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G.M. Ali Vs. Mrs. M. Rosary Ammal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1971)1MLJ156
AppellantG.M. Ali
RespondentMrs. M. Rosary Ammal
Cases Referred and Lakshmiammal v. Sivakamu Natesan
Excerpt:
.....this controversial question the supreme court, having regard to the facts of the case, laid down in unequivocal terms that the right of the lessee to have a notice as provided for by the proviso to clause 7 was not in any manner affected by the special provisions under the rent acts (there section 3 of the calcutta thika tenancy act). no doubt, the supreme court was prompted by equitable considerations as well in having carried forward this covenant as to period of notice even to 'holding over' tenancies. but that was not the only consideration which prompted the supreme court to finally hold that the lessee's right to have a notice as agreed to prior to the commencement of the 'holding over' tenancy was preserved as it was indeed a term of the contract of lease which has necessarily..........is contended that there is, under exhibit p-1, a specific contract to the contrary regarding the notice period which has been normally and otherwise prescribed under section 106 of the transfer of property act as 15 days expiring with the end of the month of tenancy. under clause 6, the landlady is expected to give a month's notice determining the tenancy which is in accordance with the english calendar month. therefore it is stated that there has not been a valid notice of determination of tenancy in the instant case.7. as already stated, the first poser is easy of consideration. even for tenants who hold over after the expiry of the period of the lease, they are entitled to receive a valid notice of termination of tenancy and this cannot be dispensed with. this is because the right.....
Judgment:

T. Ramaprasada Rao, J.

1. In this civil revision petition an interesting question arises, whether a notice of determination of tenancy is necessary in the case of a tenant who holds over, and, if it is necessary, whether such a notice should conformably be in terms agreed to between the landlord and the tenant prior to the commencement of such holding over by the tenant. Under a tenancy agreement Exhibit P-1, dated 24th November, 1954, the petitioner was let into possession of premises No. 100, Broadway, Madras. Inter alia the agreement provided that the tenancy shall be in accordance with the English calendar month and that the petitioner shall use the premises only for his own purposes and shall not sublet or assign the whole or any portion thereof. Clause 6 of the agreement runs as follows:

The lessee agrees to take on lease the premises for a period of one year commencing from 1st December, 1954 and is terminable on a month's notice on either side on the expiry of this lease.

After the period of the tenancy was over the petitioner was holding over as a month to month tenant. In the year 1965, the respondent filed an application under Sections 10(ii)(b) and 10(3)(a)(i) of the Madras Buildings (Lease and Rent Control) Act, 1960, for evicting the petitioner from the premises on the grounds of using the premises for a purpose other than that for which it was let out and also on the ground that it was required for her own use and occupation. On the two grounds the Courts below found that the tenant used the premises for a purpose other than that for which it was leased out without the written consent of the petitioner and that in any event the landlady required the premises for her own use and occupation and that such a requirement was bona fide. An appeal to the appellate authority was unsuccessful. The present revision has been filed against the said order.

2. The question whether the notice of determination of tenancy was in order or not, was not seriously argued in the Courts below as by then the Full Bench decision in Raval & Co. and Anr. v. K.G. Ramachandran (Minor) and Ors., was ruling the day. After filing the civil revision petition, the petitioner filed C.M.P. No. 9373 of 1967 and prayed for leave to raise the following additional ground:

The lower appellate Court ought to have dismissed the appeal inasmuch as the respondent had not admittedly terminated appellant's tenancy by a notice as required under the Transfer of Property Act.

This petition was posted along with this civil revision petition and when it came up for hearing finally before me, I allowed the same to be raised as apparently the petitioner was prompted to raise the additional ground in view of later pronouncement of the Supreme Court in Manujendra Dutt v. P.P. Roy Chowdhury : [1967]1SCR475 . C.M.P. No. 9373 of 1967 is therefore allowed.

