V. Sethuraman, J.
1. The defendant is the appellant. The plaintiff purchased the suit property from one Miss. Stazza on 26th January, 1970. At that time the defendant was in occupation of the property as a tenant on a monthly rent of Rs. 25. The plaintiff requested the defendant to vacate the property and as he did not do so, a registered notice was sent to him. But it was returned with the endorsement 'Not found'. The plaintiff thereafter sent a telegram on 30th July, 1970 running as follows:
The portion issued to you by Stazza has been purchased by me. You have not received the registered notice sent to you, You have to vacate the portion in your occupation by the end of August, 1970. Justin Diraviam.
The defendant received the telegram, but did not vacate the property. It was stated in the plaint that the plot was a vacant piece of land, which is not controlled by the Madras Buildings (Lease and Rent Control) Act of 1960. Hence, the plaintiff filed a suit for recovery of possession of the property from the defendant and also for damages for use and occupation.
2. The defendant in his written statement pointed out that the description of the property given in the plaint as Door No. 40 was wrong, that he had put up a superstructure at a cost of Rs. 3,500 and planted some trees and that he was not aware of the purchase by the plaintiff. He denied having returned any registered notice and according to him, the telegram, did not satisfy the mandatory statutory provisions. It was contended that the suit was not maintainable in law.
3. The learned District Munsif found that the plaintiff had title to the suit property that the mention of the door number as 40 was just a mistake, and that he was entitled to recover possession thereof. He held also that the notice to quit was proper and valid and he, therefore, passed a decree for delivery of possession and for damages.
4. There was an appeal by the defendant and the learned Subordinate Judge framed two points for determination viz., whether the plaintiff was entitled for recovery of possession of the suit property and whether the plaintiff was entitled to damages for use and occupation. He held that the plaintiff had title to the suit property and that he was entitled to damages for use and occupation. The unsuccessful defendant has appealed.
5. The only point agitated before me (from different angles) in the second appeal is whether the notice to quit satisfies the requirement of Section 106 of the Transfer of Property Act. That section runs as follows:
106. In the absence of a contract or local law or usage to the contrary, a lease of immovable 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; and 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 clays' 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, and (either be sent by post to the party) who is intended to be bound by it or 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.
6. The first contention urged before me on behalf of the appellant is that the notice as if the tenancy was from one calendar month to another was not correct. The submission was that the tenancy commenced on 5th of one calendar month and ended on the 4th of the succeeding month For this purpose, C.M.P. No. 635 of 1976 was filed for getting an additional document admitted at this stage The admission thereof was opposed by the respondent on the ground that no sufficient cause has been made out for its reception at this stage. I have gone through the affidavit in support of the petition and I am not satisfied that any proper case has been made out for reception of additional evidence at this stage. C.M.P. No. 635 of 1976 is, therefore, dismissed.
7. This is a lease of an immovable property for non-agricultural purposes. It is to be deemed to be a lease from month to month terminable either by the lessor or the lessee by 15 days' notice expiring with the end of a month of the tenancy. The month of the tenancy would be a British calendar month in the absence of any contract to the contrary. There is no contract produced in this case, apart from the additional evidence sought to be produced at this stage which has not been admitted. The plaintiff was, therefor, right in proceeding, as if the lease was from one calendar month to another. The plaintiff had not let out the property to the defendant. If the defendant had any material to show that the tenancy was not from one calendar month to another, then he should have produced the relevant material. The relevant material could only have been in his possession and not having produced it or even referred to it at any stage, the plaintiff was justified in proceeding as if the tenancy related to a calendar month and giving notice on that basis. I do not, therefore, see any substance in the objection regarding the validity of the notice on the aforesaid ground.
8. It was next contended that the telegram did not terminate the tenancy, as such and that it did not, therefore, satisfy the provisions of Section 106 of the Transfer of Property Act In this connection reliance was placed on a decision of a Full Bench of the Allahabad High Court in Bradley v. Atkinson I.L.R.(1885) All. 899 : (1885) All. W.N. 288. In that case the landlord had let rooms in a dwelling house to a tenant. He sent a letter to the tenant saying that if the rooms occupied were not vacated within a month from that date, he (the landlord) would file a suit against the tenant for ejectment as well as for recovery of rent at the enhanced rate. As the tenant did not vacate the landlord instituted a suit. It was held that the letter was not such a notice to quit as the law required, inasmuch as it was not a notice of the lessor's intention to terminate the contract at the end of a month of the tenancy. It may be noticed that in that case the tenancy had commenced from 1st July, 1882. The landlord gave notice on 11th December, 1882 saying that if the rooms were not vacated within a month, he would file a suit for ejectment. In the case of a tenancy from month to month, the notice has to be such as to expire with the end of the month of the tenancy. That was not the case there. There was not even the requirement to vacate the premises in the notice. It was only stated that if the rooms were not vacated, a suit would be filed. The notice in the present case does not run on similar lines so as to apply the decisions therein.
