- (1.) THIS is a plaintiffs' appeal arising out of a suit for ejectment and arrears of rent. The plaintiffs claimed a sum of Rs. 2924.00 on account of rent and damages in respect of the accommodation in dispute and they further prayed for the ejectment of the defendant on the ground that he had defaulted in the payment of the rent and did not pay the arrears even after the notice of demand dated 1-1-66. This notice was followed by a notice under Section 106 of the T. P. Act dated 26-2-1966. Both the notices were given by all the four plaintiffs appellants. The trial court decreed the suit in its entirety. The lower appellate Court has dismissed the claim for ejectment but decreed the recovery of arrears.
(2.) THE facts leading up to the present appeal are as follows : One Triloki Nath was the owner of the accommodation in dispute. He sold it in favour of one Mahabir Prasad. Mahabir Prasad by a deed of sale dated 16-6-1961 transferred the property to Smt. Prabha, Km. Veena, Km. Reshmi and Km Nirja. Km. Veena, Km. Reshmi and Km. Nirja are the daughters of Smt. Prabha and were minors on the date of the sale. By a sale deed dated 1-11-1965 Smt. Prabha and her three daughters sold the property to the plaintiffs. The deed was executed by Smt. Prabha and one Dr. Bhagwat Dutt, the father of Smt. Prabha, and the maternal grandfather of the three minor daughters of Smt. Prabha as their de facto guardian. On 16-12-68 the three minors having attained majority ratified the sale deed dated 1-11-1965 and executed a deed of ratification in favour of the plaintiffs. On the basis of these two deeds the plaintiffs claimed to be the owners of the property in dispute. The plaintiffs however shortly after the sale deed dated 1-11-1965 issued the notice of demand against the defendant for the payment of rent. The defendant had been occupying the premises it appears, since 1961, and had been paying rent to the successive owners by cheque. The notice of demand was served on the defendant on 3-1-1966. By a registered letter dated 29-1-1966 the defendant sent a reply to the plaintiffs enclosing a cheque for the rent demanded in full satisfaction of the dues. In this letter the defendant clearly admitted the plaintiffs as his landlords and stated that the cheque was being sent in compliance to the demand for arrears of rent and in full satisfaction thereof. This letter however was not delivered to the plaintiffs. It was alleged by the plaintiffs that this was due to the negligence of the postman who endorsed on the envelop that the letter could not be delivered being addressed in the names of four persons. The rent having thus not been received by the plaintiffs within the prescribed time they issued the notice dated 16-2-1966 under Section 106 of the T. P. Act terminating the defendants tenancy and requiring him to hand over possession of the premises. This notice was served on 3-3-1966. The defendant having failed to vacate the premises the suit giving rise to this appeal was filed, for ejectment and arrears of rent and damages. The defence delivered was that the defendant had sent the rent through cheque within the time prescribed by the notice dated 1-1-1966. The cheque was enclosed with a letter under registered cover addressed in the name of the four plaintiffs. In the letter it was stated that since all the four plaintiffs were the landlords and the rent was demanded by all of them a cheque drawn in favour of all, was being sent. It was thus pleaded that the defendant had not defaulted in the payment of rent and had sent the same within the prescribed period. The suit on the basis of default therefore could not be maintained. It was further pleaded that the notice to quit was defective, in that the original sale deed dated 1-11-1965 executed by Smt. Prabha and Sri Bhagwat Dutt on behalf of the three minor daughters of Smt. Prabha could not pass a valid title to the entire property, the transfer by a de facto guardian of a minor being invalid in law. The sale deed to the extent of the interest of the minors was thus void. The deed of ratification could also not validate the transaction the same being ab initio void. The plaintiffs consequently were owners of the property to the extent of one-fourth share only and they thus could not terminate the defendant's tenancy from the entire premises. The notice to quit the entire premises was thus invalid, since the case has been argued with reference only to these two points it is unnecessary to refer to the other pleas raised.
(3.) THE trial Court held that the remittance of the rent by cheque was no payment in the eyes of law. The defendant consequently was in default of payment of rent and liable to ejectment on that ground. It further held that the notice to quit was valid. The suit was accordingly decreed for ejectment as also for the arrears claimed.;