3. Regarding the merits arising in the subject-matter of the civil revision petition, I am unable to interfere as both the Courts concurrently found that the petitioner was using the premises for a purpose other than that for which it was let, and in any event the premises was required bona fide for the personal occupation of the landlady.

4. The question however is whether the proceedings initiated by the landlady under the provisions of Madras Act (XVIII of 1960) without issuing a notice of determination of tenancy in accordance with the provisions of the Transfer of Property Act, is valid and regular and whether the Courts below had the jurisdiction to entertain the same if such a notice of determination is not proper, regular and legal in the eye of law.

5. I may at once deal with the objection of the learned Counsel for the respondent that even conceding for argument's sake that such a notice of determination of tenancy was necessary, such a notice was issued to him under Exhibit R-1, dated 8th July, 1965, received by the petitioner on 9th July, 1965, terminating the tenancy with the end of July, 1965. On the strength of Exhibit R-1 it was vehemently argued that the provisions of the Transfer of Property Act have been complied with and in particular Section 106 thereunder and therefore the contention of the petitioner that no valid notice of termination of tenancy has been issued has to fail. The answer to this is that this is a case in which the petitioner was holding over after the expiry of the period of one year specifically prescribed as the period of the lease under Exhibit P-1 and thereafter the petitioner was only holding over and as Exhibit P-1 provided expressly for the determination of the tenancy by giving a month's notice to the tenant, Exhibit R-1 does not satisfy such a requirement as only a period less than a month ending with the month of tenancy was provided thereunder. I have already referred to Clause 6 of the agreement which provides that the tenancy was terminable on a month's notice on either side on the expiry of the lease. On the strength of this clause it is stated that Exhibit R-1 does not satisfy the requirement of the Transfer of Property Act.

6. It is in such a conspectus of facts and events that the two questions which I have posed in the beginning arise in the instant case. The first poser is easy of answer. After the efflux of the lease by expiry of the period thereof, a tenant ordinarily holds over as a tenant thereto on the same terms and conditions as provided and agreed to under the original agreement of lease. The controversy whether the tenancy during the time when the tenant holds over is bound by the original terms of lease is to be answered by the second poser raised by me. But the contention of Mr. Sivaramakrishnaiah, learned Counsel for the petitioner is that even at a time when the tenant holds over, the landlord and tenant are equally bound by the terms agreed to under the original lease, including the clause as to its terminability. To expand the argument, it is contended that there is, under Exhibit P-1, a specific contract to the contrary regarding the notice period which has been normally and otherwise prescribed under Section 106 of the Transfer of Property Act as 15 days expiring with the end of the month of tenancy. Under Clause 6, the landlady is expected to give a month's notice determining the tenancy which is in accordance with the English calendar month. Therefore it is stated that there has not been a valid notice of determination of tenancy in the instant case.

7. As already stated, the first poser is easy of consideration. Even for tenants who hold over after the expiry of the period of the lease, they are entitled to receive a valid notice of termination of tenancy and this cannot be dispensed with. This is because the right of irremovability becomes inhered in them after the expiry of the period of the original lease, by reason of the impact of the Rent Control Act and the provisions therein. The tenant who holds over becomes a statutory tenant in such circumstances and he cannot be removed unless the landlord satisfies one or the other of the conditions pre-requisitely laid by statute for the tenant being removed from the demised premises. As the law stands interpreted today, even in cases where the landlord has the right or has the necessary data to remove or evict a tenant under one or the other of the prescribed statutory conditions, yet before he could initiate proceedings under the Madras Buildings (Lease and Rent Control) Act, he must have determined the tenancy in accordance with the provisions of the Transfer of Property Act. Therefore it is clear that even in cases where a tenant holds over, the landlord is bound to give a valid and due notice of determination of tenancy and obviously this should satisfy the requirements of Section 106 of the Transfer of Property Act.

