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Calcutta Landing and Shipping Co. Ltd. Vs. Victor Oil Company Ltd. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1944Cal84
AppellantCalcutta Landing and Shipping Co. Ltd.
RespondentVictor Oil Company Ltd.
Cases Referred and Charu Chandra v. Bankim Chandra
Excerpt:
- .....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 immovable 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 days notice expiring with the end of a month of the tenancy.section 110.-where the time limited by a lease of immovable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. where no day of commencement is named the time so limited begins from the making of the lease.where the time so limited is a year or a number of years, in the absence of an express agreement to the contrary the lease shall last during the.....
Judgment:

Rau, J.

1. This appeal is by the plaintiffs, the Calcutta Landing and Shipping Co. Ltd., in a suit for ejectment and mesne profits brought against the respondents, the Victor Oil Co., Ltd. The facts are briefly these: There was a verbal agreement between the parties to the effect that the defendant company would take a lease of the disputed godown for a period of 3 years 'from 1st June 1936' on a monthly rent of Rs. 250. The defendant company went into possession on 1st June 1936 and has been in possession ever since. A written lease had been contemplated but none was actually executed. On 13th November 1940, the plaintiff company served a notice upon the defendants to give up possession of the premises 'on the expiry of 1st December 1940.' Both the Courts below have held that this 'was not a valid notice under Section 106, T. P. Act. Hence this second appeal. The sole question raised before us is as to the validity of the notice. The sections to be considered are Sections 106 and 110, T. P. Act. The relevant portions of these sections run thus:

Section 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 immovable 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 days notice expiring with the end of a month of the tenancy.

Section 110.-Where the time limited by a lease of immovable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. Where no day of commencement is named the time so limited begins from the making of the lease.

Where the time so limited is a year or a number of years, in the absence of an express agreement to the contrary the lease shall last during the whole anniversary of the day from which such time commences.

Where the time so limited is expressed to be terminable before its expiration and the lease omits to mention at whose option it is so terminable, the lessee and not the lessor shall have such option.

2. Both the Courts below have held that Section 110 has no application except to a written lease. I shall first comment on this point. Under Section 107, T. P. Act, a lease of immovable property can in certain cases be made only by a registered instrument but in all other cases leases may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Ordinarily therefore the word 'expressed' in Section 110 would seem to mean 'expressed' either in the registered instrument or in the oral agreement by which the lease is made. I am not quite convinced that the word 'expressed' necessarily implies expression in writing. For example, Section 7 (2), Contract Act, indicates that in Order to con-vert a proposal into a promise the acceptance must be 'expressed' in some usual and reasonable manner; clearly this applies to verbal as well as written acceptances. By way of contrast, I may notice Section 25 (1) of the same Act which provides that an agreement made without consideration is void unless it is expressed in writing and registered under the law for the time being in force. Thus, where the Legislature means expression in writing, it may be expected to say so in plain terms. Nor am I quite convinced that the last paragraph of Section 110 which speaks of the lease omitting to mention at whose option it is terminable necessarily implies that the section contemplates a written lease. An oral agreement may omit to mention a thing just as much as a written instrument. On the language of Section 110 it is not therefore clear to me that it cannot apply to a lease created by oral agreement as well as to one created by a registered instruments The provision is really in the nature of an interpretation Clause and it would be plainly inconvenient to have one dictionary for written words and another for words spoken. If, for example, it were proved in a particular case that a lease for one year had been made by oral agreement in which the term had been expressed to commence from 1st January, it would be difficult to hold that the term should be computed in a manner different from that prescribed by Section 110.

3. Nor am I satisfied that the Rule laid down in the section is inflexible, whether for written or verbal leases. If, for example, a written lease provides that it is for a term of three years commencing from 1st January 1946, and ending on 31st December 1948, both days inclusive, it would be impossible to apply the Rule laid down in section 110 without making the lease self-contradictory. As observed by Viscount Maugham in Knightsbridge Estates Trust Ltd. v. Byrne (1940) 1940 A. C. 613, at p. 621, some such phrase as 'unless the context otherwise requires' is often necessarily implied in statutory definitions even where it is not expressly inserted, and it may well be that Section no must be read as subject to a similar qualification.

