Case: Mangilal Vs. Suganchand Rathi

2. It is common ground that the defendant was a tenant of the plaintiffs and the rent of the premises in his occupation was Rs. 110/- p.m. It is not disputed that the defendant was in arrears of rent from April 1, 1958 to March 31, 1959 to the extent of Rs. 1,020/-. On April 11, 1959 the plaintiffs served a notice on the defendant bringing to his notice the fact of his being in arrears of rent for 12 months and requiring him to remit to them Rs. 1,020/- within one month from the date of service of notice and stating that on his failure to do so, a suit for ejectment would be filed against him. In addition to this the notice called upon the defendant to vacate the premises by April 30, 1959 upon two grounds :(1) that the premises were required by the plaintiffs "genuinely for business"; and(2) that the defendant had sub-let a portion of the premises to two persons without the permission of the plaintiffs and. without having any right to sub-let the premise.This notice was received by the defendant on April 16, 1959. On June 25, 1959 the defendant sent a reply to the notice enclosing with it a cheque for Rs. 1,320/-. It may be mentioned that this amount consisted of the rental arrears as well as the rent due right up to June30, 1959.The plaintiffs accepted the cheque and cashed it on July 4, 1959 and gave a fresh notice on July 9, 1959 requiring the defendant to vacate the premises by the end of the month of July. In their notice the plaintiffs also stated that they had cashed the cheque under protest. The defendant did not vacate the premises, and therefore, the present suit for eviction was instituted on August 14, 1959.

Reasoning: Therefore; if the view taken in the aforesaid case is correct, the period of notice falls short of that provided in S. 106 of the Transfer of Property Act by one day. The correctness of the aforesaid decision was not questioned by the same High Court in Gobinda Chandra v. Dwarka Nath, AIR 1915 Cal 313. No decision was brought to our notice in which a contrary view has beendecision really is of no assistance in this case because there the defect which was not said to invalidate the notice appertained to the description of the demised premises and the Privy Council held that the recipient of the notice would be quite conversant with the actual description and could know what the description stood for. Here the question is entirely different and that is whether the landlord had given the minimum period contemplated by S. 106 of the Transfer of Property Act to the tenant within which to vacate the premises. This provision is evidently intended to confer a facility on the tenant and must, therefore, be so construed as to enable him to have the fullest benefit of that facility. It seems to us that a liberal construction of a notice which would deprive the tenant of the facility of having the benefit of the minimum period of 15 days within which to vacate is not permissible. We, therefore, approve of the view taken in Subadinis case, ILR 28 Cat 118 and hold that the notice dated April 11, 1959 was ineffective as it does not fulfil the requirements of S. 106 of the Transfer of Propertyeffect of cl. (a) of S. 4 is merely to remove the bar created by the opening words of S. 4 on the right which a landlord has under S. 106 of the Transfer of Property Act to terminate a tenancy of a tenant from month to month by giving a notice terminating his tenancy. It does not convert a periodic tenancy into one of fixed or indefinite duration nor insert therein a clause of re-entry on the ground of non-payment of rent. The character of the tenancy as one from month to month remains, but to it is added a condition that the unfettered right to terminate the tenancy conferred by S. 106 will be exercisable only if one of the grounds set out in S. 4 of the Accommodation Act is shown tois difficult to see how such a construction of the notice can at all support a plea of waiver of the right accruing from cl. (a) of S. 4. As already pointed out, the notice of April 11, 1959 in so far as it purported to be under S. 106 of the Transfer of Property Act was ineffective and, therefore, the relationship of landlord and tenant continued between the plaintiffs and the defendant. Accepting rent under such circumstances from the defendant cannot justify the inference of waiver of quite a different right and that is to take advantage of the statutory right under S. 4 of the Accommodation Act accruing by reason of the default made in the payment of rental arrears.Indeed, the notice of April 11, 1959, as it stands, could not by itself have furnished the plaintiffs with the right to institute a suit. Till they acquired that right not only were they entitled to accept the rent which accrued due from month to month but the defendant was himself liable to pay the rent whenever it fell due till the relationship of landlord and tenant was put an end to. Therefore, from the sole circumstance of acceptance of rent after April 11, 1959 waiver cannot at all be inferred. We are, therefore, unable to accept the argument of the learned Additional Solicitor General that by cashing the cheque for Rs. 1,320/- the plaintiffs waived all rights which accrued to them under the notice dated April 11, 1959. As we have already said, no right under S. 106 of the Transfer of Property Act had accrued to them because of the ineffectiveness of the notice in so far as the termination of tenancy was concerned and, therefore, no question of waiver with respect to that part of the notice arises. So far as the right accruing under S. 4(a) of the Accommodation Act is concerned, the defendant having been under liability to pay rent even after the giving of notice the acceptance of the rent by the plaintiffs would not by itself operate as waiver.10. As regards the last point, we have in fact dealt with it already. What was contended was that the notice of April 11, 1959, was not a valid notice with reference to both the laws, that is, the Transfer of Property Act and the Accommodation Act. We have pointed out that though the notice could be construed to be composite notice it was ineffective in so far as it purports to be under S. 106 of the Transfer of Property Act. It was not suggested that in so far as it was a notice under the Accommodation Act it was invalid. There is, therefore, nothing more to be said about it.