8. The above conclusion is based on the pronouncements of the Supreme Court in Manujendra Dull v. P.P. Roy Chowdhury (1967) 1 An.W.R. 61 : (1967) 1 S.C.J. 503 : (1967) 1 M.L.J. 61 , and as accepted by our Court in Kalyanasundaram v. A.R. Natarajan C.R.P. No. 2542 of 1965. Therefore the first part of the poser has to be answered in the affirmative and I am of the view that a notice of determination of tenancy in accordance with the provisions of the Transfer of Property Act is necessary even in cases where the tenancy is created by holding over. But this is subject to the essential pre-requisite that there is no contract to the contrary in the sense that the contract between the landlord and tenant during the period when the tenant holds over is not governed by terms which are independent, new and de hors that which governed the parties prior to the holding over of the demised premises by the tenant.

9. Before I answer the next question that is in cases of holding over whether a notice of determination of tenancy should conformably be in terms agreed to between the landlord and tenant prior to the commencement of such holding over by the tenant, it is necessary in the instant case to consider what is, the import of a covenant in a contract of lease regarding the period of notice to be issued for determining a tenancy.

10. Under Section 106 of the Transfer of Property Act the normal period of notice of determination of tenancy is provided for in the case of lease of immovable property for agricultural or manufacturing purposes and a lease of such property for any other purpose. In the former case, such a lease is terminable by six months' notice expiring, with the end of a year of tenancy, as such leases are deemed to be from year to year. In the later case the lease is deemed to be one from month to month terminable by fifteen days' notice expiring, with the end of the month of tenancy. But in both the cases if there is a contract to the contrary or local law or usage which is repugnant to the statutory mandate as above, then such a contract or local law or usage to the contrary shall prevail. Thus it is seen that if there is an express contract between the landlord and tenant in relation to-the demise, then it shall have priority and preference and shall be enforceable in substitution to the statutory prescription regarding the period of notice to be provided in a notice of determination of tenancy. If there is a stipulation between the landlord and tenant that the tenancy would be terminable by a month's notice terminable with the month of tenancy or any other like period as to notice of determination of the lease, such a contract is a valid one. In fact, in Moosa Kutty v. Thekke : AIR1928Mad687 , Davadoss and Jackson, JJ., observed as follows:

It is only in cases where there is no-contract as to notice that the provisions of Section 106 would be applicable; but where there is a contract as to giving notice or waiving notice the parties are governed by the terms of the contract and the law enacted in Section 106, Transfer of Property Act, cannot apply.

In Arunachala v. Ghulam Mahmood : AIR1951Mad408 , Horwill and Balakrishna Ayyar, JJ., expressed the view that when there is a contract governing the question of notice the Court must read the contract in a reasonable way to ascertain what the parties intended by way of notice. Similarly, in the case of our Court, in Kelu v. A. Mamad Kutti (1910) M.W.N. 794, the learned Judges said:

Seeing that in Exhibit-A there is an express provision to surrender on demand, we think there is a contract to the contrary within the meaning of Section 106 of the Transfer of Property Act.

The Federal Court had occasion to consider the import and status of tenants under Section 116 of the Transfer of Property Act in Kai Khushroo v. Bai Jerbai . The following observation therein is apposite:

It is perfectly right that the tenancy which is created by the 'holding over' of a lessee or under lessee is a new tenancy in law even though many of the terms of the old lease might be continued in it, by implication....

11. The question is whether a provision as to period of notice is a term of the lease. The opening sentence in Section 106 of the Transfer of Property Act makes it clear that if there is a contract to the contrary, both as regards the period regarding the termination of a lease and as regards the other terms thereof, then it shall prevail. One such contract which can be validly entered into between a landlord and tenant when a property is demised, is as regards the period for determining such a lease either in the course of the period of the lease or after the lease has expired by efflux of time. In either case such a covenant is certainly a contract to the contrary as provided for in Section 106 of the Transfer of Property Act and this provision in the quandum lease would certainly be carried forward in cases where tenants 'hold over' and such a term would be enforceable as between the landlord and tenant in such cases unless there is a different contract expressly entered into or proved to have been entered into between them when a tenancy under Section 116 of the Transfer of Property Act is created. I am therefore of the view that having regard to the fact that a term as to the period of notice is an essential element of a contract of lease, such a term binds the lessor and the lessee even though the tenant acquired the status of one who 'holds over' under Section 116 of the Transfer of Property Act.

