Bapna, J. - (1.) THIS is a second appeal by the contesting defendant in a suit for ejectment and recovery of arrears of rent.
(2.) RESPONDENTS Nos. 1 and 3 in the court of Munsif, Jaipur City West, on 3rd February, 1947, on the allegations that the defendants were their tenants under a rent-note dated 21st August, 1944, on a monthly rent of Rs, 13/ -. It was alleged that under the terms of the said agreement the defendants had agreed to vacate the premises within one month of their being called upon to do so. The plaintiffs' case was that the defendants had failed to pay the rent for a year and three months and to vacate inspite of a notice having been served upon them. It was mentioned that a proper certificate from the Rent Controller for institution of the suit had been obtained on 7th September, 1946. The plaintiffs claimed Rs. 195/- as arrears of rent and annas -/4/-as cost of notice, and prayed for ejectment. The defendant pleaded that the notice for termination of the tenancy was invalid. It was urged thai he had been ready and willing to pay the rent, and was,, therefore, not liable to ejectment, more so, as the certificate by the Rent Controller for institution of the suit was also invalid. The trial Court, after evidence, gave a decree for ejectment and arrears of rent claimed by the plaintiffs, but did not allow costs on the finding that the defendants had been ready and willing to pay the rent, but the plaintiffs had not accepted the same. On appeal, the learned District Judge maintained the decree, but allowed costs to the plaintiffs on the arrears of rent as well. On second appeal three issues were framed and remitted to the Munsiff for a finding. They are as follows: - (1) Whether notice Ex. A-1 was signed by Bhanwarlal ? (2) Whether Bhanwarlal was the agent of the plaintiffs having an authority to issue a notice to the defendants under sec. 109 of the Transfer of Property Act ? (3) Whether the notice Ex. A-1 is in accordance with law so as to have the effect of terminating the tenancy ? The learned Munsif found on all the issues in favour of the plaintiffs, and sent the record with his opinion. The case has been referred to a Division Bench, as there was conflict of opinion on the question whether a notice of a particular period stipulated in the agreement should expire with the expiration of the month of the tenancy. Learned counsel for the appellants argued that the terms of the lease provided for a notice of one month, but did not mention specifically that it could be given on any date in the month. It 3was urged that the provision for one month's notice only modified the period of notice mentioned in sec. 106 of the Transfer of Property Act, but the other condition that the notice should expire with the termination of the month of tenancy mentioned in the section was still applicable, and, therefore, the notice in the present case, which expired on a date other than the expiry of the month of the tenancy was not valid. Reliance was placed on Svt. Sailabala Dassea vs. A. H. Tappassier (l), Banchhanidhi Samant Rai vs. Lachminarain Agarwala (2), Mukan Chand vs. Gulabchand (3) Binoy Krishna Das vs. Salsiccioni (4) and Sunderji Ratanshi vs. Gangubai Jeshinghbhai (5 ). It was held in Svt. Sailbala Dassee vs. H. A. Tappassier (i) that when a tenant continued to occupy the property after the expiry of the period of lease, sec. 116 of the Transfer of Property Act came into play, and the lease, in the absence of a contract or local law or usage to the contrary, was renewed from year to year or month to month according to the purpose for which the property was leased, as specified in sec. 116 of the Transfer of Property Act. It was contended on the basis of the above authority that in the present case also the original lease only for a year and as the defendant continued to occupy the premises after the expiry of the year, he became only a tenant from month to month and as there was no other contract, the notice should have conformed strictly to the provisions of sec. 106 of the Transfer of Property Act. A different view was held in Badal vs. Ram Bharosa (6 ). In this Allahabad case it was held that when the lessee held over after the expiry of the term fixed by the lease, the relations between the parties were governed by the same terms as were embodied in the original lease. The same view was taken in Lalman vs. Mst. Mullo (7) including the provision as regards notice. These two decisions were relied on in Tewari Govind Narain vs. Seth Lachmi Narain (8), where it was held that when a deed provided for one month's notice, the provisions of sec. 106 were inapplicable, and if the tenant held over after the expiry of the lease, it must be deemed that the holding over was on the old terms as per the rent-deed including the provision for notice. In our opinion this seems to be the correct view of the law. In Ghulam Mahammad vs. Lakshmi Bux (9) it was held that where there was agreement to give one month's notice, it was an agreement to the contrary, and the provisions of sec. 106 were not attractable.
(3.) THE case of Banchhanidhi Samantrai vs. Lachminarain Agarwa!a (2) is distinguishable for in that case the defendant was admittedly let into the house as a monthly tenant, and the case relates to the interpretation of sec. 110 of the Transfer of Property Act. In the case of Sunderji Ratanshi vs. Gangubai Jeshingbhai (5) the Court relied on certain observations in Utility Articles Manufacturing Co. vs. Motilal Bombay Mills Ltd. (10), and held that sec. 106 of the Transfer of Property Act prescribed two separate and independant conditions for validly terminating a monthly lease, first that the notice was to be fifteen days' notice and secondly, that it was to expire with the end of a month of the tenan-cy,and in order that these should cease to apply, the contract to the contrary must specifically provide for them both and that if the contract contained a stipulation only as to the period of the notice it modified the provisions of sec. 106 to that extent but did not affect the other requirement of the section, viz. ,that the notice was to expire with the end of a month of the tenancy and this latter requirement had to be complied with in order that the lease could be validly terminated. The same view has been taken in Mukanchand's case (3 ). Benoy Krishna Das vs. Salsiccioni (4) only related to the applicability of sec. 110 of Transfer of Property Act, and does not apply to the facts of the present case. A contrary view was taken in Ram Nath vs. Badri Nath (11)and Saik Kasam vs. Haji Jusuf Karim Abu (12 ). In these cases it was held that sec. 106 only came into play when there was no contract or local law or usage to the contrary, and as the contract itself provided for a different period of notice, sec. 106 was not applicable. In the Nagpur case it was held that the rule in sec. 106 was indivisible, and a contract for a month's notice without any specification of the time when the notice was to expire was a contract to the contrary. Sec. 106 of the Transfer of Property Act lays down, among other things with which we are not concerned, that a lease of immovable property for any purpose other than agricultural or manufacturing purposes is to be deemed to be a lease from month to month, and that such lease is terminable on the part of either the lessor or the lessee by fifteen days' notice expiring with the end of a month of the tenancy, in the absence of a contract or local law or usage to the contrary. If, therefore, there is a contract providing for a different period of notice, then the second provision requiring 15 days' notice expiring with the end of a month of the tenancy obviously does not come into play. As held by the Nagpur High Court in Saik Kasam's case (12), the clause of 15 days' notice expiring with the end of a month of the tenancy is a concomitant part of the requirement, and forms an indivisible condition, but even if it could be divided, as observed in the Bombay case and other cases in which the Bombay case has been followed, we have to see what has been the intention of the parties in the present case. It may be pointed out that a notice under sec. 196 as provided by the second paragraph of the section should be in writing, fulfilling certain other conditions. In the present case, the language is that the tenant would vacate on receiving information one month previous to the time when it was intended to be vacated. Such a provision does not indicate that even a notice in writing was necessary and in that case the contract clearly showed that none of the conditions of sec. 106 were contemplated by the parties to be applicable. The obvious intention of the parties was that the tenant would vacate at any time on one month's notice in the colloquial sense of information being give to him, In that view, it must be held that the notice was entirely in accordance with the terms of the agreement and was valid. No other point was argued. The appeal, therefore, fails and is dismissed with costs. . ;