1. This appeal has arisen out of a suit which the plaintiffs instituted against the defendants for arrears of rent for ejectment and for mesne profits. On 17th Baisakh 1332 defendant's father sold some lands to the plaintiffs by a Kobala, and on the next day the 18th he took some of the lands so conveyed on a lease for one year by executing a kabuliyat. The period of the lease having expired, a notice to quit was served, and on the expiry of the period stated in it, the present suit was brought. The defence was that the kobala and the kabuliyat were meant to constitute a mortgage by way of conditional sale, that it was understood that the lease would be for 5 years while it was fraudulently obtained as for one year, that a part of the rent had been paid up and that no notice was served.
2. The Munsif overruled all the defences and decreed the suit. The Subordinate Judge has reversed the Munsif's decision and dismissed the suit. He found that no fraud or trick such as was alleged on behalf of the defendants was proved. He preferred not to decide the question whether the deed of sale was really intended to be a mortgage, because he thought that the suit might be disposed of on the question of notice and so he left the former question open. On the question of notice he found that it was served, but he held that it was insufficient. His reason for this view was that the notice was dated 26th Aswin 1333 (served on 15th October 1927) and was a notice to vacate by the last day of Chait 1334 whereas the year of the tenancy would expire on 18th Baisakh 1335. He held that such a notice was bad. The Subordinate Judge has in one place of his judgment referred to Section 106, T.P. Act, in support of his view that the defendants on the expiry of their lease held over and so came to hold on a tenancy from year to year, and that such a tenancy, by reason of holding over, could be terminated by six months' notice expiring with the end of a year of the tenancy.
3. It is conceded now that there are no notifications issued under Section 117, T.P. Act, making the provisions of Ch. 6 of that Act applicable to Sylhet, This tenancy has been found to be an agricultural tenancy. The Bengal Tenancy Act, admittedly does not apply. It is the Act 8 of 1869 by which the tenancy is governed. In the latest case under this Act, Ratneswar Das v. Kamal Deb Adhikari AIR 1921 Cal 126, it has been held that the notice must be reasonable but need not purport to determine the tenancy at the end of the year. I have not been able to find any decision prior to that in the case of Jugat Chandra Roy v. Rup Chand Chango (1883) 9 Cal 48 in which a notice expiring otherwise than at the end of the year was held to be valid. Two cases are referred to in decision aforesaid, Rajendra Nath v. Bassidur Rahman (1876) 2 Cal 146 and Janoo Mandar v. Brijo Singh (1874) 22 WR 548, in both of which however the notices were such as did expire at the end of the year, but they were relied upon in that case in support of the negative proposition that they did not, in fact, lay down that expiry with the end of the year was a sine qua non but proceeded on other grounds. I may state here that the former of these decisions was the decision of a Full Bench which no doubt dealt with a different point but the order of reference proceeded upon the assumption that the notice to be valid must expire at the end of the year. In fact Markby, J., in the order of reference expressly said so, observing:
It is I think clear upon the authorities that he could not have been ejected without reasonable notice expiring with the end of the year.
4. And the learned Judge in support of this dictum relied upon two decisions viz: Bakranath v. Binodram (1868) 1 Beng LR 25 and Janoo Mandar v. Brijo Singh (1874) 22 WR 548 also, Garth, C.J., during the hearing of that case appears to have made a remark:
It must bo taken for granted that a notice to quit must bo given a reasonable notice at the end of the year: Muhomed Rasid Khan v. Jadeo Mridha (1873) 20 WR 401.
5. This Full Bench case was under Act 8 of 1869. The first pronouncement that expiry with the end of the year was not necessary therefore appears to have been made in Jugat Chandra Ray's case (1883) 9 Cal 48 and it was made in these words:
A tenant other than an occupancy raiyat is entitled to a reasonable notice to quit; what is a reasonable notice is a question of fact, which must be decided in each case according to the particular circumstances and the local customs as to reaping crops and letting land. It is not necessary that the notice must expire at the end of the year.
6. In the case of Ram Ratan Mandal v. Netro Kali Dasi (1879) 4 Cal 339 at p. 341, which was a case under Act 8 of 1859 Jackson, J., referring to the aforesaid Full Bench decision observed that the two essentials of a valid notice were sufficiency of the period and expiry of the period with the end of the year. The view propounded in Jugat Chandra Ray's case (1883) 9 Cal 48 was adopted in Radhaqobinda v. Rakhaldas (1886) 12 Cal 82, Bidhu Mukhi v. Kefaitulla (1886) 12 Cal 93 and Kali Kishore v. Golamali (1887) 13 Cal 3. In Kishori Mohan v. Nund Kumar (1897) 24 Cal 720. 12. (1899) 26 Cal 761 the expiry of the notice at the end of the year was insisted on as being consonant with the rule of English law which was hold to apply in the absence of any statutory enactment in this country as regards this matter. But in Digambar Mahto v. Jhari Mahto (1899) 26 Cal 761 a case from Manbhum, in which the question of notice arose under Act 8 of 1869, Jugat Chandra, Ray's case (1883) 9 Cal 48 was followed, the other decisions referred to in support being Radhagobinda v. Rakhal Das (1886) 12 Cal 82, Bidhu Mukhi v. Kefaitulla (1886) 12 Cal 93 and Kali Kishen v. Golam Ali (1887) 13 Cal 3. Ismail Khan Mohamad v. Jaigun Bibi (1900) 27 Cal 570 proceeded on the footing that the view taken in Kishori Mohan v. Nund Kumar (1897) 24 Cal 720 was right. And so did the case of hemangini v. Srigolinda (1902) 29 Cal 208. It is not necessary to refer to any of the later cases prior to the decision in the case of Pratap Narain Deo v. Maigh Lal Singh (1909) 36 Cal 927 in which Jenkins, C.J., pointed cut that 'the state of the authorities on the question of notice can not be regarded as satisfactory' and observed that 'all that could be said by the Division Bench', over which he presided, was that there must be a reasonable notice and that the notice need not necessarily determine at the end of the year'. The same view has been taken in the case of Ratneswer Das v. Kamal Deb AIR 1921 Cal 126 to which reference has already been made.
7. In my opinion much undoubtedly may be said in favour of the view that the notice must expire with the end of the tenancy. But in the state of the authorities to which I have referred I am not disposed to take any steps, so far as the present case is concerned, to have the question authoritatively settled, and I think so far as the present case is concerned, I should be content to follow the latest decision on it. Such disinclination as I feel in this respect is due to the fact that it is only a very short period of seventeen days which creates the difficulty. I am also of opinion that upon such circumstances as I can gather from the record, it should be held that there was nothing unreasonable about the notice. In the result I think the Subordinate Judge's decision on the question of notice should not be upheld. As regards the nature of the transaction I feel no difficulty in holding that it was a sale and a lease for one year and nothing else that was meant. In these circumstances, I must allow the appeal and setting aside the decision of the Subordinate Judge restore that of the Munsif. As regards the costs of this appeal and of the Court of appeal below, I order that each party do bear his or their own costs.