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Appeal from Appellate Order No. 48 of 1959, decided on 13th April 1961.

S. 106‑Notice, validity of‑"To vacate on or before a date" being date of termination of lease‑Notice valid.

Prafulla Chandra Nagh and Md. Yahya for Appellant.

Serajul Haq for Respondent.

This appeal at the instance of the defendant is directed against the order of remand passed by the First Appellate Court.

2. The relevant facts are shortly as follows:

Plaintiff' instituted suit for the ejectment of the defendant after service of notice under section 106 of the Transfer of Property Act. The lease was created by a registered document for the period of two years from 1st of 1357 B. S. to Jaistha 1359 B. S. The defendant held over after the expiry of the period mentioned in the deed of lease. On the 18th August 1957, corresponding to the 1st of Bhadra 1364 B. S., notice was issued by the plaintiff' to the defendant to vacate on or before the first day of Aswin, 1364 B. S. The learned Munsif held that the notice was bad, as the defendant was not directed to vacate by the expiry of the first day of Aswin, 1364 B. S. The suit was accordingly dismissed on the preliminary issue that it was bad for want of valid notice under section 106 of the Transfer of Property Act. On appeal, the learned Additional District Judge held that a notice to quit on or before a date, being the date on which the lease terminated, was valid notice to quit. Accordingly, the learned Additional District Judge allowed the appeal, set aside the order of dismissal of the suit and sent the case on remand for decision on other points. So, this appeal at the instance of defendant:

3. Mr. Nag, the learned Advocate for the appellant, con tends that the notice is bad, as the defendant was asked to vacate on or before the first of Aswin, 1364 B. S. although the lease would terminate by the midnight of 1st Aswin, 1364 B. S. In the support of this contention reference is made to the case of Benoy Krishna Das and others v. Salsiccioni and others (37 C W N 1) and the case of Sushil Chandra Neogy and others v. Birendrajit Shaw (38 C W N 782).

4. In the case before me the lease is for two years commencing from the 1st day of Baisakh, 1357 B. S. upto Jaista 1359 B. S. So, the lease expired on the 1st Baisakh 1359 B. S. But as the defendant held over after the expiry of the period of lease, under the terms of section 106 of the Transfer of Property Act, the tenancy was terminable thereafter by 15 days notice expiring with the end of a month of the tenancy. In this case notice was issued to the defendant on the 1st day of Bhadra 1364 B. S. asking him to vacate on or before the 1st day of Aswin, 1364 B. S. For the fact that by the notice the defendant was asked to vacate on or before the 1st day of Aswin, 1364 B. S. it cannot be held that the notice was bad. In the case reported in 37 C W N 1, there was no mention that the defendants would vacate by the expiry of the 1st March 1928 or by the midnight of 1st March, but yet it was held by their Lordships that the notice was valid. The notice in that case was in the following terms: --‑

"We hereby give you one month's clear notice to take effect from to day. By this you must understand that we shall hold possession of the above premises up to the last day of this month and would shift from here just on the 1st proximo, please take note of the same".

Mr. Nag also referred to the case of Sheikh Nuroo v. Seth Meghraj Ramkaran Marwadi in support of his contention that the notice in the present case was bad. In that case, notice was given to vacate by the 10th July, 1932. It was held that the word b' did not exclude the day mentioned but included that date and it was held that the notice was a valid one. So, this case does not go to help the appellant.

5. In the case of Ismail Dada Bhamani v. Bai Zuleikhabai (A I R 1944 Bom. 181) it has been held that a notice to quit on or before a date, being the date on which the tenancy expires, is a good notice and the notice issued in this case asking the defendant to vacate on or before Aswin 1364 B. S., is a valid notice. There is therefore, no ground to interfere with the order of the First Appellate Court.

6. In the result, this appeal is dismissed. Costs of this appeal will abide the result.

S. B./A. H.

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