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Baidyanath Basak and anr. Vs. Onkarmul Manicklal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1938Cal656
AppellantBaidyanath Basak and anr.
RespondentOnkarmul Manicklal and ors.
Cases ReferredDixon v. Bradford and District Railway Servants Goal Supply Society
Excerpt:
- .....to be a lease from month to month terminable on the part of either the lessor or lessee by 15 days' notice expiring with the end of a month of the tenancy. it is clear that the months which are contemplated by the document are the months according to the bengali calendar. therefore if the defendants' contention is correct, the plaintiffs can only terminate the tenancy of the defendants by a notice of 15 days, expiring with the end of a bengali month. the plaintiffs on the other hand submit that there is a contract to the contrary within the meaning of the section, and that the tenancy created is a tenancy for an indefinite time subject to the right of either party to terminate it by a 7 days' notice. the defendants alternatively contend that even if the document has the effect of.....
Judgment:

Panckridge, J.

1. This is a suit in ejectment. The plaintiffs are the owners of No. 25/1, Ratan Sarkar Garden Street and the defendants are persons who are now in occupation of the northern portion of those premises. None of the defendants have entered appearance or filed written statements, except the first defendants, Onker-mull Manicklal, a firm having its place of business at 4, Singhi Dutt Lane, Calcutta. The case for the plaintiffs is that on 19th September 1935, they demised the plot of land in suit to Onkermull Manicklal in terms of a document dated 2nd Aswin 1342, B. S. corresponding with 19th September 1935. This document was signed by one Surajmull Tharad on behalf of Messrs. Onkermull Manicklal, the signatory describing himself as a manager and partner. The plaintiffs claim that they duly terminated the tenancy of Onkermull Manicklal by a notice in writing dated 1st May 1937. In the written statement the defendants Onkermull Manicklal put forward a substantive case in which they allege that they are in occupation under an agreement of lease for a period of 11 years beginning with the Bengali month of Aswin 1342. The suit was instituted on 15th May 1937 and there is a claim as against Onkermull Manicklal for a sum of Rs. 411-4-0, being the rent due at the date of the determination of the tenancy, and for mesne profits thereafter until vacant possession is obtained. The claim for rent is not disputed and the defendants say it has been tendered to the plaintiffs. The plea of tender however has not been accompanied by any payment into Court. The defendants as an alternative defence submit that under the terms of the letter of 19th September 1935, the notice given by the plaintiffs on 1st May 1937 did not effectively terminate the tenancy.

2. During the course of the trial the defendants have stated through their counsel that they are not in a position to call evidence to support their allegations as to an agreement for a lease of 11 years and they have also admitted the authority of Surajmull to sign the letter of 19th September 1935 on their behalf, and in consequence the only question which I have to decide is whether the tenancy of the defendants was effectively terminated, as the plaintiffs contend by their letter of 1st May 1937. The letter of 19th September 1935, is as follows: Sirs,

We rent the vacant land lying to the east of the front portion of your house No. 26/1, Ratan Sarkar Garden Street on a fixed rent of Rs. 31 per month and declare that we will pay the rent of the above premises by the 5th of each month and when it will be necessary to give khas possession of the said premises we will give khas possession of the same to you within 7 days. If we fail to do so then we will make good all your loss.

3. By their letter of 1st May 1937, the attorney for the plaintiffs call on the defendants to remove certain structures and quit and vacate the land and give vacant possession of the same within 7 days from the receipt of the letter. The defendants rely on the provisions of Section 106, Transfer of Property Act. They submit that there is here no contract to the contrary within the meaning of the Section and that accordingly the lease must be deemed to be a lease from month to month terminable on the part of either the lessor or lessee by 15 days' notice expiring with the end of a month of the tenancy. It is clear that the months which are contemplated by the document are the months according to the Bengali Calendar. Therefore if the defendants' contention is correct, the plaintiffs can only terminate the tenancy of the defendants by a notice of 15 days, expiring with the end of a Bengali month. The plaintiffs on the other hand submit that there is a contract to the contrary within the meaning of the Section, and that the tenancy created is a tenancy for an indefinite time subject to the right of either party to terminate it by a 7 days' notice. The defendants alternatively contend that even if the document has the effect of cutting down the requisite notice from 15 days to 7 days the requirement of the Section that the notice should expire with the end of a month of the tenancy is not affected thereby. Clearly, if either of these constructions is correct, the notice is an ineffective notice. In my opinion, the first contention of the defendants is sound and Section 106 is applicable to the agreement contained in the letter of 19th September 1935. Clearly the promise on the part of the defendants to take the vacant land on a fixed rent of Rs. 31 per month and pay the rent by the 5th of each month is either a definite agreement for a monthly tenancy or if it cannot be so construed, it is certainly not a contract to the contrary within the meaning of Section 106. If the letter ended with the words 'by the 5th of each month' it could hardly be argued that Section 106 did not apply.

4. What then is the effect of the remainder of the letter? There is not in terms any stipulation as to notice. The word 'notice' is not used. Moreover, nothing is said as to the right of either party to terminate the tenancy. It is true the letter contemplates the tenancy coming to an end but confers no right upon either the lessor or lessee to put an end to it in a particular way. In my opinion the effect of the concluding portion of the letter is that, if the lease is determined in any of the ways contemplated by Section 1l l, Transfer of Property Act, the defendants covenant to give khas possession within 7 days of such determination. Whether this confers upon the lessees a definite right to remain on the premises for 7 days after the determination of the tenancy is a question I have not got to decide; but in my opinion the only way that either party can determine the tenancy by notice is by observing the provisions of Section 106. If I considered that the document had the effect of reducing the statutory period of 15 days, I should certainly hold on the authority in Dixon v. Bradford and District Railway Servants Goal Supply Society (1904) 1 KB 444, that the 7 days must expire with the end of a month of the tenancy. On this point Mr. B. C. Ghose has read to me certain decided cases reported in unauthorized reports and used them as part of his argument. The reports are all cases decided by the Lahore Court and so are not directly in point inasmuch as the Transfer of Property Act has never been extended to the Punjab. But apart from this, I do not find the decisions by any means convincing and should not be disposed to adopt the reasoning in them. It follows therefore that the plaintiffs' claim for a decree for ejectment must be dismissed. The plaintiffs however are entitled to a decree for Rs. 411-4-0 as rent, but under the provisions of the Presidency Small Cause Courts Act, having regard to the amount of such decree, they are not entitled to costs. I think I should not be justified in awarding costs to the defendants because they have not accompanied their plea of tender by a payment into Court.


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