1989 PLP 3372 (MLD)

4. Indubitably, the lessee came in possession of the property in question on 16th Jan. 1958. The lease was for a period of ten years with a right of renewal for a further period of five years. After the expiry of ten years, no instrument was executed by the parties and the lessee continued to remain in possession of the suit property. The lessor accepted the rent and allowed the lessee to continue. It is relevant in this connection to refer to the provisions of the Transfer of Property Act, 1882 (hereinafter called `the Act'). Section 106 of the Act deals with the duration of certain leases in absence of written contract or local usage and S.107 deals with how leases are to be made. These sections read as follows: "

106. In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy. Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or if such tender or delivery is not practicable, affixed to a conspicuous part of the property.

107. A lease to immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee: Provided that the State Government may, from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year or for any term exceeding one year, or, reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.

5. In view of the paragraph 1 of S.107 of the Act, since the lease was for a period exceeding one year, it could only have been extended by a registered instrument executed by both the lessor and the lessee. In the absence of registered instrument, the lease shall be deemed to be "lease from month to month". It is clear from the very language of S.107 of the Act which postulates that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. In the absence of registered instrument, it must be a monthly lease. The lessee and the sub-lessee in the facts of this case continued to remain in possession of the property on payment of rent as a tenant from month to month. The High Court so found. We are of the opinion that the High Court was right.

6. Section 116 of the Act which was placed before the High Court deals with the effect of holding over and provides as follows: "

116. If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in S.106."

7. It was submitted before the High Court that this was not a case of continuing of old tenancy for a period of five years but in view of the clear provisions of S.107 which we have noted hereinbefore and in the absence of a registered instrument, it must be held that it was holding over and not continuation of old tenancy for a further period of five years. That would be the harmonious construction of S.107 read with S.116 in the facts of this case. We are of the opinion that the High Court was right that the tenancy was automatically determined on the expiry of ten years which was stipulated in Exh.4. Thereafter the lessee continued to hold the property and the lessor accepted the rent. The lease was, therefore, renewed from month to month because it was not the case s of any party that it was for agricultural purposes.

8. In that view of the matter, the termination of the lease could only be by giving a valid notice. Such notice was given to the lessee but not to the sub-lessee. The respondent's case is that a notice to sub-lessee was not necessary. It was contended on behalf of the appellant that by Exh.7 the lessee was asked to quit the leasehold on the expiry of 15th June, 1973. Admittedly in this case, the lease was executed on 16th Jan. 1958 and from that date the lease came into existence. For computing the period of ten years the 16th Jan. 1958 had to be excluded. The tenancy was, therefore, terminated on the expiry of 16th of the month. The notice in the instant case of the quit which was Exh.7 before the Court dated 30th Nov. 1972, was given on behalf of the respondent to Latifur Rehman lessee. In paragraph 4 of Exh.7 it was stated that the lessee was to deliver the possession of the leasehold property by 16th Jan. 1973. In paragraph 5 of Exh.7 the lessee and sub-lessee were required to remove the buildings, plants etc. by the 16th Jan, 1973. In the last but one and the last paragraphs of Exh.7 it was stated that the lessee was to surrender the properties of the leasehold land on the expiry of 15th lap. 1973.

9. The question is whether there was a valid notice. The High Court held that in the facts of this case, there was a valid notice of termination and after the valid notice of termination of the lease to the lessee, there was no need to give a fresh notice to the sub-lessee. Notice must be read in the context of the facts of each particular case having regard to the situation of the parties to whom it is addressed. In Harihar Banerji v. Ramshashi Roy, 45 Ind. App. 222 at page 225; (A I R 1918 PC 102 at p.107), the Judicial Committee observed as follows: " ..that notices to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances; and further, that they are to be construed, not with a desire to find faults in them which would render them defective, but to be construed utres magic valeat quam pereat."

10. This is how the notices should be literally construed. This decision was relied upon by this Court in Mangilal v. Suganchand Rathi, (1964) 5 SCR 239; (A I R 1965 SC 101). There, however, the facts were different. There the defendant was a tenant of the plaintiffs. The defendant was ifs arrears of rent for one year to the extent of Rs.1,

020. On April 11, 1959 the plaintiffs served a notice on the defendant requiring him to remit to them Rs.1,020 within one month from the date of service of notice, failing which suit for ejectment would be filed. 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. This amount consisted of the rental arrears as well as the rent due right up to June 30, 1959. The plaintiffs accepted the cheque and cashed it and gave a fresh notice on July 9, 1959 requiring the defendant to vacate the premises by the end of the month of July. The defendant did not vacate the premises. Then the plaintiffs filed a suit to eject the defendant upon the ground that the latter was in arrears of rent for one year and had failed to pay the arrears within one month of the service of the notice dated April 11, 1959 upon him. From the undisputed facts it was clear that the defendant was in fact in arrears of rent and had failed to pay it within the time prescribed by cl. (a) of S.4 of the Madhya Pradesh Accommodating Control Act, 1953. It was held that though the notice, dated 11th April 1959 could be construed to be composite notice under S.4(a) of the Accommodation Act and S.106 of the Transfer of Property Act it was ineffective under S.106 of the Transfer of Property Act because it was not a notice of 15 clear days. In that case, the defendant had only 14 clear days' notice. Reference was made to the aforesaid decision of Harihar Banerji v. Ramshashi Roy (supra) which was distinguished by this Court. This Court held that notice under 5.106 of the Act must be strictly complied with. In so holding this Court relied on a decision of the Calcutta High Court in Subadini v. Durga Charan Law, (1900) ILR 28 Cal. 118 which was construing a notice contemplated by S.106 of the Act and had held that in calculating the 15 days' notice the day on which the notice was served was excluded and even if the day on which it expired was taken into account it would be dear that the defendant had only 14 clear days' notice. This position was again reiterated by the Calcutta High Court in Gobinda Chandra Saha v. Dwarka Nath Patita, A I R 1915 Cal.

313. This Court affirmed this view that notice must be understood in the light of Harihar Banerji v. Ramshashi Roy (A I R 1918 PC 102) (supra). This Court held that the suit was actually based upon the notice, dated July 9, 1959 which gave more than 15 days' clear notice to the defendant to vacate the premises. This notice was a valid notice under S.106 of the Act. In the instant case if all the paragraphs of Exh.7 which is a notice in the instant case are read together in harmony it would be manifest that the lessee was directed to hand over the leasehold property on 16th Jan. 1973.

11. In the aforesaid view of the matter, in our opinion, there was a valid notice of termination of the lease of the lessee. In any event the lessee did not dispute this contention. The lessee accepted there was a valid termination of the leasehold property.

12. In Rupchand Gupta v. Raghuvanshi (Pvt.) Ltd., AIR 1964 SC 1889, it was held by this Court that it is quite clear that law does not require that the sub -lessee need be made a party, if there was a valid termination of the lease. This Court reiterated that in all cases where the landlord instituted a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and did not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This Court noted at page 1892 of the report that this might act harshly on the sub-lessee, but this was a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an unproper act. In the facts of this case these observations apply more effectively. The termination of the lease was not disputed by the lessee. There is allegation of any collusion between the lessee and the respondent.

13. In that view of the matter, we are of the opinion that the High Court was right. The suit in question was instituted in May, 1979 and the valid notice to quit was given long after the expiry of the period of lease. The sub-lessee had long innings. It is time for him to quit. There is no merit in this petition. The special leave petition fails and is, therefore, dismissed with costs. M.BA./136/F.C. Special Leave Petition dismissed.