4. However, in this particular case it is not necessary for me to decide any of these points. Here there was a verbal agreement for a term of three years from 1st June 1936. Such a lease can only be created by a registered instrument. No registered instrument having been executed, the verbal agreement has to be ignored. It is not possible to sever the words ''from 1st June 1936' from the term which they were meant to limit and to hold that the words are good while the term is bad. Both jhave to be rejected. The case would then fall to be governed by Section 106, T. P. Act, and the lease must therefore be deemed to be a lease from 'month to month.' According to the General Clauses Act, 1897, which reproduces the definition given by Section 2(4), General Clauses Act, 1868, the word 'month' in this section must mean a month reckoned according to the British calendar. Therefore, the lease must be held to be a lease from month to month according to the British calendar. There is no dispute that the defendant company went into possession on the first day of a calendar month, namely, 1st June 1936. The notice to quit should therefore have ended with a calendar month. Instead of this it was expressed to end the expiry of 1st December. Much as I regret to have to decide the case on a technicality, I do not think that there is any alternative but to dismiss the appeal. In the circumstances of the case the parties must bear their own costs throughout.

Mukherjea, J.

5. This appeal arises out of an action in ejectment commenced by the plaintiff-appellant to recover khas possession of the premises in suit on the allegation that the defendant was a monthly tenant in respect to the same, and the tenancy was deter-mined by a notice to quit. The material facts lie within a very short compass and may be stated as follows: The premises in suit which is a godown at Howrah belongs to the plaintiff company. There was an arrangement come to between the plaintiff and the defen-dant under which the latter agreed to take a lease of the godown for a period of three years with effect from 1st June 1936, at a monthly rental of Rs. 250. The defendant actually occupied the godown on 1st June 1936, but no lease was executed and registered in accordance with the agreement, and the result was that the defendant continued to hold the premises as a tenant from month to month. On 13th November 1940, the plaintiff served a notice to quit upon the defendant asking the latter to vacate the godown on the expiry of 1st December 1940. As the defendant did not comply with this notice, the present suit was instituted.

6. The substantial defence raised on behalf of the defendant company was that the notice to quit was insufficient in law to determine the tenancy. The Subordinate Judge who tried the suit, accepted, this contention as correct and dismissed the plaintiffs' suit. The Subordinate Judge was of opinion that as the tenancy commenced on 1st June 1936, and continued from month to month according to the English Calendar, it could be terminated by a notice which would expire at the end of any such month. The tenant therefore could not be asked to vacate on the expiry of the 1st day of December, when another month of the tenancy would actually begin. According to the Subordinate Judge there being no document of lease, Section 110, T. P. Act, was not attracted to this case and the plaintiff was not right in excluding the 1st day in com- puting the period of tenancy. This decision was affirmed on appeal by the District Judge, Howrah. It is against the judgment of the District Judge that this second appeal has been preferred.

7. The learned Advocate-General who appears in support of the appeal has contended before us that the Court below was wrong in holding that Section 110, T. P. Act, is not applicable except where there is a formal lease in writing. In the present case, he says, there were letters exchanged between the parties which clearly stated that the lease was to commence from 1st June 1936. As this day is to be excluded for purposes of computing the period of the lease, the tenancy must be deemed to begin on the 2nd day of each month and continue till expiry of the 1st day of the month following. In support of this contention the learned counsel has relied amongst others upon the decision of the Judicial Committee in Benoy Krishna Das v. Salaiccioni , Now Section no, T. P. Act, embodies certain technical rules of interpretation. Paragraph 1 lays down that if the time limited by a lease of immovable property is expressed as commencing from a particular day, in computing the time such day shall be excluded. In English law also when the term is expressed in the habendum to commence from a specified day, that day is not ordinarily included in the term, while if it is stated to commence on a particular day, that day is included. But in English law these rules are not in-flexible and whether the date of commencement is to be excluded or included is to be determined according to the context and subject-matter, and the deed must always be interpreted to give effect to the substantive rights of the parties: vide Eedham's Law of Landlord and Tenant, Edn. 9, p. 31; Poa p. 113; vide also the cases in Ackland v. Lutley (1839) 9 A. & E. 879, Sidebotham v. Holland (1895) 1 Q.B. 378 (1917) Meggeson v. Groves (1917) 1 Ch. 158, I agree with what has been said by Ameer Ali J. in Charu Chandra v. Bankim Chandra ('38) 42 C.W.N. 1115, that Section 110, T. P. Act, attempts to render certain, what in England would have been a matter of some doubt, and lays down the artificial Rule of construction that where a lease is said to commence from a certain date, it means from the end of that date and will have another day added on at the end.

