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First Appeal No. 187 of 1959, decided on 24th November 1961.
S. 110 Provisions not applicable to monthly tenancy‑Time, in case of monthly tenancy, to be computed from commencement of tenancy and date of commencement cannot be excluded in computing period.
Benoy Krishna Das and others v. Salsiccioni and others 37 C W N 1 (P C); Usharani Devi v. The Research Industries Ltd. 50 C W N 461; Banchhanidhi Samantraf Lachminarain Agarwala A I R 1950 Orissa, 1; Queen Club Gardens Estates, Limited v. Bignell 1 K B D 117; Kundanmal Dowlatram v. Lakhmichand Chhogmal I L R 45 Bom. 1294 and Calcutta Landing and Shipping Co. Ltd. v. The Victor Oil Co. Ltd. 48 C W N 76 ref.
----Provisions apply only to Central Acts‑Not applicable to words used in private documents.
S. 106‑Notice Mere production of postal acknowledgment receipt without evidence that receipt referred to particular notice sent to addressee‑Not enough for raising presumption that notice was duly served Service of notice by personal delivery or by hanging on gate‑Person, serving or tendering notice, to prove what he had actually served and whether notice served was original or copy‑Evidence Act (I of 1871), S. 114 (e).
S. 106‑Time given for quitting less than statutory period of 15 days‑Notice not valid.
M. A. Khondkar, M. M. G. Hafez and M. R. Khan for Appel lant.
U. K. Roy, M. Huq and S. M. Ameer Azhar for Respondent.
‑This appeal is by the defendant and arises out of a suit for eviction, recovery of possession, etc. It is the plaintiff's case that by an agreement dated 27th August 1952, defendants took monthly tenancy of the premises in question at a rental of Rs. (sic) per month from the 1st of September 1952. The plaintiff has deposed that originally, by an agreement, a lease for 51 years for business purpose was taken but as the same could not be made under law it was not given effect to; that when the lease was created, he had no subsisting title. Defendant has also deposed that the lease was for 51 years. It is the further case of defendant that originally there were thirteen rooms in the premises which were then in dilapidated condition; that defendant has made improvement by increasing the rooms and in many other respects and has converted the premises into a first class hotel where many foreigners come and reside as boarders. This assertion of the defendant has not been, in effect, denied by the plaintiff. It has been claimed by the plaintiff in this suit that on 2‑12‑56, he terminated the tenancy from January 1957, by sending notice under section 106 of the Transfer of Property Act by registered post which was received by the defendant on I1‑12‑56 and by sending another notice under section 106 on 13‑1‑57 by post as well as by personal service and by hanging. The defendant has denied the service of the two notices in to and has pleaded amongst others, insufficiency and invalidity of the notices.
2. Several issues were framed and tried by the learned Subordinate Judge. After hearing the parties, the learned Sub ordinate Judge held amongst others that notice terminating the tenancy was sufficient and valid and was served on the defendant, that the tenancy was terminated and in this view of the matter he too decreed the suit in part. Hence the present appeal.
3. Mr. M. A. Khondkar, the learned Advocate appearing on behalf of the appellant has pressed the following grounds in support of the appeal.
4. The first ground is that there is no evidence disclosing that any notice terminating the tenancy was served on the defen dant. I find substance in this contention. The plaintiff in order to prove the service of notice has examined himself and three other witnesses and has also relied on two postal acknow ledgment receipts. As regards the plaintiff's case that he termina ted the monthly tenancy by a notice dated 2‑12‑56, sent by post, Mr. Roy, the learned Advocate for the respondent has contended that lie does not rely on this first notice, as by terminating, by the second notice, the tenancy after the 1st February 1957, the plaintiff admitted the defendant's tenancy up to 1st of February 1957. I think, Mr. Roy is right in not relying on the service of the first notice and in not supporting the plaintiff's contention that the tenancy was terminated by the first notice.
5. Now coming to the service of second notice, I find from the evidence of Abdul Latif (P. W. 1), the plaintiff himself, that he sent a notice under section 106 of the Transfer of Property Act terminating the tenancy by registered post. He has further deposed that the notice mas signed by the plaintiff as well as by his Pleader, but no copy of such notice has been produced by the plaintiff before the Court. The postal receipt has not been filed in this case, nor, the plaintiff has been corroborated by any other witness. He has neither examined the Pleader nor the postal peon who served the notice. From Exh. 2(a) the acknow ledgment receipt, it appears that the notice was served on a certain person other than the defendant on 19‑1‑57, which apparently is not a valid notice, inasmuch as, from the date of service, 15 days' notice was not given. Furthermore from Exh. 2(a) it appears that it bears two seal marks of the post office, dated 21st and 22nd January of 1957, which are apparently after the delivery on 19‑1‑57. There is also no seal on this receipt bearing date earlier to 19‑1‑57 the date on which the notice is claimed to have been served. Nor it has been proved on whom it was served. These things throw doubt about the genuineness of this Exh. 2 (a). In these circumstances, I hold that no notice by post was served on the defendant terminating the tenancy.