12. Mr. Srinivasan, learned Counsel for the Respondent strongly relied upon Bapayya v. Venkataratnam (1952) 1 M.L.J. 227 : I.L.R. (1953) Mad. 31, There the learned Judges were mainly considering the case of an agricultural lease. But they made an observation that the terms as to notice contained in an expired lease should not be held to be terms of the tenancy arising by holding under Section 116. The eminent Judges who constituted the Bench did not agree with ratio in Moosa Kutty v. Thekke : AIR1928Mad687 , and Kelu v. A. Mamad Kutti (1910) M.W.N. 794. The decision of the Federal Court in Kai Khushroo v. Bai Jerbai , was not brought to their notice. On the foot of the ratio in Bapayya v. Venkataratnam (1952) 1 M.L.J. 227 : I.L.R. (1953) Mad. 31, it was strenuously argued that the term as to the period of notice is not a covenant in a lease and even if it is, it would not bind ' holding over ' leases, and therefore in the instant case it was not necessary for the landlord to give a month's notice to the tenant in accordance with Clause 6 of the Original Contract of lease. In view of the conflict between the two Division Benches of our Court, I was tempted in the first instance to place the papers before my Lord the Chief Justice for a reconsideration of the aspect by a Fuller Bench. It appears to me, however, to be not necessary and I would state my reasons therefor. The eminent author Mulla, commenting on Section 116 of the Transfer of Property Act, under the caption 'Terms of holding over,' observed at page 762 of his Transfer of Property Act, 1882, Fifth Edition, as follows:

If there is no agreement fixing the terms of the new lease the implied tenancy is in English Law subject to such of the terms of the old lease as are applicable to a yearly or monthly tenancy. In Digby v. Atkinson (1815) 4 Camp. 275, Lord Ellenborough said:

Where the tenant holds over after the expiration of the term, he impliedly holds subject to all the covenants in the lease which are applicable to his new situation.

This has been explained in Hyaatt v. Griffiths (1851) 17 Q.B. 505, to mean not merely the terms which are necessarily incident to a yearly or monthly tenancy, but the terms, which maiy be incident to such a tenure. This rule has been followed in Indian cases, for the word 'renewed' shows' that there is no new contract of tenancy....

If a tenant 'holds over' the terms of the quondam lease are imported into the fresh tenancy created by law under Section 116 of the Transfer of Property Act, and it is reasonable to import, unless there is evidence to the contrary, the terms of the original lease into the new statutory lease. The period of notice in the expired lease is one of the 'erms of such a lease. This term has co be therefore necessarily carried over and should impliedly govern the contract of lease between the landlord and tenant even in cases where Section 116 applies. The matter is now settled beyond controversy by the Supreme Court in Manujendra Dutt v. P.P. Roy Chowdhury (1967) 1 S.C.J. 503 : (1967) 1 M.L.J. 61. There the facts were as follow. By a registered lease dated 4th December, 1934, the lessee entered into possession of the land on an agreed monthly rent. The lease was for a fixed term of 10 years and the tenant had the option of renewal provided he offered a certain rate of rent as provided in the deed. The lessee was entitled to erect superstructures on the demised land, but he was bound on termination or sooner determination of the lease, to restore to the lessors the land demised after removing the structures. There were other terms which are not important for our consideration. Clause 7 therein, however, provided as follows:

Provided always and it is hereby agreed and declared that if it be required that the lessee should vacate the said premises at the end of the said term of 10 years the lessee will be served with a 6 months notice ending with the expiry of the said term and it is further agreed that if the lessee is permitted to hold over the land after the expiry of the said term of 10 years the lessee will be allowed a six months notice to quit and vacate the said premises.

