P L D 1963 Dacca 477 (PLP)

15. Mr. Khondkar, the learned Advocate for the appellant has also pressed some other grounds one of which is that the plaintiff served notice to quit on the ground of bona fide require ment. But the evidence will show that he does not require the premises for his residence, inasmuch as, the house is not suitable at all for residential purpose. It has been further contended by the learned Advocate for the appellant that the plaintiff, finding that the premises has been converted into a first class hotel, has become greedy and has filed this suit in order to ruin the defendant and his business. Another ground urged by Mr. Khondkar is that even accepting that the plaintiff` requires three or four rooms for his residential purpose which is apparent from his evidence, he can at best get partial eviction and for this proposition of law he has relied on the case of Kundammal Dowlatram v. Lakhmichand Chhogmal (I L R 45 Bom. 1294). Lastly, it has been contended by the learned Advocate that his client is ready to advance money to the plaintiff for construction of a residential house for the plaintiff in a vacant piece of land adjacent to the premises but the plaintiff has refused; and that all these will go to show that the claim of the plaintiff for residence is not bonafide. Be that as it may, I do not want to express any view on these matters as I have already found that the defendant is still a tenant under the plaintiff and his tenancy has not been terminated by the plaintiff.

16. In the result, the appeal is allowed with costs. The judgment and the decree of the trial Court are set aside and the suit is dismissed with costs. SALAHUDDIN AHMAD, J.‑This appeal is by the plaintiff and it arises out of a suit for ejectment of the defendant from the suit property and for arrears of rent and for damages. The facts material to the determination of the appeal are as follows.

17. The plaintiff is the owner of the premises in municipal holding No. 27, B. K. De Road at Khulna town. The said premises was let out to the defendant as a monthly tenant and his tenancy commenced from the 1st of September 1952. These facts are not disputed. The plaintiff required the premises for his own occupation and as the defendant refused to vacate the house wherein he had been running a flourishing hotel, the plain tiff served on the defendant notices to quit and on non‑compliance with them, instituted the suit after having first obtained the necessary permission of the Rent Controller to that effect. The plaintiff had been living with his family in a hired kutcha house in Khulna town at great inconvenience.

18. The defendant disputes the bona fide requirement of the premises by the plaintiff and also challenges the validity and service of the notices to quit. The defendant, avers that he has made considerable improvement, by way of additions and altera tions at considerable expenses with the knowledge and consent of the plaintiff.

19. Mr. M. A. Khondkar, the learned Advocate, who appears on behalf of the appellant, has first of all challenged the validity of the two notices to quit, namely, Exh. 1, dated 2‑12‑56 and Exh. 1 (a) dated 13‑1‑

57. His contention is that as there is no dispute as to the date of the commencement of the tenancy, namely, the first of September 1952, the aforesaid two notices telling the defendant. " .to quit and vacate and deliver up possession to my client of the said premises as described below immediately on expiry of the current month of tenancy with end of the current month of tenancy that is, after 1st day of January 1957, your monthly tenancy shall cease, and determine . . ." and " . . . to quit and vacate and deliver up possession to my client of the said premises immediately on expiry of the current month of tenancy. With the end of the current month of tenancy, that is, immediately after the 1st day of February 1957, your monthly tenancy shall cease and determine . . . " respectively are not good in law and are, therefore, of no effect.

20. Mr: Roy, who has appeared on behalf of the respondent, has sought to meet this contention by saying that under section 110 of the Transfer of Property Act, the date on which the tenancy commenced has to be excluded and, therefore, the notices are perfectly in order. Mr. Roy has tried to support this point by citing the decision of the Privy Council in the case of Benoy Krishna Das and others v. Salsiccioni and others. In my opinion, Mr. Roy's contention is based upon an erroneous in terpretation of section 110 of the Transfer of Property Act and mis-understanding of the said Privy Council case as will be apparent presently. Section 110 of the Transfer of Property Act so far as it is material for the determination of this question runs as follows: "Where the time limited by a lease of immovable property is expressed as commencing from a particular day, in computing that time such day, shall be excluded . . . " In my opinion, in the case of a monthly tenancy there is no "time limited by a lease", such as is contemplated under section 110 of the Transfer of Property Act. It has been held in a number of cases that section I l0 of the Transfer of Property Act does not apply to a monthly tenancy. It is sufficient to mention only three of them here.

21. In the case of the Utility Articles Manufacturing Co. (original defendants) v. The Raja Bah‑rdur Motilal Bombay Mills Ltd. (I L R 1943 Bom. 553), a Division Bench of the Bornbay High Court presided over by Beaumont, C. J., clearly held that section 110 of the Transfer of Property Act did not ply to a monthly tenancy. Similar was the decision in the case of sanchhajddhi Samantrai v. Lachminarain Agarwala (A I R 1950 Orissa 1).

22. In the case of Usharani Debi v. Tire Research Industries Ltd. (50 C W N 461) of the, Calcutta High Court considered the aforesaid Bombay case and agreed with the view expressed therein, namely, that section 110 did not apply to monthly tenancy. The learned Judge in course of his judgment at page 4A4 also drew attention to the words "where the time limited for a lease" in section 110 of the Transfer of Property Act, and in effect held that in a monthly tenancy the period is unspecified and the tenancy is terminable upon giving a notice to quit. The learned Judge also considered the case of Calcutta Landing and Shipping Co. Ltd. v. The Victor Oil Co. Ltd. (48 C W N 76) decided by a Division Bench of the Calcutta High Court.

