( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 396 OF 1990 Ramnath Ganpati .. Appellant Age. 33 years, Occ. Paper Agent, [Ori. defendant] Near Bus-stand, Paithan, Dist. Aurangabad. Versus 1. Chetandas s/o. Zatmaldas Panjwani .. Respondents (since deceased) [Ori. plaintiffs] legal representatives - a) Harkishan s/o. Chetandas Panjwani Age. 33 years, Occ. Business, R/o. Paithan, Dist. Aurangabad. b) Indirabai w/o. Rameshlal Kmora, Age. 22 years, Occ. Household, R/o. Paithan, Dist. Aurangabad, At present – Nandurbar, Dist. Dhule. c) Anjana d/o. Chetandas Panjwani, Minor u/g of real mother - Nirmalabai w/o. Chetandas Panjwani, Occ. Household, R/o. Paithan, Dist. Aurangabad. d) Kamlabai d/o. Chedandas Panjwani, Age. 19 years, Occ. Household, R/o. Paithan, Dist. Aurangabad. e) Nirmalabai w/o. Chedandas Panjwai, Age. 46 years, Occ. Household, R/o. Paithan, Dist. Aurangabad. ( 2 ) Shri A.A. Joshi, Advocate for the appellant. Shri P.F. Patni, Advocate for the respondents. CORAM : P.R. BORKAR,J. RESERVED ON : 09.07.2009 PRONOUNCED ON : 14.07.2009 J U D G M E N T :- 1. This is an appeal preferred by the original defendant being aggrieved by the decree of eviction and payment of arrears of rent passed by the 4th Additional District Judge, Aurangabad in Regular Civil Appeal No. 183 of 1986, decided on 23rd August, 1990, whereby the Additional District Judge reversed the dismissal of the suit and findings of facts recorded by the Jt. Civil Judge, Junior Division, Paithan, in Regular Civil Suit No.120 of 1982, decided on 20th February, 1986. Original plaintiff Chetandas who died pending appeal in the District Court, was represented by his legal representatives. 2. It is case of original plaintiff Chetandas that he was owner of Room No.6, House No.2078, situated at Saliwada, ( 3 ) Tal. Paithan, Dist. Aurangabad. The defendant was in occupation of premises as tenant from 1st January, 1979. Monthly rent was Rs.50/-. The tenancy month started on first day of every month and ended on last day of that month. The defendant/appellant did not pay rent from October, 1981 to March, 1982 and therefore a notice was issued by the plaintiff on 6th March, 1982 as per Section 106 of the Transfer of Property Act and terminated tenancy of the appellant/defendant. Since the appellant did not vacate the suit premises, the suit was filed for possession and arrears of rent. 3. Present appellant appeared and filed written statement. He admitted that he was tenant, however, he denied that original plaintiff Chetandas was owner or lessor. It is stated that brother of plaintiff Chetandas by name Santumal was owner of the property. It is also stated that the notice given by Chetandas is illegal and invalid as there was no agreement of tenancy between Chetandas and the appellant and in the circumstances the suit is also dismissed. 4. The Trial Court held that there was no relationship ( 4 ) of lessor and lessee between Chetandas and the appellant. The agreed rent was not Rs. 50/- . It is not proved that the defendant was in arrears of rent. The notice was not legal and valid and after answering all issues against the plaintiff - Chetandas, the suit was dismissed. On the other hand, in the appeal, the Additional District Judge reversed the findings on all points and held that Chetandas was the lessor and the suit filed by him is tenable and the notice given by him is legal and proper. The agreed rent was Rs.50/- per month. The appellant was in arrears of rent. The learned Additional District Judge allowed the appeal and passed decree of possession and arrears of rent. It is this judgment and decree which is challenged in this Second Appeal. 5. This appeal is admitted by order dated 18.12.1990 on the following substantial question of law:- “In the absence of pleading that lessor was Santaram and not plaintiff and when notice was given by Santaram, whether there was sufficient compliance of Section 106 of the Transfer of ( 5 ) Property Act?” 6. The Trial Court has observed while considering issue No.1 that Chetandas did not enter into witness box. His brother Santumal @ Santaram was examined as holder of power of attorney of the plaintiff. Though Santaram has stated that he was deposing as holder of power of attorney of his brother Chetandas, actual agreement of lease was between the appellant and Santaram @ Santumal. Santaram and his witness D.W.2 Shaikh Mohammad both have stated that at the time of agreement of rent only Santumal and appellant were present; Chetandas was not present. In cross- examination Santumal has also stated that he had instructed the advocate for issuing notice. The rent was collected by Santaram. In all these circumstances the Trial Court held that there was no relationship of lessor and lessee between the appellant and original plaintiff Chetandas. 7. On the other hand the Additional District Judge has observed that Chetandas was owner of the property. Santumal was his agent and in the circumstances there was relationship of lessor and lessee between the plaintiff Chetandas and the ( 6 ) appellant/defendant. Though instructions for notice were given by Santaram, in-fact, the notice itself shows that the notice was given by Chetandas. Reliance was placed on Laxman Sadashiv Pandre V/s. Janabai Rajaramji Ambagade, 1986 Mh.L.R. 413. Therein the Court considered various provisions of the Contract Act. The appellant/defendant did not enter into witness box. The appellant wants to rely on certain admission by P.W.1 Santaram and D.W.2 Shaikh Mohammad. 