1. The defendant in O. S. No. 38 of 1976 on the file of the district Munsif of Dindigul is the appellant in this second appeal. The respondent herein is the plaintiff in the suit. The plaintiff laid the suit for recovery of possession and for damages from 1-8-1975. There is no dispute that the defendant was a tenant of the suit property. There is no document of lease exhibited in the case. Admittedly, the tenancy was not either for agricultural or for manufacturing purposes. Normally, in such a case, the tenancy will have to be determined by fifteen days' notice expiring with the end of a month of the tenancy. In the instant case, what happened is, the defendant on 10-7-1975, in the account books of the plaintiff, in unequivocal terms, agreed to vacate the suit property by 1-8-1975. He did not adhere to this promise but wanted a further extension of fifteen days' time under Ex. A-2 dated 2-8-1975.. Obviously, this was not acceptable to the plaintiff and the plaintiff issued a notice on 11-8-1975, under the original of Ex. A-3, calling upon the defendant to deliver possession by 17-8-1975. The main question that arose on the contest by the defendant in the litigation was as to whether there should have been a further termination of tenancy within the meaning of S. 106 of the Transfer of Property Act (IV of 1882) hereinafter referred to as the `Act'. It is true that the first court held that there was no termination of tenancy as contemplated under S. 106 of the Act, and in this view dismissed the suit of the plaintiff for recovery of possession and granted a decree in favour of the plaintiff for a sum of Rs. 1,585 towards arrears of rent till the end of 15-12-1975. The plaintiff appealed and the lower appellate court took the view that Ex A-6 itself would amount to termination of tenancy, hence chose to reverse the judgment and decree of the first court, allowed the appeal and awarded damages at the rate of Rs. 75 per month to the plaintiff from 1-8-1975 with proportionate cost. Hence this second appeal.
2. At the time of the admission of this second appeal, the following substantial question of law were mooted out for consideration:-
'1. Whether the undertaking to vacate the shop by the lessee under Ex. A-6 is a notice as contemplated under S. 106 of the Transfer of Property Act;
2. Whether the court below is correct in construing Ex. A-6 as a notice when the same stands waived by the subsequent notice Ex. A-3 given by the plaintiff;
3. Whether the lower appellate court erred in granting the decree for damages for use and occupation from 1-8-1975 when the plaintiff himself admitted that he has permitted the appellant to occupy the building up to 15-8-1975 as per the request of the plaintiff under Ex. A-2.'
3. Mr. B. S. Gnanadesikan, learned counsel for the appellant, would submit that Ex. A-6 could not satisfy the provisions of S. 106 of the Act with reference to termination of tenancy and the lower appellate court erred in counting Ex. A-6 as amounting to termination of tenancy. I am not able to appreciate and accept this submission of the learned counsel for the appellant for the simple reason that under Ex. A-6, the defendant has agreed to vacate and deliver possession of the suit property to the plaintiff by 1-8-1975. This would amount to a contract to the contrary as contemplated in S. 106 of the Act. The relationship of landlord and tenant comes into existence on account of a contract between the parties and it is governed by the terms and conditions agreed to between the parties. The very set of expressions `In the absence of a contract............to the contrary' occurring in S. 106 of the Act, makes it clear that primarily the contract between the parties should fix and lay down the terms with reference to the tenure of the lease and of the formalities of termination of such lease. But if the contract is silent on these questions, then the statutory presumption arises and the obligation to terminate the tenancy in accordance with S. 106 of the Act will become operative. It is by now well settled that the contract to the contrary need not necessarily be express but can also be implied, vide Ram Kumar v. Jagdish Chandra, : 1SCR269 . There is no qualification that the contract to the contrary must either be anterior to or contemporaneous with the contract of lease. It could also be a matter of subsequent bargain and the parties may enter into a contract to the contrary either at the time of tendering into a lease or such a contract to the contrary can also be struck even subsequently. The parties would also be enabled by subsequent contract to vary the terms agreed to earlier.
4. A similar question came up for consideration in Batoo Mal v. Rameshwar Nath, : AIR1971Delhi98 , before a Division Bench and that Division Bench took the view that waiver is of a right; parties may enter into contract to the contrary at the time of entering into a lease; since the lease itself is based on a contract, the parties may agree to vary its terms by a subsequent contract; one of the parties may even agree to abandon a right given to it by S. 106, in the absence of a contract to the contrary; and if the requirement of notice can thus be waived by an agreement between the parties, it would be reasonable to think that it could also be waived by such contract as would be the evidence of the intention of the parties. In my view, this appears to be the reasonable and the practical construction that could be put on S. 106 of the Act, with reference to the contract to the contrary contemplated therein.
5. In the present case, the defendant, under Ex. A-6, agreed to vacate on 1-8-1975 and it would amount to a contract to the contrary and thereafter it is not open to the defendant to insist on a further notice of termination in accordance with the terms of S. 106 of the Act. One other point which the learned counsel for the appellant urges is that subsequent to Ex. A-6, the plaintiff issued Ex. A-3 and that must be taken to be the notice of termination and since it is factor should be put against the plaintiff's action for eviction against the defendant. In my view, this is a factual misconception. Ex. A-3 is only pursuant to Ex. A-6 and the defendant was called upon to implement and adhere to the undertaking express in Ex. A-6 and Ex. A-3 cannot be construed as an independent notice of termination. In my view, by Ex. A-6, the defendant had agreed to vacate, waiving his right to have a notice of termination of tenancy within the meaning of S. 106 of the Act and that would suffice the purpose to enable the plaintiff to pursue the cause for evicting the defendant, the tenant.
6. The third and the last aspect which the learned counsel for the appellant urged is that it was not competent for the lower appellate court to award damages from 1-8-1975; because by Ex. A-3 the defendant was called upon to vacate only by 17-8-1975. Here again, the factual aspect does not support this submission of the learned counsel for the appellant. After Ex. A-6, the relationship of landlord and tenant came to an end and the correspondence that followed thereafter were only with a view to secure the eviction of the tenant who continued to be in occupation in spite of his undertaking to vacate by 1-8-1975. Hence the position will not stand altered and the liability of the defendant to compensate the plaintiff by way of damages from 1-8-1975 will subsist and cannot be avoided.
7. For all these reasons, I am not able to interfere in second appeal and accordingly this second appeal fails and same is dismissed. There will be no order as to costs. The defendant will have three months time from today to vacate the suit property.
8. Appeal dismissed.