JUDGMENT

Defendant in O.S No. 2504 of 1976, on the file of IX Judge, City Court, Madras, is the appellant before this Court. Defendant-Press was represented by its partner K.G Vittal. During the pendency of the Second Appeal, the said Vittal died, and his legal representatives have been brought on record as additional appellants.

2. For thee sake of convenience, the appellants herein are collectively referred to as tenant under the respondent-Temple.

3. The defendant was admittedly a tenant under the respondent. Respondent is a public Temple and, therefore, the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act have no application. Notice was issued terminating the tenancy as evidenced by Ex. A-1, and as per Ex. A-2, the appellant accepted the same. The case of the respondent is that in spite of the termination of the tenancy, the tenant has not surrendered vacant possession, which has necessitated the suit.

4. In his written statement, the defendant contended that at the time when he took the premises on lease, the building that was in existence was dilapidated and eould not be used for any purpose and, therefore, with the permission of the respondent, he has put up superstructure at his cost. It is also said that subsequently the first floor was also constructed, and he is making use of the building for the purpose of his business. According to him, the lease is for manufacturing purpose, and, therefore, six months' notice is required. It also held that the appellant has put up a superstructure, and since nothing is stated in the notice about the superstructure, on the basis of Ex. A-1, the plaintiff cannot take possession. With the result, the suit was dismissed.

5. When the matter was taken in appeal by the plaintiff before the lower appellate court, i.e, IV Additional Judge, City Civil Court, Madras, as A.S No. 311 of 1992, it set aside the decision of the trial court and decreed the suit.

6. The lower appellate court came to the conclusion that the superstructure belonged to the plaintiff. It also came to the conclusion that the lease was not for manufacturing purpose, that it was only monthly tenancy and, therefore, Ex. A-1 notice was proper. Eviction was allowed. It is against the said decision, the defendant has preferred this Second Appeal on the following substantial questions of law:—

“1. Whether the lower court is correct in holding that the superstructure erected by the appellant on the land belonging to the respondent became the property of the respondent in view of the appellant's failure to exercise their right to remove the superstructure on the determination of the lease?

2. Whether the notice of termination of tenancy of both the land and building is valid in law when especially the finding of the Courts below was that the superstructure was erected by the appellant-tenant at their cost? and

3. Whether the finding of the lower appellate court that the there has been no waiver of notice under S. 113 is correct even though the respondent landlord fixed the fair rent for the suit property as per Ex. B-11 series even after the ejectment suit was filed?”

7. The main contention that is put forward by the learned counsel for the appellants at the time of hearing is that the lease in this case is one for manufacturing purpose and, therefore, Ex. A-1 notice terminating the tenancy by giving 15 days notice time is not proper.

8. There is no written lease agreement. Therefore, naturally, we can only take into consideration the circumstances, to arrive at a conclusion whether the lease was one for manufacturing purpose or only a monthly tenancy. The documentary evidence shows that the rent is being paid every month and the rent is also fixed at Rs. 190/- per month. Admittedly, the appellants are running a press in the Schedule premises. The case put forward by the appellant is that it is manufacturing paper boxes. The question is, whether the same amounts to a lease for manufacturing purpose. If it is found that the lease is one for manufacturing purpose, admittedly, Ex. A-1 does not satisfy the requirements under S. 106 of the Transfer of Property Act.

9. What is meant by ‘manufacturing purpose’ is discussed in the Transfer of Property Act by Mulla in ‘The Transfer of Property Act’, Eighth Edition (1995) at page 812. The learned author says that the phrase “manufacturing purpose” is used in its popular sense and means the making of articles of trade and commerce by means of machinery. At page 813, the learned author further says, ‘The expression “manufacturing purpose” is used in its popular dictionary meaning and there must be such a transformation in the material that a new and different article having a distinctive name, character or use emerges’. The learned author has relied on certain decisions for the said purpose. In (1973) 1 S.C.C 7=86 L.W 3 S.N (Allenbury Engineers (Pvt.)Ltd. v. Shri Ram Krishna Dalmia) their Lordships said that the burden of proving that the lease was for manufacturing purpose, for the purpose of S. 106 of the Transfer of Property Act, lies on the party who claims it to be so. The burden is to establish that the exclusive or at least dominant purpose of the lease was ‘manufacturing purpose’. In paragraph 8 of the judgment their Lordships considered as to what is meant by ‘manufature’. The ordinary dictionary meaning was accepted wherein it is said that manufacture means making of articles or materials by physical labour or mechanical power. Their Lordships further said that the expression ‘manufacturing purpose’ in S. 106 of the Transfer of Property Act means purposes for making or fabricating articles or materials by physical labour, or skill, or by mechanical power, vendible and useful as such. Such making or fabricating does not mean merely a change in an already existing article or material, but transforming it into a different article or material having a distinctive name, character or fabricating a previously known article by a novel process.

