1. This appeal arises out of a suit for ejectment of the defendant after service of a notice to quit, on the allegation that be was a tenant at-will. The defendant No. 1, the tenant, had transferred the greater portion of the land to the defendant No. 2. The defence was that the defendant No. 1 had a permanent tenure in the land, having held the same from the time of his ancestors at a rent which had not been varied, that the notice to quit was not sufficient, and that the defendants were not liable to be ejected.
2. The Courts below concurred in decreeing the suit. The defendant has appealed to this Court.
3. There is to doubt that the land has been held by the defendant No. 1 from the time of his ancestors, but the Courts below have found that the rent receipts produced by the defendants are not trustworthy. The learned District Judge says: 'their appeararce is suspicious, their custody has rot been properly proved and in any event they do not show that rent has been paid at a uniform rate for any considerable time.' He further found that there were no substantial structures on the land, and came to the conclusion that the defendant was merely a tenant at will. Having regard to the facts found, we are unable to hold that the Court below was wrong in finding that the tenure was not a permanent one.
4. The plaintiffs alleged that the defendant's grandfather took a settlement of the land for a term of one year by executing a Kabuliyat in 1273, and that on the expiry of the term was holding over as a monthly tenant. The genuineness of the Kabuliyat was challenged by the defendants but the Courts below have accepted the document as geruine. It is contended on behalf of the appellant that the case has not been properly tried. The learned Munsif was of opinion that as the defendants failed to show the tenancy to be permanent, the proof of the Kabuliyat was not essential for the plaintiffs. He, however, observed: 'it is over 30 years old, so proof of custody is all that is necessary with regard to it. The evidence given as to custody is not entirely satisfactory but it may, on the whole, I think, be regarded as adequate.' The learned District Judge considered the matter and accepted the document as genuine, and we do not think the finding of the Court below oh the can be interfered with.
5. It is contended, however, that even upon the Kabuliyat the plaintiffs cannot succeed.
6. The Kabuliyat provides: 'on the expiry of the term of my Pattah I shall be liable to pay the rent of which assessment notice will be served by you, and I shall pay the same. If I do not pay the said rent you may settle with somebody else.' It is contended that the plaintiffs cannot maintain the suit unless it is shown that the plaintiffs served the defendants with notice of assessment of rent, and the defendants refused to pay the same. But the clause appears to refer to the assessment of rent at the time when the lease would expire, i.e., in the year 1274. Under that Clause the landlord was entitled to settle the land with others, if the tenant refused to pay the rent which he might be called upon to pay on the expiration of the term of one year; and this the landlord was entitled to do under the contract and without the service of a notice to quit. But it did not take away the right of the landlord to eject the tenant after service of notice to quit according to law, even if the landlord did not choose to exercise the right to call upon the tenant to pay additional rent and settle the land with others in the eyent of the tenant refusing to pay such rent. It is to be observed that this question was not raised in the Court below. This contention also must, therefore, be overruled.
7. The last contention relates to the sufficiency of the notice to quit. The notice was dated the 8th of Sravan and the tenant was required to leave by the end of the month. The learned District Judge refers to the case of Hari Das Tanti v. Upendra Narain Shaha 16 Ind. Cas. 937; 16 C.L.J. 74. in which it was held that in the case of a tenancy not governed by the Transfer of Property Act, six months' notice is sufficient to terminate it. He then says: 'As regards the question whether the time allowed for removal was reasonable, it was held in the case of Troilokya Nath Roy v. Sarat Chandra Banerjee 32 C. 123; 8 C.W.N. 901 that where a property was leased for a term of years, and not for agricultural or manufacturing purposes, and was held over by the lessee after the expiration of the term then in the absence of an agreement to the contrary the lessee must be deemed to be a tenant from month to month and entitled to only 15 days' notice to quit expiring at the end of the month of the tenancy. The land in the present case was admittedly leased for dwelling purposes only, and as has been said above, the defendant is a tenant at will so that the three weeks' time allowed in the notice must, I think, be reasonable'.