6. The plaintiff has also claimed personal service and service by hanging. As to the personal service the plaintiff's evidence is that he does not know anything about service of notice on the defendant. So his evidence is of no help. There remain only two other witnesses, namely, P. Ws. 2 and 3. P. W. 3 is the grand son of the plaintiff and he is only 18 years old. He claims to have served the notice on the defendant. It appears from his evidence that he handed over an envelop to the defendant who after reading the same threw it away, whereupon P. W. 3 picked it up and went to the Pleader's house where he wrote out the return and that P. W. 2 accompanied him to the house of the Pleader of the plaintiff. P. W. 2 has corroborated P. W. 3 so far as handing over an envelop to the defendant; but he has contradicted P. W. 3 by saying that P. W. 2 after picking up the envelop etc., went to the house of P. W. 2 where P. W. 3 wrote out the return and he signed the return. He has further deposed that he has not seen the contents of the documents. P. W. 3 Sarfuddin Ahmed has not also stated that he knew the contents of the document. These two witnesses have not stated that Exh. 1(a) is a copy of the original which was served personally. From the evidence of P. Ws. 2 and 3 I find that there are material contradictions, that they have not proved what kind of notice was served on the defendant and what were the contents thereof and as such the plaintiff has totally failed to prove the personal service of notice under section 106 of the Transfer of Property Act terminat ing the monthly tenancy.
7. Then remains the service by hanging. The plaintiff has examined only three witnesses for this purpose. They are P. Ws. 2, 3 and 5. The plaintiff has denied any personal knowledge of service of notice on the defendant. P. W. 3 has stated that at noon he went to the hotel of the defendant and in his absence he served a notice by hanging. He has further deposed that P. W. 2 accompanied him from the house of the Pleader to the hotel. But P. W. 2 has deposed that when he was going to take his bath, P. W. 3 took him to the hotel and served the notice by hanging; that after coming back from his bath he signed the return and none was present when he signed the return; that he did not read what was written in the paper. So P. W. 2 has contradicted P. W. 3 the person who served the notice by hanging in material particulars and as such no reliance can be placed on evidence of P. Ws. 2 and 3. P. W. 5 Syed Barasat Ali is nothing but a chance witness. I do not place any reliance on his evidence. Further more, it appears that none of these P. Ws. has proved Exh. 1 (a) as none of them has deposed that Exh. 1 (a), is the original copy of the notice that was served by hanging. They have not given the contents of the notice, nor they have deposed that they read and knew all the contents of the notice. So from the evidence of these witnesses I am unable to find what was served by hanging. The evidence that has been given by these three witnesses is that a notice was served, and nothing more. In these circumstances, I am constrained to hold that the plaintiff has totally failed to prove that a notice under section 106 of the Transfer of Property Act terminating the tenancy, was served on the tenant and that as such the defendant is still a tenant and not a trespasser as claimed by the plaintiff. Hence the suit for eject ment is not tenable against the defendant.
8. In this connection another nice point has been raised in this case, that is, what will be the date of inception of a monthly tenancy. It has been held by the learned Subordinate Judge and also contended by the learned Advocate for the respondent that in view of the provision of section 110 of the Transfer of Property Act, the first day of the commencement of the tenancy will be excluded in computing the time of the tenancy and as such the notice given, terminating the tenancy by the 1st of February, is a valid one. Mr. Roy has also relied on the decision of the Judicial Committee in the case of Benoy Krishna Das and others v. Salsiccioni and others (37 C W N 1 (P C)).
Relevant provision of section 110 of the Transfer of Property Act is as follows:
"Where the time limited by a lease of immovable property is expressed as commencing from a particular day, in com puting that time such day shall be excluded. Where no day of commencement is named, the time so limited begins from the making of the lease."