8. The first point that has been raised in this appeal is whether Section 110, T. P. Act, is at all applicable when there is no lease in writing. The section does not say that there must be an instrument in writing but Mr. Gupta argues, that this must have been the intention of the Legislature. The 'time limited by a lease says Mr. Gupta could not be ''expressed'' as commencing from a particular day unless the lease is in writing. The 'naming of a date' is also possible when there is a deed, and in para. 3 of the section which speaks of the lease omitting to mention certain things, the word 'lease' could not but refer to the instrument of lease. On the other hand, the learned Advocate-General points out that the definition of 'lease' as given in Section 105, T. P. Act, is perfectly general, and under Section 107 of the Act a document in writing and registered is necessary when the lease is for a period exceeding one year or reserves an yearly rent. In other cases a lease may be made by oral agreement accompanied by delivery of possession. It is further said that the word 'expressed' does not necessarily mean 'expressed in writing' and though the question is one of interpretation of certain words in the lease, there may be evidence of actual words used by the parties when the oral agreement was concluded. The decided cases which are reported so far all relate to written leases. In Benoy Krishna Das v. Salaiccioni , there was a written lease for a term of four years expressed to be from 1st June 1921. This lease expired in the year 1925, but the tenant held over as a monthly tenant which was determinable by 15 day's notice on either side under Section 106, T. P. Act. The notice to quit in this case was given by the tenants on 1st February 1928, where it was stated that they would vacate the premises on the 1st day of the succeeding month. It was held by their Lordships that the notice was a good notice. The provision of Section 110, T. P. Act, was applied to determine the period of the written lease and as it expired at the end of 1st June 1925, the monthly tenancy began on 2nd June and not on the 1st. There are two reported cases which have been decided by this Court since the pronouncement of the Judicial Commitee in Benoy Krishna Das v. Salaiccioni , viz., Sushil Chandra v. Birendrajit : AIR1934Cal837 , and Charu Chandra v. Bankim Chandra ('38) 42 C.W.N. 1115, In both of them there were written leases for a fixed period, on the expiry of which the tenant held over, and the provision of Section 110, T. P. Act, was invoked to determine the period of the written lease and not that of the tenancy constituted by holding over by the tenant.

9. The point certainly is not free from doubt. Speaking for myself I would be inclined to agree with Mr. Gupta; for it seems to me improbable, that the legislature intended that a technical Rule of interpretation which involves attaching particular meaning to particular words should be applied to spoken language- where the actual words used would have to be proved by extrinsic evidence. In such cases, I think, the question would be one of gathering the intention of the parties from the words used and Section 110, T. P. Act, would not in terms apply. The point however need not be finally decided in this appeal, for I concur with my learned brother in holding that Section 110, T. P. Act, has no application to the facts of the present ease, even if we assume that the section is not confined to written leases. Paragraph l of Section 110, T. P. Act, which is relevant for our present purposes contemplates, that a time or period should be limited by the lease land the period must be expressed to commence from a particular date. When both these conditions are fulfilled the Rule of interpretation laid down in the paragraph applies and in computing the period that day is to be excluded. In the case before us there were negotiations between the parties for a three year's lease, and there was an agreement arrived at that the lease would be for a period of three years from 1st June 1936, and a formal instrument of lease for that period would be executed and registered. No document was however executed, and the tenancy was constituted by the defendant's taking possession of the godown, and paying rents which were accepted by the plaintiff. According to the case made by the plaintiff in his plaint, there was a tenancy from month to month under Section 106, T. P. Act. Thus, there was no agreement between the parties regarding the period of the lease. As there was no agreement fixing the period, the tenancy has been taken to be from month to month under Section 106, T. P. Act, which applies only where there is no agreement to the contrary. As no time was fixed by the lease itself there could be no question of expressing it to begin from a particular date, and Section 110, T. P. Act, has in these circumstances got no application whatsoever. The letters exchanged by the parties do indeed speak of the tenancy commencing from 1st June 1936, but they do not constitute the basis of the present lease. That agreement was not given effect to by the parties and the transaction was ultimately concluded on a different basis altogether.This being the position we cannot determine the time of the commencement of the tenancy by simply applying the Rule of interpretation contained in Section 110, T. P. Act, to the words actually used in these letters. As Section 110, T. P. Act, does not apply, the date of the commencement of the tenancy has got to be ascertained like any other fact from such materials as have been placed by the parties before the Court. Here we have these facts, viz., that the senant went into possession on 1st June 1936, and the rents have since then been all along paid according to the months of the English Calendar. There is nothing in the evidence to show that the 1st day of June was intended to be excluded from the month of tenancy. In these circumstances, I agree with my learned brother in holding that the decision of the Court is this appeal must fail.


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