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Mahasukrai Ramrichpal v. Kishori Charan Law .
Factual and Procedural Background
This is an appeal from a decree of the learned Additional District Judge, 12th Court at Alipore in Little Appeal No. 1038 of 1970 dated 30 April 1971, which affirmed the judgment and decree of the learned Subordinate Judge, 6th Court at Alipore in Title Suit No. 67 of 1963 dated 19 June 1970.
The respondent (plaintiff in the original suit) filed a suit for ejectment and mesne profits against the defendant (the appellant), who was a monthly tenant paying rent of Rs. 400 per month according to the English calendar month. The tenancy contained a term that the defendant should not make any addition or alteration to the premises without the written consent of the plaintiff. The plaintiff alleged that the defendant had constructed a pucca temple and two sheds with pucca walls and a C.I. roof on the suit premises — structures described as permanent and made without the plaintiff's knowledge or consent — and that these acts violated Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act; accordingly the plaintiff sought ejectment.
The defence asserted that the structures were erected in 1958 and early 1959 with the plaintiff's knowledge and consent, and also challenged the legality and validity of the notice of ejectment. Both Courts below found that the notice of ejectment was legal and valid and that the defendant had violated Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and was liable for ejectment. The defendant appealed.
Legal Issues Presented
- Whether a landlord is required to serve a notice under Section 114-A of the Transfer of Property Act before maintaining a suit for ejectment against a monthly tenant who is holding over after the expiry of a lease and who is alleged to have breached Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act.
- Whether the notice of ejectment dated 18 October 1963 (Ext. 3) was valid, in particular whether a notice requiring delivery of possession "on the expiry of the month of November, 1963" was effective where, it was alleged, the monthly tenancy ran from the 2nd of a month to the 1st of the following month after holding over.
- Whether the structures erected by the defendant were temporary or permanent in character, and therefore whether a decree for ejectment was appropriate.
- Whether acceptance of rent by the landlord operated as a waiver of the right of forfeiture.
Arguments of the Parties
Appellant's Arguments (Mr. Guruprasad Ghosh)
- No notice of forfeiture was given under the Transfer of Property Act (specifically Section 114-A), therefore the suit is not maintainable. The appellant's lease had been for five years expiring 1 May 1958; thereafter the defendant held over and became a monthly tenant. If the landlord wanted to evict for breach of Clauses (m), (o) and (p) of Section 108, Section 114-A required service of a written notice specifying the breach and, if remediable, requiring remedy.
- The notice of ejectment (Ext. 3) was illegal and invalid because, after holding over, the monthly tenancy ran from the 2nd of a month to the 1st of the following month (the lease time computation argument under Section 110 of the Transfer of Property Act), so a demand to deliver possession "on the expiry of the month of November, 1963" was not appropriate to the actual month-terminus of the tenancy; appellant relied on authorities (including 37 Cal WN 1 / AIR 1932 PC 279 and a 1975 SCC/Supreme Court report) in support.
- The structures were temporary in nature, and therefore no decree for ejectment should have been passed.
- Acceptance of rent by the landlord amounted to waiver of the right of forfeiture.
Respondent's Arguments (Mr. Abhijit Banerjee)
- Where a tenant holds over after expiry of a lease and becomes a monthly tenant, the relation is governed by the West Bengal Premises Tenancy Act (WBP Tenancy Act), which is a self-contained statute; in such cases a landlord is not required to serve a notice under Section 114-A of the Transfer of Property Act before filing a suit for ejectment for breach of the Clauses (m), (o) and (p) of Section 108.
- The parties had treated the matter under the West Bengal Premises Tenancy Act in earlier proceedings: Order No. 33 (8 Feb 1965) allowed the plaintiff's application under Section 17(3) of that Act and struck off the defendant's application; Order No. 51 (25 Apr 1966) rejected the defendant's application under Section 17-A of the Act; Order No. 76 (14 Jan 1969) disposed of an application under Section 17-C of West Bengal Ordinance No. VII of 1967, ordering deposit of Rs. 7,600 within 60 days. Given this history, the defendant could not now deny applicability of the West Bengal enactment.