10. In (1980) 2 S.C.C 461 (P.C Cheriyan v. Mst. Barfi Devi), the question that came for consideration was, whether retreading of tyres was ‘manufacturing purpose’. Their Lordships accepted and followed the decision reported in (1973) 1 SCC 7 (supra), and held thus:—

“The expression “manufacturing purpose” has not been defined in the Transfer of Property Act. It has therefore to be construed in its popular sense. According to the dictionary, “manufacture” implies change, but every change is not manufacture. There must be a transformation; a new and different article must emerge, having a distinctive character or use. ………”

11. In (1982) 1 SCC 27=95 L.W 137 S.N (Idan das v. Anant Ramchandra Phadke (dead) by L.Rs), their Lordships again reiterated the principles thus:—

“In order to determine whether the lease in question is for manufacturing purpose, the following tests must be satisfied: 1. it must be proved that a certain commodity was produced; 2. the process of production must involve either labour or machinery; and 3. the end product which comes into existence after the manufacturing process is complete, should have a different name and should be put to a different use. In other words, the commodity should be so transformed so as to lose its original character.”

That was a case where wheat was transformed into flour. The original commodity which could not be used for human consumption was transformed and made fit for human consumption. In these circumstances, their Lordships said that the original identity of the article has changed and, therefore, the transformation of wheat into flour is manufacturing process. In this connection, it is also worthwhile to note that in (1980) 2 SCC 461 (supra), their Lordships, in paragraph 11 of the judgment, said that the word ‘manufacture’ or ‘manufacturing purpose’ is seen in various other enactments also, but those should not be blindly applied for the purpose of interpreting S. 106 of the Transfer of Property Act. Their Lordships held thus:—

“Before parting with this judgment, we may sound a note of caution, that definitions of “manufacture” given in other enactments, such as, in the Factories Act or the Excise Act should not be blindly applied while interpreting the expression “manufacturing purposes” in S. 106 of the Transfer of Property Act. In some enactments, for instance in the Excise Act, the term “manufacture” has been given an extended meaning by including in it “repairs”, also.”

12. In this case also, the appellants have no case that the conduct of press is for manufacturing purpose. What they say is, they are making use of paper boxes and, therefore, Ex. Al notice is not sufficient. The main business conducted by the appellants is press, cannot be disputed. Even the appeal was filed by the Press, and the receipts are also issued in the name of press.

13. In AIR 1975 Rajasthan 138 (Kuni Behari v. Acharya Hari and another), a similar question came for consideration. That is, whether manufacture of cards and card-board boxes will amount to ‘manufacturing purpose’. Their Lordships held that the manufacture of cards or card-board boxes is only incidental to the running of the press and, therefore, not a F manufacturing purpose. It was held thus:—

“A lease of premises for mixed or multi-purposes like dwelling purposes for setting up a printing press and for ordinary business purposes is not a lease for “manufacturing purpose” within the meaning of S. 106 but is within the meaning of the words for “any other purpose” used in that section.

Held, in the circumstances of the case the manufacturing of cards and card-board boxes was merely incidental to the main business of printing and the tenant could not be said to be carrying on operations in the premises which could properly be called manufacturing operations. Hence he could not challenge the legality of the notice on the ground that the lease should have been terminated by six months' notice expiring with the end of the year of the Tenancy.”

14. Taking into consideration the above facts and the settled position of law, it cannot be said that the lease in this particular case is for manufacturing purpose. If so, the contention of the appellants that Ex. A-1 is only a copy of the notice, alleged to have been sent to the appellant (K.G Vittal). In Ex. A-1 notice, it is not seen that any one has signed it. Therefore, according to the learned counsel, it is invalid. It is not disputed that Ex. A-1 is a true copy of the notice sent to the appellant and the original is with him. Ex. B-1 being only a copy, no signature is necessary, and if it is the case of the appellant that Ex. A-1 is not valid at all, he could have produced the original. Merely because the plaintiff did not call upon the appellant to produce the original, that will not discharge the burden of the appellant to adduce best evidence. When copy of the notice is filed along with the signed acknowledgment, and when the same is marked without protest, the same cannot be challenged as not valid at this distance of time. The said contention of the learned counsel for the appellants also falls to the ground.

