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Ahumad Ali Biswas Vs. Jyotsna Kumar Bandopadhyay and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 26 of 1951
Judge
Reported inAIR1952Cal19
ActsTransfer of Property Act, 1882 - Section 106; ; General Clauses Act - Section 33
AppellantAhumad Ali Biswas
RespondentJyotsna Kumar Bandopadhyay and anr.
Appellant AdvocateBankim Chandra Banerjee and ; Jagannath Gangopadhyay, Advs.
Respondent AdvocateLala Hemanta Kumar and ; Sushil Kumar Banerjee, Advs.
DispositionAppeal dismissed
Cases ReferredCalcutta Landing and Shipping Co. Ltd. v. The Victor Oil Co. Ltd.
Excerpt:
- .....notice itself. there is no explicit statement in the plaint that the month of the tenancy was the bengali calendar month, but the whole implication in it and in the notice, in so far as it is to expire with the bengali month, shows that the plaintiffs' case was that the month of the tenancy was the bengali month. it does not appear that this point was ever challenged by the defendant. there is no substance in this point.6. as regards the extraordinary suggestion that all tenancies, month to month, under section 106 of the transfer of property act must be according to the english calendar in view of the provisions of section 33 of the general clauses act, some authority appears to be found for this view in the judgment of rau j., in the case of 'calcutta landing and shipping co. ltd. v......
Judgment:

Roxburgh, J.

1. This is an appeal by a tenant against a decree of the Subordinate Judge of Murshidabad affirming the decree of the Munsif of Lalbagh in a suit for eviction.

2. The circumstances are a little unusual. Apparently the plaintiffs and the defendant were each occupying the premises of the other as tenants, and the plaintiffs' case is that the rents were set off. The defendant started trouble by suing the plaintiffs for rent, whereupon the plaintiffs gave the defendant notice under Section 106 of the T. P. Act to vacate.

3. Two points were urged before me, first that in view of the arrangement between the parties, the decree for eviction should not have been made without some corresponding relief to the defendant to get back his premises. No case was made out that there was in fact any such mututal arrangement, and I fail to see how any case of equitable relief can arise in the circumstances. There is therefore no substance in this point.

4. The other question raised was that the notice was not sufficient and legal. The notice was given on 20-12-1948, and the tenant was asked to vacate 15 days after receipt of the notice within the month of Pous, that is to say, by the 1st of Magh. The notice is in Bengali and the words 'by the 1st of Magh' are interpolated between the lines of the notice as first written. There was some contention in the lover Court that these were subsequent interpolations. The argument before me is that there is no evidence as to what was the month of the tenancy in this case. It was faintly argued that in all cases under Section 106 of the Transfer of Property Act the month of the tenancy must be the English calendar month, and it was further argued that the notice was bad so far as it required the tenant to vacate within 15 days after receipt of the notice which was served on the 6th of Pous.

5. My attention has been drawn to the plaint, and for this purpose one can also consider the terms of the notice itself. There is no explicit statement in the plaint that the month of the tenancy was the Bengali calendar month, but the whole implication in it and in the notice, in so far as it is to expire with the Bengali month, shows that the plaintiffs' case was that the month of the tenancy was the Bengali month. It does not appear that this point was ever challenged by the defendant. There is no substance in this point.

6. As regards the extraordinary suggestion that all tenancies, month to month, under Section 106 of the Transfer of Property Act must be according to the English calendar in view of the provisions of Section 33 of the General Clauses Act, some authority appears to be found for this view in the judgment of Rau J., in the case of 'Calcutta Landing and Shipping Co. Ltd. v. The Victor Oil Co. Ltd.', 48 Cal W N 76. There is no agreement with this view in the judgment of Mukherjee J., and with great respect I need only to say that it is patently erroneous. Section 106 of the Transfer of Property Act clearly contemplates any kind of 'monthly tenancy' and it is well known that a monthly tenancy may be according to an English calendar, Bengali calendar, Sambat calendar and so forth, and may commence on any day of the particular month, say, from the 5th of one to the 4th of the next and so on. It is surprising to find the argument even put forward.

7. There remains only the question whether the notice itself is defective. I think, read as a whole, it is amply clear that the intention is to give notice on the tenant to vacate at the end of the Bengali calendar month which was known to be the month of the tenancy. Out of a sort of extra caution whoever drafted the notice has mentioned the period of 15 days which Is required under Section 106 and the meaning there is clearly that the vacating is to take place not less than 15 days after the receipt of the notice and within the month of Pous. The addition, that is to say, 'by the 1st of Magh' does not seem to me to matter in the least and there is no need to suppose that it was subsequently interpolated by the plaintiff or at his instance. The notice was a notice to quit expiring with the month of the tenancy.

8. The result is that there is no reason to interfere with the decision of the lower Court in this matter. The appeal is accordingly dismissed with costs.

9. The appellant is allowed six months time from to-day to vacate the premises.


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