9. Now, the question is whether this provision of section I 10 of the Transfer of Property Act is applicable to a monthly tenancy. From the aforesaid provision it appears that the provision will apply to a tenancy whose time has been limited by the lease of the immovable property which has been expressed as commencing from a particular day. The words "time limited" are very relevant for the purpose of determination to what cases section 110 of the a Transfer of Property Act is applicable. In my opinion, these two words indicate that this provision will apply only to a lease of immovable property where the lease is for a limited period and the period is expressed and in no other case. Now the question is whether monthly tenancy comes under such a category of lease. In my opinion, the monthly tenancy is not for a limited period but for an indefinite time subject to termination of the tenancy at the option of the lessor. It does not limit any time, but it conti nues indefinitely till it is terminated. So in no way, it can be said that a monthly tenancy is for a limited period and falls within the category of leases as contemplated by the aforesaid provision of section 110 of the Transfer of Property Act.
10. Mr. Roy has also relied on a certain decision and con tended that in the case of a monthly tenancy at least the period is fixed for the first two months. I cannot give countenance to such argument, because apparently this contention is not tenable. In a monthly tenancy both lessor and the lessee generally have the right to terminate the tenancy by giving 15 days notice ending with the expiry of each month. So even in the first month of monthly tenancy either lessor or the lessee can terminate the tenancy by giving 15 days notice by the middle of the first month of the tenancy. Accordingly, I hold that the aforesaid pro vision of section 110 of the Transfer of Property Act has no application in computing the period of monthly tenancy.
11. As regards the decision of the Judicial Committee relied on by the learned Advocate, I find that this case has no application to a monthly tenancy. In this case there was a written lease for five years and on the expiry of the fixed period, the tenant held over and he became a monthly tenant. Their Lordships of the Judicial Committee applied section 110 only to the case of the lease for five years but did not apply section 110 while computing the time of the monthly tenancy.
12. In this connection if a reference be made to section 105 of the Transfer of Property Act, it is doubtful whether the monthly tenancy is a lease under section 105 of the Transfer of Property Act, because section 105 lays down that a lease of immovable property is a transfer of a right to enjoy such property made for a certain time expressed, implied or in perpetuity but the monthly tenancy is neither for a certain time expressed or implied or in perpetuity. Be that as it may, I have already held that section 110 has no application to a monthly tenancy and in computing the time of monthly tenancy it must be computed from the commencement of the tenancy and the date of commencement should not be excluded in computing the period. In this connection reference may be made to the case of Usharani Devi v. The Research Industries Ltd. (50 C W N 461) and to the case of Banchhanidhi Samantrai Lachminarain Agarwala (A I R 1950 Orissa 1).
13. The second branch of argument of Mr. Roy is that in paragraph 1 of the plaint the word from has been used with regard to the commencement of the tenancy. This word from according to him, means from the midnight of the 1st September, as such the monthly tenancy commenced from the 2nd of September. He has also relied on section 9 of the General Clauses Act and the case of Queen Club Gardens Estates, Limited v. Bignell (I K 19 D 117).
14. As to the word from the plaint, this is a mere statement of facts. It does not disclose what were the term of the lease Neither in the plaint it has been asserted that in the agreement for lease the word from' was used. So non‑averment by the defendant in his written statement as to the use of the word from' does not in any way go to show, that one of the words used in the terms of the agreement was from' and as such no importance can be attached to the said word. Now coming to section 9 of the General Clauses Act find that it only applies to the Central Act. It has no application to words used in air, private document. Similarly the case cited by the learned Advocate for the respondent is not of any use to Mr. Roy. Furthermore, I have already pointed out that in the case of a monthly tenancy the first day of the inception of the tenancy will not be excluded but will be included in computing the period of the monthly tenancy. Hence I find that there is no substance in this contention also.
15. Mr. Khondkar, the learned Advocate for the appellant has also pressed some other grounds one of which is that the plaintiff served notice to quit on the ground of bona fide require ment. But the evidence will show that he does not require the premises for his residence, inasmuch as, the house is not suitable at all for residential purpose. It has been further contended by the learned Advocate for the appellant that the plaintiff, finding that the premises has been converted into a first class hotel, has become greedy and has filed this suit in order to ruin the defendant and his business. Another ground urged by Mr. Khondkar is that even accepting that the plaintiff requires three or four rooms for his residential purpose which is apparent from his evidence, he can at best get partial eviction and for this proposition of law he has relied on the case of Kundammal Dowlatram v. Lakhmichand Chhogmal (I L R 45 Bom. 1294). Lastly, it has been contended by the learned Advocate that his client is ready to advance money to the plaintiff for construction of a residential house for the plaintiff in a vacant piece of land adjacent to the premises but the plaintiff has refused; and that all these will go to show that the claim of the plaintiff for residence is not bonafide. Be that as it may, I do not want to express any view on these matters as I have already found that the defendant is still a tenant under the plaintiff and his tenancy has not been terminated by the plaintiff.