9. My attention was also drawn to an other decision, of the Allahabad High Court in Farooq Ahmed v. Muneshwar Bux Singh : AIR1972All155 . That was a case where even the notice was not produced before the Court so that there was no proof of a valid notice in that case. The Court proceeded as if there was a notice in which there was no termination of tenancy, but only for vacation of premises. It was held that it would not fulfil the requirements of Section 106 of the Act. It is not clear how it was inferred that there was no notice for termination of tenancy and a mere request for vacation of the rented premises, when the notice itself had not been produced. I do not think that the said case is also helpful to decide the case before me. In my opinion, the notice saying that the tenant had to vacate the portion in his occupation by the end of August, 1960 was such as to terminate the tenancy. The question of vacating the premises would not arise unless there was a termination of tenancy. I, therefore, held that there was a proper termination of tenancy in this case.
10. On behalf of the respondent my attention was drawn to a decision of this Court in Alphonso Pinto v. Thukru Hengsu and Anr. (1964) 2 M.L.J. 445. But that decision dealt with a case where the validity of the notice to quit was challenged on the ground that it did not contain particulars regarding the tenancy. It was held that the absence of those particulars were not material. Rajamannar, C.J., had no occasion to consider the question as to whether there must be a specific termination of tenancy in the notice to quit. In my opinion, there is a substantial compliance with the requirements of Section 106 of the Transfer of Property Act in the present case as far as termination of tenancy is concerned.
11. The last point argued was that Section 106 required a notice in writing signed by or on behalf of the person giving it and that in this case there was no signature of the person giving the notice. It was contended that the defendant received only a telegram which did not contain any signature, as such. It was, therefore, argued that the provisions of Section 106 of the Act had not been complied with. In this connection a decision of the Allahabad High Court in Hira Lal v. Deputy Commissioner, Rai Bareilli : AIR1951All483 , was referred to. That was a case in which the Court of Wards was the landlord. A notice in manuscript was prepared in the office and was duly signed by the Deputy Commissioner concerned. However, what was sent to the tenant was not that notice, but a typed copy thereof with the name of the Deputy Commissioner typed at the end of it. There was no signature of the Deputy Commissioner or anyone else. It was held on these facts that there was no signature on the notice sent to the tenant and that therefore, it was not a valid notice. Unfortunately for the landlord in this case, this objection, taken before me appear to be well-founded. The section requires every notice to be in writing signed by or on behalf of the person giving it and either to be sent by post to the party 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 it. On a reading of the section it is clear that the notice which reaches the party must contain the signature of the person giving the notice or his agent. In the present case, it is true that as it was tendered to the Telegraph Office, the telegram must have contained the signature of the party giving it or his agent. But the copy that was received by the tenant did not contain the signature. The name of the sender was only typewritten. The notice suffers from the same infirmity as in the Allahabad decision in Hira Lal v. Deputy Commissioner, Rai Bareilli : AIR1951All483 and is not thus valid.
12. On behalf of the respondent objection was taken to this point being raised at this stage, as this point was not taken in the Court below. For the appellant, the submission was that this point was taken and argued and that unfortunately the learned Subordinate Judge had omitted to deal with it. In the grounds of appeal fried in this Court there is a specific allegation of the error of the lower Court in not dealing with the validity of the notice. The respondent, however, stated that in his affidavit for expediting the hearing he had alleged that this point had not been taken in the lower Court and that it was not controverted. Assuming for a moment that the point had not been taken in the lower Court, being a question of law going to the root of jurisdiction, the point can be entertained at this stage. The validity of the notice had been put in issue in the trial Court. There is no reason to doubt the statement of the appellant that the point was taken in the lower appellate Court. However, even on the basis that the point had not been taken, I think it proper to entertain it and for the reasons mentioned above, I hold that the notice to quit is invalid. C.M.P. No. 635 of 1976 is dismissed. The Second Appeal is allowed. There will be no order as to costs. No leave.