is highly technical ; but the technicalities are too deeply rooted in our law to be now got rid of, and if any case had been found showing that a full six months' notice to quit given, as in the present case, for the anniversary of the day of the commencement of the tenancy was bad, I must have given effect to it; but, as no such case has been found, I do not desire to add one more technicality to a notice to quit unless compelled to do so.

I would point out that the plaintiff has only himself to blame for the difficulties he is in in this case. Had he added the words which are very ordinarily inserted in a notice to quit, 'or at the expiration of the year of your tenancy, which shall expire next after the end of one half-year from the service of this notice, and which are inserted to avoid such a point as that now taken, all would have been in order; but the words are not there. If the notice to quit in this case had been for May 20 or 21 or any later day I should have had no doubt but that it was a bad notice; and I own that the inclination of my opinion is that the present notice is had because it floes not expire upon the last day of some year of the tenancy; but, as Lord Halsbury and Lindlcy, L.J., are of opinion that, inasmuch as this was a full six months' notice given to quit upon the anniversary of the day upon which the tenancy commenced, it is good, (though the tenancy expired at midnight the day before, I yield to what they say, and will not differ from them, and hold that this unmeritorious technicality must prevail; and I content myself with expressing what I have said. This appeal must be allowed.

10. Another instructive case on this point is Harvey v. Copeland (1892) 30 L.R. (Ire) 412. A weekly tenancy commencing on Thursday was held to have been duly determined by notice served on Thursday, the 5th November, to quit on or before Friday, the 13th November. A strict view of the law was taken by Gibson, J. The tenant ought to have been called on to quit on Thursday, but, as he was entitled under the notice to remain until midnight on Friday, that notice was bad. But the majority of the Court did not concur in this view. Referring to Doe d. Spicer v. Lea (1809) 11 East 312 O'Brien, J., thus remarks:

But if ever there was a case in which, on account of the nature of ft and the sense, the rule ought to be confined to the particular facts, it is Doe d. Spicer v. Lea (1809) 11 East 312. In that case, however, the designation was of a gale day. Here it is of a time when alone the right of the landlord could be enforced. He could not turn the tenant out of bed at 12 o'clock at night. Then, is he not entitled to say, this is a notice to you to quit one minute after 12 o'clock on Thursday? If the notice had been to quit at the end of the week, I apprehend that would be good.

11. Then in Harihar Banerjee v. Ramsashi Roy it has been held by the Privy Council that a notice to quit should be construed ut res magis valeat, quani pereat. Among the observations approved in that case is the following of Patteson, J.:

It is not required that a notice should be worded with the accuracy of a plea. It is not drawn with strict precision but I think it is sufficiently clear.

12. We must give the notice a rational interpretation. Following these decisions I am satisfied that the notice to quit in this case is a good notice.

13. I have so far dealt with the question on the footing that the document is admissible in evidence. But, supposing I am wrong in that view, does a different result follow Under Section 116 of the Transfer of Property Act dealing with holding over tenancies, the lease, after the expiry of the original term, must be taken to have been renewed from month to month. Such a lease is terminable, under section; 106, by 15 days' notice: expiring with the end of a month of the tenancy. The question is, what is the month of the tenancy in the present case? It is admitted that the rent receipts which the plaintiff passed and the defendant accepted were uniformly for English calendar months, such as January, February. If that is the month of the tenancy, the notice to quit, on the reasoning I have adopted, is good. The result is, whether agreement is received in evidence or not, the notice is a valid notice and the tenancy has been properly terminated.

14. The only question that remains is as regards costs. Is this a case where I should not allow the plaintiff costs under the Section 16 of the City Civil Courts Act? An important question has been raised and very fully argued. As a matter of fact, knowing that this defence was going to be raised, the plaintiff filed the suit in this Court; in the circumstances I am not prepared to deprive him of his costs.

15. The mesne profits up to date amount to Rs. 274-2-0 and future mesne profits are allowed at the rate of Rs. 175 per month.

16. I pass a decree in favour of the plaintiff for possession with Rs. 274-2-0 for mesne profits up to date and future mesne profits at Rs. 175 per month and costs of suit. Time for delivery of possession till 5th December, 1930.


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