1. This second appeal was referred to a Division Bench by a learned single Judge and is thus before us.
2. The principal question which falls to be considered in the appeal is whether acceptance of rent due after the expiry of a notice to quit constitutes a waiver of the said notice by the landlord.
3. The appellant was a tenant under the respondent in respect of a portion of premises No. 4, Townshend Road, Calcutta. By a notice to quit, dated 4-3-1948, the respondent landlord purported to terminate the appellant's tenancy on 31st March. This was followed by a suit for ejectment instituted on 3-4-1948. Thereafter, for several months the appellant deposited current rent with the Rent Controller, but between January, 1949, and October, 1950, while the suit was still pending, he remitted to the respondent by postal money orders divers-sums by way of rent for the period commencing January 1949. The suit for possession, which was governed by the provisions of Calcutta Rent Ordinance, 1946, was decreed on 11-12-1951.
4. As the appellant's written statement was filed long before the said acceptance of rent by the respondent, no specific case of waiver was pleaded and no amendment of the written statement was asked for to incorporate a plea of waiver before the suit came on for final hearing. Consequently, there was no issue as to waiver. The money order acknowledgment receipts were, however, tendered upon admission. This payment and acceptance of rent for the period subsequent to the expiry of the notice to quit, according to the appellant, constituted a waiver of the said notice.
5. The learned Munsif who decreed the suit was of the opinion that although in the absence of any specific issue as to waiver, the defendant tenant was allowed to give evidence about it, such evidence was insufficient to prove that the plaintiff had waived the said notice to quit. The lower appellate court also held that no such waiver had been established. The appeal is dismissed.
6. Mr. Bejoy Bhose for the appellant has argued, firstly, that the original tenancy having commenced on 14th or 15th June, 1952, a clear 15 days' notice was not given, and, secondly, that by the payment and acceptance of rent for a period subsequent to the alleged termination of the tenancy, the notice concerned was waived.
7. As to the first point, the finding is that the tenancy in question was according to the English calendar month. That being so, the notice, in our view, was a sufficient notice.
8. As to the question of waiver, Mr. Bhose has relied upon illustration (a) to Section 113 of the Transfer of Property Act and has contended that the mere acceptance of rent is sufficient to constitute waiver. In support of his contention, he has relied upon -- 'Manicklal Dey Choudhury v. Kadambini Dassi', AIR 1926 Cal 763 (A), and -- 'Karnani Industrial Bank Ltd. v. Province of Bengal', AIR 1949 Cal 47 (B). At the same time, Mr. Bhose has drawn our attention to a number of cases which support the contention that a mere acceptance of rent does not in all cases, and in particular in this case, constitute any such waiver. Mr. Nalin Banerjee for the respondent has relied upon the latter decisions.
9. For a proper appreciation of the case law on the subject, it is necessary to bear in mind that a waiver is an intentional relinquishment of a known right, or such conduct as warrants an inference of such relinquishment. Naturally, the burden of proof of such relinquishment is on the person who relies on the waiver. As observed by their Lordships of the Privy Council in -- 'Dawsons Bank, Ltd. v. Nippon Menkwa Kabushiki Kaisha' , waiver is contractual; it is an agreement to release or not to assert a right. That being the position, a waiver must, upon ultimate analysis, be a question of fact, depending upon the circumstances of the particular case before the Court. This statement of the law relating to waiver does not appear to us to be in conflict with the provisions of Section 113 of the Transfer of Property Act. Section 113 is in these terms:
'A notice given under Section 111, Clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.'
10. Illustration (a) to the section merely shows that when the rights of the parties are governed by the provisions of the Transfer of Property Act, acceptance of rent which has become due since the expiration of the notice is evidence of the landlord's intention to treat the lease as subsisting and thus of waiver of the said notice. Payment and acceptance of rent under the Transfer of Property Act is referable only to the consideration for the lease. When, however, the rights of the parties are governed not merely by the Transfer of Property Act, but also by any rent control law, the mere payment and acceptance of rent may not constitute conclusive evidence of an intention to treat the lease as subsisting and of a waiver of the notice.
11. In almost every recent case where the pointy arose, the English case of -- 'Davies v. Bristow'. (1920) 3 KB 428 (D) was relied upon. It is to be observed that that was a case to which the Increase of Rent, etc. (War Restrictions) Acts applied and that accordingly the landlord had no choice but to accept the rent, notwithstanding that the notice to quit had expired. The following observations of Lush, J. in that case illustrate the nature of a waiver such as is claimed in this appeal :
'When once the notice to quit has expired the position of the parties is precisely the same as it would be if the original lease had provided for the determination of the term on the date mentioned in the notice. There is in that case no room, for election by the landlord. The landlord and the tenant may of course agree that a new tenancy shall be created on the old terms, and that is what in effect they do when they agree that the notice to quit shall be waived. But the agreement to continue the tenancy must be proved. It must be shown that the parties were 'ad idem' as to the terms.'