16. In the result, the appeal is allowed with costs.
The judgment and the decree of the trial Court are set aside and the suit is dismissed with costs.
‑This appeal is by the plaintiff and it arises out of a suit for ejectment of the defendant from the suit property and for arrears of rent and for damages. The facts material to the determination of the appeal are as follows.
17. The plaintiff is the owner of the premises in municipal holding No. 27, B. K. De Road at Khulna town. The said premises was let out to the defendant as a monthly tenant and his tenancy commenced from the 1st of September 1952. These facts are not disputed. The plaintiff required the premises for his own occupation and as the defendant refused to vacate the house wherein he had been running a flourishing hotel, the plain tiff served on the defendant notices to quit and on non‑compliance with them, instituted the suit after having first obtained the necessary permission of the Rent Controller to that effect. The plaintiff had been living with his family in a hired kutcha house in Khulna town at great inconvenience.
18. The defendant disputes the bona fide requirement of the premises by the plaintiff and also challenges the validity and service of the notices to quit. The defendant, avers that he has made considerable improvement, by way of additions and altera tions at considerable expenses with the knowledge and consent of the plaintiff.
19. Mr. M. A. Khondkar, the learned Advocate, who appears on behalf of the appellant, has first of all challenged the validity of the two notices to quit, namely, Exh. 1, dated 2‑12‑56 and Exh. 1 (a) dated 13‑1‑57. His contention is that as there is no dispute as to the date of the commencement of the tenancy, namely, the first of September 1952, the aforesaid two notices telling the defendant.
" .to quit and vacate and deliver up possession to my client of the said premises as described below immediately on expiry of the current month of tenancy with end of the current month of tenancy that is, after 1st day of January 1957, your monthly tenancy shall cease, and determine . . ." and
" . . . to quit and vacate and deliver up possession to my client of the said premises immediately on expiry of the current month of tenancy. With the end of the current month of tenancy, that is, immediately after the 1st day of February 1957, your monthly tenancy shall cease and determine . . . "
respectively are not good in law and are, therefore, of no effect.
20. Mr: Roy, who has appeared on behalf of the respondent, has sought to meet this contention by saying that under section 110 of the Transfer of Property Act, the date on which the tenancy commenced has to be excluded and, therefore, the notices are perfectly in order. Mr. Roy has tried to support this point by citing the decision of the Privy Council in the case of Benoy Krishna Das and others v. Salsiccioni and others. In my opinion, Mr. Roy's contention is based upon an erroneous in terpretation of section 110 of the Transfer of Property Act and mis-understanding of the said Privy Council case as will be apparent presently. Section 110 of the Transfer of Property Act so far as it is material for the determination of this question runs as follows:
"Where the time limited by a lease of immovable property is expressed as commencing from a particular day, in computing that time such day, shall be excluded . . . "
In my opinion, in the case of a monthly tenancy there is no "time limited by a lease", such as is contemplated under section 110 of the Transfer of Property Act. It has been held in a number of cases that section I l0 of the Transfer of Property Act does not apply to a monthly tenancy. It is sufficient to mention only three of them here.
21. In the case of the Utility Articles Manufacturing Co. (original defendants) v. The Raja Bah‑rdur Motilal Bombay Mills Ltd. (I L R 1943 Bom. 553), a Division Bench of the Bornbay High Court presided over by Beaumont, C. J., clearly held that section 110 of the Transfer of Property Act did not ply to a monthly tenancy. Similar was the decision in the case of sanchhajddhi Samantrai v. Lachminarain Agarwala (A I R 1950 Orissa 1).
22. In the case of Usharani Debi v. Tire Research Industries Ltd. (50 C W N 461) of the, Calcutta High Court considered the aforesaid Bombay case and agreed with the view expressed therein, namely, that section 110 did not apply to monthly tenancy. The learned Judge in course of his judgment at page 4A4 also drew attention to the words "where the time limited for a lease" in section 110 of the Transfer of Property Act, and in effect held that in a monthly tenancy the period is unspecified and the tenancy is terminable upon giving a notice to quit. The learned Judge also considered the case of Calcutta Landing and Shipping Co. Ltd. v. The Victor Oil Co. Ltd. (48 C W N 76) decided by a Division Bench of the Calcutta High Court.
