S.S.Dhavan, J. - (1.) This is an appeal against a decree for ejectment and arrears of rent. The appellant Sunder Lal was the tenant of a house in Farrukhabad. He fell into arrears of rent and the landlord sent him a notice demanding Rs. 175/-as rent. He disputed this amount and replied that only Rs. 135/- was due from him as the landlord owed him a sum of Rs. 40/- as costs awarded in some suit. He stated in his reply that he was remitting Rs. 135/- in full settlement after adjusting the sum of Rs. 40/-. His letter made it clear that after this payment the rent would be deemed to be fully paid. The same statement was made in the coupon attached to the money order. The landlord accepted the money order for Rs. 135/-, and sent a further notice denying the appellant's right to adjust Rs. 40/- and demanded the balance of the rent which by that time had increased to Rs. 55/-. He also asked the appellant to vacate the house within one month and warned him that he would take legal proceedings if he did not do so. The appellant appears to have ignored this notice and on 31-7-1956 the landlord sent a second notice which was identically worded, except that the rent demanded was Rs. 50/-. On 20-9-1956 the appellant remitted a sum of Rs. 50/- by money order which was refused by the landlord presumably because it was sent beyond time. The suit for ejectment and arrears of rent was filed on 1-2-1957. The appellant contested the suit on several grounds. He alleged that the landlord had agreed to adjust the amount of Rs. 40/-against rent, that the notice dated 31-7-1956 was not a proper notice to quit and, therefore, the suit for ejectment was not maintainable. The trial court rejected the defence and decreed the suit and the appellate Court upheld this decision. The appellant has now come to this Court in Second Appeal.
(2.) Mr. K. C. Saxena, learned counsel for the appellant advanced two arguments against the legality of the decree. First, the notice sent by the landlord was not in accordance with law is erroneous, and secondly the finding of the courts below that the appellant was a defaulter in rent is also wrong as it ignored the right of the appellant to adjust Rs. 40/- against rent.
(3.) Learned counsel for the appellant relied on a Full Bench decision of this Court in Bradley v. Atkinson, ILR 7 All 899, whereas counsel for the respondent cited a decision of the Privy Council in Harihar Banerji v. Ram Shashi Roy, ILR 46 Cal 458: (AIR 1918 PC 102). But I find no real conflict in the principles laid down in these two decisions, In my view no hard and fast rule or technical formula can be laid down about the language of a notice under Section 106 of the Transfer of Property Act. The precise words are immaterial provided the notice teminates the tenancy that is, it expresses a clear and unequivocal intention to terminate it. All the surrounding circumstances will be considered including any previous correspondence between the parties. In the present case, the landlord wrote to the tenant that he had not paid the rent in spite of repeated demands. The notice ends thus (Translated in English):- "Now you will kindly pay by the end of July, 1956 a sum of Rs. 50/- in respect of rent and also vacate the house and hand over possession to us or else at the expiry of the period of this notice suitable action will be taken against you in the law courts." The question is whether this is a notice terminating the tenancy or a notice demanding rent coupled with a threat to resume possession. It is common experience that a landlord may demand rent under threats couched in language almost indistinguishable from a notice to quit but without any intention to terminate the tenancy. It is an admitted fact that the landlord was sending notice after notice to the tenant demanding rent. If his intention was to terminate the tenancy there was no occasion for him to go on making repeated demands for rent. A single notice terminating the tenancy would have been sufficient, but repeated notices demanding rent create the impression that the landlord was really pressing the tenant for payment of rent. The notice is capable of the interpretation that it was another demand for rent coupled with a threat to terminate the tenancy. In such a situation the benefit of the doubt should go to the tenant. I am, therefore, inclined to hold, though not without some hesitation, that this notice does not indicate a clear decision to terminate the tenancy.;