Thus it was clear that the lessee was entitled to a six months notice in the following two events before he could be required to vacate : (1) If the lessors desired the lessee to vacate at the end of 10 years and not to renew the lease, they were bound to give six months notice ending with the expiry of the term of 10 years, and (2) if on the expiry of the term the lease was not renewed but the lessee was allowed to hold over the lessors were bound to give him six months' notice before being asked to quit. The lessee 'held over' after the expiry of the lease and in a suit for eviction the question arose whether a notice of determination of tenancy was at all necessary and if it was so necessary, whether the terms as provided in Clause 7 extracted above was applicable. The Supreme Court was of the view that notwithstanding the interception of the Rent Control Acts, the landlord is bound to give a notice of determination of tenancy under Section 106 of the Transfer of Property Act before he could initiate proceedings under the Rent Control Act. After having settled this controversial question the Supreme Court, having regard to the facts of the case, laid down in unequivocal terms that the right of the lessee to have a notice as provided for by the proviso to Clause 7 was not in any manner affected by the special provisions under the Rent Acts (there Section 3 of the Calcutta Thika Tenancy Act). No doubt, the Supreme Court was prompted by equitable considerations as well in having carried forward this covenant as to period of notice even to 'holding over' tenancies. But that was not the only consideration which prompted the Supreme Court to finally hold that the lessee's right to have a notice as agreed to prior to the commencement of the 'holding over' tenancy was preserved as it was indeed a term of the contract of lease which has necessarily sloped down into 'holding over' tenancy as well. In the light of the ratio of the Supreme Court as above, it is not necessary that the subject requires any more consideration.

13. Another question was incidentally raised by Mr. Srinivasan that there has been a new contract of tenancy when the petitioner began to 'hold over.' This argument is purely rested on the ground i hat from time to time the rents were increased and by reason of such acceptance of increased rent, a new contract has emerged and therefore the terms of the old lease are no longer enforce-i able and binding. It is by now well established that it cannot be said with certainty that a fresh lease emerges by reason of the acceptance of an increased rent by the landlord and thus varying the term as to the quantum of rent in the original contract of lease. There, is no evidence in this case that excepting tor such a change in the quantum of rent, the parties ever be in any wise different from the terms of the original contract. Natesan, J., in Natesa v. Arumugha (1968) 81 L.W. 325 : I.L.R. (1968) Mad. 776, and Lakshmiammal v. Sivakamu Natesan : (1969)2MLJ626 , after an elaborate discussion of the case law on the question, held, that it is not every alteration of rent, even if it be by agreement between the parties, that necessarily brings about a fresh tenancy. The question is one of inference from the facts and circumstances of the particular case whether the parties intended by the new term as to rent to put an end to the old tenancy and create a new tenancy. I respectfully adopt the observation of my learned brother. In fact, the petition itself was founded on the ground of using the premises for a purpose other than that for which it was let out and this necessarily has relation to the original lease and not to an alleged new tenancy. The conduct of the respondent belies that there was any new tenancy created between herself and the petitioner by reason of the increase in rent and acceptance of such increased rent. I am unable, therefore, to agree with Mr. Srinivasan on this ground.

14. There is abundant authority in our own Court and finally the Supreme Court has also said that the period for determining the tenancy is a term of the contract of lease. This being so, in the instant case, the notice Exhibit R-1 does not satisfy the requirement of Section 106 of the Transfer of Property Act because such a notice followed the terms of Section 106 but has not implemented the term as to the period of notice which was envisaged in Exhibit P-1, the original lease, which provided for the determination of such tenancy by giving a month's notice to the tenant. No such month's notice has been given in the instant case. The respondent had therefore no jurisdiction to initiate proceedings before the Rent Controller. The order of the Court below is without jurisdiction and has to be set aside. The Civil Revision Petition is therefore allowed, but in the circumstances there will be no order as to costs.


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