8. Now, in the case of Troilokya Nath Roy v. Sarat Chandra Banerjee 32 C. 123; 8 C.W.N. 901. cited above, the tenancy came into existence after the Transfer of Property Act and the case admittedly fell within the Transfer of Property Act. The lease was for a term of 3 years and the tenant was holding over after the expiry of the term. Section 116 of that Act lays down if a lessee remains in possession after the determination of the lease and the lessor accepts rent from the lessee, the lease is, in the absence of an agreement to the contrary, renewed from year to year or from month to month according to the purpose for which the property is leased as specified in Section 106. Under Section 106, in the absence of an agreement to the contrary, a lease for a purpose other than agricultural or manufacturing purposes must be deemed to be a lease from month to month terminable by a 15 days' notice. In the present case the lease was dated the 9th Assin 1273 (September 1866) and is, therefore, not governed by the Transfer of Property Act, Section 2 of which provides that nothing in the Act shall affect any right or liability arising out of a legal relation constituted before the Act came into force or any relief in respect of such right or liability. The please reserved a yearly rent. It is true the rent was payable according to monthly instalments, but even in the case of permanent tenures such as Patni or Mokarari tenures where a yearly rent is reserved, the rent is payable in many cases according to monthly instalments, and that fact does not show that the rent is a monthly rent. The rent reserved in the lease being a yearly rent, the tenancy can be presumed to be a yearly tenancy; see Sheikh Aklu v. Sheikh Emaman 33 Ind. Cas. 899; 20 C.W.N. 1005 ; 44 C. 403 and there is nothing to rebut the presumption. The tenant was, therefore, holding over as a yearly tenant on the expiry of the term. Section 116 of the Transfer of Property Act, as stated above, lays down that where a lessee holds over, the lease is in the absence of an agreement to the contrary renewed from year to year or from month to month according to the purpose for which the property is leased as specified in Section 108, and that is the ground upon which the decision in Troilokya Nath Roy's case (2) proceeded. But, apart from the fact that the tenancy in the present case is not governed by the Transfer of Property Act, it is to be observed that the provisions of both the Sections 106 and 116 of that Act are subject to an agreement to the contrary. In the present case the tenancy being a yearly tenancy there was an implied agreement to the contrary. In cases governed by the Transfer of Property Act it has no doubt been held that a contract of yearly tenancy cannot be implied from the mention of an annual rent (so as to constitute an agreement to the contrary within the meaning of Section 106 or 116), because the contract must be a valid contrast, and a tenancy from year to year or reserving a yearly rent can be made only by a registered instrument as laid down by Section 107 of the Act [see Debendra Nath Bhowmik v. Syama Prosanna Bhowmik 11 C.W.N. 1124 and Sheikh Aklu v, Sheikh Emaman 33 Ind. Cas. 899 ; 20 C.W.N. 1005 ; 44 C. 403.]
9. In the present case the lease came into existence not only long before the Transfer of Property Act, but also before the Registration Act, VIII of 1871, which for the first time laid down that a lease of immoveable property from year to year or reserving a yearly rent required registration. At the time when the lease in the present case was granted, Act VI of 1866 was in force, and under that Act only leases for any term exceeding one year required registration, and there was no provision in that Act that a lease from year to year or reserving a yearly rent was to be registered. That being so the agreement of a yearly tenancy, which is implied from a yearly rent, having been reserved by the lease was a valid agreement. The reasons, therefore, upon which Troilokya Nath Roy's case (2) was decided do not apply to the present case. In cases not governed by the Transfer of Property Act there is no fixed period of notice, and the question has to be decided according to the rules of justice, equity and good conscience having regard to all the circumstances. In the present case the learned Judge has held that a 22 days' notice is reasonable, but he has done so with reference to the decision in Troilokya Nath Roy's case (2) which, as we have shown has no application to the present case.
10. The tenancy has been in existence from 1866, and the question what is a reasonable notice in such a case should not be considered with reference to cases decided under the Transfer of Property Act.
11. The case should, therefore, go back to the lower Appellate Court in order that that Court may come to a finding on the question whether the notice was a reasonable one and decide the case accordingly. Costs will abide the result.