15. It is further contended by the learned counsel for the appellants that even if Ex. A-1 notice terminates the tenancy, the same is still invalid for the reason that the absence of details of the tenancy is not made mention of. I cannot accept the said contention as well. The appellant knows the purpose of the notice, and what was the nature of the demand made by the plaintiff. The purpose of the notice is only to terminate the arrangement entered into between the parties. The appellant has no case that on receipt of the original of Ex. A-1, be was misled or could not understand its contents. In this case the rental arrangement is only oral. On going through Ex. A1, be was misled or could not understand its contents. In this case the rental arrangement is only oral. On going through Ex. A1, I find that necessary details have been given therein and the contention that the details are absent is also without any basis. Even if there is any evidence as to the commencement of the tenancy, I do not find that the appellant was misled by such absence. Even the trial court found that Ex. A-1 notice was valid. I do not find that any challenge was made before the lower appellate court by the appellant, though the appeal was filed by the plaintiff.

16. In this connection, it is better to consider how to construe a notice under S. 106 of the Traansfer of Property Act. In paragraph 9 of the judgment reported in AIR 1988 SC 1470 (Burma Shell Oil Distributing v. Khaja Midhat Noor), their Lordships held thus:—

“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. Ram shashi Roy, 45 Ind. App. 222 at page 225: (AIR 1918 PC at pp 107 = (1919) 9 L.W 148) 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 ut res magis valeat quam pareat.”

17. A hypertechnical argument on the validity of notice is not to be accepted by a Court of law.

18. According to me, the finding of the lower appellate court that there was proper termination of the lease is, therefore, to be confirmed.

19. Learned counsel for the appellants argued that since the respondent-Temple has received rent after the issuance of notice under Ex. A-1, it must be deemed to have been waived. For the said purpose, he relied on S. 113 of the Transfer of Property Act.

20. I do not find any merit in the said contention. The lower appellate court has considered this point and come to the conclusion that after the termination, the rent has not been paid till the date of suit. The reliance placed on Ex. B-11 is of no use for the purpose of this case. We find that Ex. B-11 relates only to the rent payable to the plaintiff before Ex. A-1 notice. Again, going by the provisions of S. 113 of the Transfer of Property Act, a mere acceptance of rent alone is not sufficient. There must be intention on the part of the lessor to treat the lease as subsisting. No evidence has been let in this case, and there is also no circumstance elicited by the appellant to show that the plaintiff wanted the lease to continue. The said contention also has to fail.

21. Lastly, learned counsel submitted that the superstructure has been constructed by him and for the said purpose, he relied on Ex. B-2. The trial court accepted the contention of the appellant in holding that the superstructure was constructed by the appellant, which was reversed by the lower appellate, which was reversed by the lower appellate Court. On a reading of Ex. B-2, it is clear that even at the time when the lease was given to the appellant, there was a building. But the same required certain repairs and for the said purpose, the appellant himself advanced a sum of Rs. 3,000/- to the plaintiff, on an agreement that the plaintiff will reimburse the same in installments. So, it is clear that a construction was made by the plaintiff on the basis of a loan given by the defendant. If that be so, the superstructure can only belong to the plaintiff and the arrangement between the plaintiff and the defendant can only be that of a debtor and creditor. The building cannot belong to the appellant. So far as the first floor of the building is concerned, it is in evidence that no consent was obtained by the appellant for constructing the same. When a demand for construction was made, the plaintiff pleaded its inability due to lack of funds. But it is seen that thereafter the appellant constructed the first floor.

22. The lower appellate court held that after termination of notice, the appellant did not exercise his option under S. 108(h) of the Transfer of Property Act, whether to leave the building or demolish the same. Therefore, it must be held that the first floor of the building also belongs to the plaintiff, though serious contentions were raised before this Court against the said finding.

23. On question of law No. 1, I hold that since the appellant has not exercised his option to remove the first floor of the buildings, that portion of the building also belonged to the plaintiff, and the finding of the lower appellate court is only to be confirmed.

24. On question No. 2, I have already held that the lease was for both the land and the building, though the building needed repairs. Therefore, even if the appellant had spent any amount for repairs, that will not change the character of the lease, and the termination of the lease as per Ex. A-1 is, therefore, valid. On question No. 3, I hold that there is no waiver as alleged, and there is no intention on the part of the plaintiff to continue the lease after Ex. A-1 notice. All the questions of law are, therefore, found against the appellant.

25. In the result, the Second Appeal is dismissed with costs.

KA/RR/VCS