- The notice of ejectment was valid because it contained an alternative formulation — requiring delivery "on the expiry of the month of November, 1963 or at the end of a month of your tenancy which would expire next after one month from the receipt of this notice" — and such alternative phrasing has been held valid in earlier authorities (including AIR 1953 Cal 352, Jatindra Nath v. Malai Ram Show).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 37 Cal WN 1 : (AIR 1932 PC 279) — Benoy Krishna Das v. Salsiccioni | Cited by appellant to support the proposition that a notice asking for possession "on the expiry of the month" is invalid where the tenancy's monthly period does not coincide with the calendar month. | The court acknowledged that this decision supports the appellant's contention but found the present notice used acceptable alternative wording; therefore the court did not apply this precedent to invalidate the notice in the present case. |
| (1975) 2 SCC 246 : AIR 1975 SC 1111 — Dattonpant Gopalarao Devakate v. Vithalrao Marutirao | Cited by appellant as authority for the same proposition about invalidity of a notice tied to a calendar month where the tenancy month differs. | The court noted the citation but, given the alternative phrasing in the present notice, did not find these authorities decisive to invalidate the notice here. |
| AIR 1953 Cal 352 — Jatindra Nath v. Malai Ram Show | Cited by respondent to show that alternative formulation in a notice (e.g., "or at the end of a month of your tenancy which would expire next after X days from receipt") is recognised and valid in law. | The court relied on this decision as persuasive authority that an alternative demand in a notice is valid, and applied that reasoning to uphold the notice in the present case. |
| Sankar Ram v. Tulsi Bhagat — AIR 1921 Pat 307 | Authority relied upon (in Jatindra Nath and related discussions) supporting the validity of alternative phrasing in a notice to quit. | The court cited the chain of authority (including this case via Jatindra Nath) in support of the view that the alternative form of demand is legally effective; used to support upholding the notice. |
| Ganga Prasad v. Prem Kumar Kohli — AIR 1949 All 173 | Another authority relied upon in the line of cases recognizing validity of alternative words in notices to quit. | Referenced by the court (through the reasoning in Jatindra Nath) to support the proposition that alternative forms of notice are valid; applied to sustain the validity of Ext. 3. |
Court's Reasoning and Analysis
The court's analysis proceeded in discrete steps, each applying the statutory framework and the authorities referenced in the text:
- Applicability of the West Bengal Premises Tenancy Act to monthly tenancies: The court accepted the respondent's submission and the practical course of the litigation that the West Bengal Premises Tenancy Act governs monthly tenancies arising from holding over. The court described the West Bengal Act as a "self contained Act" governing such tenancies, and concluded that when that Act applies the landlord is not required to serve a notice under Section 114-A of the Transfer of Property Act before filing a suit for ejectment on the ground of breach of Clauses (m), (o) and (p) of Section 108.
- Validity of the notice of ejectment (Ext. 3): The court carefully examined the precise wording of the notice, which gave the defendant notice to vacate "immediately on the expiry of the month of November, 1963 or at the end of a month of your tenancy which would expire next after one month from the receipt of this notice." The court observed that if the notice had only demanded possession on the expiry of November 1963, the appellant's authorities would render it invalid. However, because the notice included the alternative phrasing, the court relied on the authority in AIR 1953 Cal 352 (Jatindra Nath ...) — and the line of earlier decisions relied upon in that case (Sankar Ram v. Tulsi Bhagat; Ganga Prasad v. Prem Kumar Kohli) — which recognize that such alternative formulations are valid in law. Applying that reasoning, the court held the notice to be valid.
- Character of the structures: Both lower courts had found that the constructions (a pucca temple and two sheds with pucca walls and a C.I. roof) were permanent in character and erected without the plaintiff's knowledge or consent. The appellate court treated this as a concurrent finding of fact by the courts below and stated it was not inclined to interfere with that finding in the second appeal.
- Waiver by acceptance of rent: The court reiterated that because the West Bengal Premises Tenancy Act applied and a statutory tenant under that regime is required to pay or deposit rent, acceptance of rent by the landlord did not operate as a waiver of the right of forfeiture under the circumstances of this case.
- Outcome on the arguments: For the reasons summarized above — (i) applicability of the West Bengal Premises Tenancy Act removing the requirement to serve notice under Section 114-A for monthly tenancies holding over, (ii) validity of the alternative phrasing in the notice, (iii) concurrence with lower courts on permanence of the structures, and (iv) non-waiver by rent acceptance — the court found all contentions of the appellant to fail.
Holding and Implications
Holding: The appeal is DISMISSED. There will be no order as to costs. (B.C. Ray, J. concurred.)
Implications:
- The judgment and decree of the lower courts (Subordinate Judge, 6th Court at Alipore dated 19 June 1970; affirmed by Additional District Judge, 12th Court at Alipore dated 30 April 1971) stand affirmed.
- Practically, the defendant's contentions failed and the findings that the defendant violated Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and was liable for ejectment were upheld by the appellate court.
- The court held that where a monthly tenancy arises by holding over and the West Bengal Premises Tenancy Act governs, the landlord is not required to serve a notice under Section 114-A of the Transfer of Property Act prior to filing a suit for ejectment on the ground of breach of Clauses (m), (o) and (p) of Section 108.