8. In his evidence P.W.1 Santaram has stated at Exh.40 that he was deposing on behalf of plaintiff Chetandas as holder of power of attorney. He produced certified copy of deed of power of attorney with list Exh.34. He also explained that the original was yet to be received from the office of Sub-Registrar. In the circumstances, there was no reason not to consider the copy of power of attorney, as secondary evidence could have been allowed in the circumstances of the case. D.W.1 Santram further stated that the premises were let out to defendant in January,1974 by him. The agreed rent was Rs.50/-. The premises was let out for 11 months. The tenancy month also started on first day of every month and ended on last day of every month. The ( 7 ) agreement took place at the house of Chetandas. Santaram, one Ramdas, Shaikh Mohammad and the appellant were present. Chetandas was not present. Then he said that he issued notice. He proved Exh.44. He also stated in para 7 that Chetandas kept account of rent received in the note book that is produced with list Exh. 33. It is in Sindhi language. The defendant did not reply the notice nor vacated the house, so he filed the suit. In cross-examination it is admitted that the agreement took place in the house of Santaram at about 10.30 a.m. The rent was paid to Santaram. He is also called Santumal. It is denied by Santaram that he told the appellant Ramnath that he was owner. Santaram stated that defendant asked whether Santaram wanted to let out premises and he answered in the affirmative. It is further admitted that Santaram went to the advocate and instruct him and thereafter notice was issued. Santaram also instructed advocate at the time of filing the suit. 9. If we have glance at the copy of power of attorney produced on record it appears that it is dated 07.10.1985 and thereby Chatandas who was 65 years of age has stated that he had become old and he was unable to attend the Court again ( 8 ) and again and would not be in a position to give deposition, so he was giving authority to his brother Santaram to look after his litigation and depose on his behalf. 10. Notice Exh.42 is issued through the advocate and the opening words are that - Chetandas Panjwani had given him instructions and authority and engaged him as an advocate and as per his instructions the notice was being given. So, it was abundantly clear that notice was given on behalf of Chetandas. It was also stated therein that the house was owned by Chetandas and the premises belonging to Chetandas was taken on rent by the defendant/appellant. The notice is as per Section 106 of the Transfer of Property Act. So there is no legal infirmity regarding its contents. 11. In the case of Laxman V/s. Janabai (Supra) this Court in para 11 & 12 observed as follows:- “11. Section 192 of the Indian Contract Act defines what is an “agent” and a “Principal”. An “Agent” is a person employed to do any act for another, or to represent another in dealings with third persons. The person for whom such act is ( 9 ) done, or who is so represented, is called the “Principal”. Under section 183, any person who is of the age of majority according to the law to which he is subject, and who is of sound mind, may employ an agent. Section 185 provides that no consideration is necessary to create an agency. Now, the next two provisions of Contract Act, viz. Sections 186 and 187 are important for the purpose of the present case; section 186 says : “The authority of an agent may be expressed or implied” and Section 187 states: “An authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case.” 12. The relationship of Principal and Agent may be constituted by (a) express appointment (b) by implication of law from the conduct or situation of parties or from the necessity of the case, or (c) by subsequent ratification by the principal. Since no consideration is required to create an agency and since the authority of an agent could be expressed or implied and that authority could be expressed even by words “spoken” or “written” and it can be implied when it could be ( 10 ) inferred from the circumstances of the case and things spoken or written, or the ordinary course of dealing, then each case of an agent representing the principal, and his authority could be inferred from the circumstances as may be accruing in a given case.” . After referring to Section 106 of the Transfer of Property Act and after considering Sections 192, 186 and 187 of the Contract Act, it is ultimately observed that the husband was mere agent of the wife who was real lessor and in the facts and circumstances of the case, the tenancy was properly terminated. 12. In the facts and circumstances of the present case, the appellant either by way of evidence or by way of reply to notice, nowhere denied that the property was owned by Chetandas. It may be noted that there is specific averment to that effect in the plaint, so also there is statement in the notice. Said notice was not replied. At Exh.41 there is municipal record to show that house stood in the name of Chetandas. Even Shaikh Mohammad has specifically stated that Chetandas was the owner of the premises. At the outset of ( 11 ) his deposition Santaram made it clear that he was deposing on behalf of his brother as holder of power of attorney. There is no evidence to show that Santaram was owner of the property. The appellant did not lead any evidence on this aspect. 