1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.561 OF 1991 === Smt. Yamunabai Gulabrao Bhagat, (Died) through her legal representatives 1. Chingabai Maroti Nimbalkar, age 50 yrs, Occ. Household, r/o karjat, (Near Kakade Hospital,) Dist Ahmednagar. 2. Krishnabai Prakash Modi, age 53 yrs, occ. Household, r/o Karjat, (near BEO Office) Dist. Ahmednagar. Appellants orig. defendants. Versus Purushottam Ramchandra Dhokate, age 35 yrs, Occ. agriculture, r/o Pategaon, Tq. Karjat, Dist. Ahmednagar. Respondent orig. plaintiff. U.S. Bora, advocate for the appellant. === CORAM: R.K. DESHPANDE, J. DATE : 23 rd SEPTEMBER, 2009. PER COURT :- 1. This appeal has been preferred by the original 2 defendant-tenant. The respondent No.1 Purushottam is original plaintiff-landlord who filed RCS No.43/1979 on 03.04.1979, for recovery of possession of Grampanchayat house No.571 area 25Ft x 80 Feet located at Karjat, on the basis of a notice dated 16.08.1977 issued under section 106 of the Transfer of Property Act. The said civil suit was dismissed by the trial Court by holding that notice dated 16.08.1977, issued under section 106 of the Transfer of Property Act was not served upon the appellant-defendants. In RCS No. 286/1988 preferred by the respondent No.1 plaintiff, the appellate court reversed the judgment and decree passed by the trial court and decreed the suit filed by the respondent No.1-plaintiff for possession of the suit property. The appellate Court held that the trial court had committed an error in holding that the notice dated 16.08.1977 issued under section 106 of the Transfer of Property Act was not served upon the appellant-defendant. 2. This is how the present appeal has been preferred. The appeal was admitted. On 10.07.1992 substantial question of law at Sr.No.1,2,3 and 4 in relation to the service of notice dated 16.08.1977 3 at Exh.23 were framed. Shri Bora the learned counsel for the appellant has urged that there was no clear 15 days notice under section 106 of the Transfer of Property Act terminating the tenancy of the appellant at the end of tenancy month, which was served upon the appellant-defendant. According to Shri Bora, the provision of Section 106 of the Transfer of Property Act was mandatory and in the absence of such valid notice, suit was liable to be dismissed. The learned counsel further fairly pointed out that this point was not raised in both the Courts below, however, he urged that this being a question of law, not involving any further adjudication on facts can be considered even in second appeal. 3. It is not now necessary to consider the question urged by the learned counsel for the appellant, for the reason that the provisions of section 106 of the transfer of Property Act has undergone change which has been fairly pointed out by the learned counsel for the appellant. Section 106 as it now stands of the Transfer of Property Act runs as under :- 106. Duration of certain leases in absence of written contract or local usage :- 4 1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice ; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee by fifteen days’ notice. 2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. 3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. 4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous party of the property. 4. Sub section 3 of section 106 clearly states that notice 5 under sub section (1) shall not be deemed to be in valid merely because the period mentioned there in falls short of the period specified under that sub section, where q suit or proceedings is filed after expiry of the period mentioned in that sub section. The learned counsel has urged that the provision would operate prospectively and it shall not have any effect upon the proceedings of the civil suit which according to him are rendered invalid, on account of want of valid notice under section 106 of the Transfer of Property Act, as it stood earlier. 5. It is not in dispute that the point of law urged was not raised before the Courts below and hence there is no adjudication by both the Courts below on the said question. Apart from this, in view of the amended provisions of sub section (3) of section 106 of the Transfer of Property Act, reproduced above, the proceedings of civil suit shall not become invalid, even if it is assumed that notice under section 106 of the transfer of Property Act was not duly issued or served upon the appellant-defendant. The amended provision operates prospectively and would apply to pending suits or 6 appeals. In that view of the matter, I do not find any substance in the present appeal and same is therefore dismissed without any order as to costs. ( R.K. DESHPANDE ) JUDGE aaa/561.91 ***