- The court upheld the validity of a notice to quit that employs an alternative formulation (calendar date or the end of the tenant's next expiring month after a specified period), relying on prior authorities; the specific notice in this case was held valid.
- No broader new legal precedent was announced beyond the application of existing statutes and case law to the facts; the direct effect is the dismissal of the appeal and the maintenance of the decree for ejectment as previously entered.
N.C Mukherji, J.:— This is an appeal against the judgment and decree passed by the learned Additional District Judge, 12th Court at Alipore in little Appeal No. 1038 of 1970 dated 30th April, 1971 affirming those of the learned Subordinate Judge, 6th Court at Alipore in Title Suit No. 67 of 1963 passed on 19th June, 1970. The facts of the case may briefly be stated as follows:—
The respondent filed a suit for ejectment and mesne profits against the defendant, who was a monthly tenant at a rent of Rs. 400/- payable according to the English calendar month. According to the terms of the tenancy, the defendant was not to make any addition or alteration to the premises without the consent of the plaintiff in writing. The plaintiff was informed that the defendant has constructed a pucca temple and two sheds with pucca walls etc. with C.I roof on the suit premises. These structures are of permanent nature and have been illegally made without the knowledge and consent of the plaintiff. Thus the defendant has acted contrary to the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and is liable for ejectment.
2. The defence is that the structures in question were made in the year 1958 and in the first part of 1959 with the knowledge and consent of the plaintiff. The defendant also challenges the legality and validity of the notice of ejectment. Both the Courts below found that the notice of ejectment was legal and valid and the defendant violated the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and is liable for ejectment. Being aggrieved, the defendant has preferred the present appeal.
3. Mr. Guruprasad Ghosh, learned Advocate appearing on behalf of the appellant takes several points, most of which were not taken in the Courts below. In the first place, Mr. Ghosh contends as no notice of forfeiture was given by the landlord to the defendant according to the provisions of the Transfer of Property Act the suit is not maintainable. Mr. Ghosh submits that in the present case the lease was for five years which was to expire on 1-5-1958. But after the expiry of the lease, the defendant continued in possession with the consent of the plaintiff on payment of rent and thereby became a monthly tenant by holding over. But in such a case if the plaintiff wants to evict the defendant on the ground that he has violated the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, the landlord is required to serve a notice upon the defendant according to the provisions of Section 114-A of the Act. This section provides that ‘Where a lease of immovable property has determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may reenter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing- (a) specifying the particular breach complained of; and (b) if the breach is capable of remedy, requiring the lessee to remedy the breach… … … …”.
4. Mr. Abhijit Banerjee, learned Advocate appearing on behalf of the respondent contends that the landlord is not required to serve a notice under Section 114-A in case of monthly tenancy on holding over after the expiry of lease. In such a case the tenancy is governed under the provisions of the West Bengal Premises Tenancy Act. This is a self contained Act and the provisions of the Act fully apply in case of monthly tenancies and that being so, when there is specific provision for ejectment for breach of the Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act under the West Bengal Premises Tenancy Act it is not required for the landlord to serve a notice under Section 114-A of the Transfer of Property Act. Mr. Banerjee in this connection also draws our attention that all along in the Courts below the tenant took up the position that the West Bengal Premises Tenancy Act applies. Order No. 33 dated 8th of February, 1965 is an order by which the plaintiff's application under Section 17(3) of the West Bengal Premises Tenancy Act was allowed and the defendant's application against delivery of possession was struck off. The defendant at the time of hearing of the said application filed certain challans to show that certain amounts were deposited. The Court considered those deposits and was of the opinion that the defendant did not comply with the provisions of Section 17(1) of the Act.
5. Mr. Banerjee next refers to Order No. 51 dated 25th of April, 1966. That was an order passed on the defendant's application filed under Section 17-A of the West Bengal Premises Tenancy Act. This application was rejected after contested hearing. Again it is seen from Order No. 76 dated 14th of January, 1969 that the defendant filed an application under Section 17-C of the West Bengal Ordinance No. VII of 1967. That application was disposed of by the learned trial Court by ordering the defendant to deposit in Court the total sum of Rs. 7,600 within 60 days from date. Mr. Banerjee submits that this being the stand taken by the defendant, the defendant now cannot be allowed to say that the provisions of the West Bengal Premises Tenancy Act do not apply. We have considered the legal position and we are of the opinion that in case of monthly tenancies provisions of the West Bengal Premises Tenancy Act apply and the landlord is not required to serve a notice under Section 114-A of the Transfer of Property Act before filing a suit for ejectment on the ground of breach of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act.