23. As regards the Privy Council case reported in 37 C W N page 1, a perusal of the judgment makes it crystal clear that the Judicial Committee of the Privy Council applied the provision of section 110 of the Transfer of Property Act to a written lease which commenced from the first June 1921, and which was for a period of four years thence next ensuing for the purpose of deter mining as to when the monthly tenancy which subsequently came into existence as a result of the holding over by operation of section 116 of the Transfer of Property Act actually com menced from. The following passage from the judgment of the Judicial Committee makes it clear:
"That being so, it must be taken that the lease ended at midnight on the 1st of June 1925, and that any notice to determine thereafter given must be a notice to quit expiring with the month ending at midnight on the first day of any month. The notice in fact given on the 1st of February 1928, clearly is a notice in regard to the 1st of March 1928, and not in regard to the 29th of February 1928. It, therefore, is a notice which, in the language of section 106, expired with the end of a month of the tenancy, because the month of the tenancy expired at midnight on the 1st of March 1928."
24. It may be mentioned that the Privy Council case re ported in 37 C W N page 1, came in for consideration in the following case: The Utility Articles Manufacturing Company v. The Raja Bahadur Motilal Bombay Mills Ltd; Banchhanidhi Samantrai v. Lachminarain Agarwala; Usharani Devi v. The Re search Industries Ltd., and Calcutta Landing and Shipping Co. Ltd. v. The Victor Oil Ltd. In all of them it was held that the Judicial Committee of the Privy Council never applied the pro visions of section 110 of the Transfer of Property Act to a monthly tenancy.
25. The law now is well settled that a monthly tenancy is terminable by at least 15. days notice expiring with the end of a month of the tenancy, for example, if a monthly tenancy com mences from the 1st of a month, according to British Calendar, the tenancy is terminable with the expiry of the 1st day of a month. These have been held in the cases just mentioned above. There fore, there is no doubt whatsoever that the notices in the present case are not valid in law. The appeal should succeed on this ground alone.
26. The appellant has next contended that even if the notices be held to be good there is no evidence to show that they were served upon the defendant. In my opinion, this contention must also be accepted. In regard to the first notice, Exh. I dated 2‑12‑56, there is no credible evidence to show that in fact it was posted to the tenant‑defendant so as to give rise to a legal presumption that it must have reached the address. The plaintiff's case is that this notice was served by registered post but no postal registration receipt, which is the best evidence in this case, has been produced. Even the lawyer who is said to have written and signed the notice was not examined to prove that he wrote and sent it to the tenant. In these circumstances it is difficult to hold that the notice was legally served upon the defendant. It is true that the postal acknowledgment receipt Exh. 2, dated 11‑12‑56, has been produced to show that the notice was in fact served upon the defendant. In the absence, however, of any evidence whatsoever, that this postal acknowledgment receipt referred to the particular notice sent to the defendant, I am unable to treat the acknowledgment receipt as a valid service of the notice in question upon the defendant.
27. As regards notice Exh. 1(a) dated 13‑1‑57, the plaintiff claims that he employed all three modes envisaged by section 106 of the Transfer of Property Act in serving it upon the defendant, namely, (1) it was served by registered post (2) it was served personally (3) and it was affixed to a conspicuous part of the property.
28. As to the first mode my observation in respect of posting in regard to the first notice Exh. 1, dated 2‑12‑56, applied to the posting of this notice too. The postal acknowledgment receipt is Exh. 2(a) dated 19‑1‑57. It was contended by the learned Advocate appearing on behalf of the appellant that, at any rate, the particular notice in question was not sufficient under the law inasmuch as the time given for quitting was less than the statutory period mentioned in section 106 of the Transfer of Property Act.
29. As regards the second mode of service, namely, personal delivery P. W. 3 Sarfuddin Ahmed, who is alleged to have served the notice on the defendant personally, does not prove what notice he actually served upon the defendant. He does not say that what he served upon the defendant, or attempted to serve on him, was either the original or a copy of the notice Exh. 1(a) dated 13‑1‑57. On the contrary, his evidence does not disclose that he himself was aware of the contents of the envelope which he delivered to the defendant and which the latter after reading threw away. On this evidence it is difficult to hold that a good personal service was affected.
30. There remains the 3rd mode of service, namely, by affixing the notice on a part of the property. P. W. 3 Sarfuddin Ahmed merely says that he served another notice by hanging it up on the gate of the hotel. He does not say what particular notice he hung up or that what he hung up was either the original or a copy of notice Exh. 1 (a) dated 13‑1‑57.
31. It will thus be seen that there is absolutely no satis factory evidence to prove legal service of any one of the two notices Exh. 1 and 1 (a).
32. As we have decided to allow the appeal on grounds of invalidity of the notices and of want of evidence to prove the legality of the service of the said notices, I refrain from making any observation in regard to the bona fide requirement of the disputed houses by the plaintiff. I respectfully agree with the orders passed by my learned brother in this appeal.
K. B. A./A. H.
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