23. As regards the Privy Council case reported in 37 C W N page 1, a perusal of the judgment makes it crystal clear that the Judicial Committee of the Privy Council applied the provision of section 110 of the Transfer of Property Act to a written lease which commenced from the first June 1921, and which was for a period of four years thence next ensuing for the purpose of deter mining as to when the monthly tenancy which subsequently came into existence as a result of the holding over by operation of section 116 of the Transfer of Property Act actually com menced from. The following passage from the judgment of the Judicial Committee makes it clear: "That being so, it must be taken that the lease ended at midnight on the 1st of June 1925, and that any notice to determine thereafter given must be a notice to quit expiring with the month ending at midnight on the first day of any month. The notice in fact given on the 1st of February 1928, clearly is a notice in regard to the 1st of March 1928, and not in regard to the 29th of February 1928. It, therefore, is a notice which, in the language of section 106, expired with the end of a month of the tenancy, because the month of the tenancy expired at midnight on the 1st of March 1928."

24. It may be mentioned that the Privy Council case re ported in 37 C W N page 1, came in for consideration in the following case: The Utility Articles Manufacturing Company v. The Raja Bahadur Motilal Bombay Mills Ltd; Banchhanidhi Samantrai v. Lachminarain Agarwala; Usharani Devi v. The Re search Industries Ltd., and Calcutta Landing and Shipping Co. Ltd. v. The Victor Oil Ltd. In all of them it was held that the Judicial Committee of the Privy Council never applied the pro visions of section 110 of the Transfer of Property Act to a monthly tenancy.

25. The law now is well settled that a monthly tenancy is terminable by at least 15. days notice expiring with the end of a month of the tenancy, for example, if a monthly tenancy com mences from the 1st of a month, according to British Calendar, the tenancy is terminable with the expiry of the 1st day of a month. These have been held in the cases just mentioned above. There fore, there is no doubt whatsoever that the notices in the present case are not valid in law. The appeal should succeed on this ground alone.

26. The appellant has next contended that even if the notices be held to be good there is no evidence to show that they were served upon the defendant. In my opinion, this contention must also be accepted. In regard to the first notice, Exh. I dated 2‑12‑56, there is no credible evidence to show that in fact it was posted to the tenant‑defendant so as to give rise to a legal presumption that it must have reached the address. The plaintiff's case is that this notice was served by registered post but no postal registration receipt, which is the best evidence in this case, has been produced. Even the lawyer who is said to have written and signed the notice was not examined to prove that he wrote and sent it to the tenant. In these circumstances it is difficult to hold that the notice was legally served upon the defendant. It is true that the postal acknowledgment receipt Exh. 2, dated 11‑12‑56, has been produced to show that the notice was in fact served upon the defendant. In the absence, however, of any evidence whatsoever, that this postal acknowledgment receipt referred to the particular notice sent to the defendant, I am unable to treat the acknowledgment receipt as a valid service of the notice in question upon the defendant.

27. As regards notice Exh. 1(a) dated 13‑1‑57, the plaintiff claims that he employed all three modes envisaged by section 106 of the Transfer of Property Act in serving it upon the defendant, namely, (1) it was served by registered post (2) it was served personally (3) and it was affixed to a conspicuous part of the property.

28. As to the first mode my observation in respect of posting in regard to the first notice Exh. 1, dated 2‑12‑56, applied to the posting of this notice too. The postal acknowledgment receipt is Exh. 2(a) dated 19‑1‑

57. It was contended by the learned Advocate appearing on behalf of the appellant that, at any rate, the particular notice in question was not sufficient under the law inasmuch as the time given for quitting was less than the statutory period mentioned in section 106 of the Transfer of Property Act.

29. As regards the second mode of service, namely, personal delivery P. W. 3 Sarfuddin Ahmed, who is alleged to have served the notice on the defendant personally, does not prove what notice he actually served upon the defendant. He does not say that what he served upon the defendant, or attempted to serve on him, was either the original or a copy of the notice Exh. 1(a) dated 13‑1‑

57. On the contrary, his evidence does not disclose that he himself was aware of the contents of the envelope which he delivered to the defendant and which the latter after reading threw away. On this evidence it is difficult to hold that a good personal service was affected.

30. There remains the 3rd mode of service, namely, by affixing the notice on a part of the property. P. W. 3 Sarfuddin Ahmed merely says that he served another notice by hanging it up on the gate of the hotel. He does not say what particular notice he hung up or that what he hung up was either the original or a copy of notice Exh. 1 (a) dated 13‑1‑57.

31. It will thus be seen that there is absolutely no satis factory evidence to prove legal service of any one of the two notices Exh. 1 and 1 (a).

32. As we have decided to allow the appeal on grounds of invalidity of the notices and of want of evidence to prove the legality of the service of the said notices, I refrain from making any observation in regard to the bona fide requirement of the disputed houses by the plaintiff. I respectfully agree with the orders passed by my learned brother in this appeal. K. B. A./A. H. Appeal accepted.