13. Under Section 105 of the Transfer of Property Act, terms “leases”, “lessor”, “lessee”, “premium” and “rent” are defined. “105. Leases defined - A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor, lessee, premium and rent defined - The transferor is called the lessor, the ( 12 ) transferee is called the lessee, the price is called the premium and the money, share, service or other thing to be so rendered is called the rent.” . So, it is always the transferor who is lessor and transferee who is lessee. Section 7 of the Transfer of Property Act, lays down who can be transferor. It is as follows:- “7. Persons competent to transfer - Every person competent to contract and entitled to transferable property, or authorized to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent, and in the manner, allowed and prescribed by any law for the time being in force.” 14. So, it is clear that owner may create lease through another person who is authorized to transfer on his behalf to the extent and manner allowed and prescribed. In this case, ( 13 ) Santaram @ Santumal did not say that he was owner of the property. In the notice, which was drafted on his instructions, so also in the plaint which was drafted on his instructions, it was made clear that plaintiff Chetandas was owner. So, right to ‘transferable property’ vested in the owner. Santumal was brother of Chetandas and the circumstances clearly indicate that Santumal was acting as an agent of Chetandas. As per Section 106 of the Transfer of Property Act, notice under that Section must be in writing, signed by or on behalf of person giving it. Santaram himself never posed himself as owner or lessor. He always acted on behalf of Chetandas and it is also clear from his cross- examination in which he admitted that Chetandas was maintaining accounts of rent received, in Sindhi language, in a note book. There is no denial of the same. This shows that Chetandas as principal was taking information and accounts of the acts done by Santaram as his agent. After carefully considering the judgments of the Trial Court and the First Appellate Court, I am of the view that the view taken by the First Appellate Court is legal, reasonable and proper. ( 14 ) 15. The learned advocate Shri Patni also referred to case of Prakash Ramji Lende V/s. United Church of Northern India, 2004 (1) Mh.L.J.363, in which it is stated that in view of amendment of Section 106 of the Transfer of Property Act by the Transfer of Property (Amendment) Act (3 of 2003) applies even to pending proceedings. As per said provision requirement that notice must terminate tenancy at the end of month of tenancy is no longer required. The amended provision applies even to notices issued prior to the amendment. The Single Bench reproduced all the relevant provisions in the said judgment. The very object of this amendment was not to defeat the suits on technicalities. 16. The case of Parwati Bai V/s. Radhika (2003) 12 S.C.C.551 is cited for proposition that there ought to have been specific plea and evidence laid by the appellant/defendant that Santaram is his lessor and not Chetandas. Mere taking vague plea that Chetandas was not lessor is not enough. Notice issued by Chetandas was received by the defendant. Its receipt was also specifically admitted, but it was not replied and it speaks volume. It shows that the defendant/appellant was quite aware of real ( 15 ) facts and that is the reason why he kept away from the witness box and did not face cross-examination. 17. If we consider the scheme of Chapter X of the Indian Contract Act, 1872, which relates to agency. It is clear that when, as in the present case, it is proved that Chetandas was the principal and Santumal @ Santaram was acting as his agent, plaintiff Chetandas can enforce the contract. The defendant/appellant cannot say that he has contract only with the agent and not with the principal, particularly when through evidence of Santumal @ Santaram and witness Shaikh Mohammad, the agency is proved. There is clear evidence regarding the agency. In this case it was a contract of lease of a immovable property and it is difficult to believe that after living in the premises for years, the defendant/appellant did not know the real owner. His failure to reply the notice and his avoidance to enter into the witness box goes against him. 18. As per Section 226 of the Contract Act, contracts entered into through an agent, and obligations arising from acts done by an agent, may be enforced in the same manner and ( 16 ) will have the same legal consequences as if the contracts had been entered into and the acts done by the principal in person. 19. As per Section 231 of the Contract Act, if an agent makes a contract with a person who neither knows nor has reason to suspect, that he is an agent, his principal may require the performance of the contract; but the other contracting party has, as against the principal, the same rights as he would have had as against the agent if the agent had been principal. It is not case of the appellant/defendant even made out alternatively that had he known that real transferor or lessor was plaintiff – Chetandas and not Santumal, he would not have entered into contract of lease. Section 232 of the Contract Act further emphasizes the rule laid down in Section 231 of the Contract Act. As per Section 232, where a person makes contract with another neither knowing nor having reasonable ground to suspect that the other is an agent, the principal, if he requires the performance of the contract, can only obtain such performance subject to the rights and obligations subsisting between the agent and the other party to the contract. So, considering ( 17 ) these provisions of the Contract Act, in my opinion the suit filed by Chetandas is tenable and notice issued by him is legal and valid. 20. In view of above, in my opinion, this appeal has no merit and same deserves to be dismissed. Hence, the Second Appeal is dismissed. Parties to bear their own costs. [P.R. BORKAR,J.] snk/2009/JUN09/sa396.90