6. In the next place, Mr. Ghosh submits that the notice of ejectment which was served by the plaintiff on the defendant is illegal and invalid as after the holding over, the monthly tenancy was from second of a month to the first of the following month. The notice which sought to determine the tenancy by the end of the month cannot, therefore, be considered as a valid notice. In the present case the lease was for five years and was to expire on 1st of May, 1958. The registered deed of lease is Ext. 2. Mr. Ghosh submits that according to the provisions of Section 110 of the Transfer of Property Act where the time by a lease of immovable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. That being so the lease terminated on 1st of May, 1963 and the monthly tenancy after holding over commenced from 2nd of May. The notice of ejectment is Ext. 3. Notice is dated 18th of October, 1963. Mr. Ghosh contends that as by the notice the defendant was asked to deliver vacant and peaceful possession on the expiry of the month of November, 1963, the notice is bad because the monthly tenancy was from second of a month up to the first of the following month. In support of his contention Mr. Ghosh refers to the decisions reported in 37 Cal WN 1 : (AIR 1932 PC 279), (Benoy Krishna Das v. Salsiccioni) and (1975) 2 SCC 246 : AIR 1975 SC 1111, (Dattonpant Gopalarao Devakate v. Vithalrao Marutirao). Both the cases support the contention raised by Mr. Ghosh. But in this particular case we are to consider carefully the expressions used in the notice. The relevant portion of the notice reads as follows:—
“You are hereby given notice to quit and vacate the premises No. 10, Kali Prosanna Singhee Road, Cossipore and deliver vacant and peaceful possession thereof to my client immediately on the expiry of the month of November, 1963 or at the end of a month of your tenancy which would expire next after one month from the receipt of this notice”.
7. If the landlord simply asked the defendant to deliver possession on the expiry of the month of November, 1963 then according to the decisions referred to above the notice must be held to be invalid. But in this case alternatively it has been stated that the defendant is required to deliver possession on the expiry of the month of November, 1963 or at the end of a month of his tenancy which would expire next after one month from the receipt of this notice. In this connection Mr. Banerjee refers to a decision reported in AIR 1953 Cal 352, (Jatindra Nath…Defendant- v. Malai Ram Show…Plaintiff-.). The facts of the case are almost similar. P.N Mookerjee, J. referred to the passage occurring in Mulla's Transfer of Property Act, Edition 3 at page 653 which runs thus : “It is usual after mentioning the date of the anniversary of the tenancy to add in the alternative some general words as at the end of the year of the tenancy which will expire next after the end of one half year from the date of the service of this notice”. That passage suggests that demand for possession in the alternative form is perfectly valid and well recognised in law. His Lordship relying on some English decisions was of the opinion that “There is also nothing, either in principle or in the authorities, which runs counter to the suggestion of the learned Author and, accordingly, I am inclined to accept the same”. His Lordship on this point relied on two other decisions Sankar Ram v. Tulsi Bhagat, AIR 1921 Pat 307 and Ganga Prasad…(Defendant); v. Prem Kumar Kohli…(Plaintiff)., AIR 1949 All 173 and came to the conclusion that the notice to quit was good, valid and sufficient. The relevant portion of the notice in the case before his Lordship is as follows:—
“Notice is hereby given to you to vacate and deliver up possession of the said two rooms with the end of 31-7-1945 or at the end of a month of your tenancy which would expire next after 15 days from the receipt of the notice”.
8. We have already referred to the relevant portion of the notice in the present case and we find that the terms of the relevant portion of the notice are almost similar. We therefore negative the contention raised by Mr. Ghosh.
9. Mr. Ghosh next contends that the structures said to have been constructed by the defendant are of temporary nature and as such no decree for ejectment ought to have been passed. Both the Courts below have considered this question and have come to the conclusion that the structures are of permanent character. They have also come to the conclusion that the structures were made without the knowledge and consent of the plaintiff. This being the concurrent finding of the Courts below we are not inclined to interfere in the second appeal.
10. Mr. Ghosh lastly submits that by acceptance of rent the landlord has waived the right of forfeiture. We have already held that the present case is governed by the provisions of the West Bengal Premises Tenancy Act and that a statutory tenant is required to pay or deposit rent and by acceptance of that rent the landlord does not waive his right of forfeiture.
11. For the reasons stated above all the contentions raised by Mr. Ghosh fail and accordingly the appeal fails.
12. In the result, the appeal is dismissed. There will be no order as to costs.
13. B.C Ray, J.:— I agree.
14. Appeal dismissed.
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