The same principle is to be found in the following observations of Chief Justice Lord Goddard in --'Clarke v. Grant', (1949) 1 All ER 768 (E):
'Therefore, the tenancy having been brought to an end by a notice to quit, a payment of rent after the termination of the tenancy would only operate in favour of the tenant, if it could be shown that the parties intended that there should be a new tenancy. That has been the law ever since it was laid down by the Court of King's Bench in -- 'Doe v. Batten', (1775) 1 Cowp 243 (F), where Mansfield, L. J. said: 'The question therefore is quo animo rent was received and what the real intention of both parties was?'
By this decision, an earlier case, namely, -- 'Hartell v. Blackler', (1920) 2 KB 161 (G), was expressly overruled.
12. It is thus clear that in order to establish waiver of a notice to quit, the tenant must prove that there was an agreement between the parties to treat the lease as continuing. Waiver is contractual; it is an agreement not to assert a right. That is the proposition which is embodied in Section 113 of the Transfer of Property Act and, ordinarily, as illustration (a) to the section shows, acceptance of rent which has become due since the expiration of the notice is conclusive evidence of such an agreement. Where, however, such payment of rent is made to ensure protection against ejectment, as under any rent control law, and is accepted by the landlord, mere acceptance of rent does not lead to an inference that the parties intend to re-establish the relationship of landlord and tenant. In such a case, mere acceptance of rent, in the absence of any other evidence, does not operate as a waiver of the notice to quit under Section 113 of the Transfer of Property Act.
This view was recently taken by P. N. Mookerjee, J. in the unreported case of -- 'Mahadeo Prasad v. Sm. Sulekha Sarkar', S. A. No. 545 of 1953 which was disposed of on 22-1-1954 since reported in -- ' : AIR1954Cal404 (H)'. In -- 'AIR 1926 Cal 763 (A)', the question of the effect of any rent control law upon the construction of Section 113, Transfer of Property Act was not considered, and we cannot, therefore, regard that decision as any authority on the point raised before us.
13. This decision, for reason with which we agree, did not find favour with the learned Judges wno tried -- 'Navnittal Chunilal v. Baburao (1)' AIR 1945 Bom 132 (I). In -- 'Baldeodas Mahavir Prosad v. G. P. Sonavalla', AIR 1948 Bom 385 (J), which was a case of 'holding over' and to which the Bombay Rent Restriction Act applied, Chagla C. J. observed :
'Now his accepting the rent is attributable either to the fact that in law the tenant has become a statutory tenant and he cannot get possession and he must accept rent from the statutory tenant, or to his agreeing to a new tenancy coming into existence and the tenant becoming his tenant under the new tenancy. Therefore, in our opinion, in every case what has to be determined is whether the acceptance of rent is attributable to the statutory tenancy which carne into existence on the notice to quit having expired, or to tile landlord assenting to a new tenancy coining into existence. The acceptance of rent by itself is no longer as unequivocal an act as it used to be before Act 7 of 1944 came into force.'
14. In -- 'Saiiabala Dassee v. H. A. Tappassier' : AIR1952Cal455 (K), Mr. Justice S. R. Das Gupta, following -- 'AIR 1945 Bom 132 (I)', took the same view. The view taken by Sarkar, J. in -- 'Manindra Nath De v. Man Singh', : AIR1951Cal342 (L), was also to the same effect, although the learned Judge made no specific reference to illustration (a) to Section 113, Transfer of Property Act. In -- 'Surendra Chandra v. Sm. Panchi Bibi', 83 Cal LJ 328 CM). Mr. Justice P. B. Mukharji's observations on the subject of the applicability of the proposition laid down in -- 'Davies v. Bristow, (D)' were with reference to the particular facts before him and cannot be regarded as laying down any construction other than what we have placed upon Section 113, Transfer of Property Act. In the early case of -- 'Bengal Nagpur Rly. Co. v. Firm Balmukunda Bisweswar Lall', AIR 1923 Cal 663 (N), the learned Judges, Mookerjee and Rankin, JJ. were careful to point out, if we may say so with respect, that the mere fact that the landlord accepted rent after giving a notice to quit could not be taken as a waiver by him of the notice to quit so as to create a new tenancy. With this proposition we respectfully agree. No review of the case law on the subject can be complete without a reference to -- 'Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden' . The View we have taken is amply supported by both the majority and the minority judgments in that case.
15. Mr. Bhose relied upon --'AIR 1949 Cal 47 (B)', for saying that the acceptance of rent in this case raised a presumption of waiver. In our view, no such presumption arises when circumstances disclose that acceptance of rent might be referable either to the fact that under the rent control law in force the tenant has become a statutory tenant or to the landlord's intention to treat the lease as subsisting. In such a case, the onus must be upor the tenant to prove waiver of the notice to quit. For the tenant to succeed, such acceptance must be shown, aliunde, to be attributable only to the landlord's assenting to a new tenancy coming into existence.
16. In our view, in the case before us, the tenant, upon whom lay the onus, failed to establish that the acceptance of rent by the landlord constituted any agreement to treat the lease as subsisting. The rights of the parties were governed by the Rent Ordinance of 1946 whereby a single default exposed the tenant to a decree for ejectment. Therefore, the mere acceptance of rent by the landlord in such circumstances was not conclusive evidence of any waiver of the notice to quit. That being the position, we must hold that there was no waiver on the part of the respondent.
17. In the result, this appeal fails and is dismissed with costs.