Desai, J. - (1.) This is an appeal by a plaintiff whose suit for ejectment of the defendant-respondent from a shop was decreed by a Munsif, but has been dismissed, on appeal, by an Additional Civil Judge. The facts are these.
(2.) The appellant let out the shop to the respondent's father Lallo Mal for a period of eleven months on 23rd October 1942 on a monthly rent of Rs. 15. The period of the lease expired on 23rd September 1943 and Lallo Mal continued to be in possession, paying rent at the same rate of Rs. 15 per month which was accepted by the appellant. Lallo Mal died in January 1944, and the respondent continued in possession. The appellant did not recognise him as his tenant and refused to accept the rent offered by him. He asked him to vacate the shop and on his refusal filed the suit for possession, treating him as a trespasser. He had not given him any notice to quit. The suit was contested on the ground that the respondent had become a tenant by inheritance from his father and was not liable to be ejected without a valid notice to quit. The learned Munsif, holding that he was a trespasser having absolutely no right to remain in possession, decreed the suit, but the learned Civil Judge holding that he was a tenant from month to month and that he could not be ejected without a valid notice to quit, dismissed it. The questions which require to be answered are : (1) What was the nature of the right possessed by Lallo Mal at the time of his death in the shop; and (2) Whether that right was heritable and, if so, the respondent could not be ejected without a notice to quit? It is conceded on behalf of the respondent that if he was a trespasser, that is a person having absolutely no right to remain in possession, he could be ejected without a notice. His case is that Lallo Mal became a tenant from month to month by holding over after the expiry of the lease on 23rd September 1943, that the interest of a tenant from month to month is heritable and that consequently he (the respondent) also became a tenant from month to month. The appellant's case, on the other hand, is that Lallo Mal was a tenant-at-will since 23rd September 1943, that the interest of a tenant-at-will is not heritable, and that the respondent is a trespasser pure and simple. The respondent, in the alternative, contended that, even if Lallo Mal were a tenant-at-will, his interest as such was heritable.
(3.) It is necessary to reproduce the terms of the lease which are contained in a rent-note executed by Lallo Mal. They are as follows : "I have taken the shop on rent of Rs. 15 per month for the period of eleven months. I shall pay the rent month by month; if I fail the landlord would have the right to eject me at once from the shop. After the expiry of eleven months the landlord can at his will whenever he likes give ma a month's notice to vacate and I will vacate without any objection, or l can myself vacate at my will whenever I like after giving a month's notice to the landlord." This is a lease for eleven months certain; Lallo Mal had a right to remain in possession for eleven months provided he paid the rent regularly and the appellant could not eject him during this period. After the expiry of this period, he became bound to vacate on a month's notice. The first point to note about the terms is that though it is stated at three places, in the rent-note that the lease was for the period of eleven months, it was not a lease just for eleven months which came to an end on the expiry of eleven months. The words "ba miyad gyara mah" have been used not to signify that the lease was for the fixed period of eleven months, but to signify that it was for the minimum period of eleven months and that so long as this period was not over, the tenant was not liable to be ejected at the landlord's will (provided he paid the rent regularly). There is nothing to indicate that the lease was to end, and the tenant was bound to restore possession, immediately on the expiry of eleven months. It is, therefore, not a lease for a fixed term. A lease for a fixed term is determined by efflux of the time. A tenant holding for a fixed term is under the statutory obligation to restore possession to the landlord on the expiry of that term; see Section 108 (q), T. P. Act. When Lallo Mal was not bound by the terms of the rent-note to restore possession to the appellant on the expiry of eleven months, that is on 23rd September 1943, it follows that the lease was not for the fixed period of eleven months.;